May 062013
 

Owen Courreges

I’ve noticed lately that anti-gun journalists have been kvetching about House Bill 48, filed by Rep. Henry Burns (R-Haughton), which they say will allow concealed carry holders to bring firearms into restaurants that serve alcohol.

“Last week House members approved a bill by Rep. Henry Burns that would allow folks with concealed carry permits to take their weapons into places that serve alcohol,” wrote Jarvis DeBerry in a column published late last month.  DeBerry admits that although concealed-carry holders are generally law-abiding, “we don’t have to equate gun enthusiasts with the worst of society to question their desire to take their weapons everywhere.”

DeBerry was backed up three days later by James Gill, who noted that “[t]here are still places where you can’t carry a concealed weapon.”  He then proceeded to mock Burn’s bill, quipping that “[t]he odd fatality is a small price to pay for the peace of mind that comes from armed dining.”

This commentary was a bit odd given the fact that House Bill 48 didn’t even mention carrying a concealed firearm.  House Bill 48 merely amends La. Rev. Stat. 14:95.5(B), which presently bars the possession of firearms in any business that sells alcohol for consumption on the premises, “whether or not such sales are a primary or incidental purpose of the business of the establishment.”

House Bill 48 would amend La. Rev. Stat. 14:95.5(B) to apply only to those businesses with a Class-A “General Retail” permit, businesses that earn a majority of their revenues from serving alcohol for consumption on the premises.  A Class-A “General Retail” permit is generally held by bars and taverns, not restaurants.  Restaurants normally have a Class-A “Restaurant” permit, reserved for businesses that serve alcohol for consumption on the premises but earn a majority of their revenues from other sources (i.e., serving food).

However, La. Rev. Stat. 14:95.5(B) doesn’t mention concealed carry.  It predates statute-issued concealed carry permits.  And more importantly, carrying a concealed firearm into a restaurant that serves alcohol is already legal.

Here’s the reason:  Under La. Rev. Stat. 40:1379.3, Louisiana’s state-issued concealed-carry permitting statute, a concealed-carry licensee is only specifically prohibited from carrying a firearm in a business with a Class-A “General Retail” permit.  Thus, there is an apparent conflict between Louisiana’s concealed-carry law and La. Rev. Stat. 14:95.5(B).

On its face, the concealed-carry statute seems to allow concealed-carry permit holders to carry in restaurants with a Class-A “Restaurant” permit.  If for no other reason, this is true due to the old legal maxim “expressio unius est exclusio alterius” – the expression of one is exclusion of the other.  If the legislature specifically stated that concealed carry-permit holders could not carry in businesses with Class-A “General Retail” permits, it can be presumed that it intended to exclude other classifications of businesses that serve alcohol for consumption on the premises.

Furthermore, the canons of legal interpretation apply specific laws over general laws, and newer laws over older ones.  They also resolve ambiguities in criminal law in favor of the accused, not the state.  The laws specifically governing concealed-carry are newer and more specific, therefore they are more applicable.  And at best, the legislature’s decision to single out Class-A “General Retail” establishments creates an ambiguity and renders the law unclear.

Thus, House Bill 48 was not about concealed-carry at all.  Not only did it not mention concealed-carry, but at best it only eliminated an ambiguity in favor of the outcome required by Louisiana law.  DeBerry and Gill were tilting at windmills.

The question remains, why did DeBerry and Gill completely misinterpret House Bill 48?  Well, it’s because their employer did.

On April 25, 2013, two days before DeBerry’s column hit the presses and five days before Gill’s did, the Times-Picayune ran a piece that started: “Gun owners in Louisiana would be able to carry concealed weapons into restaurants that sell alcohol under a bill passed by the House on Thursday morning.”   The TP wasn’t alone; a news affiliate in Lafayette, KATC, reported the same day that “the House [had] backed a proposal to let people carry concealed weapons into restaurants that serve alcohol.”

Nevertheless, the text of House Bill 48 was available online.  It’s in plain English.  There was no reason to think it was restricted to concealed-carry permit holders.  Still, that bit of misinformation – that HB 48 was some novel expansion of concealed carry – became the conventional wisdom and bore two entirely useless columns that completely misstated the substance of the issue.

The Times-Picayune subsequently corrected its error (without admitting that it had erred at all) by suggesting that misunderstanding originated in the legislature, not in the media.  On May 1, 2013, the TP printed another article noting that “many lawmakers were unaware of the implications of the committee amendment and believed the bill they passed only applied to concealed-carry permit holders.”

