SB 303 confusion ... Help Needed

[Hitman]

It seems a lot of folks are confused about it and I'm seeing resistance to it on several forums.

This is floating around;
Woody Jenkins analysis:

SB 303 THREATENS RIGHT TO KEEP AND BEAR ARMS IN LOUISIANA. While Sen. Neil Riser, a good conservative, is well intentioned with SB 303, it would seriously undermine the Right to Keep and Bear Arms in Louisiana. The bill, which is promoted by the NRA, would amend the Louisiana Constitution and dramatically change the language of Art I Section 11 of the constitution. This is part of a nationwide campaign by the NRA to add the words "strict scrutiny" to the Right to Keep and Bear Arms section in each state constitution. Unfortunately, the addition of that language is completely inappropriate in Louisiana, and Sen. Riser's proposal would virtually remove the Right to Keep and Bear Arms as a true "right" under our state's constitution.

Here's two examples;
http://www.bayoubucks.com/forum/showthread.php?t=44634
http://www.meetup.com/The-Greater-New-Orleans-Tea-Party/messages/boards/thread/23314402
http://glocktalk.com/forums/showthread.php?t=1437493

Here too > http://www.bayoushooter.com/forums/showthread.php?81635


Do we or can we prepare some sort of paragraph that explains this in 'Boot camp' mentality so that there is '0' confusion on what it actually will do?

Anyone?

 

[Tulse Luper]

Glock Talk and Bayou Bucks? Bastions of genius there. Dan Zelenka wrote the reply below, and I'm sure he and LSA had a part in the legislation. He's more intelligent on these matters than anyone this board and the "internet"... the vast majority of it, anyway.

http://www.louisianashooting.com/

Several uninformed "authorities" have recently released false information about the upcoming ACT 874 that will be on the Louisiana ballot in November.


Under our current Louisiana constitution, the legislature is not supposed to pass any laws abridging our right to keep and bear arms unless the law involves concealed carry. Note that they can pass any restriction on concealed carry that strikes their fancy, even an outright ban. That in itself should cause you to support Act 874. The legislature, however, on any number of occasions has refused to believe that constitutional limits apply to its power. Laws that restrict our gun rights do get passed.


Enter the Louisiana judicial system, the branch of government that is supposed to protect us poor citizens from the legislature when it oversteps its constitutional authority. Unfortunately, the Louisiana Supreme Court has ruled that a law that infringes on your right to keep and bear arms is constitutional if it passes the "rational basis" test. Under the rational basis test, the court asks itself whether the legislature had a rational basis for passing the law in question. If the court can discern any rational basis for the law, it will declare the law to be constitutional. This is the current state of Louisiana law under the existing Article I, Section 11 of its constitution.


The 1974 Constitution currently reads:
§11. Right to Keep and Bear Arms
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.


Act 874, should it pass in November, provides NO carte blanche authority for the legislature to restrict concealed carry.


If the new amendment is passed, the Constitution will read:
§11. Right to Keep and Bear Arms
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.


It also states, in very clear language, the standard of review that must be applied by a Louisiana court. "Strict scrutiny" review requires that the court either find a compelling state interest for the law or declare it unconstitutional. Finding a compelling state interest is a much higher threshold than merely needing a rational basis. Further, under strict scrutiny, the restriction must be tailored narrowly to only restrict the targeted behavior, while protecting the rights of those not targeted.


To put it another way, under rational basis, the presumption is that a restriction is valid unless there is no way to support it. In stark contrast, under strict scrutiny, the presumption is that a restriction is invalid unless there is no way to avoid it. This is a HUGE difference.


Act 874 is very good for gun owners. Several key Louisianians have done us a great disservice by making ignorant statements about this potential improvement to our constitution. In some cases, the statements are made in ignorance. To believe otherwise would be to believe they are an anti-gun activist attempting to trick gun owners into voting against a significant pro-gun amendment.


The Ballot on Nov 6th will read:
*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, Section 11)*


Hopefully we have enlightened our members and ask everyone to support Act 874 on November 6, 2012.


Please VOTE YES on November 6 and urge others to do the same!


Daniel E. Zelenka, II
President, The Louisiana Shooting Association, Inc.
Attorney-at-Law

 

[NRA80]

The following completely refutes Jenkin's misinformation:


S.B. 303 – NRA CORRECTS JENKINS ALLEGATIONS

S.B. 303 provides: *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.* That language passed the House Committee on Administration of Criminal Justice on May 2, 2012. This was reported on an NRA-ILA alert posted the next day. That language passed the House Civil Law and Procedure Committee on May 14. At that committee hearing, Mr. Woody Jenkins distributed a copy of the NRA-ILA alert in which he falsely claimed that *this is not the language of SB303!!* The committee chairman corrected Mr. Jenkins.

