There’s a lot of folks who seem to think this is gun control, because it changes:
Section 11. 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.
Section 11. 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.
A bit further down on the original link above:
For a â€œRightâ€ to â€œnot be infringedâ€ there can be NO â€œrestrictionâ€ placed on it whatsoever. NONE. Privileges can have restrictions placed on them. â€œRightsâ€, as defined in the Declaration of Independence of 1776 cannot be â€œrestrictedâ€ in any manner, as they are â€œunalienable,â€ which means not â€˜alienableâ€™â€¦.not able to be taken away, transferred orÂ RESTRICTEDâ€¦!!
This was a fear of mine, that the uninitiated would have no idea what strict scrutiny meant, legally. Now we have that, and people latching onto the word “restricted,” and interpreting this provision as some form of gun control. Nothing could be farther from the truth. By demanding strict scrutiny in the constitutional provision, it is a detailed, specific instruction to the courts to give the right the highest protection the courts currently offer when considering the scope of fundamental rights. To date, most courts have adopted intermediate scrutiny so that they may engage in balancing tests to justify numerous restrictions on the right, and the Louisiana Supreme Court effectively gutted their RKBA constitution guarantee back in 2001:
“The State of Louisiana is entitled to restrict that right for legitimate state purposes, such as public health and safety.”Â State v. Blanchard, 776 So.2d 1165, 1168 (La. 2001).*
So really, this is a choice between any restriction the state wants to place, which is the current status quo, or any restrictions being subject to a very high level of scrutiny by the courts. Clearly the latter here would be far better.Â I really hope that people will spread the word and help relieve the ignorance at work here, especially if you know folks in Louisiana, or see people spreading this.
Unfortunately, the unscrupulous among us will also see a fundraising opportunity here, and will likely play on this ignorance to drum up support for their organization. But it’s very important that this get passed, both for the sake of Louisiana, and to send a message to the federal courts about how Americans expect their rights to be treated. If this ballot measure goes down in a sea of ignorance on the part of gun owners, the other side will be guaranteed to spin this as Americans believing that harsh restrictions on state power to regulate guns is just peachy.
* Source: Defend Your Right to Keep and Bear Arms in Louisianaâ€“Vote â€œYESâ€ on 2!
15 thoughts on “Misinformation About Louisiana RKBA Ballot Measure”
It probably would have been better to reword it to give people a better idea what strict scrutiny really means. I have had a number of candidates who didn’t understand the question and assume like that guy that is is bad.
When I look around me year after year and find words on paper meaning less than nothing in the real world, I find discussion of what “strict scrutiny” really means not very compelling. It will mean what the people with the most clout find expedient, when the time comes.
I’m reminded of the high-profile Pennsylvania RKBA attorney who was lured to support our Act 17 of 1995 (comprehensive gun control legislation) because we was allowed to compose a preamble for it, using language that praised Article I, Section 21 of our state constitution — most ironically, in legislation that violated its provisions eight ways to Sunday. But, that attorney assured me, his words in the legislation made the constitution more powerful. Anyone who has, for example, watched the antics of Philadelphia politicos in the years since — and how they have largely gotten away with it — might be surprised at how much a few words made the state constitution more powerful. And it was an attorney who told ignorant old me that.
I find your cynicism more that a little extreme (this is a general statement as well as one specific to this posting … and there’s a point to my observation when it leads to fatalism), but “strict scrutiny” are legal words of art that are embedded in many past decisions (well, many at the Federal level, I don’t follow Louisiana jurisprudence especially because it’s so alien to the rest of the country’s).
So if they try to redefine it for RKBA cases they might be in a world of hurt akin to why the Supremes did not take up Alan Gura on his McDonald offer of deciding the case under the 14th’s Privileges or Immunities Clause. Sure, it’s more than obnoxious in so many ways that the clause was judicially nullified soon after passage, but they weren’t about to use it and then open the door to decades of re-litigation of settled law.
I regard my cynicism as hard-earned, and hard-learned. Like someone with “battle fatigue,” it probably is best (and I have chosen) to remove myself from the active battlefield, at least for awhile, while knowing there will always be bright-eyed and bushy-tailed new troops breathing fire to follow the well-worn paths of those before them — while expecting different outcomes.
But intellectually speaking, I don’t feel obligated to deny the conclusions I have arrived at. Most of them are based on examples like the one I used above; “Someone claimed there were some magic words to be had, but when push came to shove they accomplished nothing to speak of.”
