by K. Connor Long
This past fall, Louisiana residents voted to amend the State’s constitutional right to bear arms. As a result of the amendment, article 1, section 11 of the Louisiana Constitution now reads: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.”1 This strict scrutiny judicial review mandate makes Louisiana’s right to bears arms the strongest in the entire country2 and is an immediate threat to any existing and future firearm legislation.3 As many legal scholars and practitioners expected, the passage of this amendment has given rise to a litany of constitutional challenges to existing Louisiana firearm regulations.4 Indeed, the Louisiana Supreme Court has already adjudicated some of these cases; however, so far the firearm regulations have stood their ground against strict scrutiny review and survived these challenges.
The first firearm regulation challenge to reach the Louisiana Supreme Court was State v. Draughter.5 In this case, the defendant was arrested in New Orleans for the unlawful possession of a firearm under Louisiana Revised Statutes section 14:95.1.6 Because the defendant was previously convicted in 2011 of simple burglary, he is prohibited from possessing a firearm for a period of ten years from the date of completion of the sentence in accordance with section 14:95.1.7 In an attempt to use the recent constitutional amendment to his advantage, Draughter challenged Louisiana Revised Statutes section 14:95.1 as an unconstitutional restriction on his right to bear arms in violation of article 1, section 11 of Louisiana’s constitution.8 Finding in his favor, the Orleans Parish Criminal District Court applied a strict scrutiny analysis to section 14:95.1 and ultimately found it to be unconstitutional.9 In its opinion, the district court stated that “the statute is not narrowly tailored to achieve the government’s interest. La. R.S. § 14:95.1 applies without discretion to nearly every felony crime enumerated in the Louisiana Criminal Code.”10 Because the district court declared the statute, “as is,” to be unconstitutional in its entirety, the case was automatically appealed to the Supreme Court of Louisiana.11
Instead of globally applying strict scrutiny review to Louisiana Revised Statutes section 14:95.1, the Supreme Court of Louisiana narrowed the scope of its inquiry by focusing on the defendant’s standing to assert the protections of the amended constitutional provision.12 Because the defendant was on parole at the time of the offense, the Court limited its review to “whether a convicted felon, who remains under state custody and supervision, may assert a constitutional right to bear arms, the infringement of which is subject to strict scrutiny review.”13 Not surprisingly, the Court found that such a firearm restriction on felons under state supervision passed strict scrutiny review by being narrowly tailored to serve the compelling state interest of public safety.14
In the end, the Louisiana Supreme Court’s ruling in December 2013 squandered an opportunity to provide clarity on the constitutionality of Louisiana Revised Statutes section 14:95.1. By narrowing the scope of its review based on the defendant’s lack of standing as a parolee, the Court effectively avoided the larger issue concerning the State’s ability to dispossess any convicted felon of firearms for a limited period of time.15 Consequently, the constitutionality of Louisiana’s felony firearm restriction remains in the balance for felons not under state supervision. Now we must await another challenge by a felon charged under section 14:95.1 who has completely served out his sentence for the answer to this question.16
Louisiana’s felony firearm restriction is not the only firearm regulation to be challenged since the state constitution was amended. In State of Louisiana ex rel. J.M., the defendant was charged under Louisiana Revised Statutes section 14:95.8, which prohibits the possession of a handgun by anyone under the age of 17, and Louisiana Revised Statutes section 14:95(A)(1), which prohibits the intentional concealment of a firearm on one’s person.17 The juvenile defendant challenged the constitutionality of both statutes under article 1, section 11, asserting that they fail to pass strict scrutiny.18
On both issues the Court disagreed with the defendant.19 Speaking first to section 14:95.8, the Court found that the statute is in fact narrowly tailored to the compelling state interest of public safety.20 The Court noted that because of a juvenile’s lack of mental development, the possession of a handgun is a particular danger to himself as well as to society.21 In addition, the Court also found the statute to be narrowly tailored because it only restricts the possession of handguns rather than all firearms, it only applies to those 16 and younger, and it allows seven exceptions under which a juvenile can lawfully possess a handgun.22 Accordingly, the Court found section 14:95.8 to withstand strict scrutiny review.23
