Tuesday, December 3, 2013

Louisiana's Strict Scrutiny Starts To Come To Life

By Dave Dargo

An article in the Advocate has an interesting lead-in:
Amid the growing confusion over whether Louisiana's litany of gun crimes violates its residents' turborcharged right to bear arms, the state Supreme Court has decided it will try to settle one of the most consequential questions: Does it remain constitutional to charge a person with a high-grade felony for having a gun at the same time as illegal drugs, no matter what kind of drugs or how much?
The case centers around Rico Webb, a 22-year-old who was caught with a marijuana cigarette and a gun. The amount of pot Rico was caught with would have resulted in a misdemeanor drug charge. The gun Rico was caught with was perfectly legal. The combination of the gun with the pot gave the prosecutor the opportunity to charge Rico, who has no previous criminal record, with a felony subject to a mandatory 5-10 year prison sentence with no possibility of parole.

This case centers around a fairly new Louisiana State Constitution amendment overwhelmingly passed by the citizens of the state. That constitutional amendment requires all gun laws must withstand a strict scrutiny analysis when challenged. I've written about strict scrutiny before. Strict scrutiny requires the government prove a law serves a compelling government interest and it is so narrowly defined that there is no less restrictive way of achieving that interest.

I believe that all laws should face strict scrutiny; there should be no law passed that fails to serve a compelling government interest and there should be no way to achieve that interest in a narrower manner. I believe in the presumption of liberty.

The Advocate's article attempts to equate the values of those who would argue for and against Louisiana's constitutional requirement that gun laws be subject to strict scrutiny in the state's courts. The article claims, "...[the amendment] goes far past the protections offered by the U.S. Constitution," as if that was a problem.

Firstly, it's not a problem to offer greater protections for personal liberty than those recognized by the federal government and, secondly, the people certainly have a right to weigh their own interests and strike a balance between government oversight and personal liberty. The amendment passed with 74 percent support.

Perhaps aiding in that support was the recognition that the government did not understand the interest balancing approach preferred by the people when:

  • The Louisiana Supreme Court ruled in State v. Blanchard in 2001 that the state is entitled to restrict the right to keep and bear arms for legitimate state purposes, such as public health and safety and required only a "rational basis" for the law.
  • Over 1,000 firearms were seized from residents after Katrina
  • A police superintendent in New Orleans announced that nobody but police would have guns
  • A deputy police chief in New Orleans said the police would take all the weapons and no one would be allowed to have any
Could it be that the people of Louisiana had had enough and performed the very interest-balancing exercise envisioned by the founders of the nation?

In another article in the Advocate from November, Stephanie Grace claims that Governor Jindal was, "trying to protect Louisiana gun owners from some vague possibility of a threat to their 'freedom'."  The examples listed above were no vague threat and the people of Louisiana deserve credit for recognizing that fact.

It is likely that many of Louisiana's gun laws will fall as a result of this fairly new constitutional amendment. That is a good thing.