The state of Louisiana challenges district court decision that strikes-down gun control law as unconstitutional based upon “strict scrutiny” standard imposed by the people last November.
“Strict scrutiny is the highest level of review a law can receive,” said Colin Reingold the attorney representing the appellee in a first-of-its-kind case before the seven-member Louisiana Supreme Court. “It forces the state to justify any restrictions on firearms with evidentiary basis.”
On Nov. 6, 2012 Louisianans overwhelmingly voted for Proposition Two, an amendment to their state’s constitution that solidifies the Second Amendment. The amendment – Article I §11 reads: The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.
Court briefs indicate that Glen Draughter, the appellee, is a 20 year old male who plead guilty to attempted simple burglary of an inhabited dwelling when he was 18 years old. In the instant case, Draughter is being charged with being a felon in possession of a firearm in violation of La R.S. 14:95:1 which makes possession of a firearm or carrying concealed weapon by a person convicted of certain felonies a crime.
On March 13 the criminal trial judge ruled the state law unconstitutional in light of the new amendment. The state law as written is too broad, said Reingold. “The law includes too many people who cannot be shown to be at risk of misusing firearms.”
The state appealed the Orleans Parish district court decision on the grounds that the article does not apply to proceedings prior to Nov. 27 when the law went into effect; that felons do not fall within the gambit of the amendment; and that the law that criminalizes firearm possession for certain felons withstands strict scrutiny.
The state law restricts gun rights and does not meet the strict scrutiny requirement, said Reingold. “Under the legal description, strict scrutiny is what we apply to restrictions on speech and race-based discrimination. The law, as written, is not limited in scope enough to pass the constitutional test.”
Oral arguments were heard at the Supreme Court building in New Orleans on Oct. 14. “The judges seem interested in some of the procedural hurdles like retroactivity and whether our client was on probation,” he said. “Our position is that the probation-status is not relevant because the statute applies to everyone whether on probation or not.”
Appellee contends that the constitutional amendment is retroactive for people arrested who have not gone to trial yet, not for those who have been convicted, he said. “The state cannot prosecute them under what we allege and the trial judge agreed to be an unconstitutional statute.”
The former New Orleans public school teacher said the local district attorney on behalf of the state at first focused his argument entirely on the matter not being retroactive and that felons historically never had firearm’s rights under Louisiana or federal law. “We contend that ultimately the statute is extremely clear as written and applies to everyone. Our clients are citizens of Louisiana and fully deserve the protections of the Louisiana state constitution.”
“The court asked interesting questions about the history of gun restrictions and the intent of the voters,” said Reingold.
“My sense is the course for the amendment was out of concern for gun rights in general,” said the public defender who handles special litigation. “It was a response to the narrowness of the decisions of the U.S. Supreme Court in the last decade and how that would have a trickle-down effect on voters who wanted to ensure Louisiana gun protection regardless of federal laws.”
As written, state gun laws treat violent offenders the same as non-violent offenders, he said.
A second marijuana possession charge or a Xanax without a prescription-charge, both felonies, for example will remove their second amendment rights for a very long time, he said. “They are not only deemed a danger to society, if that person is on probation it is not until 14 years from the time of their arrest that they can vindicate their Second Amendment rights.”
If the Supreme Court were to agree with the district court, Reingold said the legislature would have to go back and fix the criminal gun laws. “They can make the statute more narrow and limited to violent felons, showing evidence of previous violence.”