Louisiana Supreme Court considering whether constitutional amendment protects criminals’ rights, too
NO “Nowhere in this country is the interest in combatting gun violence more compelling than in the state of Louisiana, and no one is more aware of that then Louisiana’s 42 elected district attorneys and their more than 700 assistants. On a daily basis, Louisiana’s prosecutors are faced with the aftermath of gun violence and its destructive impact on our citizens.” The Louisiana District Attorneys Association, in a brief filed in support of the state’s case YES “The law considers someone convicted of second possession of marijuana just as potentially dangerous as someone convicted of a homicide offense: both defendants must wait ten years after completion of their sentence to exercise their fundamental constitutional right to bear arms.” The Louisiana Association of Criminal Defense Lawyers, in a brief filed in support of Glen Draughter
Glen Draughter, a convicted burglar, was caught in April 2012 riding in a car with a handgun in the backseat and an AK-47 in the trunk. He was charged with one of the state’s most severe gun crimes, being a felon in possession of a firearm, and faced a decade or more in prison.
He has since become the poster child for a gun debate raging in courtrooms across the state, and on Monday, the questions landed before the Louisiana Supreme Court to sort out.
Six months after Draughter was arrested, Louisiana voters passed a constitutional amendment that declared the right to bear arms is a fundamental one in Louisiana, and any law limiting that right should be subject to the highest level of judicial scrutiny.
It was the first time in American history that gun ownership became subject to a legal test so rigorous that in other fields it wipes out 70 percent of the laws that come up against it.
The state’s highest court is considering whether that enhanced right applies to felons, too.
The stakes are high.
If the statute falls, it would mean open season for defense attorneys to attack the 80 other gun crimes on Louisiana’s law books.
Most at risk, many legal experts believe, is the law that requires a person to have a permit to carry a concealed weapon.
Some legal scholars have bashed the Legislature for not considering such unintended consequences of an amendment that, in practice, accomplished little.
Legislators hailed it mainly as a safeguard if federal gun protections under the Second Amendment were somehow to fail.
The amendment was backed by the National Rifle Association and Gov. Bobby Jindal but was attacked by anti-violence and law-enforcement groups.
Orleans Parish District Attorney Leon Cannizzaro held news conferences and wrote op-ed columns, warning that the law’s inevitable fallout would threaten public safety, particularly in a state with one of the highest murder rates in the nation.
Cannizzaro must now defend the gun statutes against the very consequences he predicted.
“This amendment changed the game,” Assistant District Attorney Kyle Daly told the Supreme Court on Monday, adding his office has spent hundreds of hours defending the statutes against constitutional challenges.
The state statute forbidding felons from possessing firearms cites a list of 150 offenses, from second-offense marijuana possession to burglary and murder.
Anyone convicted of any of them is barred from possessing a firearm for 10 years after being released from prison.
The new legal test, called “strict scrutiny,” requires the government prove both the law serves a clear and compelling interest, and it is so narrowly tailored it is the least restrictive way of accomplishing that purpose.
Draughter’s attorney, Colin Reingold, won the argument in March before Orleans Parish Criminal District Court Judge Darryl Derbigny.
He argued then the government must be able to prove someone convicted of burglary posed an enhanced threat to society when armed, even though burglary is not inherently violent and no gun was used in the crime for which the person was convicted.
Derbigny not only tossed out the charge against Draughter but declared the entire statute about felons in possession of guns unconstitutional because of its vast list of underlying crimes.
Whenever an entire statute is deemed invalid, the state’s appeal goes directly to the Supreme Court for review.
Reingold again argued before the Supreme Court on Monday that the statute on the books, written in 1975 and amended nearly a dozen times since then, treats marijuana users and murderers the same, but skips some inherently dangerous acts: Conspiracy to commit murder, for example, appears nowhere on the list.
His position was supported by the Louisiana Association of Criminal Defense Lawyers, which called the law “random,” “clumsy” and “roulette-wheel lawmaking.”
“Perhaps most unreasonably, the law considers someone convicted of second possession of marijuana just as potentially dangerous as someone convicted of a homicide offense: both defendants must wait ten years after completion of their sentence to exercise their fundamental constitutional right to bear arms,” the association wrote to the court.
“But that kind of scattershot lawmaking is not permissible anymore. For (the statute) to pass strict scrutiny, it must reflect the careful judgment of the Legislature. It does not.”
Reingold on Monday conceded that public safety requires some regulation.
“Aren’t you admitting that there is some line that we have to draw?” Justice John Weimer asked him.
Reingold said that there is, indeed, a line somewhere, but that the question before the court was whether that line is now drawn in the right place.
The District Attorney’s and Attorney General’s offices have argued the statute passes the “strict scrutiny” test because it does not say all felonies bar possession of firearms; instead, they said, it includes a specific list that the Legislature decided made a person more inclined to commit violence. Even our most cherished rights, such as freedom of speech, can be reasonably limited, they said.
Moreover, they argued, the Legislature intended for the “strict scrutiny” test to apply only to limits on guns owned by law-abiding citizens, not by criminals — particularly not in a state that has one of the highest rates of gun deaths in the country.
“Nowhere in this country is the interest in combatting gun violence more compelling than in the state of Louisiana, and no one is more aware of that than Louisiana’s 42 elected district attorneys and their more than 700 assistants,” the Louisiana Assistant District Attorneys Association wrote in support of the state’s position. “On a daily basis, Louisiana’s prosecutors are faced with the aftermath of gun violence and its destructive impact on our citizens.”
The Supreme Court justices seemed to fixate on several technicalities of the case.
For instance, Draughter was on probation when he was arrested with the gun, and the court pressed attorneys about the exact nature of his probation.
The justices also seemed concerned by the timing of the offense and when the amendment was approved.
Assistant Attorney General Colin Clark said Draughter was arrested months before the amendment went into effect. Even if the court were to deem the statute about felons with firearms unconstitutional, he said, it would then have to decide whether such a ruling would apply to the hundreds of cases filed prior to the amendment’s passage.
Whatever the court does with Draughter’s case, it will undoubtedly have to weigh the effects of the “strict scrutiny” test down the road. Several other cases are awaiting review, including a similar challenge to the state’s concealed-carry law.
A decision is expected in the coming months.