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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ALLEN WILSON, | ) |
| ) Court of Appeals No. A-9786 | |
| Appellant, | ) Trial Court No. 3AN-03-7137 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2217 May 22, 2009 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellant. Diane L.
Wendlandt, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer,
Judge, and Stewart, Senior Court of Appeals
Judge.*
COATS, Chief Judge.
STEWART, Senior Judge, concurring.
MANNHEIMER, Judge, dissenting.
Introduction
Anchorage Police Officer Derek Sitz made a routine
traffic stop of a car driven by Allen Wilson near the
intersection of 36th Avenue and C Street in Anchorage. During
the traffic stop, Sitz discovered that Wilson was in possession
of a loaded .45 revolver and that Wilson had previously been
convicted of a felony. Sitz arrested Wilson for being a
convicted felon in possession of a concealable firearm.1
After the State indicted Wilson, he moved to dismiss
the indictment on the ground that the statute that prohibited him
from possessing a concealable firearm violated article I, section
19 of the Alaska Constitution, which protects [t]he individual
right to keep and bear arms. Superior Court Judge Michael L.
Wolverton denied Wilsons motion to dismiss the indictment.
Following his conviction, Wilson appealed Judge Wolvertons denial
of his motion to dismiss. We affirm.
Why we conclude that AS 11.61.200(a)(1) does not
violate article I, section 19 of the Alaska
Constitution
The thrust of Wilsons argument is that the statute
prohibiting a felon from possessing a concealable firearm
violates article I, section 19 of the Alaska Constitution because
it does not differentiate between violent and non-violent felons,
and thus is not narrowly tailored to achieve the States
compelling interest in preventing violent crime. Wilson argues
that article I, section 19 guarantees an individuals right to
keep and bear arms, and therefore any law that restricts that
right must be narrowly tailored to protect a compelling
government interest.
Wilson points out that he was convicted of a non-
violent, class C felony theft in the second degree for
fraudulently obtaining unemployment benefits. He states that he
is a sixty-seven-year-old man who lives in a cabin on a
homestead, lives a subsistence lifestyle, and needs a handgun for
personal protection. He argues that the State cannot justify
restricting his constitutional right to possess a concealable
firearm.
Courts including this court have consistently
rejected arguments similar to Wilsons. For example, the United
States Supreme Court recently decided District of Columbia v.
Heller2 under the Second Amendment to the United States
Constitution, which 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.3 At issue
was a District of Columbia law that prohibited a person from
carrying an unlicensed handgun.4 The law authorized the chief of
police to issue one-year licenses and required residents to keep
any lawfully owned firearms ... unloaded and dissembled or bound
by a trigger lock or similar device. 5 Heller, a D.C. special
police officer, applied to register a handgun he wished to keep
at his home. When the District refused his application, Heller
filed for an injunction.6
The Court held that the Second Amendment protects an
individuals right to possess a firearm.7 Under any of the
standards of scrutiny that [the Court has] applied to enumerated
constitutional rights, the Court held, the Districts total ban on
the possession of handguns in the home and the requirement that
any lawfully possessed firearms in the home be dissembled or
bound by a trigger lock was unconstitutional because it made it
impossible for a citizen to use the firearm for the core lawful
purpose of self-defense.8
The Court made it clear, however, that the right to
keep and bear arms, like other rights, is not unlimited.9 The
Court specifically stated that nothing in our opinion should be
taken to cast doubt on long-standing prohibitions on the
possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.10 Furthermore,
the majority opinion seems to indicate that if Heller were a
convicted felon, the District could refuse to allow him to
register his handgun and possess it in his home. The majority
states, [a]ssuming that Heller is not disqualified from the
exercise of Second Amendment rights, the District must permit him
to register his handgun and must issue him a license to carry it
in the home.11 Therefore, Heller provides little support for
Wilsons argument.
It is important to note that Heller was decided under
the Second Amendment to the United States Constitution. It is
unclear whether the Second Amendment applies to the states. In
1894, the United States Supreme Court held that the Second
Amendment applies only to the federal government and not to the
states.12 But just recently, a panel of the Ninth Circuit Court
of Appeals concluded that the Heller decision now mandates the
opposite result.13 In Nordyke v. King,14 the Ninth Circuit held
(based on Heller) that the Second Amendment protects a
fundamental liberty interest and therefore the Due Process Clause
of the Fourteenth Amendment incorporates the Second Amendment and
applies it against the states.15
We need not address this issue further because, as we
have already noted, the Supreme Court declared in Heller that
nothing in [its] opinion should be taken to cast doubt on the
laws prohibiting felons from possessing firearms.
However, the Alaska Constitution also expressly
protects an individuals right to keep and bear arms. Article I,
section 19 of the Alaska Constitution 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.
We discussed this provision of the Alaska Constitution
in Gibson v. State.16 In that case, the defendants argued that
the statute prohibiting possession of firearms while intoxicated
was unconstitutional under article I, section 19 of the Alaska
Constitution when applied to a person who is on his own property
or in his own home.17 In that decision, we analyzed the 1994
amendment to article I, section 19 of the Alaska Constitution,
which added the language: The individual right to keep and bear
arms shall not be denied or infringed by the State or a political
subdivision of the State.18
In analyzing the intent of the voters who approved this
constitutional amendment, we looked to the statement in support
of the ballot measure that appeared in the Division of Electionss
1994 official election pamphlet.19 We relied on the statement,
which was prepared by the advocates of the proposed amendment,
that assured voters that the amendment [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
buildings.20 The pamphlet further stated, 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 [this amendment].21 Relying on this language and the
history of the proposed amendment, we concluded that the people
who voted in favor of the amendment did not intend to invalidate
Alaskas laws regulating the possession of firearms by intoxicated
persons.22
We then considered whether the statute violated Alaskas
constitutional right to privacy under article I, section 22 of
the Alaska Constitution, and we ultimately concluded that the
Alaska statute prohibiting the possession of a firearm while
intoxicated bore a close and substantial relationship to the
states legitimate interest in protecting the health and safety of
its citizens, and was therefore constitutional.23
Two years later, in DeMars v. State,24 an unpublished
decision, this court held that article I, section 19 of the
Alaska Constitution did not invalidate DeMarss conviction for
being a felon in possession of a concealable firearm.25 DeMars
had been convicted of a felony in 1987 for leaving the scene of
an accident and had been unconditionally released.26 Relying on
Gibson, we stated that article I, section 19 did not limit the
States authority to regulate firearms when there is a significant
risk that firearms will be used in a criminal or dangerous
fashion.27 We then concluded: Because the legislature has the
authority to regulate the possession of firearms by convicted
felons, and because article I, section 19 does not restrict that
authority, DeMars cannot rely on that provision to claim the
statute violates article I, section 19.28 DeMars also argued
that the felon in possession statute violated equal protection
because the statute did not distinguish between violent and non-
violent felons.29 We rejected that challenge as well.30
Therefore, under our prior cases, we have rejected the
constitutional challenge that Wilson now brings. Furthermore,
other states have consistently rejected similar constitutional
challenges.31 We accordingly conclude that Judge Wolverton did
not err in denying Wilsons motion to dismiss.
The judgment of the superior court is AFFIRMED.
STEWART, Senior Court of Appeals Judge, concurring.
I concur with Chief Judge Coatss lead opinion. I
provide additional comment in light of Judge Mannheimers dissent.
An appellate court must apply its own independent
judgment when deciding questions of constitutional law1 and adopt
the rule of law that is most persuasive in light of precedent,
reason, and policy.2 The Alaska Supreme Court provided the
following guidance for interpreting a constitutional provision:
Constitutional provisions should be given a reasonable and
practical interpretation in accordance with common sense. The
court should look to the plain meaning and purpose of the
provision and the intent of the framers.3
But in this case, because we are interpreting a
constitutional provision that necessarily was approved by the
voters, our foremost concern should be discerning the likely
meaning placed on the provision by those voters.4 In Gibson v.
State,5 this court concluded that the official statement in
support of the ballot measure enacting the amendment to Article
I, Section 19 of the Alaska Constitution was more important to
discerning the intent of the voters than the legislative history
of the Legislative Resolve that was presented to the voters; and
this was despite the substantial amount of legislative history
that would have supported a conclusion that the voters did not
intend to limit the longstanding public safety regulation of
firearms possession by intoxicated persons.6
Judge Mannheimer concludes that this courts decision in
Gibson is in doubt because members of the legislature and some
witnesses promoted a strict scrutiny standard of review. But
there is no indication that the voters who approved the amendment
to the constitution were privy to the proceedings before the
legislature, or if they were, that they would understand the
significance of adopting that standard of review. And even if
the voters were apprised of the legislative proceedings, there is
support in that record for the voters to reach the same
conclusion this court reached in Gibson.
Most importantly, in the voters pamphlet explaining the
question on the ballot, the advocates of the ballot measure
flatly stated that the amendment would NOT overturn or invalidate
state laws restricting access or possession of arms by convicted
felons... .7 Therefore, I conclude that a reasonable and
practical interpretation of the amendment to Article I, Section
19 in light of common sense is that the voters never intended to
undermine state laws restricting the possession of firearms by
convicted felons.
Furthermore, it has been more than a decade since
Gibson was decided, and almost a decade since this court decided
Demars v. State,8 a case in which this court relied on Gibson to
reject the claim that Article I, Section 19 invalidated the felon-
in-possession statute presently before us.9 If the analysis in
these two cases was flawed, the legislature could have undertaken
action to correct that flaw. That is, if the legislature
concludes that the felon-in-possession statute is
unconstitutional, the legislature may act to repeal that statute.
Finally, even if this issue was debatable at the time
we decided Gibson, I conclude that stare decisis now compels us
to uphold that decision. Stare decisis is a practical and
flexible doctrine that balances the States competing interests in
the stability of legal norms and the need to adapt those norms to
societys changing demands.10 When balancing these interests, a
court should overrule a prior decision only when clearly
convinced [that] the rule was originally erroneous or is no
longer sound because of changed conditions, and that more good
than harm would result from a departure from precedent... .11 As
discussed above, I am not convinced that Gibson was erroneously
decided. Moreover, I am not convinced that Gibson is unsound
because of any changed conditions. Nor do I see that more good
than harm would result from our repudiation of Gibson.
Accordingly, I join Chief Judge Coats in affirming Wilsons
conviction.
MANNHEIMER, Judge, dissenting.
In 1994, the voters of Alaska amended Article I,
Section 19 of our state constitution to explicitly guarantee an
individuals right to keep and bear arms. This amendment
declares: The individual right to keep and bear arms shall not
be denied or infringed by the State or a political subdivision of
the State.
Despite this constitutional bar on the denial or
infringement of an individuals right to keep and bear arms, there
are several Alaska statutes that restrict the possession or use
of firearms. One of these statutes, AS 11.61.200(a)(1),
prohibits all convicted felons from possessing concealable
firearms.
The question presented in this appeal is whether this
statute contravenes the right to keep and bear arms guaranteed by
Article I, Section 19 to the extent that the statute bans the
possession of concealable firearms by people who have been
convicted of non-dangerous felonies.
(The defendant in this case, Allen Wilson, was
convicted of second-degree theft for fraudulently obtaining
unemployment benefits.)
