On Tuesday, the House of Representatives voted 322 to 99 to prohibit federal employees, as well as state and local police which receive federal funding (that is, most of them) from confiscating lawfully-owned firearms. "The Disaster Recovery Personal Protection Act" (H.R. 5013) was sponsored by Rep. Bobby Jindal (R-Louisiana), in response to the illegal gun confiscation perpertrated by two Louisiana parishes after Hurricane Katrina. (For the VC's discussion of the issue last fall, and for other documents related to the contoversy, start here and follow the links.)
A similar measure, sponsored by Louisiana Senator David Vitter (R), as a rider to the homeland security appropriations bill, H.R. 5441, passed the Senate 84-16 last week. Section 570 of that bill simply states "None of the funds appropriated by this Act shall be used for the seizure of a firearm based on the existence of a declaration or state of emergency."
The Jindal bill prohibits federal and state/local police from confiscating (at any time, not just after a natural disaster) firearms which are legally owned under state and federal law. The bill likewise forbids police from requiring the registration of firearms, or prohibiting the possession of firearms in particular places, to the extent that registration or possession bans are not authorized by federal or state law. Finally, the bill forbids federal officers from banning on the otherwise-lawful carrying of firearms by persons engaged in disaster relief under federal supervision. The bill creates a right to sue for persons aggrieved by the violation of the law, and provides for the award of attorney's fee to victorious plaintiffs.
The bill's findings state:
(1) The Second Amendment to the Constitution states, `A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed,' and Congress has repeatedly recognized this language as protecting an individual right.
(4) Many of these citizens [those affected by Katrina] lawfully kept firearms for the safety of themselves, their loved ones, their businesses, and their property, as guaranteed by the Second Amendment, and used their firearms, individually or in concert with their neighbors, for protection against crime.
(5) In the wake of Hurricane Katrina, certain agencies confiscated the firearms of these citizens, in contravention of the Second Amendment, depriving these citizens of the right to keep and bear arms and rendering them helpless against criminal activity.
(6) These confiscations were carried out at gunpoint, by nonconsensual entries into private homes, by traffic checkpoints, by stoppage of boats, and otherwise by force.
(8) The means by which the confiscations were carried out, which included intrusion into the home, temporary detention of persons, and seizures of property, constituted unreasonable searches and seizures and deprived these citizens of liberty and property without due process of law in violation of fundamental rights under the Constitution.
(9) Many citizens who took temporary refuge in emergency housing were prohibited from storing firearms on the premises, and were thus treated as second-class citizens who had forfeited their constitutional right to keep and bear arms.
(11) These confiscations and prohibitions, and the means by which they were carried out, deprived the citizens of Louisiana not only of their right to keep and bear arms, but also of their rights to personal security, personal liberty, and private property, all in violation of the Constitution and laws of the United States.
If the Jindal bill becomes law in its current form, then the bill would be the fifth time in which a Congressional law has formally recognized the Second Amendment as an individual right. These laws are the Freedmen's Bureau Act of 1866, the 1941 Property Requisition Act, the Firearms Owners' Protection Act of 1986, and the 2005 Protection of Lawful Commerce in Firearms Act (S. 397). See Stephen Halbrook's Tennessee Law Review article for discussion of the first three.
Interestingly, the Jindal bill refers to a plaintiff's "rights, privileges, or immunities", while S. 397 stated Congress's intent to protect the "rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution."
Under the Supreme Court's narrowest readings of the Privileges and Immunities clause of the 14th Amendment, nothing in the Bill of Rights is a Privilege and Immunity. Arguably, the Congressional bills could be said to be related to the few national rights which have been held to a P&I of national citizenship. For example, gun prohibition (enforced through outright confiscation, or through lawsuit-based destruction of the firearms business) might be said to impose an impermissible burden on the right of interstate travel. (The 1986 FOPA contains preemption language protecting interstate travelers with unloaded guns which are not "directly accessible from the passenger compartment." The preemption applies only if the traveler may lawfully possess the gun in both his place of origin and his destination. Section III.D.2 of David Hardy's huge article on FOPA supplies the details.)
On the other hand, the repeated Privileges & Immunities language might be considered a signal to the Court that its narrow P&I decisions were mistaken, and ought to be reconsidered, and that the Second Amendment is among the Privileges & Immunities guaranteed by the Fourteenth Amendment. Of course neither the Congressional hints about P&I, nor the repeated explicit statements about the Second Amendment are binding on the courts. On the other hand, the Court is often reluctant to diverge too far from public sentiment, and the huge, bipartisan majority in favor of the Jindal bill (especially if it becomes law) as well as the substantial bipartisan support for the Protection of Lawful Commerce in Firearms Act might well be regarded by Supreme Court Justices who believe in "a living Constitution" as proof that the Second Amendment is alive and well, and not obsolete or irrelevant, or confined only to the National Guard, as some law review authors have claimed.
That pretty much says it all, doesn't it?
