03/12/2010 01:00 PM House JUDICIARY

             HB 408 - MISCONDUCT INVOLVING WEAPONS                                                                          
                                                                                                                                
2:26:16 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS announced that the  final order of business would be                                                               
HOUSE  BILL NO.  408, "An  Act relating  to misconduct  involving                                                               
weapons."                                                                                                                       
                                                                                                                                
2:27:08 PM                                                                                                                    
                                                                                                                                
BEN  MULIGAN, Staff,  Representative Bill  Stoltze, Alaska  State                                                               
Legislature, explained  that HB  408 is  before the  committee as                                                               
the result  of the court  case Caron vs.  U.S. that is  now being                                                             
interpreted  by the  federal  government  as restricting  firearm                                                               
possession.  This legislation proposes  to change the affirmative                                                               
offense in AS 11.61.200(b) to  a non-applicability provision.  He                                                               
further explained  that under the  Caron case  the interpretation                                                             
is that  if there is  any restriction for carrying  or possessing                                                               
firearms,  that right  is no  longer retained  under the  federal                                                               
government.                                                                                                                     
                                                                                                                                
2:29:18 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   BILL   STOLTZE,    Alaska   State   Legislature,                                                               
interjected that  HB 408 attempts  to develop a logical  path for                                                               
those  who have  lost their  right to  own a  gun to  reestablish                                                               
their  right to  bear  arms.   He noted  the  similarity of  this                                                               
effort to  that of reestablishing  voting rights.   In discussing                                                               
this  with legislators  from  rural areas  of  Alaska, there  are                                                               
circumstances in  which the  inability to  own a  firearm affects                                                               
the essence of the way of life in some areas.                                                                                   
                                                                                                                                
CHAIR RAMRAS related that he doesn't  see language in HB 408 that                                                               
creates two  classes of rights, one  for those who have  lost the                                                               
right to  possess firearms due  to a felony conviction  and those                                                               
who have a felony conviction that  involved weapons.  He asked if                                                               
it's possible to address that in the legislation.                                                                               
                                                                                                                                
REPRESENTATIVE STOLTZE  characterized HB 408 as  a starting point                                                               
and the language  to which Chair Ramras  referred could certainly                                                               
be part of the discussion.                                                                                                      
                                                                                                                                
REPRESENTATIVE GRUENBERG expressed interest  in any citations for                                                               
relevant  cases other  than the  Caron v.  U.S. and  Gabrielle v.                                                           
State of Alaska cases.                                                                                                        
                                                                                                                                
2:36:03 PM                                                                                                                    
                                                                                                                                
JIM  ADAMS  related  his  personal experience  in  which  he  was                                                               
convicted in 1985  and the judge waived  the anti-gun [possession                                                               
provision]  but was  given five  years of  probation.   He, then,                                                               
applied  for and  received a  federal firearms  license in  1986.                                                               
After attending gun  smith schools outside of Alaska  in 1986 and                                                               
1989, he was informed by the state  in 1998 that he would have to                                                               
turn  over his  federal firearms  license due  to changes  in the                                                               
law.  He was told that under  the State of Alaska law he couldn't                                                               
own handguns.   He was also  told by the federal  government that                                                               
he could either own  any type of firearm or no  firearm.  At this                                                               
point,  Mr.  Adams said  that  he  isn't  allowed to  purchase  a                                                               
handgun, rifle,  or shotgun  in his  own name.   He  informed the                                                               
committee that he  never had any difficulties with  the law prior                                                               
or after  the 1985 conviction.   Therefore,  he would like  to be                                                               
able to enjoy the use of firearms again, including gunsmithing.                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG  characterized Mr.  Adams' case  as very                                                               
compelling.                                                                                                                     
                                                                                                                                
