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Mar 292017
 

Patrick Armstrong

Whenever I write about gun control, I like to start with this quote:

“Like most rights, the rights secured by the Second Amendment are not unlimited. From Blackstone through the 19th Century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. … Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws imposing conditions and qualifications on the commercial sale of arms.”

Right now, some of y’all are probably grinding your teeth, wondering what weak-knee, latte-sipping left-winger would dare write such a thing. Bet you’ll be surprised to find out the author was none other than Justice Antonin Scalia, one of the most influential Constitutional constructionists to sit on the United States Supreme Court in a generation. He wrote those words for the majority decision in District of Columbia vs. Heller, considered one of the landmark Supreme Court decisions on the Second Amendment.

“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”

Can’t get much clearer than that – even while every citizen has the right to own a gun, that right can be removed based on a citizen’s behavior. States can absolutely keep guns away from individuals convicted of felonies. Even the most conservative justices have found this to be true. It is on page 54 of the decision, for those of you who are now googling the case because you don’t believe it.

Does the law go any further? As a matter of fact, it does. Federal law states that a citizen’s Second Amendment right to bear arms can be revoked if they are convicted of misdemeanor domestic violence. Several states also have laws to this effect. Those laws have been challenged several times, the most recent in the 2015 Voisine Et Al vs. the United States case where the Supreme Court voted 6-2 to affirm that yes, domestic violence misdemeanors count, even if the individuals convicted were only acting recklessly and not intentionally.

In my personal opinion, this is good law. We hear an awful lot of overwrought emotional punditry about “good guys with guns.” I don’t believe the Venn diagram circle of “good guys” lines up too closely with the circle of “domestic violence convicts,” nor should it. Someone convicted of domestic violence shouldn’t whine that the law says they aren’t mature enough to own a firearm. If a jury in a court of law finds someone guilty of physical altercations with people they live in a home with, that someone should not own a gun.

They ought not bring the Constitution into the argument, either. This is Federal law that passed Congress and survived multiple challenges to a conservative Supreme Court. Let’s not pretend there’s any Second Amendment ground to stand on with this. If there was, this wouldn’t be the law.

But it is the law. More than that, it is also state law in Louisiana. Act 195 was signed into law in 2014 as legislation introduced by New Orleans area State Representative Helena Moreno and State Senator JP Morrell. Individuals convicted of domestic abuse battery lose their rights to possess firearms or carry concealed for 10 years, and if someone so convicted is found violating that law they can be charged with a felony. Additionally, judges have the power to demand individuals under a temporary restraining order surrender their firearms for the duration of the order.

The big question is: how are we doing keeping guns out of the hands of individuals who are not legally allowed to own or possess firearms? Are our own laws being enforced in Louisiana? Are they being enforced in New Orleans?

The simple eyeball test screams “Hell No.” New Orleans has one of the highest national murder rates per capita, and we read endless reports of how individuals convicted of murder had a prior domestic violence conviction on their record. They should not have been able to get a gun with that conviction on their record.

Related to those awful statistics, Louisiana is constantly in the top 5 states for domestic violence. The gun control advocates at the Violence Policy Center conducted research on the FBI’s Uniform Crime Reports and found that in 2014, of 51 women killed by men in Louisiana, 33 were killed by a partner in a current or former intimate relationship, and 21 of those victims were killed by guns.
(http://www.vpc.org/studies/wmmw2016.pdf)

The report does not include how many of those incidents involved individuals with a prior domestic violence conviction on their record which would have made it illegal for them to own or possess a firearm. I think if anyone looked at those statistics, the data would tell us one very critical fact about shootings and murders in New Orleans: if we kept guns out of the hands of domestic violence convicts, we could prevent shootings and murders. When I type that, it reads like common sense. Sometimes it is worth stating the obvious.

I got a chance to ask Representative Moreno about this when she spoke at the March meeting of the Mid-City Neighborhood Organization. My concern is that law enforcement could enforce this law more effectively, and that doing so could go a long way in counteracting our citywide spike in violent crime. She responded that she is investigating strategies that would make it more practical for local law enforcement to do so.

To follow up, I asked the same question at City Councilmember Susan Guidry’s District A Public Safety Townhall last week. NOPD Superintendent Michael Harrison responded that while NOPD can confiscate firearms at the scene of a domestic violence incident, they would need a search warrant and probable cause to seize a domestic violence convict’s firearms at any other time.

