New gun law sets stage for conflict

Cardell Haynes was carrying a hidden gun, holstered to his belt. His weapon was itself perfectly legal; Haynes just didn't have a permit to carry it concealed.
His arrest that morning would soon be included in a torrent of legal challenges to state laws that limit who can carry a gun, and how they can carry it.
That very day, just hours earlier, a new state law had gone into effect, making the right to bear arms a "fundamental" one in the state. Gun possession was elevated in Louisiana to the highest degree of legal protection — akin to free speech or voter equality. Any law that sought to restrict the right to bear arms was suddenly subject to a level of courtroom scrutiny so high it nullifies perhaps 70 percent of laws that come up against it.
But some 80 statutes regulating gun ownership remained on Louisiana books, and Haynes was booked on New Year's Day for violating one of them — carrying a concealed weapon without a permit.
He has since appealed his misdemeanor charge, and he is among dozens of defendants in courtrooms across the state arguing that a range of state gun laws violate that now-enhanced right to bear arms. Two judges, one in New Orleans and the other in Baton Rouge, have already declared certain statutes unconstitutional.
The courtroom battle will rage for months, if not years, in part awaiting answers from the Louisiana Supreme Court.
Legal confusion
But the gun amendment has provoked another debate outside the legal system. Proponents, including the National Rifle Association and Gov. Bobby Jindal, describe it as an impervious guarantee of freedom from tyranny.
But its critics question whether it accomplished anything other than creating widespread constitutional confusion that could endanger public safety and take years of legal wrangling to resolve.
"These cases demonstrate what a real can of worms the Legislature opened up," said Raymond Diamond, a Louisiana State University professor and a Second Amendment scholar. "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."
But those who supported the law say that the legal confusion was anticipated, and will serve to strengthen the Louisiana criminal code.
"You have a change of standard, nobody knows what it means, it's the courts' job to straighten that out and the Legislature will do whatever it needs to do to fix it," said Dan Zelenka, president of the Louisiana Shooting Association.
"It's not like it created all of these problems; it's just how the system works."
The measure sailed through the Legislature and received sweeping support from voters at the ballot box in November.
State Sen. Neil Riser, a Republican from Caldwell Parish who sponsored the bill, did not reply to requests for comment.
State Sen. A.G. Crowe, R-Slidell, a co-sponsor of the bill, downplayed the significance of the various legal challenges prompted by the gun amendment, and said he doesn't believe any of Louisiana's current gun laws are at real risk.
"Outlier arguments, even when adopted by an isolated lower court, will not prevail, and in hindsight will be seen as a tempest in a teapot," he said by email.
The real purpose of the amendment, he said, was not to challenge reasonable gun legislation, but to block "any proposals to ban guns outright or to confiscate them from citizens en masse such as took place in New Orleans during Katrina."
Strict scrutiny
Before the constitutional amendment, the Legislature could enact any regulation it deemed rational, such as laws that prohibit certain criminals from having guns and ones that allow the state to require permits for concealed weapons.
As of New Year's Day, any law that limits the right to gun possession — including those on the books already — must be evaluated using the standard of "strict scrutiny," the highest level of judicial review. It assumes that every person has the right to be armed, and laws that restrict that right must pass a rigorous evaluation. First, the state must show that the law serve a proven and compelling interest, then be so narrowly defined that it is the least restrictive way of doing so.
The standard was long described in legal circles as "strict in theory, fatal in fact" because so few laws could pass muster.
But Diamond pointed to a 2006 study that refuted that myth, and found that about 30 percent of laws have passed a strict scrutiny evaluation.
"We are standing on completely new ground," Diamond said.
The law goes significantly further than federal protections. The U. S. Supreme Court has declared gun ownership a fundamental right. But the high court has punted on deciding whether a strict scrutiny test ought to be applied to the right to bear arms. The Louisiana amendment specifically added: "Any restriction on this right shall be subject to strict scrutiny."
In the seven months since the law went into effect, Louisiana has become an experiment of sorts, one that both sides of the debate are watching closely.
Effect on existing cases
The fallout began quickly in Orleans Parish. Shortly after the law went into effect, the public defender's office filed a flurry of motions in every pending gun case in its files, starting with the most serious gun felony: being a felon in possession of a firearm.
The argument worked for some. Judge Frank Marullo threw out gun charges against two convicted criminals, but stopped short of declaring the entire statutes unconstitutional.
