CLARK, Justice.
A juvenile in a delinquency proceeding argued the criminal statutes regarding the intentional concealment of a weapon, La. R.S. 14:95(A), and the possession of a handgun by a juvenile, La. R.S. 14:95.8, fail to meet the requirement of strict scrutiny under the state constitutional provision securing the right to keep and bear arms. The juvenile court declared La. R.S. 14:95(A) unconstitutional as applied to juveniles, and found a portion of La. R.S. 14:95.8 should be severed from the statute. Upon review, we find the juvenile court was wrong in both of its rulings. For the reasons that follow, we hold both criminal statutes are constitutional and remand for further proceedings.
Before its recent amendment, La. Const. art. I, § 11 provided: "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." Pursuant to Acts 2012, No. 874, § 1, a proposal to amend this provision of the state constitution was submitted to the electors of the state of Louisiana, and was ratified by them in a statewide election held on November 6, 2012. Effective December 10, 2012, La. Const. art. I, § 11 now provides: "The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction of this right shall be subject to strict scrutiny." See State v. Draughter, 2013-0914, p. 7-8 (La.12/10/13), 130 So.3d 855, 2013 WL 6474419.
According to the state, six days after the effective date of this new state constitutional provision, on December 16, 2012, the juvenile, J.M., knowingly possessed a handgun on his person, in violation of La. R.S. 14:95.8, and intentionally concealed a weapon on his person, in violation of La. R.S. 14:95(A). Based on these alleged delinquent acts, the state sought to have J.M. adjudged delinquent and filed a petition for the adjudication of delinquency in the juvenile court for East Baton Rouge Parish.
La. R.S. 14:95.8 prohibits the possession of a handgun by a juvenile except under certain exceptions. Subsection A of the statute provides: "It is unlawful for any person who has not attained the age of seventeen years knowingly to possess any handgun on his person. Any person possessing any handgun in violation of this Section commits the offense of illegal possession of a handgun by a juvenile." Subsection B of the statute describes the penalties for a first, second, third or subsequent conviction, and the enhanced penalties for a juvenile offender previously adjudged delinquent for a crime of violence. Subsection C describes seven exceptions under which circumstances the prohibition of possessing a handgun will not apply to a juvenile, as follows:
Subsection D defines what is meant by the term "handgun."
La. R.S. 14:95(A) prohibits the illegal carrying of a weapon. Considering the state's allegations, the only provision of that statute applicable in this case is La. R.S. 14:95(A)(1), which prohibits: "The intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one's person."
Counsel for J.M. filed motions to declare both statutes unconstitutional under the new provisions of La. Const. art. I, § 11, arguing the statutes did not pass strict judicial scrutiny. Additionally, counsel argued the effect of the amendment of the constitution invalidated any prohibition restricting the carrying of concealed weapons.
The Office of the Louisiana Attorney General exercised its discretionary right to respond to the constitutional challenge to the statutes and joined with the East Baton Rouge Parish District Attorney in opposing J.M.'s motions (hereinafter referred to as "the state").
After a hearing and briefing, the juvenile court issued a written opinion. The juvenile court first subjected La. R.S. 14:95.8 to the strict scrutiny required by La. Const. art. I, § 11 and found the state showed a compelling government interest for prohibiting the possession of handguns by a juvenile. The juvenile court explained: "... it is clear that this statute attempts to address a well known [and] studied fact in our society, that the cognitive brain development of minors is not the same as an adult." Based on this inherent difference between adults and children, the juvenile court found a compelling state
After finding a compelling state interest in prohibiting the possession of handguns by juveniles, the juvenile court turned to the second part of the strict scrutiny analysis. The juvenile court considered the factors described in In re: Warner, 2005-1303, p. (La.4/17/09); 21 So.3d 218, 253, to determine whether a statute is narrowly drawn to achieve the compelling government interest and found:
Despite these findings, the juvenile court nevertheless ruled four of the exceptions found in Subsection C should be severed from the statute, even though J.M. failed to assert any examples of less restrictive means of enforcement. The juvenile court first examined all seven exceptions to the handgun restriction found in Subsection C. The first three circumstances described in the exceptions were approved by the juvenile court, which found juveniles could possess handguns for attending a hunter's or firearms safety course, engaging in practice in the use of a firearm or target shooting at an established range, or hunting or trapping pursuant to a valid state license. See La. R.S. 14:95.8(C)(1-3). As for the remaining four circumstances, without further analysis the juvenile court indicated "... the court does not have the same feeling towards the remaining exceptions: C(4), (5), (6) and (7)" and ordered them severed from the statute. After the four exceptions were severed, the juvenile court found La. R.S. 14:95.8 was narrowly tailored to serve a compelling governmental interest, explaining: "The statute only prohibits a particular type of firearms (handguns) by a particular group of individuals and further strikes a fine line between the right to bear arms and the protection of individuals in our society."
