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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 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.

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  1. This is interesting. I believe in 2nd chances, for most. If previous felony does not involve firearms or violance I’m for it. Laws can be stupid and complex and almost everyone in the US has probably done something that could have been charged as a felony somewhere else in the US.

  2. If it’s an amendment to the Constitution then it is not a statute that “will be struck down as being overbroad when applied to certain nonviolent felons but valid when applied to violent felons.” Not a lawyer, but I cannot see the logic behind that statement. Felony is felony. It will be interesting to see how the court rules.

    • I am a non violent felon. I received my felony at the age of 20 for destruction of property!! For putting water based paint in a pool. Now 9 years later I’m am facing three to six years for possession of a firearm. The laws need to be changed my life may be ruined because of a stupid felony. I completely understand if it was a violent crime. But multiple violent misdemeanor convictions and you can still own!

  3. How bout we just stop making felons out of non violent offenders?? Unless they’re building nukes or other WMDs in their mom’s basement leave em at misdemeanors.

  4. This is a pretty clear amendment to their constitution, but no matter how clear, someone can screw it up. “The right of the people to keep and bear arms shall not be infringed” A1 S22 of the RI constitution, once got interpreted to mean that a carry permit is a privilege, not a right. See The Providence Journal Company v. Pine, No. C.A. 96 6274, (R.I. Super. Ct., June 24, 1998).

    As a historical side note, Louisiana was a gunshot away from firearms registration in the 1930s. Huey Long once considered registration due to his fear of being assassinated and after a few attempts on his life. He never got his registration, but he was assassinated. Read “The day Huey Long was shot, September 8, 1935” by David Zinman.

  5. Sadly you stil have to contend with the blanket federal law. Though, I imagine, this would be a strong reason the state courts to restore firearms rights under federal law to many felons.

    Of course get convicted of misdemeanor domestic violence…you have no recourse ever. No authority can restore your rights. But in principle, even now, a murderer could get his firearms rights back. Yay federal law.

    • There is currently a case the supreme court has agreed to hear regarding the lautenberg ammendement. My guess is that it will not pass the “Strict Scurinty” established by Heller. Regarding restoration of rights after being lautenberged, the ATF can, however their budge prevents them from doing so. Your only recourse is a pardon or a reversal, both of which rarely happen.

      • In theory the ATF can restore firearm rights in all GCA cases, but yes were defunded as part of the hysterics of the Dems in 1993.

        Thankfully the 1986 FOPA granted state courts the ability to restore rights in criminal cases. But this does not apply to dishonorable discharges from the military, mental health, and I thought it didn’t apply to the Lautenberg proviso.

        But a pardon does? A pardon does NOT restore firearm rights, necessarily, in the other cases. At least not pardons by governors. I know in California the governor’s pardon only restores the rights IFF no firearm was used in the crime, and the governor does not specify that the disability remains. (and sadly in CA a governor’s pardon is the only route to restore rights…out state courts’ expungment means nothing and is not recognized by the Federal gov as carrying this effect, for some reason, I know not why)

        Does a presidential pardon have this effect? Universally? Or just in domestic violence cases?

        • Per ATF Website because i’m being lazy

          In the Eyes of the GCA, being lautenberged is the same as being a convicted felon or other prohibited person. There is no special firearm disability just for lautenberg cases.

          Q: How can a person apply for relief from Federal firearms disabilities?
          Under the provisions of the Gun Control Act of 1968 (GCA), convicted felons and certain other persons are prohibited from possessing or receiving firearms. The GCA provides the Attorney General with the authority to grant relief from this disability where the Attorney General determines that the person is not likely to act in a manner dangerous to the public safety and granting relief would not be contrary to the public interest. The Attorney General delegated this authority to ATF.

          Since October 1992, however, ATF’s annual appropriation has prohibited the expending of any funds to investigate or act upon applications for relief from Federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, the Bureau cannot act upon applications for relief from Federal firearms disabilities submitted by individuals.
          [18 U.S.C. 922(g), 922(n) and 925(c)]

          Q: Are there any alternatives for relief from firearms disabilities?
          A person is not considered convicted for Gun Control Act purposes if he has been pardoned, had his civil rights restored, or the conviction was expunged or set aside, unless the pardon, expungement, or restoration expressly provides the person may not ship, transport, possess, or receive firearms.
          Persons convicted of a Federal offense may apply for a Presidential pardon. 28 CFR 1.1-1.10 specify the rules governing petitions for obtaining Presidential pardons. You may contact the Pardon Attorney’s Office at the U.S. Department of Justice, 500 First Street, N.W., Washington, DC 20530, to inquire about the procedures for obtaining a Presidential pardon.