This is not the first time that this Court has
considered the 1994 amendment to Article I, Section 19. In
Gibson v. State, 930 P.2d 1300 (Alaska App. 1997), this Court
concluded that, despite the broad language of the 1994 amendment
that is, despite its apparently sweeping prohibition on
legislative regulation of firearms the 1994 amendment was not
intended to bar the legislature from enacting reasonable
restrictions on the possession or use of firearms.1 This Court
also concluded that the 1994 amendment implicitly confirmed the
continued constitutionality of most, if not all, of Alaskas then-
existing firearms laws.2
If the conclusion we reached in Gibson is correct that
is, if the 1994 amendment to Article I, Section 19 was intended
to allow the legislature to continue to enact reasonable
regulations pertaining to the possession and use of firearms, and
if the 1994 amendment was intended to affirm the
constitutionality of Alaskas then-existing firearms laws then it
is obvious that Wilson should lose this appeal. Courts from
around the country have overwhelmingly concluded that it is
reasonable to restrict felons possession of firearms, even if the
underlying felony conviction was for a non-violent crime. And
the felon-in-possession statute that Wilson challenges was
enacted years before the 1994 amendment was approved.
But in Wilsons brief to this Court, he repeatedly
asserts that our discussion of the 1994 amendment in Gibson does
not accurately describe the legislative record. Prompted by
these assertions in Wilsons brief (and by the States curiously
ambiguous response to Wilsons assertions), I decided that I
needed to personally examine the historical materials that Gibson
relied on: the legislative debates concerning the 1994
amendment, and the 1994 election pamphlet which presented the
proposed amendment to the voters of Alaska.
Based on my review of these materials, I have concluded
that the decision we reached in Gibson is wrong because that
decision rests on two mistaken premises.
The first flaw in Gibson is that it completely
mischaracterizes the legislative debates concerning the 1994
amendment.
Gibson asserts that, even though the 1994 amendment
declares that [t]he individual right to keep and bear arms shall
not be denied or infringed by the State, the drafters of this
amendment did not intend to bar the legislature from enacting
reasonable laws regulating the possession and use of firearms.
This assertion is simply false.
The legislative history of the 1994 amendment
unequivocally reveals that the drafters and supporters of this
amendment intended to prohibit the legislature from enacting
firearms laws that were merely reasonable. The proponents of the
amendment repeatedly declared that they wanted to set the
constitutional bar higher: they wanted to prohibit the
legislature from enacting any firearms law that was not supported
by, and narrowly tailored to, a compelling state interest.
Not only did the drafters and supporters of the 1994
amendment consistently affirm their desire to impose a strict
scrutiny / compelling state interest test for firearms laws, but
these legislators repeatedly rejected efforts to change the
wording of the amendment in ways that would have guaranteed the
legislatures authority to enact reasonable firearms laws, or that
would have guaranteed the constitutionality of Alaskas then-
existing firearms laws.
The legislators and executive branch officials who
proposed these changes that is, the opponents of the 1994
amendment agreed with the amendments supporters that the
amendment, as written, would require strict scrutiny of firearms
laws. It was this shared understanding of the legal substance of
the 1994 amendment that engendered the lengthy legislative
debates concerning the wisdom of the proposed amendment and,
more particularly, the amendments likely effect on Alaskas
existing firearms laws.
The opponents of the amendment feared that, under
strict scrutiny, many of Alaskas existing firearms laws would be
declared unconstitutional in whole or in part. For this reason,
they repeatedly proposed supplemental language that would have
re-affirmed the legislatures authority to enact reasonable
firearms regulations, or that would have re-affirmed the pre-
existing sliding scale test for the constitutionality of firearms
laws. The opponents of the amendment also proposed supplemental
language that would have expressly affirmed the constitutionality
of Alaskas existing firearms laws. All of these attempts were
repeatedly (and soundly) defeated by the pro-amendment majority.
In other words, the legislative debates and votes
surrounding the 1994 amendment clearly demonstrate that the
sponsors and supporters of this amendment wished to change a
fundamental aspect of Alaskas firearms law altering the level of
constitutional scrutiny that would apply to statutes and
ordinances regulating the possession or use of firearms. The
proponents of the 1994 amendment repeatedly declared that they
wanted the Alaska courts to stop using the sliding scale test for
evaluating the constitutionality of firearms laws (the test this
Court used in Gibson), and to start using a strict scrutiny or
compelling state interest test.
Thus, this Court was wrong when we declared in Gibson
that the [legislative] history of the [1994] amendment contains
no indications that anyone thought that the amendment would cast
constitutional doubt on Alaskas existing firearms laws, or that
the amendment would bar the legislature from enacting reasonable
firearms laws. Gibson, 930 P.2d at 1302.
The second flaw in Gibson is that this Court relied on
statements in the 1994 election pamphlet as a legal basis for
interpreting the proposed amendment in a manner that departed
from the intentions of the amendments legislative drafters and
supporters.
Under Article XIII, Section 1 of the Alaska
Constitution, the voters have no power to propose constitutional
amendments. Rather, constitutional amendments must be proposed
by the legislature. If a proposed amendment is approved by a two-
thirds majority of both houses of the legislature, it is then
submitted to the voters for ratification.
In the case of the 1994 amendment to Article I, Section
19, both the legislative supporters and the legislative opponents
of the amendment agreed that, if the measure was enacted, all
firearms laws (both existing and future) would have to survive a
compelling state interest or strict scrutiny analysis. But in
Gibson, this Court relied on the contents of a statement in the
1994 election pamphlet the statement submitted by supporters of
the amendment as the basis for interpreting the amendment to
allow the legislature to engage in reasonable regulation of
firearms.
In their election pamphlet statement, the supporters of
the 1994 amendment tried to assure voters that the amendment
would have no effect on most of Alaskas firearms laws. But this
was simply a prediction that Alaskas existing firearms laws would
survive the strict scrutiny analysis required by the 1994
amendment. It was not a repudiation of the legislatures intent
to require strict scrutiny.
Moreover, even if the authors of the election pamphlet
statement had thought (erroneously) that the 1994 amendment did
not impose a strict scrutiny / compelling state interest test,
and that the legislature would continue to have the authority to
enact reasonable firearms laws, this mistaken view of the
amendment could not, as a legal matter, alter the meaning of the
amendment as proposed by the legislature. Under Alaska law, it
is the legislature that proposes amendments to our constitution,
and the voters simply have the power to approve or reject these
proposed amendments.
In other words, it was wrong (as a legal matter) for
this Court in Gibson to rely on the predictions contained in the
election pamphlet statement as a justification for interpreting
the 1994 amendment to allow the legislature to enact reasonable
firearms laws. Rather, it was and is our duty to apply the
compelling state interest test to firearms laws, as the drafters
of the 1994 amendment intended.
For these reasons, I conclude that Gibson was wrongly
decided. Contrary to what we said in Gibson, when a law
restricting the possession of firearms is challenged under
Article I, Section 19 of the Alaska Constitution, a court is not
allowed to uphold the law simply because it bears a close and
substantial relationship to a legitimate government interest, or
because the law is a reasonable exercise of the legislatures
regulatory authority. The 1994 amendment to Article I, Section
19 was intended to ensure that all firearms laws (both then-
existing laws and future laws) would be subjected to strict
scrutiny, and that these laws would be upheld only if they were
narrowly tailored to a compelling state interest.
Accordingly, we should overturn Gibson, and we should
direct the parties to brief the question of whether the current
ban on the possession of concealable firearms by non-dangerous
felons meets the compelling state interest test.
The history of the 1994 constitutional amendment in the
Alaska Senate
In its original form (i.e., as originally
enacted by the voters of Alaska), Article I, Section 19
of the Alaska Constitution was worded similarly to the
Second Amendment of the Federal Constitution:
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.
But in January 1993, a few days after the
Eighteenth Legislature convened, several
state senators (Senators Donley, Kelly,
Frank, Phillips, and Kerttula) sponsored a
bill Senate Joint Resolution No. 1 calling
for an amendment to Article I, Section 19 to
clarify that this provision of the
constitution protected an individuals right
to keep and bear arms.
Section 1 of Senate Joint
Resolution No. 1 proposed that Article I,
Section 19 be amended by adding the following
sentence:
The individual right to keep and bear
arms shall not be denied or infringed by the
State or a political subdivision of the
State.
Apparently recognizing that this
far-reaching language might be employed to
attack Alaskas existing firearms laws, the
sponsors of Joint Resolution No. 1 included a
second section in their bill that called for
a complementary amendment to Article XV of
the constitution. This proposed amendment to
Article XV declared that the new language in
Article I, Section 19 was not intended to
call Alaskas existing firearms laws into
question, nor was it intended to alter the
level of constitutional scrutiny that the
courts of Alaska would employ when
adjudicating constitutional challenges to
firearms laws:
* Section 2. Article XV, Constitution of the
State of Alaska, is amended by adding a new
section to read:
Section 29. Effect of 1994 Amendment of
Section 19 of Article I. The 1994 amendment
of Section 19 of Article I does not affect or
change any law relating to arms that is in
effect on the date of ratification of the
1994 amendment of that section, nor does it
affect or change the judicial standard of
review applicable to laws relating to the
misuse of arms.
This Joint Resolution did not pass
the legislature. Instead, one year later
(almost to the day), the Senate State Affairs
Committee chaired by Senator Loren Leman
proposed a competing bill, Senate Joint
Resolution No. 39.
Senate Joint Resolution No. 39
called for adding the same new sentence to
Article I, Section 19: The individual right
to keep and bear arms shall not be denied or
infringed by the State or a political
subdivision of the State. However, Joint
Resolution No. 39 conspicuously omitted any
provision to preserve Alaskas existing
firearms laws or to preserve the existing
level of constitutional scrutiny in judicial
challenges to firearms laws.
During the 1994 legislative
session, these two competing bills Senate
Joint Resolution No. 39 and Senate Joint
Resolution No. 1 were the subject of
considerable debate in the state senate.
There was essentially no debate as to whether
Article I, Section 19 should be amended to
clarify that it protected the individual
right to keep and bear arms. Rather, the
point of contention was whether the senate
should adopt Joint Resolution No. 39 (which
had no saving provision to protect Alaskas
existing firearms laws) or Joint Resolution
No. 1 (which contained supplemental
provisions to expressly protect existing
firearms laws and to expressly preserve the
then-current level of constitutional scrutiny
applicable to firearms laws).
