Monday, January 28, 2013

Alaska Concealed Carry and Open Carry law

With the recent controversy over the type of weapons used in the Sandy Hook Elementary School shooting, it is appropriate to review Alaska’s firearms carry laws.

Alaska residents 21 years of age or older may carry a concealed firearm without prohibition with the following provisos:
The person is 21 years or older.
The person is eligible to own or possess a handgun under state and federal laws The firearm is legal.
Upon contact with a peace officer, the person immediately informs the officer about the weapon, and allows the officer to secure the weapon for the duration of the contact.
The person does not carry the weapon if they are intoxicated or impaired by alcohol or controlled substances
The person does not carry the concealed weapon in certain places:
In someone else's home without their specific knowledge and permission
In any place where intoxicating liquor is sold for on-site consumption, except a restaurant and the person does not consume alcohol beverages
In or around any public or private K-12 school or on a school bus without the knowledge and consent of the school's administrator. (weapons may be unloaded and locked in the trunk of a car or secured in a locked container)
In or around a child care facility. (weapons may be unloaded and locked in the trunk of a car or secured in a locked container)
In a courthouse, court room, or office of the court system or justice related agencies
In domestic violence or sexual assault shelters.
Alaska's laws do not apply to federal property, offices, installations, or places under federal jurisdiction. Such places can include national parks, military bases, federal court buildings, space rented by federal offices, airports, or airport terminal areas. Please consult with the appropriate federal agency before deciding if weapon carry or concealed carry is permitted.
The owners or management of facilities, including such places as hospitals, universities, gymnasiums, or private property, may restrict or deny concealed carry on their premises. Failure to comply while on their property could violate trespass statutes.
Municipalities may not prohibit or limit concealed carry beyond any statutory restrictions under AS 18.65.

Alaska’s concealed handgun firearms permit

Alaska does have a formal concealed handgun carry permit process. AS 18.65.700 through AS 18.65.790 govern Alaska’s concealed handgun permit program. 13 AAC 30 comprises the regulations for the concealed permit program. Although, Alaska law does not require a concealed carry permit to carry a concealed firearm, the concealed carry permit allows reciprocity with other States that have concealed carry permits as their only legal mechanism for carrying concealed. The Alaska concealed carry permit is a good idea if one travels Outside on business or for vacation and one is traveling to a State that has reciprocity with Alaska’s concealed carry law.

Having an Alaska Concealed Carry Permit does not mean that you will have the same rights as you would in Alaska when you travel to another State, as you have to meet the provisions of the law in that State regarding carry. Make sure that you review the concealed carry laws of the State you are intending to visit and ensure that transportation of your pistol meets federal and State transportation requirements as to packaging and locks. You will need to notify the airline of your intent to ship a firearm as part of your baggage in advance of the day of travel. Each airline may have differing requirements, so make certain you contact the airline with sufficient time to prevent any misunderstandings.

If you feel you need to apply for a concealed carry permit, you will need to complete and pass a concealed carry firearms course conducted by a qualified instructor, be finger printed, undergo a National Instant Criminal Check (NICS), and complete the state permit application. You must be 21 years of age, a resident, and be physically and mentally capable of using the firearms safely. Completion of the approved handgun carry course may be accomplished up to a year before submitting the application (13AAC30.070(a)).You can apply in person to any office of the Alaska State Troopers. The Dept. of Public Safety maintains a list of qualified instructors on their website. The URL for the DPS website is given below.

Even if you do not intend to apply for the concealed handgun permit issued by the State of Alaska, it is a good idea to take the course from an approved firearms instructor. The concealed carry course offers hands on firearms training and an overview of Alaska law. If you can pass the concealed handgun permit test given by the firearms instructor, you will have a good understanding of the law regarding the defensive use of a firearm.

Open carry

Most Alaska jurisdictions have few restrictions on open carry. Open carry restrictions with respect to where you can carry are the same as the concealed carry restrictions.

AS 11.61.190 through AS 11.61.200 define misconduct with a weapon.

For more information:

Department of Public Safety Alaska Concealed Handgun website

List of States with which Alaska has reciprocity

Firearms ownership or possession

DPS concealed firearms permit contact information

Concealed Handgun Permits information and application forms

Restrictions as to where you can concealed carry in Alaska

List of approved finger printers

Alaska concealed handgun permit statutes and regulations

Women and guns

Women are prime targets for the criminal. The admonitions of equality with men in almost every category by the feminist movement without standing, rape statistics demonstrate that women are prey for certain types of men with serious mental issues. Yet, the majority of women between 18 and 26 voted for President Obama. They voted for a president who does not believe that one should even use a firearm in defense of one’s own life and family within one’s own house.

