Constitutions and Emergencies:

The New York Times reports:

Waters were receding across this flood-beaten city today as police officers began confiscating weapons, including legally registered firearms, from civilians in preparation for a mass forced evacuation of the residents still living here.

No civilians in New Orleans will be allowed to carry pistols, shotguns, or other firearms, said P. Edwin Compass, the superintendent of police. "Only law enforcement are allowed to have weapons," he said.

But that order apparently does not apply to the hundreds of security guards whom businesses and some wealthy individuals have hired to protect their property. The guards, who are civilians working for private security firms like Blackwater, are openly carrying M-16's and other assault rifles. Mr. Compass said he was aware of the private guards, but that the police had no plans to make them give up their weapons.

Note, though, that the Louisiana Constitution, art. I, sec. 11 (enacted 1974), provides that

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.

Is there some implicit emergency exception to the right to bear arms here? On the other hand, doesn't the emergency make the right especially valuable to the rightsholders? Should it matter that the government seems willing to let "businesses and some wealthy individuals" hire to people use arms "to protect their property," but isn't willing to let less wealthy individuals use themselves and their friends and relatives to protect their property (and their bodies and their lives)?

Anderson (mail) (www):
I'm no gun advocate, but I'm with you this far: either all the private citizens give up their guns, or none does.

And frankly, the La. gov't is setting itself up for some badass lawsuits under whatever the state version of section 1983 might be.
9.8.2005 6:57pm
Robert Lyman (mail):
This poses an interesting dilemma for some folks the left.

On the one hand, confiscating guns is probably something they support.

On the other hand, this particular policy is skewed in favor of the rich in a way that, frankly, I don't think ANYONE could possibly support.

Which way to they jump?
9.8.2005 7:02pm
Michelle Dulak Thomson (mail):
Given that there's a mandatory evacuation order in effect, the private-security forces have no business being there in the first place.
9.8.2005 7:03pm
Bruce Hayden (mail) (www):
Are they really carrying M-16s? Seems doubtful. This is back to the Assault Weapon Ban, where nasty looking semiautomatics were classed as dangerous "Assault Weapons", despite not being really any more dangerous than other semiautomatics.
9.8.2005 7:07pm
Guest Visitor:
You will remember Ted Kennedy and his security guard with the unlicensed submachine gun, or Rosie with her armed guards. Many on the left see no problem with taking the arms away from every one else, but letting the rich keep theirs.
9.8.2005 7:17pm
The Brazilification of New orleans?

I am as comfortably "left-leaning" as anyone: a gay, urban professional and registered democrat. A number of influences, however, including this fine blog have sensitized me to the issue of gun rights and the important policies underlying them. Hurricane Katrina has, perhaps, pushed me "over the edge" on this issue. I will shortly obtain a firearm and seek training on how to use it. I plan to keep in in my house, in part, to protect against lawlessness that might attend a similar disaster.

Accordingly, it seems wrong to force citizens to give up their firearms, even in the context of ensuring an orderly evacuation--although I am open to compelling arguments otherwise. Indeed, in the final analysis, it may be these compelling reasons that permissibly trump any constitutional protections at play here.

However, any way the arguments fall, permitting other private citizens to employ armed guards while discriminating against others by stripping them of their protections seems terribly wrong. One might suppose that these armed guards might be better trained on the use of such weapons, and less of a threat to public order. But I would assume the thousands of veterans, public safety officers and others caught in the evacuation are similalry well-trained.
9.8.2005 7:22pm
The racist roots of gun control continue ..... check out the history of gun control and how it was used to control the blacks throughout our history.
9.8.2005 7:23pm
htom (mail):
If there's an emergency exception, it should be that the normal paperwork for possession, transfer, sale, storage, ... carry (concealed or not) should not be required, and violations of those requirements during the emergency should not be prosecuted.
9.8.2005 8:03pm
Sigivald (mail):
Bruce: Well, you can't expect a newswriter to know that an AR-15 and M-16, which look identical at any distance, are really different things.

And, of course, the substantive point is unaffected by the lack of select-fire capability.
9.8.2005 8:04pm
roy (mail) (www):
The left's gun control plans have always favored the rich. This won't create a new problem for them.
9.8.2005 8:18pm
Robert West (mail) (www):
Roy - that doesn't make any sense. Most of the leftists I know are outraged at anything which favors the rich over the poor.

I don't understand how this policy is even remotely legal.
9.8.2005 8:20pm
countertop (mail):

I recommend you check out Pink Pistols.

Or Alphecca.
9.8.2005 8:21pm
Brett Bellmore (mail):
It seems to me that if the POINT of a constitution is, as the founders claimed, to hold at bay temporary passions until there has been time for calm reflection, then the very LAST time constitutional provisions should be allowed to be suspended, is in emergencies.