The Court came to a similar conclusion regarding the challenge to Louisiana Revised Statutes section 14:95(A)(1), prohibiting the intentional concealment of a weapon on one’s person.24 In its strict scrutiny analysis the Court stated:
Just as concealed weapons presented a danger to the public order in 1813, they continue to do so, particularly when those weapons are in the hands of impulsive, immature juveniles. Protecting the juvenile population from itself and protecting society-at-large from increased gun violence is now, more than ever, a compelling interest of the government.25
Because Louisiana law prohibits the intentional concealment of weapons without a permit but allows a citizen to carry a concealed weapon with a proper permit, the Court agreed that the statute is a narrowly tailored restriction intended to protect the public, as opposed to a complete ban on the carrying of concealed weapons.26 As such, the Court held that section 14:95(A)(1) did, in fact, pass strict scrutiny.27
Perhaps most importantly, the State of Louisiana ex rel. J.M. opinion effectively silenced any speculation that the Louisiana Legislature intended to erode all regulation of concealed weapons with the passage of the 2012 amendment. Prior to the 2012 amendment, article 1, section 11 expressly stated that it was not intended to prevent the passage of laws prohibiting the carrying of concealed weapons.28 However, when the constitution was amended, the Legislature removed this express reservation, which read: “[B]ut this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.”29 The defendant argued that the removal of this phrase demonstrated that the Legislature implicitly intended to eliminate all laws prohibiting the carrying of concealed weapons. As a result, laws such as section 14:95(A)(1) would be unconstitutional restrictions on the right to bear arms. In response, the Court pointed out that the language of the new provision states clearly that any restriction on the right to bear arms must be subject to strict scrutiny.30 The Court insisted that “any restriction” would also include a law regulating the carrying of concealed weapons.31 Accordingly, the Court held that the 2012 amendment to article 1, section 11 does not prohibit the Legislature from enacting laws regarding the carrying of concealed weapons and therefore does not invalidate Louisiana Revised Statutes section 14:95(A)(1).32
Considering the uncertainty surrounding this area of law in the wake of the 2012 amendment, there are several important points that should be gleaned from these cases. Most importantly, the Supreme Court of Louisiana has illustrated that strict scrutiny is not, as some have feared, a death sentence for firearm legislation. In these two opinions, the Court demonstrated a willingness to uphold firearm regulations even in the face of strict scrutiny review as long as the regulation serves a compelling state objective and is narrowly tailored to that objective.33 The Court determined that each of the statutes in question served the state interest of public safety and determined that such an interest was, in fact, compelling.34 Because one would be hard pressed to find a firearm regulation that does not further the state interest of public safety, the more searching element of future challenges will most likely be whether the regulation in question is narrowly tailored to that end. Also, in both Draughter and State of Louisiana ex rel. J.M., the Court noted the longstanding history that each of these particular firearm regulations had in Louisiana.35 Consequently, regulations with a longer legislative history may be better suited to pass strict scrutiny.
These two cases will undoubtedly have a significant impact on the evolving landscape of gun laws in Louisiana. The 2012 constitutional amendment has thrust Louisiana into a realm of uncertainty regarding the State’s existing gun regulations. As challenges continue to flow through the court system, these two opinions will serve as important guides to judges and attorneys as they apply strict scrutiny analysis to the specific facts of their cases. These two decisions by the Supreme Court have provided us with some clarity, but future challenges will continue to test the strength of the State’s gun regulations.36 Hopefully, these cases have laid a foundation sufficient to support Louisiana’s gun laws as they continue to face strict scrutiny challenges in the future.37
For more on this issue, see K. Connor Long, Firing Blanks: Louisiana’s New Right to Bear Arms, 74 La. L. Rev. 289 (2013).
1 La. Const. art. 1, § 11.
2 In order to pass strict scrutiny review a law must be narrowly tailored to serve a compelling state interest. See, e.g., Carey v. Population Servs., Intern., 431 U.S. 678, 686 (1977).
