imported post
turbodog wrote:
I'll argue that the same definition does in fact apply. I say this because the definitions are worded exactly the same.
RS 14:95.4 Consent to search...-
B. For purposes of this Section, "alcoholic beverage outlet" means any commercial establishment in which alcoholic beverages of either high or low alcoholic content are sold in individual servings for consumption on the premises, whether or not such sales are the primary purpose or are an incidental purpose of the business of the establishment.
RS 14:95.5 Possesion of firearm...-
B. "Alcoholic beverage outlet" as used herein means any commercial establishment in which alcoholic beverages of either high or low alcoholic content are sold in individual servings for consumption on the premises, whether or not such sales are a primary or incidental purpose of the business of the establishment.
The "meaning" of what is an "alcoholic beverage outlet" in both ordinances are word-for-word duplicates.
Ok brotha Tdog... darn good point... However, the exception in 95.4(D) cannot be discounted so easily.
Using the rules of statutory construction reference...
http://topics.law.cornell.edu/wex/statutory_construction
I argue that 95.4(D) applies to both sections because...
1)"Statutes should be internally consistent. A particular section of the statute should not be inconsistent with the rest of the statute." So, applying 95.4(D) to 95.5 "only" would be internally inconsistent.
2)The implied reason for 95.4 is to better facilitate enforcing 95.5. In other words, why do you need a “search” statute except to enforce a possession statute? Because the "courts attempt to ascertain the intent of the legislature by looking at legislative history", why else would 95.4 be necessary?
3)”The Rule of Lenity: in construing an ambiguous criminal statute, a court should resolve the ambiguity in favor of the defendant.”
AND I argue that 95.4(D) does NOT apply to both sections because...
1) 95.4 in general does NOT apply to OCing because you don’t need to search someone to find out if they are OCing by definition. “Any question of statutory interpretation begins with looking at the plain language of the statute to discover its original intent.” Also, applying 95.4(D) to OCing may have an “absurd” result because the intention of 95.4 is obviously relevant to “search”.
2) “The legislature is presumed to act intentionally and purposely when it includes language in one section but omits it in another.”
My first impression of this argument was to handle it with a motion to quash provided by article 531…
http://www.legis.state.la.us/lss/lss.asp?doc=112598
…where it can be shown that by inspection of the law alone that it could be determined that possession of a firearm in “Chili’s” is NOT unlawful based on 95.4(D) and 95.4(E)
However, after considering the legal mess of this, I believe the trial court would deny the motion and force it to appeal. The motion should still be filed and appeal pursed to exhaustion, but monetary and / or time expense becomes a consideration.
Consider this… IF “we” were to learn and understand the law better, then “we” could accomplish at LEAST 3 things.
1) We could recognize this CRAPOLA prior to being enacted and act accordingly and / or
2) We could run for state senator or representative as a NON-attorney and POSSIBLY restore some sanity to lawmaking... No offense to attorneys intended
3) We could understand better when the legislature acts ultra vires and presumes that it has the power to regulate a "right" and how "we" can rebut that presumption.