In 2004, as an Illinois State Senator, he voted in opposition to a bill that would have granted an exception to the handgun ban that would have allowed one to use a firearm in defense of one’s life in one’s own home. President Obama believes that none have the right to self-defense with a firearm, even in defense of one’s life and family in one’s own home.

Yet, this president alleges that he fully supports the Second Amendment to the Constitution of the United States. His history says otherwise. In fact, it certainly appears from his legislative and ideological history that he is more than willing to allow the rape and murder of the victim so long as the victim does not resist the felon by any attempt at self-defense with a firearm.

The liberal left has always believed that one should never oppose a criminal, that one should always retreat, locking one’s self away if possible, or to just try to survive the assault if it was not possible to get away. That is your duty as a ‘good’ citizen. After all, the criminal is a product of their upbringing and society must suffer those it produces. ‘Collateral’ damage is acceptable to the liberal, so long as the ideal is the goal. In this case, an America without firearms.

Further, the liberal believes that somehow simply putting an admonition into law immediately results in that outlawed activity ending. As if the idea of an ‘assault’ weapons ‘ban’ would accomplish anything that would save one child’s life? Of course, these same liberals are hypocrites, as their imperative in killing the unborn has resulted in the deaths of an estimated 55 MILLION Americans as a result of abortions.

The idea of rape is abhorrent to any sane, rational individual. To the liberal, given their outlook with respect to the criminal having greater rights than the victim, rape is unfortunate, but, usually survivable. It is not unexpected that there must be casualties in the progressive struggle to spread the ideology of change.

Our children are conditioned to believe that violence is abhorrent, and that civilized people respect each other’s rights without violence. That one is not responsible for their actions or conduct. And, little boys should not be boys, but drugged into compliance. After all, little girls don’t act ‘that way’.

To that end, the National Education Association and the American Federal of Teachers have continually opposed any firearms in a school, including those of police and armed guards. Fortunately, saner minds have prevailed in those school districts with armed guards or police already in the schools. Belatedly, the Newtown school district has decided that armed police in the schools indefinitely may protect the children, where rhetoric and specious law and policy have failed.

In the 1960s, the city of Orlando Florida had a serious problem. 33 rapes had occurred within 9 months. A decision had to be made for the safety of the citizens. The police admitted that they were too few and far between to be of any impact. The Orlando Sun-Sentinel newspaper and the Orlando Police Department came up with a novel solution.

In 1966, self-defense firearms training was offered to the women of Orlando by the Orlando Police Department. 6,000 women took the offered training, which was well publicized by the Orlando Sun-Sentinel. Decals were given to those who completed the firearms course and placed on home windows. There was an 88% reduction in rape in the first year after the start of the firearms training program. Yet, the incidence of rape did not decrease in surrounding Florida cities. The only change was Orlando’s firearms training program for women.

Similar firearms training programs conducted in Highland Park, MI and New Orleans, LA resulted in drops in the rate of armed robbery. When Kennesaw, GA required its citizens to maintain a firearm in each household, burglaries dropped 89% during the seven months after the law passed, as compared with the same period the previous year.

The use of firearms for self-defense by the law abiding are, at the very least, an impediment to crime.

Without a doubt, one of the concerns of most Americans is having one’s door kicked in during the dark of night by thugs intending to rob and do harm to one’s self and family. Yet, the American rate of home invasion is lower than that of Great Britain or Australia, both countries with bans on the use of firearms for home defense.

The private ownership of firearms in the United States is estimated to reduce the violent crime rate by 9%.

Prior to its handgun ban, Chicago enjoyed a lower rate of burglary and aggravated assault than any other large city in the U.S. During the first year of Chicago’s handgun ban, Chicago’s crime rate increased considerably. Even with the handgun ban for law abiding citizens, Chicago suffers a 42% higher rate of police officer deaths in the line of duty.

With the threat of an armed homeowner in the minds of burglars, only 13% of attempted burglaries are made against homes that are occupied. The greatest deterrent is the possibility of encountering an armed homeowner.

In England, Australia, and the Netherlands, home invasion is a regular occurrence given their hand gun bans. The reason home invasion occurs when the occupants are home is that the doors are unlocked, the alarm systems are off, and the occupants are . . . unarmed.

