House passes SB303, constitutional carry amendment

[sraacke]

Actually you are wrong. La law is VERY clear on this.
http://www.legis.state.la.us/lss/lss.asp?doc=78744
RS 14:95.5
95.5. Possession of firearm on premises of alcoholic beverage outlet

A. No person shall intentionally possess a firearm while on the premises of an alcoholic beverage outlet.

B. "Alcoholic beverage outlet" as used herein means any commercial establishment in which alcoholic beverages of either high or low alcoholic content are sold in individual servings for consumption on the premises, whether or not such sales are a primary or incidental purpose of the business of the establishment.

C. The provisions of this Section shall not apply to the owner or lessee of an alcoholic beverage outlet, or to an employee of such owner or lessee, or to a law enforcement officer or other person vested with law enforcement authority acting in the performance of his official duties.

D. Whoever violates the provisions of this Section shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.

Acts 1985, No. 765, §1.

Do Not Open Carry ANYWHERE you can drink a beer or other alcoholic beverage.

Oh...and by the way....
Welcome to the forum.

Georg,
If you read the statute it doesn't make any sort of exemption for conceal carry with a permit yet many posters on other forums will argue that because the State CHP website doesn't list Alcohol Beverage Outlets as a restricted place then it must be OK. Thing is, 14:95.5 doesn't say anything about someone holding a valid CHP being able to ignore this statute.

 

[nate985]

So are we just waiting on November 6th now?

I should cancel my conceal class that is in a few weeks? I mean you would still need one to travel to other states, so they are not completely useless, but I never travel... Might be good to have if you need to evacuate.

 

[Owen Courreges]

Georg,
If you read the statute it doesn't make any sort of exemption for conceal carry with a permit yet many posters on other forums will argue that because the State CHP website doesn't list Alcohol Beverage Outlets as a restricted place then it must be OK. Thing is, 14:95.5 doesn't say anything about someone holding a valid CHP being able to ignore this statute.

In my view, La. R.S. 14:95.5 doesn't have to say anything about it. The concealed handgun law [La. R.S. 40:1379.3(N)(10)] provides that CHPs cannot carry in an established with a Class A General Retail Permit, which is narrower than La. R.S. 14:95.5 because it only refers to a subset of ABOs. Normally when two statutes conflict, the more specific statute controls. Thus, I would say that La. R.S. 14:95.5 is inapplicable to carrying with a CHL.

 

[sraacke]

So are we just waiting on November 6th now?

I should cancel my conceal class that is in a few weeks? I mean you would still need one to travel to other states, so they are not completely useless, but I never travel... Might be good to have if you need to evacuate.

Don't cancel your CHP class. Even if this bill passes you will still need a CHP to CC.

 

[georg jetson]

In my view, La. R.S. 14:95.5 doesn't have to say anything about it. The concealed handgun law [La. R.S. 40:1379.3(N)(10)] provides that CHPs cannot carry in an established with a Class A General Retail Permit, which is narrower than La. R.S. 14:95.5 because it only refers to a subset of ABOs. Normally when two statutes conflict, the more specific statute controls. Thus, I would say that La. R.S. 14:95.5 is inapplicable to carrying with a CHL.

Thanks for weighing in on this. I'd be interested in your thoughts on the topic of this thread. What's your take on SB303(now ACT 874)?

 

[nate985]

Don't cancel your CHP class. Even if this bill passes you will still need a CHP to CC.

That is what i am curious about. I am reading the SLS 12RS-245. Regular Session, 2012 SENATE BILL NO. 303
posted at http://www.legis.state.la.us/billdata/streamdocument.asp?did=778396

I am definitely not an expert, and I could be wrong, but since they are removing.

"and bear" "abridged but this 16 provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person"

and the the new wording will say.

Section 11. The right of each citizen to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes is fundamental and shall not be denied or infringed, and any restriction shall be subject to strict scrutiny.

