Legislature(2009 - 2010)BUTROVICH 205
04/16/2009 09:00 AM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB189 | |
| HB19 | |
| HB106 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 189 | TELECONFERENCED | |
| + | HB 19 | TELECONFERENCED | |
| + | HB 106 | TELECONFERENCED | |
SB 189-CONCEALED WEAPON: PARDONS/SIS
9:15:12 AM
CHAIR MENARD announced the consideration of SB 189.
9:15:31 AM
SHARON LONG, Staff to Senator Charlie Huggins, Alaska State
Legislature, said SB 189 allows felons who have received a
pardon or a set-aside after a suspended imposition of sentence
(SIS) to possess concealed firearms with no restrictions. There
are many citizens who have faltered in the past, paid their debt
to society, and turned their lives around. We acknowledge their
rehabilitation and welcome them back. Sometimes felons only have
partially-restored civil rights. Some go through an arduous
clemency process and receive a pardon. "Others, due to youthful
indiscretions and other mitigating factors, are deemed by the
courts to be worthy of an SIS and receive a set-aside." It is to
the few who are worthy of a pardon or SIS to whom this
legislation is directed. The intention is for these individuals
to regain their right to bear arms.
9:17:00 AM
CHAIR MENARD surmised that the bill will allow people who have
received pardons and set-asides under Alaska law to possess guns
under federal law.
MS. LONG said, "That was the instructions to the drafters." Mr.
Luckhaupt is here, and he understands how federal and state laws
intertwine, and how they have, in some places, conspired to
prevent people with pardons in Alaska from regaining their
concealed weapons rights.
JERRY LUCKHAUPT, Attorney, Legislative Legal Services, said the
intent is to resolve the U.S. Supreme Court case that said a
restriction under state law prevents a felon, who has received a
restoration of rights, from possessing firearms. He spoke with
someone in the hall and "they now believe that this doesn't do
that even though this was something they seemed to think would
work." Last year Mr. Luckhaupt spoke with ATF [Bureau of
Alcohol, Tobacco, and Firearms], and "this seemed to satisfy
their concerns." "I guess that's something we'll explore."
9:19:41 AM
SENATOR FRENCH said he has filed a bill on this general topic.
It is one of the more mystifying and difficult areas of the law
to work through. He appreciates the expertise of Mr. Luckhaupt
and the NRA [National Rifle Association]. It is important to get
it right the first time. He asked if he could get a letter from
ATF or from the relevant federal authorities for guidance.
9:20:58 AM
MR. LUCKHAUPT said ATF was not willing to put anything on paper
last year. It seems to be a floating standard. There are
different views on how the law will be interpreted. It would be
worth the effort to contact ATF for some answers. "But as of
now, we don't have any definitive answers; we're just kind of
left trying to interpret what they may do." Senator French's
bill and this bill meet Caron [Caron v. United States]. "Senator
Huggins's bill restricts where they're going to the people who
receive pardons and set-asides and not for the 10-year lapse of
time felons. And your bill reaches all of them." It is
attempting to meet Caron for all felons in Alaska.
SENATOR FRENCH asked if Mr. Luckhaupt can go to the relevant
passage in Caron and give it to the committee. Is there one
little part that explains the legal problem?
MR. LUCKHAUPT said Caron dealt with a Massachusetts law that
permitted felons to possess long guns but not handguns. Caron
was not a good person. He had various run-ins with the law over
30 years. The federal government got word that he had long guns.
Under federal law he wasn't entitled to possess any guns.
Massachusetts law did not allow felons to ever have the right to
possess handguns except on their own property. The federal
government said that prevents him from receiving his rights to
generally possess firearms. Federal law allows felons to get
their federal rights back once the state has restored their full
and complete rights -- with no restrictions. The way most states
do it, including Alaska, is to provide restoration rights to
people who receive a pardon or a set-aside, "but we also, by
lapse of a period of time, give felons their rights back."
That's what happened in Massachusetts, but it was limited to
long guns. The U.S. Supreme Court said that because it was not a
full and complete restoration of rights, a felon's right to
possess handguns was limited, therefore there isn't a
corresponding right under federal law.
9:25:19 AM
SENATOR FRENCH said that seems to be the question: "Whether or
not you've had a full and complete restoration of your rights."
The NRA stance is that any restriction under state law is going
to trigger a ban under federal law. Is that where we are?
MR. LUCKHAUPT said, "I think that's where they are, and I don't
read Caron that far." But people can differ.
CHAIR MENARD said she wants to work on this next year due to
time constraints.
9:26:40 AM
BRIAN JUDY, Alaska Liaison, National Rifle Association,
Anchorage, said it is the existing policy in Alaska to provide a
restoration of rights to these individuals - either through a
pardon, set-aside, or through the lapsing of a significant
amount of time. The federal government recognizes that
restoration. The key is that it has to be a complete
restoration, and there have been court cases since the Caron
decision and interpretations by the ATF and the FBI. According
to the NRA, if these individuals don't have the exact rights of
other individuals, it isn't a full and complete restoration for
the purposes of federal law. This bill will go part of the way
for those with pardons and set-asides. Although it is state
policy for rights to be restored after a ten-year lapse, they
would clearly not have their rights restored under this bill.
NRA attorneys look at it as incomplete because it remains an
affirmative defense. It's presumptively illegal for these people
to have a handgun, and they will have to mount the defense. They
can be arrested, incarcerated, and then have to defend
themselves. That doesn't happen to other individuals, so it
isn't a complete restoration of rights. NRA supports the concept
of the bill, but it doesn't go as far as intended.
9:29:09 AM
SENATOR FRENCH said it is sticky. There are two prohibitions
regarding a felon's handgun rights. "One is subsection 1 of the
statute that we're amending," which says a person can't
knowingly possess a firearm capable of being concealed -- a
handgun. "That would be a handgun in your home." "The subsection
that we're amending, though, is different from that one. It says
you can't knowingly possess a firearm that is concealed on your
person." How does fixing the concealed gun statute cure the
problem if there is a parallel, broader statute?
MR. JUDY said that is a good question. NRA believes that is the
problem. Addressing the affirmative defense for carrying a
concealed gun goes part of the way. Not only does that need to
be addressed, but "you also need to change the affirmative
defense to and exception for the carrying concealed prohibition
and for that separate mere possession of a handgun." There are
two separate offences and two sections providing affirmative
defenses. The affirmative defense for the concealed gun is more
extensive, but unless the conditions are narrowed and it is
changed from an affirmative defense, it is not a full and
complete restoration.
9:31:39 AM
CHAIR MENARD said she wants to take the time to get it right.
CARL THOMAS, representing himself, said he supports SB 189. He
was convicted of a nonviolent felony. His rights were restored
in every way except when he attempted to buy a new firearm. He
was denied by [indecipherable] after voluntary appeals to them.
The reason he was denied the right to buy a firearm was case
law: Caron v. United States. Alaska state law restricts what a
felon can possess, so he is considered to be federally
prohibited. Since his case was set aside and all rights
restored, he should be able to purchase firearms. It is an
infringement of his rights.
CHAIR MENARD held over SB 189.
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