In any event, the naked fact that the constitution in question doesn't authorize such suspensions should settle the matter.
9.8.2005 8:27pm
Bruce Hayden (mail) (www):

You are correct that it doesn't change the substantive point being made - it is that just whenever I see this sort of thing, I question the objectivity of the reporter making the observation.
9.8.2005 8:32pm
A. Rickey (mail) (www):

Your comment made me laugh, thinking maybe that conservatives should start talking about the tragedy of low expectations for journalists. Why can we not expect a journalist to get a basic fact correct, especially when if he wasn't sure of the make, the journalist could just leave out "M-16's and other" without altering his story?
9.8.2005 8:34pm
nk (mail) (www):
If Louisiana is anything like my state, security guards who are allowed to carry firearms are special police who have gone through a training course similar to that of the sworn police. They are allowed to carry guns while on duty and on their way to and from their job. The "licensee", i.e., their boss, must have training and background equivalent to a sworn peace officer -- usually he is an ex-cop. It's easy to take the jaundiced view -- but policemen were shot. No, no, no, you do not want your gun pried from your cold, dead fingers. Give it up and buy a new one.
9.8.2005 8:42pm
HWK (mail):
solution is simple: citizen A hires citizen B for $1.00 to be his private security guard. Citizen B hires citizen C similarly, and C hires A. Everybody is a private guard, and everyone is protected.
9.8.2005 8:50pm
Passing By:
Is it possible that the order to disarm civilians came from a federal authority, and was simply being recited by the mayor?
9.8.2005 8:57pm
Anderson (mail) (www):
nk is probably right, but I still admire HWK's solution.
9.8.2005 8:58pm
Gullyborg (mail) (www):
Wow. I'm just a 3L so don't take what I say seriously... but...

Even if you don't find that the State and US Constitutions guarantee an individual right to bear arms, wouldn't this law STILL be unconstitutional as a violation of equal protection? Wouldn't it fail a rational basis test? Depriving the underprivileged of protection when allowing the rich to have mercenaries armed with machine guns? How is THAT supposed to advance any rational state objective? And who decides whether or not you are a "bodyguard"? Is there an objective standard or is this arbitrary and capricious?

OK, I'm done throwing out buzz words. Continue reading.
9.8.2005 9:03pm
The firearms in question could be a M16 (machine gun)(press the trigger once and lots of bullets come out). An AR15, is the semi-automatic version (press the trigger once and only one bullet comes out). AR15's are quite common and the stupid Clinton Assualt Weapons Ban didn't make them illegal. In an urban environment, you'd want your M16/AR15 to be on semiautomatic mode. Automatic fire is wasteful of ammo and can lead to errant shots hitting innocents or a propane tank.

Machine guns are legal as long as you pay the tax ($200). No new machine guns are being made legally or imported though, so they are quite expensive.

If you wanted to own a machine gun, you'd have to go through an extensive background check and get sign off by the local law enforcement chief. If your corporation wanted to own one, it only needs to pay the tax ... no checks, etc.

We can't have the common people to own guns. Just look at the last time that happened. A bunch of religous nuts with guns rebelled against the King of England.

I'd like to try to get an emergency injunction filed to stop the confisation Are there any web sites that can tell me how?
9.8.2005 9:24pm
SPQR (mail) (www):
A perfect example of the fact that gun control really has only one purpose - the convenience of the police.
9.8.2005 9:36pm
Wince and Nod (mail) (www):
Here's another Constitutional question. Why is FEMA Constitutional?

Look at the powers of Congress. Emergency relief isn't there.

9.8.2005 9:40pm
Justin Kee (mail):
Don't forget about Social Security. Nothing literally in the Constitution about that one either......
9.8.2005 9:56pm
Ignorant Math Guy:
Wince and Nod:

Isn't FEMA a part of the Executive Branch? So why would we look at the "powers of Congress" to justify it?

And BTW, isn't "promoting the general welfare" enough to justify FEMA? While not a "power of Congress," isn't it a general and over-arching duty of the entire Federal Government?
9.8.2005 10:44pm
Voolfie (mail) (www):
I'm confused - as usual. Let me see if I understand this:

Are the people of N.O. to believe that NOW the police will protect them - when only two or three days ago, individual members of the police force tossed their badges back at city hall and joined the looters?

Are the people of N.O. to believe the pronunciamentos from city hall that NOW everything is OK - and only "authorized" people can possess firearms?

Obviously, the bad guys need to be disarmed. But, this smacks of standard, governmental, broad-brush stupidity.

Were I in N.O. right now, a badge would mean nothing to me. I don't care who you are or say you are - you keep your distance until I'm convinced you're a good guy.

...And good guys don't try to disarm other good guys.

The police have no credibility in New Orleans...not now.

The re-establishment of law must be just that: a re-establishment of LAW; the Constitution and its protections are the highest of that law which the authorities seek to re-establish.

This is arrant class-ism. This is a blanket pronouncement that all people in area 'X' are criminals - or as good as. Therefore, their right to keep and bear arms is null and void.

The government of New Orleans, Louisiana and the United States - all need to CONVINCE the people that order has been restored - not beligerently assert an authority that they abdicated a week ago!

This is patently unacceptable.
9.8.2005 10:51pm
Bruce Hayden (mail) (www):

So, you are essentially suggesting that it is plausible that those private security guards might just be toting M-16s, instead of the AR-15s, etc., which is what I assumed. Is it really that easy these days for a corporation to get machine gun permits? That would seem like a loop hole that you could drive a truck through.
9.8.2005 11:16pm
Brian in Colorado (mail) (www):
Here is a video of what it looks like when our armed forces turn against our own people.

These people are defending their homes, and have been since the N.O. police department melted down last week (a combination of spontaneous resignations, the failure of the 8mhz radios, and some officers' desire to join the looters instead of police them).

Now force is being applied, they are put at gunpoint and disarmed. Why? To what end? And why if evacuation was the order of the day did they let them stay after taking away their guns?
9.9.2005 12:23am
In his concurrence in Duncan v. Kahanamuku, Justice Murphy articulated a standard for the imposition of martial law which would seem to apply almost perfectly to the New Orleans situation.