Does that nullify the state level laws requiring a CC permit? since they will have to pass the "strict scrutiny"

 

[Owen Courreges]

Don't cancel your CHP class. Even if this bill passes you will still need a CHP to CC.

That's correct, but only until the courts hold that concealed carry is now legal without a CHP. I really don't see how any court could find that you need a permit to carry concealed under this new language.

 

[Owen Courreges]

Thanks for weighing in on this. I'd be interested in your thoughts on the topic of this thread. What's your take on SB303(now ACT 874)?

I'm completely in favor of it. It's a constitutional carry amendment. I really don't understand the opposition; all rights, even those that don't textually acknowledge any exceptions, are not read to be entirely absolute by the courts. That's just a reality. "Strict scrutiny" is as high a level of judicial review as exists and will place owning and carrying firearms on the same level as freedom of speech, which typically only admits of extreme exceptions like yelling fire in a crowded room or inciting violence. The real issue is whether the courts will try to water it down, not whether the language is strong.

 

[georg jetson]

That's correct, but only until the courts hold that concealed carry is now legal without a CHP. I really don't see how any court could find that you need a permit to carry concealed under this new language.

In order for the courts to hold that concealed carry is now legal, a challenge would need to be made to RS 14:95 correct?

 

[davidmcbeth]

1 day after this proposed change is made, the state can effectively outlaw concealed carry. And then why not OC? After all, the constitution specifically says CC could be prohibited...whats the difference?..the law says its OK to outlaw carry of a gun. That's what a court would rule.

The language does not say OC is OK. It does not say "the legislature shall not pass any laws ...." in respect to OC. It could, right? But it doesn't.

It offers no protection beyond the 2nd amendment.

Recommend not voting for it.

Beware of getting what you want...and beware of what the government proposes

 

[georg jetson]

I'm completely in favor of it. It's a constitutional carry amendment. I really don't understand the opposition; all rights, even those that don't textually acknowledge any exceptions, are not read to be entirely absolute by the courts. That's just a reality. "Strict scrutiny" is as high a level of judicial review as exists and will place owning and carrying firearms on the same level as freedom of speech, which typically only admits of extreme exceptions like yelling fire in a crowded room or inciting violence. The real issue is whether the courts will try to water it down, not whether the language is strong.

Thanks for your valued input!!

It appears to me that the reason "all rights, even those that don't textually acknowledge any exceptions, are not read to be entirely absolute by the courts", is because of the following...

In the state of Louisiana, article 1 sec. 11 is pretty clear. However, we have statutes beginning with 14:95.1 regulating that which the state has not been given power. Some of these usurpations, such as carry of a firearm in a licensed alcohol outlet have not been challenged. Other, clearly unconstitutional statues, have been challenged and have stood because of the type of "scrutiny" applied.

With this in mind, it appears to me that the courts are ignoring an obvious fact. The constitution is changeable(amendable) through proper procedure. If in fact it is to the benefit of the public to give the state authority to regulate arms in some way, then the only CONSTITUTIONAL way to do this is the amend the constitution. It's supposed to be a protective document and is intentionally made more difficult to amend(than to pass law) because if it is indeed a benefit to the public, then it is possible to get more than a simple majority approval. What we have now is a court sanctioned short cut to amending the constitution by statute and this erodes the protection of the constitutional republic.

Owen, as a member of the legal community, would you consider it a lost battle that the La. Constitution ever be held by the courts in the manner I described? If no, then it doesn't appear to me that amending it will do any good as the courts can change the meaning of the word "strict" the same way they changed the meaning of the word "abridged". When and how do we stop the ever increasing encroachment? Even more importantly, how do we reverse the existing encroachment? It seems to me that ACT874 is just further enabling of a broken system.

Pardon me if I seem naive, but I've lived long enough to see that our movement away from the protection of a constitutional republic is increasing with no end in sight.