As to the prohibition against carrying concealed weapons found in La. R.S. 14:95(A), the juvenile court again found a compelling state interest for the statute "in protecting society from any and all types of violence." However, the juvenile court did not believe the statute was narrowly tailored. Specifically, the juvenile court found La. R.S. 14:95(A)(1) was "... unconstitutional as it relates to juveniles because there already exist[s] a law that restricts juveniles['] possession of guns, i.e. La. R.S. 14:95.8 ... La. R.S. 14:95(A)(1) as it relates to juveniles is duplicitous in nature." The juvenile court explained "La. R.S. 14:95.8 is a narrowly tailored statute which passes the strict scrutiny analysis [presumably after taking into consideration the severance of the four exceptions in Subsection (C)(4-7)] and therefore, there is no need for any additional restrictions on juveniles to possess guns to be found in any other statutes."
The state sought direct review of the juvenile court's declaration of the unconstitutionality of La. R.S. 14:95(A)(1) as applied to juveniles pursuant to La. Const.
This case requires us to determine the constitutionality of two criminal statutes. Such questions of law are reviewed by this court de novo. City of Bossier City v. Vernon, 2012-0078, p. 2 (La.10/16/12); 100 So.3d 301, 303.
Before we address the constitutionality of the statutes at issue, we must discuss the nature of the state constitutional right to keep and bear arms. After its 2012 amendment, La. Const. art. I, § 11 provides: "The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny."
Unlike the provisions of the federal constitution, the constitutional provisions in our state constitution "are not grants of power but instead are limitations on the otherwise plenary power of the people of a state exercised through its legislature." Radiofone, Inc. v. City of New Orleans, 1993-0962 (La.1/14/94); 630 So.2d 694, 697. This court's function in construing a constitutional provision is to ascertain and give effect to the intent of the people who adopted the provision. See State v. Bazile, 2012-2243, p. 4 (La.5/7/13); 144 So.3d 719, 2013 WL 1880395; State v. Chinn, 2011-2043, p. 6-7 (La.2/10/12); 92 So.3d 324, 328; Radiofone, 630 So.2d at 698. Before ratification by the voters, the proposed amendment "was a mere proposal, without force or effect. The political act that made the [constitutional amendment] binding was the vote of the people; it is the understanding that can be reasonably ascribed to that voting population as a whole that controls." Radiofone, 630 So.2d at 698. The proper analysis to determine the understanding of the voters is described as follows:
Id. (internal citations omitted).
As we stated in State v. Amos, 343 So.2d 166, 168 (La.1977), "[t]he right to keep and bear arms, like other rights guaranteed by our state constitution, is not absolute." That limits may be imposed on the right was evidenced in the language of the official ballot proposition presented to the voters. The proposition asked:
See Acts 2012, No. 874, § 3.
The voters of Louisiana did not ratify this constitutional amendment in a vacuum. In our opinion, the reference to restrictions on the right to keep and bear arms in the proposition reflects an expectation of sensible firearm regulation held by the voters, and comports with historical restrictions with respect to the acquisition, possession or use of firearms for lawful purposes found in Louisiana law. The Supreme Court has described a similar understanding of the nature and limitations of the right to bear arms in the analogous Second Amendment.