>"Such considerations led this Court in Ex parte Milligan, 4 Wall. 2, to lay down the rule that the military lacks [327 U.S. 304, 326] any constitutional power in war or in peace to substitute its tribunals for civil courts that are open and operating in the proper and unobstructed exercise of their jurisdiction. Only when a foreign invasion or civil war actually closes the courts and renders it impossible for them to administer criminal justice can martial law validly be invoked to suspend their functions. Even the suspension of power under those conditions is of a most temporary character. 'As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power.' Id., 4 Wall. at page 127."

Here, it is a natural disaster rather than a foreign invasion that "actually closes the courts and renders it impossible for them to administer criminal justice." It is not clear to me if this makes a difference given that natural disasters traditionally invoke compelling state interests.

If Justice Murphy is right, the state may be able to do virtually anything it wants at this point..It can call out the militia. If it wants to define the militia as consisting of "security guards", that would appear to be its prerogative. The fact that martial law may not be authorized by the state constitution would appear to be, like other alleged state law errors, not a matter of federal concern.

Given the number of people being held without charge or bail in Louisiana jails at the moment, it is clear that the writ of habeas corpus has de facto been suspended. If this is so, why complain about a little bit of 2nd amendment infringement or a little bit of allegedly unequal enforcement?

One might as well complain that the jails don't have adequate libraries and all the other day-to-day complaints that are, quite frankly, on hold at the moment.
9.9.2005 12:25am
In his concurrence in Duncan v. Kahanamuku, Justice Murphy articulated a standard for the imposition of martial law which would seem to apply almost perfectly to the New Orleans situation.

>"Such considerations led this Court in Ex parte Milligan, 4 Wall. 2, to lay down the rule that the military lacks [327 U.S. 304, 326] any constitutional power in war or in peace to substitute its tribunals for civil courts that are open and operating in the proper and unobstructed exercise of their jurisdiction. Only when a foreign invasion or civil war actually closes the courts and renders it impossible for them to administer criminal justice can martial law validly be invoked to suspend their functions. Even the suspension of power under those conditions is of a most temporary character. 'As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power.' Id., 4 Wall. at page 127."

Here, it is a natural disaster rather than a foreign invasion that "actually closes the courts and renders it impossible for them to administer criminal justice." It is not clear to me if this makes a difference given that natural disasters traditionally invoke compelling state interests.

If Justice Murphy is right, the state may be able to do virtually anything it wants at this point..It can call out the militia. If it wants to define the militia as consisting of "security guards", that would appear to be its prerogative. The fact that martial law may not be authorized by the state constitution would appear to be, like other alleged state law errors, not a matter of federal concern.

Given the number of people being held without charge or bail in Louisiana jails at the moment, it is clear that the writ of habeas corpus has de facto been suspended. If this is so, why complain about a little bit of 2nd amendment infringement or a little bit of allegedly unequal enforcement?

One might as well complain that the jails don't have adequate libraries and all the other day-to-day complaints that are, quite frankly, on hold at the moment.
9.9.2005 12:26am
Bob Christensen (mail) (www):
The concealed weapon permits that I hold from 4 states are honored by statute in LA on a reciprocal basis. By statute, LA law in the area preempts local jurisdictions. The restrictions on my licenses to carry are specific in the LA statute as to relatively limited number of places where I may not carry a weapon. There is no provision for any sort of waiver of the provisions of the state law under which I can legally carry a weapon on the basis of emergency or convenience to the government. I cannot imagine on what basis a permit holder can be interfered with, but the news stories make the point that all weapons are being confiscated. If I were to volunteer my skill to the effort, there is no way I would proceed without an ability to protect myself in what is unquestionably a risky environment.

These folks just seem to have perfect pitch for the wrong notes at the wrong time.
9.9.2005 12:52am
Brian in Colorado: there was another interesting bit in the video. Everybody has been joking about the third amendment lately, but did you catch the part about the soldiers using a church as their field headquarters and having to leave a note for the pastor because they had no way to contact them for permission?

I still fail to see any reasonable legal basis for the NOPD to confiscate private firearms.

Someone else asked about machine guns (NFA weapons) and corporations. The answer is yes, it is trivially easy, depending on the laws of the state, for corporations to purchase and posses machine guns. Unless they are able to purchase them as "demo" units for a local LEO (Law Enforcement Office (department really)) they will have to pay market rate for pre-1986 machine guns. Anything manufactured after 1986 is not legal for private ownership (with very small loopholes). At last glance the going rate for an actual (fully automatic) M-16 was $7K-$12K.

The 1986 Gun act was very much a "gun control" law that heavily favored the rich. It did not hinder private ownership of machine guns, only those made after 1986, sending prices sky high.

The cost to police/military for current machine guns (M16, MP5) is $800-$1500. The price for equivilent guns for private parties is $7-15K. The effect is to take machine guns out of the hands of law abiding citizens who are not independently wealthy.
9.9.2005 12:56am
Brian in Colorado (mail) (www):

It would appear that you are correct about the courts being closed; however, I found this to be interesting:

The federal district court is accepting electronically filed "emergency" filings. It would seem to me that a H.C. petition, or another suit invoking or seeking to enforce federal law (posse comitatus allows Nat. Guard troops to act as domestic law enforcement ONLY at the direction of the GOVERNOR, not a local MAYOR), or perhaps to enforce the Second Amendment.

Watch the video, though.

The most freakish part is the point where the young N.G. guy basically admits he's prepared to fire upon US Citizens whose only "crime" will consist of declining to render themselves defensless in a time of anarchy.