 

[Owen Courreges]

With this in mind, it appears to me that the courts are ignoring an obvious fact. The constitution is changeable(amendable) through proper procedure. If in fact it is to the benefit of the public to give the state authority to regulate arms in some way, then the only CONSTITUTIONAL way to do this is the amend the constitution. It's supposed to be a protective document and is intentionally made more difficult to amend(than to pass law) because if it is indeed a benefit to the public, then it is possible to get more than a simple majority approval. What we have now is a court sanctioned short cut to amending the constitution by statute and this erodes the protection of the constitutional republic.

Owen, as a member of the legal community, would you consider it a lost battle that the La. Constitution ever be held by the courts in the manner I described? If no, then it doesn't appear to me that amending it will do any good as the courts can change the meaning of the word "strict" the same way they changed the meaning of the word "abridged". When and how do we stop the ever increasing encroachment? Even more importantly, how do we reverse the existing encroachment? It seems to me that ACT874 is just further enabling of a broken system.

Pardon me if I seem naive, but I've lived long enough to see that our movement away from the protection of a constitutional republic is increasing with no end in sight.

The issue is that local governments possess a general police power and that all rights are read to have exceptions in extreme instances. That's fundamental to our legal system and simply will not change. It's not necessarily a bad thing, either -- although I think the police power is often read too broadly and interferes with individual rights, I also understand that we don't want all laws to laid out in state and federal constitutions and certain issues of societal import should be decided by our representatives, as they always have been. And the courts should be able to acknowledged settled exceptions to established rights where the police power may intrude, like the notorious "fire in a crowded room" exception to freedom of speech.

I think the real problem is, as I suggest above, that the courts have let the police power run wild in some areas. However, these are typically areas where strict scrutiny is not being applied. And while our state courts could try and put their own spin on strict scrutiny, I think they will find it difficult to do so credibly because strict scrutiny is a doctrine created and defined by the US Supreme Court and, therefore, the public and our representatives accept that it has a prior meaning.

Nothing will be perfect, but this is a very good amendment, and probably the best that could have been drafted without inviting serious political opposition.

 

[georg jetson]

Thanks again for taking the time to respond.

The issue is that local governments possess a general police power and that all rights are read to have exceptions in extreme instances. That's fundamental to our legal system and simply will not change.

That has not always been the case... and it needs to change otherwise the government will continue to encroach without end.

It's not necessarily a bad thing, either -- although I think the police power is often read too broadly and interferes with individual rights, I also understand that we don't want all laws to laid out in state and federal constitutions and certain issues of societal import should be decided by our representatives, as they always have been. And the courts should be able to acknowledged settled exceptions to established rights where the police power may intrude, like the notorious "fire in a crowded room" exception to freedom of speech.

The reason the police power is often read too broadly is because we've allowed the idea that a constitution can be changed in ways other than it authorizes to permeate.

Also, to your point "that we don't want all laws to laid out in state and federal constitutions and certain issues of societal import should be decided by our representatives, as they always have been." This I agree with... However, the La. Constitution is the source of the State's power and this, also, was written by our representatives. It is a very clear document and, excepting the voluminous amendments adopted since, was very concise. It is most important to remember that the government derives it's just powers from the governed and when any branch of the government changes the document in a manner not authorized, it is unconstitutional. Indeed, just because our most esteemed justices seated on the LA. Supreme Court proclaim something constitutional does not make it so... it just makes the battle to reclaim justice that much harder.

We certainly don't want all laws laid out in a constitution, which is why the legislature is given power to legislate. However, they MUST legislate within the confines of their powers granted and if it's necessary to expand those powers, the representatives and the people must agree to the expansion by the terms laid out in the ruling document. Otherwise, by definition, those powers are usurped.

I think the real problem is, as I suggest above, that the courts have let the police power run wild in some areas. However, these are typically areas where strict scrutiny is not being applied. And while our state courts could try and put their own spin on strict scrutiny, I think they will find it difficult to do so credibly because strict scrutiny is a doctrine created and defined by the US Supreme Court and, therefore, the public and our representatives accept that it has a prior meaning.