When the Senate State Affairs
Committee held its first public hearing on
Joint Resolution No. 39 on January 21, 1994,
the first witness to address the Committee
was Anchorage Deputy Chief of Police Duane
Udland.3 Deputy Chief Udland declared that
he and other law enforcement officers did not
oppose an individual right to keep and bear
arms, but he told the Committee that the law
enforcement community [had] a deep concern
over the effects the [proposed] amendment
[would] have.4
Udland warned that [if] the
constitution [was to be] changed, the amend
ment must be carefully worded or else the
amendment would limit the ability of
municipalities and the [state] legislature to
pass reasonable laws regulating firearms that
are necessary to protect the public.5 Udland
urged the State Affairs Committee to abandon
their own proposal (Joint Resolution No. 39)
in favor of Joint Resolution No. 1, because
Joint Resolution No. 1 better answer[ed] the
concerns of law enforcement.6
In response to Deputy Chief Udlands
comments, Senator Robin Taylor opined that,
given the flood of weapons misuse in our
society, perhaps everyone should be armed in
order to protect themselves.7 Udland
conceded that violent crime was on the rise,
but he questioned whether the answer was a
constitutional amendment.8 Udland told the
Committee he was worried that the language of
Joint Resolution No. 39 might be [so] strict
[that] the courts will strike down any law
regulating possession of firearms.9
The chair of the Committee, Senator
Leman, then called on the Committees
legislative aide, Portia Babcock, to describe
Joint Resolution No. 39 and to respond to
Udlands last comment. Ms. Babcock told the
Committee that the constitutional amendment
proposed in Joint Resolution No. 39 was
intended to protect and [e]nsure the right to
keep and bear arms in the future, but it was
not intended to change anything today, or to
abrogate any laws currently on the books.10
Ms. Babcock also told the Committee that,
based on prior appellate decisions, the
Alaska Supreme Court was unlikely to
interpret the new amendment broadly.11 She
assured the Committee that [c]ase law has
consistently recognized that the right to
keep and bear arms is not an absolute
right.12
Ms. Babcocks comments on the
intended effect of the constitutional
amendment closely track the characterization
of the legislative debate that appears in
this Courts Gibson decision. But, in truth,
Ms. Babcocks comments do not summarize or
accurately characterize the legislatures
intentions.
Just after Ms. Babcock made her
comment that the right to keep and bear arms
is not an absolute right, Senator David
Donley interjected, for the record, that the
proper judicial standard of review, in terms
of balancing firearms rights of individuals
versus the protection of society, is a
compelling public safety interest standard.13
Following Senator Donleys comment,
a number of witnesses testified in favor of
Joint Resolution No. 39. One witness
asserted that the federal government is doing
everything it can to take away our freedom,
our rights, and our guns, so it was important
that the State of Alaska stand up and commit
itself.14 Another witness declared that the
right to keep and bear arms was, in fact, a
partisan issue and he urged the legislature
not to water down this legislation.15 A
third witness stated that, in his view, it is
never proper for the government to enact
restrictions on firearms, even when a valid
public safety concern exists. This witness
declared that he interprets the Constitution
literally, and [he] believes it is
unconstitutional to restrict firearms in any
manner.16
Toward the end of the public
comments, a member of the Anchorage Municipal
Assembly, Joe Murdy, expressed concern that,
if the amendment passed, local governments
might no longer have control over weapons
within city limits.17 In response, Senator
Leman assured Assemblyman Murdy that Joint
Resolution No. 39 [would] not restrict
municipalities from dealing with appropriate
local restrictions on firearms.18
But just as Ms. Babcocks earlier
sanguine interpretation of Joint Resolution
No. 39 had drawn a rebuttal from Senator
Donley, Senator Lemans attempt to re-assure
Assemblyman Murdy drew a response from
Senator Taylor.
Immediately after Senator Leman
made the comment that the proposed
constitutional amendment would not stop
municipalities from enacting appropriate
restrictions on firearms, Senator Taylor
mention[ed] [what] Senator Donley noted
earlier: ... [that] the proper judicial
standard of review [when] balancing [the]
firearms rights of individuals versus the
protection of society is a compelling public
safety interest standard.19 Senator Taylor
declared that he wanted to state for the
record, and [to] stress, that this compelling
public interest standard was the intent of
SJR 39.20 Senator Taylor expressed his
belief that any appropriate restrictions on
the right to keep and bear arms would meet
this standard of scrutiny.21
Neither Senator Leman nor any other
member of the State Affairs Committee
expressed disagreement with the remarks of
Senators Donley and Taylor on this subject.
In other words, the apparent understanding
and intent of the Senate State Affairs
Committee was that the constitutional
amendment proposed in Joint Resolution No. 39
would require the courts to apply a
compelling state interest or strict scrutiny
standard when adjudicating the
constitutionality of laws regulating the
possession or use of firearms.
After Joint Resolution No. 39 was
released by the Senate State Affairs
Committee, it next went to the Senate
Judiciary Committee. The Judiciary Committee
considered Joint Resolution No. 39 at a
hearing on February 4, 1994.22
At this February 4th hearing, the
battle lines were drawn by the proponents of
the two competing joint resolutions. Senator
Leman appeared and spoke on behalf of Joint
Resolution No. 39 (the joint resolution
sponsored by his State Affairs Committee).
The opposing advocate was Assistant Attorney
General Dean Guaneli, who told the Judiciary
Committee that the constitutional amendment
proposed in Joint Resolution No. 39 placed
many state firearms laws at risk and that
the Department of Law, the Department of
Public Safety, and the Alaska Association of
Chiefs of Police were united in their
opposition to Joint Resolution No. 39.23
Mr. Guaneli spoke at length about
the dangers posed by Joint Resolution No. 39.
In particular, he told the Committee that the
courts would apply a strict scrutiny analysis
when deciding whether a firearms law
comported with the amended version of Article
I, Section 19. Under this analysis, the
government would be required to demonstrate a
compelling, overriding state interest before
the courts would uphold any firearms
regulations.24
With particular regard to the issue
raised in the present appeal (i.e., the
constitutionality of the statute prohibiting
felons from possessing concealable firearms),
Mr. Guaneli warned the Committee that he
doubted that the State could satisfy the
strict scrutiny test with regard to
prohibiting non-violent felons from
possessing concealable firearms, or from
living in households where another household
member owns a concealable firearm.25
Mr. Guaneli further warned the
Committee of the possibility that many other
Alaska firearms laws would be in jeopardy if
[Joint Resolution No. 39] passe[d].26
Mr. Guaneli then discussed the
compromise embodied in Joint Resolution No.
1, which (Mr. Guaneli explained) was drafted
by himself and Senator Donley.27 As noted
above, Joint Resolution No. 1 proposed the
same amendment to Article I, Section 19, but
it also included an amendment to Article XV
whose purpose was to clarify that the new
clause regarding the individual right to keep
and bear arms was not intended to alter the
standard of judicial review in constitutional
challenges to firearms laws.28 Mr. Guaneli
urged the Judiciary Committee to adopt Joint
Resolution No. 1 and to reject any
constitutional amendment that would require
strict scrutiny.29
In rebuttal to Mr. Guanelis
comments, Senator Leman took the floor and
emphasized that the legislative history
i.e., the discussion at the hearing held by
his State Affairs Committee the previous
month made it clear that appropriate
restrictions [on the possession and use of
firearms] would continue to be [lawful].30
He told the Judiciary Committee that Joint
Resolution No. 39 was intended to be a clean
constitutional amendment that would do no
more than clarify what everyone already
thinks the Constitution means.31
Senator Donley then further
undercut Mr. Guanelis position. Despite the
fact that he had apparently co-authored Joint
Resolution No. 1 with Mr. Guaneli the
previous year, Senator Donley reiterated his
position that the proper standard for
firearms laws is a strict scrutiny review.32
Although Senator Donley expressed his opinion
that very few firearms safety requirements
would fail to meet this test, the senator
told the Judiciary Committee that the proper
test was whether the government could
demonstrate a compelling public safety
interest to justify firearms regulations.33
Following Senator Donleys remarks,
the Judiciary Committee began to hear
comments from members of the public. The
very first witness made a point of declaring
that he agreed with Senator Donleys position
i.e., that all firearms laws should have to
satisfy the strict scrutiny test.34 The
second witness echoed this view.35 The
fourth witness thanked Senator Leman for his
ongoing efforts to protect [the] right to own
guns.36 Another witness, a police officer,
told the Committee that even though the
Alaska police chiefs might be opposed to
Joint Resolution No. 39, this was not the
position of rank-and-file officers. The
officer urged the Committee to pass Joint
Resolution No. 39.37
In all, more than a dozen citizens
spoke, and all but one supported Joint
Resolution No. 39. In addition, Senator
Lemans aide, Portia Babcock, informed the
Judiciary Committee that both the
Municipality of Anchorage and the City of
Fairbanks had endorsed Joint Resolution No.
39, and the Matanuska-Susitna Borough was
also likely to do so.38
Following this outpouring of
support for Joint Resolution No. 39, Senator
Donley who was the prime sponsor of the
competing resolution, Joint Resolution No. 1
announced that he now supported Joint
Resolution No. 39.39 Senator Donley also
stated that he wished to prepare a letter of
intent to bring to the Judiciary Committee.
Senator Donley declared that this letter of
intent would clarify[] the ... difference
between a compelling state interest and a
reasonable state interest because the higher
standard is whats appropriate.40
Following Senator Donleys remarks,
a member of the Committee called the question
i.e., called for a vote on the motion to pass
Joint Resolution No. 39 out of the Committee.
In response, the Committee unanimously agreed
that Joint Resolution No. 39 do pass.41
Seven days later (on February 11,
1994), despite Senator Donleys announcement
in the committee hearing that he supported
Joint Resolution No. 39, the senator
sponsored a revised, substitute version of
Joint Resolution No. 1. This substitute
version of Joint Resolution No. 1 still
called for a clarifying amendment to Article
XV of the constitution, but the scope of this
clarifying amendment was now narrower than in
the original version of Joint Resolution No.
1.
In its new version, the proposed
amendment to Article XV preserved the
existing standard of judicial review for only
two types of firearms regulations: laws
relating to access to [arms] or possession of
arms by convicted felons, and laws relating
to misuse of arms. Here is the proposed
amendment to Article XV In its entirety:
* Section 2. Article XV, Constitution of the
State of Alaska, is amended by adding a new
section to read:
Section 29. Effect of 1994 Amendment of
Section 19 of Article I. The 1994 amendment
of Section 19 of Article I does not affect or
change any law relating to arms that was in
effect on January 1, 1994, nor does it affect
or change the judicial standard of review
applicable to laws relating to access to or
possession of arms by convicted felons or to
the misuse of arms.
But, as events proved, it was too late to
stop the progress of Joint Resolution No. 39
in the state senate.
The Senate Finance Committee was
the final senate committee to review the two
competing resolutions. At the Finance
Committees hearing of February 15, 1994,
Portia Babcock spoke in favor of Joint
Resolution No. 39 and again indicated that
this resolution had received overwhelming
support from citizens and local governments
around the state.42 However, Ms. Babcock
backed away from her earlier predictions that
the proposed constitutional amendment would
have no effect on Alaskas existing firearms
laws. Ms. Babcocks changed position on this
matter is reflected in a colloquy between her
and Senator Rieger.