With this willingness on the part of LEOs and N.G. people to do this, I think we all have our answer. Look at Israel, and how their troops also applied violent force against their own populus as well. In America its long been thought by many that if push came to shove, that is, if a real corrupt regime came to power, that the military and police would decline to follow unconstitutional orders.

I guess we'll need to assume that, as this video shows, they will indeed do what they're told. Frightening, really.
9.9.2005 1:19am
Matt22191 (mail):

I very much doubt that private security guards in New Orleans are carrying M16s; however, it's possible. As cpugrud said, corporations may lawfully purchase machine guns subject to the same restrictions and requirements as individuals. The problem is supply. Unless the corporation is a manufacturer, importer or dealer in NFA (National Firearms Act) weapons (machine guns, destructive devises, and "AOWs" [any other weapons]), it is only eligible to purchase machine guns lawfully possessed and registered prior to May 19, 1986. (It's not quite correct to say that no new machine guns are being lawfully made or imported. They're made and imported all the time; it's just that they can only be lawfully sold to government agencies. Only machine guns lawfully possessed and registered prior to May 19, 1986 may be bought and sold in the lawful private market.)

Since that's an expensive and ever-shrinking pool that necessarily involves guns that are at best nearly twenty years old, this may not be a very attractive solution for a corporation that needs to arm hundreds or thousands of employees. The fact that the corporation presumably would want to arm most of them with the same make and model of firearm further complicates matters.

Furthermore, moving NFA items interstate is complicated and time-consuming. They're not lawful in all states and such moves must be pre-approved by ATF in order to comply with federal law. This can take weeks. This would make it hard to move guards interstate in a timely fashion if they were armed with machine guns.

Finally, if I were counsel to a security company my blood would run cold at the thought of the field day a plaintiff's lawyer would have if an innocent bystander were hit by a stray bullet from one of my employer's machine gun-wielding security guards. Sure, the same thing could happen with a single-action revolver, but I suspect many juries wouldn't be persuaded by that argument.

So, yes, the security guards in N.O. could be armed with machine guns, but I doubt that very many if any of them are.
9.9.2005 1:39am
Dylan Alexander (mail) (www):
My understanding is that the security companies are not minor rent-a-cops, but the big buys like Blackwater who are in Iraq doing serious work with serious weapons. They're more likely to have domestic access to M-16s, although I still doubt it.

I also thought that the armed forces quit issuing fully automatic M-16s decades ago. The only two fire modes are semiautomatic and three round burst. Did they switch back? (I realize that the modification to full auto is relatively trivial with the right parts or a skilled gunsmith to make them. I just don't think they come out of the box that way, at least not for their biggest customer.)
9.9.2005 2:08am
Nick (South Africa) (mail):
Yup current US Issue M16A2 has 2 modes of fire - single shots, and a 3 round burst facility. It has no fully auto mode.

In practical terms one is not seriously disadvantaged in just about any scenario by a semi auto only capability.
9.9.2005 5:46am
Publicola (mail) (www):
I am no authority on Louisiana constitutional law. But I do visit gun nut forums that are one up on me.

The security guard question is answered by section G of the Governor's emergency powers act.

But the bigger question &one I have found no answer to, is "are the emergency powers outlined in the constitution of Louisiana in such a way as to allow for the confiscation of enumerated private property?"

It is beneath my notice that any such provision, explicit or implicit exists in the Louisiana constitution.

Duncan v. Kahanamuku was given too broad a reading by Reader Y. Military tribunals being set up to replace non functioning civil courts do not equate to armed confiscation of private property, namely arms. It is plausible, though unlikely, that a state could commandeer private arms IF the militia was in need of them due to a lack of their own. That would be consistent with Duncan. Taking private arms because the courts are closed (or suspending the practice of a religion, or compelling self testimony, or shutting down newspapers [or blogs], etc..) does not make any sort of logical connection. They are unrelated to each other. Tribunals replace courts in times of an emergency when the courts are not functioning. How can stealing private arms by force have a connection to substituting for the role of the courts?

From my understanding of the Louisiana constitution this is an illegal action on the part of the LEO's &the officials who ordered their actions.

To make matters worse there are reports (specifically by one Johnny Yuma on this comment & this comment on a pertinent thread at The High Road - a gun nut forum I frequent) claims that federal officers are taking part in the immoral theft of private arms. It is specualted that soldiers are being used for this purpose as well, but I've gotten no confirmation of this.

Prof. Volokh has always been a thoughtful fellow &even when in disagreement I've always respected his deliberation &reasoning. Out of that respect I will not voice my full opinion on the matter. But what seems to be the most important question is, "if such actions (forcibly disarming citizens of Louisiana) are indeed unconstitutional infringements on the state or federal level (or both), then what is the most proper &expedient means of actions to stop this harm to the people &their respective constitutions as well as hold accountable the actors in question?"
9.9.2005 6:20am
Matt22191 (mail):

You're correct that the M16A2 has the capacity for three-round busts but not true, fully automatic fire. However, M16s that would be lawful on the civilian market would date from 1986 or before. Since the M16A2 wasn't adopted by any service until 1983, the vast majority of guns on the civilian market likely are M16s or M16A1s, which were fully automatic. But none of this matters, as far as the NFA is concerned. Roughly, the NFA defines any gun capable of firing more than one round with a single pull of the trigger as a machine gun.
9.9.2005 8:43am
MJ (mail):
I'm surprised with all of the lawyers who come to this site that no one did a constitutional analysis of this issue.

