Legislature(2009 - 2010)BUTROVICH 205

04/16/2009 09:00 AM Senate STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Location Change --
*+ SB 189 CONCEALED WEAPON: PARDONS/SIS TELECONFERENCED
Heard & Held
+ HB 19 ELIMINATE DAYLIGHT SAVING TIME TELECONFERENCED
Moved CSHB 19(L&C) Out of Committee
+ HB 106 VILLAGE PUBLIC SAFETY OFFICERS TELECONFERENCED
Moved CSHB 106(STA)(TITLE AM) Out
              SB 189-CONCEALED WEAPON: PARDONS/SIS                                                                          
                                                                                                                                
9:15:12 AM                                                                                                                    
CHAIR MENARD announced the consideration of SB 189.                                                                             
                                                                                                                                
9:15:31 AM                                                                                                                    
SHARON  LONG,  Staff to  Senator  Charlie  Huggins, Alaska  State                                                               
Legislature,  said  SB 189  allows  felons  who have  received  a                                                               
pardon or  a set-aside after  a suspended imposition  of sentence                                                               
(SIS) to  possess concealed firearms with  no restrictions. There                                                               
are many citizens who have faltered  in the past, paid their debt                                                               
to society, and  turned their lives around.  We acknowledge their                                                               
rehabilitation and welcome them  back. Sometimes felons only have                                                               
partially-restored  civil  rights.  Some go  through  an  arduous                                                               
clemency process and  receive a pardon. "Others,  due to youthful                                                               
indiscretions  and other  mitigating factors,  are deemed  by the                                                               
courts to be worthy of an SIS  and receive a set-aside." It is to                                                               
the  few  who  are  worthy  of  a pardon  or  SIS  to  whom  this                                                               
legislation is  directed. The intention is  for these individuals                                                               
to regain their right to bear arms.                                                                                             
                                                                                                                                
9:17:00 AM                                                                                                                    
CHAIR MENARD  surmised that the  bill will allow people  who have                                                               
received pardons and set-asides under  Alaska law to possess guns                                                               
under federal law.                                                                                                              
                                                                                                                                
MS. LONG said,  "That was the instructions to  the drafters." Mr.                                                               
Luckhaupt is here, and he  understands how federal and state laws                                                               
intertwine,  and how  they  have, in  some  places, conspired  to                                                               
prevent  people  with  pardons in  Alaska  from  regaining  their                                                               
concealed weapons rights.                                                                                                       
                                                                                                                                
JERRY LUCKHAUPT,  Attorney, Legislative Legal Services,  said the                                                               
intent is  to resolve  the U.S.  Supreme Court  case that  said a                                                               
restriction under state law prevents  a felon, who has received a                                                               
restoration of  rights, from possessing  firearms. He  spoke with                                                               
someone in  the hall and "they  now believe that this  doesn't do                                                               
that even  though this was  something they seemed to  think would                                                               
work."  Last  year  Mr.  Luckhaupt  spoke  with  ATF  [Bureau  of                                                               
Alcohol,  Tobacco, and  Firearms],  and "this  seemed to  satisfy                                                               
their concerns." "I guess that's something we'll explore."                                                                      
                                                                                                                                
9:19:41 AM                                                                                                                    
SENATOR FRENCH  said he has filed  a bill on this  general topic.                                                               
It is one  of the more mystifying and difficult  areas of the law                                                               
to work  through. He appreciates  the expertise of  Mr. Luckhaupt                                                               
and the NRA [National Rifle  Association]. It is important to get                                                               
it right the first  time. He asked if he could  get a letter from                                                               
ATF or from the relevant federal authorities for guidance.                                                                      
                                                                                                                                
9:20:58 AM                                                                                                                    
MR. LUCKHAUPT said  ATF was not willing to put  anything on paper                                                               
last  year.  It  seems  to  be a  floating  standard.  There  are                                                               
different views on  how the law will be interpreted.  It would be                                                               
worth the  effort to  contact ATF  for some  answers. "But  as of                                                               
now, we  don't have  any definitive answers;  we're just  kind of                                                               
left  trying to  interpret what  they may  do." Senator  French's                                                               
bill and this bill meet  Caron [Caron v. United States]. "Senator                                                               
Huggins's bill  restricts where they're  going to the  people who                                                               
receive pardons and  set-asides and not for the  10-year lapse of                                                               
time  felons.  And  your  bill   reaches  all  of  them."  It  is                                                               
attempting to meet Caron for all felons in Alaska.                                                                              
                                                                                                                                
SENATOR  FRENCH asked  if Mr.  Luckhaupt can  go to  the relevant                                                               
passage  in Caron  and give  it to  the committee.  Is there  one                                                               
little part that explains the legal problem?                                                                                    
                                                                                                                                