Mr. Jenkins claims that it is *wildly false* to say that the Louisiana Supreme Court *eviscerated* the right to bear arms in the case of State v. Blanchard, 776 So.2d 1165 (La. 2001). Yet the court in that case held that the right to bear arms may be restricted *for legitimate state purposes,* and applied a standard of *reasonableness* and *rational basis* for restrictions. Id. at 1168, 1173. Like Justice Scalia wrote, that low standard applies to activities that are not even constitutional rights. District of Columbia v. Heller, 554 U.S. 570, 629 n.27 (2008). Almost any restriction is upheld by the courts under the *rational basis* standard.

The court in Blanchard upheld a law prohibiting gun possession by a person convicted of possession of a small amount of marijuana. (Cocaine was also seized, but he was not convicted of that offense.) The court could have held simply that such a person forfeits his right to have arms. Instead, the court held that the *rational basis* test applies to the right generally, meaning that it would also apply to restrictions against law-abiding citizens. This misguided approach would mean that virtually any gun ban or restriction would be upheld.

To justify its massive confiscations of firearms from citizens in the Katrina era, New Orleans argued that *the right to keep and bear arms has never been recognized as a fundamental individual right,* and thus *the states, and by extension their political subdivisions, are free to proscribe the possession of firearms . . . .* Motion to Dismiss, NRA v. Nagin, p. 4-5 (2006). Similarly, Prof. Adam Winkler, who filed a brief in Heller supporting D.C.’s handgun ban, cited Blanchard to show that under *reasonable regulation* review, *courts affirm the constitutionality of nearly any type of gun control.* Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 719-20 & n.214 (2007).

S.B. 303 would rectify this by declaring that the right is *fundamental* and that *any restriction on this right shall be subject to strict scrutiny.* Strict scrutiny is the highest standard courts use to evaluate restrictions on constitutional rights such as free speech. It requires that, such laws must be narrowly tailored, not broad and sweeping, and that they serve a compelling – not just a convenient – state interest. A complete ban on carrying concealed weapons, even in one’s home and business, would be upheld under the low *rational basis* test, but the *strict scrutiny* test would require a system like current law in which law-abiding citizens may obtain permits to carry concealed firearms.

Indeed, Mr. Jenkins objects to removing from the current arms guarantee the clause that *this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.* That would allow the legislature not only to repeal the permit system, but also to ban carrying concealed weapons even in one’s home or place of business, where the right to self defense is most acute. *If the constitutional right to keep and bear arms for security is to mean anything, it must . . . permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises.* State v. Hamdan, 2003 Wis. 113, 665 N.W.2d 785, 808 (2003).

Mr. Jenkins claims that under the current provision, NO restrictions are allowed other than on concealed weapons. He seems oblivious to the fact that Louisiana law bans the possession of firearms at schools, churches, police stations, and other places, subject to certain exceptions. Mr. Jenkins simply ignores these restrictions in claiming that *in Louisiana, a citizen can openly carry firearms.* It does not matter if they are carried openly or concealed, guns are banned in such places. Further, certain guns are required to be registered, and the courts have upheld the requirement. State v. Hamlin, 497 So.2d 1369, 1371 (La. 1986) (*it is reasonable for the legislature in the interest of public welfare and safety to require the registration of* short-barreled shotguns). Given that the current guarantee has been on the books since 1974, why are these and many other laws still on the books if, as Mr. Jenkins claims, *it prohibits all types of gun control,* except carrying concealed weapons on the person?

Outright bans on ordinary firearms and onerous registration requirements for other firearms have been upheld by courts on the basis that the right is not *fundamental* and that the *strict scrutiny* test does not apply. Declaring the right to be fundamental and that restrictions must pass strict scrutiny greatly narrows judicial power to uphold restrictions, rather than expands such power, as Mr. Jenkins asserts. Why else would anti-gun courts reject application of strict scrutiny?

Much of what Mr. Jenkins says concerns an earlier draft of S.B. 303, and refuting his arguments on that would be like beating a dead horse. When he finally learned of the current wording of S.B. 303, he conceded that it is *improved.* Should he continue his opposition, perhaps he should ask himself who else opposes the amendment and why. He will find the opponents to be anti-gun legislators and special interest groups who always oppose the rights of law-abiding gun owners.

 

[NRA80]

Here is a more general overview:


SUPPORT THE SECOND AMENDMENT – VOTE *YES* on 2!!

