Legislature(2009 - 2010)BELTZ 105 (TSBldg)
02/17/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB194 | |
| HB186 | |
| Confirmation Hearings | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 186 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| = | SB 194 | ||
HB 186-AK FIREARMS EXEMPT FROM FED. REGULATION
1:34:55 PM
CHAIR FRENCH announced the consideration of HB 186. [CSHB
186(FIN)am was before the committee.] The committee heard an
overview and took public testimony at a previous hearing. He
asked Mr. Luckhaupt to give an overview of the research he's
done and the legal issues that the bill raises.
1:35:59 PM
JERRY LUCKHAUPT, Legislative Counsel, Legislative Legal and
Research Services, Legislative Affairs Agency, stated that HB
186 raises interstate Commerce Clause issues. At one time it
appeared that the U.S. Supreme Court was going to exempt from
the Commerce Clause some wholly intrastate activities, but the
Gonzales v. Raich decision in 2005 put that notion to rest. He
explained that California passed a law exempting medical
marijuana activities. It purported to protect people who engage
in medical marijuana activities wholly within California from
any affect on interstate commerce. The theory was that the
federal government could not prosecute these people, but the
U.S. Supreme Court rejected that view in an opinion by Justice
Scalia. The Court said that even granting that the activities
were wholly intrastate, interstate commerce would be affected.
MR. LUCKHAUPT said it was significant that during the time that
the case was on appeal, the Ninth Circuit Court of Appeals
("Ninth Circuit") reversed a decision [United States v. Stewart]
in a case involving a man who manufactured and sold machineguns
wholly within California. The federal government sought
certiorari and the U.S. Supreme Court sent the case back to the
Ninth Circuit to reevaluate the decision based on the Raich
decision. At that point the Ninth Circuit ruled that the man's
activities affect interstate commerce even if they are wholly
intrastate as claimed. Therefore, the federal government had a
right to regulate his activities. "That's, I think, as close as
we can get on point in a case like this," Mr. Luckhaupt said.
1:39:14 PM
That being said, the Legislature has at times passed laws that
appear to be unconstitutional, Mr. Luckhaupt pointed out.
Medical marijuana is one example; people in this state are
exempt from prosecution in state courts for medical marijuana
activities, but they still face potential prosecution in federal
courts. Another example is found in the Tundra Rebellion
statutes - AS 38.05.500 through AS 38.05.505. That was the
result of a people's initiative in the early '80s basically
disclaiming the Statehood Act. It said that all federal lands in
Alaska belong to the State of Alaska.
CHAIR FRENCH asked if California had passed anything similar to
HB 186 before the Stewart case was decided.
MR. LUCKHAUPT said no.
CHAIR FRENCH asked if it's legally significant that there is no
constitutional amendment giving a person the right to use
marijuana, but citizens have been firm about the right to bear
arms since this country was founded.
MR. LUCKHAUPT said that in the Raich case Justice Scalia didn't
talk about whether or not a person had a right to possess
marijuana. The issue was commerce. The Court said that even
intrastate activities have an effect on interstate commerce so
the federal government and Congress have the right to intervene.
He said his opinion doesn't change considering the Second
Amendment. His memo referenced two cases in the last 20 years
that seemed to say there was a limit on how far the Commerce
Clause went with regard to interstate activities. But the Raich
case kind of said that everyone was confused and that they were
reading too much into these cases.
1:43:06 PM
SENATOR WIELECHOWSKI warned that if this becomes law, people
need to realize that there is potential for federal prosecution.
That being said, there is a provision that the state must
provide defense, he added.
MR. LUCKHAUPT agreed that people could get the wrong impression
that if this were to become law that they would be completely
immunized. In fact, they would likely have criminal liability if
they engaged in the activity and the federal government decided
to prosecute, he said.
CHAIR FRENCH called a point of order to clarify that the
language on page 3, line 18, says the attorney general may
defend a citizen. Some earlier versions said "shall" but in this
version there is no command for the attorney general to defend
someone in federal court for breaking the federal firearms law.
MR. LUCKHAUPT said it would be unfortunate if someone engaged in
an activity that is purported to be protected only to find that
they were subject to criminal liability. When the medical
marijuana law passed in Alaska there was considerable effort to
make people understand that there was potential federal
liability. That's what the Raich case was about.
1:46:08 PM
SENATOR WIELECHOWSKI asked if he sees the potential for a chain
of prosecutions or if it would only be the person who possesses
the gun who would be prosecuted.
