Legislature(1993 - 1994)
02/15/1994 09:20 AM Senate FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SENATE JOINT RESOLUTION NO. 39:
Proposing an amendment 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 denied or infringed by the state or a political
subdivision of the state.
Co-chair Pearce announced that SJR 39 was before the
committee. She invited Portia Babcock, aide to Senator
Leman and Senate State Affairs Committee, sponsor of SJR 39,
to come before committee.
PORTIA BABCOCK said that SJR 39 was introduced by the Senate
State Affairs Committee to better guarantee the individual
right to keep and bear arms in the future for the state of
Alaska. In the past ten years this issue had come up and in
polls taken it was estimated that 78-90 percent of Alaskans
supported this resolution and supported the ability to vote
on changing the Constitution to better guarantee the
individual right to keep and bear arms. There was currently
no Alaska Supreme Court interpretation of the language in
Article I, Section 19. It was commonly and generally
understood that it did protect the individual right to keep
and bear arms. Hearings had been held during the interim in
the Senate State Affairs Committee where 750 people
testified and 1500 letters, poms and testimony were received
in support of this resolution. The municipality of
Anchorage and Fairbanks Northstar Borough passed resolutions
in support of the amendment for the individual right to keep
and bear arms. There were currently resolutions pending in
the Mat-su Borough as well as the Kenai Peninsula Borough.
SENATOR RIEGER asked if this amendment was to pass, how
would it effect the concealed weapons law that the state had
on the books at present. Ms. Babcock said it should not
effect that law, however, it had not been challenged under
the Alaska Supreme Court so there have no idea how the
current language would be interpreted. Senator Rieger asked
if it had been discussed in the Senate State Affairs
Committee whether the addition of this language would
prohibit the state from exercising any kind of statutory
restrictions on carrying a concealed weapon. Ms. Babcock
said it had been discussed but the impact was unknown since
the court had not interpreted the language. She said no one
knew the answer. Senator Rieger asked the intent of the
resolution. Ms. Babcock said she thought the intent was to
keep very unreasonable restrictions on regulations that were
needed for the public to insure it as a constitutional
protection, a stronger and clearer standard for the right to
keep and bear arms. The court would have to balance the
state's police power with the individual's constitutional
right to keep and bear arms.
Senator Rieger felt that it seemed that the intent was that
the courts not take the resolution literally and he was not
comfortable with that.
DEAN J. GUANELI, Chief, Legal Services Section, Criminal
Division, Department of Law, came before committee and said
that the Department of Law, Department of Public Safety, and
the Alaska Police Chief's Association opposed this
resolution in its present form. The legislature over the
years had provided Alaska citizens with the most liberal
firearms' laws in the country. Firearms could be carried
openly anywhere in the state with the exception of bars and
schools. Firearms could be carried concealed while hunting,
fishing, while in your home, and on property adjacent to
your home. He felt there really was no need to amend the
Constitution.
Mr. Guaneli heard people testify in the last hearing that
this resolution was a preventive measure. The question to
ask was what a citizen would receive with this amendment.
Was it only preventive maintenance and an attempt to fix a
problem that did not exist? He felt that was not much. The
question he would like to answer was what is the risk. He
submitted that several of Alaska's weapons laws would be
thrown into doubt and may be held unconstitutional. One law
prohibited the possession of switchblades and would be in
doubt if the amendment passed. The Oregon Supreme court
struck down a similar law based on their Constitutional
right to bear arms. There were laws that prohibit felons
from possessing firearms. Even if you were a non-violent
felon, you were prohibited from touching a handgun for ten
years or living in a household where a handgun was being
kept. The state of Colorado struck down portions of their
laws. The statutes prohibiting carrying concealed weapons
would be in doubt if this amendment should pass. Some
speakers have said that this amendment would allow people to
carry assault weapons or military-type weapons. He felt
that an amendment should not be passed if the interpretation
was not clear. In referring to Senator Leman's wish for
simple and direct language, Mr. Guaneli felt this resolution
did not give the court enough to go on for intent.