The proposed Right to Keep and Bear Arms Amendment would amend the Louisiana Constitution to state: *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.* If accepted by the voters on November 6, Louisiana will have the strongest guarantee of the right to keep and bear arms nationwide.

The proposed amendment reinforces Second Amendment rights, which the U.S. Supreme Court said (in D.C. v. Heller and McDonald v. Chicago) are *fundamental.* Restrictions on fundamental rights are subject to what courts call *strict scrutiny* – meaning that laws may not infringe on the core right, and that regulations must be narrow. In short, gun laws should focus on punishing criminals, not law-abiding citizens.

But the U.S. Supreme Court rulings were won only by 5 to 4 margins. The four dissenting Justices claimed that individuals have no Second Amendment rights and that the government may ban guns – just as D.C. and Chicago had done. If just one of the five Justices resigns or dies, the vote could go the other way. Further, courts nationwide have been trying to nullify the rulings, saying that Second Amendment rights are not fundamental, and that even if they are, restrictions are not subject to strict scrutiny, but instead are subject only to *intermediate scrutiny* or other tests where the right is *balanced* away.

The proposed amendment is needed now not just to stand up to these judicial trends, but also because Louisiana needs to revise its current defective guarantee. The Louisiana Constitution says that the right to bear arms shall not be *abridged,* except that *this provision shall not prevent the passage of laws to prohibit* carrying a concealed weapon – which could be even in one’s own home. Further, the Louisiana Supreme Court has said that the right may be restricted if a majority in the legislature thinks it *reasonable* to do so. The standard for restrictions must be higher than that.

Gun bans and harassment of gun owners routinely occur in places like New York City, New Jersey, and California. Don’t think it cannot happen here. Remember in the wake of Hurricane Katrina when the New Orleans police declared that *no one but the police may have a gun,* and launched a campaign to confiscate guns from citizens in their own homes and businesses, leaving them at the mercy of criminals and looters? Despite a lawsuit, most victims never got their guns back. Nothing like that should ever happen again in Louisiana.

The proposed amendment will protect future generations from any legislative power grabs and rubber stamping by future courts that would disrespect the right. Its language is historic, and it will send a message nationwide that Louisiana stands in the forefront of states that will not tolerate infringements on our fundamental right to keep and bear arms.

 

[NRA80]

Would also appreciate everyone's support by hitting "Like" on NRA's facebook page: www.facebook.com/voteyeson2

 

[dawg23]

I wish the NRA and LSA were as active in working to reverse the appeals court ruling last year that has, in essence, re-written Louisiana's Justifiable Homicide statute as it pertains to homeowners defending themselves and family members against intruders who enter a home unlawfully.
http://la.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20110622_0000638.LA.htm/qx

This is of greater concern than the hypothetical situations under which our right to keep and bear arms might be limited. This situation already exists.

 

[Gerberman]

Woody Jenkins is a hydrocephalic moron.

.

The word needs to get out to make sure this passes.

 

[dzelenka]

I am at a loss to understand why anyone who supports the right to keep and bear arms would think this amendment is a bad thing. I can only assume that the people who have been spreading misinformation about the prospective amendment have no understanding of constitutional law or even basic civics. They are absolutely wrong in their conclusions and opinions on the matter. This constitutional amendment is the most important advancement in the right to keep and bear arms in Louisiana history. By publicly pushing their uninformed position, they present a greater danger to the right to keep and bear arms in the state of Louisiana than the anti-gun crowd because people who support the right seem to be listening to the misinformation. Do not be fooled by these false claims. SB 303/Act 874/Amendment 2 on the ballot will enhance the right to keep and bear arms in the state of Louisiana and protect it from future infringements by the legislature. Please vote YES on November 6th.

Dan Zelenka
President
Louisiana Shooting Association

If you are a gun owner in the state of Louisiana, you should be a member of the Louisiana Shooting Association. Please visit our website at www.louisianashooting.com for more information.

 

[NRA80]

Dan is 100% correct. NRA appreciates Dan and LSA's partnership and support.

Please share this NRA Email Alert with your family and friends -- spread the word to VOTE "YES" on 2 on Tuesday, November 6th!!

http://nraila.org/legislation/state...uisiana–vote-“yes”-on-2!.aspx?s=&st=10482&ps=

Support Your Second Amendment and Vote "YES" on 2!!

Proposed improvements to Article 1, Section 11 of the Louisiana Constitution, known as the Right to Keep and Bear Arms Amendment, would amend the Louisiana Constitution to state: *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.* If Amendment 2 is accepted by the voters on November 6, Louisiana will have the strongest guarantee of the Right to Keep and Bear Arms in the nation.

