Oct 082012
 

Owen Courreges

It’s nighttime.  You awake to a noise outside.  Is it a prowler?  You aren’t sure.  You grab a small pistol from your nightstand and shove it in your pocket as you proceed out to your driveway to investigate the disturbance.  If it’s nothing, you reason, you don’t want to be walking around in plain view with a gun in your hand.

Congratulations.  You just committing the crime of carrying a weapon illegally, and you did it without ever leaving your own property.

This is what the Louisiana First Circuit held in State v. Young in 1985. La. Rev. Stat. 14:95 prohibits “[t]he intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person.”  There are no exceptions to this in the statute, not even for carrying a firearm in your own home or on your own property.

In Young, the defendant was walking to his car in his own driveway.  Unbeknownst to him, a state trooper was simultaneously approaching to serve him with a warrant for receiving stolen property.  The officer searched the defendant and found a .22 caliber revolver on his person.  He was tried and convicted of violating La. Rev. Stat. 14:95.

On appeal, the conviction was upheld against a constitutional challenge.  Although Article I, Section 11 of the Louisiana Constitution guarantees the right of individual citizens to keep and bear arms, it also clearly provides that “this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.”  The Court held that the defendant “was carrying a concealed weapon” and that it “was being carried when the defendant walked down his driveway.”  Thus, the elements of the statute were satisfied and it was not unconstitutional as applied.

To a man.  In his own driveway.

State v. Young is not an aberration, either.  Louisiana decisions on the right to bear arms have been almost comically dismissive.  Although there is typically a presumption against statutes that conflict with established rights, the Louisiana Supreme Court allows laws designed to “protect the public health, safety, morals, or general welfare so long as that regulation is a reasonable one.”  This language has effectively nullified the right.

This November we have the opportunity to rewrite Louisiana’s right to keep and bear arms to render this bad law.  Acts 874 will eliminate the language permitting laws against concealment of weapons.  It also will provide that the right to keep and bear arms is “fundamental” and subject to “strict scrutiny” as opposed to the present “reasonableness” review.

Nevertheless, Acts 874 has drawn criticism and opposition from officials and pundits.  Recently Times-Picayune columnist James Gill opined that Acts 874 “was drafted on the manifestly insane pretext that the Second Amendment and the current state Constitution fail to provide adequate protection for gun owners.”

Mr. Gill and others seems to be unaware of the fact that the state Constitution, as presently construed, provides few protections for gun owners at all.  Moreover, although the tide has been turning on the federal front, Second Amendment jurisprudence remains in its infancy.  Given the unresolved nature of constitutional protections, it only stands to reason that Louisiana gun owners would seek additional protections.

Then again, there’s more to Acts 874 than this.  As I noted in a previous column, its language would likely create “constitutional carry,” meaning that the state could no longer require permits to carry a concealed firearm.  This is a major shift and Louisianans should be aware of it, but it’s the same state of affairs that exists in several other states.

But in a state where I can’t carry a concealed weapon in my own driveway, it’s ludicrous to suggest that legal protections for gunowners are indisputably adequate.  From my perspective, state protections for gun rights are tenuous at best and need to be bolstered.  That’s why I’ll be voting “yes” on Acts 874.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.

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  • brownmichelle

    “As I noted in a previous column, its language would likely create “constitutional carry,” meaning that the state could no longer require permits to carry a concealed firearm. This is a major shift and Louisianans should be aware of it, but it’s the same state of affairs that exists in several other states.”

    I was with you up until that point. The fact that other states permit concealed firearms without a permit does not mean it’s a good idea. That’s why I’ll be voting “no.” I imagine that the rights of gun owners could be strengthened in ways that do not hamstring legislative efforts to protect the public.

    • Owen Courreges

      Michelle,

      That’s a fair position to take, but even then it’s a mixed bag. It’s ridiculous that without a permit you can’t even carry a concealed weapon on your own property, and that existing reported decisions essentially render the state constitutional right meaningless.I addressed the “constitutional carry” issue more in depth in my other column, but wanted to go back to this because of I think the notion that we already have good protections is simply not true. Acts 874 may go too far, but it’s clear that Louisiana gun owners are not well-protected by the state constitution.

