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Posted: 3/27/2006 10:05:27 AM EDT
[Last Edit: 3/27/2006 12:19:15 PM EDT by CavalryJim]
Louisiana is a relatively gun friendly state but we could do more to protect our right to self defense. Recently, I noticed a sign at my local BREC (Baton Rouge) park with rules stating “Drugs, alcoholic beverages and firearms are NOT allowed.”

With minimal research, I found a city ordinance (13:1011) stating “It shall be unlawful for any person to have in his possession a firearm…on property owned or operated by the recreation and parks commission.” While Louisiana has a state level firearm preemption law, it only applies to local ordinances passed after 1985 and I’m guessing the Baton Rouge ordinance was enacted before 1985. However, Louisiana state constitution (article 1, sec 11) states “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.”

Given the above laws, it seems to me that the city ordinance prohibiting guns at parks can only apply to prohibiting concealed carry at city parks…making open carry at parks legal.

The Virginia Citizens Defense League www.vcdl.org has been very successful at addressing state and local firearm laws to the extent of having “firearms prohibited” signs removed from public beaches, city halls, etc. I admire the proactive nature of the VCDL and would be interested in setting up a similar group here in Louisiana. Anybody else interested in starting a LCDL?

Input from lawyers familiar with Louisiana firearm laws would be appreciated.
Link Posted: 3/27/2006 10:35:11 AM EDT
Sounds like a noble cause.

I would like to see a little more about this specific ordinance and what it does and does not include. Maybe it dealing with the firing of firearms at targets, since some BREC parks have archery ranges etc.

Anything that takes from my right to bear arms, I am against.

Good thought, Jim.
Link Posted: 3/27/2006 10:50:04 AM EDT
[Last Edit: 3/27/2006 10:51:22 AM EDT by CavalryJim]
For completeness, here are my references:

Baton Rouge city ordinances
Sec. 13:1011. Possession of firearms at BREC parks.
municode.com/Resources/gateway.asp?pid=10107&sid=18

BREC park rules
Drugs, alcoholic beverages and firearms are NOT allowed
www.brec.org/index.cfm?md=pagebuilder&tmp=home&cpid=555

State firearms laws
www.packing.org/state/louisiana/

State Police CCW site
www.lsp.org/handguns

Preeemption law RS 40:1796
www.legis.state.la.us/lss/lss.asp?doc=97860


Link Posted: 3/27/2006 12:52:03 PM EDT
Just for reference, that is part of the state's Drug/Firearm free zones. Parks, school's, and church's are all covered under it.
Link Posted: 3/27/2006 1:11:14 PM EDT

Originally Posted By TheMaddMan:
Just for reference, that is part of the state's Drug/Firearm free zones. Parks, school's, and church's are all covered under it.



Madd Man,

Could you post references to the underlying laws?
Link Posted: 3/27/2006 1:16:58 PM EDT
You might find some more ordinances and state laws in your CCW handbook if you still have it.
Link Posted: 3/27/2006 10:59:22 PM EDT
tag
Link Posted: 3/28/2006 5:19:22 AM EDT
I am just going to tag this for now. I am going to have Katie look into these ordinances, but I am pretty sure that TheMaddMan is correct on the inclusiveness with schools etc. It seems that Katie and I ran across that while researching carrying on LSU campus during non-operating hours.

Jim - Katie and I have both talked about starting something like you are talking about. We determined that we just can do it right now with school (her), work and starting to build a house. The only other obstacle that we could really thing of is our age (Me-25, Her-24), which may or may not turn out to be an obstacle. While, as I previously stated, we don't have the time to run something like that, we would sure as hell participate! I have a good number of people that I could bring aboard for state-wide issues, but my resources in BR are somewhat limited at the moment due to my relative newness here (5 years).

I'll have Katie look at these specific ordinances tonight and we'll get back to ya.

Brian
Link Posted: 3/28/2006 7:59:54 AM EDT
[Last Edit: 3/28/2006 8:06:59 AM EDT by CavalryJim]
Brian & Katie - thanks for looking at the ordinances.

Per the state constitution(article 1, sec 11), only concealed carry can be regulated. That would make open carry legal anywhere not prohibited by federal law (airport terminals, schools k-12, etc.). Since the state can only regulate concealed carry, it should be legal to open carry at public universities...of course, I'm not ready to test that hypothesis.

What we really need is a tenured, gun-toting, law professor to take up the cause. Know any of those?
Link Posted: 3/28/2006 9:45:25 AM EDT
All LA firearms law are covered under La. statue 14:95 including Fire Arm Free Zones. Specifically that is covered under 14:95.6

Firearm-free zone; notice, signs, crime; penelties

A. A "firearm-free zone" is an area inclusive of any school campus and within one thousand feet of any such school campus and within a school bus.

This is from a 1993 copy of the state statues. Since this printing the parks were added and I believe churches were also.