What the President proposed with his executive proposals and his proposed firearms ban and magazine ban has been proposed before. There was nothing new offered. Had this President been interested in protecting the women and children of the United States from violent crime, he would not have worried about bans or proposals. He would have done as the Orlando Police and the Sun-Sentinel did way back in 1966 to reduce rape in Orlando.

Were he actually serious about the safety of our children and women, President Obama would have called for a comprehensive effort across the nation to train women to use firearms for self-defense. He would have called for an education program to teach our young firearms safety. Instead, he continued the tired progressive anti-gun mantra that is nothing but a thinly veiled attempt to compromise the Second Amendment. His program has nothing to do with the safety of our children, but everything to do with undermining the Constitution of the United States.

Crime is random. Bad things happen to good people. The police come after the fact. The only response left to the citizen, is to be prepared. The Second Amendment provides for self-protection through the use of a firearm. This protection was recognized in District of Columbia v. Heller before the Supreme Court, and in Moore v. Madigan before the 7th Circuit Court of Appeals. In Moore v. Madigan, the appellate court recognized that the right to self-defense with a firearm extended beyond the home and wherever a person might be.

If firearms owned by law abiding citizens have a negative impact upon crime by reducing crime, why did the women of this country vote for someone who could care less about their safety and who is willing to sacrifice them and their children for his ideological goals?

A victim who is armed, is not a victim.

Ladies, you cannot rape a .38.

 

 

For more information:

World Net Daily

David Kupelian, How Obama’s gun order will backfire: http://www.wnd.com/2013/01/how-obamas-gun-order-will-backfire

Wall Street Journal:

John Lott, The facts about assault weapons and crime: http://professional.wsj.com/article/SB10001424127887323468604578245803845796068.html?mod=hp_opinion

Law and Contemporary Problems Symposium, Gun Control, vol. 49, no. 1, (1986): 35:

"Policy Lessons From Recent Gun Control Research", Gary Kleck,, p47 : http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3824&context=lcp

District of Columbia v. Heller: http://www.law.cornell.edu/supct/html/07-290.ZS.html

Moore v. Madigan: http://www.isra.org/lawsuits/coa.pdf

ILEETA Amicus Brief: http://www.davekopel.com/Briefs/ILEETA-Chicago-amicus.pdf

Alaska arrest law

The following is presented for informational purposes only. Contact an attorney if you have any questions regarding your rights under Alaska law.

The purpose of this article is not encourage Alaskans to go out and to make arrests, but to inform Alaskans that they have statutory authority to act in their own self-interest, if the situation requires it, and there is no law enforcement available. Alaska statutes give Alaskans the ability to deal with the criminal who thinks that he/she can violate Alaska’s criminal code in Bush communities, a remote mining camp or oil field, in remote wilderness or upon Alaska’s waters with impunity when there is no law enforcement available. This is another situation where lawfully carrying a firearm is in one’s best interest for safety, security, and in support of one’s public duty obligations.

The Second Amendment is restated under Article 1 §19 of the Constitution of the State of Alaska. Alaska’s Constitution further defines the right to keep and bear arms as an individual right, free from interference by the State or any political subdivision of the State.

Article 1 Declaration of Rights

"§19. Right to Keep and Bear Arms.

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."

Alaskans have cause to carry weapons more frequently than other Americans, because of Alaska’s frontier status. The reasons for this are founded in the vastness of Alaska, 663,300 square miles, two and four legged predators, the lack of surface transportation infrastructure, and the lack of law enforcement outside of south central Alaska. Therefore, where there is no timely alternative, Alaska law has provided a means for the private person to arrest those that commit an offense under Alaska law.

The Legislature of Alaska has recognized Alaskans right to self defense and self-protection with a firearm under the Second Amendment. The role of firearms in Alaska covers survival, subsistence and sport hunting, use in the State Defense Force and the unorganized militia, and self protection/self defense against two and four legged predators. If necessary, that use covers self protection/self defense in situations involving a citizen’s arrest under Alaska statutes.

Any private person or peace officer in Alaska is authorized the power of arrest.

AS 12.25.010. Persons Authorized to Arrest

"An arrest may be made by a peace officer or by a private person."

It is the individual’s decision as to whether or not the person makes an arrest or ignores the situation and goes about one’s business. Note that the term ‘private person’ means any private person, citizen or not.

AS 11.81.900. Definitions.

