The Volokh Conspiracy

Ok, at THAT point, a lot of people I know and respect would start shooting at the "rescue" workers.

One would think collecting (and identifying) the dead would be a bit more important.

Brett,

Do you really mean that?

Prof. Kerr:

Interesting. I'm curious whether you think the Second Amendment has anything to say about this? Setting aside any factual questions about whether such seizure would serve a compelling state interest, do you think there is a CSI component to the 2nd Amdt.? Would such confiscations (assuming they're for the time being only) even trigger the Amendment? It's asking a lot to litigate the entire individuals/communities/militias/states question about whom the Amendment protects, but there are, I think, interesting questions around the edges.

Sure I do. Personally, I'd consider it imprudent, of course, (The smart man picks the time and place, he doesn't let it be picked for him.) but I've got some hardcore friends.

IMO this isn't about "rescue" or even public safety save in the most tenuous sense. It's just a rare opportunity for the gun control movement to pull off something they go to bed every night dreaming of doing, with a few tens of thousands of soldiers ready to land like a ton of bricks on anybody who resists.

Let me ask YOU a question: Do you seriously think those confiscated guns will ever find their way back to their lawful owners? Still in working condition?

This is the Utopia that the Brady Campaign et al. always wanted. Residents had no use for firearms the days shortly following the levee break, why need them now? They had nothing to fear, right?

Brett,

It seems to me that you are making a claim about motive without having any real evidence to back it up.

Presumably the authorities are taking away guns because they are evacuating everyone out of the city, and the evacuees do not need guns once they are out of New Orleans and in a relatively safe place. Isn't that more plausible than the idea that in the middle of evacuating the entire city, some politican has decided that this would be a great time to make the (empty) city gunfree?

The cited news story does not provide enough information to rationally assess the reported confiscation policy or to justify some of the knee jerk reactions in the comments. I can imagine at least two distinct scenarios playing out, with varying degrees of justification. Scenario 1: a displaced victim shows up at a staging area seeking a bus or helicopter ride out of town, and officials say "you can ride, but your gun can't." That seems fine to me. Scenario 2: officials are going from house to house confiscating guns. That seems more questionable. My guess is that what is actually happening is closer to scenario 1 than 2, and is less a form of confiscation than a ban on public carrying (which has the incidental effect of confiscation because gun owners obviously can't go home to drop off their guns).

For any forced-evacuee who isn't going to the government shelters, I cannot understand what possible reason there would be to force them to give up their guns.

If they're going to stay with their family in Wyoming, why can't they retain their firearm for the journey?

And isn't Houston Lawyer right, or doesn't this at least raise a takings issue?

Is telling a person to "drop your weapons" a takings? I'm playing devil's advocate here -- the city is under a mandatory evacuation order. If someone refuses to leave and is still in the city, then that person is breaking the law. Although the powers that be seem to have created an untenable situation by declaring a mandatory evacuation but saying that they don't want to use force to enforce that order, the effect of the order is to create a class of residents that are breaking the law. I assume that the point of taking away weapons is to diffuse a situation that could amount to a stand-off, but the very declaration to surrender arms may hasten a stand-off.
For another interesting perspective, see Chris Cooper's article in today's WSJ profiling some of the people who are staying. Not ignorant, poor people with no place to go but wealthy people flying in private security forces to enable them to stay in their homes. Will the private security forces be disarmed?

[...] you might notice that New Orleans was the city that started this fad of local governments suing the firearms industry. So there's no question about motive.

I think Orin's right here: speculating about motive without evidence leads to some fascinating claims.

As I understand it, FEMA is technically in charge, with the National Guard de facto running the place. I hardly see what (a? some?) civil suit(s) brought by the city have to say about military response to a disaster.

With all the other absurd choices made during the disaster and the natural impulse to establish control that comes with having the guard out, it hardly surprises me that their reaction would include disarming the populace.

I don't agree with it (I happen to be very pro-gun), but then I don't agree with a lot that's happened there.

Is telling a person to "drop your weapons" a takings? I'm playing devil's advocate here -- the city is under a mandatory evacuation order. If someone refuses to leave and is still in the city, then that person is breaking the law.

