WEIMER, Justice.
We granted a writ to determine whether a recent constitutional amendment involving a fundamental right to bear arms found in La. Const. art. I, § 11 renders a criminal statute related to the possession of a firearm while possessing illegal drugs, facially unconstitutional.
According to the defendant, because the right to bear arms has been recently enshrined as a fundamental constitutional right, notwithstanding the fact the defendant was allegedly carrying illegal drugs while in possession of a firearm, La. R.S. 14:95(E) is facially unconstitutional. Essentially, the defendant argues that, even assuming he possessed illegal drugs, because La. R.S. 14:95(E) deals not only with illegal drugs but with firearms, the firearm aspect of the statute cannot survive strict
We disagree. Nothing in the recent constitutional amendment regarding firearms requires dismissal of the criminal charges against the defendant for carrying a firearm while in possession of illegal drugs.
Under longstanding constitutional authorities, on its face, the challenged statute does not restrict the legitimate exercise of the fundamental right to bear arms. Instead, the statute enhances the penalty for possessing illegal drugs while in carrying a firearm. When a defendant carries a firearm while possessing illegal drugs, La. R.S. 14:95(E) is facially constructed such that the possession of a firearm under those circumstances is illicit and is made illicit as a result of defendant's own illegal activities. Further, the illicit possession of a firearm may be used to enhance the penalty for possessing illegal drugs. Our own jurisprudence, and that of the United States Supreme Court, demonstrates the existence in La. R.S. 14:95(E) of a compelling state interest, which is narrowly tailored to restrict firearm possession by those who possess illegal drugs.
The legislature's criminalization of the possession of illegal drugs with the illicit possession of a firearm, therefore, passes strict judicial scrutiny. Thus, on its face, there is nothing in La. R.S. 14:95(E) that requires this court to declare that statute to be unconstitutional.
The facts alleged by the state in this case are contained in a New Orleans Police Department report. On September 10, 2012, at 4:40 p.m., the defendant, Rico Webb, was in a car driven by his girlfriend, Brianisha Robinson. Officers Berger and Abram conducted a traffic stop of the vehicle at South Claiborne Avenue and Cleveland Street for an allegedly broken taillight. The officers smelled the faint odor of marijuana when they approached the car, so they asked the occupants to exit the vehicle. After the officers issued Miranda warnings to both occupants, the defendant stated that he had a marijuana "blunt" in his backpack. The defendant removed the blunt from his backpack, which later tested positive for marijuana. The officers then saw a handgun on the driver's side floorboard. The defendant claimed ownership of the gun. It was determined that the defendant legally purchased the firearm and had the corresponding paperwork. Ms. Robinson was given a traffic citation for the broken taillight and driving without a license and was then released from the scene. However, the defendant was arrested for violating La. R.S. 14:95(E). He has no prior felony criminal convictions and was not arrested for, nor charged with, misdemeanor possession of marijuana.
The defendant filed a motion to quash the bill of information, which was denied, as the district court declined to find La. R.S. 14:95(E) unconstitutional. The court explained that strict scrutiny is essentially a two part test, under which legislation must "(1) ... serve[] a compelling state interest, and (2) ... [be] narrowly tailored to serve that compelling interest." The district court noted the defendant had conceded, in his motion to quash, that La. R.S. 14:95(E) promotes a compelling state interest, namely, public safety.
The determination of the constitutionality of a statute presents a question of law, which is reviewed by this court de novo. See Draughter, 13-0914 at 4, 130 So.3d. at 859-60, citing City of Bossier City v. Vernon, 12-0078, p. 2 (La.10/16/12), 100 So.3d 301, 303.
"Mindful of our civilian mandate, ... we begin [our review of the defendant's constitutional challenge], as we must, with the language of the [statute] itself." Quinn v. Louisiana Citizens Property Ins. Corp., 12-0152, p. 11 (La.11/2/12), 118 So.3d 1011, 1018. The challenged statute, La. R.S. 14:95(E), provides as follows:
Although there are numerous factors that may bear upon interpreting a statute, as it concerns the defendant's challenge to whether the statute conforms to the language and purposes of the constitution, the following summary is especially informative: "Words and phrases shall be read in context and shall be construed according to the common and approved usage of the language." La. R.S. 1:3. "The meaning and intent of a law is determined by considering the law in its entirety and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the
This court's civilian mandate applies with equal force when interpreting constitutional provisions. Therefore, "[w]e begin, as we must, with the applicable constitutional language." Louisiana Federation of Teachers v. State, 13-0120, p. 24 (La.5/7/13), 118 So.3d 1033, 1049. As amended 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."