I don’t mean to imply I am anywhere near the intellectual level of a Machiavelli, but I see my observations as being similar to his — which for the most part far outpaced mine in cynicism: To say “I’m not justifying what I say as right or moral or ethical, I’m just saying how I believe things really work — based on what I have watched happen.”
For this immediate subject I’d coin the aphorism, “Words have meaning. But it is the meaning desired by those who have the resources to enforce their definition.”
Well, according to Wikipedia in Louisiana their state Supremes are elected to 10 year terms, except for one Bernette Johnson who was appointed due to the Feds suing, insisting there be at least one minority in it. So at least 9 of them if they upset the voters enough are subject the fate of Rose Bird and her two fellow justices, all Jerry Brown appointees, who the voters send home to spend more time with their families in 1986.
Simply stated: Might makes Right..!!
Extreme cynicism is usually justified, and hard earned. My wife tells me I’m too cynical, and just when I start to believe her, I find some new reality (currently, it’s the IG’s whitwash report on F&F) to remind me I’m not cynical enough.
In most cases, the golden rule indeed applies: “He who has the gold makes the rules.”
we’ve been working on getting the word out about strict scrutiny. Apparently some tin foil hat genius thought it would be a good idea to start claiming that this amendment is about gun control and sent out an email blast to his tin foil hat friends, who started spreading the rumor that LA will take away their gun rights. It’s a shame, if this amendment doesn’t pass, it will be because of the gun owners and not the gun control people. NRA-ILA has a web page up about this as well.
Placing the term â€œstrict scrutinyâ€ in a proposed state constitutional amendment probably wasn’t a very good idea.
Here’s what Chief Justice John Roberts had to say during oral arguments in District of Columbia v. Heller:
A better phrase to propose might have been something like â€œhighest judicial scrutiny.â€ But it’s just bad lawyering to directly cite judge-created rights-balancing language when your goal is to prevent judicial encroachment of a right.
Strict scrutiny has a definition, and even if the terminology changes, it would behoove future judges to try to understand what the people who passed that Amendment understood it to mean. I actually disagree with Roberts in the passage above. The desire not to set a standard is what’s led the lower courts to virtually disregard the Second Amendment, except for the actual holding in Heller and McDonald, in many cases.
I think someone on the Court, maybe Roberts, maybe not, and maybe more, don’t want to come out and say “strict scrutiny,” because there are federal gun laws and many state guns laws that would never survive it… and judges are loathe to overturn legislative apple carts, even if doing so would be right by the law.
Roberts is not comfortable with a system that leaves the carriage of arms to the people. He is foremost a guy who thinks the state can rule the people. He wears conservative garbs, but his mindset is one where a conservative government tells you what to do.
Applying the “baggage” of strict scrutiny takes away government power, regardless of the restriction. That’s just not his style.
Spoken like a true constitutional scholar…
A little legal history would inform you that tiered scrutiny was invented by the Warren Court and the legal academy for the express purpose of â€œnot to set a standard.â€ All tiered scrutiny, including strict, presupposes interest balancing. It gives judges â€œthe power to decide on a case-by-case basis whether the right is really worth insisting upon.â€
Lower courts may very well be disregarding the Second Amendment, but they’ve only been able to do so because of the doctrine of tiered scrutiny.
[If you’re really interested in learning something about the history of 20th century constitutional jurisprudence, I’d recommend starting with Calvin Massey’s The New Formalism: Requiem for Tiered Scrutiny?, 6 U. Pa. J. Const. L. 945 (2004)]
But isn’t interest balancing required in deciding these sorts of cases?
E.g. we say the right to self-defense is unalienable, but few of us have difficultly with denying the right to effective self-defense to people who have committed real felonies. Same for those adjudicated as the dangerous sort of mentally ill, which they aren’t necessarily always in that state (compliance with taking anti-psychotic drugs is a real problem, especially since they’re nasty, just better than the alternative).
Here we’re balancing the interests of particular individuals vs. the welfare of society at large. Maybe there’s a better way, but there needs to be some method, right?
I had been wondering for a bit how, if the federal judiciary sidelines the Second Amendment, it could be replaced by a “this time we mean it” amendment. This would seem to be an approach.
I’d have replaced “restriction” with “regulation” in the proposed amendment, but that’s minor nitpicking.
Yes, judges know what “strict scrutiny” means, it’s bar exam level, Con Law 101 stuff. It’s the type of constitutional review that rights taken seriously by courts get.
The proposed amendment is a good idea and I hope Louisianans approve it by a wide margin.
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