Very true.
As can be seen in the cases that I posted in another thread, our supreme court has disgraced itself by forgetting(purposefully) that our state constitution is a document agreed on by the people AS WRITTEN. It is the constitution itself that creates the judiciary. Yes, the NRA is correct that the La. SC has eviscerated many of our supposedly "protected" rights. The only way to change the constitution is to amend it and NOT twist it with BS excuses.
We should be counteracting this by re-writing art. 1 sec 11 to say "...restrictions not explicit in this constitution are forbidden". Instead, we're saying this...
"Since you've ignored the word "abridged" we're gonna acquiesce and give you permission to restrict as long as the restriction passes some arbitrary test that you get to define AND interpret.
The NRA won't support my suggestion because they think that it's politically impossible. They might be correct. The NRA is just looking for a battle it can win. Unfortunately, winning this battle doesn't do much. If the SC can ignore the word "abridged" then it can ignore any word it wants to... this is an exercise in BS. We should not be tolerating this and yet SB303 re-enforces it.
Truth be told... you, me the NRA or anyone else have no idea what this new amendment will accomplish. So, we're voting for something... but what? We won't know 'till the appeals are filed.
We're voting to have the
minimum standard the court will apply increased from rational basis to strict scrutiny. From "the legislature may have found" deferential rubber stamping to no less restrictive means to accomplish a compelling interest. It means the government will actually have to defend the causal chain that makes their law so very important, rather than useless if not counter-productive, and that they'll have to give up any excesses that can be trimmed without compromising that interest. Take the state school GFZ, for example - compelling interest in protection of children and educational environment? Court will probably say yes, if only out of precedent. Narrowly tailored? Does it even work? Case now hinges on a factual question with facts favorable to us and the burden of proof on the other guy. And none of the usual anti-gun lobby's shenanigans, either - the experts get cross examined, and if they bring half a picture that comes out. And even if the main fight is lost, how to justify the 1000 ft radius? Why is it needed at all? Why is it at least not smaller?
Why do bars prohibit armament to people who work for associated businesses making while making deliveries/pickups? When they're closed? When the person in question is a designated driver?
Assault weapons ban? Ban barrel shrouds? We've seen attempts at this. I don't expect the legislature to reliably police itself so I won't say it won't get passed...but I don't think it would be up for very long.
The list goes on, but the point is that the amendment gives us a stronger position from which to challenge restrictions. This is an upgrade to the courtroom viability of RKBA arguments in this state. There will be fights won under this that would be lost without it. Yes, a law that made the existing state RKBA provision absolute would be far more favorable, but that is the accurate comparison: more favorable. Not good vs bad but good vs better. Also, the way SB 303 was nearly neutered in the house committee indicates that the NRA was reasonable in believing that much more would be impossible. They're too moderate too often, as an organization, but in this particular case their restraint seems rational.
On the subject of it being better to have LASC uphold the current right as absolute, that's a very long shot and it doesn't get much longer with this amendment. For current law, legislative history, which the court would normally use, says that some restrictions are okay; after all, New Orleans had a registration or licensing scheme that was left alone. Precedent, which the court is also in the habit of using, will indicate that the standard might be rational basis (based on language used) and is certainly not higher than strict scrutiny (because restrictions survived it). The only other use of the word "abridged" in the state constitution? Weakly applied. In order to reach an absolute right they'd have to shrug off years of precedent, legislative history, other uses of the language, and persistent disregard of the right's importance to embrace the literal meaning of the text. If the court is
that on board for RKBA they can add a line to the opinion to the effect that because the amendment was intended to increase protection it should serve as a floor, not a ceiling, on the protection of the right and so would not cause an absolute right to be subject to restrictions. Only if we have an ideologically neutral court gunning for pure textual interpretation would we be harmed by this amendment and that's an unrealistic contingency to commit for.
The "they think it isn't an absolute right" ship sailed long ago. I don't think that holding out for sinking it, especially while individual restrictions gain the acceptance and normalcy that comes with age, thereby making the job harder, is a good idea. Why not weaken it when we get the chance? What the NRA is "giving up" - the implied acceptance of restrictions - was already gone. Most people don't look to our text to see what the RKBA rights are; they look to what laws are on the books and conclude that those are okay and some even use standard legal research. When faced with a contradiction between what the constitution says and what the government says they listen to the latter. A rant for another day, but the point is that most people are not reaching "absolute right" under present conditions, and the people who are and might in the future don't usually look to the law for normative statements.