  • MRT

    conceal and carry laws are a good tool for the police to hit scumbags that receive stolen property (and/or worse). Anyway, you’re far and away more likely to shoot your own kid or spouse with that concealed weapon on your own property than any intruder…

    • http://www.facebook.com/people/Joe-ThePimpernel/100003157676276 Joe ThePimpernel

      That ignores the fact that guns are used 2.5 million times per year by private citizens to prevent crimes like robbery, home invasion, carjacking and rape, 99% of the time without a shot being fired.

      http://gunfacts.info

      That’s the little trick you gun-grabbers use, ignore the fact that 99% of the time you don’t have to fire a gun to protect yourself with it. Criminals are cowards. They only choose victims they think are defenseless. If their chosen victim turns out not to be defenseless, they run.

      I take it you don’t care about those 2.5 million people per year?

      I take it you would prefer they be victimized because you have an anti-gun fetish?

  • http://www.facebook.com/people/David-Tupper/1010664387 David Tupper

    Can someone please explain to me how any gun control law affects a criminal actually carrying? There may be enhanced penalties IF they are caught, but it does not stop them. By definition, criminals ignore laws meant to control their action so these laws only inconvenience those not inclined to break the law in the first place.

    • Owen Courrèges

      David,

      That’s the experience of other countries with preexisting crime problems when they enact strict new gun control laws. Just look at Great Britain — they banned handguns and the violent crime rate is still high and there is still gun crime (although resort is now being made more frequently to other weapons). It may be that certain types of gun control can impact violent crime, but overall it would appear to be wasted effort that winds up targeting otherwise law-abiding citizens.

  • Phil Frady

    Owen is suggesting a law that would deny the scrutiny that could uncover future cases where a convicted felon would be able to get a permit to carry a concealed weapon.

    • Owen Courrèges

      Phil,

      I’m not sure what you’re saying. Are you saying that under strict scrutiny laws against felons owning firearms would be struck? I highly doubt that. The only exception might be for non-violent felonies (mail fraud, misprision of a felony, forgery, etc.), but even then it would probably be a close call at best in the courts. As for permits, I think I was clear that the new language casts serious doubt on permitting requirements for carrying concealed weapons.

  • Wendy Weinbaum

    As a Jewess in the US, I can only say that anti-gun NYC Mayor Michael Bloomberg is an embarrasment to all American Jewry. People like HIM are why all REAL Americans now put our 2nd Amendment FIRST! Remember that America wasn’t won with a registered gun!

  • Owen Courrèges

    Jo,

    “Anyone who puts a firearm in their pocket has no business owning one. That is insanely dangerous.”

    That’s not necessarily true. It depends on the type of firearm and the size of the pocket (if you’re talking about a revolver, particularly single-action, there’s really not any danger in carrying in a pocket). It also depends in part on whether the individual carrying is using a pocket holster.

    In any case, there’s no reason whatsoever why people shouldn’t be able to conceal a weapon on their own property if it makes them more comfortable. Just because you would be comfortable walking around with a gun openly on your hip while you search your property doesn’t mean everyone has to feel the same way.

  • Rob

    Jo,

    If you think open carry really exists, strap on a six shooter and walk down Magazine Street. See how many times you are stopped by the police and have to explain what you are doing – or worse – being hauled in on some related charge like “terrorizing”. Open carry may be the law, but in fact, it does not exist.

    • Owen Courreges

      Rob,
      That’s a sad truth. Police are often ignorant of the law regarding open carry and those who are often use bogus legal pretexts to stop and even arrest people who openly carry. Consequently, it’s understandable that people want to carry concealed as easily as they are theoretically allowed to carry openly.

  • Nick

    Phil,

    So a college student with a CCW permit can carry off campus legally but not on campus. The only variable is the College Campus. By my logic the College Campuses should be out lawed not guns on campus. “Safe zone” is far more dangerous than a 21 year old with a concealed handgun. “Safe zone” just provide criminals a “safer” environment to operate it. Why should it be legal to carry off campus yet so dangerous on campus just based on location? Its ok 1 foot that way but 1 foot the other way is to much of a public danger? Why can an 18 year old join the Army and go off to fight for the US but come home and not be able to concealed carry a hand gun? People make young adults(21+) sound SO dangerous and unpredictable. If they are why dont we just put them all in cages until they are older? Its so easy to point to the tool instead of the operator.

    Nick

  • Diogonese

    Mr. Courreges,

    Here we are post-election and the amendment passed. Thank you for writing this article. In the run-up to election day, your article was the only one I found in the local media that gave an informed, balanced description of the issues involved. Please keep up the good work.