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Thread: Proposal would rewrite La.'s right to bear arms

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    Proposal would rewrite La.'s right to bear arms

    http://www.kplctv.com/story/17323471...t-to-bear-arms


    Section 11 of the Constitution of Louisiana, to read as follows:
    §11. Right to Acquire, Keep, Possess, Transport, Carry, Transfer, Use
    Arms.
    Section 11. The right of each citizen to acquire, keep, and bear possess,
    transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes is fundamental and shall not be denied or infringed, and any restriction shall be subject to strict scrutiny.

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    Quote Originally Posted by oldgoat View Post
    http://www.kplctv.com/story/17323471...t-to-bear-arms


    Section 11 of the Constitution of Louisiana, to read as follows:
    §11. Right to Acquire, Keep, Possess, Transport, Carry, Transfer, Use
    Arms.
    Section 11. The right of each citizen to acquire, keep, and bear possess,
    transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes is fundamental and shall not be denied or infringed, and any restriction shall be subject to strict scrutiny.
    You have the unamended version. The Committee passed it with an admendment which added the words "of this right" between the words "restriction" and "shall".
    So it now reads....
    “The right of individuals to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes is fundamental and shall not be denied or infringed, and any restriction on this right must be subjected to strict scrutiny.”
    See here-> http://www.legis.state.la.us/billdat...asp?did=788052
    President/ Founding Member
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    Regular Member turbodog's Avatar
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    I'm still trying to get a sentence that says:“The right of individuals to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes is fundamental and shall not be denied or infringed"

    And at the same time says: "and any restriction on this right must be subjected to strict scrutiny."

    It just seems funny to state it's a Right that shall not be "denied or infringed", yet be making provisions for denials and infringements in the same sentence.
    Quote Originally Posted by NavyLT View Post
    Him: "I carry my gun concealed"
    Me: "You're not very good at it"
    Him: "What do you mean?"
    Me: "I know you have a gun"
    End of conversation.

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    Quote Originally Posted by turbodog View Post
    I'm still trying to get a sentence that says:“The right of individuals to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes is fundamental and shall not be denied or infringed"

    And at the same time says: "and any restriction on this right must be subjected to strict scrutiny."

    It just seems funny to state it's a Right that shall not be "denied or infringed", yet be making provisions for denials and infringements in the same sentence.
    You're right on it. Mexico has a constitutional protection for the right to bear arms, but in it there is a clause that allows for restriction. As we know they basically have no such right now.
    Don't believe any facts that I say! This is the internet and it is filled with lies and untruth. I invite you to look up for yourself the basic facts that my arguments might be based upon. This way we can have a discussion where logic and hints on where to find information are what is brought to the forum and people look up and verify facts for themselves.

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    Quote Originally Posted by Daylen View Post
    You're right on it. Mexico has a constitutional protection for the right to bear arms, but in it there is a clause that allows for restriction. As we know they basically have no such right now.
    In other words, we need to keep this from happening. We should oppose ANY amendment to the Constitution of La. with respect to firearms because it will turn out very bad.

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    Quote Originally Posted by georg jetson View Post
    In other words, we need to keep this from happening. We should oppose ANY amendment to the Constitution of La. with respect to firearms because it will turn out very bad.
    I know I'd never want the constitution to admit that ANY restriction is lawful.
    Don't believe any facts that I say! This is the internet and it is filled with lies and untruth. I invite you to look up for yourself the basic facts that my arguments might be based upon. This way we can have a discussion where logic and hints on where to find information are what is brought to the forum and people look up and verify facts for themselves.

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    An example of a "restriction" would be as here in NC: Open carry is the norm; CC requires a permit. Also are the restrictions against carry in various government areas, educational facilities, or restaurants/bars. We also have places where CC is okay and OC is not.

    It appears this amendment is for clarification purposes. Nothing essential is changed.

