March 23, 2013

Fundamental Scrutiny

Via David Hardy,I stumbled on this discussion at Prof. Volokh's place. It concerns a Louisiana court case, State v. Draughter (.pdf here) which involves an application of a recent Louisiana constitutional amendment mandating a strict scrutiny standard be applied to Right to Arms issues (on the state level at least). The new amendment is:

"The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny."

So in the Draughter case, the court struck down the law barring convicted felons from possessing weapons.

This is causing some folks distress - felons having guns legally is seen as a bad thing. But as I've pointed out before, felons aren't just axe murderers and rapists; they're also folks who had fake i.d.'s, wrote bad checks, released balloons on a beach, snuck into a movie without paying, and generally did things that weren't proper, but not necessarily evil or immoral.

So I think the Louisiana court reached the correct conclusion, but some parts of the decision are troubling.

Mainly the notion of plenary power. I've never agreed with it, but it's a popular theory, especially among government types. The basic idea is that a government, because it represents the people, has unlimited power and a constitution restrains this otherwise infinite ability to legislate. I cannot see that as a correct view of the relationship betwixt the government and the individual.

A more proper view would be that a government is created by a constitution, and whatever power a government has is granted by said constitution, along with explicit limitations on such power to prevent any misunderstanding (as embodied in a bill of Rights for example).

Neither am I a fan of the deference courts give to legislatures, presuming that any measure is constitutional. I always thought the burden of proof should be on the government to prove any particular law was constitutional, but most if not all courts operate on the reverse of that.

Also there's the issue of severability. That is, if one portion of a law is constitutional, the rest of the law can remain in effect as long as the unconstitutional portion doesn't involve the rest of the law in such a way that neither can operate without the other. While this is a practical idea, I think it'd be better overall for a legislature to have to rework an entire bill than to just lose a part of it if a constitutional issue arises.

These issues aside, a strict scrutiny standard entails a presumption that a law is not constitutional unless it can be proved that the law involves a compelling interest of the government, and that the law is narrowly tailored to achieve that result.

The court reasoned that because of the breadth of the law in question (barring any and all felons from possessing arms) was not a narrowly tailored intrusion on the Right to arms. The law in question is LA. R.S. 14.95.1:

"95.1. Possession of firearm or carrying concealed weapon by a person convicted of certain felonies
A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.
B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars. Notwithstanding the provisions of R.S. 14:27, whoever is found guilty of attempting to violate the provisions of this Section shall be imprisoned at hard labor for not more than seven and one-half years and fined not less than five hundred dollars nor more than two thousand five hundred dollars.
C. The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
D. For the purposes of this Section, "firearm" means any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.
Added by Acts 1975, No. 492, 2. Amended by Acts 1980, No. 279, 1; Acts 1985, No. 947, 1; Acts 1990, No. 328, 1; Acts 1992, No. 403, 1; Acts 1994, 3rd Ex. Sess., No. 28, 1; Acts 1995, No. 987, 1; Acts 2003, No. 674, 1; Acts 2009, No. 154, 1; Acts 2009, No. 160, 1; Acts 2010, No. 815, 1; Acts 2010, No. 942, 1"

Now that would include murderers and rapists, but also a farmer who was caught making a simple ANFO bomb to blow up a stump, or someone who had a a pistol while possessing marijuana or a prescription that was improperly labeled (with no proof that it was lawfully possessed).

Mr. Hardy mentioned that a professor pal of his thought this type of result was in essence the pendulum swinging too far back after folks got fed up with courts using any and every excuse possible to deny the Right to arms (that was the implication from the comment at least). I disagree though; it is a reaction tot he courts not respecting a constitutional prohibition on government action, but this was the correct result, not an extreme one.

I'm not a fan of the various levels of scrutiny when it comes to applying the constitution. From what I can fathom, a strict scrutiny is still a bit light. The courts should treat every constitutional provision as an absolute. So in my view, the Louisiana amendment should have been seen as superfluous, not necessary.

