Does Alaska Law Protect My Constitutional Right to Possess a Gun?
Once someone learns I’m a criminal defense lawyer, they ask me about gun rights more than nearly any other topic. Alaskans’ right to Keep and Bear Arms is enshrined in the Alaska Constitution, Article I, Section 19: “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. The individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State.” The second sentence was added in 1994 to make explicit that the first sentence, pilfered verbatim from the Second Amendment to the U.S. Constitution, creates a personal right to possess a firearm unconnected with service in an official militia.
In fact, it was not entirely clear until 2008 that the Second Amendment applied to a personal right to keep and bear arms; that is, some argued based on its plain language that the Second Amendment only applied to possession with respect to maintaining a militia. But, the Supreme Court of the United States put that uncertainty to bed in District of Columbia v. Heller. By way of background, beginning in 1976, the District implemented a covert ban on handguns by prohibiting residents from carrying unregistered handguns while simultaneously refusing to issue any registrations. Residents could have an unregistered handgun in their homes, but it had to be “unloaded, disassembled or rendered inoperable” by a trigger lock. Under the D.C. ordinance, residents could not carry a loaded handgun from room-to-room in their own homes without a registration. That was before Dick Heller, a D.C. policeman, applied to register a handgun he planned to keep loaded in his home. The District refused his registration, so Heller filed suit on Second Amendment grounds to overturn the D.C. law. By a 5-4 vote, the Supreme Court held that D.C.’s handgun ban violated an individual’s Second Amendment right to bear arms for lawful purposes such as self-defense regardless of whether the individual was in a militia. Notably, however, the opinion was written by the late Justice Scalia, and went to pains to ensure the Heller decision could not be interpreted too broadly: “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner and for whatever purpose.”
Can the State of Alaska Prevent My Right to Keep and Bear Arms?
Myriad federal and state courts have ruled that these constitutional guarantees do not prevent states from reasonably regulating firearms, including (A) requiring handgun registration, (B) prohibiting certain kinds of weapons, (C) prohibiting concealed weapons, and (D) prohibiting convicted felons from possessing firearms. Yes, believe it or not, carrying a concealed weapon is not constitutionally-protected (which is not to say it is necessarily illegal). It is also important to recognize that the right to possess a handgun for some people is different than the right to possess a rifle, shotgun or other non-concealable firearms. Alaska law prohibits any unemancipated minor under the age of 16 from possessing a firearm without the consent of the parent. However, for us adults, there is no waiting period to purchase a handgun nor any requirement that one must register their handgun. While you do not need a permit to carry a handgun open or concealed in Alaska, you can obtain such a permit which might allow you to carry it in another state that has reciprocity with Alaska. Getting down in the weeds a bit, it is illegal to possess a gun in a courthouse or on any school grounds (unless the person has obtained the permission of the head of administration of the school or the district in advance), as well it is illegal to possess a gun in a bar or in a restaurant where alcohol is sold (unless you are not drinking). It is also illegal to possess a firearm on one’s person or in a vehicle while impaired by alcohol or drugs. And, of course, it is illegal to possess a firearm at a domestic violence shelter or a licensed childcare facility. Can’t you just see a toddler packing?
While there is no legislative statute on point, there may be administrative regulations which prohibit firearms in the following places: parks, hospitals, places of worship, sports arenas, gambling facilities, or polling places. As well, businesses may choose to prohibit the possession of firearms in areas beyond a security checkpoint where visitors are screened that do not include common areas of ingress and egress open the general public.
How Can I Possess a Concealed Handgun?
In addition to these other restrictions, if you are carrying a concealed handgun you must: (A) be at least 21 years of age; (B) if approached by the police immediately notify them that you are carrying the weapon, and allow them to secure the weapon during the contact or follow their directions for securing it; and, (C) not enter another’s residence without first getting their permission to carry concealed in that residence.
When, If Ever, Can a Felon Possess a Gun In Alaska?
With some exceptions, 10 years after completing felony probation the state of Alaska no longer bans felons from possessing concealable firearms or living in a residence where there is present a firearm capable of being concealed. Also, a felon who is off probation may possess a shotgun or long rifle in Alaska, with some exceptions. These exceptions to which I refer are extremely important: the restoration of a felons right to possess a firearm does not apply if the felon was convicted of any “crime against a person” under Alaska Statues 11.41.100 – 11.41.530. This is a huge exception because there are many felony “crimes against a person” under Alaska law, including but not limited to:
3. Criminally Negligent Homicide,
4. Felony Assault in the First, Second or Third Degree,
5. Stalking and First-Degree,
7. Custodial Interference in the First Degree,
8. Human Trafficking in the First Degree,
9. Most Sexual Assaults and SexualAbuses of a Minor,
10. Indecent Exposure in the First Degree,
11. Unlawful Exploitation of a Minor,
12. Online Enticement of a Minor,
14. Extortion, and
What if I’ve Been Convicted of a Felony or “Crime Involving Domestic Violence”?
Under federal law, which can be found at 18 United States Code, section 922 (a.k.a. 18 USC sec. 922), there are numerous people besides felons who may not purchase or possess any firearms or ammunition, including:
1. a fugitive from justice,
2. anyone who is and an unlawful user of or addicted to any controlled substances (as defined in the Controlled Substances Act),
3. anyone who has been adjudicated as a mental defective or who has been committed to a mental institution,
4. illegal aliens,
5. anyone who was dishonorably discharged from the Armed Forces,
6. anyone who was a citizen of the United States who renounced his citizenship,
7. anyone who is subject to a long-term domestic violence restraining order, and
8. anyone who has been convicted in any court of a misdemeanor “crime of domestic violence.”
