A Matter of Expectations: Interpreting the Statutory Preemption of Local Assistance to Federal Firearms Regulators

JurisdictionAlaska,United States,Federal
Publication year1998
CitationVol. 15

§ 15 Alaska L. Rev. 345. A MATTER OF EXPECTATIONS: INTERPRETING THE STATUTORY PREEMPTION OF LOCAL ASSISTANCE TO FEDERAL FIREARMS REGULATORS

Alaska Law Review
Volume 15
Cited: 15 Alaska L. Rev. 345


A MATTER OF EXPECTATIONS: INTERPRETING THE STATUTORY PREEMPTION OF LOCAL ASSISTANCE TO FEDERAL FIREARMS REGULATORS [*]


Thomas E. Castleton


I. INTRODUCTION

II. UNCERTAINTY OF INTERPRETIVE AUTHORITY FOR ALASKA'S LOCAL FIREARMS REGULATION PREEMPTION STATUTE

III. RECONSTRUCTING THE TEXT OF THE ALASKA STATUTE

A. The Deceptive Simplicity of "Plain Meaning"

B. The Elements of the Alaska Preemption Statute

C. State Law Application of a Reconstructed Alaska Preemption Statute

IV. THE FEDERAL NEXUS

V. CONCLUSION

FOOTNOTES

I. INTRODUCTION

In the era between the New Deal and the current decade, commentators regarded the Supreme Court's doctrinal approach to Commerce Clause regulatory legislation as a "fixed and fundamental point" on the constellation of "the modern legal consciousness." [1] Shattering the languor of post-New Deal federalism doctrine, this decade's Supreme Court jurisprudence [2] has energized [*pg 346] anew the debate over the states' relationship to the federal regulatory process. [3] By virtue of its vast natural resources and its native communities, Alaska and its citizens traditionally have lived with a substantial degree of federal regulation. [4] The development of the [*pg 347] debate over federalism will continue to hold particular significance for Alaska.

Part of the resurgent debate has been fueled by the Court's re-examination of the federal regulatory process. [5] For example, the Court has invalidated federal statutory requirements that states develop programmatic solutions to problems of joint state and federal interest. [6] Most recently, in Printz v. United States, [7] a divided Court invalidated parts of the Brady Handgun Violence Prevention Act [8] in a five to four decision. [9] In the process, the Court rejected the premise that Congress had any power to compel state officials to execute federal regulatory regimes. [10] The Printz Court, however, did not address explicitly whether Congress might enlist voluntary participation by state officials in the administration of a federal regulatory scheme. [11] The Court did suggest, however, that state officials who voluntarily choose to help administer such schemes could be precluded from doing so by statutes preempting local firearms regulation in general. [12]

Alaska has a local preemption statute that prevents local officials from restricting the right to own, possess, or transport firearms. [13] Proponents of firearms regulation have pointed out that thirty-nine other states have similar local preemption statutes. [14] The Court's unelaborated endorsement of such statutes in Printz provides little guidance about how to interpret those statutes in light of voluntary local participation in federal regulatory schemes. Indeed, the majority clearly was divided on this question. The result of the Court's foray into this area has been to inject confusion into a vibrant debate about federal authority [15] and to cloud the ba- [*pg 348] sis for the practical application of statutes like the Alaska preemption statute. [16]

Part II of this Note discusses the uncertainty created by the Printz Court's statements regarding local participation in federal firearms regulation schemes and how those difficulties are compounded by the sparse legislative history of the Alaska statute. Part III reconstructs a practical basis for construing the applicability of the Alaska preemption statute by evaluating its text. Part IV examines the federal nexus between the reconstructed text and the federal firearms regulation regime in order to evaluate the degree to which a state official may interact with or assist federal governmental entities that seek to enforce federal firearms regulations generally. Part IV's analysis of the statutory text suggests that local law enforcement officials in Alaska voluntarily may assist federal government officials in enforcing federal firearms regulations. Moreover, local officials under certain circumstances may have a duty to cooperate with federal enforcement of firearms regulations. This Note concludes that such cooperation is consistent with Printz, the Alaska Constitution, the Alaska preemption statute, and with doctrinally sound federalism principles.

