Legislature(1993 - 1994)
04/16/1994 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
Number 252
SJR 39 - RIGHT TO KEEP AND BEAR ARMS
CHAIRMAN PORTER announced that a copy of the CS was
currently being circulated throughout the legislative
offices, and asked PORTIA BABCOCK to present SJR 39 and
describe the CS.
Number 287
PORTIA BABCOCK, Committee Aide to the Senate State Affairs
Committee, explained that SJR 39 was introduced by the
Senate State Affairs Committee from numerous requests that
it be passed through the legislature so that it could be
voted on in the 1994 general election. She said this idea
has been an issue, primarily since 1983, when an attorney
general's opinion was written by JOE GELDHOFF, which sort of
set off a lot of Alaskans, making them uneasy, because the
opinion interpreted exactly what Article 1, Section 19
means.
MS. BABCOCK said at this time there is no Alaska supreme
court interpretation of exactly what Article 1, Section 19,
means, because it has never been challenged and has never
been considered by the supreme court. She stated this
clarification is strongly supported by Senator Leman, who
wished to apologize for not introducing it himself. He
would encourage passage of as clear and concise language as
can possibly be put before the voters so they can understand
exactly what they would be voting on, and also to keep in
line with fairly clear, direct language in the constitution.
MS. BABCOCK said SJR 39 passed out of the Senate with a vote
of 16 to 3. The bill presently before the House Judiciary
Committee clarifies an individual right to keep and bear
arms. Ms. Babcock said it is the opinion of Senator Leman
and many others throughout the state that Article 1, Section
19, as is, right now, with what is identical to the second
amendment of the federal constitution, does currently
guarantee an individual right to keep and bear arms. This
should guarantee that right, in Senator Leman's opinion, as
well as in many others', (including the supreme court's) in
cases in the late 1800's and up into the 1930's, which is
the last time the federal supreme court actually heard a
case involving the second amendment. At that time, the
supreme court's interpretation was that this is a state, as
well as an individual right or protection, for individuals
to bear arms, and challenges to that at lower court levels,
or the interpretations of attorneys, attorney generals, and
other opinions, but it has never been viewed differently at
the court or supreme court level. With no state supreme
court case law to look at, it is difficult to decide what
our supreme court would do. No one really knows how they
would interpret it, or what they think Article 1, Section
19, actually means. Some cases have been brought up by our
own Department of Law in reference to other cases in other
states. Their concern is that passing this amendment will
somehow abrogate laws that are currently on the books or
that may be in the future.
MS. BABCOCK said Senator Leman does not believe that to be
true. He believes this should change absolutely nothing,
because the way the second amendment reads right now, in our
current language, it does guarantee the individual right to
keep and bear arms. With a compelling government or state
interest, laws have been upheld under language very similar
to this language proposed in SJR 39, as well as under more
strict language, as in our current constitution; and also,
more strict and explicit constitutions are found in other
states. Laws have been consistently upheld, regulating
felon and possession laws, prohibiting minors and juveniles
from being able to possess weapons up to a certain age, not
allowing weapons or firearms on school grounds or in
schools. A lot of these have been challenged and they have
been upheld.
MS. BABCOCK said the only case where the felon and
possession law was partially upheld and partially struck
down was in Colorado. Their constitutional language was
more explicit than what is being proposed in SJR 39. That
language states "the right of no person to keep and bear
arms in defense of his home, person, or property or in aid
of a civil power, when adhered to a legal setting, shall be
called into question." And so it is strictly stated that
the person has the right to defend themselves, to keep and
bear arms in defense of self, home, family and state. The
only time it was a question was when the court ruled that
someone who had been convicted of a felony had been released
and was back out, not on parole, and it was illegal for
them to possess a firearm in the state of Colorado. The
court said, "You can possess a firearm if it is an
affirmative defense for them to prove they were in
possession of that weapon to defend themselves, their
family, home or state; but they did uphold the felon
possession law. That is the only case. It has been
challenged in other states and they have all been upheld.