There are exceptions to this as well as definitions for terms used and penalities.
Link Posted: 3/28/2006 10:31:49 AM EDT

Originally Posted By TheMaddMan:
All LA firearms law are covered under La. statue 14:95 including Fire Arm Free Zones. Specifically that is covered under 14:95.6

Firearm-free zone; notice, signs, crime; penelties

A. A "firearm-free zone" is an area inclusive of any school campus and within one thousand feet of any such school campus and within a school bus.

This is from a 1993 copy of the state statues. Since this printing the parks were added and I believe churches were also.

There are exceptions to this as well as definitions for terms used and penalities.



I agree to what constitutes a "firearm-free" zone but my point is that Louisiana state (and local) laws can only apply to concealed carry.

The Louisiana state constitution Article 1 sec. 11 only allows for the passage of laws to prohibit the carrying of weapons concealed on the person.


Reading RS 14:95 in its entirety you will find:
A. Illegal carrying of weapons is:
(1) The intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one's person

In theory, we should be able to open carry anywhere in the state not prohibited by federal law. Like I said earlier, I'm not ready to test this hypothesis yet. What would be nice is some type of definitive legal opinion from the state AG or state supreme court.

Does anybody know the story behind this.
Cliff notes: Mark Marchiafava open carries in Gonzales, gets arrested, DA dismisses the charges because he hasn't broken any laws.


Link Posted: 3/28/2006 12:32:54 PM EDT
I understand, however no where in this law does it state concealed or open. This was intended so that NO firearms are carried these zones. Not saying that this is right, but that is what that statue states. And like the rest of the statue states, there are exceptions. Armed security and such. If the state constition is different, it'll have to be determined in court when someone gets convicted I would think. I think this to some extend an attempt to regulate firearms used under the guise of protecting kids.
Link Posted: 3/28/2006 1:02:42 PM EDT
Jim - you might want to check and make sure that the firearm free zone thing isn't a fedral law as well. I think it is. I realize that this makes the state law redundant, but that isn't out of the ordinary.

Sorry to be so short, but I'll have more on this tonight.

Brian
Link Posted: 3/28/2006 5:56:12 PM EDT
[Last Edit: 3/29/2006 8:44:47 AM EDT by CavalryJim]

Originally Posted By Brians_45:
Jim - you might want to check and make sure that the firearm free zone thing isn't a fedral law as well. I think it is. I realize that this makes the state law redundant, but that isn't out of the ordinary.

Sorry to be so short, but I'll have more on this tonight.

Brian



Yes, there is a federal "firearms free zone" law. It was originally enacted in 1990, overturned by the SCOTUS in 1995, then modified and renacted by Congress in 1996.

After modification, the federal law applies to schools K-12 and the firearm must have been moved in interstate or foreign commerce.

Here is a copy of the actual law.
www.gunlaws.com/Gun_Free_School_Zones_Act.pdf
Link Posted: 3/29/2006 3:09:53 PM EDT
www.lsp.org/handguns.html#faqs

Prohibited Locations
R.S. 40:1379.3 (N) states that no concealed handgun may be carried into and no concealed handgun permit issued pursuant to this Section shall authorize or entitle a permittee to carry a concealed handgun in any of the following:

1) A law enforcement office, station, or building;
2) A detention facility, prison, or jail;
3) A courthouse or courtroom, provided that a judge may carry such a weapon in his own courtroom;
4) A polling place;
5) A meeting place of the governing authority of a political subdivision;
6) The state capitol building;
7) Any portion of an airport facility where the carrying of firearms is prohibited under federal law, except that no person shall be prohibited from carrying any legal firearm into the terminal, if the firearm is encased for shipment, for the purpose of checking such firearm as lawful baggage;
8) Any church, synagogue, mosque or similar place of worship;
9) A parade or demonstration for which a permit is issued by a governmental entity;
10) Any portion of the permitted area of an establishment that has been granted a Class A-General retail permit, as defined in Part II of Chapter 1 or Part II of Chapter 2 of Title 26 of the Louisiana Revised Statutes of 1950, to sell alcoholic beverages for consumption on the premises.
11) Any school "firearm free zone" as defined in R.S. 14:95.6.


The provisions of R.S. 40:1379.3 (N) shall not limit the right of a property owner, lessee, or other lawful custodian to prohibit or restrict access of those persons possessing a concealed handgun pursuant to a permit issued under this Section. No individual to whom a concealed handgun permit is issued may carry such concealed handgun into the private residence of another without first receiving the consent of that person.
Link Posted: 3/29/2006 7:21:22 PM EDT

Originally Posted By wjwill:
www.lsp.org/handguns.html#faqs

Prohibited Locations
R.S. 40:1379.3 (N) states that no concealed handgun may be carried into and no concealed handgun permit issued pursuant to this Section shall authorize or entitle a permittee to carry a concealed handgun in any of the following:

1) A law enforcement office, station, or building;
2) A detention facility, prison, or jail;
3) A courthouse or courtroom, provided that a judge may carry such a weapon in his own courtroom;
4) A polling place;
5) A meeting place of the governing authority of a political subdivision;
6) The state capitol building;
7) Any portion of an airport facility where the carrying of firearms is prohibited under federal law, except that no person shall be prohibited from carrying any legal firearm into the terminal, if the firearm is encased for shipment, for the purpose of checking such firearm as lawful baggage;
8) Any church, synagogue, mosque or similar place of worship;
9) A parade or demonstration for which a permit is issued by a governmental entity;
10) Any portion of the permitted area of an establishment that has been granted a Class A-General retail permit, as defined in Part II of Chapter 1 or Part II of Chapter 2 of Title 26 of the Louisiana Revised Statutes of 1950, to sell alcoholic beverages for consumption on the premises.
11) Any school "firearm free zone" as defined in R.S. 14:95.6.