According to the TP, the committee amendment was proposed by Rep. Helena Moreno, D-New Orleans, who is now claiming that the legislation will be further revised in the Senate to apply only to concealed-carry permit holders.

If Moreno is right, then the legislation will (again) merely cure an ambiguity in the same way the law already requires.  Applying La. Rev. Stat. 14:95.5(B) to concealed-carry permit holders in its current form would violate due process, and cleaning up the law to avoid improper enforcement is certainly a noble goal.  However, even on this level DeBerry and Gill’s commentary was poor.  Both ignored the issue of poorly-written criminal statutes in favor of asinine histrionics about what a backward state we live in for letting people eat out while carrying a concealed firearm.

If Moreno is wrong, then HB 48 is less about concealed-carry and more about open-carry, which it regulates directly.   Open-carry has been recognized as a constitutional right in Louisiana since the 1970’s, but it is still subject to basic state laws on where firearms can be possessed.  DeBerry and Gill completely missed this issue, even though it was more prominent and represented a greater liberalization of gun laws.

What I take from all of this is just how ignorant and disinterested the anti-gun crowd tends to be.  It’s all knee-jerk, bumper-sticker argumentation.   There’s too much snark and too little investigation.  They speak before they’ve had time to think.

It’s the root of the animosity between the gun rights crowd and those who urge tighter controls.  It happens every time a semi-automatic rifle is improperly dubbed a “machine gun” or conflated with actual military weaponry.  It happens whenever any loosening of restrictions, no matter how minor, evokes “Wild West” comparisons (ironic, given that old West towns often barred the carrying of firearms).

It happens because there’s a certain dishonesty that pervades, and has always pervaded, those supportive of gun control.  You can’t work with people you neither trust nor respect, and I see nothing to trust or respect here.

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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  • JAM

    Nicely done Owen.

  • http://www.facebook.com/jim.mcarthur.10 Jim McArthur

    Ah, give the media a LITTLE credit, Owen! They’ve at least stopped talking about “automatic revolvers”. And occasionally, they even refer to a “magazine” by that term, rather than as a “clip”. (“Cartridges” are still “bullets”, most of the time, though).

    • Deux amours

      Owen is part of the media.

      • http://twitter.com/Owen_Courreges Owen Courrèges

        Deux,

        I’m pretty sure he means the established media, not a guy who writes a weekly column for a local neighborhood website.

        • Deux amours

          Let’s give the little media a little credit. Actually, i’m not sure the media figures you attack are that big time either.

  • Deux amours

    It’s a little harsh to accuse those who are confused by the Louisiana statutes of a “certain dishonesty” when it took you a few paragraphs to reconcile a conflict by use of an old maxim that is not one of the prefered methods of statutory construction. In any event, do you support people carrying weapons, open or concealed, when they are drinking? When a group of gun enthusiasts go out drinking together, should they have a designated shooter?

    • http://twitter.com/Owen_Courreges Owen Courrèges

      Deux,

      First of all, while I started off with citing the expressio unis doctrine, I also cited others — the rule of lenitity, and the presumption that newer or more specific statutes are applicable over older or more general ones. I can’t think of any rule of construction that would favor applying La. R.S. 14:95.5(B) to CHL holders.

      Secondly, I know of no Louisiana legal decision that has referred to expressio unis as “not preferred” as a rule of construction. I know that as recently as 2008 the First Circuit called expressio unis a “time honored rule of statutory construction.” The Louisiana Supreme Court called it a “time honored maxim” in its 1997 decision in Theriot v. Midland Risk. I see no basis for your claim that expressio unis is somehow disfavored in Louisiana.

      Thirdly, I do not support people drinking to excess while carrying a firearm, but there’s already a separate law regulating that (and it is a stricter limitation that under the DUI statute). The issue here is whether you can even carry into a restaurant that serves alcohol — which includes most sit-down restaurants. I see no reason to prohibit people from carrying firearms into restaurants, even if they do have a drink with dinner. By itself, simply eating out while carrying a firearm is perfectly innocuous.

      • Deux amours

        Your criticism still seems harsh. Do you know why the two columnists you accuse of simply following their employer’s orders did so while their fellow employees did not?

        • http://twitter.com/Owen_Courreges Owen Courrèges

          Deux,

          I didn’t say they were following orders; I meant that the TP made the error in its reporting before them and they (evidently) copied it without double-checking.

