In response to the above two posters, I respectfully disagree and here's why:
The proposed amendment reads: “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.”
Critics have claimed 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).
The proposed amendment 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, critics object 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).
Critics claim that under the current provision, NO restrictions are allowed other than on concealed weapons. They seem oblivious to the fact that Louisiana law bans the possession of firearms at schools, churches, police stations, and other places, subject to certain exceptions. They simply ignore 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 critics claim, “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 critics assert. Why else would anti-gun courts reject application of strict scrutiny?
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