I agree with your summation of the "real problem" but would add also that the professionals that occupy our court houses(judges and attorneys) have argued us out of our contract(the constitution). It's up to professionals like myself(not a judge or an attorney) to let you guys know that things have gone too far. That's why I get to vote when the government asks for more power.

Nothing will be perfect, but this is a very good amendment, and probably the best that could have been drafted without inviting serious political opposition.

I agree here as well with the caveat... let's try to pass a better amendment first and let this one be the back-up.

 

[Seigi]

This one is on the ballot a month from now, and a different amendment would take a over year. Why not try to pass this one and come back later? The existence of what most will consider a sufficient provision will lessen legislative enthusiasm, but so would knowledge that a smaller step had failed popular vote; which do you think would be more chilling? As I've said in the past, knocking out laws with this would shift people's perceptions of what is and is not acceptable, and they typically don't look deep into constitutional argument. How many people even realize that 1st amendment rights are considered subject to strict scrutiny? We've gotten a partial recognition of rights offered from a government institution with a history of disregarding them. It gives us a solid crack at most if not all of the gun laws in this state. You want to vote it down because they didn't back off from the notion that rights are subject to strict scrutiny? If someone who has owed you money for decades sends you a no-strings-attached check for less than full payment, but that nonetheless will rid you of most if not all of your current creditors, do you go after the rest without cashing it?

This is an enormously powerful litigation tool. Without it the State can argue that they rationally believed that their law would increase public safety, that public safety is a legitimate government interest, and then ask for deference to their legislative finding. And they may well get it. With this amendment, the State will get stuck with strict scrutiny, allege their compelling government interest, and then have to explain how their law actually aids that interest and why any less restrictive alternative (including a more narrow version of their law) pointed out by Plaintiff is insufficient. We all know how strong their facts aren't, and how poorly the hoplophobic legislators look on the record. This they should lose.

With the passage of this amendment die several gun restrictions. It'll take a while to get judicial recognition of the fact, but it will happen. This is the closest we have ever been to directly voting down gun statutes. Please, vote "Yes" and get everyone you know to do the same.

 

[Owen Courreges]

let's try to pass a better amendment first and let this one be the back-up.

I don't think I was very clear here. Although there may be a "better" amendment in the sense that it would have more extreme language, it would not be desirable because the only way I think this amendment could protect gun rights more would be to degenerate into some kind of rant against the judiciary. I would not support that amendment because it would be inappropriate (I don't want a gun rights amendment to address separation-of-powers, a more fundamental issue) and politically counterproductive. This amendment, as drafted, is pretty much the strongest language associated with any right in any state constitution ever. It is not deficient in any way as a gun rights amendment.

I do agree that judiciary has tended to eviscerate established rights while making up rights of its own, and it's a major problem. However, trying to deal with that issue in the context of a gun rights amendment (i.e., one specific right) just isn't proper. It's something that I believe we need to publicize, argue and get a greater social consensus on. However, what we need to do with gun rights is establish clear language and set forth a clear standard of review, which this amendment does. Anything "better" would start to sound like a manifesto.

 

[Monaco]

http://www.ktbs.com/news/New-Senate...ghts/-/144844/14237944/-/h15i5sz/-/index.html

BOSSIER CITY, La. - Senate Bill 303 was just passed by the House on Thursday.

If it makes it to the ballot in November, Louisianians will vote on whether to amend the state's constitution, possibly giving it the strongest gun ownership rights in the country. The bill, which was authored by Senator Neil Riser, will define the right to keep and bear arms as a fundamental right.

It also rids the constitution of language that allows the banning of concealed firearms. That will give you the right to carry a gun almost anywhere. Several local residents we spoke with are for the law.

I hope you don't mind but I reposted this word for word on southerngunforum.