MS. BABCOCK said that Senator Leman, as well as most of the
people she has heard testimony from (which is about 1500
people statewide and thousands of letters and petitions -
she has a box of petitions that she chose not to distribute
because she didn't want to waste the paper), and she has
over 8,600 signatures in support of SJR 39 as well as HB 351
(they are both on the petition). So, in the opinion of
Senator Leman, this should have no affect on how a court
would interpret this, and the language we currently have
already protects the individual right. And most people feel
very secure with that. It was only after this opinion was
written in 1983 that they started questioning whether they
actually had an individual right to bear arms under Article
1, Section 19, of our state constitution as well as the
federal constitution, second amendment. When that was
brought into question, people wanted this clarified to say,
"This is what we think it means. We want to be able to vote
on this, and tell the courts very clearly what we mean and
what we think the constitutional language for the right to
keep and bear arms means and want the chance to vote on
that." That was the reason for introducing SJR 39. Ms.
Babcock then announced that she would be willing to answer
questions or address the CS.
Number 415
REP. PHILLIPS requested an analysis between the two be made
by Ms. Babcock.
Number 420
MS. BABCOCK explained that the proposed judicial CS would
change the title, first of all. On line 4 of the title, it
inserts "unreasonably", and then on line 5 after "state" it
adds the last 2-1/2 sentences of language: "and
establishing that the expanded right to keep and bear arms
does not change the level of judicial scrutiny applicable to
the review laws relating to reference." She said that
changes the title.
Number 435
REP. PHILLIPS requested that Ms. Babcock address that
language and Senator Leman's feeling on the subject.
Number 440
MS. BABCOCK explained that on page 2 similar change is on
lines 3, 4 and 5. Senator Leman opposes this change, as
well as the other changes, seeing a problem with setting a
bench mark for courts to try and interpret in the future,
because there is no judicial level of scrutiny of weapons
laws to look at right now. The level of scrutiny the court
will use is almost impossible to judge when there are no
cases to look at, and nothing by which to set a bench mark.
People who are going in to vote on this would have no idea
what this means. She does not think this bill is necessary,
since there is nothing to look back on to understand what
exactly this means. The supreme court is going to look at
the constitutional language, and they are going to decide
whether these laws are constitutional or not, based on their
interpretation of the law, and under the constitution. She
does not think this gives them enough guidance from the
legislature for them to understand what we are talking
about. The language is not clear to the voter. The bill is
not written as an absolute.
Number 493
CHAIRMAN PORTER asked Ms. Babcock, if the bill is written as
"not an absolute," why would it be offensive to add the one
word that would guarantee that it is not an absolute?
Number 508
MS. BABCOCK explained that the reason most people, as well
as the Senator, would find the word "unreasonably" to be
unnecessary, is that they are worried about the courts using
that word unreasonably to mean any law that has any positive
justification, rather than proving a compelling governmental
interest. She said, we do want high standards. People that
believe we do have the right to keep and bear arms have a
philosophical constitutional right to keep and bear arms, as
law abiding citizens. What they are worried about, is that
the word "unreasonably" is a term that they feel could be
abused by the court.
Number 520
CHAIRMAN PORTER said that Deputy Commissioner Swackhammer
would explain the other side to that point of view.
Number 522
REP. JAMES asked MS. BABCOCK whether or not other states
have this particular language in their constitutions.
Number 530
MS. BABCOCK responded affirmatively. She said the two
states have very similar language, which is also very
similar to language already in our constitution.
Number 620
C.E. SWACKHAMMER, Deputy Commissioner, Department of Public
Safety, said the department agrees with the idea of the
right to bear arms, yet they are trying to predict how the
supreme courts will interpret the language.
Number 663
CHAIRMAN PORTER asked Dep. Comm. Swackhammer to discuss the
standard of review suggested in the CS.
DEP. COMM. SWACKHAMMER understood the level of judicial
scrutiny as having to do with the compelling state's
interest. They believe that the proposed language in the
title will not change that level of review.
Number 672
REP. JAMES and REP. PHILLIPS interjected thoughts proposing
the idea that, perhaps, changing this language, in effect,
changes nothing. If it is upheld by the federal
constitution; i.e., if a case went to supreme court, it
would then be subject to the federal language anyway.