What's the legal authority for the "mandatory evacuation" order? What legislature authorized it? If someone is ordered by law to leave their property, isn't that a taking? (I suppose there's the temporary-takings-aren't-takings issue, but lets leave that erroneous precedent to the side for a moment.)

Do you really believe that law-abiding citizens with concealed carry permits were shooting at rescue personnel? It's a possibility of course, but highly unlikely. Armed law-abiding citizens protecting their life, liberty, and property should not be grouped with armed looters. While this clear infringement of the 2nd Amendment will be muted by the unique circumstances, I am curious HOW LONG this moratorium will last. What other sort of emergencies will warrant this?

I shouldn't get involved, but how exactly do we "KNOW" that, Brett? That's the part that confuses your perplexed interlocutors.

Goober, we "know" it, because the government of New Orleans has a history. It didn't spring up de novo as the hurricane approached shore.

Orin, "outlandish" is in the eye of the viewer, I suppose. In the last decade or two, many things have been done by our government in the name of gun control that I'd once have regarded as "outlandish" myself.

Are the police assuming that the people they are evacuating are all criminals? If not, they're in a peck of trouble.

Read the story again. It's not the feds doing this. It's the New Orleans police department.

And, sure they can do it. All it takes is a disregard for the Bill of Rights, and it's not like that is a scarce trait among government employees.

Wrong. The Supreme court has not yet admitted that the 2nd amendment applies to the states. Not quite the same thing.

And, as Scipio so kindly pointed out, the Louisiana constitution also guarantees this right. Care to argue that New Orleans police don't have to obey THAT constitution, either?

"Wrong. The Supreme court has not yet admitted that the 2nd amendment applies to the states."

Is that your version of a legal argument? Tell me, what's the logic behind that? Are you an originalist? If so, perhaps you can show me any evidence that the Framers intended for the Second Amendment to apply to the states, or that the Fourteenth Amendment was intended to incorporate the Second?

"Care to argue that New Orleans police don't have to obey THAT constitution, either?"

Where did I say anything whatsoever about the state constitution?

Geez, my wife's first reaction to all the news from down there was "Do we need any more guns?"

The answer happens to be no, but apparently we do need good hiding places for them.

"Mahan, although the SC hasn't said anything, Akil Amar has made the originalis case for incorporation of the 2nd A."

But merely wanting the Constitution to be interpreted a certain way doesn't make it so.

So when Brett says the police are "disregarding the Bill of Rights", doesn't he really mean they're disregarding his interpretation of it?

Heck, I think the Constitution should be interpreted all kinds of ways the Court has never ruled; so when are all going to stop diregarding my interpretation of it?

I encourage those to read a Justice Department memo entitled "Whether the Second Amendment Secures An Individual Right" prepared for then-Attorney General Ashcroft on August 24, 2004. They ultimately conclude that the Second Amendment secures an individual right to bear arms rather than collective right. They outline a facinating and vigorous history of this individual right from 1688 to the present day.

I too believe that there is a big difference between telling people that they have to be evacuated, but that they can't take their guns, on the one hand, and seizing their guns from them otherwise, esp. from their houses. And yes, this is a legal difference without a practical one, since odds are that the guns won't be there when they get back.

For example, despite that provision in the LA constitution, I have no doubt that non-police are disarmed before entering the courthouse. Any more, this is done nation wide. The difference between different jurisdictions seems to be whether or not provision is made for storage of your gun while you are in court (yes, some court houses provide that, while most do not).

When I was in-house counsel in AZ, I had posted notices on the entrances to the plant that firearms were not allowed on the property. Technically, the employees weren't supposed to have them in their cars either, but that just technical, as we all knew that they did. What would you expect with many of them having concealed carry permits? Indeed, I had one of the guards admit to me that he had an arsenal in his car, a dozen feet from his guard shack. I had to tell him that I assumed that he would remedy the situation (though I knew he might not).

Was this an infringement on their right to bear arms? I didn't think so then, and still don't. As an employer, I felt we had the right to have this policy.

Of course, things change a bit when you have state actors. But if phrased that they can't take their guns with them, I don't see it really being any different from the court house situation.

I fail to see where you disagree with me, Bruce; All you've done is explain WHY they try to disarm the populace.

It's been fun watching this thread spin out of what is, essentially, a poorly-reported, vague and ambiguous reference to one person saying "Only law enforcement are allowed to have weapons" with no basis for that assertion.

