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-   -   Constitutionality of Louisana's Act #874 (http://glocktalk.com/forums/showthread.php?t=1454168)

The Oracle 11-21-2012 04:06

Constitutionality of Louisana's Act #874
 
I am in favor of Strict Scrutiny for judicial review of laws which restrict the Right to Keep and Bear Arms.

...but I am highly dubious (to say the least) of Louisiana's legal authority (of which they have none) to declare Strict Scrutiny (in any meaningful way) to be the level of judicial review to be applied for laws restricting the right to keep and bear arms, as they have just done with the passage of 874.

Especially since, after many chances, the Supreme Court has repeatedly declined to use Strict Scrutiny to gauge the Constitutionality of laws restricting gun rights.


I envision a challenge to the new law, with the State of Louisiana named as defendant something along the lines of;

Plaintiff's claim on appeal in Federal Court, ..."we tried to get/got law-X passed, whose burdens on gun ownership are slight, and it failed solely because the Louisiana supreme court, following 874, shot down our proposed law restricting gun rights, ...which would have passed any level of review but Strict Scrutiny (e.g. Rational Basis, Intermediate Scrutiny).


IMHO, Federal District or eventual Supreme Court Ruling: ...874 (and any chance of a federal analog) invalidated due to being an overly restrictive level of review.


With states in their role as laboratories of democracy, I see a small chance of potential influence toward other states and possibly the Fed coming from Louisiana's 874, I just don't think it will withstand Federal Constitutional muster in regards to its declaration of Strict Scrutiny being the level of judicial review to be applied.



What do you think?




link to Act #874

http://legis.la.gov/billdata/streamd...asp?did=812575



.

goldenlight 11-21-2012 05:00

I think I don't live in Louisiana, so it doesn't matter.

Now, back away from the computer, and go for a walk.

You are wound up WAY too tight.

LoadToadBoss 11-21-2012 05:43

The act created a Louisiana constitutional amendment. The voters approved the amendment by a 3 to 4 majority. Strict scrutiny is the constitutional standard for the right to keep an bear arms. The Louisiana Supreme Court cannot declare a constitutional amendment unconstitutional because it is now a part of the constitutional. All state and local gun laws must now pass the strict scrutiny test to remain constitutionally valid.

ditto1958 11-21-2012 06:08

Quote:

Originally Posted by LoadToadBoss (Post 19654092)
The act created a Louisiana constitutional amendment. The voters approved the amendment by a 3 to 4 majority. Strict scrutiny is the constitutional standard for the right to keep an bear arms. The Louisiana Supreme Court cannot declare a constitutional amendment unconstitutional because it is now a part of the constitutional. All state and local gun laws must now pass the strict scrutiny test to remain constitutionally valid.

+1.

Will be really interesting to see what happens with this.

Bren 11-21-2012 06:10

Not constitutional - separation of powers makes that the courts' call. However, at a state level, it would depend on what the La. constitution says and whether the issue can move on to a federal court. Their legal system is different from the other 49 states.

series1811 11-21-2012 06:21

Quote:

Originally Posted by Bren (Post 19654151)
Not constitutional - separation of powers makes that the courts' call. However, at a state level, it would depend on what the La. constitution says and whether the issue can move on to a federal court. Their legal system is different from the other 49 states.

We used to call it Frog Law when I worked there.

Ten out of twelve gets you a guilty verdict there, life in prison for selling any amount of heroin, seventeen years old is an adult for crimes, and no indictments for anything less than a capital crime, for instance, to see how different the Code Napoleon can be from English Common Law.

certifiedfunds 11-21-2012 07:05

Quote:

Originally Posted by series1811 (Post 19654173)
We used to call it Frog Law when I worked there.

Take it up with Napoleon.:supergrin:

To the OP - no, I see no such worries. We amended the state constitution. End of story.

The Oracle 11-21-2012 12:07

Quote:

Originally Posted by certifiedfunds (Post 19654259)
Take it up with Napoleon.:supergrin:

To the OP - no, I see no such worries. We amended the state constitution. End of story.



Really?


...and Colorado/Washington legalized marijuana, is that the end of the story?


Or does/will the Federal government have a say in the matter.


Quite obviously, state sovereignty on legislative issues is not absolute. Federal law/ Federal court decisions trump state laws/court decisions. Furthermore, the federal government is not going to remain silent on either the issue of legal pot or 874.


Like I said, I am in favor of Strict Scrutiny for laws restricting the right to keep and bear arms. However, 874 applies only to Louisiana, and only until it is IMHO deemed to be overly restrictive.


