      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@appellate.courts.state.ak.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

ESTATE OF SIMONE YOUNG KIM,                        )
by its Personal Representative, SERENA             )
ALEXANDER, CHU CHA KIM, and                        )
AMBROSUS H. KIM,                                   )
                                                   )    Supreme Court No. S-14077
                      Appellants,                  )
                                                   )    Superior Court No. 1JU-08-00761 CI
      v.                                           )
                                                   )    OPINION
RAY COXE, d/b/a RAYCO SALES,                       )
and JASON CODAY,                                   )    No. 6752 - February 22, 2013
                                                   )
                      Appellees,                   )
                                                   )
and                                                )
                                                   )
UNITED STATES OF AMERICA,                          )
                                                   )
                      Intervenor­                  )
                      Appellee.                    )
                                                   )

              Appeal from the Superior Court of the State of Alaska, First
              Judicial District, Juneau, Philip M. Pallenberg, Judge.

              Appearances: Mark Choate, Choate Law Firm L.L.C.,
              Juneau, and Jonathan E. Lowy and Daniel R. Vice, Brady
              Center To Prevent Gun Violence, Washington D.C., for
              Appellants. Anthony M. Sholty and Lael A. Harrison,
              Faulkner Banfield, P.C., Juneau, for Appellee Coxe. No
              appearance by Appellee Coday. Richard Pomeroy, Assistant
              United States Attorney, and Karen Loeffler, United States
             Attorney, Anchorage, and Benjamin S. Kingsley, Attorney,
             Appellate Staff, Civil Division, and Tony West, Assistant
             Attorney General, Washington D.C. for Intervenor-Appellee
             United States of America.

             Before: Carpeneti, Chief Justice, Fabe, Winfree, and
             Stowers, Justices.

             WINFREE, Justice.

I.    INTRODUCTION
             Jason Coday shot and killed Simone Kim with a rifle obtained from Ray
Coxe’s gun store. Kim’s Estate (the Estate) brought a wrongful death action against
Coxe, alleging that Coxe negligently or illegally provided Coday the rifle. Coxe
defended in part by asserting immunity under the Protection of Lawful Commerce in
Arms Act1 (PLCAA). The Estate argued against applying the PLCAA and alternatively
that it was unconstitutional. The superior court ruled that the PLCAA was constitutional
and, interpreting and applying the PLCAA’s immunity provisions to the facts of this
case, granted summary judgment dismissing the Estate’s claims against Coxe. The
Estate appeals.
             We affirm the superior court’s ruling that the PLCAA is constitutional and
its interpretation of the PLCAA, but because it is unclear whether certain evidence before
the superior court actually was or should have been considered when granting summary
judgment dismissing the Estate’s claims, we vacate the summary judgment ruling and
remand for further consideration.




      1
             15 U.S.C. §§ 7901-7903 (2006).

                                           -2-                                      6752
II.       FACTS AND PROCEEDINGS

          A.   Facts
               Rayco Sales is a licensed gun shop in Juneau owned and operated by Ray
Coxe. On an August 2006 afternoon, Jason Coday entered Rayco. Present in Rayco
were Coxe, Rayco employee Bill Driver, and Rayco customer Stan Bickham.
               Coxe thought Coday looked like he was “living in the woods or had just got
off the ferry” because he had on a backpack and had a sleeping bag in a plastic bag tied
around his waist. Coxe, Driver, and Bickham all testified that they did not notice any
appearances or behavior indicating danger, drug use, or potential for violence.
               Coday asked Driver if Rayco stocked Ruger10/22 rifles. Coday then asked
Bickham about differences between several .22 rifles. Coday told Bickham he was going
to do some target shooting, and was wondering about the various rifles’ accuracy and
prices.
               Coday then approached Coxe and asked to look at .22 rifles. Fearing
Coday’s backpack might knock over merchandise, Coxe asked Coday to remove it.
Coday complied and the two went behind the sales counter, where Coxe explained the
differences between several .22 rifles. Coday seemed most interested in a Ruger 10/22,
and Coxe showed Coday a used rifle priced at $195. After discussing the rifles and
prices, Coday indicated he would have to think about a purchase. He went back to the
public side of the sales counter and put his backpack on. Thinking Coday was leaving,
Coxe went to the back of the store to attend other matters.
               Driver later noticed a rifle missing and two $100 bills on the counter.
Driver asked Coxe if he had sold Coday the rifle. Coxe verified the rifle was missing and
then drove his truck around the neighboring area in an unsuccessful attempt to find
Coday. At some point either Coxe or an employee called the Juneau Police Department.
Coxe reported the rifle stolen, and on the advice of a police officer, deposited the $200

                                           -3-                                     6752

in the bank as a sale. Rayco had two videotape surveillance systems, but neither
captured any footage of the day’s events.
              Two days later Coday shot and killed Simone Kim with the rifle.
        B.    Proceedings
              In 2008 the Estate brought a wrongful death action against Coxe and
Coday. Coday did not appear and default was entered against him.
              The Estate contended that Coxe had illegally or negligently provided Coday
the firearm. Coxe moved for summary judgment based on the PLCAA, which prohibits
certain civil actions for damages against a manufacturer or seller of a firearm in
connection with a third party’s criminal or unlawful misuse of the firearm.2 The Estate
opposed the motion, arguing the PLCAA did not apply, but that if it did, it was
unconstitutional. The Estate first argued the PLCAA did not immunize gun dealers from
their own negligent acts. The Estate also argued there were disputes of material fact
relevant to claims excepted from the PLCAA — negligent entrustment, negligence per
se, and knowing violations of laws “applicable to the sale or marketing of [firearms].”3
On the constitutional issues, the Estate argued the PLCAA violated the Tenth
Amendment, separation of powers, due process, and equal protection.
              After oral argument the superior court granted Coxe’s motion for summary
judgment.     The Estate appeals the superior court’s ruling on the PLCAA’s
constitutionality and construction, as well as the grant of summary judgment to Coxe
based on the PLCAA.         The United States intervened to defend the PLCAA’s
constitutionality, but takes no position on PLCAA interpretations or its application to this
case.


