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Bill would put Utah gun laws above federal rules

Published February 6, 2013 3:21 pm

Firearms • Legislators' attorneys say the measure is likely unconstitutional.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Utah may take up legislation that opponents believe is off the mark but supporters view as a necessary bulkhead against any new federal government push to ban or limit firearms.

Freshman Utah Rep. Brian Greene, R-Pleasant Grove, on Tuesday unveiled HB114 — a measure that would make any new federal legislation on guns void and declare Utah's existing gun laws supreme.

But the bill faces some high hurdles — namely a lengthy constitutional note written by the Legislature's legal counsel declaring the measure is likely in violation of the supremacy and commerce clauses of the U.S. Constitution.

House Speaker Becky Lockhart, R-Provo, said Wednesday she hadn't read the bill or the warning issued by the Office of Legislative Research and General Counsel, but said the note attached to it wasn't necessarily a "death sentence" for HB114.

"Personally, I'm leaning more toward a wait-and-see response," she said, referring to pending federal action on President Barack Obama's proposals for addressing gun violence.

Greene announced plans for the legislation at a large gun-rights rally at the State Capitol in January and was buoyed by a signed letter by the Utah Sheriffs Association that said its members were willing to "trade our lives" in defense of the Second Amendment.

The lawmaker also made a presentation to the Senate Republican caucus late last week — though it was met with some skepticism by that body's leadership.

Greene said the measure is necessary because Obama's firearms agenda that includes tougher background checks, reduced magazine capacity for ammunition and a reinstatement of the assault weapons ban are direct attacks on the Second Amendment.

He strongly disagreed with the constitutional note attached to his legislation.

"It's incomplete and incorrect," Greene, an attorney, said. "I was just disappointed in it."

Senate Majority Leader Ralph Okerlund, R-Monroe, said the prevailing feeling among the GOP senators was a sense of worry about the cost of defending a lawsuit on a bill that would be considered unconstitutional.

He also said the Senate majority was looking at gun bills that would be best for Utah over the "long term."

"I think our attitude is to be thoughtful and not be reactive to what is going on with the federal government and executive orders or to all the shootings we've had in Connecticut and Colorado, but to make responsible decisions and policy rather than being driven by very isolated events," Okerlund said. "We need to make sure we're being thoughtful as we create policy that isn't being driven by the frenzy out there nationally."

Several states reportedly have seen the introduction of bills intended to nullify new federal gun controls.

In Wyoming, legislation called the "Firearm Protection Act" already has passed the House and reportedly had a good chance of clearing the Senate. Gov. Matt Mead, a Republican and former prosecutor, has publicly expressed concern about the measure.

Utah's version of the bill isn't even four pages long, but the results, if enacted, would be vast and sweeping.

It would guarantee Utah's gun laws trumped any new federal gun laws and it would allow for local sheriffs to arrest federal agents who attempted to take guns from state residents. It also would require the attorney general to establish legal counsel for agents arrested for attempting to take guns.

House Minority Leader Jennifer Seelig, D-Salt Lake City, said it would take "a rewriting of the Constitution" for her to support it.

And anti-gun activist Steve Gunn called the proposal "silly," adding it would made Utah an outlier state for gun legislation.

"I just think it's a joke," Gunn said. "I don't know why Representative Greene would introduce a bill that his own attorney says is unconstitutional. It suggests to me that he's interested in making a political statement rather than acting as a serious legislator."

But Utah Shooting Sports Council Chairman Clark Aposhian said Greene's bill was illustrative of the feelings of state residents.

"We have an elected official who represents constituents introducing this bill and there is widespread support for it," Aposhian said. "It shows our understanding and commitment to the right to bear arms."

Legislative attorneys wrote in their analysis that the prospect of federal agents being arrested for attempting to enforce federal laws was "chilling" and that a court would find a "high probability" the proposal violates the supremacy and commerce clauses.

dmontero@sltrib.com

Twitter: @davemontero