A Shot in the Dark: Why Strict Scrutiny Would Miss the Mark for Felon-in-possession Restrictions

JurisdictionAlaska,United States
Publication year2011
CitationVol. 28


Alaska Law Review
Volume 28
Cited: 28 Alaska L. Rev. 161


Gabriel A. Blumberg [*]


In light of Judge Mannheimer's lengthy dissent in Wilson v. State regarding the 1994 amendment to article I, section 19 of the Alaska Constitution, this Note takes an in-depth look at the history of that amendment. The amendment clearly established an individual right to bear arms for Alaska citizens, but Judge Mannheimer interpreted it as also requiring courts to implement strict scrutiny when reviewing the constitutionality of firearm prohibitions. This Note thoroughly examines the legislative history of the amendment and the 1994 election pamphlet to determine whether felon-in-possession laws should be subjected to strict scrutiny review. While the legislative history did leave the door open to a higher standard of review for felon-in-possession statutes, the court of appeals firmly shut that through its post-1994 rulings. This Note argues that the court has correctly applied the legislative intent, and the principle of stare decisis was correctly utilized in Wilson v. State to forego application of strict scrutiny.


In 1994, the voters of Alaska approved an amendment to article I, section 19 of the Alaska Constitution. [1] The amendment states: "The individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State." [2] Over the next fifteen years, three Alaska cases interpreted this amendment, and all three reached the same conclusion: the amendment guarantees an individual right to bear arms but still allows the legislature to promulgate firearm restrictions for certain dangerous classes regardless of whether such restrictions are narrowly tailored to meet a compelling government interest. [3] In 2009, the Alaska Court of Appeals addressed this issue for a fourth time in Wilson v. State. [4] This case marked the first opportunity for the court to construe article I, section 19 since the United States Supreme Court held in District of Columbia v. Heller [5] that the Second Amendment of the United States Constitution protects an individual right to bear arms apart from any militia service. [6]

In Wilson, Allen Wilson was found in possession of a loaded handgun after being pulled over for a traffic violation. [7] Since he had previously been convicted of a felony, Wilson was charged with violating section 11.61.200(a)(1) of the Alaska Statutes. [8] This provision states that "[a] person commits the crime of misconduct involving weapons in the third degree if the person . . . knowingly possesses a firearm capable of being concealed on one's person after having been convicted of a felony." [9] At trial, Wilson asserted that this statute was unconstitutional under the 1994 amendment to article I, section 19 because it did not distinguish between violent and non-violent prior felonies. [10] The trial court denied his motion to dismiss, and Wilson was convicted. [11]

Wilson raised the same issue on appeal, and the court of appeals disagreed with Wilson and affirmed the conviction. [12] Chief Judge Coats authored the opinion and relied heavily on the court's prior decision in Gibson v. State, [13] which concluded that the legislative history and voter intent of the 1994 amendment demonstrated that certain restrictions, such as prohibiting felons and intoxicated citizens from possessing firearms, should not be invalidated by the amendment. [14] He also referenced District of Columbia v, Heller [15] in order to demonstrate the United States Supreme Court's view that even though individuals have a right to bear arms under the Second Amendment (which at the time of Gibson had not yet been incorporated against the states [16], the right is not absolute with regard to convicted felons. [17]

Judge Stewart wrote a concurring opinion that supported Chief Judge Coats' conclusion by noting the value of common sense and stare decisis. [18] Judge Stewart appropriately interpreted the 1994 amendment in light of the Alaska Supreme Court's guidance regarding constitutional interpretation. He announced that appellate courts should apply independent judgment to questions of constitutional law and give constitutional provisions "a reasonable and practical interpretation in accordance with common sense." [19] Additionally, the proper review requires that courts "look to the plain meaning and purpose of the provision and the intent of the framers." [20] Judge Stewart immediately applied these standards to decipher the intent of the voters because they had been the ones ultimately responsible for approving the amendment. [21] Indeed, a key aspect of his analysis is its practical focus. Judge Stewart pointed out that most citizens were likely not aware of the standard of review that applied to firearm restrictions, [22] nor that the adoption of this amendment could implicate the standard. [23] Neither the election pamphlet nor the ballot made any reference to a standard of review. [24] Not even the neutral opinion of the Legislative Affairs Agency made any mention of a potential change to it. [25] Accordingly, Judge Stewart came to the conclusion that the 1994 amendment did not require the court to use strict scrutiny review in felon-in-possession cases. [26]

In response to the majority's short and seemingly straightforward decision, Judge Mannheimer penned a twenty-four-page dissent thoroughly analyzing the legislative history of the 1994 amendment. He passionately and persuasively argued that the Legislature intended to apply strict scrutiny to firearm regulations. This Note aims to demonstrate that the only aspect of the resolution that is binding on the courts is its adoption of an individual right to bear arms. The committee meetings are replete with legislators stating that the purpose of the amendment is to guarantee an individual right to bear arms. [27] Similarly, the plain meaning of the amendment demonstrates an intent to clarify that article I, section 19 grants an individual right rather than a collective right. The legislature specifically began the amendment with the phrase "[t]he individual right."

In light of Judge Mannheimer's forceful dissent regarding the need for strict scrutiny, this Note will evaluate the court's current approach to the level of review for firearm cases. [28] It will argue that the court in Gibson opened the door to implementing a heightened standard of review for felon-in-possession laws because of its unique opportunity to analyze them in connection with privacy claims under article I, section 22 of the Alaska Constitution. [29] In privacy cases, the court either applies a "compelling interest" test [30] or intermediate scrutiny [31] depending on whether the individual has a fundamental right and whether the individual's action "interferes in a serious manner with the health, safety, rights and privileges of others or with the public welfare." [32]

Through independent analysis of the legislative history and prior cases, this Note aims to demonstrate that the Alaska courts have been correctly interpreting article I, section 19 of the Alaska Constitution by eschewing strict scrutiny when reviewing constitutional challenges to felon-in-possession statutes. The legislative history of section 19, as well as its interpretation by the Alaska courts, demonstrates that at most the proper standard is a level of review that requires a "close and substantial relationship" to a legitimate government interest. This standard satisfies Alaska's desire for strong protections against government intrusions, [33] but it still allows statutes that prohibit firearm possession by felons.

Part I of this Note begins by reviewing the history of article I, section 19 of the Alaska Constitution and its similarities to the Second Amendment of the U.S. Constitution. This portion next conducts a thorough examination of the legislative history of the 1994 amendment, which reveals a legislative intent to clarify an individual right to bear arms and to retain restrictions for convicted felons. The Note then assesses the effect of the election pamphlet given to voters in the 1994 election. Part I.D looks at the three pre-Wilson cases that addressed section 19 claims in the aftermath of the 1994 amendment. Lastly, Part II of the Note contends that even if an argument could be made for implementing strict scrutiny, stare decisis requires that the courts continue utilizing a lower standard of review when considering felon-in-possession firearm challenges.

I. Judicial Scrutiny and the Right to Bear Arms

A. General Background of Article I, Section 19

In 1955, four years before Alaska became a state, delegates from across the territory convened in Fairbanks to craft a constitution that would bolster their case for statehood. [34] The delegates chose to use the United States Constitution as a framework with the idea that by mirroring the U.S. Constitution, their chances for being granted statehood would increase substantially. [35] In fact, many sections of the Alaska Constitution use wording almost identical to that found in the U.S. Constitution. [36] one such provision is section 19 of article I, which states "A well-regulated militia being necessary...

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