NOLA – by Paul Purpura Louisiana Supreme Court justices are considering the residual and likely unintended effects of the constitutional amendment that voters overwhelmingly approved last year to make gun ownership a “fundamental” right. The question is whether the amended Constitution now lets convicted felons possess firearms, an act that is forbidden by the state criminal code.
Just how far Louisiana’s new gun right, one of the strongest in the country, should extend was a central theme of argument that lawyers gave Monday, on the constitutionality of Louisiana’s law against felons possessing firearms. As Associate Justice John Weimer of Thibodaux framed it, in weighing a public safety policy against the constitutional demands, should the state let people on probation — even people still in prison — have guns?
“Don’t you admit there are some lines we have to draw?” he asked Colin Reingold, a New Orleans public defender who argued that the new amendment makes the the felon firearm law unconstitutional.
The issue arrived at the Supreme Court after New Orleans Criminal District Court Judge Darryl Derbigny’s March 21 ruling in the state’s case against Glen Draughter, 21. Convicted of attempted burglary, he was not allowed to have guns under Revised Statute 14:95.1, which bars convicted felons from possessing firearms.
His attorneys, Reingold and Jill Pasquarella, asked that the firearm charge be tossed out on constitutional grounds. Derbigny agreed, leading District Attorney Leon Canizzarro’s office to appeal.
Almost 75 percent of Louisiana voters who cast ballots in November approved adding these words to the Constitution: “The right of individuals to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes, is fundamental and shall not be denied or infringed, and any restriction on this right must be subjected to strict scrutiny.”
Gov. Bobby Jindal and the National Rifle Association were among those urging voters to approve the amendment. Canizzarro, who forewarned of challenges such as Draughter’s, and the Brady Campaign to Prevent Gun Violence were among the opponents.
Its passage gave Louisiana one of the strongest gun-rights laws in the United States, lawyers say. Before the amendment, the state had “rational review,” a lower standard that gave the state the right to regulate gun ownership.
“Strict scrutiny,” the standard now in place, is the highest level of judicial review courts must follow in deciding whether a law is unconstitutional. In this case, the constitutional question turns on whether the Louisiana felon gun law violates the U.S. Constitution’s Second Amendment guaranteeing the right “to keep and bear arms.”
Assistant District Attorney Kyle Daly argued that just because a Louisiana law contains the word “firearm” does not subject the law to strict scrutiny. He likened the case to the government’s regulation of companies’ free speech rights in advertisements.
Assistant Attorney General Colin Clark, meanwhile, argued that the constitutional amendment should not be applied retroactively. In Draughter’s case, he was arrested six months before Louisiana voters approved the amendment, when there was no question about the constitutionality of R.S. 14:95.1. “The date of offense is the date this court should look at,” Clark said.
Reingold argued the law should be retroactively applied, and that the felon firearm statute should be held to the strict scrutiny standard, saying the law lists “random” felonies that bar gun ownership.
Along those lines, he argued that not all convicted felons are violent, as the law in question addresses. He said, for instance, that a person convicted a second time of possessing marijuana is not likely to become a “violent recidivist.” And yet the law prohibits such felons from having guns. He said the state has the burden of clarifying the laws.
Some district judges in Louisiana have declared R.S. 14:95.1 unconstitutional. The law makes it illegal for people convicted of felonies, including drug offenses and burglaries, to have guns. The punishment upon conviction is 10 years to 20 years in prison.
Derbigny’s ruling in Draughter’s case was one of several in the state. In Jefferson Parish’s 24th Judicial District Court, Judge Robert Pitre did the same in June, tossing out the charge against Charles Coleman, 40, of Marrero, on the eve of his trial on charges of murder and attempted murder in two drug-related shootings in West Jefferson in 2007.
Coleman was convicted of those charges and sentenced to life in prison, although the felon firearm charge is pending. He was barred from firearms because of previous convictions for manslaughter and armed robbery, yet in the span of three hours in May 2007, he shot and wounded a crack cocaine dealer in Marrero and shot another one in the back of the head in Harvey.
Also, East Baton Rouge Parish public defenders representing a defendant identified only by the initials J.M. have challenged the constitutionality a state juvenile law that forbids people younger than age 17 to possess a firearm. East Baton Rouge Juvenile Court Judge Pamela Taylor Johnson, presiding over J.M.’s case, declared the felon firearm charge unconstitutional under last year’s amendment, but she did not toss out the charge. The defense attorneys say the judge erred.
Justices gave no indication of when they will hand down a decision. “This matter will be submitted,” Chief Justice Bernette Johnson said.
http://www.nola.com/crime/index.ssf/2013/10/louisiana_supreme_court_consid.html