"(b)(16) "deadly force" means force that the person uses with the intent of causing, or uses under circumstances that the person knows create a substantial risk of causing, death or serious physical injury; "deadly force" includes intentionally discharging or pointing a firearm in the direction of another person or in the direction in which another person is believed to be and intentionally placing another person in fear of imminent physical injury by means of a dangerous instrument;

(b)(24) "felony" means a crime for which a sentence of imprisonment for a term of more than one year is authorized;

(b)(44) "peace officer" means a public servant vested by law with a duty to maintain public order or to make arrests, whether the duty extends to all offenses or is limited to a specific class of offenses or offenders;

(b)(45) "person" means a natural person and, when appropriate, an organization, government, or governmental instrumentality;

(b)(49) "premises" means real property and any building;"

AS 12.25.160. Arrest Defined.

"Arrest is the taking of a person into custody in order that the person may be held to answer for the commission of a crime."

What are the grounds for a citizen to make an arrest?

AS 12.25.030. Grounds for Arrest by a Private Person or Peace Officer Without Warrant

"(a) A private person or a peace officer without a warrant may arrest a person

(1) for a crime committed or attempted in the presence of the person making the arrest;

(2) when the person has committed a felony, although not in the presence of the person making the arrest;

(3) when a felony has in fact been committed, and the person making the arrest has reasonable cause for believing the person to have committed it."

Note that the crime must be of at the level of both a misdemeanor or a felony under Alaska statutes. If the crime is a misdemeanor, the person or peace officer, the commission of the crime must have been committed in the presence of the person or peace officer.

AS 11.81.390. Use of Force by a Private Person in Making an Arrest or Terminating an Escape.

"In addition to using force justified under other sections of this chapter, a person, acting as a private person, may use nondeadly force to make an arrest or terminate the escape or attempted escape from custody of a person who the private person reasonably believes has committed a misdemeanor in the private person’s presence or a felony when and to the extent the private person reasonably believes it necessary to make that arrest or terminate that escape or attempted escape from custody. A private person may use deadly force under this section only when and to the extent the private person reasonably believes the use of deadly force is necessary to make the arrest or terminate the escape or attempted escape from custody of another who the private person reasonably believes

(1) has committed or attempted to commit a felony which involved the use of force against a person; or

(2) has escaped or is attempting to escape from custody while in possession of a firearm on or about the person."

Note the qualification of the felony offense involving the use of force against the victim, and the escapee being in possession of a firearm.

The amount of force one can use in making an arrest is limited by law.

AS 12.25.070. Limitation on Restraint in Arrest

"A peace officer or a private person may not subject a person arrested to greater restraint than is ncessary and proper for the arrest and detention of the person."

Obviously, only that force necessary and reasonable can be used in making the arrest. However, the private person may use force, up to and including deadly force in making an arrest or when assisting a peace officer in making an arrest. This in recognition that violent offenders may use force themselves in resisting arrest.

AS 11.81.380. Justification: Use of Force by Private Person Assisting An Arrest or Terminating an Escape.

"(a) Except as provided in (b) of this section, a person who has been directed by another who that person reasonably believes to be a peace officer to assist in making an arrest or terminating or preventing an escape may use nondeadly force when and to the extent the person reasonably believes it necessary to carry out the peace officer's direction. A person may use deadly force under this section only when the person reasonably believes it necessary to carry out the peace officer's direction to use deadly force.

(b) The use of force under (a) of this section is not justified if the person believes that the peace officer is not justified in using that degree of force under the circumstances."

AS 11.81.390 as stated above also authorizes the use of deadly force only against those who have committed a felony involving violence or an escapee with a firearm.

Deadly force is authorized as necessary. The use of a firearm by the private person is anticipated for self-protection/self defense under AS 11.81 of Alaska statutes.

What is the authority given the person attempting to retake an escaped offender?

AS 12.25.120 Retaking Escaped Prisoner

"If a person arrested escapes or is rescued, the person from whose custody that person escaped or was rescued may immediately pursue and retake that person at any time and in any place in the state."

Obviously, the pursuit of an escaped prisoner can be made by the person making the arrest. Alaska law does not qualify the arresting individual as other than "the person from whose custody that person escaped".

Does a person under Alaska law have an obligation to assist a peace officer, should the person be directed to do so by a peace officer?

AS12.25.090. Peace Officer’s Authority to Summon Aid.

"A peace officer making an arrest may orally summon as many persons as the officer considers necessary to aid in making the arrest. A person when required by an officer shall aid in making the arrest."

If called upon, it is the duty of an Alaskan to comply with the peace officer’s request for aid.

Under what circumstances can a person use deadly force under Alaska law?

AS 11.81.335. Justification: Use of Deadly Force in Defense of Self.