Just after Ms. Babcock finished her
introductory remarks concerning Joint
Resolution No. 39, Senator Rieger asked her
how the proposed constitutional amendment
would affect the states existing concealed
weapons law. Babcock initially answered that
the amendment should not affect that law but
then she conceded she [had] no idea how the
[proposed] language would be interpreted by
the courts.43
Apparently dissatisfied with this
answer, Senator Rieger pressed the issue. He
asked Babcock if the Senate State Affairs
Committee had discussed whether the proposed
amendment would prohibit the state from
exercising any kind of statutory restrictions
on carrying a concealed weapon.44 Babcock
replied that the State Affairs Committee had
indeed discussed this issue, but [that] the
impact [of the proposed constitutional
amendment] was unknown since the [supreme]
court had not interpreted the language.45
Babcock declared that no one knew the answer
[to this question] and that the supreme court
would have to balance the states police power
[against] the individuals constitutional
right to keep and bear arms.46
Babcocks answers prompted Senator
Rieger to declare that he was not comfortable
with the proposed constitutional amendment
because it seemed that the intent [of the
drafters] was that the courts not take the
[language of the amendment] literally.47
Assistant Attorney General Guaneli
then spoke in opposition to Joint Resolution
No. 39.48 He reiterated that the Department
of Law, the Department of Public Safety, and
the Alaska Association of Chiefs of Police
all opposed the constitutional amendment in
the form proposed by Joint Resolution No.
39.49 And he again spoke of the risk to
Alaskas existing firearms laws if the
proposed amendment was enacted.
Guaneli told the Finance Committee
that if Article I, Section 19 was amended as
proposed in Joint Resolution No. 39 (i.e.,
without any provision to save Alaskas
existing firearms laws or to preserve the
existing standard of constitutional review),
several of Alaskas weapons laws would be
thrown into doubt and [might] be held
unconstitutional.50 Among the laws that Mr.
Guaneli singled out as being subject to
constitutional challenge under the proposed
amendment were the laws prohibiting non-
violent felons from possessing handguns and
prohibiting non-violent felons from residing
in homes where a handgun is kept.51
Mr. Guaneli warned the Committee
not to adopt a constitutional amendment whose
interpretation was not clear. For instance,
Guaneli noted that some supporters of Joint
Resolution No. 39 had declared that their
intention was to prevent municipalities from
enacting any type of firearms laws.52
Guaneli urged the Committee to adopt the
version of the amendment proposed in Joint
Resolution No. 1 because Joint Resolution
No. 1 included a second section ... that gave
the court[s] ... guidance in how [they were]
to interpret this [amendment to Article I,
Section 19] i.e., a clarification that the
amendment was not intended to change any law
that was in effect, nor the judicial standard
that had been applied to firearms laws.53
In response to Mr. Guanelis
comments, Senator Frank voiced his opinion
that the constitutional amendment proposed in
Joint Resolution No. 39 did not create any
heightened protection; rather, the amendment
was simply a clarification that Article I,
Section 19 guaranteed an individual right to
keep and bear arms (as opposed to a
collective right).54
But Mr. Guaneli replied that,
when[ever] the Constitution [is] changed, the
courts [presume] that [the change] had to
mean something.55 Guaneli warned that, unless
the proposed amendment to Article I, Section
19 was clarified, it would likely alter the
way that this section of the constitution was
interpreted by the courts. In particular,
Guaneli predicted that the courts would
interpret the amendment as an indication that
the legislature wanted to abandon the current
reasonable basis standard of constitutional
scrutiny in favor of some higher standard of
scrutiny.56 For this reason, Guaneli again
urged the Committee to adopt the version of
the amendment proposed in Joint Resolution
No. 1.57
Instead of heeding Mr. Guaneli,
immediately after he finished speaking, a
member of the Finance Committee moved for
passage of Joint Resolution No. 39 out of
committee. In the ensuing vote, Joint
Resolution No. 39 received a do pass
recommendation by a 5-to-1 margin (with
Senator Rieger dissenting).58
On March 2nd, at a meeting of the
full Senate, Senator Donley introduced his
promised letter of intent regarding Joint
Resolution No. 39.59 Section 2 of this
letter of intent dealt with the level of
judicial scrutiny that the legislature wanted
the courts to employ when adjudicating
constitutional challenges to firearms laws.
It specified that the legislature intended
for the courts to apply the compelling state
interest test in other words, strict
scrutiny:
2. [The] Standard for Judicial Review under
S[enate] J[oint] R[esolution] 39 is the
Legitimate and Compelling Governmental
Interest Test.
The legislature ... notes the
consistency in the language of the proposed
amendment to art. I, sec. 19 and comparable
language defining the right of privacy set
out in art. I, sec. 22 of the state
constitution and protecting personal privacy
against government infringement. Because of
the similarity of language between the two
provisions, the legislature is of the view
that the interpretation and standard of
review adopted by the Alaska Supreme Court to
circumscribe or abridge those rights under
certain circumstances will also apply to the
right defined by art. I, sec. 19. The
legislature believes that the applicable test
should be the legitimate and compelling
governmental interest test in the form
applicable to interpretation of the right to
privacy, art. I, sec. 22 of the state
constitution. The test was first identified
in Falcon v. Alaska Public Offices
Commission, 570 P.2d 469, 476 (Alaska 1975),
and more fully articulated and explained in
Messerli v. State, 626 P.2d 81, 86 (Alaska
1980). The test has worked well to protect
the rights of Alaskas citizens in situations
in which the asserted infringement involves a
right that is not clearly defined by the
courts as fundamental. Therefore, the
legislature is of the opinion that the
standard of review contemplated by the
amendment proposed to art. I, sec. 19 by
SJR 39 be one that precludes abridgment or
interference by governmental action unless
the government meets its substantial burden
of establishing that an abridgment or
interference with the right may be justified
only by a legitimate and compelling
governmental interest.
The concluding section of this
letter of intent, Section 3, then declared
the legislatures belief that, even with this
heightened level of scrutiny, the laws
regulating the possession of firearms by
convicted felons would still be
constitutional. In other words, Section 3
was a proposed legislative finding that these
laws were supported by a compelling state
interest:
3. S[enate] J[oint] R[esolution] 39 Does Not
Prevent the Legislature from Limiting Access
and Possession of Arms by Convicted Felons
and Those Convicted of Crimes of Violence.
As in the majority of jurisdictions
whose constitutions contain similar
guarantees of an individuals right to keep
and bear arms, the proposed amendment of art.
I, sec. 19 does not preclude the appropriate
exercise of the police power. The exercise
of the police power must be in a manner that
satisfies the requirements of the applicable
test. To that end, the legislature finds
that there is both a legitimate and a
compelling governmental interest in the
enactment and enforcement of legislation
prohibiting the possession of and access to
firearms by those who, by their past conduct,
have demonstrated an unfitness to be
entrusted with their possession. Such
legislation is both reasonably related to the
protection of the general public from those
who would use firearms to commit serious
crimes and is sufficiently narrowly drawn to
isolate those persons who, on the basis of
their previous convictions for a serious
offense, evidence a lack of fitness to be
entrusted with these dangerous weapons for
any reason. Specifically the legislature
finds a legitimate and a compelling
governmental interest in the enactment and
enforcement of legislation limiting access
and possession of arms by convicted felons
and those convicted of crimes of violence.
Senator Donleys letter of intent
was adopted by the full Senate on a vote of
16 to 3.60 The Senate then passed Joint
Resolution No. 39 by the same vote (16 to
3).61
The history of the 1994 constitutional amendment in the
Alaska House of Representatives
Following the Senates approval of Joint
Resolution No. 39 and the accompanying letter of
intent, Joint Resolution No. 39 was sent to the
House.
Even with Senator Donleys letter of intent,
the Department of Law and its allies continued to
believe that the Senates proposed constitutional
amendment would, in fact, endanger many of Alaskas
existing firearms laws, including the laws
regulating the possession of firearms by non-
violent felons. And in the House Judiciary
Committee, these proponents of a more limited
constitutional amendment initially won a victory
with the support of the chair of the committee,
Representative Brian Porter.
The House Judiciary Committee held hearings
on Senate Joint Resolution No. 39 on April 16 and 18,
1994.62 In anticipation of these hearings, the
Committee drafted a substitute bill to try to address
the Department of Laws concerns about the breadth of
the Senate version.
This substitute bill (which had already been
circulated in draft form when the first committee
hearing was held on April 16th63) retained the Senates
proposed amendment to Article I, Section 19, but added
the word unreasonably. In other words, the newly
proposed sentence read: The individual right to keep
and bear arms shall not be unreasonably denied or
infringed by the State or a political subdivision of
the State. (Emphasis added) The Committee Substitute
also added a second section to clarify that the
proposed constitutional amendment was not intended to
alter the standard of review that courts would employ
when adjudicating constitutional challenges to firearms
laws:
* Section 2. Article XV, Constitution of the
State of Alaska, is amended by adding a new
section to read:
Section 29. Application of Amendment of
Section 19 of Article I. The 1994 amendment
of Section 19 of Article I does not change
the level of judicial scrutiny applicable to
the review of laws relating to weapons.
On April 16th, Portia Babcock again
appeared on behalf of Senator Leman to
introduce Senate Joint Resolution No. 39 and
speak in favor of it. Ms. Babcock
acknowledged that the Department of Law was
concerned that passing this amendment will
somehow abrogate laws that are currently on
the books, or [laws] that may be [on the
books] in the future.64 However, Babcock
told the House Judiciary Committee that
Senator Leman, [did] not believe that to be
true.65 According to Babcock, Senator Leman
believed that the proposed constitutional
amendment should change absolutely nothing,
because Alaskas current firearms laws would
be found to satisfy the compelling government
or state interest test.66
Representative Gail Phillips asked
Ms. Babcock to address the difference between
Senate Joint Resolution No. 39 and the
proposed substitute bill drafted by the House
Judiciary Committee in other words, the
section of the Committee Substitute which
proposed an amendment to Article XV to
clarify that the courts should continue to
employ the existing level of judicial
scrutiny when adjudicating future
constitutional challenges to firearms laws.67
Babcock told the Committee that
Senator Leman was opposed to this change.
According to Babcock, Senator Leman [saw] a
problem with setting a benchmark for courts
to try and interpret [laws] in the future,
because there is no [explicit] judicial level
of scrutiny of weapons laws ... right now.68
Babcock warned that if the legislature passed
the Committee Substitute and its proposed
amendment to Article XV, the courts would not
understand what the legislature was talking
about, or what the legislature wanted,
because there was no existing well-defined
level of scrutiny for firearms laws.69
Babcock added that Senator Leman
and other supporters of Joint Resolution No.
39 wanted to make sure that the legislature
did not approve any language suggesting that
firearms laws would pass constitutional
muster as long as they were reasonable, or as
long as they had any positive justifica
tion.70 According to Babcock, Senator Leman
and the other supporters of Joint Resolution
No. 39 had a very different intent: firearms
laws would be unconstitutional unless they
served a compelling governmental
interest.71
After more discussion of this
issue, Representative Porter offered a
description of the three levels of judicial
scrutiny commonly used by courts: compelling
interest and rational basis on the two ends
of the spectrum, and the sliding scale test
as a middle level of scrutiny.72
Representative Porter explained that the
Committee Substitute was intended to tell[]
the [Alaska] supreme court: We like the fact
that you are [using the sliding scale test],
and we do not want to change that. 73 Porter
added that, if the legislature adopted Joint
Resolution No. 39 as proposed by the Senate,
this will tell the supreme court to use a
higher standard of review than they are
currently using.74
When the hearing was opened to
public comment, all of the citizens who spoke
a total of twenty-five people favored Senate
Joint Resolution No. 39 over the proposed
House Judiciary Committee Substitute.75 Many
of the speakers inveighed against any
suggestion that firearms laws should be
upheld if they were reasonable.
