Stephanie Grace: Constitutional amendment leaves gun laws in disarray

By Stephanie Grace

New Orleans bureau

Gun rights advocates often argue that the best way to control violence is to enforce the laws we have, rather than make new ones.

Yet here in Louisiana, a newly enacted constitutional amendment backed by those very same interests has thrown enforcement of existing state gun laws into disarray.

That may surprise the voters who in November overwhelmingly backed the suggestively numbered Constitutional Amendment No. 2, which its most prominent advocate, Gov. Bobby Jindal, likened to “our own Second Amendment.” They can be forgiven for presuming a measure that made it through the Legislature with such strong support from the governor meets the basic test of functionality — even if experience suggests otherwise.

But it’s exactly what opponents predicted. Recommending against the amendment, a Bureau of Government Research analysis said it goes way beyond the U.S. Supreme Court’s existing interpretation of the Second Amendment, and predicted that its approval would send a message that courts should “strike down commonsense requirements for concealed weapon permits” and “would expose the public to unnecessary risks and hamper law enforcement efforts.”

“There is no good reason to enter this uncharted territory,” the analysis concluded.

Just over six months after the amendment took effect, that’s precisely where we are.

Technically speaking, the amendment changed the legal standard for gun restrictions. Before, the Legislature could enact regulations it deemed rational. Now, state gun laws must meet the higher bar of “strict scrutiny.” That means the law must meet a compelling state interest, be narrowly drawn, and be the least restrictive way to meet its goals.

Supporters of the amendment claimed that gun measures now on the books meet that standard. But so far two judges, one in Baton Rouge and one in New Orleans, have used the amendment to declare existing laws unconstitutional, and dozens of defendants across the state are pursuing the same outcome. The messy matter surely will wind up before the state Supreme Court, but not before it creates mass confusion and gets potentially dangerous accused crooks off the hook.

Shortly after the amendment took effect, the public defender’s office in Orleans Parish filed motions in every one of its gun cases, starting with those involving the charge of being a felon in possession of a firearm. It worked, at least in some instances.

One judge, Frank Marullo, threw out gun charges against two convicted criminals but stopped short of declaring the statute unconstitutional. But fellow Judge Darryl Derbigny not only freed a convicted burglar caught with both a handgun and an AK-47 in his SUV, but ruled that the law itself violated the new constitutional amendment. Other statutes at risk include laws addressing possession of a firearm along with a controlled substance, mandating a permit to carry a concealed weapon, and perhaps even restrictions on firearms in places such as around schools, on college campuses, in churches and bars, along parade routes, and, yes, in the state Capitol.

These are some of the tools prosecutors have used to get some truly dangerous offenders off the streets. They’re like the violent crime equivalent of a tax evasion charge, when the income likely stems from a much more serious offense.

“These cases demonstrate what a real can of worms the Legislature opened up,” Raymond Diamond, a Second Amendment scholar at LSU, told Advocate reporter Claire Galofaro. “These cases show the kind of mischief that can occur when the Legislature doesn’t think through what it’s doing. And sadly, I think that’s what happened here.”

Or look at it this way. Jindal and his allies pushed the measure in the name of protecting Louisiana gun owners from some vague possibility of a threat to their “freedom.” In an opinion piece published in the Shreveport Times, the governor warned that the U.S. Supreme Court could fall into the hands of gun control sympathizers, and noted — twice — that the government had seized residents’ firearms in the chaos after Katrina. (Jindal also boasted that, as a congressman, he’d passed legislation to prevent such seizures — which, in theory, would take care of that threat.)

Opponents, meanwhile, raised concerns that have already come true. Orleans Parish District Attorney Leon Cannizzaro, who stridently opposed the amendment’s passage and must now fend off a raft of constitutional challenges to his office’s cases, issued a terse, well-earned “I told you so.”

The people most likely to pay the price, though, are Cannizzaro’s constituents. Orleans was the only parish in the state to vote down the measure, albeit narrowly, and it’s also the place where the sorts of laws now under scrutiny are desperately needed to attack an epidemic of gun violence. For them, the threat that the amendment’s passage created is all too real.

Stephanie Grace can be contacted at sgrace@theadvocate.com.