Legislature(1993 - 1994)
02/04/1994 01:42 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
VICE-CHAIRMAN HALFORD introduced SJR 39 (RIGHT TO KEEP AND BEAR ARMS) as the final order of business before the committee. SENATOR LEMAN, prime sponsor, noted that he had hearings on SJR 39 around the state. He stated that the consensus of his hearings was that any change to the constitution should be clear and as simple as possible. He noted that SJR 39 does not prevent municipalities from having restrictive ordinances. DEAN GUANELI, Chief Assistant Attorney General in the Criminal Division of the Department of Law, stated that the Department of Law, the Department of Public Safety and the Alaska Association of Chiefs of Police are in opposition to SJR 39. He expressed their belief that there was no need to amend the Alaska constitution, but if amended it should not risk state firearms laws or the ability of municipalities to enact firearms regulations. Mr. Guaneli pointed out that according to reports from the Alcohol, Tobacco and Firearms Bureau, Alaska has one of the most liberal firearms laws in the country. Guns can be openly carried anywhere in Alaska and concealed while in your own home, on land adjacent to your home, and while involved in legitimate outdoor activities. He said that by amending the constitution in a non explicit manner, the power to determine the validity of the firearms laws would be shifted from the legislature to the courts. The courts would have to interpret the new language by interpreting the legislative history. Mr. Guaneli discussed the surprising results of the Raven Case. The Alaska Supreme Court used The Right to Privacy to prohibit the legislature from criminalizing marijuana possession by adult's in their home. He explained the U.S. Supreme Court's two tier analysis when determining the constitutionality of a law. The strict scrutiny analysis which must show a compelling overriding state interest to prohibit an activity was applied in the Raven Case. He suggested the same type of analysis and decision would be used with SJR 39. He explained the correlation in Alaska to the Oregon case regarding switch blade possession. Mr. Guaneli questioned the ability to prove a strict scrutiny analysis of Alaska state laws relating to felons in possession of firearms, in some cases non-violent felons. Under Alaska state law a convicted felon cannot even live in a house if a family member has a gun. He reviewed the 1977 Colorado Supreme Court analysis of their right to bear arms. He asserted that many individuals believed that many of Alaska's laws would be in jeopardy if SJR 39 passes. Number 407 VICE-CHAIRMAN HALFORD asked for the definition of assault weapons. DEAN GUANELI explained that they are military type weapons which the federal government was thinking about banning. Mr. Guaneli noted that such definitions were for the legislature to decide. VICE-CHAIRMAN HALFORD asked if any assault weapons were currently prohibited. MR. GUANELI said that Alaska statutes contain weapons prohibited by federal statutes. DEAN GUANELI discussed a 1983 opinion. He asked if private landlords could prohibit tenants from possessing weapons on rented property under SJR 39. He believed that such kinds of questions would arise if the courts are not told how to interpret the amendments. He also raised the issue of municipal ordinances. SENATOR DONLEY asked if Mr. Guaneli believed that municipalities should have the ability to prohibit handguns. DEAN GUANELI said that, in his opinion, municipalities should have the authority to adopt reasonable firearms regulations to address local concerns. Mr. Guaneli could not state a reasonable regulation. VICE-CHAIRMAN HALFORD questioned the current ordinance in Anchorage dealing with the sale of used guns which is not enforced today due to the resistance in the constitutionality question. Number 352 DEAN GUANELI asked what was wrong with localities having the power to address local problems; this is similar to current local option laws. He discussed a conversation with a proponent of SJR 39. SJR 39 cannot stop the federal government from enacting firearms laws. Mr. Guaneli detailed the history of the compromise he and Senator Donley had proposed which recognized the individual right to bear arms and at the same time does not change how the courts analyze firearms laws. He said that compromise is embodied in SJR 1. He expressed the desire not to adopt a strict scrutiny analysis. The Chiefs Association and Department of Public Safety support SJR 1. VICE-CHAIRMAN HALFORD asked if the current constitutional language applies to an individual right or some sort of collective right that can be satisfied by a state militia, a national guard, or something else. DEAN GUANELI said that the Department of Law believes that the constitutional language applies to both the individual and the militia. Mr. Guaneli explained that the Alaska Supreme Court analysis reviews the historical view of arms and there usage, which he believed would uncover a label of the individual right to bear arms. He stated that when labeling the question remains regarding the ultimate consequence of the label. VICE-CHAIRMAN HALFORD questioned why Mr. Guaneli is worried about changes to standards for reasonable exclusions, when he also believes that the existing language protects the individual right to keep and bear arms. The proposed language does no more than that. DEAN GUANELI pointed to legislative history surrounding this proposal which until now has rejected proposed amendments similar to this. Number 240 VICE-CHAIRMAN HALFORD asked if Mr. Guaneli's proposed qualifying language would ratify or protect Anchorage's ordinance regulating transactions of used