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Thread: Act 874 question

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    Act 874 question

    So from what I have googled, the bill passed in nov(yea haven't been up on the news was playing GI Joe last year). And pretty much says this according to different sources. Act 874 ,would require strict scrutiny of any restrictions on the right to keep and bear arms. The legal standard would require courts, when asked, to determine whether the state’s gun laws demonstrate “a compelling governmental interest” and are “narrowly defined.” If not, they are to be thrown out as unconstitutional. I did some research on what "strict scrutiny" means for gov law, legal etc. And wiki seems to have summed it up the best without all the legal mumbo jumbo included.

    U.S. courts apply the strict scrutiny standard in two contexts, when a fundamental constitutional right is infringed,[1] particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the "liberty" or "due process" clause of the 14th Amendment, or when a government action applies to a "suspect classification" such as race or, sometimes, national origin.

    To pass strict scrutiny, the law or policy must satisfy three tests:

    A. It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

    B. The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.

    C. The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately.

    Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact," because popular perception is that most laws subjected to this standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts found that laws survive strict scrutiny more than 30% of the time. In one area of law, religious liberty, laws that burden religious liberty survived strict scrutiny review in nearly 60% of cases.[2]

    The compelling state interest test is distinguishable from the rational basis test, which involves claims that do not involve a suspect class and involve a liberty interest rather than a fundamental right.

    Now going by that without all the mumbo jumbo legal BS, couldnt one challenge the cc laws in louisiana by the following;
    A.It must be justified by a compelling governmental interest.Current laws really are not justifiable due to , A. OC need have no training on firearms to carry, Do not have to pay for licensing, and by current laws, would still have to inform LEOs of carrying a weapon.

    B.The law or policy must be narrowly tailored to achieve that goal or interest What is the compelling interest of this law? Safety... It is no safer making something licensed when a individual can OC(According to what I have read the firearm doesn't even have to be in full view, as long as its visible enough to distinguish what it is it is legal) so there is really no safety/security issue on that part. That and not requiring OCers to submit to training also flaws the training aspect of CC laws currently

    C.The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interestI can think of multiple less restricted ways, everyone legal age to carry, required to have certified pistol training. Yea sounds annoying, but to be honest there is no reason the law is how it is when a person can simply go to a store, buy a glock and walk around with it locked cocked and ready to rock while to keep it concealed,for cc you are required to register for a license, which is public record, and take a training course.

    To me it seems fairly easy, why is there a law on the books strictly forbidding one to conceal their weapon and having to get a license and certified training when a individual can simply walk into a store, pass the background check and walk out and about with it. Seems a tad silly.
    By the way I have lurked around on the boards for awhile, just never got around to posting much. Nice to meet yall and try not to give me to much flak, its 2 in the morning and i just got off work F*** Mardi Gras

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    For some reason I could not edit my previous post. If it seems I am anti OC, I am not...far from it. I do realize though, that some people and in some situations OCing is not the best approach. IE bourbon st during mardigras, or any extremely packed venue etc. Like my old SGM used to tell us, remember the 12 ft rule. (rule we used to go by for being able to raise weapons up and fire accurately before distance was closed)

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    Hay Redbull why don’t you contact LOCAL (Louisiana Open Carry Awareness League) at www.laopencarry.org. The Southeast chapter meets in LaPlace on the first Wed. of each mounth.
    Pres. Florida Parishes Chapter of LOCAL www.laopencarry.org

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    Welcome to OCDO redbull168!!

    Excellent first post. To answer your question:

    "why is there a law on the books strictly forbidding one to conceal their weapon and having to get a license..."

    Article 1 section 11 of the La. State Constitution contained a provision to allow regulation of concealed arms. So the legislature made carrying a concealed weapon illegal. I believe it was back in the 90's that statutes were enacted to get state permission to carry a concealed handgun.

    The legislation you refer to was part of a process of amending the constitution which removed any mention of "concealed". You're correct that a challenge would probably be successful.
    Last edited by georg jetson; 02-05-2013 at 10:12 AM.

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    Regular Member sraacke's Avatar
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    "why is there a law on the books strictly forbidding one to conceal their weapon and having to get a license..."
    I covered this in great detail in my essay sized post at the begining of this thread-
    http://laopencarry.freeforums.org/wh...t-oc-t800.html
    It's a long read by I laid out the reason as plainly as I possibly could.
    That should help explain it for you.
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    Quote Originally Posted by sraacke View Post
    "why is there a law on the books strictly forbidding one to conceal their weapon and having to get a license..."
    I covered this in great detail in my essay sized post at the begining of this thread-
    http://laopencarry.freeforums.org/wh...t-oc-t800.html
    It's a long read by I laid out the reason as plainly as I possibly could.
    That should help explain it for you.
    Registered and read, but again according to 874. Cc would technically now be unconstitutional as there is no reason for it. Safety argument is nixed due to oc and as well as nixing the training requirement. Could even call it a overlystrict law due to the fact a avg citizens only steps to oc is fed check with gun purchase. Buy gun, buy ammo. Walk around. Whete as cc has about 8x the steps. Personally I think itd be something worth arguing in court.
    Last edited by redbull168; 02-05-2013 at 12:53 PM.