          Persons convicted of a State offense may contact the State Attorney General’s Office within the State in which they reside and the State of their conviction for information concerning any alternatives that may be available, such as pardons and civil rights restoration.

  6. Several questions and a comment comes to mind:

    1. If a felon is released after serving a prison sentence, why should we continue to punish them once they’ve served and are out on probation? Restore the right to vote and allow them to bear arms among other freedoms they’ve lost.
    2. Suppose the crime the felon was convicted of was non-violent – are they now not able to have a gun in the home to defend themselves from would be burglars….how are they to protect their family without a gun?
    3. I see nothing wrong with former felons being allowed to hunt.

    • I think that a law disbarring violent felons from ever possessing arms would pass a strict scrutiny test. The reason people want guns is to protect themselves from violent felons, no?

      As to nonviolent felons, I guess it depends on the nature of the felony. I would not support the right of car thieves and burglars to have guns.

      As to felons hunting, yeah, maybe . . . but what if their crime was poaching? And I don’t mean just taking a single deer out of season, but what if it was really serious stuff?

      For every complex problem there is an answer that is clear, simple, and wrong.

      • If a person’s violent or nonviolent history, criminal or otherwise, is sufficient reason to forbid them from owning, possessing, or using a firearm, then they should be in prison for life, period. We all like to point out that it isn’t guns that make people commit crimes. They are already predisposed to violence. They would very well commit said crimes with or without a gun. Accordingly, if these people are deemed too “dangerous” to own guns, then they are dangerous people, irrespective of the presence of a gun, and they should be in prison. If they are so dangerous, then why would any fool think that a simple law would prevent them from illicitly obtaining a firearm and wreaking havoc? However, if society feels that they can be trusted as free men and women after paying their “debt” to society, then they should have all the rights therein pertaining to a free citizen of the United States. As a matter of principal, it is all or nothing.

        Also, I feel that crimes should only be considered a felony if the action directly affected the livelihood, well being, or property of another person or legal entity, to include the government and to an egregious extent (subjective as that is). For example, someone steeling a purse should not be a felony. Using threats of physical violence to do so, could be considered a felony. Simply possessing narcotics in any quantity should not be a felony. Madoff’s actions would meet the requirements of a felony.

        • Prison is too full of drug owners and users and other BS crimes for that to ever happen. The annual taxpayer burden for a year of incarceration runs roughly $30-40K per inmate.

          To put it simply, there are a whole lot of people not in jail who need to be there, a whole lot leaving that need to stay, and it costs too damn much to incarcerate every criminal. Also, people who leave jail tend not to be rehabilitated very well, given the rates of recidivism.

          Jail, in reality, is never the complete answer to providing safety to society.

    • If they’ve served their time, perhaps.

      However, parole (not probation) means that they’re not yet out of the system. Rather, they’re being released into society as a part of their rehabilitation, and as a test.

      Once the parole is over, perhaps.

      My personal belief is that violent offenders are irreparable, that the best we can do is get ’em to behave properly because they’re afraid not to. Let rapists and murderers (with the possible exception of heat-of-the-moment or “ops — guess I hit too hard” killings) go through life with neither guns nor the vote.

      Felons are a spectrum.

    • 1. If the state has the right to deprive a criminal of his entire liberty, even his life, it also has the right to deprive him of some liberties. He who has the right over the whole, has the right over the part.

      It follows, therefore, that when such a penalty is proportionate to the crime, that a person may be deprived of one or several liberties, short of serving a prison sentence. And indeed, that some penalties can last longer than others within the same sentence. So someone prohibited for own a gun is still, by that reason, serving a sentence…that is part of his punishment

      The notion that all penal punishment should be imprisonment…well that is messed up already. I can envision certain offenses as carry probation and a, say, 5 year firearm disability.