The right to bear arms is a fundamental right under the bill of rights to our constitution.

Government action that interferes with a fundamental right is subject to strict constitutional scrutiny. Paraphrasing: The state must have a compelling interest that it is seeking to protect and the law protecting it must be narrowly tailored to that end.

Here, it is impossible to think of a more compelling interest that protecting the life and property of other citizens and/or the officials performing rescue/aid operations. Could the government action be more narrowly tailored given the circumstances? I don't see how, and believe that courts are ill-equipped to second-guess the determinations of officials made in reaction to the largest national disaster in the history of our nation.

I think that the government official's decisions are very likely to be upheld. Reasonable minds can disagree, but I think that's the correct analysis.
9.9.2005 9:24am
Al Norris (mail):
MJ, let's say your analysis is correct. Does such confiscation of private property last only for the duration of the emergency, or is the property forever lost, without compensation?

Or is the taking of private property without compensation the norm in todays America?
9.9.2005 9:36am
I'm a competitive shooter (USPSA/IPSC) and shoot with "contractor" types all the time. I would bet some of those firearms are indeed automatic, either legal or illegal. If you have some knowledge of how the gun works and some skill at working with metal, you could make an semi-automatic (one trigger press - one bullet) into an automatic rifle (one trigger press - multiple bullets). I've seen worn out/poorly gunsmithed pistols go automatic in competitions. Its quite scary when you don't expect it.

There was a court case recently that said home-made automatic firearms are not covered by the NFA34 since they weren't covered by the commerce clause.

9.9.2005 10:13am
Jam (mail):
Ignorant Math Guy:

If "general welfare" is an expansive, catch all, phrase why then follow with a list of powers (authorities)?

The answer is that the limiting, enumerated list of powers ceded to the uS Legislature IS the definition of promoting the "general welfare."
9.9.2005 10:23am
Publicola (mail) (www):
Thre is no compelling government interest in disarming the homeowners. In fact it is counter-productive to disarm the homeowners. After all, they are in need of protection that the local government cannot provide under ideal circumstances, let alone the one they're in. &they also contribute to the restoration of order.

In terms of constitutional law, I just finished a quick post on that at my site (if you'll pardon the shameless plug). The short version is that there is nothing in the constitution of Louisiana that allows for even the temporary suspension of the Right to Arms. Even the Powers of the Governor law (which i shouldn't have to remind you is subordinate to the constitution) does not conatin a provision for confiscating arms. It allows for the prohibition or regulation of their transfer &/or transportation, but does not touch on the subject of possession. (Curiously enough Article 1 Section 20 provides that upon competion of any prison sentence full rights are to be restored whether the conviction resulted from a federal or state crime). &even those provisions are questionable as barring the transport of arms would create a constitutional conflict that the law simply could not win.

I do not subscribe to the compelling state interest reasoning, namely because it is too broad &the potential for abuse is too ripe. That being said I cannot fathom a compelling state interest that would over ride the compelling personal interest in possessing a firearm on your own property for your defense, especially when the police are all but ineffective at quelling miscreants.

Now if the governor or mayor had declared that firearms in the possession of people indiscrimantly shooting at rescue workers was prohibited &therefore all such arms would be seized then I could possibly get on board with your "compelling interest" argument. As it stands I cannot fathom how a defenseless populace can be in the interest of any benevolent government.

&courts are very equipped to second guess the decisions of government officials in any situation. Despite the dire circumstances New Orleans seems to be in, the local &state officials are still bound by a constitution (two in fact) which prevents them from, in a moment of panic or under the guise of an emergency, disarming the citizens of that state &of America. Their actions are as defensible as they would be if they'd have chosen to ban Protestentism for the duration of the emergency. Courts are more than equipped to judge their actions, as are we.

See the Right to arms is not granted by constitutions; it was in existence prior to the constitution. It's only acknowledged by such documents. It is a natural coincident of the Right to self defense which is the most powerful enabler of the Right to Life. Without the means to defend yourself that defense can become rather futile &thus your life is not as ably protected as it could have been. Therefore governments acknowledged in their constitutions the Right to Arms as to do otherwise would allow for abuses such as we are seeing in New Orleans (despite two constitutions - constitutions don't prohibit public or judicial apathy I'm afraid) where the means of self defense are being denied to the populace.

There can never be justification for taking away arms from someone who means to do no one else unjustifable harm. Neither could I ever trust a governent who disarmed me for my own safety.

The compelling interest argument just doesn't fit in. A state or city cannot have a compelling interest in taking away the last means of the populace to resist subjegation. Let me rephrase that; the state cannot have a benevolent compelling interest in disarming its people. Only manevolent institution would feel such a need or undertake such actions.
9.9.2005 11:24am
Bruce Hayden (mail) (www):
I would think though that the M16A2 would still be covered as a machine gun, given the three round burst. A friend of mine has an automatic shot gun that can't apparently hold more than three shells (or is three the magic number in determining whether a gun is considered a machine gun?).