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    Quote Originally Posted by bc.cruiser View Post
    An example of a "restriction" would be as here in NC: Open carry is the norm; CC requires a permit. Also are the restrictions against carry in various government areas, educational facilities, or restaurants/bars. We also have places where CC is okay and OC is not.

    It appears this amendment is for clarification purposes. Nothing essential is changed.
    WRONG! Our Constitution provides for only ONE exception and that is concealed carry. Any other exception would be an ABRIDGEMENT of our RIGHT.

    There is NO exception for regulation of our right to OPENLY carry in LA. PERIOD. The exceptions exist in statute only and need to be corrected. This bill is an attack of our right and we need to recognize and defend properly.

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    Guys, they are after open carry. With this change to the constitution they could require a license for OC, restrict where you can OC, or even go for Texas style laws. You guys should be writing to get that last sentence removed or changed to simply say no restrictions upon free individuals right to bear arms shall be tolerated. This amendment is a Trojan horse.
    Don't believe any facts that I say! This is the internet and it is filled with lies and untruth. I invite you to look up for yourself the basic facts that my arguments might be based upon. This way we can have a discussion where logic and hints on where to find information are what is brought to the forum and people look up and verify facts for themselves.

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    Regular Member sraacke's Avatar
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    Guys,
    I want you all to check out this thread over at Bayou Shooter.
    http://www.bayoushooter.com/forums/s...-Heard-Tuesday
    The NRA lobbiest behind this is posting there under the forum name NRA80.
    BayouShooter has a larger audiance than OCDO and includes La Shooting Association board members and others active in firearms politics. If we want to post opposing views to this bill and tell them why this is a bad bill we need to go to that board and post all of this there.
    President/ Founding Member
    Louisiana Open Carry Awareness League
    www.laopencarry.org

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    Regular Member hermannr's Avatar
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    Strict scrutiny is the highest level of scrutiny.

    I would say this is good, or bad, depending on what your present constitution states. If you have a short and sweet 2A equivilent (like ours here in WA Article 1 section 24) it may be a step back, if you do not this is pretty good IMHO.

    Even with our short sweet 2A equivilent we have restrictions on carry into a court room and an elementary school house.

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    Regular Member sraacke's Avatar
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    SB303 was passed by the Senate and now it's headed for the House.
    President/ Founding Member
    Louisiana Open Carry Awareness League
    www.laopencarry.org

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    Here is what I got back from the NRA about the bill:

    "Thank you for contacting NRA-ILA.

    We appreciate you expressing your concern, however, I assure you the bill does not create the problems you say it does.



    To begin with, "strict scrutiny" is very different than how you seem to understand it. It is the highest form of legal protection given to any fundamental right such as life, free speech, religion, etc. By putting this phrase in the amendment, we are adding the highest level of protection that is available under U.S. law. In fact, this will be the hardest part to pass and to get the weaker gun votes in the legislature to vote for.



    Because the right to keep and bear arms is deemed “fundamental,” any rights-infringing regulation would require – as state and federal case law has shown – a strict scrutiny level of review requiring the state to prove that any infringement is narrowly tailored to meet a compelling governmental interest. More specifically, anti-gunners would have to prove that any regulation is tailored to avoid infringing on persons or activities that pose no risk, i.e., all “legitimate” purposes.



    In other words, if this amendment passes any anti-gunners who introduce any of their anti-gun bills would immediately be on the defensive and would have an extremely difficult time (1 passing their bills and (2 having those bills upheld in court.



    Also, please feel free to review our attached overview of the amendment.



    Again, thank you for your inquiry and please do not hesitate to share any of your thoughts or concerns in the future.
    LA -- SB 303 Overview.pdf
    Don't believe any facts that I say! This is the internet and it is filled with lies and untruth. I invite you to look up for yourself the basic facts that my arguments might be based upon. This way we can have a discussion where logic and hints on where to find information are what is brought to the forum and people look up and verify facts for themselves.

