Louisiana is gun country, and their affinity for firearms goes way beyond the Red Jacket reality-show phenomenon. Last November, Louisiana voters approved a strongly pro-gun amendment to the state constitution by a margin of nearly three to one. “The right of individuals to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes, is fundamental and shall not be denied or infringed, and any restriction on this right must be subjected to strict scrutiny.” The language that was enacted, though, may have gone a little farther than the voters of Louisiana intended. Now it’s up to the state’s supreme court to decide how fundamental ‘fundamental’ really is . . .
At issue is whether this fundamental right can be categorically denied to convicted felons. Glen Draughter is a convicted felon (for the nonviolent crime of attempted burglary) and his conviction prohibited him from possessing firearms under existing Louisiana state law.
As nola.com reports, Draughter was then caught by police with a .40 in the back seat of the car he was in, and another AK in the trunk. His arrest occurred before the constitutional amendment was approved last November, but once the amendment passed his attorneys argued that the ‘felon in possession’ law became unconstitutional when it applied to the facts of his case. They also claimed that the constitutional amendment should be applied retroactively, and the trial judge agreed.
The charge was dismissed and the prosecutors appealed, and now the Louisiana Supreme Court is deciding whether a blanket ban on felons (including first-time, nonviolent felons) can survive the ‘strict scrutiny’ test of constitutionality.
Rational Basis vs. Strict Scrutiny
When a statute is challenged on constitutional grounds, most of the time a challenger must prove that the law does not even rationally related to advancing or protecting a valid public interest. ‘Valid public interests’ include just about anything, and ‘rational relation’ is a very broad term. This constitutional test is known as the ‘rational basis’ test, and most laws (including felon-in-possession laws) pass it with flying colors.
But the Louisiana constitution now enshrines firearm possession as a fundamental right, and explicitly commands the courts to review all gun laws using the ‘strict scrutiny’ test. Under this test, the statute in question must be not just useful, but necessary to protecting a compelling government interest, and that it must be carefully tailored so that it is no more broad than absolutely necessary.
Will All Felons Get Their Guns Back?
Almost certainly not. No court is ever going to give guns back to murderers or rapists. But it’s not exactly clear that public safety requires that nonviolent felons can’t possess firearms, especially when people with multiple violent misdemeanor convictions are still allowed to possess them.
For this reason, I predict that this statute will be struck down as being overbroad when applied to certain nonviolent felons but valid when applied to violent felons. I’m not sure where the court will draw the line, but I don’t think that the prosecutors will be able to assemble enough facts and data to show that second-time pot smokers pose any threat to public safety if they’re allowed to possess firearms.