As might be obvious at this point, this is a complex mishmash of state and federal laws. It is not a good idea to try to figure it out on your own if you are not trained in the law. I have reviewed many Internet websites and find that many give inaccurate summaries of laws while others provide very bad advice about gun rights. For example, what exactly is a “crime of domestic violence” under federal law? What does it mean to be “an unlawful user of or addicted to” drugs? How can it be that a felon can have his gun rights restored at some point in the future when someone who commits a mere misdemeanor crime of domestic violence cannot? It would seem that a felon is presumptively more dangerous than a misdemeanant, yet that is not how the federal law reads. No one has ever said that Congress has to make sense.
What if Federal Law and Alaska State Law Conflict? Which One Must I Follow?
Earlier in this article, I explained that under Alaska law one convicted of a felony not involving a “crime against a person” can legally possess firearms that are not concealable as soon as they are off probation. And, those same felons are permitted to possess any firearm, including a concealable handgun, after they are off probation for 10 years. (See Alaska statute 11.61.200(b)(1) and (2)) That means that no Alaska law enforcement officer would likely arrest you, or seek to charge you, if you were in strict compliance with Alaska statute 11.61.200; however, the federal government just might. The Supreme Court of the United States issued a ruling in 1998 that upheld the conviction of a man in Massachusetts who was lawfully possessing a shotgun after he was convicted of a felony. Under Massachusetts state law, his possession of the firearm was lawful because the only gun he could not possess was a handgun (which he was not possessing). Nevertheless, he was charged with a felony under federal law [18 USC 922(g)(1)] for being a felon in possession of a firearm despite that his conduct was legal under Massachusetts state law. Ultimately, the Supreme Court held that so long as there is any prohibition against the person possessing a firearm under any circumstances (and might be legal in other circumstances), the federal law prohibits the person from possessing any firearm until all disabilities are removed. In other words, during the 10 years that a felon in Alaska may possess only a long rifle or shotgun, because they are still not allowed to possess a handgun under state law the federal law would deny them the right to possess even the rifle or shotgun. Again, this is a very complex area of law and you should not attempt to interpret it on your own. Instead, you should speak to a lawyer experienced in firearms and criminal defense law.
What about Possessing a Compound Bow or Black Powder Gun?
Under the federal statute known as the Gun Control Act, “firearm” is specifically defined as “any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” Importantly, however, this same federal law defines “antique firearm” as any firearm manufactured before 1899 — including a replica thereof. It seems that this federal law assumes that all guns built before 1899 are intended to use a simple “cap and ball” black powder design. Likewise, the other caveats in the federal definition of “antique gun” are designed to ensure that such a firearm remains a one-shot antiquated “cap and ball” design (whether or not possessed by a felon) or it ceases to be an “antique” firearm. Most significantly, this definition allows a black powder replica gun so long as it is “not designed or redesigned for use in rimfire or conventional centerfire fixed ammunition.” Thus, respecting this restriction, a felon would have to keep the gun in its original configuration and use it as a black powder “cap and ball” arrangement lest the firearm lose its antique status. And consequentially it would no longer be legal to possess by felons who are otherwise not allowed to possess firearms at all. In addition to not being allowed to retrofit the gun to accept fixed ammunition, it also must not incorporate a firearm frame or receiver, or be “readily converted” to fire fixed ammunition by simply replacing the barrel, bolt or breechblock. I don’t really know what any of those things are, but be sure not to violate these prohibitions if you want your pre-1899 firearm (or replica) to remain an “antique” under the Gun Control Act. If one follows all these rules, a person convicted of a felony can possess a muzzleloading rifle, shotgun or pistol so long as it still qualifies as an “antique firearm.” Again, I cannot overstate how this is a complex area of overlapping myriad federal and state law, wherein the devil is in the details.
But what about a bow and arrow for hunting or target practice? Since a bow is not a “firearm” it is not illegal under the federal Gun Control Act; in other words, a bow is not designed to fire a projectile by use of an explosive force. Based on this definition, I do not think it is illegal for a felon to possess a simple compound or other longbows. I also cannot find any Alaska law that restricts possession, purchase or use of a compound or longbow by a felon. For the same reasons, it seems that the gun laws also do not prohibit possession of pneumatic guns, spring guns, paintball guns, pellet guns, or “shoot your eye out” BB guns. Likewise, I cannot find any Alaska law that restricts possession, purchase or use of a crossbow by a felon. Some states, like New York, do not allow felons to own weapons of any kind, which includes crossbows. Other states ban crossbow hunting regardless of the person’s criminal background, like Oregon. So, it appears that owning a crossbow is legal under federal and Alaska law, but there may be specific hunting regulations that disallow using a crossbow for certain animals during certain seasons. I would suggest either checking with a lawyer, or visit your local Department of Fish & Game (state) or Fish & Wildlife Service (federal) before hunting with a crossbow.
Will Hiring a Lawyer Help Me Decide If I Can Own a Gun in Alaska?
Yes. A consultation with a skilled defense attorney might save you a lot of money, energy and time in prison. Keep in mind that a lawyer is your legal advocate and must give you sound advice rather than telling you whatever they think you want to hear to get you to hire them. If you have any further questions about this topic, feel free to call my office in at 907.262.9164 or send me an email personally at Eric@TrialGuy.com.