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The voters of Louisiana approved an amendment to the state constitution strengthening the state’s gun rights back in 2012 with 73 percent of the vote. It also added the requirement that the court use the strongest level of judicial review, strict scrutiny, when reviewing Second Amendment cases. There’s a good discussion of the history behind the Louisiana amendment at the Volokh Conspiracy, by David Kopel. Following enactment of the amendment, courts have upheld bans on the possession of handguns by minors without parental approval and by felons on probation. The case that came up for oral arguments last week is a different matter, though. It’s one of those that people point to as showing the insanity of some gun laws . . .

Rico Webb, a 22 year old man with no criminal record until…well, has the story:

Justices expressed mixed reaction as they heard oral arguments in the case of Rico Webb, a 23-year-old man who was caught in a car with one marijuana cigar in his backpack and a gun on the floorboard after New Orleans police pulled over his girlfriend for a broken taillight.

The gun was legal and Webb, who has no criminal record, normally would have faced only a fine and probation for misdemeanor possession after the September 2012 arrest. But the combination of the firearm and the marijuana became a felony that, under state law, carries a minimum sentence of five years in prison without the possibility of parole.

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.

The state maintains that the “compelling state interest” is public safety, which is unconvincing. The defense is quoted as claiming that the law is far too broad. I find that convincing, but wonder if the court will as well. Webb’s public defender got the case all the way to the Supreme Court. Watch this space.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
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  1. Webb’s public defender is quite good. Wish Webb well. Such a broad brush is going to catch someone who does not deserve such mandatory sentencing, such as Webb. Citizens who pass such laws are so fed up with judges who have complete discretion to release violent offenders with a slap on the wrist or nothing as we have recently seen with judges that allow an adult man who raped an underage girl numerous times get little more than a court appearance.

  2. Geez…don’t have guns & pot with you. I used to get high in the seventies. Yeah I’m old. Drove high too. But I never had a gun with me. Glad I didn’t get caught. I still have no sympathy for this doofus. Floorboard? Really?

    • Here is the issue: When you are able to make a felony out of doing one illegal thing while doing one legal thing, it makes things really sketchy as a whole. He was doing something slightly illegal (possession of a small amount of weed) while doing something legal and protected (possession of a lawfully owned firearm) and somehow the legal act made his illegal act into a felony. It would be the equivalent of someone getting a felony for talking to a child while drunk.

    • …dude….my Dad was a corrupt Cop back in the 70’s…and he would drive around the ghetto areas of St. Louis with one or more of his kids in the front seat….he would drink his 30-36th beer of the day…listen to police and fire scanner radios…and patrol the hood….each time he would take a turn…the drunken SOB would have a few pack of cigarettes…a few beers…and his service revolver falling off the seat and bouncing around the floorboard…then he’d have us pick it all up and pile it back on the seat….Ha!

      RJ O’Guillory
      Webster Groves – The Life of an Insane Family

  3. ““compelling state interest” is public safety, ”

    I hope somebody says something like, “can you be more specific? Whose life was saved, whose property was protected, by unconstitutionally searching that guy and unconstitutionally popping him for having some unconstitutionally* forbidden plant material?”

    * None of the 18 Enumerated Powers authorizes criminalizing any plant.

  4. Or do not grant permission to search automoble on a traffic stop. Keep your Mary Janes & weapon out of view, not on the floorboard. Nothing good comes from being a doofus.

    • I guess you’ve never been to New Orleans and met what is reputed to be the worst urban police department in the country. Not people to whom you say “no,” nor do they particularly care if you do. If they want to search, you will be searched.

      • Have been to New Orleans a number of times. Did a 90 day contact job in Mandaville, housed in Covington. Made damn sure my driving was in line and car complied with all safety requirements.

        I did have a healthy respect/fear of local cops, tieir reputation proceded them. But, Dude having a gun on the floorboard and dope in the car is just asking for trouble. I don’t have sympathy for the young man, bad judgement has it’s consequentences. He screwed himself, gave cop an opportunity. Good or bad cop, doesn’t matter, two illegal activites, rightous arrest.

        • It wasn’t his car – he was a passenger. And there were no gun violations mentioned. Leaving the guy lying there on the floorboards was perfectly legal. But somehow the kid got popped on having a doobie in his backpack. How else is he supposed to get his personal medicinal home from the dispensor?

          The insanity being pointed out is that the mere presence of those two things in the same car somehow transformed the kid into a five-year felon. That’s the kind of crap that’s got to end. Only the most heartless of drug warmongers would want to continue that kind of abuse of power.

    • The odor of marijuana rises to probable cause in many places, so they don’t need consent if you’re riding dirty.

  5. I’m 28, I’ve been pulled over many, many times, received many citations for various causes in at least 5 states and far more municipalities and counties, usually speeding. I’ve never once been asked to step out of my vehicle and never had my vehicle searched. I have to ask, what is it about the driver that compels the officer to search his vehicle because of a broken tail-light? I hope its not the color of his skin.

    • Many many times in what, 12years? You need to learn to drive. Or get a lot smarter on when/where.

      I drive 30-40000/yr and haven’t reached many times in 35yr.

  6. Scrutiny was invented to justify the exorbitant salaries of lawyers and the black robed walking dead.

    • The various levels of scrutiny were invented to allow “progressive” judges to ignore vast tracts of Constitutional limits on government power. It was and is a huge power grab.

      “Rational Basis” is so close to a blank check that it hardly makes a difference.

      “Intermediate scrutiny” is pretty new. It is a way to do “Rational Basis” on the 2A without calling it that, because in Heller, the Supreme Court said “Rational Basis” was too low a standard for the 2A.

      “Strict Scutiny” is the only one that should be used. Anything less and the courts are not doing their job.

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