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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.

jgshapiro (mail):

Of course neither the Congressional hints about P&I, nor the repeated explicit statements about the Second Amendment are binding on the courts.

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?
7.26.2006 5:43am
Brett Bellmore:
Given a choice between defering to public sentiment, and admitting that long standing Court precident is wrong, the Court virtually always goes with pretending that it's been right all along. Indeed, even when they correct their errors, such as with the refusal to incorporate the Bill of Rights, they generally try to do so in a way that doesn't admit their past mistake. Which is, IIRC, why we ended up with substantiative due process, instead of the Court just admitting that the P&I were the rights guaranteed by the Bill of Rights after all.
7.26.2006 6:49am
PersonFromPorlock:
I'll be delighted if this becomes law, but cynic that I am, I expect representatives and senators to claim credit for this bill even as it quietly dies in the Conference Committee.
7.26.2006 8:12am
James968 (mail):
Quick question:

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


Would this keep the San Francisco Police from enforcing the San Francisco Gun law?
7.26.2006 9:05am
James968 (mail):
OK, looking at it in the actual context of the Bill, it only applies to a disaster situation and the actual bill text includes 'local law' as well as Federal and State
7.26.2006 9:11am
Cornellian (mail):
Nice to see young Mr. Jindal making an impression in Washington so soon after being elected. I'm sure we'll be hearing more from him.
7.26.2006 10:14am
Closet Libertarian (www):
A shorter version of this bill would read: States and localities shall follow the Bill of Rights.
7.26.2006 10:21am
Jeremy @ What Now? (www):
"[These laws] 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 . . . ."

But the justices who believe in a living Constitution only want the Constitution to grow in a liberal way.
7.26.2006 10:29am
BTD_Venkat (mail) (www):
Thank god someone is taking prompt action to try to remedy the government's failures in the wake of Katrina.
7.26.2006 10:53am
Kevin P. (mail):
An excellent bill from Rep. Jindal.
7.26.2006 11:17am
eddie (mail):
Am I missing something here: this discussion is applauding a positive result from the Katrina disaster as being legislation that protects the right to bear arms. As the "war on terror" rages on forever and ever and many rights are being "sacrificed" in the name of fighting such a war, the best and brightest legal minds can only fixate on the most base of rights--the right to bear arms. Forget about due process protection and judicial review of the actions of our government (because as long as I can shoot the interloper, including those nasty g-men, I will be protected in the manner that the framers always envisioned).

This is madness.
7.26.2006 11:53am
Steve:
Yes, it's a good bill, as opposed to a bad one. Still, one way to know if you're a little too fixated on a single issue might be if you applaud this bill when there are still 100,000 Katrina victims living in FEMA trailers, rather than take it as a sign of Congress's awesomely misplaced priorities.
7.26.2006 11:59am
Stu (mail):
I would like to see a Federal cause of action against states/localities and states/local actors expressly provided in law, something akin to 42 USC Sec 1983, for harm that arises from confiscation of lawfully possessed arms. Put the police on notice that they could be held personally liable under Federal law. Make sure it expressly states the circumstances giving rise to the "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" (quoting from Sec 1983) that would permit such a cause of action, so there is no ambiguity as to whether confiscation is a covered "deprivation."
7.26.2006 12:02pm
Anderson (mail) (www):
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.

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.
7.26.2006 12:07pm
Leland (mail):
If a cop arrests somebody and trucks them to the jail, I'm sure they will remove any firearms they legally owned. The situation was that NO officers were taking firearms away from people who owned their firearms legally and were not committing any crime. In short, a cop wasn't arresting anyone, yet they were confiscating weapons.
7.26.2006 12:15pm
A. Zarkov (mail):
" ... the best and brightest legal minds can only fixate on the most base of rights--the right to bear arms."

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.
7.26.2006 12:44pm
KeithK (mail):

Yes, it's a good bill, as opposed to a bad one. Still, one way to know if you're a little too fixated on a single issue might be if you applaud this bill when there are still 100,000 Katrina victims living in FEMA trailers, rather than take it as a sign of Congress's awesomely misplaced priorities.

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.
7.26.2006 12:57pm
Frank Drackmann (mail):
I wonder how many members of congress own firearms in violation of DC's gun ban? I think the exemption they have from arrest during the performance of their official duties might allow them to carry a firearm to and from work. I sort of long for the 19th century when rival politicians would duel to the death, or beat each other with canes on the floor of the Senate. Tom Delay always has that self confident look of a guy whos packing heat.
7.26.2006 1:04pm
glangston (mail):
James968 (mail):
Quick question:

James968 (mail):
Quick question:

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


Would this keep the San Francisco Police from enforcing the San Francisco Gun law?