When analyzing a statute under a provision of our constitution to determine whether the statute is constitutional, the following principles apply:
Louisiana Federation of Teachers, 13-0120 at 21-22, 118 So.3d at 1048 (citations omitted).
These principles are general guidelines to aid a court's review. More specific guidelines may dictate the burden required of a person challenging the constitutionality of legislation, depending on the type of constitutional challenge. Such is the case here, where the defendant concedes that he is bringing a "facial challenge"
Because the right to bear arms is now undeniably a fundamental right as described in La. Const. art. I, § 11,
In his motion to quash, the defendant admitted "it is clear that La. R.S. § 14:95E was passed [by the legislature] in order to promote a compelling government interest, namely that of public safety." The defendant noted that this court, in State v. Blanchard, 99-3439, p. 3 (La.1/18/01), 776 So.2d 1165, 1169-70, had already examined the statute's legislative intent and found that the statute was enacted to promote public safety interests.
However, in the court of appeal and now in this court, the defendant tries to retreat from his earlier admission that La. R.S. 14:95(E) promotes a compelling governmental interest in public safety — "The State cannot simply invoke talismanic `public safety' language to avoid the scrutiny the voters mandated when approving the Constitutional amendment at issue in this case." The defendant attempts to blame the state for a dearth of evidence in the record showing a compelling governmental interest: "In this case the state provided no evidentiary basis whatsoever to the trial court. The state provided no studies or testimony to support their [sic] assertion that the state has a compelling interest in further sanctioning legitimate owners of firearms for possessing those weapons with controlled dangerous substances."
In the district court, the defendant argued that La. R.S. 14:95(E) was not narrowly tailored to promote the admitted compelling governmental interest of public safety. The crux of his argument was that La. R.S. 14:95(E) "criminalizes innocent behavior. Under the statute, the legal possession of a registered firearm is transformed, without discretion, into a felony where that possession occurs in conjunction with any drug infraction, however slight." In this court, the defendant elaborates upon his argument that La. R.S. 14:95(E) is not narrowly tailored. According to the defendant, because possessing a firearm is unlawful in conjunction with all controlled dangerous substances, a person with a validly prescribed drug could be found in violation of the statute. Finally, the defendant urges that the penalty under La. R.S. 14:95(E) (five years' imprisonment for a first offense) is excessive.
Strict scrutiny is the most rigorous test for determining whether a law
Returning then to the technical structure of the strict scrutiny test, the district court correctly observed the test is twofold.
Although we are not bound to undertake a "compelling state interest" review,
State v. Blanchard, 99-3439 at 3, 776 So.2d at 1169-70, citing State v. Blanchard, 99-599
Based on legislature's intent "to prevent those engaged in drug use and distribution from engaging in the violent behavior endemic to the drug trade,"
Not only does the Supreme Court's observation about the connection between illegal drugs and firearms support the existence in La. R.S. 14:95(E) of a compelling public safety interest, but the Smith Court's observations also refute some of the defendant's specific arguments that there is no public safety concern.
According to the defendant, the simultaneous possession of an illegal drug and a firearm is an innocuous coincidence. The defendant also argues that in no way does possessing a firearm by an alleged consumer of illegal drugs, such as himself, promote drug trafficking. Apparently, the defendant would have this court overlook the obvious fact that because possessing marijuana is unlawful, the defendant must have employed some unlawful means to obtain the drug. The defendant would also have this court hold that the firearm must actually be used in some manner in order for La. R.S. 14:95(E) to promote a compelling governmental interest. These arguments are unavailing, as the Court in Smith directly spoke to how possession of a firearm may be employed in drug transactions.
In Smith, 508 U.S. at 240, 113 S.Ct. 2050, the defendant claimed he traded a firearm for illegal drugs and the mere trade of a firearm did not equate to the "use" of a firearm, as prohibited by 18 U.S.C. § 924(c)(1). Rejecting this argument, the Court ruled: "The fact that a gun is treated momentarily as an item of commerce does not render it inert or deprive it of destructive capacity." Id. The Court explained: "as experience demonstrates, [a firearm] can be converted instantaneously" inasmuch as a firearm can interchangeably serve as either "cannon" or "currency" for the illegal drug trade. Id. In other words, a firearm can be an instrumentality to promote drug trafficking by violence or threat of violence. Or, alternatively, because of the capabilities to misuse a firearm by aiding drug trafficking, a firearm is highly desirable by buyers and sellers of illegal drugs. In either case, mindful of the Court's observations in Smith, we reject the defendant's argument that we should treat the possession of a firearm and an illegal drug as some innocuous coincidence.