        2
              15 U.S.C. §§ 7902-7903.
        3
              15 U.S.C. § 7903(5)(A)(ii)-(iii).

                                            -4­                                       6752
III.	   STANDARD OF REVIEW
              We review a grant of summary judgment de novo, applying our
independent judgment.4 We also review issues of constitutional interpretation de novo,
applying our independent judgment,5 and similarly apply our independent judgment to
the interpretation of federal statutes.6
IV.	    DISCUSSION
        A.	   The PLCAA Bars Negligence Actions Not Falling Under An
              Enumerated Exception.
              The Estate assigns error to the superior court’s interpretation of the PLCAA
as barring general negligence actions. The Estate argues that the PLCAA provides
immunity only in cases where the harm is caused solely by others, relying primarily on
the codified Congressional findings and purposes.7 Coxe responds that the superior court
correctly interpreted the PLCAA, consistent with the substantive provisions’ plain
meaning.
              The PLCAA’s substantive portion, 15 U.S.C. § 7902, titled “Prohibition on
bringing of qualified civil liability actions in Federal or State court,” provides that: “A




        4
             Kalenka v. Infinity Ins. Cos., 262 P.3d 602, 607 (Alaska 2011) (citing
Burnett v. Covell, 191 P.3d 985, 987 (Alaska 2008)).
        5	
             Stephanie F. v. George C., 270 P.3d 737, 746 (Alaska 2012) (quoting State
v. Alaska Civil Liberties Union, 978 P.2d 597, 603 (Alaska 1999) and Premera Blue
Cross v. State, Dep’t of Commerce, Cmty. & Econ. Dev., Div. of Ins., 171 P.3d 1110,
1115 (Alaska 2007)).
        6
             State v. Native Vill. of Tanana, 249 P.3d 734, 737 (Alaska 2011); John v.
Baker, 982 P.2d 738, 744 (Alaska 1999) (citing In re T.N.F., 781 P.2d 973, 975 (Alaska
1989)).
        7
              15 U.S.C. § 7901.

                                           -5-	                                      6752

qualified civil liability action may not be brought in any Federal or State court.”8
“Qualified civil liability action” is defined as “a civil action . . . brought by any person
against a . . . seller of a [firearm] . . . for damages . . . resulting from the criminal or
unlawful misuse of a [firearm] by the person or a third party.”9 The definition excludes
from “qualified civil liability action” those actions based on negligence per se, negligent
entrustment, and knowing violations of state or federal statutes related to firearms.10
               A plain reading of this text supports a prohibition on general negligence
actions — including negligence with concurrent causation. The statutory exceptions do
not include general negligence, and reading a general negligence exception into the
statute would make the negligence per se and negligent entrustment exceptions a
surplusage.
               The Estate argues the term “resulting from the criminal or unlawful misuse”
in § 7903(5)(A) must be read in light of Congressional findings and purposes codified
at § 7901, which provides: “Congress finds . . . [t]he possibility of imposing liability on
an entire industry for harm that is solely caused by others is an abuse of the legal
system”11 and “[t]he purposes of this chapter are . . . [t]o prohibit causes of action against
. . . dealers . . . of firearms . . . for the harm solely caused by the criminal or unlawful
misuse of firearm products . . . by others when the product functioned as designed and
intended.”12



       8
               15 U.S.C. § 7902(a).
       9
               15 U.S.C. § 7903(5)(A).
       10
               15 U.S.C. § 7903(5)(A)(i)-(iii).
       11
               15 U.S.C. § 7901(a)(6).
       12
               15 U.S.C. § 7901(b)(1).

                                             -6-                                        6752

             When interpreting statutes, “we must, whenever possible, interpret each part
or section of a statute with every other part or section, so as to create a harmonious
whole.”13 We presume that Congress “intended every word, sentence, or provision of
a statute to have some purpose, force, and effect, and that no words or provisions are
superfluous.”14 However a statutory preamble “can neither restrain nor extend the
meaning of an unambiguous statute; nor can it be used to create doubt or uncertainty
which does not otherwise exist.”15 The Estate’s construction would elevate the PLCAA’s
preamble over the substantive portion’s clear language.
             In interpreting a statute, we do “not stop with the plain meaning of the text
. . . ‘even if a statute is facially unambiguous.’ ”16 Rather, we apply “a sliding scale
approach, where ‘[t]he plainer the statutory language is, the more convincing the
evidence of contrary legislative purpose or intent must be.’ ”17 The Estate points out


      13
            State, Dep’t of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Progressive
Cas. Ins. Co., 165 P.3d 624, 629 (Alaska 2007) (quoting Kodiak Island Borough v.
Exxon Corp., 991 P.2d 757, 761 (Alaska 1999)).
      14
             Id. (quoting Kodiak Island Borough, 991 P.2d at 761).
      15
             Commercial Fisheries Entry Comm’n v. Apokedak, 680 P.2d 486, 488 n.3
(Alaska 1984) (quoting 2A C. SANDS , STATUTES AND STATUTORY CONSTRUCTION §
47.04 (1973)); see also H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 245 (1989)
(explaining that Congress’s expressed purpose does not alter plain statutory language);
Jogi v. Voges, 480 F.3d 822, 834 (7th Cir. 2007) (citing authority holding titles and
preambles do not control over plain statutory language).
      16
            State, Commercial Fisheries Entry Comm’n v. Carlson, 270 P.3d 755, 762
(Alaska 2012) (quoting State, Dep’t of Commerce, Cmty. & Econ. Dev., Div. of Ins. v.
Alyeska Pipeline Serv. Co., 262 P.3d 593, 597 (Alaska 2011)).
      17
            Id. (quoting Gov’t Emps. Ins. Co. v. Graham–Gonzalez, 107 P.3d 279, 284
(Alaska 2005)); see also United States v. Poliak, 823 F.2d 371, 372 (9th Cir. 1987) (“The
                                                                            (continued...)