"(a) Except as provided in (b) of this section, a person may use deadly force upon another person when and to the extent

(1) the use of nondeadly force is justified under AS11.81.330; and

(2) the person reasonably believes the use of deadly force is necessary for self defense against death, serious physical injury, kidnapping, sexual assault in the first degree, sexual assault in the second degree, sexual assault in the second degree, or robbery in any degree."

Note that Alaska law does not require a level of threat of jeopardy to live, just to ‘serious injury’.

(b) A person may not use deadly force under this section if the person knows that, with complete personal safety and with complete safety as to others, the person can avoid the necessity of using deadly force by retreating, except there is no duty to retreat if the person is

(1) on premises which the person owns or leases and the person is not the initial aggressor; or

(2) a peace officer acting within the scope and authority of the officer’s employment or a person assisting a peace officer under AS11.81.380.

(3) in a building where the person works in the ordinary course of the person’s employment;

(4) protecting a child or a member of the person’s household."

In the Bush, any injury that serious physical injury could very well be mean death if the person is unable to get help immediately. HB55 introduced earlier this month by Rep. Mark Neuman will expand the Castle Doctrine under 11.81.335 to include ‘any place where the person has a right to be’, if passed by the Legislature and signed into law.

It is unconscionable for any legislative body to restrict the law abiding to a duty to retreat when confronted by a criminal. For a legislative body to pass such unconscionable legislation is to give the criminal an unreasonable advantage in any situation when attacking the law abiding. The criminal will know that he/she may act with impunity as the victim will also be required to unarmed. New Hampshire’s Legislature is considering revoking their Castle Doctrine provision of "any place where a person has the right to be" and replacing it with a provision once again requiring the law abiding to retreat in the face of a criminal attack. If one cannot run or run as fast as the criminal(s), then what? What happened to one’s natural rights of life, liberty and the pursuit of happiness?

Alaska law, like Florida’s Castle Doctrine, has given back to our law abiding citizens the right to self defense. The armed citizen is not a victim, and the criminal cannot rape a ".38". Therefore, in recognition of the random nature of crime, Alaska’s Legislature has reaffirmed Alaskans’ right to self protection by use of a firearm under the Second Amendment. In fact, Alaskans can act in their own self interest and effect an arrest under Alaska law.

What is the jeopardy for the individual acting in the ‘public duty’ and either assisting a peace officer or in making an arrest?

AS 11.81.420. Justification: Performance of Public Duty.

"(a) Unless inconsistent with AS 11.81.320-11.81.410, conduct which would otherwise constitute an offense is justified when it is required or authorized by law or by a judicial decree, judgment, or order,

(b) The justification afforded by this section also applies when

(1) the person reasonably believes the conduct to be required or authorized by a decree, judgment, or order of a court of competent jurisdiction or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; or

(2) the person reasonably believes the conduct to be required or authorized to assist a peace officer in the performance of the officer’s duties, notwithstanding that the officer exceeded the officer’s authority."

Given Alaska’s vastness and the lack of law enforcement resources in much of Alaska, firearms carry is common in Bush Alaska. Obviously, the reason for possession of firearms encompasses defense against predators, two legged or four legged, survival, and one’s militia obligation and right to self protection by use of a firearm under the Second Amendment. One’s firearms also come under lawful use in one’s obligations to the public duty by making an arrest or coming to the aid of a peace officer under Alaska law.

If called upon to aid a peace officer, and one is carrying concealed, one must always immediately inform the peace officer that one is armed.

Alaskans should consider advisable lawful concealed carry in Alaska’s larger towns and cities. Alaska’s population has increased by approximately 80,000 over the last five years. Many of those coming to Alaska are hoping for jobs and opportunity now lacking Outside, because of the ongoing recession. Unfortunately, along with the law abiding came the criminal element and an increase in drug trafficking. The right to use a firearm for self protection has been reinforced under Alaska law giving the law abiding Alaskan practicing lawful carry an advantage in any encounter with the criminal element. The criminal cannot count on even liberal Alaskans being unarmed.

In is incumbent upon the individual who practices legal carry of a firearm in Alaska to know the law regarding the use of deadly force. This knowledge is paramount to understanding your rights in the aftermath of an encounter that results in the use of deadly force. The decision to use deadly force rests with the individual. Therefore, taking a concealed weapons carry (CCW) course is an excellent idea, even if one does not desire to apply for a CCW permit. If you intend to carry, you need to know the law.

A serious firearms training program to develop one’s skill with a firearm is absolutely necessary to be competent to carry and to insure that one is able to properly react to an armed confrontation. A few hours at a firing range monthly or at least every quarter will insure your skills are maintained. There are many good firearms instructors in Alaska who can assist in developing your skills with your firearm that you intend to use for concealed carry.