No, this law (a Handgun Ban on SF citizens only) has already been struck down by the state courts as un-constitutional.
7.26.2006 1:24pm
glangston (mail):
Am I missing something here: this discussion is applauding a positive result from the Katrina disaster as being legislation that protects the right to bear arms. As the "war on terror" rages on forever and ever and many rights are being "sacrificed" in the name of fighting such a war, the best and brightest legal minds can only fixate on the most base of rights--the right to bear arms. Forget about due process protection and judicial review of the actions of our government (because as long as I can shoot the interloper, including those nasty g-men, I will be protected in the manner that the framers always envisioned).

This is madness.



Did you mean "base" or "basic". It is #2, hardly the place for the least of rights.
7.26.2006 1:28pm
SeaLawyer:
many rights are being "sacrificed" in the name of fighting such a war,



What rights have been "sacrificed"?
7.26.2006 1:35pm
Steve:
Higher certainly than providing additional economic relief almost a year after a natural disaster.

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.
7.26.2006 2:14pm
Kazinski:
Steve:
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.
7.26.2006 2:27pm
KeithK (mail):

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 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.
7.26.2006 3:08pm
Dilan Esper (mail) (www):
I agree with Anderson's comment. It is certainly important to protect the right to bear arms during an emergency. But this statute seems way overbroad, because it apparently strips law enforcement of all discretion to disarm a citizen even in an emergency and even where disarmament would not violate even a liberally-construed Second Amendment right. It's almost analogous to passing a "Free Speech Protection Act" that allows you to sue the police for arresting you if you falsely shout "fire" in a crowded theater.

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.
7.26.2006 5:28pm
Anderson (mail) (www):
When the crisis has passed

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.
7.26.2006 5:37pm
S.A. Miller (mail) (www):

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.



Would this overturn the long standing Chicago ban on handguns?
7.26.2006 6:31pm
Warsong (mail) (www):
Dilan Esper,

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.
7.26.2006 7:05pm
Hamilton Lovecraft (mail):
As a filthy stinking lefty liberal moonbat peacemonger hippie, I'd like to state for the record that I think this is a good law.
7.26.2006 7:40pm
Warsong (mail) (www):
Just for the record, I'd like to say...welcome home Lefty!
7.26.2006 10:34pm
therut:
Good Law. I really am disgusted that the left can get so upset that the Feds my look at what you read in a Government owned facility reading government owned material( books is libraries) to the point the ACLU worked up a sweat and lefty city councils passed resolutions. But really do not care if the police or National Guard take a citizens firearms away from them. Tisk, Tisk.
7.27.2006 2:48am
Dilan Esper (mail) (www):
Warsong:

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.
7.27.2006 3:04am
David M. Nieporent (www):
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.
100 mph winds are a crisis. What you describe is called poverty.
7.27.2006 3:18am
BladeDoc (mail):
Dilan -- the mistake you make is to think that the purpose of the constitution is to make things easier for the police. If they do not have probable cause to make an arrest the person carrying a weapon is a law abiding citizen with all the rights thereof. Upon arrest they can disarm said individual. In my absolutely-not-a-lawyer opinion they neither have, nor need, any additional powers in this regard during an emergency.

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.
7.27.2006 7:03am
Jam (mail):
Nieporent:

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.
7.27.2006 12:30pm
Warsong (mail) (www):
Dilan Esper,

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:"


The Texas Constitution of 1885

Article 1 - BILL OF RIGHTS, Section 23 - RIGHT TO KEEP AND BEAR ARMS: "Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime."


"(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.
7.27.2006 5:31pm
J. F. Thomas (mail):
This bill is absolutely unnecessary, I don't understand why Jindall (whom although I usually disagree with I do respect) sponsored it other than to score points with the NRA. It addresses a problem that does not exist other than in the mind of paranoid gun nuts who think the government is trying to take their guns away.

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.
7.27.2006 6:16pm
J. F. Thomas (mail):
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).

Do you have the tiniest shred of evidence to back this assertion up?
7.27.2006 6:17pm
Warsong (mail) (www):
J. F. Thomas,

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).
7.27.2006 8:10pm
Kevin P. (mail):
J. F. Thomas:

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.


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.
7.28.2006 3:16pm
Warsong (mail) (www):
Thanks, Kevin P.,

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.
7.29.2006 2:31pm