I should note that that is most likely not the rationale behind the three round burst in the M16A2 - but, as I understand it, three is the maximum number of rounds that can be fired at that speed before a gun starts to pull from recoil. Thus, a three round burst increases your chance of hitting your intended target, whereas any additional shots are essentially sprayed. (That automatic shot gun cycles slow enough that it is pulling on the second shot).
9.9.2005 11:25am
ReaderY (and others) who seem to think this is an issue under federal law -- It's not. Section 11 of The Louisiana constitution guarantees the rights of citizens to keep and bear arms (but not concealed ones). So, as long as the weapons aren't concealed or carried in areas in which a restriction passes whatever constitutional test is applicable under La. law, any confiscation from a law-abiding citizen (assuming that the citizen isn't disqualified because he or she is a convicted felon, etc.) is a violation of rights under the Louisiana constitution. Even if federal officials are on the scene, they must obey the law, and not just federal law, but state law as well. Certainly the state of emergency itself cannot justify the confiscation of weapons -- what's the point of guaranteeing a right by a constitutional provision if that right can be taken only at the time when it is most needed?
9.9.2005 11:49am
Firehand (mail) (www):
There's also information now that there are Federal agents helping out; want to bet they're using information from NICS checks to go after gun owners? Also a violation of law, in that they aren't supposed to keep that information.

And, considering both the reputation of New Orleans PD, and the illegality of this, think these people have any chance of ever getting their firearms back?
9.9.2005 12:25pm

If more than one bullet comes out of the barrel with one press of the trigger, it is considered an automatic firearm regulated by the National Firearms Act of 1934. The 3 burst firearm and even a 2 burst firearm is regulated.

I haven't seen a automatic shotgun. One may exist though. It would be a blast to shoot. I think your friend has a semi-automatic shotgun (one trigger press - one bullet/shot shell come out). The three round limitation he refered too is likely the maximum capacity the shotgun can hold. Most states limit hunters to 3 rounds in a firearm (one in the barrel, two in a magazine).. its meant to give wildlife a sporting chance.

The "word" I've heard about the three shot burst was that it was to save ammo. In combat, they found some troops panicked and held down the trigger and blew through their 30 round mag in a matter of seconds. I think the standard ammo load for the army is 7 mags (210 rounds) so you can see how precious ammo is. You could blow through your ammo supply in less than 5 mins if you were on full auto.

BTW, the 223 round (M16/AR15) is really whimpy and doesn't have much recoil. It definitely won't knock you over if you fire it. Even Nancy Pelosi could handle the gun and keep it on target. The theory with the bigger caliber machine guns is to shoot at the feet of the enemy and let the recoil lift the barrel up along the body so you "un-zip" the enemy.

Alot of our soliders and contractors in IRAQ and Afgan. are using AK47's which have a more powerful round. Lots of my shooting mates have complained about how many times they needed to shoot someone with thier M16 before they went down.

9.9.2005 1:07pm
Al Norris - see LA 29:724(D)(4), compensation is required. I'm curious whether the right to commandeer "ANY private property" can constitutionally be applied to guns in light of Section 11 of the LA constitution.
9.9.2005 1:38pm
Dilan Esper (mail) (www):
This is a wonderful constitutional question. I am not familiar with Louisiana's Constitution or the history of its right to bear arms provision, so these observations have to be rather general:

1. I don't think the position that some people here seem to be taking that the government can never order people to give up their guns (or more generally, their private property) no matter the emergency is tenable. Certainly there would have to be extreme circumstances, but imagine if Lincoln gave an order to disarm a particular town north of the Mason-Dixon line that was filled with Confederate sympathizers who shot at all Union troops who passed through, and had killed a fair number of them. Is there any doubt that such an order would be constitutional? I suppose the way to say this in legal terms is that the commander-in-chief power can, in certain circumstances, override both the Second Amendment and any state law protections of the right to bear arms.

2. Further to (1), I don't believe that Lincoln would need to show that his order was "necessary to serve a compelling state interest". Indeed, his order would probably be unreviewable in court, as a political question and because of the extreme deference given to the military.

3. Also further to (1), and although this conclusion is more tentative, I would think that state courts would probably recognize the same power in the governor as commander-in-chief of the state militia (i.e., the National Guard), at least with respect to any state constitutional right to bear arms. (Such an order would still need to be consistent with the Second Amendment, but bear in mind that even if federal caselaw is reversed and that amendment is applied to the states, it situates the right in the context of a "well regulated" militia. The state government's right to regulate its militia in a time of emergency by deciding who does and doesn't get guns is probably implicit in the Second Amendment.)

4. I am not at all sure, however, that the New Orleans Police Department or any local authorities would have any power to take advantage of doctrines (1), (2), and (3), because these doctrines depend on the exercise of commander-in-chief power that resides in the Chief Executive, and involve the overriding of a constitutional right (and thus probably cannot be delegated to political subdivisions).

5. Even with respect to the Governor and the President, it is unclear whether the situation in New Orleans is dire enough that it would justify a gun confiscation order (though again, if one were issued by the chief executive, courts may find that question to be unreviewable).

6. As many people alluded to in their posts, even if there is no order from the commander in chief, a "no guns" regulation would still be valid if it passes whatever level of scrutiny is given to "right to bear arms" claims under the Second Amendment and Louisiana law. With respect to the Second Amendment, the current answer is "no scrutiny" (and I disagree with that, but unfortunately, the Supreme Court has not yet acted to recognize an enforceable right of the citizen to bear arms). With respect to Louisiana law, I don't know the answer. It might be "strict scrutiny" (i.e., that the regulation would have to be necessary to serve a compelling state interest), as some posters have alluded to. It might also be something less than strict scrutiny, such as that the law serve important state interests or that it is simply rationally related to a legitimate objective.