2:41:42 PM                                                                                                                    
                                                                                                                                
ERIC  STANLEY  related his  support  for  HB  408.   Mr.  Stanley                                                               
characterized himself as  an "average Joe" who has  paid his debt                                                               
to  society,  received a  pardon  under  suspended imposition  of                                                               
sentence (SIS).   He  noted that  he has  also fulfilled  all the                                                               
obligations, terms,  and conditions of his  probation after being                                                               
charged with theft  in the second degree due  to receiving stolen                                                               
property when  he was  19 or 20  years of age.   Mr.  Stanley, an                                                               
outdoorsman,  said  that he  sometimes  asks  himself whether  he                                                               
should have the  right to protect his own life.   He related that                                                               
due to  his inability to  carry a gun  he has stopped  taking his                                                               
daughter fishing  [and other things  such as biking  and camping]                                                               
as he  refuses to place his  daughter in a situation  in which he                                                               
can't protect her.  "I have no  desire to break the law and carry                                                               
a gun unlawfully,  so what choices or  rights do I have?   I feel                                                               
as if my right to spend  quality time with my family has somewhat                                                               
been encroached on  also," he opined.  Mr.  Stanley expressed his                                                               
hope that someday his rights and  the rights of others in similar                                                               
situations will  be restored.   Although fishing is a  major part                                                               
of his life and he isn't willing  to give it up, he fears that it                                                               
is only a matter of time  before he finds himself in an encounter                                                               
with a bear during which he won't be unable to defend himself.                                                                  
                                                                                                                                
CHAIR RAMRAS  remarked that Mr.  Stanley illustrates  his earlier                                                               
point  regarding  the  difference between  individuals  who  have                                                               
committed a felony with a  weapon versus those who've committed a                                                               
felony without  a weapon.  He  inquired as to the  details of Mr.                                                               
Stanley's case.                                                                                                                 
                                                                                                                                
MR. STANLEY  related that in  his case,  the theft in  the second                                                               
degree was due  to receipt of a  stolen weapon.  At  the time, he                                                               
said he didn't know the weapon  was stolen.  He clarified that he                                                               
didn't use a weapon in the commission of a crime.                                                                               
                                                                                                                                
2:48:53 PM                                                                                                                    
                                                                                                                                
RICHARD PATTERSON  relayed that he has  been a pilot in  the Bush                                                               
for the last 30  years, the last 15 years he  has been engaged in                                                               
medivac and  search and rescue operations  encompassing the North                                                               
Slope  and the  Northwest  Arctic  Borough.   He  related that  a                                                               
firearm  is a  tool  that  he must  have  in  his profession  and                                                               
thanked the legislature for addressing  this issue for those with                                                               
felony  convictions.   He told  the committee  that years  ago he                                                               
erred,  saw it  was  wrong,  and corrected  the  situation.   Mr.                                                               
Patterson  said that  his success  is  the result  of hard  work,                                                               
dedication,  loyalty  to  Alaskans,  and those  he  serves.    He                                                               
further said  that he has  made exemplary  rehabilitative efforts                                                               
and performed extraordinary  acts that have been  recognized by a                                                               
duly  elected executive  officer of  Alaska.   Mr. Patterson  was                                                               
granted a  full, unconditional  pardon in order  to allow  him to                                                               
have  handguns to  protect  others.   He  recounted various  bear                                                               
encounters he has experienced and opined  that a firearm is not a                                                               
luxury but  is instead a  necessity.  Mr. Patterson  then related                                                               
his support  for HB 408,  but suggested  that it be  amended such                                                               
that all  rights to bear firearms  are restored.  He  pointed out                                                               
that  the federal  government is  intervening in  the legislature                                                               
and  the  power  to  pardon  lies in  the  executive  branch  and                                                               
legislative instruments  that interfere with that  pardon clearly                                                               
violate the separation  of powers.  In  conclusion, Mr. Patterson                                                               
expressed  hope  that   the  inadequacies  in  HB   408  will  be                                                               
rectified.                                                                                                                      
                                                                                                                                
2:53:32 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  noted  that  HB 408  goes  beyond  the                                                               
restorative   right   to  bear   arms   but   also  affects   his                                                               
constituents.   He related his  intention to pursue the  issue of                                                               
ensuring that  the civil rights of  rehabilitated individuals are                                                               
fully restored.                                                                                                                 
                                                                                                                                
CHAIR RAMRAS concurred.                                                                                                         
                                                                                                                                
2:54:32 PM                                                                                                                    
                                                                                                                                
DON  CLARK  related  the  situation in  which  he  found  himself                                                               
convicted of a controlled substance  violation.  He was told that                                                               
if he  pleads guilty he would  face a fine, two  years probation,                                                               
SIS, and that upon completion  of the conditions his record would                                                               
be wiped clean  and all his rights returned.   The aforementioned                                                               
happened, except that he was  unable to purchase a weapon because                                                               
federal  law and  state law  have  been interpreted  differently.                                                               
Mr.  Clark noted  that he  utilized every  avenue available,  but                                                               
nothing was  enough for  the federal  government.   Therefore, he                                                               
approached Mr. Ross  for help, which led to [HB  408].  He opined                                                               
that  in Alaska  hunting and  fishing  are a  way of  life and  a                                                               
firearm  is a  necessity not  a luxury.   In  closing, Mr.  Clark                                                               
stated that the law needs to be changed.                                                                                        
                                                                                                                                
