Louisiana constitutional amendment

mayosligo · October 31, 2012, 09:26 AM

Thought this was worth some discussion as it seems Louisiana will be the first to add this language. Beyond making the language tougher I am not sure what else it safeguards against.

Proposed improvements to Article 1, Section 11 of the Louisiana Constitution, known as the Right to Keep and Bear Arms Amendment, would amend the Louisiana Constitution to state: “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.” If Amendment 2 is accepted by the voters on November 6, Louisiana will have the strongest guarantee of the Right to Keep and Bear Arms in the nation.

http://www.nraila.org/legislation/st...”-on-2!.aspx

Brian Pfleuger · October 31, 2012, 09:38 AM

Strict Scrutiny is a BIG deal. It severely limits the governments ability to restrict a fundamental right. It is the standard for fundamental rights. Explicitly including that phrase firmly place the RKBA in the category of Fundamental Right.

Words like "infringed" have ambiguous meaning. Strict Scrutiny places a very high standard of compelling reason and minimal interference on any "infringement".

zincwarrior · October 31, 2012, 11:16 AM

State laws won't trump federal laws however. In Louisiana's case, thats the real risk.

aarondhgraham · October 31, 2012, 12:14 PM

Quote:

State laws won't trump federal laws however.

I don't think anyone thinks it will trump federal laws,,,
Nor do I believe that was their intent.

From what I have read it is Louisiana's way to ensure that their local municipalities can't enact laws stronger than what the State has in effect.

Aarond

.

Brian Pfleuger · October 31, 2012, 12:29 PM

I think it goes even beyond that, Aarond.

The requirements of Strict Scrutiny would apply to the state levels laws. I'm no lawyer, but to my understanding the very act of expressly applying Strict Scrutiny to firearms laws very nearly makes a Protected Class out of guns owners.

Strict Scrutiny gives the government the burden of proof. The necessity of the law. Any law is essentially PRESUMED to be invalid until proven otherwise. The government has to prove a compelling public interest.

Even if the government proves the necessity of the law, it is still essentially considered a burden on a fundamental right and the law must be tailored so as to be as absolutely narrow as possible, to limit the burden to the least possible level necessary to accomplish the compelling interest.

Scrict Scrutiny is not applied to any "normal" laws. It is reserved to issues of fundamental rights and protected classes. It puts the RKBA on the same level as the right to vote, free press and religion.

Isk · October 31, 2012, 03:43 PM

I have to wonder how this will work out. The legislature is crossing boundaries with this. It's unusual to see legislators place the standard for review in the law using terms of the Supreme Court's own creation. A determination of what constitutes a fundamental right is usually the court's jurisprudence. I have to ponder whether or not a court might simply ignore that portion of the law that tells them how to review it. Then again, things in Louisiana are different (French civil law and all that) so it might work. Who knows.

zincwarrior · October 31, 2012, 03:55 PM

Absent being a violation of the state's own constitutional or federal law, their court system can't ignore it legally. In reality courts are known for doing what they want though.

Brian Pfleuger · October 31, 2012, 05:23 PM

Being that it's a constitutional amendment, it would difficult for it to be unconstitutional. It is possible but I believe it would have to be found to have either been created/passed inappropriately or be itself a violation of some other protected class type law.

Isk · October 31, 2012, 05:32 PM

I guess the bigger concern is whether or not the legislature defined strict scrutiny in the amendment or the constitution. If not, what happens when the SCOTUS changes their definition of strict scrutiny?

**Aguila Blanca** · November 1, 2012, 04:39 PM

Quote:

Originally Posted by Aarondgraham

From what I have read it is Louisiana's way to ensure that their local municipalities can't enact laws stronger than what the State has in effect.

???

It doesn't use the word "preempt," and it doesn't say anything about localities not enacting firearms laws/ordinances. So it can't stop a municipality or parish (what Louisiana uses for counties) from enacting a law that goes beyond what the state has in place.

Crankgrinder · November 1, 2012, 06:45 PM

Im glad to see what happened before will not happen again, at least not there. Hopefully never anywhere else in our country, but i doubt it.