Is that a personal opinion of Mr. Compass, or is it City policy? Has martial law been declared (which, it seems to me, often suspends many of our most cherished freedom) or does the mandatory evacuation order implicitly or explictly specify citizens rights to have guns have been suspended?

There's so much unknown about this one story, and yet people here seem willing to fill in the blanks with beliefs and presuppositions.

For the record: CCW allowed or not, I'm not going to show my gun(s) to an authority during an emergency, and I'm not going to stand for a search of my person or property without a valid legal reason (a warrant is, I believe, just one such possible document). In times like these, people can't even call 911, so they're going to be on their own if a predator threatens. In that situation, I'm going to stand on my rights to defend life...and if that means using deadly force, I'll do what's called for.

Then, all the lawyers can line up on one side or the other to prosecute or defend me. The problem with that, of course, is that the three seconds it took to defend a life will be examined and (mis-)interpreted for months and months on end before a decision is rendered, depending on which side you are naturally on.

You mean New Orleans still has a police department?

Guns are needed most where gun rights are restricted most.

Ah, that explains the Amadou Diallo shooting, which took place in the Bronx!

Reader: Your first scenario is ongoing, and well-known.
The second is what this article is about. Here's a video.
Seems to me like door-to-door confiscation.

I've read that the LA "state of emergency" statute permits seizure of private property for public use. Maybe the state actors haven't considered the LA Constitution problem with applying that to guns?

I suppose the fact that Manhatten has a documented crime rate (including gun crime rate) well above much of the rest of the country is meaningless to you?

Well, as Mayor Bloomberg (and Giuliani before him) never stopped reminding us, New York has the lowest crime rate of any large city in America, so... I guess your charge is, in fact, meaningless to me. (link)

NYSofMind: I don't know what it is with this site hatin' on New York. Some people just don't like the City, I guess. (Frankly, I'm not too surprised that they're the same people who do really like guns.)

That's an interesting pair of posts from Goober and Steph. Goober claims that "New York has the lowest crime rate of any large city in America", while Steph notes that "Otherwise law abiding citizens of NYC break the gun control laws reguraly. Also many other self defence devices are illegal and many New Yorkers own them". Perhaps what is meant by "lowest crime rate" is "lowest incidence of crime detection and reporting" rather than the prima facie meaning of "lowest crime rate", which would seem to suggest people not committing crimes.

SimonD:
"There is no argument I've seen which is convincing that could differentiate the first amendment, for example, from the second. "

Actually, there is a significant difference: the 1st begins with an explicit, "congress shall..." and the 2nd amendment does not. Regardless of how good the reasons might be for "partial incorporation", it seems it would make reading the constitution just a little too much like "newspeak" if the 1st was incorporated by the 14th but the 2nd was not. Just my opinion.

First off, I don't hate NYC. I'm not a fan of big cities generally as places to live, but a brief visit is always fun.

But if indeed it is true that NYC has a lower crime rate than, say, Chicago or DC (to pick two at non-random), then it's worth noting that NYC has less complete gun prohibition than either of those cities; that is, you can more easily get a (legal) gun in NYC.

To pick at Goober's post even more, if the appropriate basis for comparison is "large cities," and those cities tend to have more restrictive gun-control laws than small towns or rural areas, is that not an admission that there are big factors other than rate of gun ownership that cause crime?

NYSofM is certainly correct that unnecessary escalation of situations is a problem; pulling a gun on a belligerent drunk is almost always the wrong answer. What I resent about NYSofM's post (besides his "Gee, Manhatten is so superior, why doesn't everyone copy us?" attitude) is that he seems to think I am incapable of telling the difference between a person who is merely an angry drunk and one who is a genuine lethal threat.

That assumption--that my judgment and intelligence are inferior because I own guns but not a badge--are what lead me to repeatedly respond, in a sometimes miffed tone.

NYSofMind, lets try a thought experiment. If you were a criminal, and you had the choice (say in a Star Trek sort of world) to choose between walking into one of two different worlds, one in which everyone owned a gun and the other in which no one owned a gun, which would you choose?

I think the vast majority would choose an unarmed populace, because it is easier for them to continue to commit crimes when the people are unable to defend themselves.