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    Cant edit on phone.... But also would like to point out, due to the passage of 874, and its definition, even though la constitution allows for regulation, it would have to follow 874. Did more research and most laws fought over acts such as 874 are lost about 25/30%. Seems pretty good odds on the fight for it. Next question would be, if appealed to supreme court would the fed gov recognize act 874 or ignore it. As id assume with the Newtown flak/media drama tragedy **** itd end up there anyhow

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    Quote Originally Posted by redbull168 View Post
    Cant edit on phone.... But also would like to point out, due to the passage of 874, and its definition, even though la constitution allows for regulation, it would have to follow 874. Did more research and most laws fought over acts such as 874 are lost about 25/30%. Seems pretty good odds on the fight for it. Next question would be, if appealed to supreme court would the fed gov recognize act 874 or ignore it. As id assume with the Newtown flak/media drama tragedy **** itd end up there anyhow
    Act 874 was the process by which the constituion was amended in this case. Article 1 sec 11 has been changed. It no longer allows for regulation of concealed weapons.

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    Quote Originally Posted by georg jetson View Post
    Act 874 was the process by which the constituion was amended in this case. Article 1 sec 11 has been changed. It no longer allows for regulation of concealed weapons.
    so why is it still regulated or hasnt been challenged as of yet. There is no real valid reason to keep it. It doesn't fall under strict scrutiny. Sure it may make people feel safer knowing a permit has been issued, but there is no research saying it does. And with OC being a option any safety/guidelines/restrictions on cc is pretty much out the window since any non felon/mentally ill can simply carry openly.
    Not to side track, but in Iowa oc includes riflanotheres shotguns etc.. Do they also fall under oc in la? Tried google havent found much but itd be another point on why cc restrictions are currently useless.
    Last edited by redbull168; 02-05-2013 at 03:35 PM.

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    Quote Originally Posted by redbull168 View Post
    so why is it still regulated or hasnt been challenged as of yet
    Because no one interested in CCing has challenged or moved their representatives to repeal RS 14:95. I'm an Ocer, not really interested in concealing anything. I'll bet the next time a drug dealer gets caught with a concealed weapon, his attorney will push the issue. We'll see...

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    Quote Originally Posted by georg jetson View Post
    Because none interested in CCing has challenged or moved their representatives to repeal RS 14:95. I'm an Ocer, not really interested in concealing anything. I'll bet the next time a drug dealer gets caught with a concealed weapon, his attorney will push the issue. We'll see...
    I oc too, but I also would cc if I didnt have to register etc shouldnt have to nor do I believe it should be legal. One of my main issues is because of public record..FOIA requests shouldnt be allowed on it. No one needs to knoe of a resident has a cc permit. ill see what others say here. Hopefully someone will play the devils advocare. Anyone know of other forums to post on to ger opinions on the subject?

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    Regular Member sraacke's Avatar
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    Anyone know of other forums to post on to ger opinions on the subject?

    None, besides the LOCAL Forum that I would recommend except maybe NOLATACs forum at http://forum.nolatac.com/forum.php . Everything else is a bunch of idiots who are incapable of having intellegent discussions without the thread disolving into personal attacks and insults.
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    Quote Originally Posted by sraacke View Post
    Anyone know of other forums to post on to ger opinions on the subject?

    None, besides the LOCAL Forum that I would recommend except maybe NOLATACs forum at http://forum.nolatac.com/forum.php . Everything else is a bunch of idiots who are incapable of having intellegent discussions without the thread disolving into personal attacks and insults.
    Alright i will check it out and throw up a thread over there to. I am seriously considering filing legal actions depending if I can find a competent pro gun lawyer who would be willing to not rape me on the costs completely and who would have passion in looking into this. I am sure its come up in smaller circles since the act is fairly new. 4 months old. Still stupifies me why when 874 was passed they didn't throw out the cc completely. I know OC was legal before then to, but now theres just 2x the reason for no need for cc. That and when you add it all up, cc permits are just a restriction/over regulation on a right. There is no reason for it if anyone can simply walk into a gun store, buy a pistol walk out with said pistol and ammo/holster and walk around town with it, with no training or even knowledge in it. Yet CC permits are for public safety.. looks more like a overtax(highly doubt the dept spends more then what they make researching each permit then they charge.. if they do it would be a tax relief to drop it)

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    I think we need to remember that the LA 2nd Amendment was just passed in November and the legislature has not convened its regular session yet. As was mentioned earlier, the amendment replaces the previous verbiage that empowered the state to regulate concealed carry. That power is gone, but the associated laws still need to be acted upon by the legislature.

    Louisiana will still want to have a concealed carry licensing system if for no other reason than for those who travel to other states. I travel to SC and OH to visit family. My LA CHL has reciprocityty in all the states I travel through. If LA stopped issuing CHLs, then those who travel outside the state will have to seek other means to CC legally.