When thinking about this objectively, it is impossible to ignore the implications of the fact that after many chances in many different cases/fact patterns, the Supreme Court has repeatedly declined to declare Strict Scrutiny to be the applicable standard of judicial review for laws restricting the Right to Keep and Bear Arms.


IMHO Strict Scrutiny will not be the applicable standard until the Supreme Court issues an opinion saying so. Given the Court's record directly on point in numerous opinions, and the current political climate, that is less likely than a Federal law legalizing marijuana.




...thanks for the replies


.

certifiedfunds 11-21-2012 12:18

Quote:

Originally Posted by The Oracle (Post 19655111)
Really?


...and Colorado/Washington legalized marijuana, is that the end of the story?


Or does/will the Federal government have a say in the matter.


Quite obviously, state sovereignty on legislative issues is not absolute. Federal law/ Federal court decisions trump state laws/court decisions. Furthermore, the federal government is not going to remain silent on either the issue of legal pot or 874.


Like I said, I am in favor of Strict Scrutiny for laws restricting the right to keep and bear arms. However, 874 applies only to Louisiana, and only until it is IMHO deemed to be overly restrictive.


When thinking about this objectively, it is impossible to ignore the implications of the fact that after many chances in many different cases/fact patterns, the Supreme Court has repeatedly declined to declare Strict Scrutiny to be the applicable standard of judicial review for laws restricting the Right to Keep and Bear Arms.


IMHO Strict Scrutiny will not be the applicable standard until the Supreme Court issues an opinion saying so. Given the Court's record directly on point in numerous opinions, and the current political climate, that is less likely than a Federal law legalizing marijuana.




...thanks for the replies


.


Yes. Really. This has to do with la laws. No bearing on fed laws. Does nothing to usurp fed law.

It's is a restraint on la legislature. Your muddying it up.

certifiedfunds 11-21-2012 12:19

If legislature wants to prohibit carry on campus on in church or whatever it has to apply strict scrutiny vs simply passing a statute.

Follow?

Dragoon44 11-21-2012 12:25

Quote:

If legislature wants to prohibit carry on campus on in church or whatever it has to apply strict scrutiny vs simply passing a statute.
+1 how the State of Louisiana chooses to review it's own state laws has noting to do with Federal laws.

certifiedfunds 11-21-2012 12:28

If there was a federal ban on college campus carry and la legislature made it legal there would be a Colorado weed comparison. That isn't the situation here.

This simply restricts the state from infringing on the 2A.

certifiedfunds 11-21-2012 12:31

It was a huge victory for US. The people amended it. We spoke. It has nothing to do with you folks.

You may recall that NOLA politicians have tried several times to get a la assault weapons ban. Now they can suck it.

Sam Spade 11-21-2012 15:10

The people of LA get to run their issues as they please. This has nothing to do with federal installations or interstate issues, so SCOTUS not having applied the same standard is irrelevant.

As an analogy: SCOTUS has said that there is no bright line for what makes a reasonable amount of time in an investigative detention. Some states (NV as an example) have statutory time limits for how long you can be detained. Totally appropriate.

onebigelf 11-21-2012 15:31

"Laboratory of Democracy"

No way. We are supposed to be a constitutional republic. I'm sick and tired of them first calling us a democracy, and then acting like we're a democracy. I'm sick of dictatorship of the masses, sold on anything the media wants to feed them. We're going to come to shooting sooner rather than later.

Kennedy will retire in just a few months and O-asshat will appoint a 3rd marxist, activist supreme court justice. The Republicans will roll over and raise their butts in the air and we'll be stuck with a liberal court for the next 20 years. Well, guess what. Just because a small panel of judges decide something doesn't mean they're right and doesn't mean they can take away MY rights.

John

jpa 11-21-2012 15:37

Quote:

Originally Posted by Bren (Post 19654151)
Not constitutional - separation of powers makes that the courts' call. However, at a state level, it would depend on what the La. constitution says and whether the issue can move on to a federal court. Their legal system is different from the other 49 states.

How does one declare a constitutional amendment unconstitutional?

The Oracle 11-29-2012 21:32

No disrespect intended, but I did not respond to this thread again because every one of the responses was so far off the mark in terms of exhibiting an understanding of any of the following crucial issues that I felt there was nothing to be gained by further discussion;


1. The history of judicial review, specifically related to levels of scrutiny accorded to Second Amendment issues.

2. The nature of the Supremacy Clause as it relates to Federal power and state sovereignty.

3. The spheres of power given to Federal and state governments, and the likelihood that a state law/constitution which prevents/interferes with a Federal objective will be struck down.