The incident in 2012 involving two NYPD police officers who managed to hit 9 innocent bystanders when firing at an armed suspect who was within 15 feet of the police officers is a reminder that not even the professionals get it "right" every time.

The fact that one’s public duty may require one to act to arrest another who is in violation of the law is a responsibility not be borne lightly. The ability is there under Alaska law, but the choice whether or not to act in defense of the law is rests with each "private person". One should only act to effect an arrest when there are no law enforcement resources available within a reasonable time.

The foregoing is presented merely for informational purposes. Any opinions expressed are those of the author. Contact an attorney if you have an questions or concerns about your rights under Alaska law.

For more information:

Second Amendment to the Constitution of the United States

Article 1 §19, Constitution of the State of Alaska

New Alaska firearms legislation

HB24

http://www.legis.state.ak.us/PDF/28/Bills/HB0024A.PDF

HB55

http://www.legis.state.ak.us/PDF/28/Bills/HB0055A.PDF

Alaska Statutes

http://www.legis.state.ak.us/basis/folio.asp

or http://www.touchngo.com/lglcntr/akstats/statutes.htm

Alaska Carry

Most Alaska jurisdictions have few restrictions on open carry. Open carry restrictions with respect to where you can carry are the same as the concealed carry restrictions.

AS 11.61.190 through AS 11.61.200 define misconduct with a weapon.

Alaska concealed handgun permit statutes and regulations

http://dps.alaska.gov/statewide/PermitsLicensing/docs/achp/ACHP%20Statutes%20and%20Regs.pdf

Department of Public Safety Alaska Concealed Handgun website

http://dps.alaska.gov/statewide/PermitsLicensing/concealedhandguns.aspx#

List of States with which Alaska has reciprocity

http://dps.alaska.gov/statewide/PermitsLicensing/reciprocity.aspx

Firearms ownership or possession

http://dps.alaska.gov/statewide/PermitsLicensing/firearm.aspx

DPS concealed firearms permit contact information

http://dps.alaska.gov/statewide/PermitsLicensing/Contactus.aspx

Concealed Handgun Permits information and application forms

http://dps.alaska.gov/statewide/PermitsLicensing/permit.aspx

Restrictions as to where you can concealed carry in Alaska

http://dps.alaska.gov/statewide/PermitsLicensing/inAK.aspx

List of approved finger printers

http://dps.alaska.gov/Statewide/background/fingerprinters.aspx

Wednesday, January 16, 2013

Obama's plan impacts the States adversely

Given the President’s and the liberal gun control lobbies’ intent to ban "assault" weapons and "high capacity" magazines, the question now becomes, what is the impact of these initiatives upon the ability of the unorganized militia and the 32 USC § 109(c) State Defense Forces to respond to a call up by their governor to State Active Duty in an emergency?

The Second Amendment states:
"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 militia of each State is comprised of two distinct components. One is the organized militia. Each State’s organized militia under State law is comprised of two components: the National Guard and the 32 USC § 109(c) State Defense Force of a State. There may also be a Naval Militia, which is actually part of the Navy, but it plays no role in terms of the unorganized militia. The second component of the militia of each State is the unorganized militia, which is comprised of the citizens of each State who are not members of the organized militia or the U.S. military. The officers to the organized militia are appointed by their respective governor. The National Guard, the federal militia, is authorized pursuant to Article 1 § 8:
". . . To provide for the organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

The State Defense Forces are authorized by Congress pursuant to 32 USC § 109(c): "In addition to its National Guard, if any, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces."

Twenty three States, including the State of Alaska, have organized a State Defense Force (SDF) pursuant to 32 USC § 109(c). The SDFs and their contribution to the defense of their State and the maintenance of law and order in an emergency are virtually unknown to the American public. SDFs are comprised largely of former military, former and serving police officers, professionals, trades people, and people from all walks of life who volunteer their time, money to serve their State. SDF volunteer soldiers are required to provide their uniforms, firearms, ammunition, training, and transport at no cost to the State until called up for State Active Duty. At which time, they are paid according to State law. In Alaska, the Alaska State Defense Force (ASDF) volunteer soldier is paid the equivalent of a first year Alaska State Trooper, or approximately $187 per day. ASDF volunteer soldiers have no benefits except for Workman’s Compensation Insurance. (Alaska statutory authority: AS 26.05.010, AS 26.05.030, AS 26.05.070, AS 26.05.100, AS 26.05.110, AS 26.05.260)

