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.