MR.  LUCKHAUPT said  Caron dealt  with a  Massachusetts law  that                                                               
permitted felons  to possess  long guns  but not  handguns. Caron                                                               
was not a  good person. He had various run-ins  with the law over                                                               
30 years. The federal government got  word that he had long guns.                                                               
Under  federal  law  he  wasn't entitled  to  possess  any  guns.                                                               
Massachusetts law did not allow felons  to ever have the right to                                                               
possess  handguns  except  on their  own  property.  The  federal                                                               
government said  that prevents him  from receiving his  rights to                                                               
generally  possess firearms.  Federal  law allows  felons to  get                                                               
their federal rights back once  the state has restored their full                                                               
and complete rights -- with  no restrictions. The way most states                                                               
do  it, including  Alaska, is  to provide  restoration rights  to                                                               
people who  receive a  pardon or  a set-aside,  "but we  also, by                                                               
lapse  of a  period  of  time, give  felons  their rights  back."                                                               
That's  what happened  in Massachusetts,  but it  was limited  to                                                               
long guns. The U.S. Supreme Court  said that because it was not a                                                               
full  and complete  restoration  of rights,  a  felon's right  to                                                               
possess   handguns  was   limited,   therefore   there  isn't   a                                                               
corresponding right under federal law.                                                                                          
                                                                                                                                
9:25:19 AM                                                                                                                    
SENATOR FRENCH  said that seems  to be the question:  "Whether or                                                               
not you've had  a full and complete restoration  of your rights."                                                               
The NRA stance  is that any restriction under state  law is going                                                               
to trigger a ban under federal law. Is that where we are?                                                                       
                                                                                                                                
MR. LUCKHAUPT said,  "I think that's where they are,  and I don't                                                               
read Caron that far." But people can differ.                                                                                    
                                                                                                                                
CHAIR MENARD  said she  wants to  work on this  next year  due to                                                               
time constraints.                                                                                                               
                                                                                                                                
9:26:40 AM                                                                                                                    
BRIAN   JUDY,  Alaska   Liaison,   National  Rifle   Association,                                                               
Anchorage, said it is the existing  policy in Alaska to provide a                                                               
restoration of  rights to  these individuals  - either  through a                                                               
pardon,  set-aside,  or  through  the lapsing  of  a  significant                                                               
amount   of  time.   The  federal   government  recognizes   that                                                               
restoration.  The   key  is  that   it  has  to  be   a  complete                                                               
restoration,  and there  have been  court cases  since the  Caron                                                               
decision and  interpretations by the  ATF and the  FBI. According                                                               
to the NRA,  if these individuals don't have the  exact rights of                                                               
other individuals, it  isn't a full and  complete restoration for                                                               
the purposes  of federal law. This  bill will go part  of the way                                                               
for  those with  pardons  and set-asides.  Although  it is  state                                                               
policy for  rights to  be restored after  a ten-year  lapse, they                                                               
would clearly  not have  their rights  restored under  this bill.                                                               
NRA  attorneys look  at it  as incomplete  because it  remains an                                                               
affirmative defense. It's presumptively  illegal for these people                                                               
to have a handgun, and they  will have to mount the defense. They                                                               
can  be   arrested,  incarcerated,   and  then  have   to  defend                                                               
themselves.  That  doesn't happen  to  other  individuals, so  it                                                               
isn't a complete restoration of  rights. NRA supports the concept                                                               
of the bill, but it doesn't go as far as intended.                                                                              
                                                                                                                                
9:29:09 AM                                                                                                                    
SENATOR  FRENCH said  it is  sticky. There  are two  prohibitions                                                               
regarding a felon's  handgun rights. "One is subsection  1 of the                                                               
statute  that   we're  amending,"  which  says   a  person  can't                                                               
knowingly  possess a  firearm  capable of  being  concealed --  a                                                               
handgun. "That would be a  handgun in your home." "The subsection                                                               
that we're amending, though, is  different from that one. It says                                                               
you can't knowingly  possess a firearm that is  concealed on your                                                               
person."  How does  fixing  the concealed  gun  statute cure  the                                                               
problem if there is a parallel, broader statute?                                                                                
                                                                                                                                
MR. JUDY said  that is a good question. NRA  believes that is the                                                               
problem.  Addressing  the  affirmative  defense  for  carrying  a                                                               
concealed gun  goes part of the  way. Not only does  that need to                                                               
be  addressed,  but "you  also  need  to change  the  affirmative                                                               
defense to  and exception for the  carrying concealed prohibition                                                               
and for  that separate mere  possession of a handgun."  There are                                                               
two  separate offences  and  two  sections providing  affirmative                                                               
defenses. The affirmative  defense for the concealed  gun is more                                                               
extensive,  but unless  the  conditions are  narrowed  and it  is                                                               
changed  from  an affirmative  defense,  it  is  not a  full  and                                                               
complete restoration.                                                                                                           
                                                                                                                                
9:31:39 AM                                                                                                                    
CHAIR MENARD said she wants to take the time to get it right.                                                                   
                                                                                                                                
CARL THOMAS,  representing himself, said  he supports SB  189. He                                                               
was convicted  of a nonviolent  felony. His rights  were restored                                                               
in every  way except when he  attempted to buy a  new firearm. He                                                               
was denied  by [indecipherable] after voluntary  appeals to them.                                                               
The reason  he was  denied the  right to buy  a firearm  was case                                                               
law: Caron  v. United States.  Alaska state law restricts  what a                                                               
felon  can  possess,   so  he  is  considered   to  be  federally                                                               
prohibited.  Since  his  case  was   set  aside  and  all  rights                                                               
restored,  he should  be  able  to purchase  firearms.  It is  an                                                               
infringement of his rights.                                                                                                     
                                                                                                                                
CHAIR MENARD held over SB 189.                                                                                                  
                                                                                                                                

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