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Constitutionality of Louisana's Act #874

Discussion in 'The Okie Corral' started by The Oracle, Nov 21, 2012.

  1. The Oracle

    The Oracle

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    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/streamdocument.asp?did=812575



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    Last edited: Nov 21, 2012
  2. goldenlight

    goldenlight

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    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.
     
    Last edited: Nov 21, 2012

  3. LoadToadBoss

    LoadToadBoss IYAAYWOT

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    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.
     
  4. +1.

    Will be really interesting to see what happens with this.
     
  5. Bren

    Bren NRA Life Member

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    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.
     
    Last edited: Nov 21, 2012
  6. series1811

    series1811 Enforcerator. CLM

    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.
     
  7. certifiedfunds

    certifiedfunds Tewwowist

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    Take it up with Napoleon.:supergrin:

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

    The Oracle

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    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


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  9. certifiedfunds

    certifiedfunds Tewwowist

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    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.
     
  10. certifiedfunds

    certifiedfunds Tewwowist

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    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?
     
  11. Dragoon44

    Dragoon44 Unfair Facist Lifetime Member

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    +1 how the State of Louisiana chooses to review it's own state laws has noting to do with Federal laws.
     
    Last edited: Nov 21, 2012
  12. certifiedfunds

    certifiedfunds Tewwowist

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    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.
     
  13. certifiedfunds

    certifiedfunds Tewwowist

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    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.
     
  14. Sam Spade

    Sam Spade Staff Member Lifetime Member

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    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.
     
  15. onebigelf

    onebigelf

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    "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
     
  16. jpa

    jpa CLM

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    How does one declare a constitutional amendment unconstitutional?
     
  17. The Oracle

    The Oracle

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    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.





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  18. NeverMore1701

    NeverMore1701 Fear no Evil Platinum Member

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

    Naelbis

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    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.
     
  20. certifiedfunds

    certifiedfunds Tewwowist

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    What is wrong with you? This has nothing to do with federal law.
     
    Last edited: Nov 30, 2012