Louisiana Supreme Court: Enhanced Penalties for Possession of Guns and Drugs are Constitutional

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 States new protections of the right to keep and bear arms.

In 2012, the voters of Louisiana approved a constitutional 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 Amendment 2 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.


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