2:56:44 PM                                                                                                                    
                                                                                                                                
WAYNE ANTHONY ROSS,  Attorney at Law, reviewed  Alaska's law with                                                               
regard  to  the  rights  of convicted  felons  to  own  firearms.                                                               
However, under  the Caron case  if there are any  restrictions on                                                             
an  individual's right  to own  a firearm,  then that  individual                                                               
can't  possess  any type  of  firearm.   The  aforementioned,  in                                                               
essence, changes  the state's  law.   Although Mr.  Ross remarked                                                               
that  HB 408  might  need to  be  fine tuned,  it  stands up  for                                                               
state's rights and provides Alaskans  with the rights the state's                                                               
imposed [prior to the Caron case.]                                                                                            
                                                                                                                                
MR. ROSS,  in response to  Chair Ramras, indicated  his agreement                                                               
with differentiating between those who  used a weapon to commit a                                                               
felony and those  who did not.  He opined  that previously passed                                                               
legislation already made such a distinction.                                                                                    
                                                                                                                                
3:01:01 PM                                                                                                                    
                                                                                                                                
BRIAN  JUDY, Alaska  Liaison, National  Rifle Association  (NRA),                                                               
opined  that although  this  is a  complicated  issue, there's  a                                                               
simple  solution.   He  then pointed  out  that members'  packets                                                               
should   contain   detailed  technical   background   information                                                               
regarding how the state is in this situation.                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he supports  the bill,  and would                                                               
like to  hear Mr.  Judy's concerns so  the committee  can address                                                               
them.                                                                                                                           
                                                                                                                                
MR. JUDY explained  that under the Caron decision  unless a state                                                             
restores  100  percent  of  an  individual's  rights  and  treats                                                               
him/her  as  any  other law-abiding  individual  who  never  lost                                                               
rights,  the individual  has no  rights for  the purposes  of the                                                               
federal  law.   Alaska  essentially restores  95  percent of  the                                                               
individual's rights  [with regard  to weapons].   With  regard to                                                               
the  distinction in  classes [of  felons], Mr.  Judy pointed  out                                                               
that it's  already distinguished in  law.  There's  a prohibition                                                               
for carrying  firearms that  are capable  of being  concealed and                                                               
there's a separate prohibition for  concealed carry of a handgun.                                                               
Both of those  prohibitions can be found in AS  11.61.200 and for                                                               
both  there are  affirmative defenses.   The  affirmative defense                                                               
for carrying a  concealed handgun is restoration of  rights and a                                                               
limitation on carry.   Mr. Judy suggested that HB  408 be amended                                                               
by repealing the limitations on  concealed carry, as specified in                                                               
AS 11.61.200(g)(2).   He further  suggested that  the affirmative                                                               
defenses need to be changed,  as specified in AS 11.61.200(b) and                                                               
(g), to exceptions.  The  aforementioned changes will, in effect,                                                               
completely restore  the rights of  deserving individuals.   If an                                                               
individual who  has had his/her  rights restored can  be arrested                                                               
and charged with  a crime and then raise  an affirmative defense,                                                               
that individual isn't  treated the same as an  individual who has                                                               
never lost  his/her rights and  can't be charged with  that crime                                                               
in the  first place.   With regard  to the specific  classes, Mr.                                                               
Judy reiterated  that in statute  there is already  a distinction                                                               
between  felons who  have their  rights restored  and the  felony                                                               
wasn't against a  person and felons who did have  a crime against                                                               
another person.   Furthermore, those individuals  who violated AS                                                               
11.41, who  committed a crime  against another  individual, can't                                                               
get their rights restored.                                                                                                      
                                                                                                                                
REPRESENTATIVE GRUENBERG requested  that Mr. Judy mark  up HB 408                                                               
and  provide it  to Mr.  Mulligan, who  would forward  it to  the                                                               
committee.                                                                                                                      
                                                                                                                                
[HB 408 was held over.]