                                           -7-                                      6752

portions of the PLCAA’s legislative history supporting its interpretation. For example,
Senator Craig, the PLCAA’s sponsor, stated: “If manufacturers or dealers break the law
or commit negligence, they are still liable.”18 Coxe points out portions of the legislative
history supporting his position. For example, Senator Reed stated: “This bill goes way
beyond strict liability. It says simple negligence is out the door . . . .”19 Additionally, as
another court has noted, a PLCAA amendment creating a simple negligence exception
was offered but failed to pass.20
              This history does not indicate a strong legislative intent in favor of either
construction. Even if legislative history is “somewhat contrary” to the plain meaning of
a statute, plain meaning still controls.21      The PLCAA’s legislative history is not
“somewhat contrary”; it is indeterminate, and it does not control the statute’s
interpretation.
              The Estate also notes that, in contrast to the final version, a prior version
of the legislation that failed to pass the Senate two years before the PLCAA’s passage



       17
             (...continued)
plain meaning of the words used controls, absent a clearly expressed legislative intent
to the contrary.”); Oels v. Anchorage Police Dep’t Emps. Ass’n, 279 P.3d 589, 595
(Alaska 2012) (“We have held that ‘the plainer the language of the statute, the more
convincing any contrary legislative history must be . . . to overcome the statute’s plain
meaning.’ ” (quoting Peninsula Mktg. Ass’n v. State, 817 P.2d 917, 922 (Alaska 1991))).
       18
              151 Cong. Rec. S9099 (daily ed. July 27, 2005).
       19
              151 Cong. Rec. S9085 (daily ed. July 27, 2005).
       20
             Ileto v. Glock, Inc., 421 F. Supp. 2d 1274, 1294 & n.23 (C.D. Cal. 2006)
(noting statements of Senators Reed, Hutchison, and Craig).
       21
             Oels, 279 P.3d at 597 (citing Coughlin v. Gov’t Emps. Ins. Co. (GEICO),
69 P.3d 986, 988 (Alaska 2003)).

                                             -8-                                        6752

did not contain the term “solely” in the purposes section.22 It couples this change with
the statutory interpretation maxim that the court is “obliged to give effect, if possible, to
every word Congress used.”23 But as noted above, the Estate’s construction seeks to
elevate the preamble over the substantive portion of the statute, giving effect to one word
in the preamble at the expense of making the enumerated exceptions meaningless.
               The Estate also argues federal statutes do not preempt state common law
“unless that was the clear and manifest purpose of Congress.”24 Coxe responds that the
Estate’s argument relies on authorities discussing implied preemption, not express
preemption. Coxe is correct: when a federal law contains an express preemption clause,
the court “focus[es] on the plain wording of the clause, which necessarily contains the
best evidence of Congress’[s] preemptive intent.”25 The PLCAA expressly preempts
state common law by requiring that state courts immediately dismiss qualified civil
liability actions.26
               In light of the PLCAA’s text and legislative history, Congress’s purpose
and intent was to bar any qualified civil liability action not falling within a statutory
exception. Our conclusion is supported by other courts that have held the PLCAA bars




       22
               Compare S. 1805, 108th Cong. § 2(b)(1) (2003), with 15 U.S.C. §
7901(b)(1).
       23
               Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979).
       24
            Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Rice v. Santa
Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
       25
            Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1977 (2011)
(quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)).
       26
               15 U.S.C. § 7902.

                                            -9-                                        6752

simple negligence claims.27 The Estate attempts to distinguish Ileto v. Glock,28 the
authority the superior court relied on, arguing that the plaintiffs in Ileto did not allege a
statutory violation and that the claim was against manufacturers and distributors, not a
dealer. These differences do not change Ileto’s holding that the PLCAA bars a simple
negligence claim.29
       B.     The PLCAA Is Constitutional.
              “[A] party raising a constitutional challenge to a statute bears the burden
of demonstrating the constitutional violation. A presumption of constitutionality applies,
and doubts are resolved in favor of constitutionality.”30
              1.      The doctrine of constitutional avoidance is not applicable.
              The Estate argues that the superior court erred by not interpreting the
PLCAA in a manner avoiding constitutional questions arising from the elimination of
general negligence claims. Coxe responds that the doctrine of constitutional avoidance
applies only where an ambiguous statute can be interpreted in a manner either violating
the constitution or not. Coxe argues the PLCAA is not ambiguous and does not violate


       27
              See Ileto v. Glock, 565 F.3d 1126, 1135-36 (9th Cir. 2009); Adames v.
Sheahan, 909 N.E.2d 742, 760-62 (Ill. 2009) (analyzing a failure to warn claim); see also
Gilland v. Sportsmen’s Outpost, Inc., 2011 WL 2479693, at *16 (Conn. Super. May 26,
2011); cf. Ryan v. Hughes-Ortiz, 959 N.E.2d 1000, 1006-07 (Mass. App. 2012) (barring
qualified civil liability action that does not fall under PLCAA enumerated exceptions).
       28
              565 F.3d 1126.
       29
              Id. at 1135-36.
       30
             Harrod v. State, Dep’t of Revenue, 255 P.3d 991, 1000-01 (Alaska 2011)
(quoting State, Dep’t of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001)); see also
SeaRiver Maritime Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 669 (9th Cir. 2002)
(“Statutes are presumed constitutional.”) (citing Heller v. Doe, 509 U.S. 312, 320
(1993)).