4. The specific political philosophies underpinning the Supreme Court's repeated decisions to NOT use strict scrutiny as the standard of review related directly to a deference to legislatures, (both state and federal) to formulate reasonable gun laws, and this deference is also accorded to maintain a balance of power between the 3 branches of government (whether state or Fed).

5. The significance of the Heller (also see McDonald) decision as it relates to declaring an individual right to keep and bear arms an Individual, and FUNDAMENTAL Right, ....and still deciding NOT to use strict scrutiny as the standard of review for this particular Fundamental Right.





.

NeverMore1701 11-29-2012 22:08

Lets see, is there stupid in this thread? Yep, looks like.

Naelbis 11-29-2012 22:28

Considering that this is a STATE amendment to the STATE Constitution that only affects the STATE courts I fail to see why the Federal courts would give a crap. It has no bearing on Federal courts or Federal laws whatsoever. It is simply the people of LA telling their state court system how they will proceed on a certain issue, nothing more. And good for Louisiana I say, wish the other states would follow suit.

certifiedfunds 11-30-2012 02:38

Quote:

Originally Posted by The Oracle (Post 19683649)
No disrespect intended, but I did not respond to this thread again because every one of the responses was so far off the mark in terms of exhibiting an understanding of any of the following crucial issues that I felt there was nothing to be gained by further discussion;


1. The history of judicial review, specifically related to levels of scrutiny accorded to Second Amendment issues.

2. The nature of the Supremacy Clause as it relates to Federal power and state sovereignty.

3. The spheres of power given to Federal and state governments, and the likelihood that a state law/constitution which prevents/interferes with a Federal objective will be struck down.

4. The specific political philosophies underpinning the Supreme Court's repeated decisions to NOT use strict scrutiny as the standard of review related directly to a deference to legislatures, (both state and federal) to formulate reasonable gun laws, and this deference is also accorded to maintain a balance of power between the 3 branches of government (whether state or Fed).

5. The significance of the Heller (also see McDonald) decision as it relates to declaring an individual right to keep and bear arms an Individual, and FUNDAMENTAL Right, ....and still deciding NOT to use strict scrutiny as the standard of review for this particular Fundamental Right.





.

What is wrong with you? This has nothing to do with federal law.

NeverMore1701 11-30-2012 02:58

Quote:

Originally Posted by certifiedfunds (Post 19684102)
What is wrong with you?

Quote:

Originally Posted by NeverMore1701 (Post 19683760)
Lets see, is there stupid in this thread? Yep, looks like.

:dunno:

certifiedfunds 11-30-2012 03:05

Quote:

Originally Posted by NeverMore1701 (Post 19684112)
:dunno:

bizarre

LoadToadBoss 11-30-2012 06:21

Quote:

Originally Posted by Naelbis (Post 19683808)
Considering that this is a STATE amendment to the STATE Constitution that only affects the STATE courts I fail to see why the Federal courts would give a crap. It has no bearing on Federal courts or Federal laws whatsoever. It is simply the people of LA telling their state court system how they will proceed on a certain issue, nothing more. And good for Louisiana I say, wish the other states would follow suit.

That's nails it. The Louisiana Supreme Court decided to apply the lowest judicial review standard regarding state/local gun ordinances. Now the people through the constitutional amendment process have told the courts what their powers are vis-a-vis judicial review standards and gun restrictions. The people have the right to decide how they chose to govern themselves.

When courts decide what they "think" their role is and that role conflicts with what the people desire their role to be, the people have the right to correct the court through the constitutional amendment process. With regard to the SCOTUS, in the 1803 Marbury v. Madison decision the SCOTUS gave itself the right to interpret what the US Constitution means by what it says. There is nothing in Article III that gives the court this power, but they gave it to themselves anyway and there was nothing Congress could (or would do) to correct that improper decision.

Because of this interpretive power, the courts have become political instruments. That's why people are concerned about who gets elected to the presidency because the President appoints the SCOTUS justices. Presidents seek to appoint justices that match their judicial philosophy. The constitution no longer become the law of the land, but what the court "thinks" the constitution means.

Think about the Obamacare decision of this past summer. The constitutionality of the punitive taxing power of Congress pivoted on one vote. There's nothing the people can do short of a constitutional amendment clarifying the Congress shall make no law that punishes people for failure to engage in acts of commerce.

series1811 11-30-2012 08:29

Quote:

Originally Posted by The Oracle (Post 19655111)
Really?


...and Colorado/Washington legalized marijuana, is that the end of the story?


Or does/will the Federal government have a say in the matter.


.

For one, Colorado and Washington didn't legalize marijuana, the decriminialized it under state law (to a certain extent).

No, the federal government doesn't have a say in that. Any more than Colorado or Washington have a say in what the federal laws regarding marijuana will be.


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