Shooting Times

NRA – ILA

Charlotte, NC –-(Ammoland.com)- This May, New Orleans was back in the gun rights headlines when the U.S. Court of Appeals for the Fifth Circuit issued its latest ruling in Houston v. City of New Orleans.

The case once again shed a light on the city government’s propensity for firearm confiscation.

The case stems from a July 2008 traffic stop in which Errol Houston, a Right-to-Carry permit holder, was charged with illegal possession of a firearm and other offenses. Prosecutors later dropped all charges against Houston. Despite this, the Orleans Parish District Attorney’s Office and New Orleans Police Department refused Houston’s requests to have his firearm returned. After a year of denials, Houston decided to take his case to federal court.

In taking the case before the U.S. Court of Appeals for the Fifth Circuit, Houston’s attorneys from the ACLU of Louisiana argued that the continued retention of his firearm violated his Second Amendment rights. In response, District Attorney Leon Cannizzaro argued that since the government could conceivably re-file the original charges against Houston at any point within six years of the arrest, it could hold onto the firearm until the clock ran out.

In March of this year, the Fifth Circuit ruled in favor of the City of New Orleans. In the opinion, Judge Rhesa Hawkins Barksdale wrote, “The right protected by the Second Amendment is not a property-like right to a specific firearm… Houston has not alleged defendants prevented his ‘retaining or acquiring other firearms’… Therefore, he has not stated a violation of his Second Amendment right.” 

In a dissent that was both well reasoned and impassioned, Judge Jennifer Walker Elrod noted her colleague’s error: “In reaching this conclusion, [the majority] holds the Second Amendment does not protect an individual’s ‘property-like right to a specific firearm’ unless the government has prevented him from ‘retaining or acquiring other firearms.’ This exception cannot be reconciled with Heller and McDonald.”

To drive home the absurdity of the majority opinion, Judge Elrod suggested how the majority’s reasoning might apply in other areas of law:

Consider, for example, a court holding that the Free Speech Clause affords no protection against the government preventing the publication of a particular editorial in the New York Times because there are plenty of other newspapers that might publish the piece. Or consider a court holding that the Fourth Amendment is inapplicable to the unreasonable seizure of a specific automobile so long as the government does not prevent the owner from borrowing, renting, or purchasing a replacement vehicle.

Following the outrageous ruling, Houston’s lawyers petitioned to have the case reheard. In May, the Fifth Circuit granted the petition and reversed itself, abandoning its strange reading of the Second Amendment. The new opinion simply notes that two state statutes “mandate the return of property … to its lawful owner when it is not contraband and is no longer needed by law enforcement.” The opinion returned the case to a lower court, where, if the government attempts to further retain Houston’s firearm, the district attorney will be required to make the case that the government has an “active ‘use’ or ‘need’” for the gun.

The new ruling represents an important victory for gun rights, property rights and due process in Louisiana as it ensures prosecuting attorneys must prove a legitimate need for retaining property after charges against a person have been dropped. The NRA worked with Houston’s ACLU counsel, sharing NRA’s expertise on the Second Amendment aspects of the case, and also filed a “friend of the court” brief on Houston’s behalf.

About:
Established in 1975, the Institute for Legislative Action (ILA) is the “lobbying” arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution. Visit: www.nra.org