Number 710
CHAIRMAN PORTER explained that the interpretation of this
amendment would not go to the supreme court, unless a
federal issue is involved. It would stop at the state
supreme court, who would have ultimate jurisdiction. He
said he could not imagine a case of this nature being a
federal issue; therefore the case would not go to the
federal level. He then described the three general
standards of review used by the supreme courts when looking
at due process considerations, which are: 1) the Compelling
Interest Standard, which basically means that this is the
highest standard of review, when related to the individual's
right versus the state's right. Under this standard, the
court has to establish that the state has compelling
interest in this field in order to impact an individual's
right; 2) the Rational Basis Standard, which says, "If the
state can show any rational basis for this infringement,
then it is legal, and then the individual's right is gone;
and 3) the Sliding Scale Basis (which is what Alaska's
supreme court has adopted) which balances off the compelling
interest versus the rational basis, making a decision in the
middle. What this provision says is that we are telling the
supreme court we like the fact that you are going to make
decisions in the middle, and we do not want to change that.
If the original version is adopted, this will tell the
supreme court to use a higher standard of review than they
are currently using. The testimony stating that this would
confuse the supreme court is not exactly an appropriate
characterization.
Number 745
REP. JAMES suggested that it appears the title, where it
says that "establishing the expanded right" (and she was of
the opinion that the committee was wanting to just restate
the existing right) that if the language were left the way
it is in the original bill, and the second part were put in
there, then it would do more to meet their needs than it
does now with the change, because she did not think that
when "unreasonably" is put in there that it does change it.
REP. JAMES said that it is expanded, it is an expanded
right, and that is the problem. She said, we are not trying
to expand the right, we are trying to just assert the right
that we think we already have. We can talk about this at a
later time when we have the Department of Law here.
Number 750
CHAIRMAN PORTER responded that, as was testified to right
now, the only law in the books is the attorney general's
opinion that says there is no individual right to keep and
bear arms in the state of Alaska. Consequently, he said, we
are recognizing that when we say we are expanding that, and
we would like to expand that to recognize the individual
right to keep and bear arms.
Number 760
REP. PHILLIPS asked which attorney general wrote the
opinion, and when.
MS. BABCOCK replied that it was Joe Geldhoff who wrote the
opinion in 1983, which is only that -- an opinion; it has
absolutely no authority at all.
Number 764
CHAIRMAN PORTER said that we need to remember that the
attorney general's opinion is in effect until it is
superseded by law, or challenged.
CHAIRMAN PORTER asked for teleconference testimony.
Number 777
W.J. HALLERAN, JR., via teleconference from Anchorage, spoke
out in favor of passing SJR 39.
Number 787
DAN DAVIS, of Delta Junction, urged the committee members to
promote the bill.
Number 804
GENE OTTENSTROER, of Delta Junction, agreed with SJR 39,
except for the clause about a regulated militia.
Number 807
JOE SCHOENER, North Pole, expressed belief that the word
unreasonably neutralizes the bill... (continued on other
side of tape)
TAPE 94-60, SIDE B
...and the bill needs to stay in its original form.
Number 009
LADD McBRIDE, Fairbanks, expressed concerns over the third
rescheduling of the teleconference. He spoke in favor of
passing SJR 39 in its original form and keeping it simple.
If the commissioner is for it, he said, he is against it.
Number 041
CHAIRMAN PORTER apologized for the inconvenience of
rescheduling the meeting and explained the reason for the
rescheduling (committee members were called to the floor).
Number 049
CLARENCE BAYSINGER, Fairbanks, spoke in favor of SJR 39
without the CS.
Number 077
FRANK TURNEY of Fairbanks showed support of passing the bill
without the CS.
Number 110
ROBERT ANDERSON of Kodiak supported the bill in its original
form, feeling skeptical of the word "unreasonably" which he
felt leaves the bill open to too much interpretation.
Number 158
MARK CHRYSON, State Field Coordinator of Gun Owners of
America, Wasilla, was in favor of SJR 39 in its original
form, believing that the word "unreasonably" will create
unreasonable voters in the reelection.
Number 173
DOUG MILLARD, Wasilla, supported the bill without the word
"unreasonably."
Number 200
MIKE CHRYST of Wasilla, President of [inaudible] ... Against
Government [inaudible], said he comes in contact with
hundreds of people. Of those people, nobody is in
opposition to the bill, but they do oppose the term
"unreasonably."
