Firing Blanks: Louisiana's New Right to Bear Arms

• Author: K. Connor Long
• Position: J.D./D.C.L., 2014, Paul M. Hebert Law Center, Louisiana State University
• Pages: 289-326

Firing Blanks: Louisiana’s New Right to Bear Arms

INTRODUCTION

On December 14, 2012, a young man gunned down 20 students

and six faculty members of Sandy Hook Elementary School in

Newtown, Connecticut, before taking his own life.1 Unfortunately,

news stories similar to this one have become all too common across

the United States. Not only do public slayings and fatal gun violence

dominate the news headlines and stain our national cons cience, but

they also stoke the fire of a debate that rages across our nation’s

political landscape—To what extent should firearms be regulated?

In 2010, there were 12,996 murders in the United States, 8,775

(67.5%) of which were caused by firearms.2 Louisiana alone is

responsible for 437 of those murders, 351 (80%) of which can be

attributed to firearms.3 Based on this astounding data, it is clear that

guns are a dangerous force in our society. However, it is also clear

that guns hold a special place in the history and traditions of our

nation. Indeed, the Bill of Rights explicitly guarantees the right to

keep and bear arms to Americans,4 and since the nation’s founding,

many Americans have come to cherish that right.5 The juxtaposition

of a constitutionally protected right to keep and bear arms with a

daunting violent crime rate has created a uniquely complex political

and legal environment within the United States, which lawmakers

must carefully navigate.

In 2012, the Louisiana Legislature decided to wholly reconstruct

its constitutional provision expressing the right to bear arms.6

Copyright 2013, by K. CONNOR LONG.

1. Kevin Dolak, Newtown Shooting: Residents Shocked by Mass Shooting in

‘Adorable Little Town,’ ABC NEWS (Dec. 14, 2012), http://abcnews.go.com/US

/newtown-shooting-residents-shocked-mass-killing-adorable-town/story?id=1797

6401.

2. U.S. DEP’T OF JUSTICE FED. BUREAU OF INVESTIGATION, UNIFORM CRIME

REPORTS: CRIME IN THE UNITED STATES (2010), available at http://www.fbi.gov

/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/tables/10shrtbl11

.xls. 2010 crime rates are the most recent data available.

3. Id. This is the highest percentage of firearm murders of any state in the

country. Louisiana also has the highest murder rate, 7.75 murders per 100,000

people, in the country outside of Washington D.C. Id.

4. U.S. CONST. amend. II.

5. See generally David T. Hardy, Historical Bases of the Right to Bear

Arms, in REPORT OF THE SUBCOMMITTEE ON THE CONSTITUTION OF THE

COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE, 97TH CONG., 2D SESS.,

THE RIGHT TO KEEP AND BEAR ARMS, 45–67 (1982), available at http://www

.guncite.com /journals/senrpt/senhardy.ht ml.

6. LA. CONST. art. 1, § 11. The proposed amendment was included on the

ballot of the statewide election held on November 6, 2012. The official ballot read:

290 LOUISIANA LAW REVIEW [Vol. 74

Guided by two recent U.S. Supreme Court decisions, District of

Columbia v. Heller7 and McDonald v. City of Chicago,8 the

Louisiana Legislature drafted an amendment creating the strongest

right to bear arms provision in the entire country.9 The amendment,

which became effective on December 10, 2012, declares a Louisiana

citizen’s right to bear arms to be fundamental, and any infringement

on this right shall be subject to strict scrutiny judicial review.10

Thus, Louisiana has now become the first state to protect its right to

bear arms using strict scrutiny, which is the most d emanding level of

judicial review.11 Because of this exceptionally powerful language,

certain existing Louisiana firearm regulations could very well be

stricken down under the new amendment.12 Yet, this legislative

mandate does not inevitably spell the demise of Louisiana firearm

regulations. According to U.S. Supreme Court jurisprudence, strict

scrutiny review only poses a threat to firearm regulations that are not

narrowly drawn to serve compelling state interests.13 By analyzing

two Louisiana firearm regulations, this Comment argues that in spite

of the legislative bolstering of Louisiana’s right to bear arms, the

state’s existing firearm regulations are safe from judicial rebuff.

Part I of this Comment sets forth the intricacies of the

constitutional amendment and explains the meaning of the new

“Do you support an amendment to the Constitution of the State of Louisiana to

provide that the right to keep and bear arms is a fundamental right and any

restriction of that right requires the highest standard of review by a court?