We also conclude the voters' ratification of strict scrutiny as a review standard of alleged infringements on the right to keep and bear arms was not meant to invalidate every restriction on firearms, whether in existence at the time the amendment was ratified or yet to be enacted. Rather, the strict scrutiny standard adopted by the voters "is designed to provide a framework for carefully examining the importance and sincerity of the reasons advanced by the governmental decisionmaker" for firearm regulation within the context of the fundamental right to keep and bear arms. Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct. 2325, 2338, 156 L.Ed.2d 304 (2003). In Draughter, decided in our last opinion cycle, we concluded the right to bear arms has always been a fundamental right and the amendment to the constitutional provision merely sought to ensure that the review standard of an alleged infringement of this fundamental right was consistent with developing standards of constitutional analysis. Id., 130 So.3d at 855, slip op. at 10. Strict scrutiny requires a careful examination by our courts, keeping in mind that the fundamental right at issue is one where some degree of regulation is likely to be necessary to protect the public safety. Grutter, 539 U.S. at 327, 123 S.Ct. at 2338 (in a strict scrutiny analysis, "context matters.").
La. Const. art. I, § 11 states any restriction on the right to keep and bear arms must meet strict scrutiny review. Where strict judicial scrutiny is required, a state "is not entitled to the usual presumption of validity, the state rather than the complainant must carry a heavy burden of justification, the state must demonstrate its [legislation] has been structured with
In this case, the state based its argument on "logic, case law, and statistics."
To demonstrate a compelling government interest, the state must establish "the need to address a perceived problem, protect a group from harm, or cure some ill in society.'" Warner, 2005-1303, p. 44; 21 So.3d at 250. The state asserts the compelling interest of the government in enacting this legislation is the safety of the general public and juveniles in particular. The juvenile court agreed, and referred to a "well known [and] studied fact in our society, that the cognitive brain development of minors is not the same as an adult."
We agree public safety is a compelling state interest for restricting the possession of handguns by juveniles. Common sense, science and social science agree that juveniles exhibit a sometimes transient lack of maturity, impetuosity, suggestibility and vulnerability which would make the possession of a handgun by a juvenile a danger for the public and the juveniles themselves. See Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2464-2465, 183 L.Ed.2d 407 (2012).
Courts have found "the clandestine acquisition of firearms by juveniles and minors is a most serious problem facing law enforcement and the citizens of this country." National Rifle Ass'n of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 199 (5th Cir.2012), petition for cert. filed July 29, 2013, quoting S.Rep. No. 90-1097, at 79 (1968), 1968 U.S.C.C.A.N. 2112, 2167. The statistics obtained through a congressional investigation and referred to in the case law confirmed a "causal relationship between the easy availability of firearms other than a rifle or shotgun and ... youthful criminal behavior." Id., 700 F.3d at 199, quoting Pub.L. No. 90-351, § 901(a)(6); 82 Stat. at 225, 26. Based on these considerations, we agree with the finding of the juvenile court in this respect and hold there is a compelling government interest supporting the enactment of La. R.S. 14:95.8.
Based on the historical tradition restricting the possession of weapons by juveniles in Louisiana, the legislature could have instituted a total ban on a juvenile's possession of a handgun. Instead, and in order to structure this legislation with precision, the legislature narrowly tailored the statute to provide exceptions for circumstances consistent with the possession or use of a handgun by a juvenile for a lawful purpose. A statute is narrowly tailored where, as here, it "actually advance[s] the interest asserted," "is reasonably necessary to serve the state interest," is not under- or over-inclusive, and no less "restrictive alternatives... would serve the compelling state interest at least as well." Warner, 2005-1303, pp. 48-49; 21 So.3d at 253-254.