If we assume that the order is subjected to the strictest scrutiny, it still might be constitutional under the circumstances. After all, courts would be loathe to second guess the judgment of commanders in the field during an emergency. (This reticence led to the much-criticized Korematsu decision where Japanese exclusion orders (the prelude to internment) were upheld as constitutional despite being given strict scrutiny.) Also, most of us posting here do not know the situation on the ground in New Orleans. Perhaps the police feel that the only way to stop the bloodshed and looting is to confiscate all the guns. Perhaps there is no way to distinguish between law abiding gun owners and criminals.

It is also possible that this is an overreaction that will make the situation worse. But that's the question that a hypothetical court would have to answer if a citizen challenged the order.

7. There is an equal protection issue here as well, as many have noted. Again, level of scrutiny is critical. If distinctions between different gun owners are not a suspect classification, then all the city authorities would need to show is a rational basis for going after the private gun owners. (Bear in mind that classifications based on economic status are generally NOT subject to strict scrutiny.) They would almost certainly win in this situation, because the rational basis test is so deferential and because there probably is a rational basis, in that they at least have records as to who these private security guards are. They probably have some sort of license whereas private gun owners do not. (By the way, as an aside, the NRA vehemently opposes gun registration because they fear that the government will come to confiscate their guns. But if all the lawfully held guns in New Orleans WERE registered, that would make it a lot harder for the city to claim that they needed to confiscate ALL guns in order to stop criminal conduct in the abandoned city.)

On the other hand, if distinctions among gun owners are subjected to strict scrutiny (such as because the Louisiana right to bear arms is "fundamental"), then this order would fail and they would have to disarm the security guards as well, unless the city could show that allowing the private guards to keep their weapons while civilians gave up theirs is necessary to serve a compelling state interest.

8. There's one other wrinkle to the equal protection claim. If the order actually prohibits the private guards from keeping their weapons as well, but the police are just choosing not to enforce it, that will probably stand up. For reasons having to do with upholding police and prosecutorial discretion, claims of selective enforcement of the law almost never succeed even if a suspect classification such as race is involved. I am not saying this should be the law, but this is the law.
9.9.2005 5:12pm
Publicola (mail) (www):
Mr. Esper,

1; Lincoln is not a good example to use when justifying constitutionally questionable practices.

&since their is no language in the federal constitution excepting the 2nd in times of emergency I must conclude that a president or any other body would be acting contrary to the constitution where they foolish enough to issue such a sweeping prohibition.

In other words, the commander in chief power, which was granted by the constitution, cannot supercede constitutional limitations. Since Habeus Corpus was specifically named as being able to be suspended during times of crisis you'd have to point out the provision in the constitution which does the same for the 2nd amendment to make your argument stick. Well, unless you're simply arguing that the constitution itself should be set aside if the need arises, in which case we have much deeper issues to discuss.

2; I doubt it would be unreviewable unless the court just used that excuse to duck the issue, which itself would be a political rather than a judicial move. But the courts would have the capability of determing the scope of permissable action &if it was exceeded. &as I said in reply to 1 lincoln (known as the Great Usurper back home) is really not a good example when justifying constitutionally questionable practices.

3; The same principle would apply to a governor acting as a commander in chief - his powers would have to be defined by the state constitution &/or federal constitution when it comes to negating Rights even temporarily.

As for the state militia - it's not just the national guard. The definition varies by state but most that have one follow something close to USC 10 311 which defines every man between 17 &45 (or between 17 &64 with prior military service) as being the unorganized militia.

The 2nd could not be used as justification for disarmament under the guise of regulation. It's arguable that it could be used to compel armament &of a specific type, but the purpose of the amendment was to make clear the feds could not disarm the people &thus deprive them of their militia. Similarly a governor could not use regulation of the militia as a form of prohibtion, even partial. In the instance we're speaking of Louisiana has a very clear right to arms provision that would negate that. But in a state lacking one the 2nd still could not be used to justify a state disarming her populace under the guise of regulation.

4; 1, 2, &3 could be delegated as per the Louisiana statute law to parish or city leaders IF it were a prescribed power of the governor (or president). But since such actions are constitutionally prohibited it's a moot argument.

5; it's counter-intuitive to disarm a people when the law enforcement is not effective. But that's the logic of gun grabbers for ya. Still I do not see how the courts could not review a government action that hinges on a constitutional question, even if that action happened in a time of crisis. To follow that logic then no police shooting would be able to be touched by the courts because it happened in a moment of extreme crisis &has a political element to it. I don't find the strawman I raised persuasive nor the question that inspired it.

6; I would refer you back to US v Miller. It does establish through implication that arms suitable for martial use are protected in accordance with the 2nd amendment. The case law from the lower courts has since twisted this into bizzarre &often contradictory tests but they do not hold up against even the flawed finding of McReynolds in Miller.

As for the practical aspects - there is no way that disarmament of the populace would help the safety of anyone except those who mean to do someone else harm. A week ago those firearms were the only thing that kept some looters, miscreants, rapists, thugs, etc, at bay. To argue that there is now no need for arms is quite laughable. If the police have the situation under control then there's no legitimate reason for disarming them. If they do not have it under control then they're depriving them of the means of defense, which despite any laws or constitutions is the most immoral thing that can be done by someone in government.

So no; there is no vible argument that disarming is helping anyone but the thugs with badges &without. I mean hell, there's not much of a way to distinguish between the cops &criminals. At least if the citizens are armed then everyone's on the same playing field.

7; There is no gun registration in New Orleans, or in Louisiana. when "legally registered guns" was used in a news story, i fear it may imply that the police were either going through Form 4473's obtained from gun shops (that's the federal form required for the unconstitutional background check) or perhaps one of the feds decided to sneak a peek at NICS records which probably weren't supposed to be kept but were anyway.

