The Volokh Conspiracy - U.S. House votes to ban gun confiscation in disasters:

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.

	[David Kopel, July 26, 2006 at 3:32am] Trackbacks U.S. House votes to ban gun confiscation in disasters: 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.