The argument that the Court will infer massive public sentiment of a P&I argument from lopsided passage of a law that includes a finding that 90% of Americans don't know and couldn't care less about is breaktakingly . . . optimistic.
Or is delusional the word I was looking for?
Would this keep the San Francisco Police from enforcing the San Francisco Gun law?
But the justices who believe in a living Constitution only want the Constitution to grow in a liberal way.
This is madness.
Huh? So if a cop arrests somebody, he can't take his gun?
Even assuming that such an absurd result doesn't follow (though the post certainly suggests it would), that removes a LOT of discretion for handling emergency situations. Doesn't sound like a good idea.
What’s “base” about the right to bear arms? The constitution has a lot more to say about a right to bear arms than a right to engage in sodomy.
I personally think that protecting those rights that are guaranteed by the Constitution should rightly be a very high priority for government. Higher certainly than providing additional economic relief almost a year after a natural disaster. But if you think the proper role of government is to take care of people then you might think differently.
Quick question:
No, this law (a Handgun Ban on SF citizens only) has already been struck down by the state courts as un-constitutional.
Did you mean "base" or "basic". It is #2, hardly the place for the least of rights.
What rights have been "sacrificed"?
I find it an interesting claim that the longer the Katrina victims spend living in trailers, the less of an imperative there is to do anything about it. I wouldn't have thought to make that argument.
I agree with you wholeheartedly, it is time to start kicking those people out of FEMA trailers. They need to get on with their lives.
I think it is appropriate for government to provide rescue and relief operations during a natural disaster and in the immediate aftermath. When the crisis has passed I consider it the responsibility of the individuals affected to pick themselves up and get on with their lives, with the help of friends, family, neighbors, charities, etc. I don't think a permanent or semi-permanent government obligation is created. I've been called cold-hearted for taking this position but I think it's consistent with my limited government philosophy.
There certainly could be emergency situations where disarming a particular citizen or group of citizens could be essential to maintaining order, and that's a lot different question from the whether the government should be able to ban the private possession of handguns (something I should add that I think should be forbidden under the Second Amendment).
The other thing I should add about this is that I also agree with the other commenter who noted that of all the things to be worried about in terms of the government's post-Katrina response, this seems like a strange place for Congress to start.
Y'all think "the crisis has passed"?
You have absolutely no clue what Katrina did to the Miss. Gulf Coast. None.
Anyone who is still living in a miserable little FEMA trailer is there because their net worth was wiped out and they have nothing.
Would this overturn the long standing Chicago ban on handguns?
The mistake you are making here, is the distinction between "Law Abiding" citizens, who are not the problem, and, miscreants of whatever sort, who pose a danger to the general population. Law Abiding citizens (argh, don't like that lower case, 14th Amendment, implication), who are only trying to protect themselves, their neighbors, property and the general welfare of their community cannot be disarmed under this Law.
Criminals, of whatever sort, trying to take advantage of a catastrophic event can still be disarmed, arrested, detained, or shot dead...whatever is required to protect the community from their depredations.
Your post implies that "Law Abiding Citizens" bearing arms are the problem.
You are too quick to assume that in an emergency (and this bill purports to regulate emergencies), law enforcement can make the distinction between "law abiding" citizens (whatever that really means and "criminals". And remember, this bill includes a private cause of action, so some judge or jury somewhere could second-guess the cop after the emergency has passed and tag him or her for huge damages.
It's simply a bad idea, no matter how important the right to bear arms is (and I agree it is important) to tell the police that they can't do what they may need to do to defuse a situation during an emergency. The Fourth Amendment, for instance, has an exigent circumstances doctrine; we don't hit cops with damages awards for making warrantless searches in emergency situations. Similarly, even the First Amendment has the "clear and present" danger doctrine.
This bill, to me, is a classic example of the mistake some Second Amendment advocates make in assuming that because the Second Amendment should be construed to grant a personal right to bear arms (and I am with the NRA on that-- it is an outrage that it doesn't), that therefore that right has to be absolute to the nth degree and can and should never be derogated under any circumstances.
I realize that there is a powerful image that gun advocates have of wanting to have their firearms if law breaks down in an emergency. But see it from the cops' perspective-- it makes the cop's job more difficult, and more deadly, in the most dangerous of situations if the cop is chilled from taking actions in an emergency that he or she feels would be necessary to ensure public safety.
The place to start in repairing the Second Amendment protections in this country is not in emergency situations where we really do want to give law enforcement broad discretion.
Others have noted above that they think the priority of this law is wrong -- i.e. that "fixing" the federal government's response should be more important than preventing gun confiscation. I believe that this is because people have different views of personal responsibility and an unrealistic view of the power and abilities of the federal government. The federal emergency response will never be good enough in the face of any conceivable disaster so as to eliminate the need for personal preparation and responsibility. The reports of armed troops going door to door in a devastated area, not with food or water nor with an evacuation plan, but to strip individuals who HAD prepared for the disaster of any ability to protect themselves or their property offended me and I welcome the bill and it's timing.