II. UNCERTAINTY OF INTERPRETIVE AUTHORITY FOR ALASKA'S LOCAL FIREARMS REGULATION PREEMPTION STATUTE

In Printz, the Supreme Court suggested that states legitimately could prohibit local cooperation with federal firearms regulation by enacting express state statutory proscriptions. [17] In a very brief footnoted comment, Justice Scalia's opinion for the Court contemplated whether Montana law prohibited Sheriff Jay Printz from voluntarily participating in the administration of the [*pg 349] Brady regulatory regime. [18] Without elaborating on his reasoning, Justice Scalia concluded that Montana law "clearly" prohibited Sheriff Printz from "taking on these federal responsibilities." [19] Justice Scalia also stated that a similarly written Arizona statute might prohibit Arizona sheriffs from voluntarily taking part in the Brady plan. [20] Justice Scalia's opinion for the Court suggests Supreme Court imprimatur of state restraints upon municipalities, counties, or other state political subdivisions. [21] The operation of these restraints in the manner that Justice Scalia contemplates easily could eviscerate the ability of the federal government to administer effectively any federal firearms regulatory scheme without a dramatic expansion of the regulatory role of the federal government. [22]

Justice O'Connor's concurrence qualified Justice Scalia's enthusiastic endorsement of state restraints on local firearms regulation in the face of federal regulation. Justice O'Connor made clear that she did not believe that the Court's holding swept away the goals of the Brady Act. [23] She underscored that, with respect to the Brady Bill, "[s]tates and chief law enforcement officers may voluntarily continue to participate." [24] Moreover, she pointed out that [*pg 350] the Court had not held that congressional imposition of "purely ministerial reporting requirements" upon state officials was inva lid. [25] Justice O'Connor's concurrence noted specific reservations about the reach of the Court's five to four decision. It is implausible to think that Justice Scalia's footnoted comment has settled the issue.

Although Justice O'Connor disagreed with Justice Scalia's observation, she failed to elaborate the basis for her disagreement, [26] and consequently failed to delimit Printz with much precision. [27] For example, she failed to define the doctrinal elements of what constitutes a purely ministerial reporting requirement. [28] As an example of such reporting requirements, Justice O'Connor cited without elaboration a federal statute that requires state law enforcement agencies to report cases of missing children to the U.S. Department of Justice. [29] Although useful as a comparative marker, Justice O'Connor's invocation of the missing children statute fails to provide the exactness necessary to define a coherent approach to the application of dual sovereignty principles. In addition, her statement about the ability of state and local officials to continue participating in the Brady scheme does not address the manner in which those actors permissibly may do so. Nothing in her statement expressly bars a state preemption statute like Alaska's from precluding local officials from voluntary participation in a federal regulatory program. [30] To be sure, in the absence of Justice O'Connor's restraint on the majority opinion, the implied rejection of federal regulation could jeopardize a multitude of federal regulatory schemes enacted pursuant to Congress's [*pg 351] authority to regulate interstate commerce. [31] Nevertheless, standing alone, the Court's opinion in Printz does not offer sufficient guidance to interpret the Alaska preemption statute in a coherent and meaningful way.

Analyzing the effect of the Alaska municipal firearms regulation statute also is challenging because the statute itself does not have any antecedents. The 1985 statute did not replace an earlier analogue. Instead, the provision was part of a larger state bill that sought to update and reorganize the Alaska municipal code. [32] The text of the preemption statute reads:

(a) A municipality may not, except by ordinance ratified by the voters, restrict the right to own or possess firearms within a residence or transport unloaded firearms.
(b) This section applies to home rule and general law municipalities. [33]

The preemption provision was not part of the original proposal and was added before the House Judiciary Committee reported the bill out of the committee. [34] The relative novelty of the statute and its sparse legislative history has discouraged judicial review. No reported case has construed the contours or operation of the statute. Doctrinally, the statute appears to be an orphan.

The statute lacks doctrinal footing from any judicial source, but that fact in itself would not normally bar its application. Were there some administrative source of authority construing the statute and implementing its mandate, its contours more easily might be...

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