It seems that lawmakers in Louisiana didn’t really know what they were in for when they passed a constitutional amendment last year making gun ownership a “fundamental right.” Based on that amendment, this week, a judge declared a state law barring certain felons from owning firearms unconstitutional.
Many of those who fight for the Second Amendment enjoy pretending that there should be no restrictions to our Constitutionally protected rights, but that just isn’t true. This is a perfect example of that, and one that the legislators — and voters — in Louisiana knowingly overlooked when they passed a law that changed the entire meaning of gun rights in the state.
Before the law went into effect at the start of the year, courts were able to approach gun rights with “rational scrutiny,” which allowed them to consider the “public health, safety, morals or general welfare” of the public when deciding the outcome of cases — but the passage of this law changed all of that.
Because the law is now a fundamental right in the state, a court interpreting the law must consider it as such and approach it with “strict scrutiny” — the highest level of judicial scrutiny, and one that requires the law to be necessary for a “compelling government interest.” After it meets that burden, it must be extremely narrowly defined so that it only serves that specific interest and must meet it in the least restrictive way possible.
The public defenders office from the Orleans Parish challenged the constitutionality of the statute barring felons from possessing firearms on behalf of half a dozen clients, all of whom were charged with being a felon in possession of a firearm. While that attorney’s agreed that public safety was an important consideration in banning the possession of firearms to violent offenders, they said it was too broad and thus prevented many less violent felons from possessing firearms as well.
Judge Darryl Derbigny agreed:
"The courts cannot question the wisdom of fundamental law and frustrate the will of the people; their function is to interpret and apply that law," he wrote. "After reviewing the law and applying a strict scrutiny standard, the Court finds La R.S. 14:95.1 unconstitutional in its entirety."
That’s all really complicated, but the state legislative arm of the state probably should have taken a refresher course on judicial review before passing such a law — not that people didn’t try to tell them. In what was functionally a “neener neener” move, Chris Bowman, spokesman for Orleans Parish District Attorney Leon Cannizzaro, released the following statement following the ruling:
"District Attorney Cannizzaro predicted that the passing of this amendment would cause prosecutors across the state to go to court and defend the constitutionality of 14:95.1.”
The statement followed numerous calls from Cannizzaro saying the law, which passed last November, would lead to serious fallout. He even penned an op-ed in the Times-Picayune before it went to a public vote saying the law would lead to a "flurry of litigation in which criminal defendants will challenge the constitutionality of current criminal laws regulating gun possession."
… and would you look what happened?
Republican Louisiana Governor Bobby Jindal, who supported the legislation, released a simple statement essentially saying the judge was wrong: “We disagree with the judge's ruling. The amendment passed last session is not in conflict with Louisiana or federal law barring felons from owning guns."
While voters — and obviously Mr. Jindal — thought they were reaffirming their own Constitutional rights, they were reaffirming them for a lot of other (and perhaps less gun-worthy) people as well. This case will now travel up the judicial chain to the Supreme Court, which will be the final decider in the ramifications of the law. For now, though, non-violent offenders across the state can legally possess firearms.