These public comments lasted until
late in the afternoon. Chairman Porter
adjourned the House Judiciary Committee at
4:25 p.m.,76 and the Committee resumed its
consideration of this matter two days later,
on April 18th.77
At the beginning of this second
hearing, Representative Porter acknowledged
that the testimony presented to the Committee
had been overwhelmingly supportive of Joint
Resolution No. 39 as proposed by the Senate,
and had been overwhelmingly opposed to his
Committee Substitute. Nevertheless,
Representative Porter announced that he would
personally sponsor the Committee Substitute
in an effort to make sure that the courts
continued to use the existing standard of
constitutional review the sliding scale test
when adjudicating challenges to firearms
laws.78
Representative Porter noted that
the letter of intent that accompanied the
Senates proposal (i.e., Joint Resolution No.
39) specified that the intended standard of
review under the Senates proposed amendment
to Article I, Section 19 was the compelling
interest test. In other words, according to
Porter, if a law abridged the individual
right to keep and bear arms, then short of a
compelling interest, that law will fall.79
Porter believed that it was more appropriate
to use the sliding scale test, under which a
court tries to balance the interest of the
state against the interest of the individual
and [then] make a rational decision [about
the constitutionality of the law].80
Representative Porters comments on
this subject drew immediate objection from
another committee member, Representative
Phillips, who indicated that neither she nor
the people of Alaska would agree to a
standard of constitutional scrutiny that
would allow firearms laws to be upheld as
long as they were reasonable. For this
reason, Representative Phillips announced
that she would be voting against Porters
Committee Substitute.81
Representative Porter responded
that he saw the problem arising from the
other end of the spectrum. He pointed out
that the language of the proposed amendment
to Article I, Section 19 was worded as an
absolute: the individuals right to keep and
bear arms shall not be denied. In addition,
the Senate had expressly announced that one
purpose of its proposal (Senate Joint
Resolution No. 39) was to require the courts
to use a compelling state interest test when
reviewing the constitutionality of firearms
laws. Representative Porter feared that the
seemingly absolute language of the proposed
constitutional amendment, coupled with the
requirement of a compelling state interest,
would hamper or eliminate the governments
ability to pass or enforce needed firearms
laws. This, he said, was why he was offering
the Committee Substitute.82
Representative Phillips responded
that, based on her experience, people simply
could not trust the courts to make reasonable
rulings or to adopt reasonable
interpretations of the law. She declared her
belief that it would [not] be good to give
the courts any more flexibility, especially
[concerning] something as precious as this
[proposed] amendment.83 For this reason, she
continued to oppose the Committee Substitute
and to support the Senate version.
When the final committee vote was
taken, Representative Porters views carried
the day. His proposed Committee Substitute
was adopted by the Judiciary Committee on a
vote of 4 to 2.84
However, this victory for a more
limited constitutional amendment was short-
lived. When the two competing bills Senate
Joint Resolution No. 39 and the House
Judiciary Committees substitute were
presented to the House Finance Committee on
April 30th, it was the Senate version that
prevailed.85
Portia Babcock again presented, and
spoke in favor of, the Senate version, while
Representative Porter and Assistant Attorney
General Dean Guaneli spoke in favor of the
House Judiciary Committees substitute bill.86
Representative Porter argued that
the proposed constitutional amendment should
be drafted so as to preserve firearms laws
that did not unreasonably infringe on the
right to keep and bear arms.87 After
Representative Porter finished,
Representative Sean Parnell noted that the
Senate version of the amendment would change
the level of judicial scrutiny [pertaining]
to laws relating to weapons, and he
encouraged discussion of this point.88 In
response, Mr. Guaneli agreed that the Senates
version of the amendment would increase the
level of scrutiny [that] the courts would
apply to firearms laws.89
Representative Kay Brown then asked
whether either version of the amendment would
affect Alaskas laws regulating concealed
weapons. In reply, Mr. Guaneli mentioned a
number of provisions in the concealed weapons
[law] which could be struck down under a
broad right to bear arms.90
This possibility did not deter the
House Finance Committee from adopting the
Senate version of the proposed constitutional
amendment. After a little more discussion,
the Committee voted in favor of the Senate
version of the bill. (The vote was 6 to
2.)91
On May 2nd, the Senate version came
up for its second reading on the House
floor.92 At that time, Representative Porter
offered amendments to make the Senate version
conform to the substitute version that his
House Judiciary Committee had proposed (the
version already rejected by the House Finance
Committee).93
Specifically, Representative Porter
proposed adding the word unreasonably to the
new sentence in Article I, Section 19, so
that it would read: The individual right to
keep and bear arms shall not be unreasonably
denied or infringed by the State or a
political subdivision of the State.94
In addition, Representative Porter
proposed adding a new section to the bill,
calling for an amendment to Article XV of the
constitution to expressly declare that [t]he
1994 amendment of Section 19 of Article I
does not change the level of judicial
scrutiny applicable to the review of laws
relating to weapons.95
Representative Porters amendments
were voted down, 15 to 24.96
Following the defeat of
Representative Porters proposed amendments to
Joint Resolution No. 39, Representative John
Davies offered an amendment that would have
added the following language to the end of
the new sentence in Article I, Section 19:
, except that the exercise of this right may
be regulated by law. [But no] law shall
impose licenses, registration or special
taxation on the ownership or possession of
firearms. Representative Daviess amendment
was voted down, 5 to 34.97
The House then scheduled the third
reading of Senate Joint Resolution No. 39 for
the following day (May 3rd).98 At that third
reading, the House passed Senate Joint
Resolution No. 39 on a vote of 33 to 4.99
Following this vote, Representative
Porter made one final attempt to narrow the
effect of the proposed constitutional
amendment. He asked the House to adopt the
following letter of intent:
It is the intent of the legislature that
the authority to review and pass laws on
misuse of weapons is an important aspect of
the legislatures responsibility to assure the
health, safety and welfare of all Alaskans.
It is the intent of the legislature that the
individual right to bear arms set forth in
S[enate] J[oint] R[esolution] 39 not be an
absolute right, and that it does not
guarantee an individual the right to carry
weapons at all times and under all
circumstances, when the legislature has
determined that such conduct is contrary to
the public interest. [100]
The House refused to adopt this
letter of intent. (The vote was 14 to
23.)101 There was, however, a call for
reconsideration of the Houses underlying vote
on the Senate Joint Resolution. That
reconsideration took place the following day,
May 4th. At that time, the House voted in
favor of Senate Joint Resolution No. 39 by an
even greater margin: 36 to 3.102
The proposed constitutional amendment is submitted to
the voters
The constitutional amendment proposed in
Senate Joint Resolution No. 39 was submitted to
the voters of Alaska as Ballot Measure No. 1 in
the 1994 general election. Both the supporters
and the opponents of the proposed constitutional
amendment submitted position statements for
publication in the state election pamphlet.
The striking thing about the presentation of
Ballot Measure No. 1 in the 1994 election pamphlet
is that neither the statement in support of the
measure nor the statement in opposition to the
measure (nor even the position-neutral description
of the measure written by the Legislative Affairs
Agency) addressed the one undisputed effect that
the proposed amendment would have on Alaska
constitutional law: the institution of a new
requirement that all firearms laws be narrowly
tailored to a compelling state interest.
Rather than explaining that the proposed
amendment was designed to require strict scrutiny
of firearms laws that is, to prohibit the
legislature from enacting firearms laws unless
those laws were founded on, and narrowly tailored
to, a compelling state interest the two position
statements in the election pamphlet omitted any
mention of this crucial point and jumped directly
to predictions about the effect that this change
in the constitution would have on Alaskas existing
firearms laws.
The statement submitted in support of the
proposed constitutional amendment declared that passage
of the amendment would not undermine Alaskas existing
firearms laws:
[A] YES [vote] on [this ballot measure]
will not overturn or invalidate state laws
restricting access [to] or possession of arms
by convicted felons, mental incompetents,
illegal aliens, those under the influence of
drugs or alcohol, juveniles, or in school
buildings. 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 [this ballot measure].
Alaska Division of Elections, 1994 Election
Pamphlet, page B-20.
The statement in opposition to the
proposed amendment took a different view.
The opponents of the amendment predicted that
the new constitutional provision would have
serious and unintended effects on existing
laws regulating the possession and use of
firearms:
If this amendment should pass, be
prepared for unannounced consequences.
Passage of this amendment would undo laws
[that are] currently in place. ... Guns are
[currently] not allowed on school grounds,
... and felons cannot carry weapons. Our
states new concealed weapons law has many
conditions limiting who can carry a concealed
weapon. These laws which now protect us will
be attacked in the courts if this amendment
passes, and in all likelihood the laws will
be thrown out.
Alaska Division of Elections, 1994 Election
Pamphlet, page B-20.
The voters were also offered a
neutral summary of the amendment, written by
the Legislative Affairs Agency. This neutral
summary also omitted any discussion or
explanation of the legislatures intent to
require strict scrutiny of firearms laws:
This state constitution [sic] protects
the right of the people to keep and bear
arms. It says that, a well-regulated militia
being necessary to the states security, the
right of the people to keep and bear arms
shall not be infringed.
This measure amends the state
constitution by adding a specific reference
to the individual right to keep and bear
arms. The new language says that the
individual right to keep and bear arms shall
not be denied or infringed by the state or
its political subdivisions.
The measure also changes the title for
the section [i.e., the title of Article I,
Section 19]. The new title would reflect the
fact that the right covers both the keeping
and the bearing of arms.
Alaska Division of Elections, 1994 Election
Pamphlet, page B-20.
In sum, neither of the two position
statements, nor the neutral summary written
by the Legislative Affairs Agency, informed
the voters of the constitutional substance of
the amendment that was being put to a vote.
None of these descriptions of the proposed
amendment alerted voters to the fact that the
amendment was intended to require strict
scrutiny of all firearms laws. Instead, the
voters were offered competing predictions of
how the courts would apply the proposed
amendment. In other words, the voters were
offered competing predictions as to whether
Alaskas various existing firearms laws would
survive strict scrutiny analysis.
Moreover, the sanguine prediction
offered by the supporters of the 1994
amendment appears to be no more than wishful
or optimistic thinking.
As I have already noted, the
statement in support of the amendment (quoted
above) assured voters that the laws
restricting the possession of firearms by
felons or illegal aliens or mental
incompetents are well-established and have
been consistently upheld in Courts across the
nation, even when considered under the
toughest legal standard.
But in truth, none of the types of
firearms laws listed in the supporters
statement have ever been upheld under the
toughest legal standard. That is, none of
these laws have ever been upheld under a
strict scrutiny or compelling state interest
standard. This is because no other state in
the country applies a compelling state
interest or strict scrutiny level of
constitutional review to firearms laws.
As the New Hampshire Supreme Court
recently noted in Bleiler v. Chief [of the]
Dover Police Dept., 927 A.2d 1216 (N.H.
2007):
With respect to substantive due process
challenges to gun control legislation, such
as [the statutory requirement that citizens
obtain a license to carry a loaded handgun],
[n]o states judiciary applies a heightened
level of scrutiny, much less strict scrutiny.