The statute restricts only the possession of a certain type of weapon, a handgun, which according to statistics and case law considered by the juvenile court is the most readily accessible type of weapon to juveniles, and is most often used in committing crimes. The prohibition targets only individuals aged 16 years and younger, consistent with the studies and case law showing this as the most vulnerable
It is clear the legislature was focused on solving a particular problem — that of preventing persons sixteen years of age or younger, who might be immature and impulsive, from easily accessing handguns, in order to reduce the incidence of accidents or violent crime. We find La. R.S. 14:95.8 is narrowly tailored to achieve the legitimate purposes of the government's interest in enacting this legislation. Considering the compelling government interest in enacting La. R.S. 14:95.8, and our finding the statute is narrowly tailored to achieve this legitimate purpose, we hold La. R.S. 14:95.8 withstands strict scrutiny analysis. The juvenile court's ruling which severed Section C(4-7) from La. R.S. 14:95.8 is reversed.
J.M. initially argues the changes in the language from the former version of La. Const. art. I, § 11 to its current version eliminated the legislature's authority to place any restrictions on the carrying of a concealed weapon. Specifically, J.M. asserts the removal of the phrase: "... but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person" invalidates any enforcement of La. R.S. 14:95(A)(1) whatsoever.
Generally, a change to the language of an existing law, particularly the
We disagree with J.M.'s interpretation of the effect of the constitutional amendment. In our opinion, the drafters and ratifiers did not intend to invalidate the existing law restricting the carrying of concealed weapons, or to restrict the legislature's authority to pass laws on that subject. The clear and unambiguous language of the second sentence of the amended provision ensures that
The juvenile court found the prohibition against intentionally carrying a concealed weapon, as applied to juveniles, overlapped the restriction on a juvenile's possession of a handgun. In dismissing similar arguments, this court has held "even assuming the two offenses totally overlapped, we are not aware of how this statutory arrangement conflicts with any constitutional principle." State v. Smith, 1999-0606, p. 16-17 (La.7/6/00); 766 So.2d 501, 514, quoting State v. Neal, 500 So.2d 374, 378 (La.1987). The court has explained "the policy of our criminal code recognizes that there will be overlapping in the code sections and other statutes and expressly provides that in such cases prosecution may proceed under either provision." Id. Our statutory policy intends that an offender "will be protected from unwarranted multiple prosecutions by the law concerning double jeopardy." Neal, 500 So.2d at 378. We are not called upon to determine whether La. R.S. 14:95(A)(1), as applied to a juvenile, would violate double jeopardy principles when considered with La. R.S. 14:95.8 as delinquent acts. We express no opinion whether the facts at issue here, once developed from this pre-trial posture, would satisfy either the Blockburger test or the "same evidence" test used in Louisiana to answer a double jeopardy challenge. See La.C.Cr.P. art. 591; State v. Magee, 2011-0574, p. 6-7 (La.9/28/12); 103 So.3d 285, 334, cert. denied, ___ U.S. ___, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013).
J.M. argues the prohibition against carrying concealed weapons does not pass strict scrutiny review, as there is no compelling reason for the legislation, as applied to juveniles, and the statute is not narrowly tailored. The state again asserts the compelling interest of the government in this legislation is the safety of the general public. The juvenile court found the state carried its burden of sufficient justification for the enactment of La. R.S. 14:95(A)(1).
In State v. Fluker, 311 So.2d 863, 865 (La.1975), this court presented "an historical exegesis of the concealed weapons law in Louisiana." Fluker noted "[t]he first statute to proscribe the concealment of weapons was enacted in 1813," the year after Louisiana became a state. Id., 311 So.2d at 865. The preamble to La. Acts 1813, p. 172, § 1 provided:
In applying this statute, the court found "[t]his law became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons." State v. Chandler, 5 La. Ann. 489, 489-490 (1850). In upholding this statute against a Second Amendment challenge, the court found:
State v. Smith, 11 La.Ann. 633 (1856). Against another Second Amendment challenge, the court explained: "[t]he statute in question does not infringe the right of the people to keep or bear arms. It is a measure of police, prohibiting only a particular mode of bearing arms which is found dangerous to the peace of society." State v. Jumel, 13 La.Ann. 399, 399-400 (1858).
