Legislature(1993 - 1994)

02/15/1994 09:20 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  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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