                                            -10-                                       6752

the constitution. The United States echoes Coxe’s position.
               The doctrine of constitutional avoidance “is a tool for choosing between
competing plausible interpretations of a statutory text.”31 Under this tool, “as between
two possible interpretations of a statute, by one of which it would be unconstitutional and
by the other valid, [this court’s] plain duty is to adopt that which will save the Act.”32
But, as discussed above, the PLCAA is not ambiguous. And, as discussed below, the
PLCAA is not unconstitutional. The superior court therefore did not err with respect to
the doctrine of constitutional avoidance.
               2.	   The PLCAA does not infringe on Alaska’s sovereign right to
                     allocate its lawmaking function under the Tenth Amendment.
               The Estate argues that the PLCAA violates Alaska’s sovereignty by
“dictating to Alaska how it must conduct its lawmaking function with respect to gun
seller liability.” The Estate contends it is beyond Congress’s power to prohibit Alaska
courts from imposing common law negligence standards while simultaneously allowing
liability to be imposed if the legislature adopts statutory standards.33 Coxe and the
United States counter that the preemptive effect of the PLCAA is within Congress’s
power and the PLCAA does not commandeer state government.
               Under the Tenth Amendment “Congress cannot compel the States to enact


       31	
            Clark v. Martinez, 543 U.S. 371, 381-82 (2005) (citing Rust v. Sullivan, 500
U.S. 173, 191 (1991)); see also Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 184
(Alaska 2009) (interpreting ambiguous statute to avoid constitutional problems).
       32
               Rust, 500 U.S. at 190 (1991) (quoting Blodgett v. Holden, 275 U.S. 142,
148 (1927)).
       33
             See 15 U.S.C. § 7902 (barring qualified civil liability actions in state
courts); 15 U.S.C. § 7903(5)(A)(ii)-(iii) (creating exceptions for negligence per se and
knowing violations of state firearms statutes from the definition of qualified civil liability
actions).

                                            -11-	                                       6752

or enforce a federal regulatory program.”34 But “state courts cannot refuse to apply
federal law — a conclusion mandated by the terms of the Supremacy Clause.”35 And
where Congressional action does not commandeer states or state actors, the Tenth
Amendment reflects Congress’s limitation to act within its enumerated powers.36
             The PLCAA does not compel Alaska’s legislature to enact any law, nor
does it commandeer any branch of Alaska’s government.              Although expressly
preempting conflicting state tort law, the PLCAA allows Alaska’s legislature to create
liability for harms proximately caused by knowing violations of statutes regulating
firearm sales and marketing.37 The Estate does not challenge Congress’s power to enact
the PLCAA, and because it is within Congress’s enumerated powers and does not
commandeer state actors, the PLCAA does not violate the protections of the Tenth
Amendment. We note that the Second Circuit Court of Appeals and the Illinois Supreme
Court have come to the same conclusion and rejected Tenth Amendment challenges to
the PLCAA.38
             3.     The PLCAA does not violate separation of powers.



      34
             Printz v. United States, 521 U.S. 898, 935 (1997); see also New York v.
United States, 505 U.S. 144, 149 (1992).
      35
             Printz, 521 U.S. at 928 (citing Testa v. Katt, 330 U.S. 386 (1947)).
      36
              New York v. United States, 505 U.S. 144, 155-56 (1992) (“If a power is
delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any
reservation of that power to the States; if a power is an attribute of state sovereignty
reserved by the Tenth Amendment, it is necessarily a power the Constitution has not
conferred on Congress.”).
      37
             15 U.S.C. § 7903(5)(A)(iii).
      38
            City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 397 (2d Cir. 2008);
Adames v. Sheahan, 909 N.E.2d 742, 764-65 (Ill. 2009).

                                         -12-                                       6752

              The Estate argues the PLCAA is unconstitutional under the separation of
powers principles announced in United States v. Klein 39 and Plaut v. Spendthrift Farm,
Inc.40 because Congress directly instructed the courts to dismiss all cases falling into a
certain category. Coxe and the United States respond that the PLCAA merely preempts
state law and creates a new legal standard. The United States adds that Klein and Plaut
apply only if Congress attempts to decide a pending case’s outcome and that the Estate’s
wrongful death action was filed three years after the PLCAA’s passage. The United
States also argues that “separation of powers principles constrain Congress’s conduct
only with respect to Article III federal courts.”
              Klein’s exact holding is somewhat confusing,41 but the Estate is correct that
Klein stands for the general proposition that Congress cannot infringe on judicial
power.42 In Plaut the United States Supreme Court clarified the limitation on Congress’s
ability to affect a pending case:
              Having achieved finality, however, a judicial decision
              becomes the last word of the judicial department with regard
              to a particular case or controversy, and Congress may not


       39
              80 U.S. 128 (1871).
       40
              514 U.S. 211 (1995).
       41
               See Gordon G. Young, Congressional Regulations of Federal Courts’
Jurisdiction and Processes: United States v. Klein Revisited, 1981 W IS . L. REV . 1189,
1195 (1981) (“The Klein opinion combines the clear with the delphic. Chief Justice
Chase’s excessively broad and ambiguous statements for the majority provide the delphic
elements in Klein. His statements have permitted Klein to be viewed as nearly all things
to all men.”).
       42
              Klein, 80 U.S. at 146-47; see also ERWIN CHEMERINSKY , FEDERAL
JURISDICTION 190 (5th ed. 2007) (noting that Klein “stands for the much more limited
principle that Congress cannot limit the Supreme Court’s jurisdiction in a manner that
violates other constitutional provisions”).

                                           -13-                                      6752

             declare by retroactive legislation that the law applicable to
             that very case was something other than what the courts said
             it was.[43]
The Estate is essentially correct that these cases hold that “Congress cannot direct the
outcome of a pending case without changing the substantive law underlying the suit.”
But as the United States points out, the PLCAA was passed in 2005 and the Estate did
not file suit until 2008. The PLCAA created new substantive law governing the Estate’s
claims and does not violate the principles announced in Klein and Plaut.
             Every other court to consider a separation of powers challenge to the
PLCAA has rejected it.44 The Second Circuit Court of Appeals stated the PLCAA
“permissibly sets forth a new rule of law that is applicable both to pending actions and
to future actions.”45 The Ninth Circuit Court of Appeals stated “[t]he PLCAA applies
only to pending and future cases and does not purport to undo final judgments of the
judiciary.”46 We agree, and because we hold the PLCAA does not violate separation of
powers in this case, we do not consider the United States’s argument that separation of
powers principles do not apply to the relationship between Congress and state courts.
             4.	    The PLCAA does not violate federal due process by denying the
                    Estate’s right to seek redress in the courts.
             The Estate argues that the PLCAA violates federal rights of access to the
courts by “wholly eliminating the common law rights of Plaintiffs against particular

      43	
             Plaut, 514 U.S. at 227 (emphasis omitted).
      44	
             Ileto v. Glock, 565 F.3d 1126, 1139-40 (9th Cir. 2009); City of New York
v. Beretta U.S.A. Corp., 524 F.3d 384, 395-96 (2d Cir. 2008); Estate of Charlot v.
Bushmaster Firearms, Inc., 628 F. Supp. 2d 174, 184 (D.D.C. 2009); Dist. of Columbia
v. Beretta U.S.A. Corp., 940 A.2d 163, 172-73 (D.C. 2008).
      45
             City of New York, 524 F.3d at 395.
      46
             Ileto, 565 F.3d at 1139.