    Write your state legislators and remind them that all gun laws need to be reviewed in light of strict scrutiny. The AG will probably need to advise the legislature on which laws would more that like fail the test. Those laws that are not specifically repealed in the next legislative session will need to be challenged in court. That takes money.

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    Quote Originally Posted by LoadToadBoss View Post
    I think we need to remember that the LA 2nd Amendment was just passed in November and the legislature has not convened its regular session yet. As was mentioned earlier, the amendment replaces the previous verbiage that empowered the state to regulate concealed carry. That power is gone, but the associated laws still need to be acted upon by the legislature.

    Louisiana will still want to have a concealed carry licensing system if for no other reason than for those who travel to other states. I travel to SC and OH to visit family. My LA CHL has reciprocityty in all the states I travel through. If LA stopped issuing CHLs, then those who travel outside the state will have to seek other means to CC legally.

    Write your state legislators and remind them that all gun laws need to be reviewed in light of strict scrutiny. The AG will probably need to advise the legislature on which laws would more that like fail the test. Those laws that are not specifically repealed in the next legislative session will need to be challenged in court. That takes money.
    Good idea, im gonna write up a letter to send. If ya all want I can post a template of it here and you all can send a copy too. I have a lawyer currently looking i.to helping me set up a trust for my firearms currently. When hes back from vaca I'll see if he can shoot them a letter with a bunch of that good ole legal mumbo jumbo.

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    Quote Originally Posted by redbull168 View Post
    Good idea, im gonna write up a letter to send. If ya all want I can post a template of it here and you all can send a copy too. I have a lawyer currently looking i.to helping me set up a trust for my firearms currently. When hes back from vaca I'll see if he can shoot them a letter with a bunch of that good ole legal mumbo jumbo.
    If I may ask... why a trust?

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    NFA firearms receive preferable treatment when placed into a trust rather than a single person's name. I haven't read up on all the particulars, but my recollection is that you're required to keep them inaccessible to others, on pain of two digit prison sentence. One of the benefits of the trust is that when set up right, you put your family in the trust and they can have access to the gun without someone ending up in jail. Depending on set up it might also allow you to avoid a ATF tax stamp round on inheritance by putting the trust nominally in your kid's name from the get go, but not ceding control. I think it also requires ATF approval of the trust, or at least meeting specific requirements. Screw ups can mean jail time, so this is not a do it yourself project; an attorney is strongly advisable.

    A trust can be made a spendthrift trust through simple election (see RS 9:2000) and protects against most creditors being able to see the assets. See RS 9:2005 for details. Think about mortgages, credit cards, and car accident plaintiffs while you read it. You can find the laws here:
    http://legis.la.gov/lss/lss.asp?doc=106871
    http://legis.la.gov/lss/lss.asp?doc=106869

    Redbull, are you thinking of trying a declaratory judgment if they drag their feet?

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    Quote Originally Posted by Seigi View Post
    NFA firearms receive preferable treatment when placed into a trust rather than a single person's name. I haven't read up on all the particulars, but my recollection is that you're required to keep them inaccessible to others, on pain of two digit prison sentence. One of the benefits of the trust is that when set up right, you put your family in the trust and they can have access to the gun without someone ending up in jail. Depending on set up it might also allow you to avoid a ATF tax stamp round on inheritance by putting the trust nominally in your kid's name from the get go, but not ceding control. I think it also requires ATF approval of the trust, or at least meeting specific requirements. Screw ups can mean jail time, so this is not a do it yourself project; an attorney is strongly advisable.

    A trust can be made a spendthrift trust through simple election (see RS 9:2000) and protects against most creditors being able to see the assets. See RS 9:2005 for details. Think about mortgages, credit cards, and car accident plaintiffs while you read it. You can find the laws here:
    http://legis.la.gov/lss/lss.asp?doc=106871
    http://legis.la.gov/lss/lss.asp?doc=106869
    SNIP
    I'm aware of the advantages of a trust for firearms as defined by the NFA, but I didn't see where the OP spoke of such weapons. I thought perhaps he meant putting his non-regulated weapons in a trust. If that's the case I thought I'd as why.

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    Hey all quick update. Was AWOL on here for a bit as I was at some good ole army trainin. I sent off some letters last week when I got back with some wuestions concerning the current ccw laws vs the oc laws and what the good ole politicians think/planning to due about it. At one point before I left I know there was a person/persons challenging something similar to this but dealing with colleges I believe. Anyhow I'll post up the letter and responses I recieve to the questions I asked as soon as I can.(laptop didnt survive the transit back from training....)

    Also as for the trust my father had one setup for his nfa items, but is going to be moving out of the country in the next few years when he retires, so i get the daunting task on getting what i can licensed and transfered and was told another trust is the easiest safest legal route to go.
    Last edited by redbull168; 06-21-2013 at 03:19 AM.

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