In 1972, voters passed the right to privacy. Three years
later that law said that the right to privacy meant the
state could not enforce its marijuana laws in someone's
home. That kind of interpretation could happen with this
amendment. This right to privacy had effected the search
and seizure procedures. He felt the voters had not intended
to hamper police investigations. He said that he had been
called a Nazi and ultra-liberal. He felt he was giving a
middle-of-the-road view of the potential problems at risk
with this amendment. He submitted SJR 1 was a better
approach if the legislature deemed it necessary to amend the
Constitution. SJR 1 included a second section to the
Constitution that gave the court a little guidance in how it
was to interpret this provision. It said it did not change
any law that was in effect nor the judicial standard that
had been applied to firearms laws.
SENATOR SHARP asked if federal law would prevail over state
laws. Mr. Guaneli agreed but said that the feds had, as a
practical matter, very little presence in Alaska. The U.S.
Attorney's Office was small and simply not enforcing federal
laws such as the marijuana laws.
Senator Sharp said Representative Foster might disagree with
that statement. He asked if this would allow municipalities
the ability to pass more restrictive laws. Mr. Guaneli
agreed that municipalities could pass firearms laws which
were broader than the state laws but it was unclear if the
amendment would prohibit that ability. Some supporters of
this amendment have said that they want precisely that to
happen, that municipalities would be unable to enact firearm
laws. He pointed out that problems in downtown Anchorage
might be drastically different than in a rural area, and the
local municipality should be given the opportunity to
address those local problems.
Co-chair Pearce asked if the Municipal League was in support
of SJR 39. Ms. Babcock said she did not know.
Co-chair Pearce asked Mr. Guaneli for the official position
of the administration. He said that the administration
agreed with the Department of Law and the Department of
Public Safety in that there were problems with SJR 39 and
preferred SJR 1. This position had been consistent
throughout this administration and past ones for the last
ten years.
CO-CHAIR FRANK voiced his opinion that the collective
"individual" was represented by the National Guard and that
the key word in this amendment was "individual." He
personally felt that it was important for individuals to
have the right to keep and bear arms. He did not see any
heightened protection in this amendment but a clarification
that it was an individual rather than a collective right.
He agreed that it was unknown what the courts would do. He
voiced his opinion that as we move into an area of increased
government activity regarding attempts to control crime, it
was important to keep "individual" rights.
Mr. Guaneli said that was a good point. He said that in
past years there had been suggestions for amendments. He
listed some of the proposed language. The word "reasonable"
was unacceptable to people. The courts look largely at
language used in voter pamphlets and the history behind the
legislation. He said that he fears for the few laws
aforementioned or any new laws that might be enacted.
Discussion followed between Co-chair Frank and Mr. Guaneli
regarding court opinions, possible intent and how it would
effect existing laws. Mr. Guaneli said when the
Constitution was changed, the courts said that had to mean
something. It meant that the way the Constitution was
interpreted would change, so instead of a reasonable basis
test, the legislature wanted to apply some higher standard
of scrutiny. In other words, take a harder look at these
laws. By simply inserting the word "individual", the court
may say it elevated this right. If it did not elevate it
what was the purpose of amending the Constitution. The
Court would look at this question. If it was merely a
matter of philosophy, then he recommended passing SJR 1.
Senator Sharp MOVED for passage of SJR 39 out of committee
with individual recommendations. No objection having been
raised, SJR 39 was REPORTED OUT of committee with a "do
pass" recommendation, a zero fiscal note for the Department
of Public Safety, and a fiscal note for the Office of the
Governor/Division of Elections for $2.2. Co-chairs Pearce
and Frank, Senators Kelly, Sharp and Jacko voted "do pass."
Senator Rieger voted "no recommendation."
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