Firing Blanks: Louisiana's New Right to Bear Arms

AuthorK. Connor Long
PositionJ.D./D.C.L., 2014, Paul M. Hebert Law Center, Louisiana State University
Firing Blanks: Louisiana’s New Right to Bear Arms
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),
.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
THE RIGHT TO KEEP AND BEAR ARMS, 45–67 (1982), available at http://www /journals/senrpt/ 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:
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, /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, (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,
/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.
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
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, (last visited Sept.
26, 2013).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT