NOTICE: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested
to bring typographical or other formal errors to the attention
of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, in order that corrections may be
made prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
DON L. GIBSON, )
)
Appellant,) Court of Appeals No. A-6082
) Trial Court No. 4FA-S95-3001CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
)
JERRY E. NEWCOMB, )
)
Appellant,) Court of Appeals No. A-6162
) Trial Court No. 4NE-S95-40CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1513 - January 17, 1997]
)
Appeals from the District Court, Fourth Judicial District,
Fairbanks, Charles R. Pengilly and Mark I. Wood, Judges.
Appearances: James H. Cannon, Assistant Public
Defender, Fairbanks, and John B. Salemi, Public Defender,
Anchorage, for Appellant Gibson. Bethany P. Spalding,
Assistant Public Defender, Fairbanks, and John B. Salemi,
Public Defender, Anchorage, for Appellant Newcomb.
Marlin D. Smith, Assistant District Attorney, Harry L. Davis,
District Attorney, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee, Case No. A-6082.
Kenneth M. Rosenstein, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for Appellee, Case
No. A-6162.
Before: Bryner, Chief Judge, Coats and Mannheimer,
Judges.
COATS, Judge.
Don L. Gibson and Jerry E. Newcomb each pleaded no contest to the
charge of misconduct involving weapons in the fourth degree, possessing a firearm
on the person while impaired by intoxicating liquor. Each defendant preserved the
right to argue on appeal that the misconduct involving weapons statute was
unconstitutional when applied to people in their own homes or on their own property.
Newcomb was arrested after State Trooper Tellep went to Newcomb's
home in response to a report that Newcomb was intoxicated and firing a weapon.
Tellep knocked on Newcomb's door and when Newcomb opened the door Tellep saw
Newcomb in an intoxicated condition and in physical possession of a handgun.
The troopers were called to Gibson's residence by a tow-truck operator
who was alarmed to encounter Gibson armed with an AK-47 semi-automatic rifle
when he came onto the property to tow a taxi cab that had become stuck in the
snow. The troopers found Gibson intoxicated and holding the AK-47.
Newcomb and Gibson were convicted of violating AS 11.61.210(a)(1),
which provides in relevant part:
(a) A person commits the crime of misconduct involving
weapons in the fourth degree if the person
(1) possesses on the person . . . a firearm when the
person's physical or mental condition is impaired as a result
of the introduction of an intoxicating liquor or a controlled
substance into the person's body[.]
The appellants argue that application of this statute to persons who
possess firearms while intoxicated in their homes or on their residential property is
unconstitutional. Citing their rights under the Alaska Constitution to privacy and to
keep and bear arms, the appellants assert that possession of firearms in the home is
protected conduct, immune from regulation by the state.
In 1994 the people of Alaska amended Article I, Section 19 of the Alaska
Constitution. That section now provides:
A well-regulated militia being necessary to the security of
a free state, the right of the people to keep and bear arms
shall not be infringed. The individual right to keep and bear
arms shall not be denied or infringed by the State or a
political subdivision of the State.
The 1994 amendment added the second sentence. Although Article I, Section 19
declares that the government shall not deny or infringe "[t]he individual right to keep and
bear arms," the provision does not define the scope of this protected right. To determine
the scope of the individual right protected in Article I, Section 19, we must consider the
history of the provision and, specifically, what the history reveals of the drafters' intent.
Cook v. Botelho, 921 P.2d 1126, 1128-29, 1132-33 (Alaska 1996).
Based upon the legislative history of Article I, Section 19, we conclude that
this provision was not intended to eliminate government regulation of people's possession
and use of firearms. Rather, the government retains the authority to enact and enforce
laws prohibiting people from possessing firearms when there is a significant risk that they
will use those firearms in a criminal or dangerous fashion.
As originally adopted, Article I, Section 19 consisted of only one sentence,
what is now the first sentence of the section. The second sentence of Article I, Section
19 was proposed by the legislature in 1994. See Leg. Res. 45, 18th Alaska Leg., 2d
Sess. (1994). In conformity with Article XIII, Section 1 of the state constitution, the
legislature's proposed amendment was placed before the voters at the next general
election, as Ballot Measure No. 1. (The measure passed and the new version of Article
I, Section 19 went into effect on December 30, 1994.)