3 See K. Connor Long, Firing Blanks: Louisiana’s New Right to Bear Arms, 74 La. L. Rev. 289 (2013).
4 Claire Galofaro, Court Considering Second Major Gun Law, The Advocate (Dec. 2, 2013), http://theadvocate.com/news/7700037-123/la-supreme-court-to-consider [http://perma.cc/7G3R-QST2] (archived Apr. 1, 2014).
5 State v. Draughter, 130 So. 3d 855 (La. 2013).
6 Id. at 858.
7 La. Rev. Stat. Ann. § 14:95.1(C) (2010).
8 Draughter, 130 So. 3d at 859–60.
9 State v. Draughter, No. 512-135 (La. Crim. Dist. Ct. Orleans Parish Mar. 21, 2013).
10 Id. slip op. at 3.
11 See La. Const. art. 5, § 5(D).
12 Draughter, 130 So. 3d at 864.
13 Id. at 866.
14 Id. at 867–68.
15 Interestingly enough, in its opinion, the Supreme Court pointed out that neither the State nor the defendant believed that Draughter’s parole status affected his standing to fully challenge the constitutionality of Louisiana Revised Statutes section 14:95.1. Id. at 864. “The state and the defendant both contend the defendant, simply by virtue of facing criminal prosecution for a major felony offense, has standing to raise the constitutionality of his present charge.” Id.
16 Also noteworthy, in its opinion, the Supreme Court of Louisiana determined that the amendment to article I, section 11 has prospective effect from its effective date of December 10, 2012, and has retroactive effect only to those cases pending on direct review or not yet final. Id. at 864.
17 State of La. ex rel. J.M., 2013-CK-1717, 2014 WL 340999 (La. Jan. 28, 2014).
18 Id. at *3.
19 Id. at *18.
20 Id. at *10.
21 Id. at *13.
22 Id. at *12.
23 Id. at *13.
24 Id. at 18. Louisiana Revised Statutes section 14:95(A)(1) reads: “Illegal carrying of weapons is: (1) The intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person.” La. Rev. Stat. Ann. § 14:95(A)(1) (2012).
25 State of La. ex rel. J.M., 2014 WL 340999 at *16–17.
26 Id. at *1. See La. Rev. Stat. Ann. § 40:1379.3 (2014) for Louisiana’s concealed handgun permit regulations.
27 State of La. ex rel. J.M., 2014 WL 340999 at *18.
28 La. Const. art. 1, § 11 (amended 2012). See Long, supra note 3, at 3–7, for a thorough comparison of the recent article 1, section 11 provision and the newly amended provision.
29 La. Const. art. 1, § 11 (amended 2012).
30 State of La. ex rel. J.M., 2014 WL 340999 at *14.
33 Id. at *18; State v. Draughter, 130 So. 3d 855, 867–68 (La. 2013).
34 Draughter, 130 So. 3d at 867–68; State of La. ex rel. J.M., 2014 WL 340999 at *10.
35 Draughter, 130 So. 3d at 867; State of La. ex rel. J.M., 2014 WL 340999 at *11.
36 One such challenge has already arisen. In State v. Webb, No. 2013-KK-1681 (La. Crim. Dist. Ct. Orleans Parish 2013), the defendant has been charged with violating Louisiana Revised Statutes section 14:95(E), which prohibits possession of a firearm while also in possession of drugs. The Supreme Court of Louisiana granted writ on this case on November 22, 2013, and oral argument is set for March 25, 2014. The defendant has appealed his charge asserting a facial constitutional challenge to Louisiana Revised Statutes section 14:95(E), arguing that the statute violates his fundamental right to bear arms and fails strict scrutiny under article 1, section 11.
37 See Long, supra note 3, in which the author argues that Louisiana’s existing gun laws are capable of withstanding strict scrutiny judicial review. Thus far, State v. Draughter and State of La. ex rel. J.M., have supported these assertions.