Number 232
LOUIE MARCH of Seward supported passing SJR 39 in its
original form, feeling it should be voted on by the people.
He also thought that the "federal government" should be
added to Article 1, Section 19, line 11, where the bill
states that, "The individual right to keep and bear arms
shall not be denied or infringed upon by the State or a
political subdivision of the State."
Number 310
HELEN MARCH, Seward, spoke in support of SJR 39 in its
original form.
Number 320
DANIEL FICKLE, Seward, spoke in support of passing SJR 39 in
its original form, and putting it up for the people to vote
on.
Number 330
WESLEY J. JONES' testimony was read by LOUIE MARCH via
teleconference from Seward, which consisted of a three page
document written by J. Neil Schulman entitled, "English
Usage Expert Interprets 2nd Amendment." Basically, this
article grammatically dissects a particular sentence,
proving the interpretation of the sentence to have only one
absolute meaning, as long as the reader has full
understanding of proper English usage.
MR. JONES' point was, though the intent of the wording in
the bill is clear, unfortunately, many people do not fully
understand English construction and usage, therefore
language to clarify the meaning of the current state
provision would be advantageous to those people.
Number 389
MR. JONES supported moving SJR 39 out of committee.
Number 390
ROBERT WISEMAN, Soldotna, supported the bill excluding the
CS, having fears that the bill would make him subservient to
those that would disarm him. He believed SJR 39 would
alleviate some of those fears. It would allow a lot of
people to send a message that the law-abiding citizens of
Alaska believe very strongly in these basic rights.
Number 420
ROBERT MEYER, Sterling, supported the bill excluding the CS,
in order to protect citizens' rights against a tyrannical
government.
Number 448
RAY HALLEY of Valdez supported the bill, excluding the CS.
Number 470
DON CHASE of Valdez supported the bill without the CS.
Number 500
LARRY PETTY of Fairbanks supported the bill without the CS.
Number 514
CHAIRMAN PORTER defended insertion of the word
"unreasonably", stating that it is a word that is in the
fourth amendment, addressing reasonable searches and
seizures, and it is a word that is a derivative of the
supreme court, and there is quite a bit of case law on it.
He does not think it is something that would take anybody by
surprise. Chairman Porter said that if people feel secure
against "unreasonable searches and seizures", the
"unreasonable" infringement of your firearm should not be
too much of a detriment.
Number 523
CHUCK SERRA, a Viet Nam combat veteran, via teleconference
in Anchorage, wanted the committee to pass the bill in its
original form so people can vote on the issue.
Number 570
NEIL CAMERON, Anchorage, spoke in support of SJR 39.
Number 590
SALLY CHRYST of Wasilla supported SJR 39, excluding the CS.
She also complained of the unreasonable amount of time she
had to wait to testify.
Number 593
CHAIRMAN PORTER apologized for her waiting to testify. He
explained that he reasonably tried to read the list of those
wishing to testify, and she was not on the list. He asked
if there were any others wishing to testify who were
unreasonably omitted.
Number 600
JEANNE PHIPPS, Delta Junction, supported the bill, excluding
the word "unreasonably."
Number 630
LEON CHYTHLOOK of Soldotna spoke in support of the bill,
excluding the CS.
Number 648
NEIL CAMERON, Anchorage, spoke again, this time complaining
of the lack of allowance of testimony via teleconference, in
general.
Number 675
CHAIRMAN PORTER apologized once again, explaining that the
constitution limits the amount of time the legislature can
meet, resulting in the committee meetings being allowed a
limited amount of teleconference time.
CHAIRMAN PORTER also explained that the goal of the
committee is to obtain as much public testimony as possible
in the limited time allotted, and expressed appreciation to
Mr. Cameron for his testimony this time.
CHAIRMAN PORTER concluded the hearing, scheduling resolution
of the hearing on Monday, April 18. He said it would be a
"listen only" teleconference meeting.
Number 692
CHUCK SERRA, Anchorage, spoke again, this time commending
Chairman Porter for hearing this bill and expressed hopes of
it moving out. He also commended Chairman Porter for
getting SJR 39 heard.
The House Judiciary Committee was adjourned at 4:25 p.m.
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