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The Louisiana Supreme Court has ruled that enhanced penalties for the possession of a legal firearm while in possession of illegal drugs do not violate the state’s new protections of the right to keep and bear arms. In 2012, the voters of Louisiana approved an amendment to the state constitution that removed the constitutional provision that gave the state the power to regulate concealed weapons. It added the requirement that the court use the strongest level of judicial review, strict scrutiny, for 2nd Amendment cases . . .

There is a a good discussion of the history behind this amendment at the Volokh Conspiracy, by David Kopel.  The amendment passed with over 73 percent of the vote.

From the Volohk Conspiracy:

Under “strict scrutiny,” the burden of proof is reversed; the government bears the burden of proving that a gun control law is constitutional. To pass strict scrutiny, a law must be proven to serve a “compelling state interest” (not merely a “legitimate purpose”). Even if the law does advance a compelling state interest, the law is constitutional only if the government additionally proves that the law is “narrowly tailored” and is the “least restrictive means” to advance the compelling state interest.

These are strong standards indeed. I considered the arguments of the public defender in this case to be persuasive.  The Louisiana Supreme Court did not.  How did they justify their decision?    The case involved the possession of a firearm by a person who also possessed a small amount of marijuana.  The firearm possession was legal except for the possession of the marijuana.   The defendant, Rico Webb, had no criminal history.   The penalty for the marijuana possession was a maximum of six months; the enhanced penalty for possession of the firearm is a minimum of five years.

From the decision:

Returning then to the technical structure of the strict scrutiny test, the district court correctly observed the test is twofold.5 For a law to survive strict scrutiny, “the government bears the burden of proving the constitutionality … by showing (1) that the [law] serves a compelling governmental interest, and (2) that the [law] is narrowly tailored to serve that compelling interest.” Draughter, 13-0914 at 8, ___So.3d at ___, quoting In re Warner, 05-1303, p. 37 (La. 4/17/09), 21 So.3d 218, 246.

Notice that only two elements are recognized by the court in this case: A compelling state interest, and that the law is “narrowly tailored” to achieve that interest.   The citation to the Draughter case is to a case previously decided by the same court.    The court addresses the requirement that the law use the “least restrictive means” by folding it into the “narrowly tailored” requirement.

As to a “compelling state interest”, the court cites “public safety”, saying that illegal drugs and guns are involved in high rates of violence.   They ignore the defense arguments that no studies have shown that enhanced penalties of the type involved in this law actually decrease violent crimes.   They simply state the compelling state interest as fact.

 Based on legislature’s intent “to prevent those engaged in drug use and distribution from engaging in the violent behavior endemic to the drug trade,”7 and the connection between illegal drugs and violence,8 we find there is a compelling state interest in restricting the simultaneous possession of illegal drugs and firearms.

The last hurdle for the Court to meet the “strict scrutiny” standard is the requirement that the law is narrowly tailored to serve the compelling state interest.  To reach their decision, the court referred to a previous case, Blanchard, decided by the court before the constitutional amendment requiring strict scrutiny was passed.

As the court found that the compelling state interest was to prevent the simultaneous possession of illegal drugs and firearms, it is not difficult to understand that they consider a law that creates a blanket prohibition on the simultaneous possession of illegal drugs and firearms to be narrowly tailored to that purpose.   By doing this they sidestep any examination of alternate policies that reasonable people could claim were more narrowly tailored.

I found the excessive penalty imposed by the law to be the most persuasive argument in the case.  The court refused to consider the penalty involved, in a footnote,  because:

Similarly, and for completeness of responding to the defendant’s arguments, we decline the defendant’s invitation to adjudicate the penalty under La. 14:95(E) as constitutionally excessive. The defendant has not been tried, not been convicted, and not been sentenced. Thus, any question as to the constitutionality of the penalty provisions of La. 14:95(E) is presently premature.

In the next to the last paragraph, the court makes this observation:

Earlier, we observed that in amending Article I, § 11 of the constitution, the electorate tasked this court with applying a very technical legal test to answer a very practical question. From all aspects, we have found the technical points of the law constitutionally allow the state to make it a crime to possess an illegal drug with a firearm.

Perhaps I am being overly cynical, but it seems to be a thinly veiled slap at the electorate:  You want technical?  We will give you technical!   On the other hand, I can follow the arguments, if you ignore the penalty required in this case.

In the end, the court simply ruled that it is constitutional to have an enhanced penalty for possession of a firearm while in possession of illegal drugs.   I do not think that many will find that conclusion to be controversial or startling.

Given that the court refused to consider the nature of the penalty imposed, I have to wonder why they bothered to take the case.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
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  1. What do you know, laws written down on paper don’t stop criminals elected, appointed, or freelance. The court has blatantly ignored rule of law to serve government interests, like they always will. What’s going to happen? Nothing. Rule of law is dead in this country.

    • There are two kinds of people who laugh at the law. Those who break the law and those who make the law.

  2. One in a million that Illinois (Chicago) will adopt a similar law. It would lower the murders quickly but in Chicago drugs is ok. It’s da guns day worry ’bout.

    • Hey hey now, don’t mock their spelling. Credit where credit is due and all that…

      It’s spelled “dey.”

  3. “Choot ’em, Lizabet! Choot ’em!”–Troy Landry of “Swamp People”

    So what was our vote all about? Just like the votes of California for traditional marriage, just like similar votes elsewhere. Votes don’t count anymore do they?