                                         -14-	                                    6752

tortfeasors who have caused them harm, without providing any alternate remedy.” Coxe
counters that the PLCAA limits, but does not eliminate, common law remedies. The
United States does not directly address the remedy elimination issue, instead framing the
court access issue as predicated on the existence of an underlying cause of action. This
raises two questions: (1) does the PLCAA infringe on the constitutional right of access
to the courts; and (2) does Congress have the power to eliminate a common law right?
                     a.	    The PLCAA does not infringe on the constitutional right
                            of access to the courts.
              The federal constitutional right of access to the courts is a fundamental
right47	 of uncertain origin.48 But for a potential plaintiff, the right to access requires an
“underlying cause of action.”49 The Second Circuit Court of Appeals has rejected an
identical right to access challenge to the PLCAA, stating: “The PLCAA immunizes a
specific type of defendant from a specific type of suit. It does not impede, let alone
entirely foreclose, general use of the courts by would-be plaintiffs . . . .”50
              We agree with the Second Circuit Court of Appeals — the PLCAA does
not infringe on the Estate’s right to access the courts.
                     b.	    Because Congress has not completely eliminated a
                            common law remedy, we do not decide whether doing so
                            is within Congress’s powers.
              The Estate first cites a dissenting opinion in Fein v. Permanente Medical




       47	
              Tennessee v. Lane, 541 U.S. 509, 533-34 (2004).
       48
             Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002) (citing cases
describing different constitutional provisions to which right has been tied).
       49
              Id. at 415.
       50
              City of New York, 524 F.3d at 398.

                                            -15-	                                       6752

Group51 to support its argument that Congress does not have the power to eliminate
common law rights. The precedential value of a dissent from a dismissal of certiorari
aside, the Fein dissent simply noted the issue was undecided.52 The Estate next cites
Marbury v. Madison,53 Poindexter v. Greenhow,54 and Truax v. Corrigan55 in support of
its position. But to the extent these cases have not been overruled in relevant part or the
statements relied upon are not dicta, they are distinguishable: each discusses the
elimination of a previously vested property right. As the United States Supreme Court
has stated: “[A] person has no property, no vested interest, in any rule of the common




       51
              474 U.S. 892 (1985) (White, J., dissenting from dismissal of certiorari).
       52
              Id. at 894-95. Justice White stated:
              Whether due process requires a legislatively enacted
              compensation scheme to be a quid pro quo for the
              common-law or state-law remedy it replaces, and if so, how
              adequate it must be, thus appears to be an issue unresolved by
              this Court, and one which is dividing the appellate and
              highest courts of several States.
      53
             5 U.S. (1 Cranch) 137, 163 (1803) (“[I]t is a general and indisputable rule,
that where there is a legal right, there is also a legal remedy by suit or action at law,
whenever that right is invaded.” (quoting 3 W ILLIAM BLACKSTONE , COMMENTARIES
*23)).
       54
              114 U.S. 270, 303 (1885) (“No one would contend that a law of a state,
forbidding all redress by actions at law for injuries to property, would be upheld in the
courts of the United States, for that would be to deprive one of his property without due
process of law.”).
       55
             257 U.S. 312, 330 (1921) (“[A] statute whereby serious losses inflicted by
such unlawful means are in effect made remediless, is, we think, to disregard
fundamental rights of liberty and property and to deprive the person suffering the loss
of due process of law.”).

                                           -16-                                      6752

law.”56
             Other courts considering similar PLCAA challenges have rejected them.57
The Ninth Circuit Court of Appeals noted the absence of case law holding that the
elimination of common law remedies is a due process violation and explained that the
PLCAA only limited, not eliminated, common law remedies.58 The District of Columbia
Court of Appeals held that because “Congress did not deprive injured persons of all
potential remedies against manufacturers or sellers of firearms that discharge causing
them injuries,” it did not need to consider a claim that Congress could not eliminate a
cause of action.59
             We follow these courts’ reasoning and reject the Estate’s PLCAA challenge
on these grounds.
             5.      The PLCAA does not violate equal protection.
             The Estate argues the PLCAA violates the Fifth Amendment’s guarantee
of equal protection under the law. It argues the PLCAA should be subject to strict
scrutiny review because it violates the fundamental right of access to the courts. In the
alternative, the Estate argues the PLCAA cannot withstand even rational basis review.
It argues the PLCAA is not rational because it “irrationally shields from liability
negligent gun sellers who Congress intended not to shield” and violates equal protection
by treating potential plaintiffs differently depending on applicable state law.



      56
             Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 88 n.32
(1978) (quoting Second Emp’rs Liab. Cases, 223 U.S. 1, 50 (1912)).
      57
             Ileto. v. Glock, 565 F.3d 1126, 1143-44 (9th Cir. 2009); Dist. of Columbia
v. Beretta U.S.A. Corp., 940 A.2d 163, 177 n.8 (D.C. 2008).
       58
             Ileto, 565 F.3d at 1143-44.
      59
             Dist. of Columbia, 940 A.2d at 177 n.8.