  • SafetyDance

    it’s pretty weird to live in a place where we debate whether we can/should carry guns into bars and restaurants. us funny talkers, living abroad or right here, look on and scratch our heads in bewilderment at the gun debate.

    • http://twitter.com/Owen_Courreges Owen Courrèges

      Safety,

      There really isn’t much debate as to bars, and certainly no pending legislation at this time. The issue here is with respect to restaurants, whose primary purpose is to serve food and where few patrons drink to excess.

      • Deux amours

        Can I take my gun into the casino? I want those card sharks to know they can’t fool around with me.

        • http://twitter.com/Owen_Courreges Owen Courrèges

          Deux,

          To my knowledge, casinos must have general retail permits. Restaurants permits are restricted to restaurant establishments (I admit I was unclear on this). In any case, I would argue that the ban on carrying in casinos is on far better policy and legal grounds given the nature and history of gambling.

          • Deux amours

            Do you think a bar, restaurant, or casino, has or ought to have the right to exclude armed patrons? Separate from the legalities of it all, don’t you find the image of someone with a weapon strapped on (or partially concealed) knocking down a few at the bar kind of crazy? We have entirely too much discussion of the appropriate legal regime for weapons (not to mention discussion of the discussion) and not nearly enough discussion of appropriate social behavior.

          • http://twitter.com/Owen_Courreges Owen Courrèges

            Deux,

            >>Do you think a bar, restaurant, or casino, has or ought to have the right to exclude armed patrons?<>Separate from the legalities of it all, don’t you find the image of someone with a weapon strapped on (or partially concealed) knocking down a few at the bar kind of crazy?<<

            I think somebody getting drunk with a gun on their hip is certainly dangerous and irresponsible, and should be illegal. However, it's the intoxication that bothers me, not necessarily the place. I have an equal problem with somebody getting drunk at home and going out with a firearm.

            On the other hand, I personally would argue that the bar prohibition makes a great deal more sense given the fact that the primary business of bars is to serve alcohol, and that bars are often populated by people who over-imbibe. I definitely don't see the same issue with restaurants.

          • Deux amours

            You didn’t really respond about proper social behavior. Personally, I don’t want to wait and worry if the person at the bar or next table flashing the iron is going to drink responsibly. I think it is gross when they first step up to the bar or taste the wine. I probably would leave or at least ask for a different table. To go armed to a social setting is obnoxious.

          • http://twitter.com/Owen_Courreges Owen Courrèges

            Deux,

            >>To go armed to a social setting is obnoxious.<<

            I disagree. I don't see anything obnoxious about it. In any event, if the carrying is concealed, there's no reason why anybody else would be aware of it.

          • Deux amours

            Of course, if I don’t see it, i won’t be bothered. Many concealed weapons are easily seen, and of course many people prefer to open carry, for the deterrent effect and the quick draw possibilities. I don’t like to be around either. Were there many people with guns on the hip at your last Christmas party?

          • http://twitter.com/Owen_Courreges Owen Courrèges

            Deux,

            I understand your preferences, although I don’t share them. I personally have no problem being around armed, law-abiding persons. What I have a problem with is enshrining those preferences into law and making a morass out of where it’s legal to carry.

          • Deux amours

            The problem I have is that some people have the confused notion that a societal norm should be that almost everyone should be armed as much as possible. To me, this is a rejection of thousands of years of human culture where men looked for opportunities to lay down their arms and drink and break bread with others with no apparent threats. I really think too many “gun advocates,” many of them lawyers, confusedly believe the only way to protect the American right to bear arms is to promote a complete submersion of American culture to the romance of the gun. I think, to the contrary, that the ideal is for people to socialize, with friends and strangers, without bearing lethal weapons. I think most people do look askance when they notice that someone is armed in a social setting, but this is America, and you can have a different view of what you want to see when you go out partying tonight.

          • nolamomma

            If the carrying is concealed, doesn’t it make it easier for that person to break the law forbidding them from drinking while carrying?

          • http://twitter.com/Owen_Courreges Owen Courrèges

            nolamomma,

            Pretty much. You’d pretty much only impact those concealed-carry holders who are sticklers; the minority who don’t care would carry with impunity. The good thing about open carry is that it would more readily allow restaurants to enforce their own policies in a more discreet way (i.e., at the door, rather than in the dining area when somebody notices a bulge or a protruding handle). I do understand that it makes some people uncomfortable, though.

      • SafetyDance

        my point here was missed, or purposefully obfuscated. well done.

        this local rag needs to start publishing another side to this argument. till then, i’m done.