firearms. He noted that the ordinance was originally designed to track stolen firearms. DEAN GUANELI said that kind of law probably would not be considered reasonable in today's world of computers. VICE-CHAIRMAN HALFORD was concerned about ratifying laws of 200 municipal entities having no common lexicon or ratifying laws that you do not know about. SENATOR DONLEY stated that SJR 1 applies only to laws in existence before the specified date, those would be considered under the existing standard. He clarified that existing laws would be measured under existing constitutional criteria, so if current laws are unconstitutional they would still be unconstitutional. The standard of today would be used. VICE-CHAIRMAN HALFORD expressed concern that the courts decision may be six years later because those who have a standard considered unreasonable do not enforce it for they know they will lose it. The issue would be avoided because of the lack of enforcement. DEAN GUANELI explained his belief that current laws should be able to withstand a court test of current standards not future standards. SENATOR LEMAN emphasized that the legislative history of SJR 39 makes clear that appropriate restrictions would continue to be so. He stated that the intent to have a clean constitutional amendment does no more than clarify what everyone already thinks the constitution means. He said that Mr. Guaneli's fear of a clean constitutional amendment was not founded in fact. He suggested that he and Mr. Guaneli agreed on the result but not the vehicle which would achieve that result. Number 121 SENATOR LITTLE asked Mr. Guaneli if passage of this resolution and institution of this amendment to the constitution would not allow a school district to prohibit guns from the school grounds. DEAN GUANELI stated that he did not believe that would be the case. Mr. Guaneli explained that particularly in the light of modern day events, the court would find an overriding compelling state interest. Mr. Guaneli stated that at some point the problem of reasonableness arises when municipalities want to extend the zone of protection. He supported having clear lines drawn by the legislature or the municipality not by the courts. VICE-CHAIRMAN HALFORD questioned Mr. Guaneli on the reasonableness of a municipality to prohibit the possession of a firearm in a persons own home if they live within a specified zone of protection of a school. DEAN GUANELI clarified that he did not say in their own home. SENATOR LITTLE asked if the adoption of SJR 1 would alleviate Mr. Guaneli's concerns. DEAN GUANELI agreed with Senator Little and he had other versions of language to accomplish the same thing. VICE- CHAIRMAN HALFORD requested a packet of all of Mr. Guaneli's information. DEAN GUANELI said that there are a number of additional clauses that contain safer language. SENATOR DONLEY expressed his belief that the proper standard for firearms laws is a strict scrutiny review. The legislature should be able to regulate arms when there is a compelling public safety interest. He asserted that the compelling public safety interest should be the test regarding whether laws are upheld or not; with firearms very few safety requirements are not reasonable. JOHN GEORGE, representing the Alaska Outdoor Council, stated support of SJR 39. He agreed with Senator Donley on the issue of the strict scrutiny review being the standard for review. TAPE 94-6, SIDE A Number 010 MIKE CHRYST supported the comments made by John George. He supported SJR 39. SALLY CHRYST supported SJR 39. DAVID MCGRAW thanked Senator Leman for his on-going efforts to protect his right to own guns. SCOTT CORYELL supported SJR 39. LES ZETTERBERG supported SJR 39. LYLE STACK supported SJR 39. He added that we focus more on the criminals and keep them in jail. WESLEY JONES supported SJR 39. SCOTT HAMANN said he would support what Michael Neligh would say. Number 118 MICHAEL NELIGH asked if they might consider inserting on line 10, "the right of the adult individual". GREG MACHACEK said it is in the overriding state's interest to support this bill. He said we are loosing more and more of our rights every day and SJR 39 is a step in the right direction. Number 159 RUDY VETTER supported SJR 39. DAVID MILLER said he was a police officer. He said the Chiefs of Police (who are for gun control) do not speak for the line officers. The majority of officers he works with support SJR 39. DWAYNE UPPLAND said he had talked to some of the Chiefs in Alaska and they didn't support the Brady Bill so he thought that was an unfair comment. He said he was very concerned that the language in SJR 39 is ambiguous. Number 200 CHARLES MCKEE supported SJR 39. He added that the right to keep and bear arms is a cornerstone of the right to free speech. PORTIA BABCOCK, Legislative Aide to the Senate State Affairs Committee, said the Municipality of Anchorage passed a resolution endorsing this resolution. Fairbanks, also, endorsed it; and Mat- Su would probably pass one. Number 250 SENATOR DONLEY commented that Dean Guaneli had done a very good job of representing the Department of Law, Department of Public Safety, and other law enforcement groups. VICE-CHAIRMAN HALFORD agreed with Senator Donley. SENATOR DONLEY said he supported the language in SJR 39. He said he would like to bring a letter of intent to the Committee clarifying the issue of the difference between a compelling state interest and a reasonable state interest, because the higher standard is what's appropriate. Number 290 SENATOR JACKO called for the question on his motion to pass SJR 39 from committee with a "do pass" recommendation. There were no objections, and it was so ordered.
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