In the wake of an amendment to the Louisiana Constitution that arguably makes state protection of gun rights even greater than under the Second Amendment, a trial judge has invalidated a statute prohibiting those convicted of “crimes of violence” from possessing guns.
The NRA-backed amendment, passed by ballot initiative in November, established that the right to bear arms is a “fundamental right” and any infringement of that right is subject to “strict scrutiny,” the highest level of skepticism courts apply to legislation. The U.S. Supreme Court has never established a level of scrutiny for the Second Amendment — a failure that has led to disparate interpretations and confusion among lower courts. However, as law professor Adam Winkler notes, “challenged gun laws almost always survive.”
Even Justice Antonin Scalia wrote for the U.S. Supreme Court in 2008 that the Second Amendment does not impede “longstanding 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.”
Not so in Louisiana, where Orleans Parish Criminal District Court Judge Darryl Derbigny held Thursday:
After applying the strict scrutiny standard to LA. R.S. 14.95.1, this court concludes that the statute is not narrowly tailored to achieve the government’s interest. LA R.S.14.95.1 applies without discretion to nearly every felony crime enumerated in the Louisiana Criminal Code. As such, the statute, ‘as-is’, is unconstitutional in its entirety. This court will not engage in a “judicial line item veto”, by deciding what predicate felony convictions should be included in LA R.S. 14:95.1.
Before the passage of the ballot initiative, many prominent figures including the Orleans Parish District Attorney warned that several laws crucial to public safety, including a requirement that 18 to 20-year-olds carry concealed permits, campus bans, and the law at issue here, could be subject to invalidation under the new amendment. Nonetheless, the amendment passed with an overwhelming 74 percent support.
The public defenders in the case had argued that, while a possession ban for violent felons could be justified even under the “strict scrutiny” standard by the compelling state interest in public safety, no such justification could be applied to less violent felons such as Glen Draughter, who had previously pleaded guilty to attempted simple burglary.
There are no doubt crimes considered felonies, such as possession of drugs, consumption of pornography or white collar crime, that have little relationship at all to gun possession. But the Louisiana statute explicitly limited its prohibition to “crimes of violence,” and there is every reason to believe that someone who burgles would be eminently more dangerous if they were carrying a gun.
As conservative blogger and law professor Eugene Volokh points out, the federal ban on gun possession by felons is still in effect, and federal officials could still prosecute Louisiana felons for carrying guns under their own law. But the feds alone would have to significantly reallocate their resources and are not equipped to fill local public safety demands.
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