Legislative Resolve No. 45 was initially introduced as Senate Proposed Joint
Resolution No. 39. At House and Senate hearings, the sponsors and supporters of this
legislation stated and testified that the bill was not intended to abrogate the current
statutes regulating firearms. See, e.g., Hearing on SJR 39 Before the Senate Comm. on
State Affairs, 18th Alaska Leg., 2d Sess., Tape 94-2 Side B No. 273 (January 21, 1994)
(statement of Portia Babcock, Committee aide); Hearing on SJR 39 Before the Senate
Comm. on the Judiciary, 18th Alaska Leg., 2d Sess., Tape 94-6 Side B No. 240
(February 4, 1994) (statement of Senator Loren Leman, Chairman, State Affairs
Committee; prime sponsor); Hearing on SJR 39 Before the House Comm. on the
Judiciary, 18th Alaska Leg., 2d Sess., Tape 94-60 Side A No. 287 (April 16, 1994)
(statement of Portia Babcock, Senate State Affairs Committee aide).
Perhaps more important to determining the intent of the voters who
approved the constitutional amendment is the statement in support of Ballot Measure No.
1 that appeared in the Division of Elections' 1994 official election pamphlet. This
statement, which was prepared by advocates of the proposed amendment (see AS 15.58.-
020(6)(D)), assured voters that a "yes" vote
[would] NOT overturn or invalidate state laws restricting
access or possession of arms by convicted felons, mental
incompetents, illegal aliens, those under the influence of
drugs or alcohol, juveniles, or in school buldings. These
laws are well-established and have been consistently upheld
in Courts across the nation, even when considered under the
toughest legal standard and under constitutional language
more stringent than is proposed by Ballot Measure #1.
(Capitalized emphasis in the original; italicized emphasis added.) Because the advocates
of the proposed amendment presented it to the voters in this fashion, and because the
history of the proposed amendment contains no indications of a contrary intent, we
conclude that the people who voted in favor of the amendment did not intend to
invalidate Alaska's laws regulating the possession of firearms by intoxicated persons.
See State v. Brown, 571 A.2d 816, 818 (Me. 1990).
The appellants argue that the individual right to bear arms and the previously
adopted state constitutional right to privacy (EN1) combine to create special constitutional
protection for possession of firearms in the home. They point to the Alaska Supreme Court's
recognition of "the distinctive nature of the home as a place where the individual's privacy
receives special protection." Ravin v. State, 537 P.2d 494, 503 (Alaska 1975). Still, the
appellants concede that neither the individual right to bear arms nor the right to privacy in the
home is absolute. Even fundamental rights such as privacy in the home may be restricted if the
restriction bears a close and substantial relationship to a legitimate governmental interest. Ravin,
537 P.2d at 498, 511.
Paramount among the legitimate governmental interests meriting infringements
on individual rights is the state's need to protect the health and welfare of its citizens. See State
v. Erickson, 574 P.2d 1, 21-22 (Alaska 1978); Ravin, 537 P.2d at 501, 504. The right to
privacy in the home "must yield when it interferes in a serious manner with the health, safety,
rights and privileges of others or with the public welfare. No one has an absolute right to do
things in the privacy of his own home which will affect himself or others adversely." Ravin,
537 P.2d at 504.
The potential for harm to health and safety resulting from the possession and use
of firearms by intoxicated persons in their homes is well documented in the case law of this
state. See, e.g., State v. Johnson, 720 P.2d 37 (Alaska 1986) (intoxicated man fires a shot from
inside his house, killing his sister who was outside the front door); Norris v. State, 857 P.2d
349 (Alaska App. 1993) (man shoots and kills live-in girlfriend during a fight in the home while
both are intoxicated); Odom v. State, 798 P.2d 353 (Alaska App. 1990) (after a night of
drinking and using cocaine, man shoots and kills houseguest); Abruska v. State, 705 P.2d 1261
(Alaska App. 1985) (man drinking at home shoots and kills drinking companion after an
argument). People who handle firearms while intoxicated, even in their own homes, pose a
significant threat to the health and safety of their family members, their neighbors and
themselves.
Alaska's statute prohibiting the possession of firearms while intoxicated bears a
close and substantial relationship to the state's legitimate interest in protecting the health and
safety of its citizens. Whatever constitutional problems this statute might pose as applied to
instances of contructive possession, it poses no constitutional problem as applied to the
defendants in the present cases, who were in actual physical possession of firearms while
intoxicated.
The judgments against Gibson and Newcomb are AFFIRMED.
ENDNOTES:
1. Alaska Const. Art. I, sec. 22.
