La. Supreme Court punts on challenge to gun law

Broad legal questions left unanswered

The Louisiana Supreme Court largely punted on its first chance to decide whether a new state constitutional provision declaring gun possession a fundamental right could void a long list of criminal statutes that regulate firearms.

The court issued an 18-page ruling Tuesday that scrapped a lower court’s finding that the Louisiana law forbidding felons from having firearms is now unconstitutional. But the opinion hinges on the specific circumstances of a single case, ignoring the larger question of whether the law is constitutional.

Glen Draughter, a convicted burglar caught in a car with an AK-47 and a pistol, became the first criminal defendant to challenge his charge all the way to the state’s highest court.

Draughter is charged with being a felon in possession of a firearm, a high-grade felony punishable by a decade in prison. But his attorneys saw a possible way out in a state constitutional amendment passed last year that, for the first time in American history, declared gun ownership a fundamental right, subject to the highest level of judicial scrutiny.

Orleans Parish District Attorney Leon Cannizzaro, a vocal opponent of the amendment, had warned that it would open all of the state’s 80 gun laws to constitutional challenges, and his prediction quickly came true: The amendment prompted a barrage of legal challenges to all of the state’s major gun laws. At least three judges so far have found statutes unconstitutional, and each of the cases is making its way to the Supreme Court.

The high court must, eventually, decide which laws remain constitutional and which, if any, must be rewritten or abandoned. In the Draughter case, however, the court seized on a technicality, thereby leaving in place the constitutional confusion over gun charges, from the felon-in-possession statute to the law that requires permits for carrying concealed guns.

“This is a very narrowly drawn opinion,” said Raymond Diamond, an LSU law professor and Second Amendment scholar. “It gives us very few hints of where they’ll go with other firearms restrictions in the future.”

He said the limited ruling could indicate the court plans to rule on the gun challenges on a case-by-case basis, which could extend the controversy for years.

The court decided the Draughter case based on the defendant’s probation status.

Draughter pleaded guilty in February 2011 to attempted simple burglary and was given a two-year suspended sentence with probation. He was still on probation in April 2012, when he was caught in the car with the two guns and was charged under the criminal statute making it illegal for those convicted of any one of dozens of felonies to carry a firearm for a decade.

Orleans Parish Criminal District Court Judge Darryl Derbigny tossed out the case against Draughter and declared the entire statute unconstitutional, citing the litany of charges, including nonviolent offenses such as drug possession, that can lead to the 10-year ban. The state appealed that decision to the high court.

Even though both sides said his probation was irrelevant, the Supreme Court found that Draughter’s supervised status inherently lessened his constitutional rights.

“For these persons still under state supervision, we easily find there to be a compelling state interest for the state’s limited infringement of even fundamental constitutional rights, including the right to possess a firearm,” Justice Marcus Clark wrote on behalf of the court.

The court therefore reversed Derbigny’s decision, reinstated Draughter’s charge and sent the case back to the district court for trial. But it acknowledged that it did not touch on the larger issue of whether the felon-in-possession statute is constitutional for the hundreds of offenders charged under it who are not on probation.

That question — “whether the state may dispossess certain convicted felons of their right to bear arms for a number of years, even after they have paid their debt to society and fully discharged their sentences” — was not properly before the court, Clark wrote. Draughter, as a person under state supervision, was not able to challenge the constitutionality of the statute on behalf of those who are not, he wrote.

Derbigny, and other judges across the state, have halted similar cases in their courts while awaiting the court’s decision.

Colin Reingold, the New Orleans public defender representing Draughter, said defense lawyers will pick another defendant — someone who wasn’t on probation when caught with a gun — and try again to get the question before the Supreme Court.

The high court, meanwhile, has other gun laws to sort out. It has agreed to consider the constitutionality of the law banning possession of a firearm while in possession of controlled dangerous substances. It heard oral arguments Tuesday on the crime of juvenile possession of a firearm.

Diamond, and other court watchers, believe that, of all the state’s gun laws, the felon-in-possession statute is the least likely to fall.

Many suspect the law requiring a permit to carry a concealed weapon is at the other end of the spectrum, but a challenge to that law has not yet made its way to the high court.

“This was about the easiest case they could decide,” Diamond said. “The next case won’t be so easy.”