    • Votes are just suggestions. Brave political leaders ignore their constituents to tell them what is good for them. Fearless leader will show us bright glorious future comrade!

  4. While it may not actually do anything to deter criminals from having guns and illegal substances, I don’t see anything wrong with harsher penalties for those who get caught. Correct me if there’s something I am missing.

    • They constitutionally can’t pass a law regarding carrying of guns. They did it anyways and justified it by saying “cause we said so.” Thats the problem. The supreme court has made the law irrelevant and given the government powers the voters took away.

  5. I think you’re really stretching on this one. Penalty enhancements are nothing new.

  6. Come to Washington state where weed is legal and the GUN SHOW BANDIT, John Rodabaugh, President of the Washington Arms Collectors gets paid to STEAL GUNS FROM CITIZENS! I was born and raised in Detroit, I know how to deal with THIEVES!

  7. Of course. Because what’s illegal due to concerns and ideas which are at best ephemeral should influence the free exercise of what at its core is essentially an Eternal Law.

    I’ll visit, but I’d not live there.

  8. “In the end, the court simply ruled that it is constitutional to have an enhanced penalty for possession of a firearm while in possession of illegal drugs. I do not think that many will find that conclusion to be controversial or startling.”

    Possession of a firearm is a fundamental right guaranteed by the highest law of the land. Imagine if there were an enhanced penalty for praying while committing a crime, or for wearing a political t-shirt. What if we allowed a defendant to face higher prison time because at a prior criminal trial he had availed himself of the right to counsel, or exercised his right to remain silent?

    Engaging in a constitutionally-protected activity should not a trigger a harsher penalty when someone also commits a crime at the same time.

    • You do not have a constitutional right to posses a firearm while committing a crime. You have a constitutional and god given right to keep and use a firearm for self-defense and other legal purposes, not to assist you with criminal activity. Bitch all you want about the war on drugs, howerver that does not change the fact that 90%+ of people who are convicted under these enhancements will be career criminals, mostly low rung dope dealers who would normally be out in less than a year.

      If you don’t like what is considered a crime, do something to change it, however your logic is flawed. A gun can be used to intimidate and kill during the commission of a crime, none of the others can. The simple answer is don’t commit a crime while possessing a gun. You wouldn’t have an issue if it was a bank robber. The fact remains is that he is a criminal and just got caught for something minor. No sane person goes around tooled up with a bunch of weed in your pocket unless you are doing something sketchy.

      • Problem is, is that the one real crime when it comes to drugs, is the unconstitutional war on drugs. No laws take away more freedom, than the laws on drugs. They are unconstitutional at it’s core. In fact, SCOTUS had to come up with a completely ridiculous and far fetched ruling of the commerce clause just to keep it illegal. Having a higher penalty just because the government chooses to take two different natural rights and make asserting them illegal, spits in the face of the founding ideals of freedom… Just saying…

        • “No laws take away more freedom, than the laws on drugs.” Don’t forget about “terrorism”. They use terrorism as the popular go-to boogeyman excuse for much of the heinous acts they happily exercise against the population. The war on drugs and the war on terrorism has done more damage to this country than…. well drugs or terrorism could have done on their own. I wonder if they will somehow link the two. A war on terrorists on drugs. OMG! Terrorists on Drugs! Alert the media! We have more privacy and human rights to trample with our new proxy war against American! Hurry!

        • Have you seen what Meth or Coke does to somebody? I’m not arguing that busting people for some weed is BS and a waste of time, however harder drugs do ruin lives.

        • Kyle, prohibition only makes drugs worse and heavier. During the alcohol prohibition, drinks got stronger, more toxic, quality and safety decreases, and the obvious consequence of that is that more people die. And also making one drug expensive stimulates the creation of a cheaper and worse cousin. The classic is crack being the cheap and awful version of cocaine.

          The war on drugs is a complete faiulure ruining the lives of millions, fueling the industry of prison and giving more power to the state and bureaucrats to control and threat people.

  9. Did anybody notice the difference with the penalty enhancement? 6 months vs 5 years,that is a huge difference!

  10. Using the firearm to commit or aid in committing a crime, it is not unreasonable to have harsher penalties, like in the case of robbery vs. armed robbery. However, and here is the crux of it, simple possession of a firearm should not automatically carry stricter penalties. Also part of it may be that (at least in my area) it is illegal to go armed while under the influence of drugs or alcohol. If you are in possession, you are probably under the influence…

    My 2 cents

  11. The war on gun owners and the war on drug users are similar in implementation and effects. Both involve penalizing and imprisoning persons for “crimes” that involve no victim (e.g. possession/consumption of a plant derivative, possession/carrying of a weapon). Both require increasingly violent behavior from the government agents who enforce these laws (e.g. no-knock raids, aggressive use of SWAT teams). Both involve many violations of individual liberty (e.g. asset forfeiture, criminal record despite having done no harm to others, prohibition of firearms ownership, imprisonment, etc.).

    Both are abhorrent in a supposedly free society and be abolished.

  12. B, okay but it’s the combination of guns and drugs right. And just because we say they can’t doesn’t mean they won’t haha. Thanks for the clarification man

  13. Would it be equally proper to pass a law which says speeding 6-10mph over the limit carries a maximum $200 fine, but speeding 6-10mph over the limit while in possession of a firearm carries a minimum $2000 fine?

    After all, if it’s more than 10x as bad to commit an offense unrelated to firearms if you’re in possession of a firearm while you’re doing it…

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