Legislature(1993 - 1994)
04/18/1994 01:00 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SJR 39 - RIGHT TO KEEP AND BEAR ARMS HOUSE CS FOR SENATE JOINT RESOLUTION NO. 39(JUD): Proposing amendments to the Constitution of the State of Alaska to guarantee, in addition to the right of the people to keep and bear arms as approved by the voters at the time of ratification of the state Constitution, that the individual right to keep and bear arms shall not be unreasonably denied or infringed by the state or a political subdivision of the state, and establishing that the expanded right to keep and bear arms does not change the level of judicial scrutiny applicable to the review of laws relating to weapons. Number 850 CHAIRMAN PORTER said that where this bill was left, they had received an awful lot of testimony saying that they were not in favor of the committee substitute. He offered it himself. He explained that it basically changes two things: it adds one word to the essence of the constitutional amendment that we would be asking the public to adopt, and that is the word "unreasonable" on page 13 of the draft. It would then say that the individual right to keep and bear arms should not be unreasonably denied or infringed by the state or by a subdivision of the state. It would also add in another section of the constitution if this passed, and then passed to go to the public, the standards of review that the Supreme Court would want to use in assessing questions brought to them around this constitutional amendment would be assessed at a standard that they now use, a sliding scale standard, which is, basically, a middle ground between a compelling interest standard and rational basis standard. That is the essence of the CS, he said. Number 866 REP. JAMES asked if they would keep the same type of review that is now in use. CHAIRMAN PORTER said, "Yes, they would." REP. JAMES then asked if there was any way to tie that language in, and whether that was something that, because this is the date we passed that, they know what they are using on that date. TAPE 94-61, SIDE B Number 000 CHAIRMAN PORTER gave a generalization, and passed out a sponsor statement, saying that there are three general standards of review the court can use when looking at how they want to interpret constitutional amendments. The compelling interest standard, which is, by the way, the standard that the letter of intent that the Senate sent over with this bill asks that we adopt and then would be asking the Supreme Court to use, is a standard of review that basically says the state must show a compelling interest in passing a law if it impacts an individual right, and if, short of a compelling interest, that law will fall. The other end of the scale is a rational basis test which basically says if the state can show any rational basis in protecting the public or whatever, in passing this law, then it will override an individual right. What the Supreme Court now uses is called the sliding scale standard of review, which is basically a standard of review between these two extremes that tries to balance the interest of the state against the interest of the individual and make a rational decision on it. What we would be saying by Section 3 on page 2 is that we would like the Supreme Court to use that standard in their review of this question. He entertained a motion to adopt the CS for SJR 39(JUD). CHAIRMAN PORTER noted that there was an objection (made by Rep. Phillips) and asked if there was any discussion. REP. PHILLIPS said she did not like the Judiciary Committee CS. She did not agree that the people of Alaska would buy into adding the word "unreasonably" or the level of judicial scrutiny as part of our constitutional statement on the right to bear arms. She was opposed to those amendments. Number 075 REP. JAMES said she does not believe the people of Alaska would agree, either, yet she supported the amendment. She said she believes that both sides of this issue are in agreement of the same thing, and the visualization of what they want the rights of the people to be is the same; it is determined then how the wording is. And she understood Rep. Porter's concerns to be that if we say, "It shall not be infringed by the state or by a subdivision of the state," and we know how our courts determine how our constitution reads. If someone were to challenge that because of a denial of the use of a gun, and they challenged it on a constitutional right to bear arms that cannot be infringed by the state or a subdivision, we could have a court decision that says, "That's absolutely right, absolutely everybody can carry a gun." Rep. James said she has a problem with that in the fact that there are a lot of people we do not want to have guns. She said people have tried to convince her that is not the case, and she kind of agrees with them, but that is not the case. That will never happen. However, knowing how word for word our courts, and not having a lot of faith in them either, how they determine the language in the constitutional law leads me to believe that might be the case, and the other reason for being persuaded is that the "unreasonably" that is used under searches and seizures has been doing us fine; and so she thinks that "unreasonable" in this might do us fine as well. So, for that reason, she supported the CS. Number 129 CHAIRMAN PORTER discussed the bill some more. He said he believed that Rep. James was correct. It was his perception that there is no opposition to this bill, in terms of the stated intent, or it's adoption. What there is a difference of opinion on is the effect of the wording of the bill. While he understands the point of view that says if you put "unreasonable" in here, it gives the court the opportunity to do just the opposite, be totally unreasonable about the level to which they would confiscate weapons. He said he has had a lot of experience dealing with the law, and therefore does not have that concern. It is not, by any stretch of the imagination, going to happen in our lifetime, unless the country falls. They would not waive a 4th amendment, which does have the word "unreasonable" in it. He said, you can imagine all of the interpretations that have gone through the courts upholding the individual's right to be protected in their own house against unreasonable searches and seizures. No one is going to walk into a house and obtain your guns or anything else, just because of the provision that has the word "unreasonable" in it. CHAIRMAN PORTER said, we have had, though, in this state, a couple of decisions that caused him the concern he did have. The Raven case and the Glass case that were briefly touched on. The Raven