The provisions of R.S. 40:1379.3 (N) shall not limit the right of a property owner, lessee, or other lawful custodian to prohibit or restrict access of those persons possessing a concealed handgun pursuant to a permit issued under this Section. No individual to whom a concealed handgun permit is issued may carry such concealed handgun into the private residence of another without first receiving the consent of that person.



Wjwill,

I am aware of the state police website and there are no issues concerning state laws regulating the carrying of concealed handgun. My original question concerns the legality of a local ordinance and carrying in a city park.
Link Posted: 4/4/2006 12:49:55 PM EDT
[Last Edit: 4/4/2006 12:54:05 PM EDT by vsound]
From what I can tell, the BREC prohibition was in place in 1962, therefore it was probably grandfathered in prior to the 1985 preemption bill.

Looks like open or concealed is a no-no at a BREC owned park. But, it only applies if BREC owns the property.


ETA: Also, the state preemption law allows localities to control firearms on parish or city owned property.
Link Posted: 4/6/2006 11:29:31 AM EDT

Originally Posted By vsound:
From what I can tell, the BREC prohibition was in place in 1962, therefore it was probably grandfathered in prior to the 1985 preemption bill.

Looks like open or concealed is a no-no at a BREC owned park. But, it only applies if BREC owns the property.


ETA: Also, the state preemption law allows localities to control firearms on parish or city owned property.



Yes, the BREC ordinance is most likely grandfathered in prior to the 1985 firearms preemption bill.

My next question is this: Does any Louisiana legislative entity (state government, city council, etc.) have the authority to regulate the open carrying of firearms without first changing the state constitution? Not to my knowledge.

Not counting federal laws, isn’t the state constitution the highest laws in the state? If so, Louisiana state constitution (article 1, sec 11) states “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.”

In a legal terns, what does “keep and bear arms” mean? To me, it means that I can own and carry firearms. What does “shall not be abridged” mean? How about, can not be reduced.

By state constitution, the state (and subdivisions) only has the authority to regulate concealed carry.

Of course, this is all conjecture on my part but I would like to find a definitive legal answer. How does someone go about getting the state attorney general to issue legal opinions?
Link Posted: 4/6/2006 5:02:36 PM EDT
From how I understand law from a few professors at LSU...

Laws can only get more restrictive on the smaller levels...IE:

Federal Law can not regulate something at all.
State Law can say you can have something, but only in these places.
Parish/County can say you can have this much of something, but only in these places.
City Law can say you can have this much of something, but only in these places, during these times of day.

I could be completely wrong, but that is how I understood it. Smaller govermental agencies can only pass more restrictive laws than those of the agencies above them.
Link Posted: 4/6/2006 6:00:37 PM EDT

Originally Posted By tunatuk:
From how I understand law from a few professors at LSU...

Laws can only get more restrictive on the smaller levels...IE:

Federal Law can not regulate something at all.
State Law can say you can have something, but only in these places.
Parish/County can say you can have this much of something, but only in these places.
City Law can say you can have this much of something, but only in these places, during these times of day.

I could be completely wrong, but that is how I understood it. Smaller govermental agencies can only pass more restrictive laws than those of the agencies above them.



The state government is defined by and receives authority from the state constitution. Because article 1, sec 11 specifically gives the legislature authority to regulate concealed carry, I have no problem with that....but article 1, sec 11 not only doesn't give the authority to regulate open carry; it states the right to keep & bear arms "...shall not be abridged...".

Here is another example: Article 10 of the state constitution gives every citizen, upon reaching age 18, the right to vote. No matter how many laws the state legislature and/or city councils try to pass changing the voting age to 21, it will remain 18 unless the state constitution is changed first.
Link Posted: 4/7/2006 5:54:37 AM EDT
You are correct in that the state constitution is supposed to be the controlling document. The problem comes from the court system. If they don't see it as politically correct to open carry, then they will find a way to say that the right can be limited (some other right is controlling, state interest in maintaining security, blah, blah, blah). Same thing with the 2nd Amendment. It should be controlling as well, but just take a look at the Silveira v. Lockyer opinion from the 9th Circuit in CA to see how badly they can misconstrue plain English to read what they want.

Unfortunately, it's one of the downfalls of our current system of government. There's no real penalty for passing a law that doesn't conform to the Constitution. Typically, the only penalty they risk is to be voted out of office. But, it's rare that enough Legislators or Congresscritters will be penalized (voted out) such that a bad law can be reversed. Without a reversal of the law, the courts will normally go along with it, unless they see it as politically correct to overturn it.
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