Court Cites Newly Enacted Louisiana Amendment To Strike Down Ban On Felon Gun Possession

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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New York Mayor: Minor Marijuana Possession No Longer Means A Night In Jail

Under Mayor Michael Bloomberg (I), arrests in New York City for marijuana have skyrocketed. And while Bloomberg made clear during a radio interview Friday that he does not support legalization of marijuana, he is ready to soften his stance. Bloomberg announced during his State of the City address Thursday that, in the absence of a state law decriminalizing public marijuana possession, he will use his executive power to eliminate jail custody for those arrested for low-level marijuana possession:

Commissioner Kelly and I support Governor Cuomo’s proposal to make possession of small amounts of marijuana a violation, rather than a misdemeanor and we’ll work to help him pass it this year. But we won’t wait for that to happen.

Right now, those arrested for possessing small amounts of marijuana are often held in custody overnight. We’re changing that. Effective next month, anyone presenting an ID and clearing a warrant check will be released directly from the precinct with a desk appearance ticket to return to court. It’s consistent with the law, it’s the right thing to do and it will allow us to target police resources where they’re needed most.

In his statement, Bloomberg also joins Cuomo in supporting a stronger state decriminalization measure. Technically, New York decriminalized marijuana possession in 1977 when it reduced the penalty for possession of 25 grams or less of marijuana to a civil fine. But the punishment does not protect public possession of marijuana, which, according to CNN, includes when an individual is asked to empty his or her pockets during one of the more than half a million stop-and-frisks conducted by the New York Police Department. Cuomo’s proposal would decriminalize possession of less than 15 grams of marijuana even in public view.

Bloomberg’s measure would mitigate the immediate harm to people arrested for marijuana – many of whom never face subsequent charges — but it would not change the fact that those found guilty of public marijuana possession will have a misdemeanor on their record, rather than paying a civil fine.

New York is one of 14 states that have some marijuana decriminalization measure on the books – in addition to the 18 states and the District of Columbia that have legalized medical marijuana, and the two states that have legalized recreational marijuana. Arrests for marijuana possession and other minor drug offenses nonetheless remain frequent and disproportionately impact African Americans.

U.S. Drug Czar Gil Kerlikowske, known for opposing legalization of even medical marijuana, joined with NAACP President Ben Jealous in an op-ed published yesterday that declares: “It is clear that we cannot simply arrest our way out of the drug problem. Instead, we need smarter, results-based criminal justice policies to keep our communities safe, including treatment for people with substance use disorders and mental health issues.”

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Police Made More Arrests For Marijuana Possession Than For Violent Crime

Public support for liberalizing marijuana laws is at an all-time high, and as of the November election, 18 states have legalized the drug, either for medical or recreational purposes. Law enforcement, however, seems unmoved by the legalization movement. According to a new FBI report, police arrested more people for marijuana possession than for violent crime in 2011.

The Huffington Post reports:

In 2011, marijuana possession arrests totaled 663,032 — more than arrests for all violent crimes combined. Possession arrests have nearly doubled since 1980, according to an FBI report, while teen marijuana use recently reached a 30-year high.

President Obama and his Attorney General, Eric Holder, have stressed on numerous occasions that the federal government would not waste resources on prosecuting marijuana users who comply with their state laws. Yet Obama’s Justice Department continue to crack down on medical marijuana distributors at a rate far higher than his predecessors.

Drug possession convictions comprise almost half of the nation’s exploding prison population. These arrests are dramatically skewed against people of color; 31 percent of those arrested for marijuana possession are black, even though African Americans make up just 14 percent of marijuana users.

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