For the past forty eight hours, it seems that nothing is important in New Orleans except for two related questions: (1) Who should have more “firepower”, the police or the people? and (2) Should people who have served their time in either the U.S. Federal or Louisiana State System, two of the most punitive and widely incarcerating penal systems in the ENTIRE WORLD, have or lose the right to KEEP & BEAR ARMS FOR SELF-DEFENSE FOR THE REST OF THEIR LIVES?
We all know that the United States imprisons a greater percentage of its population than IRAN or the People’s Republic of China (even when the imposition of the Death Penalty [after due process of law, i.e., as published officially] counts as “incarceration” in statistics from Iran and China). Less widely known is that Louisiana holds a greater percentage of its population in prison than anywhere in the United States or, statistically, than the United States as a whole. Most people in prison are in prison for non-violent crimes or for relatively trivial charges which get classified as “domestic violence” and are useful to spouses struggling for alimony, child support, or property in divorce/marriage dissolution/child custody “family” cases. Should people lose their constitutional rights AFTER they have served their terms? The injustices and inequities of the American Criminal Justice in general and the Louisiana Criminal Justice system in particular is legendary. Restoring FULL civil rights to all people who have “paid their debt to society” (whether the debt was a just one or not, but especially considering that most AREN’T) is a very small concession to the humanity of the people behind bars in the Land of the Free and the Home of the Brave.
Too many of those (including many conservatives with whom I would agree on many topics) who support depriving Convicted Felons of the right to Keep and Bear Arms have no idea how vastly unjust the American Criminal Justice System really is—they simply have no experience in it at all. But we love to penalize and stigmatize people and to create a large reservoir of second class citizens, and this is both irrational and wrong.
Now, the questions facing Louisiana are (1) how seriously they take the concept that the Right of the People to Keep and Bear arms is the right to have EQUAL Firepower to the Police, not less, and (2) whether they are willing to admit that the overly punitive criminal justice system in this state requires some mitigation, and that full restoration of civil rights AFTER serving a sentence or “paying a debt” to society is not a small enough concession to the very real possibility that the “debt” which released felons paid was in NO sense a just debt….
Another controversial aspect of this law is that “Felony Prosecutions” throughout the South (and the United States) have been unfairly used as a substitute for segregation. When Segregation was outlawed, many white people merely sought to reclassify blacks and hispanics as criminals, and so to maintain segregation through a smokescreen of criminal prosecution. As doubtful as I am about the results of the Civil Rights Movement, the Warren Court, and especially Judge John Minor Wisdom’s implementation of Desegregation in the Fifth Circuit Deep South Generally, I cannot condone the general population’s hypocrisy or the massive over incarceration of non-whites or the substitution of “felony conviction” for White Supremacy as a means of rendering blacks and hispanics second class citizens. Such hypocrisy destroys or at least severely impairs the integrity of the Criminal Justice system here in Louisiana and elsewhere. But the post-14th Amendment History of the Second Amendment is, in essence, all about Race in America. The Supreme Court in McDonald v. Chicago, the people of Louisiana in approving last year’s “standard of review” amendment, and now Judge Darryl Derbigny have struck major blows in favor of integrity and honesty and restoring true color blindness to the application and implementation of the Bill of Rights in America. If there are racial issues in this Country, they should be addressed AS racial issues, not under the wicked subterfuge of globally imprisoning the racial minorities of this country.
New Orleans Judge Says Felons Have the Right to Bear Arms: Claire Galofaro of the Times-Picayune reports Orleans Parish Criminal District Court Judge Darryl Derbigny ruled Louisiana’s state law forbidding certain felons from possessing firearms to be incompatible with the state’s constitution. The ruling follows an amendment defining the right to bear arms as fundamental for its citizens, on par with freedom of speech and religion. Public defender Jill Pasquarella defended Derbigny, saying it was irrational to ban felons from guns when convicted of non-firearms related crimes. The state Supreme Court will review the statute.