There are a great many factors that go into a crime rate in a city, so the sole fact that New York has a lower crime rate than San Antonio, and has less (legal) guns, is not enough to say that less guns equals less crime. Its a correlation, not a causal relationship. Go to the research on a wide variety of cities and find data, rather than anecdotes. ("The plural of anecdote is NOT data.")

Is that enough data?

Again, I'm not saying no guns is necessarily better; I'm just saying that plenty of guns seems not to be a decisive influence on crime.

And given the choice between thought experiments and data, I choose data.

Our founding fathers warned us about such things of Goverment getting out of control. Let this be that warning. You're seeing it happen first hand, what's next?

Freedom doesn't exsist in America, it's a POLICE STATE!!!

NYSofM,

My bad on the spelling. I'm typing with a baby on my lap so I'm not being too careful.

Has NYC always had that low crime rate in the 23 years you've lived there? Their restrictive gun laws date to the 1920's, I think. "Death Wish" came out before I was born, but it isn't a story of a placid and well-run city. Given that, is it fair to credit gun control with the low crime? And how do you deal with Chicago and DC?

You still haven't addressed the point that there are large swaths of the country where (legal) guns are thick on the ground but crime essentially doesn't occur.

Nor have you addressed the obvious point that there are lots of guns in NYC owned by criminals.

Or the fact that NYC's police department is huge compared to many cities.

Or finally, the question of whether the crime in other cities (and for that matter in NYC) is being committed by or against the same peopele who legally own guns. It's possible that the populace that suffers from crime is exactly the populace that doesn't own guns (and by people who own them illegally), while the gun owners live fairly safe lives.

Plainly, we cannot put this debate to rest with a few blog comments. But neither can you expect to make a simple comparison and draw valid conclusions.

Kobayashimaru-

As I said above, I wasn't trying to use the data to say that no guns=less crime. I was using it to say that more guns does not equal less crime. That same fact applies to Mr. Lyman's use of Chicago and DC as examples of cities with strong gun control and high crime.

Now, as for the prevalence of guns in the hands of criminals in New York-- so what? Criminals everywhere have guns. It's hard to commit a crime without a gun. We're not arguing over whether gun control takes guns out of the hands of criminals, we're arguing over a) whether having guns makes a given population safer, and b) whether having guns makes an ordinary citizen more likely to become a more serious criminal, or at least to do something rash and unwise. My point is, even with the criminals having guns, New York seems to have done really well being safe, without guns being available to the general public.

NYC's police department has been shrinking, and crime has continued to go down. Yes, tactics are a huge part of it, but that doesn't defeat the argument that guns are unecessary to creating a safe city. If New York can do it, obviously other places can, too. Better policing is a huge part of making people safe, whether or not civilians all have guns.

I do want to stress that I'm sorry that my concerns have come across as directed at all gun owners. I certainly don't believe all, or even the majority of gun owners are crazy/reckless/irresponsible, and I do believe that many gun owners can maintain their composure and not start shooting wildly at the first sign of confrontation.

The issue for me continues to be that if guns are not good for society at large, and we know that there's a small number of people who, owning guns legally, will use them for bad ends or will snap under pressure, why keep guns in the general public? if ten percent of gun owners would use their guns as they're being used in New Orleans, that's reason enough to take them out of circulation. I put the number phenomenally high at ten percent, simply to state my point... I don't know what the percentage is, or what the threshold would have to be before the cost-benefit analysis of gun control goes the other way. That's how I want it framed-- not a majority of gun owners, but just enough to make things awful.

A thought: Let's extend that logic. If ten percent of all drivers use their vehicles in a dangerous manner (e.g., drive drunk, excessive speed, used in conjunction with violent crimes), is that not sufficient reason to ban automobiles entirely? I'd say that ten percent would be a vast UNDERESTIMATE when it comes to vehicles used in this manner. What about baseball bats or knives? Based on the same rationale(?) shouldn't they be banned from public use?

Irrational? Exaggerated? Stupid? Nope. It's the exact, same logic. You are blaming an inanimate object for the behavior of the individual and proposing to "solve" the problem by taking useful TOOLS away from the vast majority who use them appropriately. At what point and with which items does the logic end?

