Louisiana, Guns And Strict Scrutiny

BY Herschel Smith
3 years, 10 months ago

Louisiana may be about to become the most second-amendment friendly state in the country.

It is all about the Second Amendment to the U.S. Constitution, in the fight over Amendment No. 2 to the state constitution.

“Amendment No. 2 is a simple amendment. It’s just two lines,” said George Peterson of American Freedom and Supply in Jefferson Parish.

In its two sentences, Amendment No. 2 calls the right to bear arms “fundamental” and adds that any restrictions on that right would be subject to “strict scrutiny.”

Those two words could have a major legal impact.

“It would not only prevent the legislature from enacting new gun laws that would be for the public’s protection, it could also potentially be used to strike down laws, for example, that don’t allow people to bring guns on college campuses, or into grocery stores or bars or churches,” said Eyewitness News Political Analyst Clancy DuBos.

That means more than 80 current gun laws could be more easily challenged in court. The Bureau of Governmental Research opposes the amendment, calling it “alarming” and a public safety issue.

“Louisiana has the third highest death by firearms in the United States. New Orleans has one of the highest murder rates,” said BGR President Janet Howard. “There is just no good reason, as far as we can see, to create uncertainty in this area and make it more difficult to regulate guns than it currently is.”

Supporters, though, said “strict scrutiny” is all about common sense.

“A legislator from some parish or whatever wants to make something that’s non-sensical — like banning assault weapons or sales in a certain parish — you’d have to be under strict scrutiny to see if that’s actually reasonable,” Peterson said.

It is a scrutiny that will now fall on voters, as they decide on Nov. 6th, whether or not the proposal is reasonable.

A lawyer would have a better chance of a clear explanation of this than would I, but here it goes anyway.

There is the rational basis test, intermediate scrutiny, and strict scrutiny.  On the rational basis test, it is important whether a governmental action is a reasonable means to an end that may be legitimately pursued by the government.  It may not even matter whether there is an actual interest at stake.  If a court can hypothesize a legitimate interest, then the challenge fails.

Under intermediate scrutiny, it is important whether a law or policy being challenged furthers an important government interest in a way that is substantially related to that interest.  Under strict scrutiny, there must be a compelling governmental interest as a basis for the law, the law must be narrowly tailored to achieved that interest, and if there is a less restrictive means of achieving that interest, the challenge succeeds.

This would be an important amendment.  Many states grant deference to local governments in the application of more restrictive laws.  One such example would be the changes made to my own state of North Carolina early in 2012.  Carry of weapons in state and local parks is now legal (and the Castle doctrine is adopted state-wide), but there are municipalities and cities that have chosen more restrictive regulations for their area.

Thus, carrying a weapon like I do, I have been in communication with the head of the parks and recreation division for Mecklenburg County to track what changes have been made and whether signage will be revised to recognize the legitimacy of carrying a weapon – concealed or openly – in the parks and public walkways near where I live.

Louisiana doesn’t have to worry with that, as long as the people pass the amendment to the state constitution.  The right to bear arms will be recognized as fundamental, strict scrutiny will apply, and many local regulations will be struck down.  They are about to become the most gun-friendly state in the nation.  Even if you don’t live in Louisiana, it’s important to celebrate victories.



  • PatriotUSA

    Indeed, and this law should be a model for ALL states, period. Where I live the liberals and progressives over on the Left side of the Cascades want to do everything they can to strip our rights away even though they act like they ‘support’ gun rights.

    Straightforward and simple is this yet with long teeth and claws.

    Makes sense to me and fine, way to go Louisiana!

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  • Jay Harrberson

    As an attorney who defends juveniles charged with delinquencies, I look forward to being able to challenge the laws which restrict the freedom of my clients to carry firearms.

  • http://www.captainsjournal.com/ Herschel Smith

    Juveniles cannot own firearms. Instead, they try to prove the wrong point by making ignorant comments on blogs like this one.


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This article is filed under the category(s) Firearms,Guns,Second Amendment and was published October 18th, 2012 by Herschel Smith.

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