        • http://twitter.com/jiangkuang Jiang Kuang

          Don’t hold your breath. Looks like the Uptown Messenger is indulging Owen’s fantasy of being a political pundit. And like most (all?) pundits, he is primarily concerned with grinding his axe. As they say on the internet, don’t feed the trolls.

          • http://twitter.com/Owen_Courreges Owen Courrèges

            Jiang,

            I find it odd that you can think I’m a troll with my own column. And I’ve written for several different entities over the years, so it isn’t as though I have any need to fulfill some “fantasy” this way.

            One more thing: To the degree my admission to having a “ax to grind” implies that I have some private or personal agenda, that is not what I intended to convey. I only meant that I care deeply about this issue and that’s why I write about it regularly.

        • http://twitter.com/Owen_Courreges Owen Courrèges

          SafetyDance,

          ??? I took your general point to be that you and particularly those abroad look down their noses at the American gun debate, as though the proper position on these issues is simply obvious.

          Instead of checking out on the issue, I’d prefer you engage it. That’s what the comments are for.

  • http://twitter.com/jiangkuang Jiang Kuang

    “It happens because there’s a certain dishonesty that pervades, and has always pervaded, those supportive of gun control.”

    I would say the same about certain people on the far right of gun control who insist that background checks are the first step in Obama coming for our guns. Owen, I usually like your articles but you lost me with this statement. People who support gun control are “always” dishonest? For a lawyer you should know better.

    • http://twitter.com/Owen_Courreges Owen Courrèges

      Jiang,

      I didn’t mean “always” in terms of “every anti-gun pundit at all times.” I just meant that it always seems to crop up, that there are those advocating gun control who don’t seem to care enough to ascertain basic facts before going into some deceptive or emotional appeal.

      And yes, there are hysterical people on all sides, but I haven’t seen somebody saying “background checks are a precursor to Obama taking our guns” in a major metro newspaper recently.

      • http://twitter.com/jiangkuang Jiang Kuang

        Always does not always mean always. Gotta love lawyers.

        “I just meant that it always seems to crop up, that there are those advocating gun control who don’t seem to care enough to ascertain basic facts before going into some deceptive or emotional appeal.”

        Sure, I can agree with that. But the same is true (and I would say WAY more true) with those against gun control. And by writing an article that casts one side as dishonest, and using such biased rhetoric to boot (“ignorant and disinterested”), Owen, well let’s just say I lost respect for you.

        Both sides are guilty. Politicians and lobbyists (like the NRA!) distort the truth to argue their case and prove their point. That is what they do. Most learned the skill in law school.

        • http://twitter.com/Owen_Courreges Owen Courrèges

          Jiang,

          >>Always does not always mean always. Gotta love lawyers.<> I can agree with that. But the same is true (and I would say WAY more true) with those against gun control. And by writing an article that casts one side as dishonest, and using such biased rhetoric to boot (“ignorant and disinterested”), Owen, well let’s just say I lost respect for you.<<

          I'm sorry to hear that, but I stand by my observations. Mainstream commentary from those against gun control is, in my opinion, generally far more informed and ready to deal with the facts. They may use excessive rhetoric, and you can disagree with the arguments and try and poke holes in them, but I don't see the pro-gun crowd writing op-eds about legislation when they don't even know what it says. DeBerry and Gill *both* failed to read HB 48 before writing emotional pieces about it.

          And many, if not most, articles I read about firearms from the anti-gun crowd misstate and conflate crucial terms. I can't tell you how many times I've seen a semi-automatic called a machine gun. And let's not forget the recent episode in New York where gun control limiting magazine capacity was rammed through before policymakers even considered the practical realities. There's a difference between indulging hyperbole and showing a complete disregard for the facts. My opinion is that there's a great deal more of the latter on the anti-gun side.

          • http://twitter.com/jiangkuang Jiang Kuang

            Quite the pundit. Where most would admit their error, the pundit resorts to rhetorical bobbing and weaving. Leaving us with this line:

            “I think sometimes that kind of nuance is more or less implied”

            Does that actually work in court? “Your honor, the nuance was implied!” This is in the same article where you say:

            “What I take from all of this is just how ignorant and disinterested the anti-gun crowd tends to be. It’s all knee-jerk, bumper-sticker argumentation. There’s too much snark and too little investigation. They speak before they’ve
            had time to think.”