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    To begin with, "strict scrutiny" is very different than how you seem to understand it. It is the highest form of legal protection given to any fundamental right such as life, free speech, religion, etc.
    I think that's true for federal law, but the Louisiana Constitution is not limited to federal standards of review. "While state constitutions cannot be interpreted to afford less protection than the federal Constitution because such an interpretation would violate the federal supremacy clause, a state constitutional provision can certainly be intended to afford and construed as affording greater protection than its federal counterpart. Spaht, Lorio, Picou, Samuel & Swaim, The New Forced Heirship Legislation: A Regrettable “Revolution”, 50 La.L.Rev. 409, 420 (1990). Application of this principle was recognized in Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La.1985), where this court held that by adopting the language in Art. I, Sec. 3, the framers of the 1974 Constitution and the voters who ratified it intended to create an equal protection provision which gave greater rights and protection than its federal counterpart. " La. Ass. Gen. Contractors v. State of Louisiana, 669 So.2d 1185 at 1196 (La. 1996).

    "The wording of Louisiana's guarantee of equal protection is clear and unambiguous and must be applied as written. The section on its face absolutely prohibits any state law which discriminates on the basis of race." Id.

    As a state appellate court put it, racial classifications are "'suspect' under the U.S. Fourteenth Amendment, but ... 'prohibited' classes under La. Const. Art. I." Cooper v. Orleans Parish School Board, 742 So.2d 55, 59 (La. App. 4 Cir. 1999). We could do the same to the Second Amendment.

    The NRA's amendment removes the textual protection for open carry entirely. It also, by removing the same clause, removes the hook ("on the person", see also X Moise W. Dennery et al, Records of the Louisiana Constitutional Convention of 1973, at 145 (1977)) that's been used for protecting guns kept in cars, boats, airplanes, homes, and under cashiers. RS 14:95.6(B)(5)'s example? That might be gone. [Edit: Wrong cite - it's volume 7 page 1212.]

    Their complaint about Blanchard suggesting rational basis is valid, but I don't think that the case law is so settled as to warrant dropping traditional state protective language (which was unnecessary anyway) in order to try to improve the standard of review - especially since they are asking only for the second best standard anyway. Try a declaratory judgment and argue Scalia's point on redundancy against the particular word choice in Blanchard. Yes, they used a word that's part of the rational basis standard, but they didn't say "rational basis", the use of such makes no sense, and they didn't say that being "legitimate" was the only standard, and indeed they continued to examine the law for more than just rational basis (Blanchard discussed a "nexus" between the drug offense and the gun possession).

    I think they're passing up some low hanging fruit, and not reaching as far as they could.
    Last edited by Seigi; 05-02-2012 at 09:48 AM.

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    So… the NRA lobbyist is claiming that the Art 1 Sec 11 has been eviscerated providing the following substantiation…

    “• According to the Louisiana Supreme Court, "The State of Louisiana is entitled to restrict
    that right for legitimate state purposes, such as public health and safety. "State v.
    Blanchard, 776 So.2d 1165, 1168 (La. 2001).”

    Quote found here… http://www.bayoushooter.com/forums/s...-Heard-Tuesday

    Researching this claim opens ones eyes to the absolutely horrid excuse we have for jurisprudence in La.

    State v Blanchard references State v Sandifer
    http://scholar.google.com/scholar_ca...en&as_sdt=4,19

    “The State of Louisiana is entitled to regulate citizens' right to bear arms for legitimate state purposes, such as public health and safety. State v. Hamlin, 497 So.2d 1369, 1371 (La.1986); State v. Amos, 343 So.2d 166, 168 (La.1977).”

    The 2 cases that State v Sandifer reference are very interesting. One of them is State v Amos, which we’ve covered at LOCAL. This is the one where the La Supreme Court went out of their way to IGNORE 2 specific provisions of the La. Const. and referenced the intent of the authors instead. Take your blood pressure before reading, as I’m sure the dissenting Justices had to do the same.

