James Gill: Amendment might be fuss over nothing

It’s beginning to seem like a lot of fuss over nothing.

For the last two years, Louisiana has had what are billed as the strongest gun rights in the country. The practical effect so far has been nil, except for the vast sums of public money spent on litigation.

When voters approved a constitutional amendment requiring gun laws to meet the more elevated standard known as “strict scrutiny” in court, defense attorneys leaped at a new opportunity to get their clients off the hook. Prosecutors feared the lead would fly more than ever, which, in Louisiana, is really saying something.

The hope on one side, and the fear on the other, was that judges would rule that statutes imposing restrictions on gun possession were no longer valid. That has indeed happened a few times in the lower courts, but those decisions get overruled every time. The state Supreme Court has made it clear that the amendment did not rule out common-sense regulation of firearms.

The Legislature had no intention of junking existing laws when it passed the bill to put the amendment on the ballot, the court concluded. During floor debate, the bill’s sponsor, state Sen. Neil Riser, R-Columbia, allowed, “You’ll have to follow the current statutes.”

It is, however, unlikely that the NRA, a prime mover behind the amendment, saw it that way. The NRA will never be happy until we all have bazookas. And it soon became obvious from the flurry of motions filed on behalf of rodded-up felons that the wording of the amendment was capable of a construction that did away with established restrictions.

The amendment declared the right to keep and bear arms “fundamental,” which was clearly superfluous. If it’s in the Bill of Rights, that’s as fundamental as it gets. The big change was the requirement that any gun law must be “narrowly tailored” to serve a “compelling state interest.”

Before the amendment, the state constitution said that its guarantee of the right to bear arms did “not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.” The removal of that provision, the Supreme Court acknowledged in its latest opinion, did create “a measure of ambiguity.”

But not enough, the court decided, to make any nevermind, because the law that bars felons from carrying guns for 10 years passes muster even under the new standard of review. Since the court had used similar reasoning to uphold several other gun laws, the furor aroused by the amendment is now just a quaint memory.

The latest decision is a rebuff for two men accused of murder in Jefferson Parish and one accused of theft and cyberstalking in St. Tammany, who all were additionally booked under a law that prescribes at least 10 years in prison for felons caught in possession of firearms. All three claimed that law was unconstitutional under the 2012 amendment. The felon-in-possession charges were quashed in Jefferson but upheld in St. Tammany.

The Supreme Court had already rejected one challenge to the law, but that one was filed by a felon still on probation, so he could hardly object to state “intrusion” into his affairs. That decision was not binding in these two cases, however, because the defendants had served their time for the earlier crimes in full.

But their “dangerous disregard for the law and the safety of others” was reason enough to disarm them, in the opinion of the court. Lord knows how many more lives would have been lost had the felon-in-possession law gone by the wayside.

Sweet reason similarly prevailed in prior cases. The Supreme Court upheld laws that ban the “intentional carrying” of concealed firearms and restrict the right of juveniles to possess them at all. A defendant caught with illegal drugs and a gun in his car also came up short in arguing the law under which he was charged had been rendered obsolete.

If the Legislature did not intend to undermine existing gun laws, what was the intention? Proponents of the constitutional amendment were greatly alarmed when the U.S. Supreme Court found a handgun ban in Chicago unconstitutional, but with only one vote to spare.

That raised the usual specter of a federal gun grab that would reduce the republic to tyranny, and “strict scrutiny” was approved by 73 percent of voters. We were all overwrought back then, but at least no harm has been done.

James Gill’s email address is jgill@theadvocate.com.