North to the Future of the Right to Bear Arms: Analyzing the Alaska Firearms Freedom Act and Applying Firearm Localism to Alaska

• Publication year: 2016

§ 33 Alaska L. Rev.125. NORTH TO THE FUTURE OF THE RIGHT TO BEAR ARMS: ANALYZING THE ALASKA FIREARMS FREEDOM ACT AND APPLYING FIREARM LOCALISM TO ALASKA

Alaska Law Review
Volume 33, No. 1, June 2016
Cited: 33 Alaska L. Rev. 125

NORTH TO THE FUTURE OF THE RIGHT TO BEAR ARMS: ANALYZING THE ALASKA FIREARMS FREEDOM ACT AND APPLYING FIREARM LOCALISM TO ALASKA

John Hill ^[*]

ABSTRACT

The Second Amendment has gone from a rarely invoked constitutional provision to being one of the most hotly contested and politically charged protections of the Bill of Rights. Additionally, small government advocates have used local gun laws as a mechanism for challenging broad government regulation while conversely advocating for states' rights, with Alaska recently joining a series of states seeking to expand local gun rights by passing state laws that nullify federal gun laws. Given Supreme Court case law and as demonstrated by recent Ninth Circuit precedent, the nullification course is almost certainly ill fated. Apart from the big government/small government proxy war being waged through local gun laws, others see the local, traditional character of the right to bear arms in a particular place as the most appropriate manner for scrutinizing regulation, given Supreme Court precedent and historic tradition.

INTRODUCTION

"[The Second Amendment] had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?" ^[1]

On May 27, 2010, Alaska House Bill No. 186, "An Act declaring that certain firearms and accessories are exempt from federal regulation," ^[2] became law. Known otherwise as the Alaska Firearm Freedom Act (AFFA), ^[3] this legislation sought to nullify the federal government's ability to regulate personal firearms, firearm accessories, and ammunition that are manufactured entirely in Alaska and remain in Alaska. ^[4] In so doing, the AFFA initiated Alaska's attempted divorce from the federal gun control regime-a relationship that had begun with the United States government's purchase of Alaska in 1867, ^[5] and culminated in the Alaska Constitution's verbatim adoption of the Second Amendment nearly 100 years later. ^[6]

Alaska is not alone in its enactment of a federal gun control nullification statute. ^[7] Indeed, it was the eighth of nine states to successfully make such a measure law, ^[8] the first of which was Montana and the most recent being Kansas. ^[9] More significantly, the Montana and Kansas nullification statutes are the first and only laws to have their validity adjudicated in federal court. ^[10] While the Kansas challenge was dismissed for lack of standing, ^[11] the Ninth Circuit Court of Appeals upheld the dismissal of the Montana Shooting Sports Associations' request for declaratory judgment on the validity of the Montana law in Montana Shooting Sports Association v. Holder, ^[12] (hereinafter Montana v. Holder), finding that the action failed to state a claim because the Montana legislation was preempted by federal law and as such was invalid. ^[13]

This Note will briefly examine the history of the right to bear arms as contemplated by the Second Amendment against the federal government, the right to bear arms as it has been enforced in Alaska, and the theory of nullification.

It will also address the arguments that would likely be raised in defense of the AFFA, paying particular attention to those made and rejected by the District of Montana and Ninth Circuit in Montana v. Holder. Considering the Ninth Circuit decision, and its likely dispositive effect on claims raised in defense of the AFFA, it is all but a foregone conclusion that the AFFA is invalid.

First, this Note will analyze the assertion that the federal gun laws regulating intrastate gun manufacturing, sale, and possession-which the AFFA seeks to nullify-are outside of Congress' power to regulate interstate commerce because the activity in question is entirely local.

Second, it will consider the argument that even if the intrastate commerce is deemed to fall within the purview of the Commerce Clause, such a reading is directly in conflict with state sovereignty and the states' rights preserved under the Tenth Amendment. Both of these arguments were motivating rationales behind passage of the AFFA ^[14] and were also the plaintiffs' central arguments in Montana v. Holder. ^[15] Given current Supreme Court jurisprudence and the decisions of the District of Montana and the Ninth Circuit in Montana v. Holder, this defense is also likely to fail in the case of the AFFA.