[Adam] Winkler, The Reasonable Right to Bear
Arms, 17 Stan[ford] L. & Pol[icy] Rev. 597,
600 (2006). [S]tate courts universally
reject strict scrutiny or any heightened
level of review in favor of a standard that
requires weapons laws to be only reasonable
regulations on the [right to bear arms]. Id.
at 599; see State v. Cole, 264 Wis.2d 520,
665 N.W.2d 328, 336-37 (2003) (citing cases);
see also [Jeffrey] Monks, The End of Gun
Control or Protection Against Tyranny?: The
Impact of the New Wisconsin Constitutional
Right to Bear Arms on State Gun Control Laws,
2001 Wis. L. Rev. 249, 259 (When a court
reviews a gun control statute, the test is
almost always whether the gun restriction is
a reasonable regulation under the states
police power.). Even courts that have found
[the right to bear arms] to be fundamental
have used a reasonableness standard. Cole,
665 N.W.2d at 337; see also Robertson v. City
and County of Denver, 874 P.2d 325, 329-30
(Colo. 1994) (citing cases).
. . .
[A]s numerous courts in other states
have recognized with respect to their state
constitutional right to bear arms, see
[Winkler] at 602-03, the New Hampshire state
constitutional right to bear arms is not
absolute and may be subject to restriction
and regulation. State v. Smith, 132 N.H.
756, 758, 571 A.2d 279 (1990); see Arnold v.
Cleveland, 67 Ohio St. 3d 35, 616 N.E.2d 163,
172 (1993). [S]ome regulation of firearms is
necessary because of the obvious public
dangers of guns. Winkler, supra at 600. Such
regulation is a proper subject of the
legislatures police power.
Bleiler, 927 A.2d at 1222-23.
One could argue, of course, that
none but the most informed voters would have
understood that the description of the law
put forward by the amendments supporters was
false or, at best, misleading on this point.
However, the voters were able to read the
statement submitted by the opponents of the
proposed constitutional amendment as well.
And, as I explained earlier in this dissent,
the opponents of the proposed amendment
openly disagreed with the sanguine
predictions of the amendments supporters.
The opponents predicted that if the amendment
passed, there most likely would be several
successful constitutional attacks on Alaskas
firearms laws.
This debate in the 1994 election
pamphlet between the supporters and opponents
of the proposed amendment mirrored the debate
that had occurred earlier in the legislature.
During the legislative debates, the
supporters of the proposed amendment to
Article I, Section 19 declared that the
amendment would not disturb Alaskas existing
firearms laws, while the opponents of the
amendment declared that this was not true
or, at least, that no one could guarantee
this was true, given the heightened level of
constitutional scrutiny that would apply to
firearms laws if the amendment was enacted.
But unlike the legislative debate,
the debate in the election pamphlet omitted
all discussion of the substance of the
proposed amendment. As I have explained, the
substance of the amendment was the new
requirement that all firearms laws be
narrowly tailored to a compelling state
interest. In the legislature, both the
proponents and the opponents of the amendment
understood this well and their efforts
(either to pass the amendment or defeat it)
were premised on this understanding.
The 1994 election pamphlet offered
the voters no information on this crucial
issue. Instead, the voters merely received
competing and speculative predictions about
how the courts would apply the new amendment
if it was adopted and Alaskas firearms laws
were then challenged.
As we know, the proposed
constitutional amendment was adopted by the
voters in the November 1994 election.
Why our analysis in Gibson is flawed
This Court held in Gibson that, even after
the passage of the 1994 amendment to Article I,
Section 19, the Alaska legislature retained the
authority to enact reasonable firearms laws, and
that the 1994 amendment was not intended to alter
the constitutionality of Alaskas existing firearms
laws.103 This conclusion is flawed in several
ways.
First, the 1994 amendment was unequivocally
intended to require a strict scrutiny / compelling
state interest test for firearms laws. Both the
legislative supporters and the legislative opponents of
the amendment agreed on this point. They likewise
agreed that, if the amendment was enacted, the courts
would no longer be able to use a sliding scale analysis
when assessing the constitutionality of firearms laws,
nor would courts be able to uphold those laws simply
because they were reasonable exercises of the States
police power.
In Gibson, we applied a sliding scale
analysis to the firearms law that was under attack: we
upheld that law because it [bore] a close and
substantial relationship to the states legitimate
interest in protecting the health and safety of its
citizens. Id. at 1302. This is the very type of legal
analysis that the 1994 amendment was designed to
forbid.
Second, contrary to what is stated in Gibson,
the legislative history of the 1994 amendment does not
demonstrate legislative agreement that the proposed
constitutional amendment would leave Alaskas existing
firearms laws intact.
The only point of legislative agreement was
that the proposed constitutional amendment would alter
Alaska constitutional law by requiring the courts to
apply a strict scrutiny or compelling state interest
test when adjudicating the constitutionality of
firearms laws. The legislators greatly disagreed as to
what this change in constitutional law would mean
i.e., whether Alaskas existing firearms laws would
survive this new, heightened level of scrutiny.
The supporters of Senate Joint Resolution No.
39 predicted that most, if not all, of Alaskas existing
firearms laws would still be constitutional after
passage of the proposed amendment. But even the
supporters of Joint Resolution No. 39 did not offer a
guarantee that all existing firearms statutes would be
found constitutional under the new provision. As
Portia Babcock candidly admitted to the Senate Finance
Committee on February 15, 1994, she [had] no idea how
the [proposed] language would be interpreted by the
courts.104 The opponents of Joint Resolution No. 39,
for their part, predicted that many of Alaskas firearms
laws would be endangered by the proposed amendment and
that some of these laws would ultimately be struck
down.
Because the opponents of Senate Joint
Resolution No. 39 thought that many of Alaskas firearms
laws might not survive strict scrutiny analysis, they
repeatedly offered revisions of the proposed
constitutional amendment. Some of these proposed
revisions would have expressly abandoned strict
scrutiny and compelling state interest analysis, and
would instead have allowed reasonable firearms
regulation under the then-existing sliding scale level
of judicial scrutiny. Other proposed revisions would
have allowed strict scrutiny analysis of firearms laws,
but would have expressly guaranteed the
constitutionality of Alaskas existing firearms laws a
kind of grandfather clause.
But all of these efforts to revise Joint
Resolution No. 39 were rejected by large margins. In
other words, the legislatures goal was to require
strict scrutiny of firearms laws, even if this
requirement potentially jeopardized the
constitutionality of some of Alaskas existing firearms
laws.
When both houses of the Alaska Legislature
voted in favor of Senate Joint Resolution No. 39, these
legislators were basically saying: (1) we want to
amend the Alaska Constitution to require that firearms
laws be narrowly tailored to a compelling state
interest; (2) we believe that our existing firearms
laws will survive this constitutional amendment; (3)
but even if we are wrong, we believe that it is more
important to enact a new, higher level of
constitutional scrutiny and we are willing to take the
risk that some of our laws will not survive this change
in constitutional law.
It is clear both from the content of the
committee debates, and the letter of intent drafted by
Senator Donley that the drafters and supporters of
Senate Joint Resolution No. 39 voted for this measure,
and rejected the competing measures, precisely because
they did not want the legislature to be able to enact
firearms laws that were merely reasonable, or firearms
laws that could be upheld under the sliding scale level
of constitutional scrutiny. Rather, the drafters and
supporters of Joint Resolution No. 39 explicitly and
repeatedly declared that they wished to ensure that no
firearms law would survive constitutional challenge
unless the law was founded on a compelling state
interest.
It is true that the backers of Senate Joint
Resolution No. 39 often declared their belief that
most, if not all, of Alaskas existing firearms laws
would survive the newly mandated, heightened level of
judicial scrutiny. But this was simply their
prediction. Morever, the backers of Joint Resolution
No. 39 repeatedly demonstrated that they did not wish
to be constitutionally bound to this prediction.
Whenever this issue came to a vote that is, whenever
the opponents of Joint Resolution No. 39 offered
amendments or counter-proposals that would have
explicitly guaranteed the continued constitutional
vitality of Alaskas existing firearms laws the backers
of Joint Resolution No. 39 rejected these efforts.
It is also true, as I have explained, that
the concluding section of the legislatures letter of
intent contained a legislative finding that the laws
regulating the possession of firearms by convicted
felons were supported by a compelling state interest,
and thus these laws should survive the heightened level
of scrutiny mandated by the new constitutional
amendment. But this type of finding is not binding on
the courts.
Legislators can not render a law
constitutional simply by declaring that they find the
law to be constitutional, or by declaring that they
find the law to be supported by a compelling state
interest. It is up to the courts to decide whether a
state interest is sufficiently compelling, and whether
a challenged statute is sufficiently narrowly tailored
to that interest.
With particular respect to the felon-in-
possession statute at issue in this case, even though
the legislators who voted for the 1994 constitutional
amendment may have believed that Alaskas felon-in-
possession laws were narrowly tailored to a compelling
state interest, they had no power to bind the courts of
Alaska to accept their view of the matter no more than
if these legislators had enacted a statute prohibiting
certain types of speech and had then declared, in a
letter of intent or otherwise, that they believed the
new restriction on speech was narrowly tailored to a
compelling state interest.
For these reasons, I conclude that the Gibson
decision contains a flawed and mistaken analysis of the
legislative intent behind the 1994 constitutional
amendment.
Our decision in Gibson is also based on a
simplistic and legally mistaken view of the statements
in the 1994 election pamphlet.
When a constitutional amendment (or any other
ballot measure) is submitted to the voters of Alaska,
the supporters and opponents of the measure are given
the opportunity to submit statements (i.e.,
explanations of why they support or oppose the measure)
for inclusion in the statewide election pamphlet. In
Gibson, we relied on the election pamphlet statement
submitted by the supporters of the 1994 amendment as
our basis for interpreting the amendment to allow the
legislature to engage in reasonable regulation of
firearms. In essence, our conclusion was based on the
following flawed reasoning:
(1) the statement in support of the 1994
amendment assured voters that passage of the
amendment would not affect the
constitutionality of Alaskas existing
firearms laws or the legislatures ability to
enact other similar laws; therefore
(2) the people who voted in favor of the
1994 amendment must have believed that
passage of the amendment would not affect the
constitutionality of Alaskas existing
firearms laws, and that the legislature could
continue to enact reasonable regulations
restricting the possession and use of
firearms; and therefore
(3) the courts of Alaska should
interpret the 1994 amendment in a manner that
does not affect the constitutionality of
Alaskas existing firearms laws, and that does
not bar the legislature from enacting future
reasonable regulations concerning the
possession or use of firearms.
The first mistake in this reasoning is one of
fact: it was a mistake to assume that all of the
people who voted in favor of the 1994 amendment did so
because they believed that enactment of the amendment
would have no effect on Alaskas existing firearms laws.
Based on the public comments that the legislature
received regarding the 1994 amendment (as recorded in
the minutes of the legislative hearings on the proposed
amendment), it is likely that many Alaskans voted for
the 1994 amendment precisely because they hoped that
this amendment would jeopardize the constitutionality
of Alaskas existing firearms laws.