Other than the elimination of language requiring the weapon to be in full open view, and the addition of a requirement of intentional concealment, the amendments to the statute have not changed the definition of illegally carrying a weapon to the present day. Fluker, 311 So.2d at 865. This type of long-standing limitation on the right to keep and bear arms is the kind of historical restriction of which the voters of Louisiana were aware when they voted for the constitutional amendment. Just as concealed weapons presented a danger to the public order in 1813, they continue to do so, particularly when those weapons are in the hands of impulsive, immature juveniles. Protecting the juvenile population from itself and protecting society-at-large from increased gun violence is now, more than ever, a compelling interest of the government. We find the state has a compelling interest in prohibiting juveniles from carrying concealed weapons.
Likewise, we find this statute is narrowly drawn to achieve the state's legitimate interest in public safety. First, La. R.S. 14:95(A)(1) is not over-inclusive because it does not prohibit more conduct than necessary. The statute prohibits individuals from carrying a concealed firearm (or other dangerous weapon) in public without a permit. Under La. R.S. 40:1379.3, Louisiana
J.M. asserts the ease with which a permit to carry a concealed weapon may be obtained negates the state's compelling interest in enacting the prohibition in the first place. We disagree. The very fact that an individual submits his identifying information and likeness to the state, and meets the qualifications for obtaining a permit (including a demonstration of competence and training with a handgun), is at least some indicia that the individual intends to carry a concealed weapon for a lawful purpose, i.e. the defense of self or property.
Finally, J.M. contends there is no need for La. R.S. 14:95(A)(1) because the Second Amendment of the United States Constitution and La. Const. art. I, § 11 are themselves public safety measures. We find the legislature, in the exercise of its police power, has the authority to enact a statute prohibiting the carrying of concealed weapons. See Fruge v. Board of Trustees of Louisiana State Employees' Retirement System, 2008-1270, p. 5 (La.12/2/08); 6 So.3d 124, 128 ("Because the provisions of the Louisiana Constitution are not grants of power but instead are limitations on the otherwise plenary power of the people, exercised through the legislature, the legislature may enact any legislation that the constitution does not prohibit.").
Considering the compelling government interest in enacting La. R.S. 14:95(A)(1), and our finding the statute is narrowly tailored to achieve this legitimate purpose, we hold La. R.S. 14:95(A)(1) withstands strict scrutiny analysis. The juvenile court's ruling which held La. R.S. 14:95(A)(1) unconstitutional as applied to juveniles is reversed.
We hold the 2012 amendment to La. Const. art. I, § 11, which deleted the specific constitutional language authorizing the passage of laws regarding the carrying of concealed weapons, did not invalidate La. R.S. 14:95(A)(1) or restrict the legislature's ability to pass laws on this subject. We further hold La. R.S. 14:95(A)(1) and La. R.S. 14:95.8 pass the strict scrutiny analysis required by the constitutional provision. The juvenile court ruling which severed Sections C(4-7) from La. R.S. 14:95.8 and held La. R.S. 14:95(A)(1) to be unconstitutional is reversed. This matter is remanded to the juvenile court for further proceedings.
REVERSED AND REMANDED.
Retired Judge MARION EDWARDS, assigned as Justice ad hoc, sitting for HUGHES, J., recused.
Id., 132 S.Ct. at 2464-2465 (footnote omitted). Miller noted the science and social science supporting the conclusions made by the Supreme Court in Roper and Graham had become even stronger. Id., 132 S.Ct. 2464 n. 5. Compelling statistical support for these differences between juveniles and adults may also be found in National Rifle Ass'n of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185 (5th Cir. 2012) (finding the federal statute prohibiting federally licensed firearms dealers from selling handguns to persons under age 21 does not violate the Second Amendment) and United States v. Rene E., 583 F.3d 8 (1st Cir.2009), cert. denied, 558 U.S. 1133, 130 S.Ct. 1109, 175 L.Ed.2d 921 (2010) (Juvenile Delinquency Act ban of juvenile possession of handguns did not violate the Second Amendment).