The Louisiana Supreme Court refused this week to strike down a law that makes it a felony to possess a gun at the same time as illegal drugs, delivering a third consecutive setback to defense attorneys who challenged state firearm statutes after voters passed a constitutional amendment declaring the right to bear arms fundamental.
Justices upheld the law, R.S. 14:95(E), after subjecting it to a rigorous legal test known as “strict scrutiny,” a standard that requires the state to show gun laws serve “a compelling government interest” and are narrowly defined.
That legal test, the highest level of judicial review, became necessary after Louisiana voters in 2012 overwhelmingly approved constitutional language enshrining gun ownership as a right that “shall not be infringed.”
The high court, in a unanimous opinion handed down Wednesday, ruled that possessing a firearm with illegal drugs is not “essential to the liberties citizens ought to be able to enjoy in an orderly society” and that the statute “does not restrict the legitimate exercise of the fundamental right to bear arms.”
“Undeniably, the right to keep and bear a firearm is a fundamental right in Louisiana,” Justice John Weimer wrote in the 18-page ruling. “However, when a person is engaged in the unlawful conduct of possessing illegal drugs, the person’s own unlawful actions have ‘qualified his right’ to engage in what would otherwise be the exercise of that fundamental right.”
The most recent gun-law challenge stemmed from the case of Rico Webb, a man caught in September 2012 with a single marijuana cigar in his backpack and a gun on the floorboard of a car after New Orleans police pulled over his girlfriend for a broken taillight. While the gun was legal, the combination of the firearm and marijuana prompted prosecutors to charge him with a high-grade felony that carries a minimum prison sentence of five years without possibility of parole.
Webb’s defense attorney, Colin Reingold, claimed the felony law was unconstitutional because it “criminalizes innocent behavior” — the legal possession of a registered firearm — regardless of the amount or type of illegal drugs accompanying the gun. The defense also asserted that possession of a firearm by a drug user does not necessarily indicate trafficking.
The high court, however, rejected the notion “that we should treat the possession of a firearm and an illegal drug as some innocuous coincidence.”
“Apparently, the defendant would have this court overlook the obvious fact that because possessing marijuana is unlawful, the defendant must have employed some unlawful means to obtain the drug,” Weimer wrote.
“Obviously, we’re disappointed,” Reingold said of the ruling. “We think the amendment to the constitution should apply to everyone, including our clients.”
Christopher Bowman, a spokesman for Orleans Parish District Attorney Leon Cannizzaro, praised the high court’s judgment, even as he bemoaned the additional work the constitutional amendment has created for his office. Cannizzaro had been an outspoken opponent of the amendment, saying it was an unnecessary step that would invite a flurry of legal challenges to state gun laws.
“The justification for it was some amorphous attack on the right to keep and bear arms that just didn’t exist,” Bowman said. “The district attorney predicted that this amendment would lead to a rash of attacks on those laws that kept felons from possessing firearms, that kept drug dealers from possessing firearms, and sure enough this is what you got.”
Passage of the constitutional amendment, billed by conservatives as a state equivalent to the Second Amendment to the U.S. Constitution, prompted some district judges to declare various firearms statutes unconstitutional. But even though it has not issued an overarching opinion on the amendment’s impact, the Supreme Court has found all the gun laws it has examined still pass constitutional muster.
In a previous case, the high court reversed a lower court’s ruling and said voters expected “sensible” gun regulations and “did not ratify this constitutional amendment in a vacuum.” At least two other similar challenges are pending before the court, and prosecutors and defense attorneys say more are on the horizon.
“We’ll continue to raise constitutional issues for any client charged with firearm charges that the Supreme Court hasn’t already ruled on,” Reingold said.
“We fully expect there to be others,” Bowman said. “The Orleans Parish District Attorney’s Office doesn’t have unlimited resources. Now, we’re having to use those resources to fend off these attacks.”
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