The proposed amendment is needed now to restore our gun rights because Louisiana’s current state guarantee is defective. The present Louisiana Constitution says that the right to bear arms shall not be *abridged,* except that *this provision shall not prevent the passage of laws to prohibit* carrying a concealed weapon. This wording is so faulty that it leaves open the possibility of regulation by the state of carrying concealed even in one’s own home. Further, the Louisiana Supreme Court has said that the right may be restricted if a majority in the legislature thinks it *reasonable* to do so. When it comes to rights, the standard for restrictions must be higher.

This proposed amendment reinforces Second Amendment rights, which the U.S. Supreme Court affirmed (in McDonald v. Chicago) are *fundamental.* Restrictions on fundamental rights (e.g. right to free speech) are normally subject to what the courts call *strict scrutiny* – a standard that ensures the strongest possible protection for the right. In short, gun laws should focus on safeguarding a right and punishing criminals, not law-abiding citizens.

The U.S. Supreme Court ruled in favor of our Second Amendment Rights by a narrow 5 to 4 margin. The four dissenting Justices claimed that individuals have no Second Amendment rights and that the government has the authority to ban guns – just as D.C. and Chicago had. The narrow margin by which our fundamental right was affirmed highlights the precarious situation that could be faced in the future if strong action is not taken now. If just one of the five Supreme Court Justices resigns or dies, the vote could go the other way. Further, courts nationwide have been trying to nullify the rulings, saying that Second Amendment rights are not fundamental, and that even if they are, restrictions are not subject to strict scrutiny, but instead are subject only to *intermediate scrutiny* or other tests where the right is *balanced* away. As a fully recognized fundamental right, the Second Amendment should receive protection as such.

Gun bans and harassment of gun owners routinely occur in places like New York City, New Jersey, and California. Do not think it can’t happen here. Remember in the wake of Hurricane Katrina when the New Orleans police declared that *no one will able to be armed, we will take all weapons* and launched an effort to confiscate guns from citizens in their own homes and businesses, leaving them at the mercy of criminals and looters? Despite a lawsuit, most victims never got their guns back. Nothing like that should ever happen again in Louisiana.

This proposed amendment will protect future generations from any legislative power grabs and rubber stamping by future courts that would erode and undermine our rights. Its language is historic, and it will send a message nationwide that Louisiana stands in the forefront of states that will not tolerate infringements on our fundamental right to keep and bear arms.



Frequently Asked Questions

What is strict scrutiny?

1.) Strict scrutiny is the highest level of protection for a constitutional right.

2.) This level of protection is reserved for rights that are deemed *fundamental* (e.g. free speech and right to vote).

3.) For decades, anti-gun judges and lawyers have fought tirelessly against application of *strict scrutiny* to our fundamental Second Amendment rights.

Why is strict scrutiny used as the level of review?

1.) Louisiana’s current right to keep and bear arms provision is deemed to only deserve a *rational basis* or lowest standard of review – virtually any rights-infringing law can pass this level of review.

2.) Because the proposed amendment will protect a fundamental right and will expressly acknowledge the right as *fundamental,* it naturally follows that the protected right requires the highest level of protection.


Why is Louisiana’s current right to keep and bear arms amendment inadequate?

1.) Because the Louisiana courts have determined that the current right to arms provision deserves the lowest level of review, the provision provides less protection than the Second Amendment itself, rendering Louisiana's constitutional provision meaningless under Heller and McDonald.

2.) According to the Louisiana Supreme Court, "The State of Louisiana is entitled to restrict that right for legitimate state purposes, such as public health and safety. "State v. Blanchard, 776 So.2d 1165, 1168 (La. 2001).

3.) Almost any restriction is upheld by the courts under the *rational basis* standard.

4.) The Louisiana Constitution also expressly allows a future legislature to impose a ban on the carrying of weapons concealed on the person – even in one’s home or on one’s own property.


Will this protect Louisianans Right to Keep and Bear Arms?

1.) Yes. Louisiana is on the verge of passing a historic level of protection for the right to keep and bear arms.

2.) Ironically, the effort is now being opposed by a misinformed few who mistakenly believe the proposed amendment allows for more, not less, gun control.

3.) Make no mistake, the amendment would not only strengthen Louisiana’s current constitutional right to arms, it would provide the strongest protection of the right to keep and bear arms of any jurisdiction in the United States.

4.) Simply put, it is the highest standard of constitutional review available in the United States. Those who believe in the strongest possible protection for the right to arms should enthusiastically vote *Yes* in November.