    State v. Hamlin is a challenge to Louisiana’s Short barreled shotgun statute. Relevant quote…

    “However, the right to keep and bear arms guaranteed by our state constitution is not absolute. The right may be regulated in order to protect the public health, safety, morals, or general welfare so long as that regulation is a reasonable one. Amos, supra.”

    It is my opinion as a non-attorney citizen, with a reasonable ability to read, that our Art 1 sec 11 should indeed be rewritten as follows…

    The right of each citizen to keep and bear arms shall not be abridged or infringed. This right is ABSOLUTE.

    What the NRA lobbyist is suggesting only reinforces the MYTH that our right to keep and bear is restrict-able. It is restricted now unconstitutionally. In reality, I don’t think it makes a bit of difference. There will always be another way to “regulate” or “restrict” based on some bs rationalization that passes for “reasonable”. Based on this AND Seigi's homework in the post above, I will maintain the opinion that we must fight back WITHOUT compromise and submit that SB 303 is just such a compromise.
    Last edited by georg jetson; 04-16-2012 at 11:34 AM.

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    Maybe some of you Louisiana guys need to contact your local NRA lobbyist. This is one of their bills, and the ILA guys do read and care about what the locals have to say.
    Don't believe any facts that I say! This is the internet and it is filled with lies and untruth. I invite you to look up for yourself the basic facts that my arguments might be based upon. This way we can have a discussion where logic and hints on where to find information are what is brought to the forum and people look up and verify facts for themselves.

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    Quote Originally Posted by hermannr View Post
    Strict scrutiny is the highest level of scrutiny. .
    says "must" not "shall" more fodder

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    Ila

    I called the NRA-ILA and after about 45 mins of "I'm not familiar with that" and let me see if I can find outs, I finally reached a young lady who was familiar with the law. Basically the jist of it according to her is that since " the strictest scrutiny" is undefined, the law would create an impossible burden for the anti's to get around. Furthermore, she also hinted at this possibly being a foothold law to establish permitless carry ( Az style) here in Louisiana.

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    It doesn't say "strictest scrutiny" it says "strict scrutiny" and that's not undefined. Compelling interest, narrowly tailored, least restrictive means (sometimes considered part of narrowly tailored) - these make up strict scrutiny the way cheese and a hamburger patty in a bun make a cheeseburger. Strict scrutiny isn't impossible, just difficult, at least in relation to rational basis. She's right in that it could be a foothold for AZ style permit-less concealed carry, but the trip from that foothold is quite a jump. Even back in 1850 when LASC recognized OC for inspiring "manly and noble" defense, they were okay with forbidding concealed carry and its tendency for "secret assassinations." There's a list of RKBA limits that I'd look to challenge under the new laws; that one is a ways down there.

    The great news is, courtesy of Moreno's failed amendment, the legislative history is rather clear on the new standard being applicable to existing laws. Which I must say was my biggest fear - that current laws would escape review because they happened to be on the books at the time it was passed. With that handled I've no complaints about SB 303. There are a few things I wish were nicer, yes, but I'm not going to turn my nose up at an upgrade because it doesn't go as far as I'd like - not when it doesn't cost us anything.

    I've had time to rethink the necessity of the "weapons concealed on the person" language. Under our current provision we're running rational basis with possibly less deference (that is, a harder look at whether the means actually helps the end) on off-person and OC. Blanchard wasn't just a concealed weapons case. Losing the preferential treatment of certain methods of carry isn't really a problem when the generic standard is higher than the old preferred one. Yes, a court could screw it up, but they could (and did) already screw it up, and they'd have to go further out of their way to screw it up under SB 303. This way any reasonable judges give us a better shot.

    Having seen the blank check on "concealed" amendment fail 7-7 with one of the 7 needing a moment to think about it I retract my earlier statement regarding low hanging fruit. Those of you who've studied our constitutional definition of "concealed" (not to be confused with the statutory definition of "intentionally concealed") as according to LASC know how catastrophic that would've been. I conclude that the fruit may well have been out of reach; Senator Riser and the NRA got as much through that committee as they safely could, if not more. No, they didn't get an absolute right, and no, they didn't get OC and car/plane/cashier guns preference (though they also didn't expressly repeal that preference ), but they gave us an improvement over current jurisprudence without giving anything up. If they can get that bill onto the ballot as is I'm voting for it and asking everyone I know to do the same.