MR. LUCKHAUPT opined it would primarily be the person
manufacturing firearms without obtaining a federal license or
permit. In the Stewart case the person who received the
machinegun was not prosecuted; it was the person who
manufactured and sold the machinegun who was prosecuted. The
opinion didn't talk about other clients.
1:47:39 PM
SENATOR COGHILL emphasized that if this were to become law it's
important to let the citizens know that this is a challenge to
the federal government regarding the right to bear arms under
the Second Amendment and states' rights authority. The question
will be whether the Commerce Clause trumps those.
CHAIR FRENCH asked for an update on the Montana litigation.
MR. LUCKHAUPT summarized that a wildlife group sought
declaratory judgment in U.S. District Court in Montana and the
federal government has responded. He surmised that the case is
either waiting resolution or the scheduling of arguments.
Theoretically there could be discovery going on, he added. He
hasn't found anything on the Tennessee case, but has heard it
exists.
CHAIR FRENCH noted that the bill packet contains letters to
Montana and Tennessee federal firearms licensees regarding their
need to continue to obey federal law in this regard despite
passage of bills similar to HB 186.
1:50:37 PM
GARY MARBUT, President, Montana Shooting Sports Association
(MSSA), said he wrote the original Firearms Freedom Act that was
passed in Montana in 2009. The subject is states' rights and a
challenge to federal Commerce Clause authority. Since MSSA is a
gun group, the vehicle for the challenge is firearms.
Acknowledging there is precedent that does not bode well for
success, he emphasized that the purpose of the Firearms Freedom
Act is to challenge the status quo, not to conform. He reported
that the goal is to take this all the way to the U.S. Supreme
Court and persuade the Court to overturn a lot of precedent
surrounding the Commerce Clause. He noted that similar
legislation has been introduced in 22 other states.
MR. MARBUT reported that the Montana lawsuit was filed on
October 1, 2009, the same day that the Montana Firearms Freedom
Act became effective. The goal was to get the issue into court;
it was not to have people start manufacturing these items. "We
have advised all Montanans in every news release we've put out …
that people should not try and make these Montana-made items
until we can validate the principles of the Montana Firearms
Freedom Act in court," he said.
In a Second Amendment case, District of Columbia v Heller,
Justice Scalia said, "… what is not debatable is that it is not
the role of this Court to pronounce the Second Amendment
extinct." Mr. Marbut asserted that it is also not its role to
pronounce the Tenth Amendment extinct. Noting that the U.S.
Supreme Court overturns a lot of president, he highlighted that
Justice Roberts, in Citizens United v. Federal Election
Commission, talked about when the Court should overturn
precedent.
1:55:18 PM
He read the following from Justice Roberts' opinion:
Likewise, if adherence to a precedent actually impedes
the stable and orderly adjudication of future cases,
its stare decisis effect is also diminished. This can
happen in a number of circumstances, such as when the
precedent's validity is so hotly contested that it
cannot reliably function as a basis for decision in
future cases, when its rationale threatens to upend
our settled jurisprudence in related areas of law, and
when the precedent's underlying 8 reasoning has become
so discredited that the Court cannot keep the
precedent alive without jury-rigging new and different
justifications to shore up the original mistake.
MR. MARBUT cited Gonzales v. Raich as an example of how far the
interpretation of the Commerce Clause authority has gone. It
goes back to Justice Roberts' statement about jury-rigging
justifications to shore up an original mistake. In that case the
Court said that the marijuana distributed under the California
Medical Marijuana Act theoretically affected a marketplace in an
illegal substance.
He said that a Tenth Amendment wave is sweeping the country and
many states are asserting their sovereignty. This is proper and
the Firearms Freedom Act is part of that. It's a healthy
exercise in democracy to try to persuade the U.S. Supreme Court
that it needs to do something about a bad law that came about
during the New Deal era.
MR. MARBUT said that a new argument they intend to put forth is
that the Commerce Clause, the Supremacy Clause, and the
Necessary and Proper Clause have all been amended by the Tenth
Amendment. It's bedrock of jurisprudence that if there is a
conflict between two provisions of a co-equal body of law, the
most recent must be given preference. Lacking that principle,
law could be neither amended nor repealed. This fresh argument
can change the course from the precedence of the Raich decision,
he concluded.
1:58:29 PM
CHAIR FRENCH asked if the personality of the Court in 2010 is
different than it was in 2005 when Raich was decided.
