HOUSE BILL NO. 186 "An Act declaring that certain firearms and accessories are exempt from federal regulation." 9:37:17 AM Representative Mike Kelly, Sponsor, described support for the legislation in Alaska because of concerns about increased federal regulation of firearms. He explained that the bill would separate firearms manufactured in Alaska from federal regulation. DEREK MILLER, STAFF, REPRESENTATIVE MIKE KELLY, SPONSOR, provided an overview of the legislation: · Section 1: Finds the authority of the bill in the Second Amendment, the right to bear arms; the Ninth Amendment, guaranteeing rights to people not listed in the Constitution; and the Tenth Amendment, protecting states' rights. The section also finds that Congress has not expressly pre-empted state regulation of interstate commerce pertaining to the manufacture on an interstate basis of firearms and accessories. · Section 2: States that a personal firearm or accessory manufactured in the state and remaining within the borders of the state is not subject to federal law or regulation. The firearm must have "Made in Alaska" clearly stamped on a central metallic part. The section also includes definitions of all parts of firearms and accessories. · Section 3: Applies the legislation to firearms built and retained in Alaska after October 1, 2009. 9:41:05 AM Representative Gara pointed to page 2, line 23, saying that a firearm manufactured in the state is not subject to federal regulation. He did not think the state could determine the reach of federal legislation. He queried the point of the provision. Representative Kelly replied that the federal government increasingly impinges on the rights of individual states. He thought Alaska was particularly targeted and listed examples. Representative Kelly understood that the measure would challenge the federal government. He gave some history of the evolution of the legislation. He acknowledged that the citizen manufacturing firearms may be challenged in the future by the federal government and would not be protected by the state's attorney general. He did not think the risk could be avoided. 9:44:13 AM Representative Gara did not think a state statute could say federal rules do not apply. The federal rules apply or they do not in Alaska regardless of what the state may argue. He questioned the point of the legislation. Representative Kelly emphasized that the legislation could send a message that the federal government is overreaching. He stressed the need to make a strong statement. Representative Gara understood the argument. The U.S. Supreme Court says the federal government has a certain amount of authority to regulate firearms in states; he thought the issue should be argued in court and not the legislature. Representative Kelly thought the issue could be argued in court. He pointed out other areas where Alaska is "talking back" to the federal government. Co-Chair Hawker stated his support for the bill. He stated that he liked the original version and asked whether the committee should return to it. Representative Kelly acknowledged concerns about the original version. 9:48:22 AM Representative Gara clarified that he is not nervous about standing up to the federal government. He opined that the language in the bill was meaningless. He thought the language belonged in a resolution. Representative Gara asked whether violating federal rules was a crime. Representative Kelly responded in the affirmative. Representative Gara asked what would happen if the state encouraged individuals to violate federal laws. Representative Kelly understood that the concern was constitutional. He acknowledged that an Alaskan could be sued by the federal government while following Alaskan law. 9:52:00 AM Co-Chair Hawker pointed to precedent in the state related to the private use of marijuana. Representative Gara reiterated his concerns with allowing Alaskans to violate federal law through state law. Representative Kelly emphasized how frequently Alaskans came up against the issue. He acknowledged that the bill is contentious. Representative Gara referred to an April 8, 2009 memo from Legislative Legal Services saying that violating federal law can lead to prosecution, and that the bill will not change federal law (copy on file). He emphasized that passage of the bill would set Alaskans up for prosecution. Representative Kelly replied that he had studied the memo and agreed with it: Someone following state law could get in trouble with the federal government. He stated he is leaning towards putting the attorney general out there to defend the rights of Alaskans where the federal government is infringing. HB 186 was set aside until later in the meeting. 9:56:27 AM AT EASE 9:57:25 AM RECONVENED HOUSE BILL NO. 186 "An Act declaring that certain firearms and accessories are exempt from federal regulation." 10:28:05 AM Representative Kelly MOVED to return to the original version of HB 168, 26-LS0627\R. There being no OBJECTION, it was so ordered. Representative Kelly MOVED to ADOPT Amendment 1: Page 1 line 10: Delete: "understood" Insert: "intended" Page 2 line 2: Delete: "understood" Insert: "intended" Page 2 line 12: Delete: "understood" Insert: "intended" Co-Chair Stoltze OBJECTED for DISCUSSION. Representative Kelly explained that the Judiciary Committee (JUD) had one amendment to replace the word "understood" with "intended" in three places. Representative Fairclough queried the discussion that had taken place in JUD regarding the word change. Representative Kelly replied that he agreed with JUD's statement that "intended" was a better way to describe what HB 186 is attempting to do. "Understood" meant that everyone had to be on the same page. Co-Chair Stoltze removed his OBJECTION. There being no further OBJECTION, Amendment 1 was ADOPTED. 10:29:55 AM Co-Chair Hawker pointed to two provisions on page 3(d). He liked the first provision saying that the state attorney general shall defend citizens if they are prosecuted through acting in compliance with HB 186. He had concerns about the second provision regarding the attorney general seeking declaratory judgment from the courts that the section is consistent with the U.S. Constitution. He requested further explanation. Representative Kelly responded that the provision had come from Montana. The sponsors were concerned that intent did not carry enough weight. Co-Chair Hawker thought that intent to manufacture a firearm was a lot different than an accessory. He did not want to inadvertently trap someone. He asked whether the sponsor would accept leaving in the first sentence and taking out the notice and intent sentence. 