Finally, in Part II, this Note will consider an argument, unrelated to the AFFA, which would embrace the view that the right to bear arms, as it relates to Alaskans, might warrant treatment distinct from the right to bear arms as it relates to citizens of other localities. After the Supreme Court's decisions in District of Columbia v. Heller ^[16] and McDonald v. City of Chicago, ^[17] Alaskans, like all Americans, have a constitutional right to purchase, keep, and bear firearms for self-defense. ^[18]

An additional school of thought recognizes the potential for locally distinct protections under the right to bear arms. ^[19] This belief, drawing in part on recent comparisons between First and Second Amendment doctrines, ^[20] indicates the usefulness of analyzing the Second Amendment through the lens of First Amendment obscenity doctrine. ^[21] Such an analysis suggests that various firearms, on an as-applied basis, might demand different treatment by courts in various states, depending on a weapon's usefulness for self-defense purposes locally and the character of state regulations. Differing treatment would serve a signaling function for courts to determine which firearms might be locally useful. This analysis, if applied, for example, to the National Firearms Act on behalf of or by an Alaskan plaintiff, would likely determine that at least portions of federal regulations violate Alaskans' fundamental right to self-defense. Thus, while such a challenge would not save the AFFA from invalidity, it might better serve the needs of Alaskans concerned that the federal government is infringing their right to bear arms.

BACKGROUND

A. The Federal Right to Bear Arms

1. By Enactment

The Second Amendment to the U.S. Constitution reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." ^[22] In the days immediately following the establishment of the federal government, Congress enacted legislation relating to the militia. ^[23] However, the realm of gun control was governed largely by the states until the Twentieth Century. ^[24] The current federal gun control regime is almost entirely a creation of the past one hundred years. ^[25]

The first true federal gun regulation was passed in 1934, as a result of growing concerns about "gangland crimes." ^[26] Collectively the National Firearms Acts of 1934 and 1938 (hereinafter NFA) taxed various weapons, including machine guns and sawed-off shotguns, ^[27] banned weapon sales to those "under indictment or . . . convicted of a crime of violence," ^[28] and created a licensing regime mandating that all firearms dealers selling weapons in interstate commerce be federally licensed and record all of their transactions. ^[29] Importantly, Title II of the Gun Control Act of 1968 revised the NFA. ^[30] Currently, Title II firearms, including sawed-off shotguns, short-barreled rifles, silencers, machine guns, and those guns with an "any other weapon" designation, namely those "capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell," ^[31] are effectively banned, absent a special permit from the federal government. ^[32] This legislation was groundbreaking at the time and laid much of the framework for contemporary federal gun laws. ^[33] The current criminal regime is enumerated in 18 U.S.C. §921, ^[34] 18 U.S.C. §922, ^[35] 18 U.S.C. §923, ^[36] 18 U.S.C. §924, ^[37] and in Title 26 of the US Code, Chapter 53, Subchapters A-D, ^[38] and was enacted largely by the Gun Control Act of 1968. ^[39] While section 922 includes a robust catalogue of prohibited activities, several notable regulations include: the prohibition on manufacturing or selling firearms unless licensed by the federal government; ^[40] a requirement that interstate transfers of firearms occur between federally licensed dealers; ^[41] the by-and-large criminalization of possession of sawed-off shotguns ^[42] and machine guns; ^[43] and a ban on possession of a firearm by felons ^[44] and those convicted of domestic violence. ^[45]

2. By Court Decision

In 1939, the Supreme Court heard the first major challenge to Congress' gun control regime in United States v. Miller. ^[46] The Court held that the NFA's effective ban on sawed-off shotguns did not violate the Second Amendment. ^[47] More recently, the Court's landmark decision in District of Columbia v. Heller ^[48] overturned the District of Columbia's ban on handgun possession and held that the Second Amendment protects an individual's right to (1) possess a firearm unconnected to service in a militia, and (2) use that arm for traditionally lawful purposes...