Thursday, June 6, 2013

Strictly Speaking

By Dave Dargo

Just what is this thing called "strict scrutiny"?  I ask because of some recent discussions in and out of our classrooms related to gun rights in the State of Louisiana.

The voice of the people is a critically important concept within the American system.  In District of Columbia v. Heller, the U.S. Supreme Court said of the second amendment:

"Like the First, it is the very product of an interest-balancing by the people..."
The Supreme Court was saying that the people had already spoken, they had already balanced the interests of public-safety and the fundamental right to keep and bear arms and had removed from all branches of the government, the executive, the legislative and the judicial the power to change the will of the people.  The only thing that could change the will of the people were the people themselves.

Just as the people spoke in the 18th century when adopting the second amendment they spoke more recently in the State of Louisiana by passing a constitutional amendment requiring strict scrutiny as the basis of review to be used by the court system within the state.  Strict scrutiny is the highest standard of review in American jurisprudence.  Under strict scrutiny if the government wishes to infringe upon a fundamental right then the infringement must be related to a compelling government interest, the regulation must be narrowly tailored to achieve that interest and they must use the least restrictive means to achieve that interest.

The people of the State of Louisiana have spoken; the people changed the state constitution in order to remove from all branches of the government the power to infringe the fundamental right to keep and bear arms.

As with most things legal, it is not the passing of the law that generates the most interesting news but rather it's implementation over the following years.

In our last concealed handgun permit class the question of carry restrictions was raised.  For example, can a concealed handgun permittee carry concealed into an establishment that serves alcohol by the drink?  If you ask anyone who's taken a concealed handgun class in the last 17 years they will tell you, "Yes".  If you ask the state police, the New Orleans police or the Baton Rouge police they will tell you, "No".  In fact, those police departments have stated that they will criminally charge anyone they find in such an establishment who possesses a handgun, permit or not.  The State's Attorney General, Buddy Caldwell has been asked to issue an opinion on his interpretation of state law.

I don't know how or when Mr. Caldwell may decide to issue his opinion but let's look at the law itself and how it may play out under strict scrutiny when challenged.  The government will have to state a compelling state interest in prohibiting concealed handgun permittees from carrying a concealed handgun into a place that serves alcohol by the drink.  I imagine the interest will take the form of, "alcohol fuels outrageous and dangerous behavior and the concentration of alcohol and people found within an establishment that serves alcohol by the drink would create an entirely unacceptable danger if people were permitted to have handguns within that environment."

Now, it's not enough for the state to make such a claim.  Under strict scrutiny they will have to demonstrate that such a statement is true.  They will have to demonstrate that those places that serve alcohol create such a volatile environment that allowing handguns near them will create unacceptably dangerous conditions.

Let's pretend for just a moment that the state is able to demonstrate their compelling interest.  Well, then they will have to demonstrate that their prohibition against the carrying of concealed handguns in such an environment is a narrowly tailored regulation and that there is no less restrictive method other than the complete ban.  These steps are much more difficult and made even more so given the regulations other states have adopted allowing concealed handgun permittees access to such dangerous environments.  Arizona, as an example, allows a permittee to go into a place that serves alcohol by the drink as long as the permittee keeps their firearm concealed and the permittee doesn't consume alcohol. Does Arizona's regulation accomplish the governmental interest with a narrowly tailored regulation and in a less-restrictive manner?

Another area is BREC's prohibition of weapons on BREC property.  Will the Parish of East Baton Rouge be able to justify their prohibition under the rubric of "strict scrutiny"?

I think that neither governmental entity will succeed in defending their regulation under strict scrutiny. I don't want to be the test case for either one because of the difficulty that personally creates but I also don't want to see the government continue to push unreasonable restrictions  upon a fundamental right.

Laura Cutilletta, senior staff attorney at the San Francisco-based Law Center to Prevent Gun Violence said in this article, "What they're doing is taking the decision out of the hands of the legislature. They're pre-deciding that guns should be allowed in public places and that the ability to regulate firearms should be very, very limited - if at all."

Wow, I actually agree with something that someone from the Law Center to Prevent Gun Violence said.  Laura, this is precisely what the people did.  The people spoke and took out of the hands of the legislative and judicial branches the ability to regulate firearms except in very, very limited circumstances.

The people expressed their will, they declared the results of their interest balancing approach and decided that "the ability to regulate firearms should be very, very limited - if at all."

This is what the people do and it is a beautiful thing.

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