Judge rejects Louisiana law barring felons from owning guns
Published March 22, 2013
NEW ORLEANS – A New Orleans judge says a state law forbidding certain felons from possessing firearms is unconstitutional in light of an amendment passed last year that makes the right to bear arms a “fundamental right” in Louisiana.
District Judge Darryl Derbigny’s ruling Thursday sends the issue straight to the Louisiana Supreme Court, which must decide whether the statute infringes on Louisiana citizens’ now-enhanced right to gun possession.
The Times-Picayune reports the Orleans Parish public defenders’ office challenged the constitutionality of the statute on behalf of a half-dozen clients, all charged with being a felon in possession of a firearm.
If the Supreme Court sides with Derbigny, the law will be scrapped and the Legislature forced to rewrite it.
New Orleans judge rules statute forbidding felons from having firearms unconstitutional after ‘fundamental right’ amendment
The state statute forbidding felons from possessing firearms is heading to the Louisiana Supreme Court for review, after a district court judge ruled it unconstitutional in the wake of last year’s (Photo by Lauren McGaughy/NOLA.com|The Times-Picayune)
By Claire Galofaro, NOLA.com | The Times-Picayune
on March 21, 2013 at 11:03 AM, updated March 21, 2013 at 6:17 PM
on March 21, 2013 at 11:03 AM, updated March 21, 2013 at 6:17 PM
An Orleans Parish judge on Thursday ruled that the state statute forbidding certain felons from possessing firearms is unconstitutional, in the wake of a constitutional amendment passed last year that made the right to bear arms a fundamental one in Louisiana. The issue will now go straight to the state Supreme Court, which must decide whether the statute infringes on Louisiana citizens’ now-enhanced right to gun possession.
Orleans Parish Criminal District Court Judge Darryl Derbigny on Thursday dismissed the charge against one felon, but took his decision a step further than another judge faced with a similar decision earlier this month.
Derbigny ruled that the entire statute — RS 14:95.1 — was unconstitutional after voters last year approved by a sweeping majority a constitutional amendment backed by the National Rifle Association. That bill made gun ownership a “fundamental right,” on the same level as freedom of speech or religion.
A court interpreting any law restricting a fundamental right — as gun ownership is now considered — must approach it with “strict scrutiny,” the highest level of judicial scrutiny.
Before Jan. 1, questions of gun rights were considered with “rational scrutiny,” which allowed regulations to “protect the public health, safety, morals or general welfare.” But strict scrutiny requires that the law is, first, necessary for a “compelling government interest.” Then, it must be so narrowly defined as to serve only that interest and, third, be the least restrictive way of doing so.
The Orleans Parish public defenders office challenged the constitutionality of the statute on behalf of a half-dozen clients, all charged with being a felon in possession of a firearm. The attorneys concede that public safety is a compelling interest to bar violent offenders, like murderers or armed robbers, from possessing weapons. But the law also bars people convicted of a number of less obviously violent felonies from possessing guns.
It reads: “It is unlawful for any person who has been convicted of a crime of violence … which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense …, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state…”
The case before Derbigny involved a 20-year-old man named Glen Draughter who had previously pleaded guilty to attempted simple burglary. Draughter was later caught riding in a car with two other people; a .40-caliber Smith & Wesson was in the backseat and an AK-47 with a 30-round magazine was in the trunk.
Public defenders Jill Pasquarella and Colin Reingold argued that under a strict-scrutiny test, the government must be able to provide compelling data showing that those convicted of crimes like simple burglary prove a heightened threat to society when armed.
“There is, simply, no rational basis for stripping Louisianans of their rights … where they have been convicted of crimes that are wholly unrelated to firearm possession or use,” Pasquarella wrote to judges in this and several other cases.
Assistant District Attorney Matthew Payne submitted sociological studies suggesting a link between such offenses and a proclivity toward later violent crime.
But Derbigny on Thursday ruled that the statute infringed on constitutional protections when analyzed under a “strict scrutiny” test required of laws restricting fundamental rights. He wrote that it “is not narrowly tailored to achieve the government’s interest.”
