Apr 252016
 
Owen Courrèges

Owen Courrèges

Perhaps the most crucial skill a citizen can have when viewing the myriad policies proposed by politicians is knowing the difference between that which is substantive, and that which panders. The electorate should know when a politician is genuinely trying to make the world better, as opposed to merely looking like they’re trying to make the world better.

Alas, New Orleanians were exposed to the latter this past Friday, when Mayor Mitch Landrieu, flanked by Councilmembers Jason Williams and James Gray, proposed a five-part ordinance “aimed at promoting gun safety in New Orleans.”

Landrieu announced the ordinance at a press conference in Bunny Friend Park, where a shootout last year injured 17 people. He explained that “[i]n some instances, people have a right to own a gun, something that I support, every gun owner … has to be thoughtful, and they have to make sure that they handle that weapon responsibly.”

As a public official, Mayor Landrieu also has a responsibility – a responsibility to follow state law. Louisiana law preempts virtually all local firearms regulations. The pertinent statute, La. Rev. Stat. 40:1976(A), reads as follows:

No governing authority of a political subdivision shall enact after July 15, 1985, any ordinance or regulation more restrictive than state law concerning in any way the sale, purchase, possession, ownership, transfer, transportation, license, or registration of firearms, ammunition, or components of firearms or ammunition; however, this Section shall not apply to the levy and collection of sales and use taxes, license fees and taxes and permit fees, nor shall it affect the authority of political subdivisions to prohibit the possession of a weapon or firearm in certain commercial establishments and public buildings.”

For those who glossed over that impenetrable block of text, the ordinance basically says that local governments can’t enact any new firearms laws stricter than state law, with the exception of levying taxes and fees, or prohibiting the possession of a firearm in certain businesses or public buildings.

The preemption law is not difficult to understand. It means that New Orleans can’t have its own, stricter gun control scheme. The state has preempted the field. Although New Orleans has a home rule charter, that does not shield it from the exercise of the state police power, and recent court rulings universally reflect this.

That, dear readers, is where Landrieu’s new proposed gun ordinance runs into problems. Two of the five proposed municipal guns laws expand on existing state law, and one is an entirely new restriction. Since going further than state law is a no-no, this means the ordinance has lots of problems.

First of all, the centerpiece of the ordinance is a law that “would require that the owner of a lost or stolen firearm report it to a NOPD officer within 48 hours of discovery.” Obviously, this law pertains at least in some way to the “possession, ownership, [or] transfer” of a firearm, so it falls under the preemption law.

Other cities and states have passed laws requiring the mandatory reporting of stolen guns, but many of these laws aren’t enforced. That’s likely to be the case with the New Orleans law; police and public officials know that the law is itself illegal and therefore unenforceable, so they’ll might just keep it on the books but never actually use the charge.

The second part of the proposed ordinance that is preempted is a provision barring the possession of a gun within 1,000 feet of a “firearm free zone.” The proposed law mirrors a state statute insofar as Louisiana also creates firearm free zones, but Landrieu proposes to expand the definition of a firearm free zone to include “anywhere NORDC-sponsored youth recreational programs are offered.” Landrieu’s press release explains that “[t]his would effectively prohibit possession of firearms at all NORDC facilities as well as any parks where NORDC youth programming is offered.”

The expansion of firearm free zones to include parks and recreational facilities clearly runs afoul of state preemption. While the city may bar possession of firearms in public buildings, there is no exemption for parks and outdoor recreational facilities.

The final portion of the ordinance that violates state preemption is a provision that bars possession of a firearm by a person convicted of domestic abuse battery. Landrieu’s proposal extends this prohibition to persons convicted under New Orleans’ municipal domestic battery statute, which is more expansive than state law. Irrespective of the wisdom of this proposal, it is a matter reserved to the state, not the City of New Orleans.

Regardless of how one feels about the merits of Landrieu’s proposed “gun safety” ordinance, it has provisions that clearly violate state law. Previous mayors have bucked the state with respect to guns, and they’ve lost. Mayor Marc Morial notoriously sued gun manufacturers to recover for damages relating to gun violence (a comically baseless lawsuit) only to have the state pass a law, La. Rev. Stat. 40:1799, that retroactively divested the city of a right of action.

Like Morial before him, Landrieu is putting on a grand show that doesn’t actually accomplish anything. He’s thumbing his nose at Baton Rouge and shoring up his anti-gun bona fides, but nothing he’s proposing will make a lick of difference. It’s all either redundant or unenforceable.

Landrieu had the opportunity to propose something meaningful, or at least use his bully pulpit to make his opinions known while respecting state authority. Instead he proposed illegal laws that, if enforced, will simply wind up being struck in the courts.

For a guy who talks about responsibility, Landrieu certainly is showing a lack of it.

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.

  • Turlet

    This is part of the overall trend of Democratic branch overreach (in this case, executive and legislative branch overreach at the municipal level). Rather believing in the rule of law, they instead believe in the law they think would be better. Obama consistently does it. Governor Terry McAuliffe of Virginia just did it by giving voting rights to felons (Democrats). In New Orleans, it seems impossible that their attacks on the Louisiana Constitution would stand up in court. We were smart enough to vote to protect our guns.

  • Rick Geissal

    “Obviously, this law pertains at least in some way to the “possession, ownership, [or] transfer” of a firearm, so it falls under the preemption law.” This is not at all obvious. This is conjectural and might turn out to be accurate if/when appellate courts rule. It is not clear.

    • Owen Courrèges

      Rick,

      Yes, it is obvious. You’re basically telling me that it’s reasonable to say that a law requiring the reporting of stolen guns has ABSOLUTELY NOTHING WHATSOEVER to do with the “possession, ownership, [or] transfer” or a firearm.

      That’s nonsense. The theft deprives the owner of possession. It’s an illegal transfer. This is not conjecture. It’s not an arguable point where we can agree to disagree. If you claim that the proposed law doesn’t violate state preemption, you’re being either obtuse or intellectually dishonest.

  • Tim9lives

    FWIW…Its really a silly law anyway. All someone has to say is…”Oh…I didn’t know it was stolen.” Case closed.