As I explained earlier, the comments offered
by Alaska citizens at the various legislative hearings
on the proposed amendment revealed that many of these
citizens held a strong belief that the state government
had already exceeded the permissible boundaries of
firearms regulation. For example, when the Senate
State Affairs Committee held its hearing on Senate
Joint Resolution No. 39, one witness asserted that,
because the federal government is doing everything it
can to take away our freedom, our rights, and our guns,
it was important that the State of Alaska stand up and
commit itself.105 Another witness declared that, in
his view, it is never proper for the government to
enact restrictions on firearms, even when a valid
public safety concern exists. This witness declared
that he interprets the Constitution literally, and [he]
believes it is unconstitutional to restrict firearms in
any manner.106
Later, when the House Judiciary Committee
held its hearings, and Representative Porter presented
his substitute measure that would have guaranteed that
firearms laws would be constitutional so long as they
were reasonable (instead of having to be narrowly
tailored to a compelling state interest), every citizen
who spoke during the public comment period twenty-five
in all declared that they supported the original
Senate version over Representative Porters proposed
substitute. Many of these speakers took particular
exception to the suggestion that firearms laws should
be upheld as long as they were reasonable.
The public sentiment expressed in 1994 does
not reflect a brief or transient Alaskan opposition to
gun laws. Rather, opposition to firearms regulation
remains a fixture of the political scene in Alaska.
While I was working on this dissent, an article
appeared in the Anchorage Daily News entitled
Legislator wants Alaskans Able to Build, Keep
Restricted Firearms.107
This Associated Press article described the
remarks delivered by Representative Mike Kelly to 400
members of the Second Amendment Task Force a gun
rights group that has urged gun owners to openly
display their weapons. Representative Kelly announced
that he was drafting a bill that would allow firearms
restricted under federal law to be built and used in
Alaska. The plan is to circumvent federal restrictions
on these weapons (restrictions enacted under the
authority of the interstate commerce clause of the
federal constitution) by specifying that the weapons
must be built and kept entirely in [this] state.
In this same speech, Representative Kelly
declared that he resents infringements on gun rights,
such as having to go through a metal detector at a
courthouse.
While this dissent was being finalized, a
follow-up article appeared. This article reported that
Representative Kelly had secured 10 co-sponsors for his
measure and that, on April 16, 2009, the measure was
approved by the Alaska House of Representatives on a 32-
7 vote.108
We must take account of this widespread
opposition to firearms laws when we attempt to
ascertain the motives of the voters who approved the
1994 amendment to Article I, Section 19 of our state
constitution.
Undoubtedly, the opponents of the 1994
amendment were trying to dissuade citizens from voting
for the amendment when, in their election pamphlet
statement, they warned that people should be prepared
for unannounced consequences, and that laws which now
protect us will be attacked in the courts if this
amendment passes, and in all likelihood the laws will
be thrown out. But in fact, for many Alaskans, these
predictions of successful attacks on existing firearms
laws would be an inducement to vote for the
constitutional amendment. In other words, it is fair
to assume that many of the people who voted for the
proposed amendment hoped to achieve the very results
described in the statement in opposition.
It was therefore a mistake for us to assume
in Gibson that all of the people who voted in favor of
the 1994 amendment voted that way because they believed
that the amendment would have no effect on Alaskas
existing firearms laws. To the contrary: it is likely
that many Alaskans voted for the 1994 amendment
precisely because they believed, or at least hoped,
that this amendment would jeopardize the
constitutionality of Alaskas existing firearms laws.
The second mistake in Gibsons reasoning is
one of law.
It is true, as this Court noted in Gibson,
that the election pamphlet statement in support of the
1994 constitutional amendment assured voters that the
proposed amendment would not affect the
constitutionality of Alaskas primary firearms
regulations (like the felon-in-possession statute at
issue in this case). In their position statement, the
supporters of the 1994 amendment declared that such
laws had been adjudged constitutional even under the
toughest legal standard of constitutional scrutiny.
Gibson, 930 P.2d at 1302.
As I have already explained, this latter
assertion that firearms laws like Alaskas had already
survived strict scrutiny or compelling state interest
analysis in other states was (and remains) false. No
other state employs this constitutional test for
firearms laws.
Moreover, nothing in the 1994 election
pamphlet contradicts (or even mentions) the core
premise of the proposed constitutional amendment the
legislatures intention that firearms laws in Alaska
would be subject to a strict scrutiny or compelling
state interest test. Even if we assume that the voters
who ratified the 1994 amendment believed, or hoped,
that this change in constitutional law would not
undermine the constitutionality of Alaskas existing
firearms laws, it would still be the duty of this Court
to interpret the 1994 amendment as its drafters
intended.
Under Alaska law, the legislature proposes
constitutional amendments, and the voters then decide
whether to approve or reject these proposed amendments.
The legislative history of the 1994 amendment clearly
shows that the intent of the amendment was to alter
Alaska constitutional law by requiring that all
firearms laws be narrowly tailored to a compelling
state interest. The people who drafted the position
statements for the 1994 election pamphlet had no
authority to change the meaning of the amendment.
Regardless of how the election pamphlet
position statements were worded, the intent and effect
of the proposed constitutional amendment remained the
same. That is, the 1994 amendment continued to embody
the change in constitutional law the new requirement
of strict scrutiny of firearms laws that the
legislature intended when the legislature approved the
amendment and submitted it to the voters.
Even if we were to assume that all of the
people who voted for the amendment believed that
Alaskas existing firearms laws would survive this
change in the level of constitutional scrutiny, the
voters prediction concerning the outcome of future
constitutional challenges to firearms laws the
prediction that these laws would survive strict
scrutiny review is entitled to no greater deference
than the same prediction made by the amendments
supporters in the legislature. The courts are not
bound by either legislators or voters predictions of
how an amended constitutional provision will be
interpreted and applied unless that prediction is
actually codified in the amendment itself.
An analogous situation recently arose in an
Anchorage municipal election. In the April 2009
municipal election, Anchorage voters were asked to
decide whether to change the formula that is used to
compute the municipal tax cap. Proponents of the new
formula predicted that it would result in lower
property taxes, while opponents of the new formula
predicted that taxes would actually go up if the
formula was changed in the manner proposed. The voters
approved the change.
It is too early to tell which side made the
more accurate prediction. But assuming (for purposes
of argument) that the opponents of the change were
correct, and that the new formula will in fact produce
higher taxes, it would be completely improper for a
court to alter the newly enacted formula i.e., change
the formula to ensure that it produced lower taxes on
the theory that the law must be interpreted in a manner
that satisfies the predictions of the people who voted
for it.
But that is exactly what this Court did in
Gibson. Because the election pamphlet statement in
support of the 1994 amendment predicted that Alaskas
firearms laws would survive the proposed change in the
constitution, and because a majority of Alaskans then
voted in favor of the amendment, this Court concluded
that the amendment embodied a guarantee that all of
Alaskas then-existing firearms laws would remain
constitutional after its passage.
As I have explained, this is completely at
odds with the legislative history of the 1994
amendment. During the legislatures consideration of
the proposed constitutional amendment, both houses
explicitly and repeatedly rejected language that would
have guaranteed the constitutionality of Alaskas
existing firearms laws.
In other words, before the legislature
approved the proposed amendment and presented it to the
voters, the legislature made sure that the amendment
did not contain a provision guaranteeing the
constitutionality of Alaskas existing firearms laws.
It was error for this Court to interpret the amendment
to include this guarantee, based on the content of the
1994 election pamphlet statement in support of the
amendment.
In Gibson, this Court cited the Maine Supreme
Courts decision in State v. Brown, 571 A.2d 816 (Me.
1990), as providing support for our action. But the
Brown decision does not support what we did in Gibson.
In Brown, the Maine Supreme Court relied on a
statement in the state election pamphlet to ascertain
the intent of the voters who enacted a right to bear
arms amendment to that states constitution. But as the
Brown decision explains, the statement in question was
an objective evaluation of the proposed amendment
prepared by the Attorney General of Maine.
(The law of Maine requires the attorney
general to prepare and disseminate a non-partisan
analysis of every proposed constitutional amendment a
brief explanatory statement which shall fairly describe
the intent and content of each constitutional
resolution ... presented to the people. Brown, 571
A.2d at 817.)
In this official analysis of the proposed
amendment, the Maine Attorney General wrote that, even
after enactment of the proposed amendment, the personal
right to keep and bear arms would [still] be subject to
reasonable limitation by legislation. Id. at 818. The
Maine Supreme Court declared that the voters would be
presumed to have understood and accepted the attorney
generals construction of the proposed amendment [i]n
the absence of a challenge to the Attorney Generals
official explanation of the amendment. Id.
In other words, the Maine Supreme Court was
dealing with an uncontested and ostensibly objective
evaluation of the proposed amendment, offered by the
Maine attorney general pursuant to his statutory duty
to describe proposed constitutional amendments to the
voters. No one suggested that the attorney generals
description was one-sided or misleading, or that it
departed from the intention of the amendments drafters.
The 1994 Alaska election pamphlet did, in
fact, contain an objective, non-partisan summary of the
legislatures proposed amendment to Article I, Section
19. This neutral summary was prepared by the
Legislative Affairs Agency. But as I explained earlier
in this dissent, this summary of the proposed amendment
was completely silent on the most important aspect of
the amendment: the summary failed to mention the fact
that the primary goal of the amendment was to require
that all firearms laws meet a strict scrutiny /
compelling state interest test. Moreover, the
Legislative Affairs Agencys summary made no prediction
about the fate of Alaskas existing firearms laws if the
amendment was approved.
In other words, unlike the voters in Maine,
the voters of Alaska had no objective reference point
for evaluating the actual legal substance of the
proposed constitutional amendment its new restriction
on the authority of the legislature to enact firearms
laws. Indeed, the voters of Alaska received
essentially no information on this crucial issue.
Instead, the voters merely received competing
predictions, from two partisan groups, as to how
Alaskas existing firearms laws would fare if the
constitution was amended as proposed.
The Alaska Legislature repeatedly and
forcefully expressed its desire to require strict
scrutiny of firearms laws, and the legislature
repeatedly rejected attempts to include a guarantee for
Alaskas existing firearms laws. In Gibson, this Court
disregarded the legislatures intentions and instead
interpreted the 1994 amendment in accordance with one
of the partisan descriptions in the election pamphlet.
This was legal error.
Conclusion
For the reasons explained here, I conclude
that Gibson was wrongly decided. Gibson was badly
researched, and its reasoning is flawed.
I take no pride in saying this, for I was one
of the judges who joined the Courts decision in Gibson.
But I now perceive that the conclusion we reached in
Gibson is wrong.
The 1994 amendment to Article I, Section 19
was not intended to preserve Alaskas existing firearms
laws. In fact, the legislature repeatedly rejected
language that would have expressly guaranteed the
constitutionality of Alaskas existing firearms laws.
More importantly, the 1994 amendment was not
intended to allow the legislature to enact firearms
laws that were merely reasonable exercises of the
States police power. The legislature repeatedly
declared that its goal was to amend our state
constitution to require strict scrutiny of firearms
laws. In other words, it would no longer be sufficient
for firearms laws to be reasonable, or for firearms
laws to satisfy the sliding scale standard of judicial
review that had been used in the past. Instead,
firearms laws would have to be narrowly tailored to a
compelling state interest.
