A controversial Alaska gun bill sponsored by House Speaker Mike Chenault that would put federal agents at risk of felony charges for enforcing certain future weapons laws cleared the lone committee assigned to hear it Monday, despite a legal opinion saying it is likely unconstitutional.
Chenault's proposal is immensely popular among Republicans and a few Democrats. It has 19 co-sponsors, so half the House is already signed onto it.
Rep. Chris Tuck, an Anchorage Democrat, is an enthusiastic backer.
On Monday, House Bill 69 cleared the House Judiciary Committee with support of six of the seven members. One was Nome Democrat Neal Foster, part of the Republican-controlled majority. His father was tried and acquitted more than 20 years ago of illegally possessing unregistered machine guns.
Chenault's bill is among a number of gun measures being heard in legislative committees this session, mainly in the House. Big Lake Republican Rep. Mark Neuman's "stand your ground" bill, which expands the right to use deadly force as self-defense, passed the Judiciary Committee earlier this month, as did GOP colleague Charisse Millett's resolution expressing disapproval with President Obama's executive orders regarding gun control and gun safety. Another bill, allowing school districts to arm school employees, is before the House Education Committee.
The flurry of Alaska and federal gun measures comes in the aftermath of the December massacre at an elementary school in Newtown, Conn.
Chenault proposes to dramatically expand a 2010 state law by asserting that any firearm, firearm accessory or ammunition possessed by anyone in Alaska is not subject to federal law. The earlier law only covered weapons and ammunition manufactured here.
In addition, Chenault's proposal declares that any "federal statute, regulation, rule or order" is invalid in Alaska if it bans or restricts semi-automatic firearms, magazines or accessories. Obama has proposed to ban semi-automatic assault rifles and magazines that hold more than 10 rounds of ammunition. Any federal weapons registration system would be unenforceable as well, Chenault's bill says.
A federal law enforcement officer who tries to enforce gun registration or a ban on semi-automatic weapons would be subject to state prosecution on felony charges, under an amended version of Chenault's bill. He originally proposed trying to make the point with the threat of misdemeanor charges.
In Monday's hearing, the only legislator raising concerns was Max Gruenberg, D-Anchorage. He warned his fellow committee members that the bill was unconstitutional and unenforceable and that Alaskans who relied on it could "find themselves going to jail for a long time."
"This is actually something that is more than an academic exercise," Gruenberg said. "The feds don't blink at this."
Without mentioning the legislator by name, he brought up the case of the late Rep. Richard Foster, a Nome Democrat who in 1991 was acquitted of possessing six unregistered machine guns, a sawed off shotgun, and a 50mm mortar described by the prosecution as a rocket launcher, according to news reports from the trial. The defense succeeded in moving the case to Nome, where it was heard by a hometown jury in a place where almost every family owns guns.
While Foster beat the charges, Gruenberg said he didn't want to subject Alaskans to prosecution on federal gun laws that they thought they didn't have to follow. Chenault is trying to make a point, he said, but it will be costly. The right way to push back is through Congress, he said.
Rep. Gabrielle LeDoux, R-Anchorage, disagreed.
"Sometimes statements by themselves are important," she said. Look at the marijuana liberalization laws various states now have on the books, which contradict federal drug laws, she said. "Sometimes the feds do blink."
Tuck, the only member of the Democratic minority who has signed on as a co-sponsor, said in an interview that the Legislature needs to step up for Second Amendment gun rights.
"We're unique up here. We still live off the land, primarily," said Tuck, who owns a couple of rifles and enjoys shooting -- his team placed second in a competition last year --though he isn't a regular hunter himself.
For decades, Congress has relied on the interstate commerce clause of the U.S. Constitution to regulate guns. Chenault's bill declares that if a gun is possessed in Alaska, the interstate commerce provision does not apply.
One of the Legislature's lawyers, Kathleen Strasbaugh, advised Chenault in a memo last month that his bill "is largely unconstitutional." When federal and state laws conflict, the federal law is supreme, she noted.
Guns can be bought and sold across state lines, so even someone manufacturing homemade machine guns is subject to federal control, the U.S. Supreme Court has ruled.
Richard Svobodny, deputy attorney general over the criminal division, said a California case dating to the Gold Rush era involving a U.S. marshal established that if a federal agent is charged with a state crime in the line of duty, the case will be moved to federal court.
"That's called removal of jurisdiction," he said.
If the Legislature backs the bill, the courts will decide whether it will hold up, says Chenault, who owns many guns including semi-automatic weapons.
He is familiar with pushing the rules.
Last week, a reporter asked why the Legislature would consider allowing armed school employees when in the Capitol, only law enforcement officers can carry guns.
"There are guns in this Capitol," Chenault answered. "They are probably in almost every building." He said he knows of a teacher who carries a gun at school.
"When people are concerned about their safety, that's the atmosphere that you breed."
House Bill 69 now goes to the Rules Committee.