                                           -17-                                    6752

              Coxe argues rational basis review is the correct standard, plaintiffs in
different states are not similarly situated, and the PLCAA passes rational basis review.
The United States also argues for the application of rational basis review and that the
PLCAA passes such review.
                     a.     Rational basis review applies to the Estate’s challenge.
              Because this case involves application of the equal protection clause of the
Fifth Amendment to the United States Constitution, we are bound to use the federal
tiered approach rather than our sliding scale approach.60 Under the federal approach,
“[u]nless a classification trammels fundamental personal rights or is drawn upon
inherently suspect distinctions such as race, religion, or alienage,” the law is presumed
valid and must only be “rationally related to a legitimate state interest.” 61 Courts
considering identical challenges to the PLCAA have applied rational basis review.62 We
agree with these courts — because the PLCAA does not implicate a fundamental right
or a suspect class, rational basis review applies to the Estate’s equal protection challenge.
                     b.     The PLCAA passes rational basis review.
              “The first step in equal protection analysis is to identify the . . .
classification of groups.”63 We must then identify and compare similarly situated



       60
             See State v. Erickson, 574 P.2d 1, 11-12 (Alaska 1978) (adopting Alaska’s
sliding scale test for equal protection while noting being bound by United States
Supreme Court precedent for federal constitutional questions).
       61
              City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
       62
             Ileto, 565 F.3d at 1140-41; City of New York v. Beretta U.S.A. Corp., 401
F. Supp. 2d 244, 294-95 (E.D.N.Y. 2005).
       63
            Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995) (quoting
Country Classic Dairies, Inc. v. State of Mont., Dep’t of Commerce Milk Control Bureau,
847 F.2d 593, 596 (9th Cir.1988)).

                                            -18-                                       6752

groups.64 The “similarly situated” analysis references the subject of the law and any
difference must pre-exist the statutory classifications.65 The Estate argues the PLCAA
classifies potential plaintiffs by reference to the laws of individual states, and treats
similarly situated potential plaintiffs differently based on different state law. Coxe and
the United States argue that potential plaintiffs in different states are not similarly
situated. Because we conclude below that the PLCAA passes rational basis review, we
assume without deciding that it treats similarly situated groups differently.
              The equal protection clause “is not a license for courts to judge the wisdom,
fairness, or logic of legislative choices.”66 Under rational basis review a statute must be
upheld “if there is any reasonably conceivable state of facts that could provide a rational
basis for the classification.”67 “[B]arring irrational or arbitrary conduct, Congress can
adjust the incidents of our economic lives as it sees fit. Indeed, the Supreme Court has
not blanched when settled economic expectations were upset, as long as the legislature
was pursuing a rational policy.”68 Here, Congress found certain types of tort suits
threatened constitutional rights, destabilized industry, and burdened interstate
commerce.69 Protecting constitutional rights and interstate commerce is a legitimate
purpose and barring certain types of tort suits while allowing others is a rational way to
pursue this legitimate purpose. Other courts have rejected equal protection challenges

       64
              Id. 

      65
              Williams v. Vermont, 472 U.S. 14, 27 (1985). 

       66
              F.C.C. v. Beach Cmmc’ns, Inc., 508 U.S. 307, 313 (1993). 

       67
              Id. 

       68
             Ileto v. Glock, 565 F.3d 1126, 1140 (9th Cir. 2009) (quoting Lyon v. Agusta
S.P.A., 252 F.3d 1078, 1086 (9th Cir. 2001)).
       69
              15 U.S.C. § 7901(a)(6)-(7).

                                            -19-                                     6752

to the PLCAA,70 and again, we agree — the PLCAA does not violate the Estate’s equal
protection right.
        C.	   We Remand For The Superior Court’s Further Review Of The
              Evidence That Should Be Considered For The Summary Judgment
              Motion On The Estate’s Claims Under PLCAA Exceptions.
              1.	    Overview
              The Estate asserted claims based on knowing violations of laws related to
the sales of firearms, negligence per se, and negligent entrustment, and argues that a
genuine dispute of material fact precluded summary judgment dismissing these claims.
Coxe responds that there is no dispute of material fact, only “unsupported assumptions
and speculation.” This dispute is whether on the facts of this case a reasonable inference
can be drawn that Coxe voluntarily transferred or illegally sold Coday the rifle, or
whether the only reasonable inference to be drawn is that Coday stole the rifle from
Coxe.
              2.	    Theft of a firearm does not support liability under claims
                     excepted from the PLCAA.
                     a.	    Knowing violation of firearms laws and negligence per se
              The PLCAA allows an action against a firearms dealer who “knowingly
violated a State or Federal statute applicable to the sale or marketing of the product, and
the violation was a proximate cause of the harm for which relief is sought.”71 The
PLCAA also allows actions for negligence per se.72 Because the Estate only alleged
violations of statutes addressing the sale and marketing of firearms, the two are


        70
             Ileto, 565 F.3d at 1140-41; City of New York v. Beretta U.S.A. Corp., 401
F. Supp. 2d 244, 294-95 (E.D.N.Y. 2005).
        71
              15 U.S.C. § 7903(5)(A)(iii).
        72
              15 U.S.C. § 7903(5)(A)(ii).

                                            -20-	                                    6752

interchangeable in this context and we discuss them together.
              The Estate asserts a jury could find Coxe knowingly violated firearms laws
even if Coday stole the rifle. It asserts violations of laws requiring a background check,73
completion of a transaction record form,74 precluding transfers if there is reasonable
cause to believe the transferee cannot legally possess a firearm,75 and prohibiting aiding
and abetting unlawful possession.76        Because these laws apply to “transfers” or
“disposals” of firearms in addition to sales,77 the Estate argues they apply to thefts, citing
United States v. Monteleone78 for the proposition that a transfer or disposal of a firearm
“occurs when a person ‘comes into possession, control, or power of disposal of a
firearm.’ ”79 Coxe responds that the statutory requirements apply only to intentional
transfers.
              A firearms dealer must initiate a background check prior to the transfer of




       73
              18 U.S.C. § 922(t) (2006).
       74
              18 U.S.C. § 922(m); 27 C.F.R. § 478.124.
       75
              18 U.S.C. § 922(d).
       76
              18 U.S.C § 2(a); 18 U.S.C. § 922(g).
       77
              18 U.S.C. § 922(t) (requiring that licensed dealers conduct background
checks before transferring firearms); 27 C.F.R. § 478.124 (requiring a firearm
transaction record, Form 4473, before a licensed dealer disposes of a firearm); 18 U.S.C.
§ 922(d) (barring sales and disposals of firearms when there is reasonable cause to
believe the transferee cannot legally receive the firearm).
       78
              77 F.3d 1086 (8th Cir. 1996).
       79
              Id. at 1092 (quoting Huddleston v. United States, 415 U.S. 814, 823
(1974)). The Estate argues Coxe “violated his duty to take affirmative steps to keep guns
out of the hands of criminals.” But no statutes require such measures.