Dr Big Bird PhD · November 1, 2012, 06:46 PM

But it would make it extremely hard to hold-up in court from a lawsuit.

Glenn E. Meyer · November 1, 2012, 08:15 PM

http://www.hammondstar.com/articles/...nists/8121.txt

Another prof prefers to fight for his life by IPAD frisbee-fu.

Bah.

**Tom Servo** · November 1, 2012, 09:28 PM

Quote:

Another prof prefers to fight for his life by IPAD frisbee-fu.

He actually used the phrase "Jindal Machine." Hrm. This part pretty much wrecks Sherman's credibility as a debater:

Quote:

Amendment No. 2 is a lawyer’s paradise and a citizen’s hell. Riser’s retrograde bill now on the ballot makes me wonder if he’s just trying to drum up business for his funeral home. What a nasty way to increase profits.

In any case, I think it's a novel idea. If it passes, I guarantee it will be challenged, and the courts will have to answer the question of whether or not the RKBA is protected by the same standard of scrutiny as, say, political speech.

If so, the barn door's open.

SHNOMIDO · November 1, 2012, 10:44 PM

Illinois next please...

mayosligo · November 6, 2012, 02:33 PM

I will let you all know the results of this as it comes in.

mayosligo · November 6, 2012, 11:02 PM

Looks like it will pass with over 70% in favor.

Al Norris · November 7, 2012, 10:17 AM

The LA ballot measure to strengthen the States 2A right, has passed: http://www.nola.com/politics/index.s...incart_m-rpt-2

There is at least some good news in the results of this election cycle!

jgcoastie · November 7, 2012, 02:53 PM

That is truly great news. Hopefully other states will follow suit.

Glenn E. Meyer · November 7, 2012, 03:46 PM

I have deleted extreme profanity. I caution anyone else from such.

GEM

seeker_two · November 7, 2012, 09:44 PM

Wonderful news! Will Texas be next?....

mmb713 · November 8, 2012, 10:54 PM

Most state constitutions already guarantee the right of the people to keep and bear arms, some even copying the Second Amendment verbatim (so much for it being for States to arm militias.) Article I, Section 6, of the Constitution of the State of Utah states: "The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms." I think we've got Louisiana beat, and for over twenty years now...

carguychris · November 9, 2012, 11:05 AM

Quote:

Wonderful news! Will Texas be next?....

Considering that OC has withered on the vine during the last several legislative sessions, I doubt it.

Although the Dayne Sherman article in the Hammond Star is arguably anti-RKBA, IMHO it does correctly point out one prominent fact about LA Amendment 2- to a large degree, it theoretically takes away the ability of the legislature to pass gun control laws by handing broad authority to the courts.

One fact to remember about the TX legislature is that they have historically always guarded their power very jealously; that's why we have popularly elected judges and a relatively toothless governor. As I understand it, the only way the TX Constitution can be amended is if the amendment originates in the legislature. IMHO it's highly unlikely that the legislature will voluntarily hand over this much power to the courts, regardless of how many brownie points they will earn with pro-RKBA voters by doing it.

45_auto · November 10, 2012, 04:15 PM

Quote:

Originally Posted by mmb713, Utah 2nd amendment

"The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms."

Good luck with allowing your legislature to define "the lawful use of arms". Better hope that enough Diane Feinstein type Californians don't move there to take advantage of it.

Louisiana's 2nd amendment used to be:

"The right of each citizen to keep and bear arms shall not be infringed, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person."

It now is:

“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.”

Utah was behind for over 20 years even under the old version, and is even further back now!

mmb713 · November 10, 2012, 06:52 PM

"Good luck with allowing your legislature to define "the lawful use of arms". Better hope that enough Diane Feinstein type Californians don't move there to take advantage of it."

Don't think that will be a problem. We're talking about the same people that made the 1911 pistol the official state firearm for its 100th birthday. This past summer it was so dry here there were numerous wild fires started by people target shooting on public lands. They still wouldn't put a moratorium on shooting on public lands though. About the only things they restrict here is shooting across the highway and shooting while intoxicated. Utahans love their guns so much even the Democrats here are pro-gun. I actually wouldn't mind just enough Diane Feinstein types moving here to get them to change the liquor laws though.