In Gibson, we failed to apply this heightened
level of scrutiny when we assessed the
constitutionality of the challenged firearms law.
Instead, we applied a sliding scale test: we upheld
the challenged law because it bore a close and
substantial relationship to a government interest.
Gibson, 930 P.2d at 1302. This was error.
In the present case, my colleagues again
employ the close and substantial relationship test to
uphold another firearms law this time, the felon-in-
possession statute. This, too, is error.
This Courts majority opinion relies on the
fact that other states have consistently rejected
similar constitutional challenges to felon-in-
possession statutes. This may be true, but it has
little relevance because, as I explained above, no
other state employs a strict scrutiny or compelling
state interest test when adjudicating the
constitutionality of firearms laws. Every other state
has interpreted its constitution to allow reasonable
regulation of firearms a position that our legislature
firmly rejected when it drafted the 1994 amendment to
Article I, Section 19.
Concededly, Gibson is currently the binding
precedent on the meaning of Article I, Section 19.
Therefore, when I argue that Gibson was wrongly decided
and should be reversed, I must demonstrate both (1)
that the interpretation of Article I, Section 19
announced in Gibson was originally erroneous, and (2)
that more good than harm would result from a departure
from precedent. State v. Dunlop, 721 P.2d 604, 610
(Alaska 1986) (quoting State v. Souter, 606 P.2d 399,
400 (Alaska 1980)).
I trust that I have adequately explained why
I conclude that Gibsons analysis of Article I, Section
19 is and was from the beginning erroneous. The
remaining question is whether the act of overruling
Gibson would accomplish more good than harm.
It is important to emphasize that, when a
court must decide whether to correct an earlier
mistaken interpretation of a constitutional provision,
the more good than harm test does not allow the court
to substitute its own value judgements, or its own
views of the public good, for the judgements and views
of the provisions framers. Rather, the courts duty is
to implement the intent of the framers.109
Of course, an appellate court need not defer
to the legislatures (or the voters) views concerning
the ultimate legal consequences of a particular
constitutional provision. And when the meaning or
intent of a constitutional provision remains unclear or
ambiguous even after a thorough examination of the
legislative record, a court may properly employ
precedent, reason, and policy to resolve the matter.
But when a court is called upon to decide the
meaning of a provision of our state constitution
(either an original provision or a later amendment), it
is the courts duty to interpret that provision as the
framers of the provision intended regardless of the
judges personal views concerning the wisdom of the
policy choice embodied in the constitutional provision.
In other words, when this Court assesses
whether more good than harm would result if we
corrected the mistaken interpretation of the 1994
amendment that we adopted in Gibson, it is irrelevant
whether we judges, individually or as a group, believe
that the public good would be advanced if the Alaska
Constitution allowed the legislature to enact all
reasonable firearms laws. Rather, we must ask whether
it would be better or worse, in terms of the rule of
law and the proper functioning of our system of
constitutional government, if we now interpreted
Article I, Section 19 as the authors of the 1994
amendment intended i.e., interpreted it to require
strict scrutiny of firearms laws.
In the absence of some good reason to think
that the intended purpose of Article I, Section 19
conflicts with another constitutionally protected right
or another constitutionally granted authority, the
answer to the question posed in the preceding paragraph
is obvious: it is better to interpret and apply the
constitutional provision as it was intended by its
drafters.
Accordingly, I conclude that this Court
should indeed, must overrule Gibson and hold that
Article I, Section 19 of the Alaska Constitution
requires us to apply a strict scrutiny or compelling
state interest test when we assess the
constitutionality of statutes regulating the possession
or use of firearms.
We should then give the parties the
opportunity to re-brief the issue raised in this case
i.e., the constitutionality of the statute that
prohibits even non-dangerous felons from possessing a
concealable firearm under this heightened level of
constitutional scrutiny.
_______________________________
* Sitting by assignment made pursuant to article IV, section
11 of the Alaska Constitution and Administrative Rule 23(a).
1 AS 11.61.200(a)(1).
2 554 U.S. ___, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).
3 Id. at _____, 128 S. Ct. at 2788.
4 Id.
5 Id.
6 Id.
7 Id. at _____, 128 S. Ct. at 2799, 2814.
8 Id. at _____, 128 S. Ct. at 2817-18.
9 Id. at _____, 128 S. Ct. at 2799, 2816.
10 Id. at _____, 128 S. Ct. at 2816-17 (emphasis added).
11 Id. at _____, 128 S. Ct. at 2822 (emphasis added).
12 See United States v. Cruikshank, 92 U.S. 542, 553, 23
L. Ed. 588 (1875); Presser v. Illinois, 116 U.S. 252, 265, 6 S.
Ct. 580, 584, 29 L. Ed. 615 (1886); Miller v. Texas, 153 U.S.
535, 538, 14 S. Ct. 874, 875, 38 L. Ed. 812 (1894); Heller, 554
U.S. at _____, 128 S. Ct. at 2813 n.23.
13 Nordyke v. King, 563 F.3d 439, 456-57 (9th Cir. 2009).
14 563 F.3d 439.
15 Id. at 457.
16 930 P.2d 1300 (Alaska App. 1997).
17 Id. at 1301.
18 Id.
19 Id. at 1302.
20 Id.
21 Id.
22 Id.
23 Id.
24 Alaska App. Memorandum Opinion and Judgment No. 4100
(Aug. 18, 1999),1999 WL 652444.
25 Id. at 5, 1999 WL 652444 at *2.
26 Id. at 1-2, 1999 WL 652444 at *1.
27 Id. at 5, 1999 WL 652444 at *2.
28 Id.
29 Id.
30 Id. at 6, 1999 WL 652444 at *3.
31 See, e.g., State v. Brown, 571 A.2d 816 (Me. 1990);
State v. Cole, 665 N.W.2d 328 (Wis. 2003); People v. Swint, 572
N.W.2d 666 (Mich. App. 1997).
1 Arco Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska
1992).
2 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
3 Arco Alaska, 824 P.2d at 710 (internal citations omitted).
4 See, e.g., Hickel v. Halford, 872 P.2d 171, 176-77 (Alaska
1994); Citizens Coalition for Tort Reform, Inc. v. McAlpine, 810
P.2d 162, 169 (Alaska 1991); State v. Lewis, 559 P.2d 630, 637-38
(Alaska 1977).
5 930 P.2d 1300 (Alaska App. 1997).
6 Id. at 1301-02.
7 Id. at 1302.
8 Alaska App. Memorandum Opinion and Judgment No. 4100 (Aug.
18, 1999), 1999 WL 652444.
9 Id. at 4-5, 1999 WL 652444 at *2.
10 See State v. Fremgen, 914 P.2d 1244, 1245 (Alaska
1996).
11 State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986)
(quoting State v. Souter, 606 P.2d 399, 400 (Alaska 1980)).
1 Gibson, 930 P.2d at 1301, 1302.
2 Id. at 1302.
3 Minutes of the Senate State Affairs Committee for January
21, 1994, Tape 94-2, Side B at 463.
4 Id. at 425.
5 Id.
6 Id.
7 Id. at 376.
8 Id. at 332.
9 Id.
10Id. at 273.
11Id.
12Id.
13Id. at 218.
14Id. at 183.
15Id., Tape 94-3 Side A at 001.
16Id. at 164.
17Id. at 069.
18Id. at 091.
19Id. at 095.
20Id.
21Id.
22Minutes of the Senate Judiciary Committee for February 4,
1994, Tape 94-6, Side B, starting at 523.
23Id. at 523.
24Id.
25Id.
26Id.
27Id.
28Id. at 352.
29Id.
30Id. at 240.
31Id.
32Id. at 121.
33Id.
34Id.
35Id., Tape 94-6, Side A at 010.
36Id.
37Id. at 139.
38Id. at 200.
39Id. at 250.
40Id.
41Id. at 290.
42Minutes of the Senate Finance Committee for February 15,
1994, Tape SFC-94, # 25, Side 1 (000 to end).
43Id.
44Id.
45Id.
46Id.
47Id.
48Id.
49Id.
50Id.
51Id.
52Id.
53Id.
54Id.
55Id.
56Id.
57Id.
58Id.
59See 1994 Senate Journal 3034-35 (March 2nd).
60See 1994 Senate Journal for March 3rd; the final vote is
at 3064.
61Id. at 3065.
62 See Minutes of the House Judiciary Committee for April
16, 1994, Tape 94-60, Side A, beginning at 252, and for
April 18, 1994, Tape 94-61, Side A, beginning at 850.
63 See Minutes of the House Judiciary Committee for April
16, 1994, Tape 94-60, Side A at 252.
64Id. at 287.
65Id.
66Id.
67Id. at 415, 435.
68Id. at 440.
69Id.
70Id. at 508.
71Id.
72Id. at 710.
73Id.
74Id.
75Id. at 777 end, and Tape 94-60, Side B at 000 692.
76Tape 94-60, Side B at 692.
77Minutes of the House Judiciary Committee for April 18,
1994, Tape 94-61, Side A, beginning at 850.
78Id.
79Id., Tape 94-61, Side B at 000.
80Id.
81Id.
82Id. at 129.
83Id.
84Id.
85Minutes of the House Finance Committee for April 30,
1994, Tape HFC 94-149, Side 1, (000 to end), and Side 2
from 000 to 392.
86Id.
87Id., Tape HFC 94-194, Side 1.
88Id.
89Id.
90Id.
91Id.
921994 House Journal at 3936.
93Id. at 3936-37.
94Id. at 3936.
95Id. at 3937.
96Id.
97Id. at 3938.
98Id. at 3940.
99Id. at 3972.
100 Id. at 3973.
101 Id.
102 Id. at 3991.
103 930 P.2d at 1301-02.
104 Minutes of the Senate Finance Committee for February
15, 1994, Tape SFC-94, # 25, Side 1.
105 Minutes of the Senate State Affairs Committee for
January 21, 1994, Tape 94-2, Side B at 103.
106 Id., Tape 94-3, Side A at 164.
107 See the Anchorage Daily News print edition for March 9,
2009, page A-9. This article was first published online on
March 8th. The online version is available at
www.adn.com/news/alaska/story/715801.html.
108 This Associated Press article appeared in two different
forms in the Anchorage Daily News. In the print edition of
the paper, the article appeared on April 17, 2009 (page A-4)
and was entitled House OKs exemption for Alaska-made guns.
In the online edition of the paper, the article was
published on the evening of April 16, 2009 and was entitled
Bill exempts Alaska from gun regulation. The online version
of the article is available at
www.adn.com/news/alaska/story/762363.html.
The two versions of the article contain substantially
different texts. According to the online article (which
contains the fuller description), Representative Kellys bill
purports to exempt all guns and ammunition manufactured and
kept within Alaska from federal firearms regulation.
Representative Kelly is reported to have stated that the
bill was intended to allow Alaskans to reclaim rights
guaranteed by the Second Amendment, and that Alaska will now
handle the regulation of [these weapons and ammunition].
109 Arco Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska
1992).
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