                                            -21-                                        6752

a firearm.80 A knowing violation of this requirement is a crime.81 Likewise, a knowing
violation of the transaction record requirement is a crime.82 And a knowing violation of
the prohibition on transferring a firearm to a prohibited person is a crime.83 Because each
statutory violation requires a knowing state of mind, we do not agree that a dealer faces
criminal liability under these statutes when a firearm is stolen.
              The Estate’s reliance on Monteleone is misplaced. In that case the Eigth
Circuit Court of Appeals explained that “dispose” means to transfer a firearm so the
transferee acquires possession, and explained that Monteleone disposed a firearm when
he gave it to his half-brother.84 Unlike the case before us, there was no dispute in
Monteleone whether the transferor knew that the transferee would possess the firearm.85
Coxe, however, asserts that the firearm was stolen and he did not know that Coday
would acquire it.
              We agree with the superior court that the Estate’s “argument requires the
conclusion that a gun shop is required to perform a background check [and] complete a

       80
              18 U.S.C. § 922(t).
      81
             18 U.S.C. § 924(a)(5) (“Whoever knowingly violates subsection (s) or (t)
of section 922 shall be fined under this title, imprisoned for not more than 1 year, or
both.”).
       82
            18 U.S.C. § 922(m) (“It shall be unlawful for any licensed . . . dealer . . .
knowingly to make any false entry in, to fail to make appropriate entry in, or to fail to
properly maintain, any record . . . required . . . pursuant to section 923 of this chapter
. . . .”).
      83
                18 U.S.C. § 924(a)(2) (“Whoever knowingly violates subsection . . . (d)
. . . of section 922 shall be fined as provided in this title, imprisoned not more than 10
years, or both.”).
       84
              United States v. Monteleone, 77 F.3d 1086, 1088, 1092 (8th Cir. 1996).
       85
              Id. at 1088-89.

                                           -22-                                      6752

federal firearms form before having a gun stolen.” The more logical conclusion is that
a firearm theft precludes a dealer’s liability under the PLCAA’s knowing violation of
statute and negligence per se exceptions. For this same reason, the Estate’s arguments
regarding aiding and abetting an unlawful disposal are also unavailing — for aiding and
abetting to apply, a defendant must “participate in [the criminal act] as in something that
he wishes to bring about, that he seek by his action to make it succeed.”86 A theft
precludes aiding and abetting.
              The Estate’s knowing violation and negligence per se claims cannot survive
under Coxe’s version of the events — the firearm’s theft. But if there is a factual dispute
whether Coday stole the rifle or whether Coxe sold the rifle or otherwise knowingly
transferred it to Coday, summary judgment was not appropriate on these claims.
                     b.     Negligent entrustment
              The Estate argues the negligent entrustment exception could apply because
a jury could find Coxe voluntarily transferred the rifle to Coday through a sham
transaction and because, even under Coxe’s version of events, he supplied Coday the
rifle. Coxe responds that only conjecture supports the voluntary transfer assertion, and
negligent entrustment requires a knowing or voluntary transfer of the item.
              The PLCAA exempts negligent entrustment actions from the qualified civil
liability action definition.87 The PLCAA defines negligent entrustment as:
              the supplying of a qualified product by a seller for use by
              another person when the seller knows, or reasonably should
              know, the person to whom the product is supplied is likely to,
              and does, use the product in a manner involving unreasonable



       86
             Nye & Nissen v. United States, 336 U.S. 613, 619 (1949) (quoting United
States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)).
       87
              15 U.S.C. § 7903(5)(A)(ii).

                                            -23-                                     6752
              risk of physical injury to the person or others.[88]
              The PLCAA definition is substantially the same as the Restatement version
Alaska follows.89 Coxe concedes the Restatement does not use the word “knowingly,”
but argues the Restatement commentary and illustrations show knowing transfer of an
item. In contrast, the Estate relies on a dictionary definition of “supply” as “to provide
for” and “to make available for use.”
              Negligent entrustment requires “the act of entrustment.” 90 The Second
Restatement of Torts § 308 provides:
              It is negligence to permit a third person to use a thing or to
              engage in an activity which is under the control of the actor,
              if the actor knows or should know that such person intends or
              is likely to use the thing or to conduct himself in the activity
              in such a manner as to create an unreasonable risk of harm to
              others.[91]
By using the term “permit,” the Restatement does not encompass thefts of a chattel,
especially where the person with control over the chattel is not on notice that the chattel
will be used “in a manner involving unreasonable risk of physical harm to . . . others.”92
The Virginia Supreme Court has held that negligent entrustment does not apply to
unauthorized use of a firearm where “[t]here was no evidence that [the defendant] ever


       88
              15 U.S.C. § 7903(5)(B).
       89
               See Nelson v. Progressive Cas. Ins. Co., 162 P.3d 1228, 1232 (Alaska
2007) (“Alaska recognizes the common law tort of negligent entrustment and follows the
definition in the Restatement (Second) of Torts § 390 (1965) . . . .”).
       90
              Id.
      91
              RESTATEMENT (SECOND ) OF TORTS § 308 (1965) (emphasis added).
       92
              Id. § 390; see also id. § 390 cmt. b (“The rule stated in this Section is a
special application of the rule stated in § 308 . . . .”).