And, by the way, I don't have a driver's license either (always lived somewhere with public transportation).

And, by the way, I do have a driver's license and I've NEVER lived in a region with adequate (or, sometimes ANY) public transportation.

Essentially, what this discussion boils down to is a set of potentially valid arguments based on, depending on your point of view, fallacious premises. Throughout your arguments, you present a series of "straw man" assumptions that are intended, utilizing your term, to 'frame' your argument. It is not that you have a necessarily nefarious intent; any 'frame' is designed to enhance, or at least not detract, from the appearance of the picture you are attempting to display.

Let's take only your last post rather than scrolling through this entire discussion. First, you posit that "guns aren't quite the same faciliating element" as vehicles for the American 'expanse.' If we accept this as a valid position, we are also forced to acknowledge that there is both a spatial and a temporal component to your argument.

In the not so distant past, although certainly longer ago in the eastern U.S. than in the West, guns were an absolutely essential element (and yes, in the hands of 'civilians') in the facilitation of the American landscape. Putting aside the retrospective harangues of structuralist, post-structuralist, modernist, and post-modernist authors, the United States would look quite different, and to most, unacceptably or incomprehensibly so, had it not been for firearms.

Likewise, the temporal element is intrinsic to your presentation that automobiles are necessary for travel between "Nebraska and Chicago." It seems to me that, once again, this is a premise based upon relatively RECENT history and cultural development. Without reinventing the above discussion related to the definition of "need," the premise of necessity is founded on the 'good of the whole' rather than on the individual.

But, America is a BIG place and most of your discussions focus on why they are no longer necessary on a rather small spatial scale; e.g., cities, where you have a concentration of population in a fairly confined space that requires less upon a person's individuality and more upon the cooperation of the group to function properly. Thus, anything that, real or imagined, which would, potentially, disrupt the uniform functioning of the infrastructure designed to accomodate group efforts is suspect at best and "criminal" at worst.

Such a focus on the group is, in many respects, the source of tension as related to issues surrounding the Bill of Rights. Do individual rights supercede the purported "will" of the group? Given the historical context of the Constitution's creation, the legal precedents as set forth by the judicial system (bearing in mind that the Supreme Court has never made or had a case which required a DIRECT ruling on the 2nd Amendment as related to individual right), and the historically proven fact that "government" (be they FEMA, state unemployment, county welfare, or local police) is neither designed nor capable of effectively dealing with the individual in either a preventive or immediate manner, there can be little doubt as to the source material for the stereotype of Americans as "individualists."

Second, you claim that "pro-gun advocates" cannot claim any positive 'externality' beyond the 'theory' (?) of a safer or more polite populace. The stance of a 'safer' populace is, admittedly, hypothetical until one defines what they mean by "safer." Is it a term defined by quantifiable elements related to a group or is it more a socio-psychological element intrinsic to the individual?

You have attempted to, in part, use gross statistics of crime rates. Again, the fallacy in this is spatial-temporal. Your scale is too small to provide an overview or act as a predictor; and is, in fact, contradicted as either by anecdotal evidence too lengthy to cite here. In addition, an individual, a family, or even an entire group living in the hinterlands of, say, Rexburg, ID or Dripping Springs, TX may have a different list of elements, tangible and intangible, which contribute to a "safe environment," particularly given the distances to be covered by governmental personnel (i.e., police/fire) in an emergency than those in a major U.S. city with myriad precincts and roving patrols.

The spatial issue is also intrinsic to our self-image as "Americans." Given the size of things "continential" (say the distance between Nebraska and Chicago or New York and Los Angeles) and the diversity of both the cultural and physical landscape, Americans have a traditional self-image of "rugged individuality." This is the very crux of our love affair with, at one time, the horse, and now the automobile. Without which, as you allude to, one is "trapped;" or, more precisely, lacking in independence or in having the liberty of movement.

Same with a gun. For many, without one, the individual is no longer "independent," but reliant upon the largesse of a group (society) for protection, sustenance, identity and, by derivation, psychological comfort. This loss of independence/liberty, whether via the automobile, firearms, or other, can have a very real impact on an individual's and a society's self-image and ideology.