But another judge down the hall did just that. A convicted burglar named Glen Draughter was caught in the backseat of an SUV, with a .40-caliber handgun in the backseat, and an AK-47 with a 30-round magazine in the trunk.
Orleans Parish Criminal District Court Judge Darryl Derbigny dismissed the charge against him and ruled the entire statute that forbids felons from possessing firearms unconstitutional in light of the new law. The legality of that statute is now awaiting review by the Louisiana Supreme Court in the fall.
In the meantime, the constitutional confusion has spread — from New Orleans to Baton Rouge, to Lafayette, to the northern reaches of the state. It has called into question both felonies and misdemeanors.
On Sept. 10, 22-year-old Rico Webb was in the passenger seat of a car that was pulled over by New Orleans police for having a broken taillight.
Webb confessed to police that he had one marijuana blunt in his backpack, and he acknowledged a gun on the car's floorboard belonged to him.
Webb has no record, and the gun was legal. The marijuana alone would have been a misdemeanor, prosecuted in Municipal Court and usually punishable with a fine and probation. But combined, the gun and drugs became a high-grade felony with a minimum sentence of five years in prison.
Webb petitioned Judge Arthur Hunter to throw out the charge, but Hunter declined and the 4th Circuit Court of Appeal declined to hear the case, noting that the pending case before the Supreme Court that could clarify some of the constitutional questions.
Webb's attorney, public defender Colin Reingold, has asked the Supreme Court to consider both cases at once.
Court watchers believes that both statutes — being a felon in possession of a firearm and being in possession of a firearm while in possession of a controlled dangerous substance — are likely to stand in some form, though perhaps rewritten more narrowly.
Concealed weapons
The most vulnerable state gun law, some think, is the one that requires a permit to carry a concealed weapon.
A juvenile judge in Baton Rouge last month struck down the part of the law that forbids juveniles from having concealed weapons without a permit. That decision is awaiting appellate review.
Reingold, who represents Haynes as well as Webb, argued before New Orleans Municipal Court Judge Desiree Charbonnet earlier this month that the permitting process is burdensome and arbitrary.
"In order for a law-abiding owner of a legal firearm to leave home with his gun holsters under his jacket or otherwise concealed from view, he has a choice: he may either spend weeks training, collecting documents, and waiting to clear a background check to obtain the required permit, or he may risk criminal prosecution and incarceration," Reingold wrote.
Breaking the law, the first time, is punishable by up to six months in jail.
To obtain a permit from the Louisiana State Police, Louisiana residents must submit fingerprints and notarized affidavits, pass a background check and take a training court, along with other things.
He described it as an unnecessary and "asymmetric restriction" in that a Louisiana resident can carry a gun out in the open with no permit.
"It does not make it more dangerous because it's concealed," defense attorneys told the judge. "The concealed weapons statute doesn't do anything to achieve safety."
The gun debate in Orleans Parish courtrooms has put District Attorney Leon Cannizzaro's office in the awkward position of defending the statutes against the very attacks he warned would happen as the bill was being considered.
Cannizzaro wrote editorials and held news conferences, begging the public to vote against the amendment. He warned that it would place every gun law on Louisiana books in "extreme constitutional jeopardy."
His spokesman, Chris Bowman, responded with an "I told you so" to questions about the current challenges.
His office has devoted hundreds of man-hours, he said, to defending the constitutional challenges they warned would happen. The burden will only grow, he said, as the office prepares to defend the laws this fall before the Louisiana Supreme Court.
In Haynes' case in Municipal Court, the assistant district attorney argued that requiring a certain level of competence to carry a concealed weapon is imperative to ensure public safety and keep the peace.
Judge Charbonnet agreed, comparing the concealed-carry law to those requiring a driver's license or a medical license.
But defense attorneys countered that neither practicing medicine nor driving are fundamental rights, subject to the strict-scrutiny standard. The concealed-carry law, Reingold argued, is more akin to requiring that a person have a permit to speak outside of their home.
Charbonnet sided with the state, and Haynes appealed that decision to the 4th Circuit, where it remains pending.
"I can't imagine that the Legislature actively meant for there to be this level of confusion," said Diamond, who describes himself as a strong proponent of Second Amendment rights, with reasonable restriction.
And it's a conundrum the Legislature now can't undo, even if the court's decision aren't in line with what lawmakers intended.
"We as a people, who in a referendum voted in favor of this amendment, handicapped the Legislature," he said. "In a way, this is a democratically undertaken lock on the discretion of the Legislature."