October 31, 2012, 09:26 AM	#1
mayosligo Senior Member Join Date: February 16, 2006 Location: Baton Rouge, LA Posts: 301	Louisiana constitutional amendment Thought this was worth some discussion as it seems Louisiana will be the first to add this language. Beyond making the language tougher I am not sure what else it safeguards against. Proposed improvements to Article 1, Section 11 of the Louisiana Constitution, known as the Right to Keep and Bear Arms Amendment, would amend the Louisiana Constitution to state: “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.” If Amendment 2 is accepted by the voters on November 6, Louisiana will have the strongest guarantee of the Right to Keep and Bear Arms in the nation. http://www.nraila.org/legislation/st...”-on-2!.aspx

October 31, 2012, 12:29 PM	#5
Brian Pfleuger Moderator Emeritus Join Date: June 25, 2008 Location: Austin, CO Posts: 19,578	I think it goes even beyond that, Aarond. The requirements of Strict Scrutiny would apply to the state levels laws. I'm no lawyer, but to my understanding the very act of expressly applying Strict Scrutiny to firearms laws very nearly makes a Protected Class out of guns owners. Strict Scrutiny gives the government the burden of proof. The necessity of the law. Any law is essentially PRESUMED to be invalid until proven otherwise. The government has to prove a compelling public interest. Even if the government proves the necessity of the law, it is still essentially considered a burden on a fundamental right and the law must be tailored so as to be as absolutely narrow as possible, to limit the burden to the least possible level necessary to accomplish the compelling interest. Scrict Scrutiny is not applied to any "normal" laws. It is reserved to issues of fundamental rights and protected classes. It puts the RKBA on the same level as the right to vote, free press and religion. __________________ Nobody plans to screw up their lives... ...they just don't plan not to. -Andy Stanley

October 31, 2012, 03:43 PM	#6
Isk Senior Member Join Date: June 28, 2011 Location: Alaska Posts: 206	I have to wonder how this will work out. The legislature is crossing boundaries with this. It's unusual to see legislators place the standard for review in the law using terms of the Supreme Court's own creation. A determination of what constitutes a fundamental right is usually the court's jurisprudence. I have to ponder whether or not a court might simply ignore that portion of the law that tells them how to review it. Then again, things in Louisiana are different (French civil law and all that) so it might work. Who knows. __________________ The possession of arms is the distinction between a freeman and a slave. -James Burgh

October 31, 2012, 05:23 PM	#8
Brian Pfleuger Moderator Emeritus Join Date: June 25, 2008 Location: Austin, CO Posts: 19,578	Being that it's a constitutional amendment, it would difficult for it to be unconstitutional. It is possible but I believe it would have to be found to have either been created/passed inappropriately or be itself a violation of some other protected class type law. __________________ Nobody plans to screw up their lives... ...they just don't plan not to. -Andy Stanley

October 31, 2012, 05:32 PM	#9
Isk Senior Member Join Date: June 28, 2011 Location: Alaska Posts: 206	I guess the bigger concern is whether or not the legislature defined strict scrutiny in the amendment or the constitution. If not, what happens when the SCOTUS changes their definition of strict scrutiny? __________________ The possession of arms is the distinction between a freeman and a slave. -James Burgh

October 31, 2012, 09:38 AM	#2
Brian Pfleuger Moderator Emeritus Join Date: June 25, 2008 Location: Austin, CO Posts: 19,578	Strict Scrutiny is a BIG deal. It severely limits the governments ability to restrict a fundamental right. It is the standard for fundamental rights. Explicitly including that phrase firmly place the RKBA in the category of Fundamental Right. Words like "infringed" have ambiguous meaning. Strict Scrutiny places a very high standard of compelling reason and minimal interference on any "infringement".

October 31, 2012, 11:16 AM	#3
zincwarrior Senior Member Join Date: July 1, 2011 Location: Texas, land of Tex-Mex Posts: 2,259	State laws won't trump federal laws however. In Louisiana's case, thats the real risk.

October 31, 2012, 03:55 PM	#7
zincwarrior Senior Member Join Date: July 1, 2011 Location: Texas, land of Tex-Mex Posts: 2,259	Absent being a violation of the state's own constitutional or federal law, their court system can't ignore it legally. In reality courts are known for doing what they want though.