The other component of the militia is the unorganized militia. Alaska law defines the unorganized militia as: " (b)(2) the unorganized militia, consisting of all qualified persons available for service but not serving in the organized militia." The unorganized militia is comprised of every able bodied man and woman over 17 years of age who are able to perform militia duty. Each State has statutes that govern the composition of and establish the qualifications for the organized and unorganized militia. The federal government sets the standards for the National Guard, as the National Guard has a federal mission and may be commanded by federally appointed regular military officers. (Alaska statutory authority: AS 26.05.010)

Article 1 § 8 of the Constitution of the United States demonstrates that the Congress must provide the money to organize, provide the arms, equipment, and discipline for the National Guard. The States are to provide for training and to appoint the officers thereof. However, in reality, the federal government provides the money to train the federal National Guard. While the State governor may have control of the State’s National Guard when not called to federal active duty, the National Guard of any State is always at the beck and call of the President who is the Commander-in-Chief of the military. Peprich v. U.S. DOD confirms the President’s authority to use the National Guard at any time, including calling up the National Guard for deploy overseas for training: "Article I’s plain language . . . establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a state governor or the declaration of a national emergency . . . The unchallenged validity of the duel enlistment system means that Guard members lose their state status when called to active federal duty, and, if that duty is a training mission, the training is performed by the Army. During such periods, the second militia clause is no longer applicable . . . This interpretation merely recognizes the supremacy of federal power in the military affairs area, and does not significantly affect either the State’s basic training responsibility or its ability to rely on its own Guard in state emergency situations . . . The consent of a Governor . . . may not be withheld . . . with regard to active duty outside the United States, its territories, and its possessions, because of any objection to the location, purpose, type, or schedule of such active duty." (Perpich v. DOD, 496 U.S. (1990), 335, 337; Dukakis v. U.S. DOD, 686 F. Supp., 30 (1988))

A State Defense Force cannot be called to federal duty, and exists solely for the use of the State, it falls to the State to provide for the State Defense Forces and/or the unorganized militia. Alaska’s budget for the Alaska State Defense Force has historically been about $26,000 per year to pay for a part-time administrative technician and administrative costs. However, Alaska and the other States with SDFs, do not provide arms for either the SDFs or the unorganized militia. The SDF volunteers  provide their own equipment, arms, ammunition, training and transportation. The members of the unorganized militia will also be required to provide their own gear, weapons and ammunition.

The Revolutionary War corollary for the SDF and the unorganized militia is the "Minutemen" of the Great American Revolution who, upon notification, grabbed their gear, firearms, and ammunition and immediately headed for the designated place of assembly. For those states without an organized SDF, the "Minutemen" role falls to the unorganized militia.

In Alaska, a call up of the unorganized militia would essentially be a mass draft into the State Defense Force. The ASDF would then have the responsibility for training the unorganized militia. ( Alaska statutory authority: AS 26.05.010, AS 26.05.100, AS 26.05.110)

The Alaska State Defense Force has historically been called to State Active Duty pursuant to AS 26.05.070, which states: "In the event of war, disaster, insurrection, rebellion, tumult, catastrophe, invasion, or riot; or if a mob or body of men act together by force with intent to commit a felony or to offer violence to persons or property, or by force and violence to break and resist the laws of the state, or the United States; or in the case of imminent danger of the occurrence of any of these events; or whenever responsible civil authorities fail to preserve law and order, or protect life and property, or the governor believes that failure is imminent, the governor may order the organized militia or any part of it, into active state service to execute the laws and to perform duties in connection with them that the governor considers proper. Whenever any portion of the militia is ordered into active service by the governor, it becomes an additional police force, retaining its separate entity and operating at all times as a military organization under military command, with power to cooperate with but not to supersede the existing civilian law enforcement officers whenever possible, for the re-establishment of law and order and for the protection of life and property. The governor may also order members of the organized militia to active state service, with their consent, for the purpose of training or for full-time duty with the office of the adjutant general."

Obviously, the intent of the Alaska Legislature in drafting AS 26.05.070 was to provide the governor with a military force capable of acting as a state police force to restore order and maintain law and order in the event of an emergency. This implies an armed force. All civilian law enforcement officers are armed. It is unreasonable to believe that the organized State militia be an unarmed military, which would severely limit its use. Former Alaska Governor Tony Knowles was alleged to have stated to the effect that "unarmed soldiers are just more victims waiting to happen," upon his authorizing the ASDF to be armed just after the attacks of 9-11.