            I suppose there is lots of nuance hidden in this over the top statement? And then Owen goes on to blame the animosity between the two sides squarely on the gun control crowd, as
            if gun rights supporters are all deep thinkers who never speak without investigation. Owen, what you miss is that by using such charged and inflammatory language, you are part of the
            problem, not the solution. In this case you might have the facts on your side but the hyperbole is offensive. I would have welcomed an article that discussed the issues at hand. But once it became clear that you have an axe to grind, this became a hack job.

            But since I know that I cannot convince a true believer, let me address these comments to the editors of the Uptown Messenger. As a long time reader and supporter of your website, I have to say I am a bit surprised with this piece. I suppose you might be thinking that any controversy is good publicity. And I certainly believe in free speech and the right to voice opinions. But I am not sure what the point of letting Owen vent, in inflammatory language, his dislike of gun control supporters–this is not Fox News, right? Given the demographics of uptown
            New Orleans, I imagine many of your readers would have been insulted if they had made it through the legalese of this article. Finally, as editors you should have noted that Owen misused the term “disinterested.” He wanted to add yet another insult to gun supporters, but this would actually be a compliment as the word means “without bias.”

          • http://twitter.com/Owen_Courreges Owen Courrèges

            Jiang,

            >>Quite the pundit. Where most would admit their error, the pundit resorts to rhetorical bobbing and weaving.<> I am not sure what the point of letting Owen vent, in inflammatory language, his dislike of gun control supporters–this is not Fox News, right?<>Finally, as editors you should have noted that Owen misused the term “disinterested.” He wanted to add yet another insult to gun supporters, but this would actually be a compliment as the word means “without bias.”<<

            Are you sure about that? Did you actually check before making another cheap shot?

            I hate to get back to elementary school English here, but words can have multiple meanings triggered by context clues. One meaning of "disinterested" is simply "not interested." Merriam-Webster now lists this as the primary definition.

            Merriam-Webster also has a description of people like you: "Use of senses 1a and 1b will incur the disapproval of some who may not fully appreciate the history of this word or the subtleties of its present use."

            http://www.merriam-webster.com/dictionary/disinterested

          • http://twitter.com/jiangkuang Jiang Kuang

            “take cheap shots”

            “type of statement that ignores the existence of a side that might disagree with you, and disagree with you quite strongly.”

            And so we have reached full circle, as the author attempts to call me out for doing what he did in the original piece. Too much hypocrisy for me to bother with this any longer.

          • http://twitter.com/Owen_Courreges Owen Courrèges

            Jiang,

            Hypocrisy? I’ve been engaging the opposing side repeatedly and arguing against it. The “shot” I made is hardly cheap — anti-gun columnists wrote entire pieces on legislation that they didn’t understand, and clearly hadn’t even read (akin to your failure to look up “disinterested” before mocking my use of it). That’s a substantive salvo, not a cheap shot.

    • Deux amours

      It is ironic, if not evidence of deception, that in Louisiana the onslaught of gun legislation has actually been by those who advocate changing the law to permit more and freer activity by gun bearers. There is zero chance that the Louisiana Legislature will purposely pass a law that will restrict gun rights. Owen should know this and not whine about what he thinks is the whining of others. We have some real issues that the Louisiana Legislature might consider. Is there any one promoting a law that will set out a constitutional prohibition on felons carrying weapons? We know from past experience that messing with established law can have negative effects not desired by most gun advocates. when that happens, someone should act to correct the problem.

      • http://twitter.com/Owen_Courreges Owen Courrèges

        Deux,

        >>There is zero chance that the Louisiana Legislature will purposely pass a law that will restrict gun rights. Owen should know this and not whine about what he thinks is the whining of others.<>Is there any one promoting a law that will set out a constitutional prohibition on felons carrying weapons?<<

        I don't think one needed. I'm confident that Louisiana's ban on felons possessing firearms is narrowly-tailored and will pass strict-scrutiny review. Other curtailments of the rights of felons have been upheld under strict scrutiny. In any event, it is already illegal for felons to own firearms under federal law (although I personally believe that the federal law is vastly overbroad).

        • Deux amours

          You do understand that the law did not pass some court’s strict scrutiny review, and it remains to be seen what our Supreme Court will do?

          • http://twitter.com/Owen_Courreges Owen Courrèges

            Deux,

            I understand that, but I think the weight of authority favors upholding the prohibition and I anticipate that the Louisiana Supreme Court will reverse.

  • Diogonese

    Well said and thank you. The T-P never lets facts get in the way of its agenda.

  • http://www.facebook.com/profile.php?id=508252227 Jared Burnett

    Great job Owen!