      2. But you have an excellent point here. Any punishment must be proportionate to the crime itself. We could end shoplifting, likely, by executing offenders, but it is not proportionate. Depriving those who have abused the exercise of some right and harmed the public of the exercise of that right makes sense. Depriving someone who has not abused that right of its exercise does not. Non-violent criminals should not be punished by loss of 2nd amendment rights, at least not except as far as necessary in the course of serving a prison sentence (since firearms in prison is another matter).

      Oddly enough, in People v. King, the California Supreme Court ruled that a felon in the possession of a handgun (at the time the law only applied to handguns) could not be charged with a crime, when his possession of it was in the course of defending himself or another lawfully. In the case before the court, an excon was at a party, thugs attacked, he took a friend in a wheelchair to safety into a kitchen, only to have the glass be smashed in the windows, so they retreated to a bedroom. The guy found a handgun in the dresser, went out and chased off the thugs. The court ruled that the right to self-defense, enshrined in the California constitution, was more fundamental and thus the law could not be construed as deny him the right to possess a firearm when used in the face of imminent threat.

      Of course how such a means, necessary for the end of self-defense, is to magically appear only when needed the court left unanswered.

      3. I agree. I partially wish that some distinctions would be made, e.g. perhaps a former violent criminal could be allowed to own a suitable longgun for hunting, especially in communities where that is part of the way for life, even when the court would not want to have him carry a handgun. But placing those in separate classes would, likely with our politicians, just lead to further restrictions on handguns. Perhaps adopting the original felon-rule (as still seen in some old state statutes) limiting the disability to handguns only?

      Presumably a criminal is still more likely to use a concealable weapon for offensive purposes than a rifle. The “danger” in allowing the latter is considerably less.

  7. IMHO, once a sentence is served there should be no restriction in the ability of said person to regain ALL freedoms. We can discuss limits and time frame of course.
    The ability for a person, once they have served a court ordered sentence, a way to regain the ability to incorporate back into society would help relieve the over taxed prison system because of recidivism.

    Felons that are no allowed to become ‘normalized’ return to unlawful means in order to just survive.

    Society then pays a price not only regarding another charge and incarceration, but supporting children and spouses of same. We ALL pay!

    • So convicted murderers should be able to strap up after their release?

      I’m fine with that, as long as they live next door to you.

      • As ‘Ive always said, take the politicians and exchange them with those incarcerated…not much would change!

        Most ‘felons’ try like HELL to stay away from trouble. When you cannot get a job and have no way of obtaining benefits or being able to be a part of society there is ONLY one choice. CRIME!.

        I know several ‘Felons.’ They usually had no idea they were committing a crime until ‘The Law’ caught up with them. Murder? As I said, everything is up for negotiation but to deny one’s rights AFTER they have ‘Paid Their Debt To Society’ is wrong!

        And, I might add that I’m a member of Parents of Murdered Children.’

      • Ralph,

        There is a serious problem here. Consider a common example: our criminal justice system incarcerates a person convicted of murder and they serve their full sentence. Then the criminal justice system releases them because they served their full sentence. At that point, if we don’t trust the ex-convict to have a firearm, why did our criminal justice system release them?

        You have to be realistic. First of all, an ex-convict who is free in society and wants to harm someone will have absolutely no trouble whatsoever doing it. The ex-convict could use any number of readily available weapons, including firearms purchased from illegal sources. Second, what about the person who truly did not commit any crime but pleaded guilty to a short prison sentence? Very few people can afford to pay a top-notch attorney to spend all the time necessary to vigorously defend them. And even if that person could afford such an attorney, they might not want to risk 10 years in prison if a jury finds them guilty — versus pleading guilty and receiving an 18 month sentence or something.

        I personally know someone who did just that — pleaded guilty to a felony that they didn’t commit to make sure they would not spend 10 years in prison. You are an attorney. You know the monkey business that goes on all the time.

        Finally, many of us feel the day is coming when Big Brother will be able to slap everyone with a felony of some sort. At that point it is just a matter of which government agent woke up on the wrong side of the bed or which politician a citizen embarrasses.

        • Yes, everyone can be convicted of a felony. It just depends on A) if you commit an outright crime or B) if someone with money wants you put away. To avoid going to prison we just try to not stand out, behave ourselves, and not make enemies of people with money, which includes staying anonymous when speaking ill of them.
          (No, I’m not going “anti-rich” on you all, but with money you can buy lawyers to put the desired person in prison.)