Having found La. R.S. 14:95(E) promotes a compelling state interest, we
The fit between the state's public safety interests — associated with preventing drug trafficking — and citizens' gun rights, is not an issue of first impression for this court. In Blanchard, 99-3439 at 1, 776 So.2d at 1167, the defendant challenged the constitutionality of La. R.S. 14:95(E) as applied to his conviction for possessing marijuana and a pistol in his home. The marijuana was located under a sofa cushion and in an ashtray, while the pistol was located in a kitchen cabinet. Id., 99-3439 at 1, 776 So.2d at 1167. The defendant argued La. R.S. 14:95(E) unconstitutionally abridged his right to bear arms because he did not "actual[ly]" possess the firearm at the time of his arrest in his home. Id., 99-3439 at 2, 4, 776 So.2d at 1168-69. Instead, according to the defendant, he merely "constructively" possessed the firearm. Id.
In Blanchard this court held that the right to bear arms was not unconstitutionally abridged when a defendant possessed illegal drugs and either actually or constructively possessed a firearm. This court indicated, however, that the right to bear arms would not be unconstitutionally infringed in situations of "constructive" possession, under the limited circumstances where the state could "show a nexus between the firearm and the drugs." Id., 99-3439 at 1, 776 So.2d at 1167. In cases of "constructive" possession of a firearm, this court recognized that limiting the reach of La. R.S. 14:95(E) to circumstances where a nexus between the firearm and the drugs would "eliminate[] the risk that the statute will reach noncriminal or constitutionally protected activity."
There is also a somewhat unique feature of La. R.S. 14:95(E) that demonstrates the law's narrow tailoring. As defendant accurately concedes in his brief, this unique
Significant to the issue of the narrow tailoring of a law, the United States Supreme Court has again provided guidance relative to the effect of the "enhancing factor" described by the defendant. See Jones v. Helms, 452 U.S. 412, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981). The Court found that a law passes constitutional muster where the law is structured such that a person's exercise of a fundamental right is a factor used to enhance the sentence for criminal activity. As we shall see, for purposes of constitutional analysis, an enhancing factor exists when an element of a law is in itself a fundamental right, but that right is exercised in connection with otherwise illegal conduct.
In Helms, the Court was faced with a similar constitutional challenge. The Helms Court observed Georgia generally criminalized parental abandonment of a child as a misdemeanor. However, if the parent, during the course of child abandonment, crossed state lines, Georgia criminalized the same abandonment as a felony. Helms, 452 U.S. at 414, 101 S.Ct. 2434. Crossing state lines, the Court pointed out, is undeniably a fundamental right and the restriction of that right traditionally failed strict scrutiny. See Id. at 420, 101 S.Ct. 2434. The Court did, however, rule that notwithstanding "the fundamental nature of this right [to travel], there nonetheless are situations in which a State may prevent a citizen from leaving." Id. at 419, 101 S.Ct. 2434.
Instead of failing strict scrutiny (as a restriction of fundamental rights often does) and, importantly for the instant case, the Court found that "appellee's own misconduct [in abandoning his child] had qualified his right to travel interstate." Id. at 420, 101 S.Ct. 2434. The Court noted Georgia's law did not separately criminalize the right to interstate travel or otherwise restrict that right. Id. at 422, 101 S.Ct. 2434. In terms of constitutional analysis, the Court explained: "[T]he question is whether the State may enhance the misdemeanor of child abandonment to a felony if a resident offender leaves the state after committing the offense." Id. at 422, 101 S.Ct. 2434. (Emphasis added.) The Court answered that question affirmatively and ruled Georgia's law was constitutional, as follows: "[A]lthough a simple penalty for leaving a State is plainly impermissible, if departure aggravates the consequences of conduct that is otherwise punishable, the State may treat the entire sequence of events, from the initial offense to departure from the State, as more serious than its separate components." Id. at 422-23, 101 S.Ct. 2434 (footnote omitted).