It is also temporal in the sense that one is forced to ask "when" in relation to not only the statistics themselves, but in how long it took for the stats to reach their current levels - e.g., 'How long after gun control was codified in your region do we see a significant increase in quantifiable elements of "safety"?;' 'Is there a direct correlation between such legislation and time or do other cultural/demographic/legislative variables have more influence during that time frame?;' etc.

But, as you say, "safety" can be a debatable premise for individual gun ownership IF we were to accept, as you suggest, that, with the exception of 'target practice,' it were the ONLY positive externality pro-gun advocates were able to advance in defense of their position.

Were one to do more than speed (time is money and it makes no sense to travel at walking, bicycling, or even horse riding speeds) through farm and ranch country, they would find that firearms are indespensible TOOLS. They are used to keep varmints (coyotes, cougars, prairie dogs, rabbits, etc.), a very REAL problem, in check; the alternative being poisoning which is neither ecologically safe nor FDA approved in so far as the potential for entry of such poisons into the food supply.

For many residing in rural areas, a firearm (not to mention a fishing pole) still, even in today's agribusiness/microwave/"what do we do with the frozen food when the power goes out" society, legally (and, yes, for some, illegally) puts food on the table for many marginally incomed families; including the farmers and ranchers who operate on VERY slim margins due to the high costs of those farm "vehicles" which they must have to harvest and transport their commodities in today's marginal markets.

Though one may, depending on their value system and cultural perspective, debate the issue, firearms provide a family or social activity that, if done with proper attention to safety issues and in the appropriate venues, serves much the same purpose as bowling, movie going, amusement parks, or other forms of entertainment. Such activities are problematic in a heavily developed, urban environment; but even at that, there are indoor shooting ranges. They provide a reasonably safe source of shared interest, intellectual pursuit, and enthusiasm which bonds and provides the opportunity of passing on or sharing familial or societal traditions; much as "the hunt" or "the harvest" does in numerous societies.

If taken seriously enough, shooting can become and IS a recognized, honorable, and traditional sport. It can be participated in as either an individual or as a team. To be competitive, one must exercise discipline, self-control, attention to detail, AND be in reasonably good physical condition. Aren't those positive attributes for an individual?

In the end, if one wishes to discuss this on anything other than a legal, historical, or constitutional basis, then it becomes much like the very first question one is confronted with in many an introductory course in philosophy; particularly "logic." Query: Does God exist - yes or no? Depending on which answer you select, ALL of your subsequent queries, arguments, assumptions, premises, etc. will be based on that SINGLE premise. The same with guns. Do you believe in an individual's right to own firearms - yes or no?

To frame it in much the same manner that you posit in your last post - the main problem is that REASONABLE (yes, the reactionary crowd does tend to undermine the more reasonable arguments) pro-gun advocates CAN cite more than simple safety/target practice issues as positive 'externalities' based on their own spatial-temporal premises. Meanwhile anti-gun proponents can, in general, only offer viscerally charged, perceptually skewed prose backed by dubiously applicable "data" to support their position. This is why the gun control community often relies on emotion charged, anamolous (but, unfortunately, decreasingly unique) events such as Columbine, Patrick Purdy, or Hurricane Katrina as windows of opportunity to advance their agenda; letting the 'emotion of the moment' cloud the lack of valid, logical argument related to cause-effect-legacy. [There is no doubt regarding the temporal correlation between events such as this and legislative actions which, in many cases, would not have prevented the incident, but have in some measure stripped or limited the law abiding gun owner of their liberties.]

It is also why the Founding Fathers and the States which ratified it, created a Constitution which provided a framework for government, but also focused on INDIVIDUAL rights; with a lot of "shall nots" insofar as the government or society being able to infringe thereupon. It was intended to provide a tangible source of protection and redress for the individual when "the emotion of the moment" (sometimes synonomously phrased as "interpret for our time") would push political leaders in unacceptable, unconscionable, undesirable, nefarious, erroneously premised, ill-advised, or even incompetentence covering directions.

What can i say here, all i see is Americans arguing amongst thereselves while local, state, and federal governments are activily stripping your fellow citizens of the rights we all share and hold sacred. I guess you can say this is a test for America in some ways. People of America, what will you do when the authorities come to YOUR homes and try to confiscate YOUR weapons under false pretenses? We all have a duty to defend our constitution agains foriegn and DOMESTIC enemies!