On March 21, 2013, Judge Darryl Derbigny of the Orleans Parish Criminal District Court granted a motion challenging the constitutionality of Louisiana's felon with a firearm statute (Louisiana Revised Statute Article 14:95.1). He was right to do so. This past November, an overwhelming majority of Louisiana voters approved an amendment to the Louisiana constitution that elevated the standard of review for arms restrictions to strict scrutiny. In the 1970s, the Louisiana Supreme Court held that the felon with a firearm statute was constitutional in State of Louisiana v. Amos. That opinion used language similar to rational basis ("reasonable," "legitimate"). However, the new amendment made clear for the first time that gun rights are a fundamental right in Louisiana, and restrictions on those rights are subject to the highest legal standard of review. Did the voters intend for this amendment to call into question the holding of Amos? Probably not. Most voters are not lawyers something we can all be thankful for and likely did not appreciate the impact the amendment could have. Now that the amendment has passed, the effect is unambiguous all gun restrictions are subject to scrutiny. The government must demonstrate a compelling interest and narrow tailoring not only for new gun laws, but also for previously existing firearms statutes, including criminal statutes such as the felon with a firearm statute. It will be difficult for the government to meet this burden for many of the criminal statutes.
In Louisiana, a second criminal offense for marijuana possession, even a single joint, is a felony, punishable by up to five years in jail. So is possession of single rock of crack cocaine. Attempted burglary of an abandoned building is also a felony. Yet, felons convicted of those non-violent offenses are lumped together with murderers and rapists in Louisiana's felon with a firearm statute and cannot possess firearms.
The same is not true in many other states. In Wyoming, for example, only violent felons are prohibited from gun ownership. Under federal law, any federal felon is barred from gun possession. However, under federal law, possession of small amounts of marijuana and other drugs are not felonies, as they are in Louisiana. The assortment of felonies enumerated in Louisiana's felon with a firearm statute, we believe, demonstrates a lack of thoughtful consideration by the legislature. That is not enough to meet strict scrutiny.
The case, which was brought by the Orleans Public Defenders on behalf of six clients, now goes before the Louisiana Supreme Court for review of the trial court's ruling. Although the trial court granted a facial challenge to the constitution, our motion raised both facial and as applied challenges. The supreme court will ultimately decide if the statute as a whole must fall, or if certain felony predicates withstand strict scrutiny. In the end, the Louisiana legislature may have to revisit the statute and consider limiting it to a restriction on the firearms rights of violent felons.
Federal courts have notably danced around this subject. Some cases suggest that strict scrutiny applies to the Second Amendment after District of Columbia v. Heller. Others recognize that the US Supreme Court has never explicitly made federal gun rights restrictions on par with limitations on free speech or race-based classifications. Because of this, there is very little precedent to guide the Louisiana Supreme Court. But strict scrutiny has always required a significant evidentiary showing by the state to justify its restrictions on citizens' rights. In this case, we think the government has to show convincingly that someone who has two marijuana possession convictions is less trustworthy with a firearm than an otherwise similarly situation Louisiana citizen. It is unlikely that they can.
We are not oblivious to the fact that gun control is hot topic nationally. Our office is not on a mission to promote gun possession our jobs would be much easier and our caseloads greatly reduced if no one in our city had guns. However, it is not our place to question the wisdom of the voters in passing the heightened scrutiny amendment, and we cannot let our clients charged under the current statute plead guilty or go to trial without raising this constitutional objection. It would likely be unethical to do so.
The same is true of other Louisiana laws. It is legal in Louisiana to own a firearm, but it takes a permit to carry a concealed weapon. You can legally walk down the street with a gun in your hand without a permit, but if you put it in a holster under your jacket, you could face a misdemeanor. Again, we don't think this law passes the new, heightened, strict scrutiny standard required by the voters.
Glen Draughter, the young man whose case is going to the Louisiana Supreme Court, had one prior felony conviction for attempted burglary of an abandoned building. He was arrested for being one of three occupants of a car that had two guns in it. It was not his car, he was not driving and the guns were not his, but the prosecution alleges that he nonetheless had "control" of the guns because he was near to them. Under Louisiana's felon with a firearm statute, if Draughter loses his case at trial he faces a minimum prison sentence of ten years.
As legislators work to make America safer by passing gun control laws, it is important they remain cognizant of the collateral consequences poorly drafted legislation can have on criminal defendants. A war on guns might make America safer, but if our lawmakers are not careful it could end up filling our prisons with non-violent offenders, just like the war on drugs.
As public defenders, we will continue to raise these constitutional questions on behalf of our clients to ensure that they receive the same protections for their fundamental rights as other Louisiana citizens. Regardless of the outcome at the Louisiana Supreme Court, hopefully the legislature will recognize that locking up defendants like Draughter surely serves no compelling government interest, and does not make the citizens of New Orleans any safer.
Colin Reingold is a Special Litigation Staff Attorney at the Orleans Public Defenders. He has a B.A. from Yale University and a J.D. from the University of Michigan Law School.
Suggested citation: Colin Reginold, A Fundamental Right: the Constitutionality of Louisiana's Felon with a Gun Law, JURIST - Sidebar, Apr. 14, 2013, http://jurist.org/sidebar/2013/04/colin-reingold-lousiana-guns.php
This article was prepared for publication by Alexandra Cabonor, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at email@example.com