Addressing the fit between enhancing the penalty for child abandonment and the restriction upon the fundamental right to interstate travel, the Helms Court ruled the law's purpose was "to cause parents to support their children," and "this purpose [wa]s served by making abandonment within the State followed by departure a more serious offense than mere abandonment." The Court concluded: "We therefore are unwilling to accept the suggestion that this enhancement is an impermissible infringement of appellee's constitutional right to travel." Id. at 423, 101 S.Ct. 2434.
In the instant case, the possession of a firearm is used as an enhancement to the crime of possessing marijuana. This is
Similar to the Court in Helms, we find it is constitutionally permissible for the state to treat the entirety of possessing illegal drugs and a firearm as a more serious crime than possessing illegal drugs alone. See Helms, 452 U.S. at 422-23, 101 S.Ct. 2434.
Because the element of firearm possession in La. R.S. 14:95(E) is more in the nature of an "enhancement" than a restriction upon the legitimate possession of firearms and the act of possessing illegal drugs "qualif[ies]" a person's ability to enjoy a fundamental right,
Mindful that the defendant has brought a facial challenge, we reject his argument that La. 14:95(E) is not narrowly tailored because, according to the defendant, the statute criminalizes all controlled dangerous substances. Where, as here, a court finds a single set of facts by which a statute is constitutional, a facial challenge must fail. See Draughter, 13-0914 at 14, 130 So.3d at 866 (noting "[A] person may not challenge [a] statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the court."); see also State v. Brown, 94-1290 (La.01/17/95), 648 So.2d 872, 875 (a party bringing a facial challenge "must establish that no set of circumstances exists under which the Act would be valid"). Here, we have found the charges against the defendant pursuant to La. 14:95(E) for possessing a firearm and marijuana, are valid inasmuch as the charges are supported by purposes which survive strict scrutiny. Under the jurisprudence just cited, it is not this court's role to adjudicate the constitutionality of hypothetical charges brought against anyone else under other hypothetical circumstances.
In Draughter, we recently concluded that the right to keep and bear arms was not unconstitutionally infringed when that right was entirely denied to state prisoners and parolees "still under the state's supervision." Draughter, 13-0914 at 16, 130 So.3d at 867. Here, we conclude there is no unconstitutional deprivation of that right when a person actively engages in unlawful conduct by possessing illegal drugs while in possession of a firearm.
To promote public safety by curtailing drug trafficking, the state of Louisiana has a compelling interest in enhancing the penalty for illegal drug possession when a person engages in that illegal conduct with the simultaneous while in possession of a firearm. Undeniably, the right to keep and bear a firearm is a fundamental right in Louisiana. However, when a person is engaged in the unlawful conduct of possessing illegal drugs, the person's own unlawful actions have "qualified his right" to engage in what would otherwise be the exercise of that fundamental right. See Helms, 452 U.S. at 420, 101 S.Ct. 2434 (indicating "appellee's own misconduct [in abandoning his child] had qualified his right to travel interstate.").
Earlier, we observed that in amending Article I, § 11 of the constitution, the electorate tasked this court with applying a very technical legal test to answer a very practical question. From all aspects, we have found the technical points of the law constitutionally allow the state to make it a crime to possess an illegal drug with a firearm. We can now, therefore, answer this practical question: Is the act of possessing a firearm and illegal drugs so essential to the liberties citizens ought to be able to enjoy in an orderly society that a law to the contrary is unconstitutional? "We have held that the function of the court in construing constitutional provisions is to ascertain and give effect to the intent of the people who adopted it. It is the understanding that can reasonably be ascribed to the voting population as a whole that controls." Caddo-Shreveport Sales and Use Tax Com'n v. Office of Motor Vehicles, Dept. of Public Safety and Corrections of State, 97-2233 (La.4/14/98), 710 So.2d 776, 780. Nothing in Article I, § 11 of the constitution informs us that the electorate, whose intent is ultimately the intent that governs, believed that possessing firearms with illegal drugs meets the electorate's expectations of a society whose hallmark is ordered liberty.
We, therefore, affirm the ruling of the district court, finding La. R.S. 14:95(E) is not unconstitutional, and that nothing in Article I, § 11 of the constitution requires the charges against the defendant to be quashed. This case is remanded to the district court for further proceedings.
State v. Blanchard, 99-3439 (La.1/18/01), 776 So.2d 1165, 1168-69.
Blanchard, 99-3439 at 9, 776 So.2d at 1173.
