Felons Can Carry Guns Under La. Constitutional Amendment

Posted April 3, 2013 in gun rights by

Masked robber holding a rifle


After voters in Louisiana overwhelmingly approved an amendment to their state constitution making gun ownership a “fundamental right,” the case of a convicted felon who says he should be able to have a gun is headed for the state Supreme Court to test how expansive that right is.


Felons Have Rights, Too 

A state judge on Mar. 21 reportedly ruled in favor of Glen Draughter, a convicted felon caught in a car with guns in violation of a state law prohibiting felons from possessing guns. A handgun in the backseat and an AK-47 plus 30-round clip in the trunk meant Draughter, who’d already been convicted of burglary, faced 10 to 20 years of hard labor. 

Draughter appealed his conviction, claiming the new amendment gives him the right to carry a gun, same as someone who’s not been convicted of a serious crime. A felon convicted of simple burglary unconnected to firearm use is not as dangerous as a felon convicted of a more dangerous crime, his lawyers reportedly argued.

The judge agreed, saying the state law he was convicted under is now unconstitutional. The state Supreme Court will hear the case next.


Strict Scrutiny in Louisiana

The state constitutional amendment on which Draughter is relying was passed last November by a voter referendum, with an astounding 73 percent of voters saying yes. It requires courts to use “strict scrutiny” – the toughest constitutional standard – when reviewing any law that restricts the Second Amendment right to bear arms.

The National Rifle Association backed the amendment, and it wasn’t a long shot in a state like Louisiana, which already has some of the most permissive gun laws in the country, according to Mother Jones

Under the strict scrutiny standard, which courts apply in cases involving well-known rights such as those to political speech, religious freedom, and freedom from racial discrimination, the government must show that a law is necessary to further a compelling government interest, that it is aimed narrowly at that interest, and that it is the least restrictive way of accomplishing it.


The Wild West of Second Amendment Law

Professor Steven Schwinn

Steven Schwinn

In the federal courts, it’s still the wild west when it comes to which constitutional standard applies to laws that affect Second Amendment rights. Courts have been able to dodge the question because they often rule that the conduct restricted by gun laws – such as buying guns if you’re under 21, or carrying a concealed weapon in public – isn’t even covered by the Second Amendment.

“The U.S. Supreme Court hasn’t yet identified a level of scrutiny for Second Amendment claims,” notes Steven D. Schwinn, an associate professor of law at the John Marshall Law School. “It has suggested that certain reasonable restrictions, short of an outright ban, won’t get strict scrutiny.”


Louisiana Makes Own Rules

But the federal courts will never review this law. “It deals with a special constitutional provision in the Louisiana Constitution. Louisianans amended their constitution so that claims like these get strict scrutiny,” Schwinn points out. “This is very different than the Second Amendment, at least insofar as the Supreme Court has said.”

For the federal courts – including the U.S. Supreme Court – to hear a case, it must involve a “federal question,” explains Schwinn, and since Draughter’s case turns on state constitutional law, no federal question likely exists.

Louisiana’s moves here have made national news but raised few red flags in the red state itself. “From what I can tell, this wasn’t a real surprise—in Louisiana,” Schwinn says. “Gun rights/control seems to be a red-state/blue-state thing, with some blue states moving toward more regulation and some red states moving toward more gun rights.”

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