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Wilson v. State (5/22/2009) ap-2217

Wilson v. State (5/22/2009) ap-2217

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         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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