          Three Felonies A Day: How the Feds Target the Innocent
          Harvey Silverglate

  8. For a non violent felony…………………maybe.
    If one has bought his/her rights back as some states allow………………..maybe.
    In reality a felony is a felony so…………….NOPE.

    • The only problem is the threshold for a crime to be considered a felony is getting lower and lower.

      Own a 20 round mag in NJ? Load 8 rounds in NY? You’re a felon… for something PERFECTLY LEGAL in 40-some other states.

      Sure, if you murder, rape, etc., something illegal EVERYWHERE, then I agree that a felony rating is appropriate.

    • I expect that most states have some bizarre felony crimes on the books. Examples here in NC include: felony theft of pine straw, felony theft of used cooking grease (a recent addition) and felony throwing items onto an athletic court (enacted long before hockey and the ‘hat trick’ came to the state).

  9. So, if the LA courts say that it’s legal for felons to own guns does this mean they’ll be a mass migration there of released cons?

  10. I believe a person must be given the benefit of the doubt until they prove otherwise. A non-violent crime (felony or otherwise) doesn’t prove a person is untrustworthy enough to possess a firearm.

  11. He tried to rob someone or something. A person most of you would shoot at if he was commiting the same crime at your residence or in self defense. Yep, lets arm him and make the field level.

    • “We” aren’t arming him. He still has to willingly buy the firearm and register it. He then has to decide to use that firearm in a criminal manner that threatens another’s life. Now, don’t you think that if this non-violent burlar were that type of person then they would have been convicted of something like armed robbery instead?

      Again, the line isn’t clear but there is certainly a difference between someone who commits a crime and another who commits a crime through/of violence.

      • In Калифорния many years ago I knew a second story man. This was in Oakland, and he was just a neighborhood character; of course, he’d do his “shopping” elsewhere.

        His take on violent criminals — especially those whose primary offenses were the violence itself — was that “They’re bad people, degenerates. Give an honest thief like me a bad ame.”

        I’ve no problem with the idea of him carrying.

        Michael Vick, on the other hand…

    • A burglar is inherently a different sort of thief than a mugger or other violent criminal; most burglars would much prefer to never see the victim. A quick in and out with no confrontation; an ‘honest thief’. A mugger or stick-up man is accosting someone, usually with a weapon and always with the threat of violence. I have no problem with a thief serving his time, and being able to defend himself from murder or tyranny later on in life.
      On the other side of the coin, a burglar who surprised me at home would get a very very narrow window with which to beat feet before lead flies.

  12. Most of you seem to have been distracted by the fantasy element of “gun control”. Should “we” “let” violent/non-violent/quasi-violent felons have weapons?
    You’re forgetting the first rule of gun control: there is no gun control.

    In my opinion (yes, just my opinion), if you take guns away from a freed murderer, he is more likely to shoot someone than if you don’t. I know many would disagree, and statistics would be appreciated, but this is very hard to prove empirically; it’s not like half of freed murderers are freely allowed guns and half aren’t, with subsequent murders of each recorded and compared.
    Keeping a man in prison, murdering him, giving him moral and relational support, exiling him, refraining from giving him handouts or financial help are all more effective (though not all justified) ways of reducing a man’s likeliness to murder again. Taking his guns does nothing, or worse.

    When a man with a violent history is released because he is regarded as safe enough, at least two of the above are not done (though the last and least effective is done). He usually receives handouts, as his bad history and “minimum wage” laws put him into unemployment. He often does not receive moral support or join a community with a common goal. He has his guns taken. All these things are dehumanizing and demoralizing. He likely will not fix the first two on his own, especially while receiving tax funded checks, but he probably will get guns if he has the desire.

  13. “…for the nonviolent crime of attempted burglary…”?

    This is exactly the type of crime which frightens people the most. The effect on victims of burglary are devastating. All the burglars I have had the displeasure of encountering are habitual offenders, with the crimes they were prosecuted for being a tiny fraction of their actual level of offending.

    Strange narrative – a bunch on NY ‘gangbangers’ shooting each other up is cynically portrayed, whilst this scum gets waved through.