What would be the impact upon the organized and unorganized militia were there to be a ban on semi-automatic military style rifles and semi-automatic magazine fed pistols and high capacity magazines?

Most SDF volunteers use the AR15 or some variant of the rifle in 5.56X45mm or 7.62X51mm. Other authorized weapons include the M1A, FNFAL, or HK 91 7.62X51mm rifle or other comparable military grade semi-automatic rifle chambered for 7.62mm. 30 round magazines are expected as the magazine for these rifles. The 7.62mm rifles have 20 round magazines. Where authorized, SDF volunteers provide magazine fed semi-automatic hand guns in .45 cal or 9mm. Magazines for the pistols and rifle are expected to be at least equal in capacity to those of the military or the civilian police.

During the Revolutionary War and up until the common use of the brass cased bullet, the caliber of the weapon did not matter a great deal. The commonality was the black powder that provided the charge for the weapon. Each individual in the days of muskets and black powder rifles had lead molds and were expected to provide their own cast balls or cast bullets for use in their black powder muskets or black powder rifles. They could simply melt spent lead balls taken from the battlefield or another source of lead to make into ammunition. Today, that would not be practical.

The British Brown Bess army musket had an effective range of 175 yards, but was used at about 50 paces, or 150 feet maximum from the target, for greatest effectiveness. There were many Brown Bess muskets in use by the Colonial Army against the British Army, because the of the British colonial requirement that military age males be required to maintain their own arms and ammunition for militia duty. Therefore, there is pre-colonial precedent for the Second’s militia requirement with respect to the duties and obligations under the Second Amendment. George Washington was an officer in the British Colonial Militia.

The requirement for a semi-automatic rifle and a semi-automatic pistol for the State militia coincides with the military requirements for service weapons. The M16 and M4 rifles in use with the Army and USMC are select fire weapons with both a semi-automatic and three round burst capability. Therefore, the militia being armed with a semi-automatic rifle capable of using military ammunition is a common sense requirement.

In Alaska, were the unorganized militia to be called up, it would be expected that each individual would provide their own AR15 or some variant or a semi-automatic military style rifle in 7.62mm at the very minimum.

All of these weapons and the military and police compatible magazines are readily available on the civilian market. Now, the President of the United States and the liberal gun control lobby under the guise of protecting children have threatened the availability of these weapons and the magazines necessary to their use as a militia duty weapon pursuant to the militia requirements under the Second Amendment.

It is critical that the militia aspect of the Second Amendment be fully appreciated with respect to the firearms expected as duty weapons to be supplied by the individual militia member. The reason for the requiring military style rifles in 5.56mm or 7.62mm for militia duty is a commonality of ammunition and, in the case of the AR15 and its variants, a commonality of magazines with military stocks.

Of what use would the militia be to the defense of the State and/or the United States, if the members of the SDFs and the unorganized militia showed up for duty with the myriad variety of rifles and ammunition available in today’s market? How could such a militia expect to be resupplied with ammunition from military stores, if the firearms and calibers are not standardized? Or, supplied with adequate magazines, when their rifles are not magazine fed?

The military does not stock ammunition for hunting rifles. As a result, the militia’s usefulness would end when they run out of ammunition.

The AR15 family of rifles shares the same magazines as the military’s M16/M4 family of rifles/carbines.

Under the Second Amendment, each member of the unorganized militia and the organized State Defense Forces has a duty and an obligation to maintain a weapon suitable for militia duty. Each member–every man and woman of military age in this country–has a duty to purchase and to maintain a military grade semi-automatic rifle compatible for use with ammunition from national military supplies.

If there ever is a call up of the unorganized militia, they would be expected to fall under State military command with a strong likelihood of being attached to National Guard units or being directly inducted into State Defense Force units. Therefore, commonality of weapons type and ammunition is critical to organization, training and logistics. It only makes sense that the militia be able to use the same ammunition as federal forces and have a commonality in basic weapons operation and controls.

Any rational human being with any knowledge of history, geology, astrophysics, weather, or politics should know that it is a matter of ‘when’, and not ‘if’ with respect to any call up of the unorganized militia. One’s political ideology does not relieve one’s obligations or duty under the Second Amendment.

Any ban on ‘assault’ weapons and high capacity magazines reduces the military capability of this country with respect to the potential usefulness and military effectiveness of the unorganized militia and the State Defense Forces. Such a ban would have a serious negative impact upon the States to have the internal military resources necessary for the restoration and maintenance of law and order in the event of an emergency.