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Wilson v. State

Court of Appeals of Alaska

May 22, 2009

Allen WILSON, Appellant,
v.
STATE of Alaska, Appellee.

Page 566

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.[*]

OPINION

COATS, Chief Judge.

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 Wilson's motion to dismiss the indictment. Following his conviction, Wilson appealed Judge Wolverton's 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 Wilson's 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 State's compelling interest in preventing violent crime. Wilson argues that article I, section 19 guarantees an individual's 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 Wilson's. For example, the United States Supreme Court recently decided District of Columbia v. Heller [2] 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 individual's right to possess

Page 567

a firearm.[7] " Under any of the standards of scrutiny that [the Court has] applied to enumerated constitutional rights," the Court held, the District's 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 Wilson's 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 individual's 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

Page 568

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 Elections's 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 Alaska's laws regulating the possession of firearms by intoxicated persons." [22]

We then considered whether the statute violated Alaska's 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 state's 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 DeMars's 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 State's 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 Wilson's motion to dismiss.

The judgment of the superior court is AFFIRMED.

MANNHEIMER, Judge, dissenting.

Page 569

STEWART, Senior Court of Appeals Judge, concurring.

I concur with Chief Judge Coats's lead opinion. I provide additional comment in light of Judge Mannheimer's dissent.

An appellate court must apply its own independent judgment when deciding questions of constitutional law [1] 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 court's 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 voter's 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 State's

Page 570

competing interests in the stability of legal norms and the need to adapt those norms to society's 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 Wilson's conviction.

MANNHEIMER, Judge, dissenting.

In 1994, the voters of Alaska amended Article I, Section 19 of our state constitution to explicitly guarantee an individual's 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 individual's 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 Alaska's 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 Alaska's 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 Wilson's 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 Wilson's brief (and by the State's curiously ambiguous response to Wilson's 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

Page 571

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 legislature's authority to enact " reasonable" firearms laws, or that would have guaranteed the constitutionality of Alaska's 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 amendment's 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 amendment's likely effect on Alaska's existing firearms laws.

The opponents of the amendment feared that, under strict scrutiny, many of Alaska's 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 legislature's 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 Alaska's 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 Alaska's 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 Alaska's 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 amendment's 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

Page 572

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 Alaska's firearms laws. But this was simply a prediction that Alaska's existing firearms laws would survive the strict scrutiny analysis required by the 1994 amendment. It was not a repudiation of the legislature's 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 legislature's 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 individual's 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.

Page 573

Apparently recognizing that this far-reaching language might be employed to attack Alaska's 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 Alaska's 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 Alaska's 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 Alaska's 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 amendment " 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 Udland's 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

Page 574

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 Committee's legislative aide, Portia Babcock, to describe Joint Resolution No. 39 and to respond to Udland's 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 ...


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