  14. Great. All the armchair quaterbacks will now be splitting hairs on what types of felons can get their bill of rights secured. NEWSFLASH: If a man pays his debt to society, HE PAID IT! Quit trying to hound him for life. The law banning ex felons from 2nd amendment came out of that great communist era in the 1960’s. Prior to that a man would actually be given a “clean slate”. I plead guilty to a violent crime “asault” when I was 18 years old. The result of being jumped by 3blacks when I decided to crash a bottle over 1 of head’s. I’m now 39 years old, a father and straight as an arrow. I DEMAND my 2nd amendment right be restored. Too many gangbangers walking the streets where I live. Every week they jump some helpless old man. I’m not 18 anymore and don’t have the physical ability to play “wrestlemania” the next time a gang of black males OR mexican cartel members attack me. The gov’t is failing, the printing of money is almost over, austerity is coming including cutts to police and fire departments. It is cruel and unconstitutional to deny me the self determined security only a firearm can provide.

  15. Convicted of felony assault in 1998, Regardless, I own a gun. No law written by men may overtake the natural law whereby I will protect my family and what is mine. End of story. It is not used in the commission of overt crimes. It is a danger to no one. No one except a person who wishes to do harm to myself and my family. It sits quietly, condition one, at my side. I WILL NOT BE DISARMED BY UNJUST LAWS AND PERSONAL PREJUDICES.

    Addendum: At the Philadelphia Convention, the Pennsylvania delegation proposed the idea that “no citizen may be deprived of rights except for crimes convicted” be inserted into the Constitution. It was voted down by over 2/3 of the delegation.

  16. I myself am a first-time convicted felon of a non violent crime! And my conviction happened almost 13yrs ago! Since then I have walked a straight line yet I am still being punished! I am trying to figure out can I or can I not own a firearm? !!

  17. yes you can the felony only goes back 10 years my father in law was a Vietnam veteran afterwards he got to felonyS. and after 10 years I think he still had to go through some type of paperworkbut he was able to buy and conceal firearmS

  18. I recieved a misdomenor summons for accidentally leting the remains of a house catch on fire and because the landowner didn’t clean up the remains in a timely manner , I find myself in FELONY COURT because if found guilty the penalty could become more than 6 months in jail. where is the justice in a decision to prevent me from posessing a firearm because of an accident ?

  19. Look I think some felons should be able to as long as their charge didnt put other peoplr in danger or isnt anythigvto do eith violence….. my husband found out some of his friends stole some stuff n he went to put it back n got charged with simple burglary andcan not own a firearm and I honestly 5hink its stupid because his charge had nothing to do with a fire arm

  20. I live in New Orleans Louisiana. I also live in the upper (9th ward.) I have a nonviolent felon for theft. I can’t legally own a fire arm. I have 5 children from ages 4 to 17.( Bunny friends playground )is in my backyard. You can get killed around here in brawd datlight nust for being in the wrong place at the wrong time. Is it fair that i can’t defend myself or my family. Because of a law. 100 years ago it was against the law for black people to learn how to read. I’d just rather be caught with one rather than without one.

  21. God created man, but Sam Colt made them all equal.
    @delmac: So an 80 year old man with a cane is supposed to have to learn and practice Krav Maga for self defense? Btw, I would love to see a demonstration of how that makes one bulletproof from a distance; or should this citizen also be required to wear body armor?
    Answer me this, why are violent criminals even released from prison at all? Answer: because it is unconstitutional for them to be kept remanded past their sentence. It can’t be both ways. You either follow the Constitution, or abolish it. Felons (actually the term should be ex-felons once their sentence is complete) are to automatically have all of their rights as soon as they have been released. There should be no need of a Pardon or request of restoration of rights required. These rights are not given by the Constitution, they are guaranteed by it. Those who wish to ursurp it are in all actuality, traitors guilty of High Treason; and as such, should be put punished accordingly. Hey, just trying to follow the guidelines set forth by my Forefathers against tyranny.
    Btw, I firmly believe in the death penalty. If you murder, rape, or some other capital crime (and found guilty); you should be publicly executed. You have forfeited your rights in that regard. The criminally insane (unfit for trial) should be institutionalized for the remainder of their lives, unless a capital crime has been committed. If so, see above.


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