July | August 2017

The Right to Bear Arms and the Laws that Control It

By Mary Branham, CSG Managing Editor
Louisiana Rep. Chris Broadwater says he cares passionately about the rights established by the country’s founding fathers—those explicitly stated in the Constitution and the Bill of Rights.
“Any of those rights are so essential to the core of who we are as a country,” Broadwater said.
That’s one reason he sponsored Senate Bill 303 in the Louisiana House of Representatives in the 2012 legislative session. The bill removes language from the state constitution specifically allowing the state to regulate concealed weapons. That language, he said, was unnecessary and superfluous.
“The absence of that permissive language does not mean that permission is gone,” Broadwater said.
The National Rifle Association backed the legislation, and spokeswoman Stephanie Samford said the amendment, if voters approve in November, “will be the strongest right to keep and bear arms constitutional amendment in the country.”
The legislation also sets forth a “strict scrutiny” review of any laws that would infringe upon a person’s Second Amendment right to keep and bear arms. Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws, according to the Legal Information Institute at the Cornell University Law School.
Broadwater said the fact that the amendment includes the standard for review makes it clear the legislature has the right to regulate guns.
But raising the standard of review for such laws will make it much easier for the gun lobby to challenge any gun laws on the books, said Laura Cutiletta, senior staff attorney for the Legal Community Against Violence, a California-based public interest law center dedicated to preventing gun violence.
“In Louisiana, the legislature has handed (the gun lobby) basically a free pass by making it much easier to prevail in court,” Cutiletta said. “It’s a very, very high standard of judicial review that no other state requires for gun legislation. Every state that has a right to bear arms evaluates the laws under that provision with something lower than strict scrutiny.”
Even the U.S. Supreme Court, she said, has issued rulings that did not require strict scrutiny to evaluate firearms laws.
But Broadwater believes current Louisiana law will stand.
“The statutes we have on the books are drafted very well and I’m not concerned about them being undone by this proposed constitutional amendment,” he said.
The Louisiana legislation was one of many different gun laws considered and passed during the recent legislative sessions around the country.

Claiming Self-Defense

The Trayvon Martin case in Florida brought attention to self-defense laws around the country. Several states—including Michigan, Mississippi, North Carolina and South Carolina—considered legislation to repeal so-called “Stand Your Ground” laws, Cutiletta said. Such laws expand a person’s right to use deadly force for self-defense, and 26 states have them.
Texas is one of those states. The legislature wasn’t in session this year, but Rep. Garnet Coleman already has plans to file legislation to repeal that law next year. He believes it goes far beyond the common law on self-defense.
“The language is subjective,” he said. “It expands the idea of protecting one’s home and family to anywhere. It means something that was a narrow case of use of force has now become a license to shoot first and ask questions later.”
A Texas A&M study released in May found “Stand Your Ground” or “Castle Doctrine” laws increased total homicide rates in the 23 states that had adopted them by 2009.
“The additional homicides induced by castle doctrine could be due to victims practicing self-defense under the terms of the new law, an increased propensity by criminals to use lethal force when committing crimes or encountering resistance, the escalation of other conflicts, or some combination of the above,” the study’s authors—Cheng Cheng and Mark Hoekstra—wrote.
“That is what the change in the law actually does,” Coleman said. “It doesn’t protect people; it causes death.”
Massachusetts, Nebraska and Virginia considered “Stand Your Ground” laws this session, according to the NRA website.
Samford, the NRA spokeswoman, said these laws ensure “the law-abiding gun owners have legislation in their favor.
“The NRA’s overall goal is to make sure that we protect the right to keep and bear arms and defend the Second Amendment,” she said.
Meanwhile, the Indiana legislature added a new dimension to the self-defense aspect of gun laws. Senate Bill 1 addresses a May 2011 state Supreme Court decision that individuals could not use force against law enforcement officers, even if the officers are acting unlawfully, said Rep. Jud McMillin, who sponsored the bill in the Indiana House.
“What gave rise to this was a groundswell of voices of opposition from constituents saying, ‘We don’t want to be able to resist police officers or assault them when they’re acting lawfully; we shouldn’t,’” McMillin said. “But we also don’t think law enforcement officers should be given a law that says no matter what you’re doing, people can’t use force against you.”
McMillin said the bill was about maintaining the appropriate balance between government and individual rights.
“Our system of government is set up to protect individuals from the government, not the government from individuals,” he said. “While our government does have the authority to do a lot of things, we have to make sure that we don’t give more than is required to do their job.”
Cutiletta, with the Legal Community Against Violence, said a law such as this can bring with it a lot of unintended consequences.
“If a public official is entering your home and you believe it’s an unlawful entry, you can now use force against that person,” she said.
The new law could have a chilling effect on law enforcement handling of particularly volatile cases, such as domestic violence, she said. Indiana is the first state that specifically allows force against officers, according to the Association of Prosecuting Attorneys in Washington, which represents prosecutors.

Concealed Carry

Policymakers also considered legislation that would have expanded the rights of people to carry concealed weapons. Forty-nine states permit residents to carry a concealed weapon in some form; only Illinois and the District of Columbia have no concealed carry allowances, according to the NRA website.
Minnesota legislators approved a bill to allow reciprocity for people with concealed weapons permits from other states to carry a concealed weapon in Minnesota. Gov. Mark Dayton vetoed that legislation.
In South Dakota, legislators approved legislation that would have allowed any resident over 18 with a valid state driver’s license to carry a concealed weapon, even without a permit. Gov. Dennis Daugaard vetoed that legislation, House Bill 1248, saying the state’s permitting laws are already “fair and reasonable.”