(Amends Article I, § 11).” Act No. 874, 2012 La. Acts 3525–26. The Senate

approved the amendment by a 31–6 margin on April 6, 2012. The House amended

the bill and voted in favor by a 77–24 margin on May 24, 2012. The Senate

approved the amendments made by the House and passed the measure by a 34–4

margin on May 29, 2012, thereby placing the amendment on the statewide ballot.

SB303 - 2012 Regular Session (Act 874), LOUISIANA ST. LEGISLATURE WEB

PORTAL, http://www.legis.la.gov/legis /BillInfo.aspx?s=12RS&b=SB303&sbi=y

(last visited Sept. 26, 2013).

7. 554 U.S. 570 (2008).

8. 130 S. Ct. 3020 (2010).

9. Vote Yes on 2: Support the Second Amendment, NRA-ILA INST. FOR

LEGIS. ACTION, http://nraila.org/yeson2 (last visited Oct. 9, 2012).

10. LA. CONST. art. 1, § 11. See infra Part I.A–B.

11. Marsha Shuler, Gun Rights Amendment Passes Easily, THE ADVOCATE,

Dec. 5, 2012, http://theadvocate .com/home/4351688-125/gun-rights-amendment-

passes-easily. In a 2007 analysis, Professor Adam Winkler found that no state

court had employed strict scrutiny to review gun rights cases. Adam Winkler,

Scrutinizing the Second Amendment, 105 MICH. L. REV. 683 (2007).

12. Constitutional Amendment 2 Would Put Public Safety at Risk: Leon

Cannizzaro, THE TIM ES-PICAYUNE, Nov. 4, 2012, http://www.nola.com/opinions

/index.ssf/2012/11/amendment_2_is_a_risky_idea_fo.html. See infra Part III.A–B.

13. See infra Part I.B.

2013] COMMENT 291

language set forth in the amendment. This Section focuses

specifically on the significance of the am endment’s classification of

the right to keep and bear arms as “fundament al” and therefore

subject to a strict scrutiny standard of review. Next, Part II examines

the recent course of Second Amendment jurisprudence in the wake

of Heller and McDonald, illustrating that gun regulations have

generally survived judicial scrutiny after Heller and McDonald. Part

III provides a brief survey of Louisiana’s right to bear arms

jurisprudence, and Part IV anal yzes the consequences of the

amendment by applying strict scrutiny to two especiall y controversial

Louisiana firearm regulations: Louisiana Revised Statutes section

40:1379.3 prohibiting concealed handguns on school campuses and

Louisiana Revised Statutes section 14:95.1 prohibiting certain felons

from possessing firearms.14 Part IV will demonstrate that by serving

a compelling state interest and being narrowly tailored to that

interest, Louisiana’s gun regulations are capable of withstanding

strict scrutiny judicial review. Although this amendment gives

Louisiana the strongest right to bear arms in the nation, it will not

overturn existing gun regulations nor will it necessarily preclude

other regulations from taking effect.

I. THE AMENDMENT

A Louisiana citizen’s right to keep and bear arms is expressly

enumerated in article I, section 11 of the Constit ution of Louisiana.15

Until November 2012, section 11 read: “The right of each citizen to

keep and bear arms shall not be abridged, but this provision shall not

prevent the passage of laws to prohibit the carrying of weapons

concealed on the person.”16 The Louisiana Legislature, however,

found this current provision to be an inadequate expression of the

right to keep and bear arms and thus passed an amendment to

section 11.17 The Legislature included the amendment on the ballot

of the statewide elections held on November 6, 2012.18 The

14. These particular regulations are analyzed because they stand out as

contested regulations that could likely become the subject of constitutional

challenges in the wake of the amendment. See Alina Mogilyanskaya, Louisiana

Ballot Measure Could Mean More Guns on Campuses, Professor Says, THE

CHRON. OF HIGHER EDUCATION (Nov. 1, 2012, 1:05 PM) http://chronicle

.com/blogs/decision2012/2012/11/01/louisiana-ballot-measure-could-mean-more-

guns-on-campuses-professor-says/.

15. LA. CONST. art. I, § 11.

16. LA. CONST. art. I, § 11 (amended 2012).

17. S. Res. 303, 38th Leg. Sess. (La. 2012).

18. Amendments to the Constitution of 1974, LOUISIANA ST. LEGISLATURE,

http://legis.la.gov/lss/Constitution%20Amendments%20Table.pdf (last visited Sept.

26, 2013).