                                           -24-                                      6752

either permitted [the third party] to use the rifle or prohibited him from doing so.”93
             The Estate’s negligent entrustment claim cannot survive under Coxe’s
version of the events — a firearm’s theft. But if there are factual disputes whether Coday
stole the rifle, or whether Coxe (1) sold or otherwise knowingly transferred the rifle to
Coday and (2) knew or should have known Coday intended or was likely to use the rifle
in a manner to create an unreasonable risk of harm to others, summary judgment was not
appropriate on this claim.
             3.     Was summary judgment warranted?
             On a motion for summary judgment, the moving party bears the initial
burden of proving the absence of any dispute of material fact and “its entitlement to
judgment as a matter of law.”94 Once the moving party meets its initial burden, “the
burden shifts to the non-moving party to produce ‘admissible evidence reasonably
tending to dispute or contradict the movant’s evidence.’ ”95 In meeting their respective
burdens, the parties may use pleadings, affidavits, and any other material that is
admissible in evidence.96 In evaluating a motion for summary judgment, the court must




      93
           Kingrey v. Hill, 425 S.E.2d 798, 799 (Va. 1993); see also 37 A M . JUR .
PROOF OF FACTS 3D 1, § 19 (1996).
      94
              Egner v. Talbot’s, Inc., 214 P.3d 272, 278 (Alaska 2009) (quoting Alakayak
v. British Columbia Packers, Ltd., 48 P.3d 432, 447-48 (Alaska 2002)).
      95
             Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 339 (Alaska 2005) (quoting
Philbin v. Matanuska–Susitna Borough, 991 P.2d 1263, 1265-66 (Alaska 1999)).
      96
              Okpik v. City of Barrow, 230 P.3d 672, 677 (Alaska 2010) (citing Witt v.
State, Dep’t of Corr., 75 P.3d 1030, 1034 (Alaska 2003) and Charles v. Interior Reg’l
Hous. Auth., 55 P.3d 57, 59 (Alaska 2002)).

                                          -25-                                      6752

draw all reasonable inferences in favor of the non-moving party.97 “To create a genuine
issue of material fact there must be more than a scintilla of contrary evidence.”98
              The Estate offered two expert affidavits to oppose summary judgment. One
expert concluded Coxe “elected to violate the intent, letter and spirit of the law,” based
on the lack of security measures at Rayco and missing firearms discovered in a 2008
audit.99 In his reply, Coxe failed to raise any evidentiary objections to the Estate’s expert
witness affidavits. Coxe argued that the evidence the Estate relied on gave rise only to
speculation and conjecture that he had some active complicity in Coday’s taking
possession of the rifle.
              At oral argument the superior court questioned Coxe’s attorney about the
inferences that might be drawn from the expert witness affidavits. Coxe for the first time
suggested an evidentiary problem with the affidavits: “I don’t think you can use other
bad acts to infer that somebody acted in an improper or bad fashion on the day in
question. I think that’s inadmissible evidence.”100 The Estate’s attorney did not address

       97
              Id. (citing Witt, 75 P.3d at 1033).
       98
             Cikan, 125 P.3d at 339 (quoting Martech Const. Co. v. Ogden Envtl. Servs.,
Inc., 852 P.2d 1146, 1149 n.7 (Alaska 1993)).
       99
              Coxe admitted a 2008 audit revealed approximately 200 missing firearms
over a 10 to 12 year span. Other testimony reflected most of the firearms were later
located. The majority of the “missing” firearms apparently were the result of simple
clerical errors, where the firearm’s disposition went unrecorded.
       100
              See Alaska Evidence Rule 404(b)(1):
              Evidence of other crimes, wrongs, or acts is not admissible if
              the sole purpose for offering the evidence is to prove the
              character of a person in order to show that the person acted
              in conformity therewith. It is, however, admissible for other
              purposes, including, but not limited to, proof of motive,
                                                                            (continued...)

                                            -26-                                       6752

the evidentiary issue during his argument.
             The superior court’s summary judgment order mentions the expert opinions
only once, immediately before dividing the Estate’s evidence into categories. One
category was “evidence that Coxe allegedly violated federal [firearms] laws or otherwise
failed to properly secure [firearms] in his business on other occasions.”
             The superior court expressly excluded evidence of other bad acts from its
consideration on the summary judgment motion:
             Evidence of other alleged crimes, wrongs, or acts on other
             occasions may be offered to show negligence on the part of
             Coxe. But even if there was evidence that Coxe had
             conducted sham transactions such as the one plaintiffs claim
             he conducted on this occasion, such evidence cannot show
             that Coxe had a propensity to act in that way, in order to raise
             an inference that he acted in conformity with that propensity
             on this occasion. In other words, evidence of Coxe’s conduct
             on other occasions could show negligence, but such evidence
             cannot show entrustment. (Emphasis in original.) (Citation
             omitted.)
             In this case the determination of whether an issue of fact bars summary
judgment is very close. But in response to a question from the superior court at oral
argument Coxe raised a new issue — to which the Estate did not respond — and the
superior court then relied on that new argument in its final decision. We are concerned
the Estate may not have had an appropriate opportunity to present arguments relating to:
(1) why the superior court’s evidentiary ruling on the expert witness affidavits might
have been erroneous; (2) whether the second part of Alaska Evidence Rule 404(b)(1)




      100	
             (...continued)
             opportunity, intent, preparation, plan, knowledge, identity, or
             absence of mistake or accident.

                                          -27-	                                   6752
might allow the evidence for some purposes;101 or (3) whether the evidence might have
been admissible under another rule.102
             Accordingly we vacate the entry of summary judgment and remand for
further consideration of this evidentiary issue so critical to the summary judgment
analysis.
V.    CONCLUSION
             We AFFIRM the superior court’s rulings on the PLCAA’s construction and
constitutionality. We REMAND the remainder of the superior court’s decision on
summary judgment for further consideration.




      101
             See id.
      102
              On appeal the Estate offers an alternative basis for admission — Rule 406
(habit). Rule 406 requires “more than mere ‘tendency’ to act in a given manner, but
rather, conduct that is ‘semi-automatic’ in nature.” Mueller v. Buscemi, 230 P.3d 1153,
1157 n.11 (Alaska 2010) (quoting Simplex, Inc. v. Diversified Energy Sys., Inc., 847 F.2d
1290, 1293 (7th Cir. 1988)). Coxe’s previously missing firearms would not seem to rise
to the level of habit, but we leave it to the superior court to consider first.

                                          -28-                                     6752