November 1, 2012, 06:45 PM	#11
Crankgrinder Senior Member Join Date: July 24, 2011 Location: Texas Posts: 917	Im glad to see what happened before will not happen again, at least not there. Hopefully never anywhere else in our country, but i doubt it.

November 1, 2012, 06:46 PM	#12
Dr Big Bird PhD Senior Member Join Date: October 26, 2012 Location: Los Angeles, CA Posts: 779	But it would make it extremely hard to hold-up in court from a lawsuit. __________________ I told the new me, "Meet me at the bus station and hold a sign that reads: 'Today is the first day of the rest of your life.'" But the old me met me with a sign that read: "Welcome back." Who you are is not a function of where you are. -Off Minor

November 1, 2012, 08:15 PM	#13
Glenn E. Meyer Senior Member Join Date: November 17, 2000 Posts: 20,064	http://www.hammondstar.com/articles/...nists/8121.txt Another prof prefers to fight for his life by IPAD frisbee-fu. Bah. __________________ NRA, TSRA, IDPA, NTI, Polite Soc. - Aux Armes, Citoyens

November 1, 2012, 10:44 PM	#15
SHNOMIDO Senior Member Join Date: June 23, 2011 Location: Illinois Posts: 423	Illinois next please...

November 6, 2012, 02:33 PM	#16
mayosligo Senior Member Join Date: February 16, 2006 Location: Baton Rouge, LA Posts: 301	I will let you all know the results of this as it comes in.

November 6, 2012, 11:02 PM	#17
mayosligo Senior Member Join Date: February 16, 2006 Location: Baton Rouge, LA Posts: 301	Looks like it will pass with over 70% in favor.

November 7, 2012, 10:17 AM	#18
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	The LA ballot measure to strengthen the States 2A right, has passed: http://www.nola.com/politics/index.s...incart_m-rpt-2 There is at least some good news in the results of this election cycle!

November 7, 2012, 02:53 PM	#19
jgcoastie Senior Member Join Date: February 15, 2009 Location: Kodiak, Alaska Posts: 2,118	That is truly great news. Hopefully other states will follow suit. __________________ "To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them." -Richard Henry Lee, Virginia delegate to the Continental Congress, initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights.

November 7, 2012, 03:46 PM	#20
Glenn E. Meyer Senior Member Join Date: November 17, 2000 Posts: 20,064	I have deleted extreme profanity. I caution anyone else from such. GEM __________________ NRA, TSRA, IDPA, NTI, Polite Soc. - Aux Armes, Citoyens

November 7, 2012, 09:44 PM	#21
seeker_two Senior Member Join Date: August 31, 2002 Location: Deep in the Heart of the Lone Star State (TX) Posts: 2,169	Wonderful news! Will Texas be next?.... __________________ Proud member of Gun Culture 2.0......

November 8, 2012, 10:54 PM	#22
mmb713 Senior Member Join Date: March 15, 2011 Location: Salt Lake City, UT Posts: 421	Most state constitutions already guarantee the right of the people to keep and bear arms, some even copying the Second Amendment verbatim (so much for it being for States to arm militias.) Article I, Section 6, of the Constitution of the State of Utah states: "The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms." I think we've got Louisiana beat, and for over twenty years now...

November 10, 2012, 06:52 PM	#25
mmb713 Senior Member Join Date: March 15, 2011 Location: Salt Lake City, UT Posts: 421	"Good luck with allowing your legislature to define "the lawful use of arms". Better hope that enough Diane Feinstein type Californians don't move there to take advantage of it." Don't think that will be a problem. We're talking about the same people that made the 1911 pistol the official state firearm for its 100th birthday. This past summer it was so dry here there were numerous wild fires started by people target shooting on public lands. They still wouldn't put a moratorium on shooting on public lands though. About the only things they restrict here is shooting across the highway and shooting while intoxicated. Utahans love their guns so much even the Democrats here are pro-gun. I actually wouldn't mind just enough Diane Feinstein types moving here to get them to change the liquor laws though.

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