_JjWe 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 аspect 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.
[2Under 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.
FACTUAL AND PROCEDURAL BACKGROUND
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 |ssaw 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 аnd 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.
LAW AND ANALYSIS
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),
Principles of Review for Constitutionality
“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),
If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence. Upon a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less than twenty years nor more than thirty years without the benefit of probation, parole, or suspension of sentence.
15Although there are numerous factors that may bear upоn 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),
IfiWhen analyzing a statute under a provision of our constitution to determine whether the statute is constitutional, the following principles apply:
As a general rule, legislative instruments are presumed to be constitutional; therefore, the party challenging the validity of a legislative instrument has the burden of proving its unconstitutionality.
Because the provisions of the Louisiana Constitution are not grants of power, but instead are limitations on the otherwise plenary power of the people of the state, exercised through the legislature, the legislature may enact any legislation that the constitution does not prohibit. Consequently, a party challenging the constitutionality of a legislаtive instrument must point to a particular provision of the constitution that would prohibit the enactment of the legislative instrument and must demonstrate clearly and convincingly that it was the constitutional aim of that provision to deny the legislature the power to enact the legislative instrument in question. A constitutional limitation on the legislative power may be either express or implied.
Finally, because it is presumed that the legislature acts within its constitutional authority in promulgating a legislative instrument, this court must construe a legislative instrument so as to preserve its constitutionality when it is reasonable to do so. In other words, if a legislative instrument is susceptible to two constructions, one of which would render it unconstitutional or raise grave constitutional questions, the court will adopt the interpretation of the legislative instrument which, without doing violence to its language, will maintain its constitutionality.
Louisiana Federation of Teachers, 13-0120 at 21-22,
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 chal
The Defendant’s Facial Constitutional 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),
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’ languаge 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 |scourt. 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 stаtute. Finally, the defendant urges that the penalty under La. R.S. 14:95(E) (five years’ imprisonment for a first offense) is excessive.
Applying Strict Scrutiny to the Defendant’s Facial Challenge
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,
The aim of the legislature in enacting [La. R.S. 14:95(E) ] was to criminalize possession and/or use of a dangerous weapon, including a firearm, in order to prevent those engaged in drug use and distribution from engaging in the violent behavior endemic to the drug trade. This 1 instatute was enacted not solely for the protection of police officers ... but also for the protection of the general public.
State v. Blanchard, 99-3439 at 3,
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 Infer La. R.S. 14:95(E) to promote a comрelling 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,
Having found La. R.S. 14:95(E) рromotes 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,
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, thаt 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,
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,
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,
Instead of failing strict scrutiny (as a restriction of fundаmental 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,
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 оffense 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,
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 illegаl drugs and a firearm as a more serious crime than possessing illegal drugs alone. See Helms,
11fiBecause 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 “qualiffies]” 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,
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,
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 сonduct 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,
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, thereforе, 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),
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.
AFFIRMED AND REMANDED.
Notes
. The defendant’s motion to quash indicates: As an initial matter, it is clear that La. R.S. § 14:95E was passed in order to promote a compelling government interest, namely thаt of public safety. The Louisiana
The aim of the legislature in enacting [La. R.S. 14:95(E) ] was to criminalize possession and/or use of a dangerous weapon, including a firearm, in order to prevent those engaged in drug use and distribution from engaging in the violent behavior endemic to the drug trade.
State v. Blanchard, 99-3439 (La.1/18/01),
. See Draughter, 13-0914 at 10, 130 So.3d. at 863-64, for a discussion of the salient dates regarding the amendment of La. Const, art. I, § 11. Under Draughter, the defendant here has standing to bring a challenge to pre-revision conduct because the defendant’s case is "not yet final.” Id., 13-0914 at 11,
. In Draughter, 13-0914 at 10, 130 So.3d. at 863, we explained, "we conclude the right to bear arms was always fundamental” under the Louisiana Constitution of 1974 and noted that the amendment of La. Const, art. 1, § 11 did not, therefore, effect a change in the nature of the right by adding the term "fundamental right” to describe the right to bear arms.
. ‘‘[FJundamental rights ... are 'implicit in the concept of ordered liberty' such that 'neither liberty nor justice would exist if [they] were sacrificed.’ ” Sudwischer,
. As amended, La. Const, art. I, § 11 specifies laws restricting the "right ... to keep and bear arms” are "subject[ed] to strict scrutiny.” Although the constitutional provision does not define "strict scrutiny,” it is a well-established term of art in law. We therefore draw from the jurisprudence, just as the district court did, in deriving the meaning of "strict scrutiny.”
. As noted earlier, the defendant admitted in his motion to quash that public safety was the legislature’s intended purpose behind La. R.S. 14:95(E) and such purpose amounted to a compelling state interest. This admission removed the question of a state interest as an issue for the district court to decide. However, for completeness of our de novo review of the constitutionality of La. R.S. 14:95(E), we do not merely accept the substance of defendant's admission, but guided by prevailing jurisprudence, we test whether a compelling state interest truly exists. See, e.g., Draughter, 13-0914 at 9,
. See Blanchard, 99-3439 at 3,
. See Smith,
. The connection between firearm possession and illegal drug trafficking, is also reflected in the United States Sentencing' Commission Guidelines, § 2D1.1(b)(1) (recommending an increased sentence for drug-trafficking offenses "[i]f a dаngerous weapon (including a firearm) was possessed”).
. In cases of "constructive” possession of a firearm, this court recognized the following restrictions would "eliminate[] the risk that the statute w[ould] reach noncriminal or constitutionally protected activity.”
Guided by ... decisions from other states, we find that under La. R.S. 14:95(E), when it cannot be established that the defendant was using or in actual possession of a firearm or that a firearm was within his or her immediate control, the state must prove more than mere possession of the firearm.
It must prove some connection between the firearm possession and the drug offense. This connection might be established by the following evidence: (1) the type of firearm involved; (2) the type of controlled dangerous substance involved; (3) the quantity of drugs involved; (4) the proximity of the firearm to the drugs; (5) whether the firearm is loaded; and (6) any other relevant evidence.
Blanchard, 99-3439 at 9,
. See Helms,
. See Blanchard, 99-3439 at 9,
.Similarly, and for completeness of responding to the defendant's arguments, we decline the defendant’s invitation to adjudicate the penalty under La. 14:95(E) as constitutionally excessive. The defendant has not been tried, not been convicted, and not been sentenced. Thus, any question as to the con