case was the infamous marijuana case that we bring up quite a bit, where the Supreme Court took the state's right to privacy, which is an additional irritant, if you will, to this discussion, because our state has a right to privacy, many other states do not have the right to privacy in their constitution. It is one of those unqualified statements in our constitution like the proposed Senate bill that each individual has the right to privacy. But what does that mean? Is it an absolute right? Well, they came darn close to saying that when the Supreme Court said you can possess marijuana, a federally prohibited contraband item. We do not care about federal Law. You can have marijuana in your home, because of our constitutional right to privacy. What would preclude them from saying, "In your home, a felon could possess a firearm? We do not care if it is against the law, federally. This is a statement of absolute. The individual right to keep and bear arms shall not be denied." That is what the Senate version of this bill says. That is his concern. That is his rationale for this amendment. Additionally, CHAIRMAN PORTER said, the Senate does not want the Supreme Court to use the rational basis or the sliding scale, but wants the court to use the compelling interest standard to review that question, which would, in his mind, give it even more likelihood that we would have one of these unfavorable situations. CHAIRMAN PORTER then asked if there was any further discussion. REP. PHILLIPS stated that today they addressed two bills that dealt with the courts, which, in her mind, made totally unreasonable rulings. One, in violation of the law we have in the books, says that if you are under 21, it is against the law to consume alcohol, and yet a district court official sent down a ruling that said the policeman had to actually see the kid under 21 in possession of the alcohol, or drinking it, before they can be arrested. What a bunch of poppycock, she said. Then the other one we had was on the oil lease, where just very recently, we had a judge send down, in her mind, a very unreasonable ruling on a state law that we have in existence on oil leases. She did not believe it would be good to give the courts any more flexibility, especially for something as precious as this amendment to our constitution. She did not agree with the word "unreasonable" in there a bit. REP. DAVIDSON stated that he can appreciate each point of view, but he does not have the same misgivings about our court system. He said he knows they have a very difficult task and he has not studied law to the extent most people have within the system, so he does not hold the same strong views, but if the forefathers really intended that clause to apply to the individual instead of "people," he thought they would have said "individual" right to keep and bear arms. He thought the CS would strike a happy balance, or a reasonable balance, and that is why he thought to go forward without the CS might end up in a situation where some of those areas that you suggested we may not want to be in. Rather than doing nothing, he thought they should go forward with something, and so that was why he supported the CS. CHAIRMAN PORTER said that the one thing he did not want anybody to misunderstand is that this CS provides the individual right to keep and bear arms. He guessed it to be debatable, but we had testimony and he believe that, absent another court decision or statute or constitutional amendment, the law of the land in this state right now is an old attorney general's opinion that said there is no individual right to keep and bear arms in this state; it is a collective right of a militia. So if it is ultimately passed out of this body and voted on by the public, favorably, we are establishing a right that does not now exist in this state to individually keep and bear arms. The only thing he was asking is that it be made reasonable, not absolute. REP. GREEN shared Rep. Phillips' concern about our courts. HE said, you can add to some of those absurd decisions, some of this reapportionment garbage they went through, but his concern is just the opposite, that, as expressed by the chairman, the courts could be so unreasonable as to go absurdly around and say that this is a conflict now, this is a more recent law, obviously the people's elected officials want felons and everybody else to have the law. He honestly did not believe that would happen, as he remembered back. Rep. Green said that most of the people present would be too young to remember this, but when they came around with gun registration, he was concerned about what might happen. He was not even an NRA (National Rifle Association) member then, but he was concerned, so when he bought his son a weapon under the registration law, he hid all the rest of his weapons, just because he had been led to believe that there would be confiscation. This registration gave them an address, and it gave them the type of weapon, and he stood by, thinking that within ten years, they would have it, and this was 25 years ago. He still has his weapon. So he does not think we are headed down the road for undue oppression of the courts. "Unreasonable," he thinks, is a good word. REP. JAMES responded, saying that she thinks they are moving in that direction, and she thinks she is older than Rep. Green. The reason that she thinks it has not happened is because of the NRA lobby. They have been the ones protecting us, and she thinks it is time for us to take some of our own protection. CHAIRMAN PORTER gave another reason why he does not think this would ever happen. He said that right now there are some suggestions that there should be involuntary searches for firearms in certain federally funded housing projects in Boston and in Chicago. In speaking today with an attorney in Anchorage on another matter this came up. He is an NRA member and an advocate of this legislation, and he agreed that the ACLU will intercede in a heartbeat, and it will never be upheld, based on the 4th amendment, which has "unreasonable" in it. That is just not going to happen. Voluntarily, maybe, but not involuntarily, he said. After an objection, a roll call vote on the adoption of the CS was taken. Reps. Kott and Phillips voted no; Reps. Green, Davidson, James and Porter voted yes; and Rep. Nordlund was absent. REP. JAMES motioned to move the bill. CSSJR 39 was moved. CHAIRMAN PORTER entertained the motion to adopt a House Concurrent Resolution due to a title change in the movement of the bill. Seeing no discussion or objection, the resolution was adopted. The House Judiciary Committee was adjourned at 2:30 p.m.
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