A Supreme Court Upholds 14:95(e) Argued by Assistant District Attorney Kyle Daly
The Louisiana Supreme Court appeared to be divided Tuesday on whether it should strike down a state law that allows prosecutors to charge someone with a high-grade felony for possessing a firearm at the same time as illegal drugs, regardless of the amount or type of drug.
Assistant District Attorney Kyle Daly argued that just because a Louisiana law contains the word “firearm” does not subject the law to strict scrutiny. He likened the case to the government’s regulation of companies’ free speech rights in advertisements.
Justices expressed mixed reaction as they heard oral arguments in the case of Rico Webb, a 23-year-old man who was caught in a car with one marijuana cigar in his backpack and a gun on the floorboard after New Orleans police pulled over his girlfriend for a broken taillight.
The gun was legal and Webb, who has no criminal record, normally would have faced only a fine and probation for misdemeanor possession after the September 2012 arrest. But the combination of the firearm and the marijuana became a felony that, under state law, carries a minimum sentence of five years in prison without the possibility of parole.
Webb’s case is the latest in a string of challenges to state gun laws made after a 2012 state constitutional amendment declared the right to bear arms to be fundamental and required that any limitations to that right face a rigorous legal test known as “strict scrutiny,” the highest level of judicial review. So far, the high court has taken a piecemeal approach in determining which laws survive that test, and it showed no indications of changing course Tuesday.
“A good rule of judicial behavior is courts do not render judgments on that which is not necessary to decide, and it’s not necessary to decide the ultimate meaning of the constitutional amendment,” said Raymond T. Diamond, an LSU law professor and Second Amendment scholar. “I think the court is likely to continue with this sort of case-by-case resolution as opposed to stating something final when all of the issues haven’t been presented yet.”
The legal floodgates were opened in 2012 after voters approved a constitutional amendment saying the right of gun ownership “shall not be infringed” and subjecting it to the same level of judicial scrutiny as free speech and voter equality. The amendment replaced earlier language that stated the right to bear arms “shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.”
The amendment, which had been billed by conservatives as a state equivalent to the Second Amendment to the U.S. Constitution, provoked an avalanche of challenges to the state’s major gun-crime laws and prompted at least three judges to declare various criminal statutes to be unconstitutional. The Supreme Court, however, held in reversing a lower court judge earlier this year that voters expect “sensible” gun regulations and “did not ratify this constitutional amendment in a vacuum.”
The Assistant District Attorney Kyle Daly argued the statute passes the “strict scrutiny” test because it does not say all felonies bar possession of firearms; instead, they said, it includes a specific list that the Legislature decided made a person more inclined to commit violence. Even our most cherished rights, such as freedom of speech, can be reasonably limited, they said.
The law pushed the Louisiana Supreme Court to become the first in America to analyze criminal gun statutes using a “strict scrutiny” test, which presumes every person has the right to be armed.
The “strict scrutiny” standard requires the state to show that a statute limiting gun ownership serves a compelling government interest and is so narrowly defined that there is no less restrictive way of achieving that interest.
New Orleans public defender Colin Reingold argued Tuesday that the statute Webb is charged under should be declared unconstitutional because it is too broad and arbitrarily criminalizes carrying a firearm with any controlled dangerous substance. He claimed the state hasn’t proved a single marijuana blunt makes Webb more dangerous while armed than anyone else, and he criticized the statute for not discriminating between someone carrying several kilograms of a drug like heroin and someone caught carrying a few prescription pills for personal use.
“Without some tailoring, the statute can’t survive,” he said, adding that lawmakers need to go back to the drawing board. “The state hasn’t shown this court that someone with a single joint is likely to be a violent offender.”
Prosecutors, however, urged the high court not to gamble with public safety and said they had met their burden of proving the law’s purpose.
“What we’re getting at with this statute is that violence comes from the drug trade,” said Assistant District Attorney Kyle Daly, whose boss, Orleans Parish District Attorney Leon Cannizzaro, was a vocal opponent of the proposed amendment and warned it could have unintended consequences.
Chief Justice Bernette Johnson expressed deep skepticism toward the law and noted that Webb would not be in this kind of trouble in Washington or Colorado, states that recently legalized marijuana possession.
But Justice Jeanette Theriot Knoll, a former prosecutor, stressed the importance of preserving public safety and the danger that drugs and firearms pose together.
“These folks that use drugs and are drinking, abusing alcohol, commit violent offenses,” she said.