But the solution of an equal protection challenge would not be to disarm the security guards as well, but to simply not infringe or abridge the rights of the rest of the people to own &possess arms. The reason us gun nuts yell so loudly about the Right to own &possess weapons is so that we won't be defenseless if there's a compelling state interest in our being so. The 2nd embodies the antidote to compelling state interests of a manevolent government. Arguing that the state can take away your means of protection from it is in essence to argue that we must live by the graces &are subject to the whims of the state. There are many compelling state interests to disarm me for example. But not one so compelling as to negate my interest in providing for my own protection, from private &state criminals alike.

8; the emrgency powers of the governor specifically except state licensed security guards from being evicted from a place. Hence it is reasonable to conlude that any disamamrment order would except tham as the purpose of them being there is to provide security &thus alleviate the burden ont he law enforcement forces in place. Course the same logic should apply to citizens (i.e. they enhance the police power of a state) but some are woefully &willfully ignorant of that concept.
9.10.2005 9:55am
Dilan Esper (mail) (www):

I think a lot of your responses are more on the level of what you would LIKE the law to say and not what it does say. For instance, even if we assume that the right to bear arms gets the recognition that it deserves (and you and I would agree that it is an individual right and that the doctrine that it belongs to states and not people is absurd), no constitutional right is absolute. Not freedom of speech, not due process, none of them. So you can't just assume that because there is a right to bear arms, that there's no emergency that could possibly justify overriding it.

I am not going to answer all of your points, because I think many of them are based on that misreading of the law. But to speak specifically to a couple of them:

1 and 2. Arguing Lincoln suppressed civil liberties is neither here nor there. What you don't seem to get is that not only would no court would ever find that an order to strip weapons from a town controlled by insurrectionists was unconstitutional, but that no court would even review it. The commander-in-chief power gets asserted in many situations where it really doesn't apply, but that's the core of the power, it seems to me. In times of great emergency, the President can mobilize the military and the military can take just about any action that is traditionally within the military's purview during the emergency. (At least unless Congress stops the President from doing it.)

The suspension clause supports this analysis. The suspension clause, like the war power and the power to make rules for captures on land and water, represent CONGRESSIONAL powers over the military that, absent such language, might be assumed to be powers of the commander-in-chief. But unlike the suspension clause, the Second Amendment does not address itself to matters of war or national emergency. (Or, alternatively, if it does, it says the militia shall be "well regulated".) Thus, it stands just like any other Constitutional right-- i.e., it may be overridden if a sufficiently compelling justification is shown. And in times of emergency, more deference is given the President with respect to that justification.

Let me put it quite clearly. By whatever doctrine, an order disarming a city filled with Confederate sympathizers during the Civil War would have been upheld. Rather than controverting that, you need to come up with a theory of the Second Amendment that will accomodate that result.

3. I know that many pro-Second Amendment advocates like to say that every adult male is in the militia. But that doesn't mean state governors aren't the commanders-in-chief of the militia, or they have no power to decide who is in the militia and who isn't.

Specifically, the definition of "every adult male" both proves too much and proves too little. Is a confiscation order directed solely at females constitutional? Would it have been constitutional before the Supreme Court extended the equal protection clause to classifications based on gender?

Are felons (who are traditionally prohibited from owning guns) in the militia?

Seriously, I don't think it means anything that there's statutes out there defining the "unorganized" militia. The question is can a governor decide who gets guns and who doesn't, in an emergency, as part of her decision to ORGANIZE the militia. And given the preamble to the Second Amendment, you have to do some pretty severe constitutional gymnastics to say he or she cannot do that.

I also don't see as sharp a division between prohibition and regulation as you and Professor Kopel do. Isn't temporary disarmament a form of regulation? If the state indicates it will give the guns back when the city is secure, wouldn't that be a regulation (no guns in the city for a certain period of time) rather than a prohibition? Before you answer "no" to that, consider a Secret Service regulation that prohibits guns in a 10 block radius for two days while the President is in town. Does that violate the Second Amendment? Again, I think you'd have to be quite an absolutist to say it did.

And if you can prohibit guns along 10 blocks for 2 days, why can't you prohibit them in a City for a couple of months, so long as the emergency justifying the regulation is sufficiently serious?

7. Lastly, just a note about "unconstitutional" background checks. Of all the gun regulations that were passed before this emergency, I can't think of one that is more obviously constitutional. Talk about a reasonable regulation of the militia! The government wants to make sure that there aren't any criminals in it!

I mention this because I think it is demonstrative of your strong feelings in support of Second Amendment rights. I support Second Amendment rights too, but that doesn't mean I think that the Second Amendment is a constitutional provision that, unlike the others, never requires interpretation, and bans every single restriction or inconvenience, no matter how minor, imposed on gun ownership.

Once you start interpreting the Second Amendment like other constitutional provisions, you end up about where I was in my post. I do think that this is very possibly a questionable order. I am skeptical that this will really work or make the city safer. But not every bad idea is unconstitutional, even in the field of gun regulation. And whether this one is is indeed a difficult question.
9.10.2005 6:12pm
Publicola (mail) (www):
Mr. Esper,
I feel this discussion has strayed a bit too far from the topic here to continue it in these comments. So out of respect of our host I won't continue it here. If you wish to further the discussion though I've posted a response to your response of my response at my site. (&who said bloggers weren't responsive?) You can find the post in question here.
9.11.2005 6:45pm