10:32:47 AM AT EASE 10:37:07 AM RECONVENED Co-Chair Hawker proposed conceptual Amendment 2: Page 3, commencing on line 22, remove the sentence beginning with "On receipt of" and ending with "the Constitution of the United States." Representative Gara OBJECTED for discussion. He agreed with the amendment and guessed it could save the state $200,000 each year. With the sentence, the state would have to pay costs for anyone wanting to file civil litigation challenging the federal regulation. He anticipated that lots of people would want to litigate and the state would have to respond each time. Co-Chair Stoltze stated his concerns. Co-Chair Hawker maintained the amendment. Representative Gara removed his OBJECTION. There being no further OBJECTION, conceptual Amendment 2 was ADOPTED. 10:39:27 AM Co-Chair Hawker clarified for the record that the committee was moving HB 186 as amended, not the JUD version. Representative Crawford commented that the bill was about manufacturing, not just about firearms. He wondered what would happen to a person who wanted to manufacture something else, such as a pesticide to use in state that was against federal law. He thought equal protection issues could be opened up. Representative Kelly responded that the focus of the bill is strictly on the Second Amendment. He agreed that similar arguments could be made for other federally regulated materials that the state believes it should be regulating. Representative Crawford asked if the legislation could then have far-reaching ramifications. Representative Kelly thought the concept of arguing state sovereignty could carry over, but he did not believe the legislation would necessarily trigger the response. Representative Crawford reiterated his question regarding the manufacture of federally regulated goods in the state. He thought others would want similar protection. Representative Kelly agreed that other areas could be discovered where the federal government was overreaching, but thought the focus of the bill was more on state's rights. Representative Crawford returned to the example of the pesticide. The federal government had strong concerns, but he could foresee someone in the state wanting to manufacture the pesticide because it would be profitable. Representative Kelly agreed, but reiterated his belief that the bill would not trigger the response. 10:44:30 AM Representative Fairclough asked whether the "Made in Alaska" reference was tied to Alaska's procurement code or defined elsewhere. Representative Kelly replied that the stamp was simply stating where the product was made. The provision was not attempting to connect to any other definition. DEREK MILLER, STAFF, REPRESENTATIVE MIKE KELLY, SPONSOR, added that the provision was modeled after Montana legislation. He offered to check the procurement code. Representative Fairclough pointed out that inserting the code would strengthen the legislation. She explained anyone could stamp "Made in Alaska" on a product and trigger the interstate commerce clause. Specific criteria must be met by a manufacturer if the defined procurement code is used. Mr. Miller offered to find the "Made in Alaska" statute. Representative Gara turned to page 3, lines 15 to 17. He wondered whether there were rules in Alaska regarding the proper and safe manufacturing of firearms. Representative Kelly thought there were rules governing the manufacture of products, although not specifically firearms. Representative Gara noted that under federal law there may be regulations that some view as abusive, but there are also rules that are good, such as prohibiting the production of guns that blow up and safety rules that protect hunters. He cautioned against putting a "Made in Alaska" stamp on a gun that does not follow those rules. 10:49:12 AM Co-Chair Hawker requested the citation for the applicable federal statute. Representative Gara thought it would be helpful to go through the federal statutes. He believed certain kind of dangerous firearms were regulated. Representative Kelly emphasized that HB 186 would trigger Alaska regulation. He believed the issue would be addressed through the regulatory process. Co-Chair Hawker pointed out that the paragraph (c) does not deal with the manufacturing process but only provides for an Alaskan identifier. Representative Kelly added that the bill does not purport to be the only thing governing the manufacture process. Representative Gara pointed to page 2, line 23, which says that a personal firearm manufactured in the state is not subject to federal law, and maintained that a firearm could be manufactured in the state without following federal rules about safety. He cautioned that an unintended consequence could be advertising to the public the possibility of unsafe weapons, which could have a damaging effect on the sale of Alaska products. Co-Chair Hawker did not agree that the provision was saying that the product was inferior. 10:53:03 AM Representative Gara suggested protecting Alaska manufacturers from possible unintended consequences by not exempting firearms from federal rules related to consumer safety. He stressed that the law as written would not require regulation that included safe manufacture. Representative Kelly stated that the law intended to get away from federal regulation. He emphasized that it did not preclude state regulation, particularly related to safety. He added that general rules regarding safety would apply. Representative Gara wondered if the sponsors would consider a provision saying manufacturers are not exempted from the safety portions of federal law. Representative Kelly replied that he would object because that would gut the bill. He thought that federal safety regulations adopted by the state would then be state regulations. Representative Gara reiterated concerns: first, the bill communicates approval of committing a federal crime; second, the state will pay for legal fees when someone commits the crime; and three, safety issues. Representative Kelly thought the safety issues would be addressed in regulation. Regarding the second concern, he believed the state had been mistaken in failing to defend rights to manage fish and game and regulate navigable waters. He wanted the state to defend individual Alaskans from the federal government. 10:57:54 AM Co-Chair Hawker MOVED to report CS HB 186(FIN) out of Committee with individual recommendations and the accompanying fiscal note. There being NO OBJECTION, it was so ordered. CS HB 186(FIN) was REPORTED out of Committee with no recommendation and attached new indeterminate fiscal note by the Department of Law.