“The courts cannot question the wisdom of fundamental law and frustrate the will of the people; their function is to interpret and apply that law,” he wrote. “After reviewing the law and applying a strict scrutiny standard, the Court finds La R.S. 14:95.1 unconstitutional in its entirety.”
He dismissed the charge against Draughter, but gave prosecutors until 5 p.m. Friday to seek new charges before ordering his release from jail.
Judge Frank Marullo had already ruled in favor of defendants in several similar cases. But he did not declare the statute unconstitutional, saying his rulings applied to specific defendants and the circumstances of their cases.
Judge Arthur Hunter is scheduled to hear a similar case later this month.
Payne on Thursday noted that he intends to appeal the decision.
When a statute is deemed unconstitutional in its entirety, the appeal skips mid-level appeals courts and is fast-tracked straight to the state Supreme Court for review.
If the Supreme Court sides with Derbigny, and rules that the statute violates the state constitution, the law will be scrapped and the Legislature forced to rewrite it.
If the court finds that the amendment makes the gun-possession law unconstitutional, it will also have to decide whether the unconstitutionality is retroactive — which could jeopardize convictions that occurred before the amendment went into effect.
State Sen. Neil Riser, a Republican from Caldwell Parish who sponsored the bill, and state Sen. A.G. Crowe, a Slidell Republican who co-sponsored it, did not reply to requests for comment on how broadly they meant for the bill to be interpreted.
The National Rifle Association also did not respond to inquiries about its position on felons’ rights to own firearms.
In the meantime, prosecutions of felons in possession of a firearm will continue on, said Chris Bowman, spokesman for Orleans Parish District Attorney Leon Cannizzaro.
In the weeks leading up to the November election, with the gun rights amendment on the ballot, Cannizzaro warned of the possible fallout.
He wrote an op-ed column threatening that it would lead to a “flurry of litigation in which criminal defendants will challenge the constitutionality of current criminal laws regulating gun possession.”
The nonpartisan Bureau of Governmental Research also urged voters to defeat the constitutional amendment, saying it “would expose the public to unnecessary risks and hamper law enforcement efforts” and adding: “There is no good reason to enter this uncharted territory.”
Gov. Bobby Jindal wrote an op-ed too, but his exhorted voters to pass the amendment, which he described as “an ironclad guarantee of freedom here in Louisiana.”
In a prepared statement Thursday, the Jindal administration said: “We disagree with the judge’s ruling. The amendment passed last session is not in conflict with Louisiana or federal law barring felons from owning guns.”
Cannizzaro’s office, meanwhile, offered an “I told you so” statement.
“District Attorney Cannizzaro predicted that the passing of this amendment would cause prosecutors across the state to go to court and defend the constitutionality of 14:95.1,” Bowman said Thursday.
Loyola Law School professor Dane Ciolino said it’s not unusual for constitutional amendments to have consequences voters may not have foreseen.
“They’re written in such general terms that are more open to interpretation,” he said. “The voters have one idea of what they mean, but in the end it’s going to be up to the Supreme Court to determine what they meant.”
Ciolino he believes it’s likely some kind of law limiting criminals’ ability to possess weapons will eventually pass constitutional muster. But the court could agree with Derbigny and conclude that the law now being challenged is too broad, and that in passing it decades ago, the Legislature failed to consider the least restrictive solutions to the problems it was trying to address.
For instance, there might be no reason to consider a doctor convicted of violating drug laws a likely candidate for violence, he said.
“The scope of what is felonious conduct (under the law Derbigny ruled unconstitutional) includes lots of what we call ‘malum prohibitum’ offenses, offenses that don’t involve violence,” Ciolino said. “But I think everybody would agree that some type of regulation on felons holding a firearm will pass the strict scrutiny test.”
Charles Edward Lincoln, III
“Ich bin der Geist der stets verneint”
Deo Vindice/Tierra Limpia