MR. MARBUT said the complexion hasn't changed significantly, but
we hope that Justice Scalia and Justice Roberts will be on our
side this time. They hope that Justice Scalia will be persuaded
to talk about the role of the Court with respect to the Tenth
Amendment as he did in the Heller case, and they hope that
Justice Kennedy will be persuaded because there's an emerging
consensus among states on this issue and he is most interested
in public opinion.
CHAIR FRENCH asked which side Justice Kennedy came down on in
the Raich case.
MR. MARBUT replied Justice Kennedy and Justice Scalia were with
the majority, but the new rationale may put Justice Scalia in a
different position.
2:00:45 PM
JAMES FLOYD, representing himself, Tok, said in light of the
Bureau of Alcohol, Tobacco and Firearms (BATF) letters that were
sent to licensees last year, he wonders if anyone has given
though to having state firearms licensees versus federal
firearms licensees.
MR. MARBUT explained that the BATF only sent letters addressed
to Montana and Tennessee licensees and the assumption has always
been that they wouldn't be players. They require national
markets and their business models are to ship across state
lines. Presumably it will be the mom and pop machine shops that
would make these state-made items if the principles of the
Firearms Freedom Act are validated in court.
2:03:36 PM
SCOTT HAMMOND, representing himself, Kenai, reiterated his
strong support for HB 186. "Let the federal government know that
we are very serious about this and it's time for us to assert
our rights under the Constitution," he said.
CHAIR FRENCH said given that the challenge will be completed
through the Montana case, he wonders why Alaska should subject
even one citizen to the potential calamity of going to jail.
2:05:04 PM
DEREK MILLER, Staff to Representative Mike Kelly, said we'd like
to join in for the same reasons that Mr. Marbut stated.
CHAIR FRENCH summarized that the bill almost becomes an amicus
brief to the U.S. Supreme Court saying that the Legislature
agrees with the thrust of the case.
MR. MILLER said yes.
SENATOR COGHILL commented that there are people who would
willingly subject themselves to this potential federal liability
thinking that it would be a patriotic act.
2:06:21 PM
CHAIR FRENCH held HB 186 in committee.
^CONFIRMATION HEARINGS
CONFIRMATION HEARINGS
2:06:50 PM
CHAIR FRENCH announced the next order of business to be
legislative confirmations.
H. CONNER THOMAS, Nominee, Select Committee on Legislative
Ethics, Nome, said he has served on the committee since 1999 and
is asking for confirmation to another three-year term. He enjoys
the duty and feels that this is a public service he can do for
the citizens of the state. He said he is able to meet the
committee responsibilities even though he is a partner in a law
firm in Nome. I would like to continue, he concluded.
CHAIR FRENCH reported that he has served on the committee with
Mr. Thomas and has no questions. "I'm perfectly comfortable and
happy that you're stepping forward to serve again," he said.
SENATOR WIELECHOWSKI thanked Mr. Thomas for his service.
SENATOR COGHILL remarked that he's got institutional history.
2:08:46 PM
GARY TURNER, Nominee, Select Committee on Legislative Ethics,
said he is the director of the Kenai Peninsula College said he
just completed his first three-year term on the committee. He
enjoys working on the committee and considers it an intriguing
public service. I look forward to being reconfirmed if deemed
worthy, he concluded.
CHAIR FRENCH reported that he served with Mr. Turner for several
years and is pleased that he wants to continue. It takes awhile
to get up to speed on the complex set of rules that attend the
ethics laws in the state.
SENATOR COGHILL asked if he encountered any major surprises
since he comes from an academic rather than legal background.
MR. TURNER replied he certainly relies on the attorneys that
serve on the committee, but he thinks it's healthy that he
brings a different perspective.
2:11:23 PM
SENATOR WIELECHOWSKI moved to advance the names Gary Turner and
H. Conner Thomas for appointment to the Select Committee on
Legislative Ethics. The names will be forwarded to the full
membership of the legislature in joint session for consideration
and a final vote.
CHAIR FRENCH found no objection and announced that in accordance
with AS 24.60.130, the Senate Judiciary Standing Committee
reviewed the following and recommends the appointments of Gary
J. Turner and H. Conner Thomas. He reminded members that this
does not reflect any intent by the members to vote for or
against the confirmation of the individuals during any further
sessions.
2:12:14 PM
There being no further business to come before the committee,
Chair French adjourned the Senate Judiciary Standing Committee
meeting at 2:12 p.m.
| Document Name | Date/Time | Subjects |
|---|