Federally the same idea holds - there is no exception to a Right enumerated, and the 9th amendment leaves room for other Rights not explicitly mentioned. When you start allowing exceptions you get results like we've had, where even the most celebrated pro-gun owner decision in memory (D.C. v. Heller) was filled with caveats and disclaimers and all sorts of wiggle room for lower courts to uphold virtually anything short of a complete ban on ownership or possession within the home.

I don't see it as especially dangerous that felons, even violent felons are able to possess firearms. I see it as dangerous that they can walk into a grocery store, or a Wal-Mart, buy a few bottles of various cleaners, mix them and do more damage than any mass shooter has to date. A murderer who is not in prison can legally buy a car, and acquire a driver's license on the same day he's released. That same car can be driven through a mall, or onto a crowded sidewalk.

A lady I used to know was arguing with me about this once. She was aghast that I thought it should be legal for a murderer who's out of prison to be able to buy a firearm. I told her I thought it was more troubling that an axe murderer could walk out of prison upon release and that very same day walk into a hardware store to buy an axe.

If a person cannot be trusted in society with something as morally and mechanically simple as a firearm, then they should not be in society without direct supervision.

Any laws designed to keep anyone safe from such folks will fail. They'll not keep dangerous folks from being a danger, plus they'll snare even more folks that aren't dangerous and render them defenseless.

I'm not worried about a felon who gets hold of a gun. I'm much more worried about a government who gets hold of a Right. The former I can handle if it comes down to it being necessary to handle. The latter has me outgunned.

when we start allowing exceptions, no matter how "reasonable" they sound, we open a floodgate just a bit wider and end up with the government being able to decide who may or may not exercise a Right. Those results are even more perverse - a single mother denied even a single shot shotgun in her apartment to protect herself and her kids because she slapped an impertinent ex-boyfriend when she was 19. A lady in her 30's who had a fake i.d. to go clubbing and was caught with it can't have a firearm, not even in her car while she works night shifts in a bad part of town. I could go on, but you get the point - there is no way to disarm folks who are otherwise free in society without creating the mechanism for disarming yourself.

Some, perhaps a lot of people will have problems with this result. They'll be very uncomfortable with felons being armed. The answer is not to disarm any person as that would undermine the constitutional protections we'd like to rely on for ourselves. The answer is to restructure the criminal justice system so that people who we think are too dangerous to have firearms are not roaming freely in society at all.

For example, folks decried that, despite it being illegal, a felon was able to acquire firearms, which he subsequently used to ambush and murder firefighters in NY. Some have used that crime to justify their call for more stringent gun owner control, especially since it was reported that a neighbor bought the weapons for the murderer in question. That a felon had firearms despite it being illegal, or someone bought firearms for that felon despite it being illegal to do so isn't the problem. The problem is a punk who beat his grandmother to death with a hammer was not behind bars. No prohibition on possession or commerce can negate that he was dangerous, too dangerous to be unsupervised. And by supervised I mean directly, every minute, not just checking in with a parole officer every day or so. (And just twixt you, me and the rest of the internet, if a person beats his grandmother, or grandfather for that matter, to death with a hammer, I see no reason at all for him to be alive.)

Felons doing bad, even evil things with weapons isn't a reason to intrude upon a natural and fundamental Right. It may be a reason to restructure the way we deal with violent, dangerous criminals, but it's no valid reason to impose upon a Right.

The folks who feel that government should be able to restrict the Rights of felons usually don't understand just how encompassing that category is. Nor do they appreciate the danger with government having any say about who may or may not engage in mere possession of a weapon. I think some, maybe most of those people can be convinced, but it takes breaking down years of conditioning. After all, felons have been prohibited from possessing firearms since 1968 (at the federal level). Courts have upheld that since 1968. Heller was only 5 years ago, and courts will likely not admit they had it wrong prior to Heller (most pre-Heller court cases did not recognize an individual Right to own or carry a weapon), and Heller contains enough wiggle room that unless forced, most courts can justify any gun owner control laws they wish.

The Louisiana court got it right, after the people of Louisiana got tired of them getting it wrong. Amending the federal constitution is not as easy, so this would only be a state level solution to the problem of courts ignoring their duties. But it is a solution.

Posted by Publicola at March 23, 2013 03:28 AM | TrackBack
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