Thursday, July 19, 2012

ARTICLE 874--GOOD FOR LA GUN OWNERS


There has been much talk in the Louisiana firearms community over a proposed constitutional amendment known as Article 874.  This amendment will change current constitutional wording pertaining to gun ownership, and the legal vernacular has confused many people, giving rise to fear our much admired gun freedoms would be hindered, or limited some way.


This is a letter I received from Dan Zelenka, a New Orleans attorney and president of the Louisiana Shooting Association. The LSA (www.louisianashooting.com) is the de facto state rifle and pistol association for the state of Louisiana. 

The LSA actively supports and defends our firearms rights in the legislature through lobbying and actionable calls to their members.

I think Dan does a better job here than I have seen anywhere in discussing and explaining this proposed legislation.  It (the proposed amendment) has caused much discussion in the firearms community--the most common complaint being couched in the general terms of worrying that "if it ain't broke, don't fix it."  

Many folks have discussed how this proposed amendment might be used to change and limit our rights to concealed carry.

I think Dan explains here how easily it (meaning our concealed carry rights) could be "broken"--and this proposed legislation defends that right.

I plan to vote in favor of Article 874 in November.  I hope you will also do so.

To: Members of the Louisiana Shooting Association
From:  Dan Zelenka, President

Several uninformed "authorities" have recently released false information about the upcoming ACT 874 that will be on the Louisiana ballot in November.

Under our current Louisiana constitution, the legislature is not supposed to pass any laws abridging our right to keep and bear arms unless the law involves concealed carry. Note that they can pass any restriction on concealed carry that strikes their fancy, even an outright ban. That in itself should cause you to support Act 874. The legislature, however, on any number of occasions has refused to believe that constitutional limits apply to its power. Laws that restrict our gun rights do get passed.

Enter the Louisiana judicial system, the branch of government that is supposed to protect us poor citizens from the legislature when it oversteps its constitutional authority. Unfortunately, the Louisiana Supreme Court has ruled that a law that infringes on your right to keep and bear arms is constitutional if it passes the "rational basis" test. Under the rational basis test, the court asks itself whether the legislature had a rational basis for passing the law in question. If the court can discern any rational basis for the law, it will declare the law to be constitutional. This is the current state of Louisiana law under the existing Article I, Section 11 of its constitution.

The 1974 Constitution currently reads:
§11. Right to Keep and Bear Arms
Section 11. The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.

Act 874, should it pass in November, provides NO carte blanche authority for the legislature to restrict concealed carry.

If the new amendment is passed, the Constitution will read:
§11. Right to Keep and Bear Arms
Section 11. 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.

It also states, in very clear language, the standard of review that must be applied by a Louisiana court. "Strict scrutiny" review requires that the court either find a compelling state interest for the law or declare it unconstitutional. Finding a compelling state interest is a much higher threshold than merely needing a rational basis. Further, under strict scrutiny, the restriction must be tailored narrowly to only restrict the targeted behavior, while protecting the rights of those not targeted.

To put it another way, under rational basis, the presumption is that a restriction is valid unless there is no way to support it. In stark contrast, under strict scrutiny, the presumption is that a restriction is invalid unless there is no way to avoid it. This is a HUGE difference.

Act 874 is very good for gun owners. Several key Louisianians have done us a great disservice by making ignorant statements about this potential improvement to our constitution. In some cases, the statements are made in ignorance. To believe otherwise would be to believe they are an anti-gun activist attempting to trick gun owners into voting against a significant pro-gun amendment.

The Ballot on Nov 6th will read:
“Do you support an amendment to the Constitution of the State of Louisiana to provide that the right to keep and bear arms is a fundamental right and any restriction of that right requires the highest standard of review by a court?” “(Amends Article I, Section 11)”

Hopefully we have enlightened our members and ask everyone to support Act 874 on November 6, 2012.

Please VOTE YES on November 6 and urge others to do the same!

Daniel E. Zelenka, II
President, The Louisiana Shooting Association, Inc.
Attorney-at-Law









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