How to Get Involved

1. Visit our "YES on 2" website at www.nraila.org/YESon2 for more information.

2. Become a "Fan" or *Like" "Vote YES on 2" (www.facebook.com/voteyeson2) on Facebook and encourage all your friends to do the same.

3.) Show your support by displaying a bumper sticker or yard sign. Please contact us at: ila-contact@nrahq.org or 1-800-392-VOTE (8683) to get your bumper stickers and yard signs TODAY!!

4.) Write a letter to the editor for your local daily or weekly newspaper.

5.) Contact us for bumper stickers, yard signs, or brochures for your local community, gun shop, shooting range, hunting club, hunting store, or gun show.

6.) Please encourage your friends, family, fellow gun owners, and hunters to join you in voting "YES on 2" on Tuesday, November 6, 2012.

7.) Contact NRA-ILA Grassroots to find out more ways to become involved! You can also call us at 1-800-392-VOTE (8683)

 

[M-66supersingle]

What do you think about what this guy is saying about sb 303?

http://saveourguns.wordpress.com/2012/07/03/louisiana-act-874-is-more-gun-control/

 

[DAUC]

Has been discussed here before. Some really good info in this thread.

 

[M-66supersingle]

thanks

 

[honestlou]

I wish the NRA and LSA were as active in working to reverse the appeals court ruling last year that has, in essence, re-written Louisiana's Justifiable Homicide statute as it pertains to homeowners defending themselves and family members against intruders who enter a home unlawfully.
http://la.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20110622_0000638.LA.htm/qx

This is of greater concern than the hypothetical situations under which our right to keep and bear arms might be limited. This situation already exists.

What problem do you have with the court's ruling? I have always taught that the presumption given in 14:20 (B) was not absolute, and in fact could be rebutted by the evidence in the case. Furthermore, I not only think that this is the correct ruling, but I think that it is the appropriate and reasonable one as well.

I apologize for any thread hijack-mods please move if necessary.

 

[honestlou]

http://saveourguns.wordpress.com/2012/07/03/louisiana-act-874-is-more-gun-control/

I think what this guy is saying is utter stupidity. I hope he has enough sense to hire an attorney if he ever needs one, but I doubt it.

 

[dzelenka]

http://saveourguns.wordpress.com/2012/07/03/louisiana-act-874-is-more-gun-control/

What he says is complete and utter nonsense. He seems to be completely ignorant of basic civics and constitutional interpretation. The only thing that he got right is the date of the election.

Dan

 

[lsu fan]

Dan put it best...

Gordon has a good write-up as well (quoting Dan): http://www.louisianasportsman.com/details.php?id=4170

 

[geoney]

I wish the NRA and LSA were as active in working to reverse the appeals court ruling last year that has, in essence, re-written Louisiana's Justifiable Homicide statute as it pertains to homeowners defending themselves and family members against intruders who enter a home unlawfully.
http://la.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20110622_0000638.LA.htm/qx

This is of greater concern than the hypothetical situations under which our right to keep and bear arms might be limited. This situation already exists.

Could you please elaborate, this is the first I am hearing of this. What exactly does it change? Perhaps a new thread?

many thanks

 

[NRA80]

Top Pro-Gun Blog on "YES on 2:" http://www.pagunblog.com/2012/09/21/misinformation-about-louisiana-rkba-ballot-measure/#comments

 

[Xenon]

I received a forwarded email spreading like wildfire with this language:

SB 303 is a Louisiana constitutional amendment that will be on the ballot November 6, 2012.
It changes the right of Louisiana citizens to keep and bear arms to a privilege that is determined by a court judge or perhaps his clerk.
The wording on the ballot appears to be favorable to the right to keep and bear arms but the inclusion of the word "restriction" negates your right. Do not let someone try to confuse the issue that this is a bill to allow concealed carry for all Louisiana citizens because it is not.

Please pass this on to others and tell everyone you know that treasures their freedoms about this.

I contacted everyone I personally knew on the email and google-fu'd the originator. I addressed him by name in the email and I explained the provision he was "speaking" on. I asked that he voice his opinion (to me) on why he didn't like it. He replied that he has now read enough about it and will be voting for it. Too bad many naive votes were between him and me in that chain email he sent. BTW the email came from a friend in Monroe, but was originated in NOLA. He didn't sound anti-gun, just mislead.

I also have contacted the NRA to request a yard sign or two. I hate to see the misinformation to the public on something so important and good for LA. Too bad I feel like I cannot do anything about the presidential race...

 

[Hitman]

That's just the beginning.

Supposedly even CHP Instructors are passing bad info too;
http://www.bayoubucks.com/forum/showthread.php?t=45408