Friday, March 22, 2013

Louisiana Trial Court Strikes Down Louisiana Felon-in-Possession Ban, as Violating Newly Strengthen Louisiana Right to Bear Arms Provision

In November 2012, Louisiana voters strengthened the Louisiana Constitution’s right to bear arms provision, to read
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.

Today, Louisiana Judge Darryl A. Derbigny, in State v. Draughter (La. Crim. Dist. Ct. Mar. 21, 2012), held that the Louisiana ban on felon possession of guns violates this provision. The analysis was brief:

Under the strict scrutiny standard, government action is not presumed to be constitutional, and will not be upheld by [a] Court unelss shown to be necessarily related to a compelling state interest.... After applying the strict scrutiny standard to [the statute], this Court concludes that the statute is not narrowly tailored to achieve the government’s interest. [The statute] applies without discretion to nearly every felony crime enumerated in the Louisiana Criminal Code. As such, the statute, ‘as-is’, is unconstitutional in its entirety.
I assume the government will appeal, and Louisiana appellate courts will consider the issue. Note that the federal ban on possession of guns by felons remains in effect — federal law is governed only by the Second Amendment and not by state constitutional provisions, and D.C. v. Heller stated that felon in possession bans generally don’t violate the Second Amendment. Federal prosecutors could thus prosecute felons possessing guns in Louisiana even if the decision as to the Louisiana law is affirmed.



Unknown said...

I've been saying, banning felons from owning guns is unconstitutional. These are free people, that have served their time, right? How free is free? If the state is willing to take their rights, because they MIGHT commit another crime, maybe they shouldn't have let them go.

Wireless.Phil said...

Ohio is a bit different, you can be a felon and still own a firearm, IF the felony was not the result of a violent crime.

And in response to your comment, yes, they did their time and paid for the crime, however every drunk driver knows that if you are caught again, they always base the sentence on past drunk driving even though you served your time for those already.

Its almost like double jeopardy!