    It's only a compromise if both sides give up something, and we're not giving anything up here. Legislative history (what georg called "author intent") already killed our current provision as an absolute right - even when it started, New Orleans was permitted to register firearms, and short barrels and automatics were not included. Our current provision was doing a lousy job; this one does better. Not as well as I or many members of this forum would write it, but better and there's nothing to stop us from trying to further upgrade it later.

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    Quote Originally Posted by Seigi View Post
    It doesn't say "strictest scrutiny" it says "strict scrutiny" and that's not undefined. Compelling interest, narrowly tailored, least restrictive means (sometimes considered part of narrowly tailored) - these make up strict scrutiny the way cheese and a hamburger patty in a bun make a cheeseburger. Strict scrutiny isn't impossible, just difficult, at least in relation to rational basis. She's right in that it could be a foothold for AZ style permit-less concealed carry, but the trip from that foothold is quite a jump. Even back in 1850 when LASC recognized OC for inspiring "manly and noble" defense, they were okay with forbidding concealed carry and its tendency for "secret assassinations." There's a list of RKBA limits that I'd look to challenge under the new laws; that one is a ways down there.

    The great news is, courtesy of Moreno's failed amendment, the legislative history is rather clear on the new standard being applicable to existing laws. Which I must say was my biggest fear - that current laws would escape review because they happened to be on the books at the time it was passed. With that handled I've no complaints about SB 303. There are a few things I wish were nicer, yes, but I'm not going to turn my nose up at an upgrade because it doesn't go as far as I'd like - not when it doesn't cost us anything.

    I've had time to rethink the necessity of the "weapons concealed on the person" language. Under our current provision we're running rational basis with possibly less deference (that is, a harder look at whether the means actually helps the end) on off-person and OC. Blanchard wasn't just a concealed weapons case. Losing the preferential treatment of certain methods of carry isn't really a problem when the generic standard is higher than the old preferred one. Yes, a court could screw it up, but they could (and did) already screw it up, and they'd have to go further out of their way to screw it up under SB 303. This way any reasonable judges give us a better shot.

    Having seen the blank check on "concealed" amendment fail 7-7 with one of the 7 needing a moment to think about it I retract my earlier statement regarding low hanging fruit. Those of you who've studied our constitutional definition of "concealed" (not to be confused with the statutory definition of "intentionally concealed") as according to LASC know how catastrophic that would've been. I conclude that the fruit may well have been out of reach; Senator Riser and the NRA got as much through that committee as they safely could, if not more. No, they didn't get an absolute right, and no, they didn't get OC and car/plane/cashier guns preference (though they also didn't expressly repeal that preference ), but they gave us an improvement over current jurisprudence without giving anything up. If they can get that bill onto the ballot as is I'm voting for it and asking everyone I know to do the same.

    It's only a compromise if both sides give up something, and we're not giving anything up here. Legislative history (what georg called "author intent") already killed our current provision as an absolute right - even when it started, New Orleans was permitted to register firearms, and short barrels and automatics were not included. Our current provision was doing a lousy job; this one does better. Not as well as I or many members of this forum would write it, but better and there's nothing to stop us from trying to further upgrade it later.
    Which was the impression that I got when I spoke to the ILA, this is more of a step in the right direction, trying to start the ball rolling to permitless carry, concealed or otherwise. If the expressed authority of the state to restrict cc is removed from the state constitution, then they lose the constitutional authority to do so. Once the language is removed the laws requiring permits can be overturned, based on the new language. It also puts the burdon on the state to prove the validity of requiring permits. IMHO, then the "Criminals don't care about permits, and the requirement to have one only disarms potential victims." argument can be raised in court. Either way it's a step forward.

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