That sounds doable to me. We have a District Attorney in New Orleans and a State Attorney General in Baton Rouge who like to talk tough on law and order. Seems to me both individuals could make a point to get a task force working on this particular legal issue. Louisiana law says domestic violence convicts have to give up their guns. Laws like these have been ruled Constitutional by the Supreme Court of the United States of America. I absolutely believe NOPD is ready to take action that helps prevent violent crime instead of just pick up the pieces after another tragic night. All the pieces are in place for Louisiana to enact what Justice Scalia called longstanding prohibitions on the possession of firearms, and we start by enforcing our own laws.

Patrick Armstrong lives in Mid-City and has been a NOLA TrashMOB volunteer for 3 years. His views are his own and do not reflect official positions of any organizations or groups he is a part of. He posts inane musings on Twitter @panarmstrong.

  9 Responses to “Patrick Armstrong: Longstanding Prohibitions on the Possession of Firearms”

  1. We have many laws, local, state, and federal, that criminalize the possession of firearms by certain people in certain situations. All should be enforced to the max. Unfortunately, our politicians and our court system do not think illegal possession of a firearm is a serious crime, they prefer to dream of the day when no one can possess a firearm.

  2. Concur! It should be standard procedure to question people convicted of domestic violence regarding their possession of firearms, and a process to confiscate those weapons ASAP. And then, random searches should follow.

    Guns don’t kill people, but too often people who shouldn’t have guns use guns to kill people.

    Thanks for to Pat for writing about this, and to Mid City Messenger for publishing it.

    P.S. Isn’t it time to get a new photo?

  3. It isn’t as easy as you would like to go out and get a warrant like that. You also need to take into consideration the resources behind putting together these “task forces” and whether or not it is possible. I agree that criminals and domestic abuse suspects should not at all have guns. Even when they are confiscated there is a problem of the black market. If you were to collect all the registered guns out there you would still have a gun problem, because there are MANY of them out there illegally. While us law abiding citizens may go out a purchase them illegally, most criminals do not because they are… criminals.

    • LEGALLY**

    • I agree with your talking points:
      1. It’s hard to get search warrants.
      2. It takes time and money.
      3. Many guns are traded on the black market.

      So what do you conclude? Do you agree with my plan? What do you recommend to improve enforcement of gun laws?

    • I disagree. The United States Supreme Court has ruled (in a separate case) that states are within their rights to ask individuals on parole or probation to submit to searches of their persons, homes, or vehicles at any time until that probationary period expires. As a matter of fact, many probation agreements already require something like this. All the legal mechanisms are already in place to compel the surrender or seizure of firearms from domestic violence convicts.

      That surrender and seizure is not happening tells me the issue is one of political will, not of law. Our civic decision makers either do not realize the impact this could have in preventing violent crime, or they do not believe the voters will support them in enforcing state law.

      One of the reasons I asked these questions in public forum and wrote this column is to encourage more voters to express their support for firearms confiscation from domestic violence offenders. Maybe such support will get our political decision makers to engage with this issue.

  4. When you can go to a local in the area and “ask” them for a gun and get it within minutes, these plans are unsustainable. As a former firearms instructor, military member and concealed permit holder, it will remain as it always was. This is unfortunate. I believe myself that people need an equalizing force to maintain their safety; however, those who are not allowed to have firearms in any form or manner should not have a warrant system or due process in place, they have already forsaken that. NCIC checks for firearms should not only show the owner based on firearm identification numbers, but should also have a cross check to names of registered owners, but this opens a new lane for firearm confiscation. Just my .02 cents.

    • I was discussing this with a national expert in 2nd Amendment law at the Federal level this morning, and he suggested that Louisiana may not be reporting domestic violence misdemeanor convictions to the background check database. This is a problem in many jurisdictions across the country, because if local sheriffs and courts are not reporting domestic violence misdemeanor convictions to the FBI’s background check database, there’s no way the conviction would show up on any background check conducted by a FFL dealer or a responsible gun show seller. While doing so would not stop someone with such a conviction from purchasing a firearm illegally, accuracy in reporting is one of the low hanging fruit in keeping guns out of the hands of people who should not have them.

      So that will be the next question I ask our public decision makers, when I get the chance.

    • So, Tom, what actions do you recommend to get guns out of the hands of people who are legally forbidden to have them? You say you don’t like anything proposed here, I get that. Are you saying it’s hopeless and the status quo is all there is? Or is there a path to make things better? Would appreciate your input.

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