I have family in Miss., from the coast to the country. As it happen, the track followed by Katrina hit several cousins and aunts/uncles, at different towns. I have done volunteer work there and have also driven from the west side of the Bay of Saint Louis to Biloxi. There is poverty but what I saw has little to do with poverty. The destruction has to be seen to be believed. We were the eyes and ears of our family in Heidelberg, during (while communications was available) and in the immediate aftermath. I was very familiar with the aerial images. Being on the ground was another story.
The crisis is not totally passed.
My wife and her mom did some work for AllState in the Beaumont, Texas area after Rita.
Get a clue, dude. It was not just the wind.
The perversions of Law in this country have created a situation wherein several (State?) Supreme Court decisions have affirmed a Criminals Right to carry weapons concealed, under a 5th Amendment exclusion (Nunn?). They are not required to admit they are carrying a weapon because they are prohibited from possessing, let alone owning weapons, and, would be admitting to a crime by so doing.
In this case, carping comments were made that actually admitted the Law in question (?) was never intended to apply to criminals, only Law Abiding Citizens. It was written exclusively to make Statutory Criminals of Law Abiding Citizens who choose to go about armed, in preparation for whatever need, and, did not apply to the defendants...who were professional criminals.
In fact, the "Right to Keep and Bear Arms" guarantees in many State Constitutions contain an exclusion which is 'in effect' unconstitutional. Consider the "Texas Right to Keep and Bear Arms:"
"(W)ith a view to prevent crime," consider that...not one single "Gun Control Law" has 'ever' prevented a Crime, nor, prevented a single Criminal from bearing arms. The effect of that statement is to enable unconstitutional Laws that affect only Law Abiding Citizens falling victim to Statutory Crimes.
The situation existing in S. Louisiana after Katrina simply allowed Corrupt Officials with links to Gun Control organizations to pervert a State Law that allowed them to "control weapons" into an imperative to disarm their citizens, under "Emergency Powers." The same Officials who filed the first Lawsuit against Gun Manufacturers claiming unspecified damages (thrown out of Court).
This is not only a good Law, but an imperative Law, if we ever expect to fight our way back to freedom in America.
First of all, as to the mythical incident that sparked the "need" for this bill. What the NRA claimed happens and actually happened are two entirely different things. To start with no "law abiding citizens" guns could possibly been confiscated in New Orleans after Katrina for the simple fact that there were no law abiding citizens in New Orleans after the storm. The city was under a mandatory evacuation order. All the "law abiding" citizens had obeyed the evacuation order and left the city.
But lets assume that you think that it is okay to disobey laws you don't feel like obeying and you can still be a "law abiding citizen" even if you ignored the mandatory evacuation order, didn't the police go door to door and take away guns from people who were simply trying to defend their homes from looters. Well no, that's not what happened at all. If you were wandering the streets with a firearm the cops might confiscate it (After all, you had no business being out on the streets nor did the police have any idea if you were a looter or a "law abiding" citizen). If they saw an open abandoned home with unsecured firearms they would remove them, but they never went into somebody's home and made them give up their guns. That. just. didn't. happen. They were much too busy with other concerns. All told, the police collected 1000 guns the entire time the gun ban was in effect and the vast majority of them were unsecured firearms from gun shops and abandoned residences.
I live in New Orleans on the West Bank. My neighbor never left. We live behind the college where all the first responders staged and so we had police (and later military) presence continually. My neighbor put up a sign at the end of our street stating "Looters will be shot". Nobody bothered him or tried to take his guns away.
Do you have the tiniest shred of evidence to back this assertion up?
Of course I do, but, I would suggest you do a little research on your own.
You might look up a Video of a 280 lb. Officer taking down a 79 year old woman, whose home was not even flooded, as if she were a 280 lb. Thug that just robbed a bank.
You might also do a search on the NRA/Second Amendment Foundation Lawsuit against New Orleans Mayor Nagin (and thugs), which ordered the cessation of gun confiscations, and, return of weapons seized. This resulted in a State Law that now prohibits such actions, but, so far has not seen the return of a single weapon, even though so ordered by the State Court.
For other thoughts I have on these issues, you might check this out: Emerson Amicus
Right now, I've got other things to worry about, Baghdad to the North, Basra to the South, and, a gathering storm of assault on non-combatants leading up to Irans promised Aug. 22 surprise (I'm a disarmed non-combatant).
You should check your facts before making opening your mouth wide and making such bold statements. Here are a couple of clues for you:
From ABC News: Video: Citizens Handcuffed, Forced To Give Up Firearms
From KTVU: Elderly Woman Tackled In Her Home, Gun Taken
Archived source: http://www.gunowners.org/notb.htm
Sorry, dude, it DID happen here. Denial is not just a river in Egypt.
Unfortunately, this company computer does not have Realplayer, so I can't view the Video's in RAM format. But, the second is the one I was referencing, and, the first, I've seen but didn't think about (little excitement around here about that time...sorta distracting when the "pucker factor" goes orbital, and, the "Threat Level" goes to 'Brown').
However, "denial" can be very deep, and, exert great force upon the captive mind.