The New Orleans Gun Confiscation -- A Response to David Kopel:
In a provocative post below, my co-blogger David Kopel argues that the confiscation of firearms in New Orleans is "blatantly illegal" under the Louisiana statute governing states of emergency, 14 La. Stat. § 329.6. He contends that the state, local, and federal officers have committed "perhaps a criminal act" by participating in the confiscation, and that they can be sued for this under 42 U.S.C. 1983 or perhaps impeached. (Fortunately, David does not advocate that the officers should be "shot on sight," so I suppose I should count my blessings.) I disagree with David's legal analysis, and thought it might be useful to explain why I disagree.

  The core of David's argument hinges on the meaning of the power to "regulat[e]" the possession of firearms. The statute states that officials are empowered to make orders "[r]egulating and controlling the possession, storage, display, sale, transport and use of firearms, other dangerous weapons and ammunition[.]" David argues that the confiscation of firearms is not within this authority:
  The emergency statute creates authority for "prohibiting" some things, and for "regulating" other things. The statute uses "prohibiting" in subsections (A)4, 5, and 9. The statute uses "regulating" in sections (A)3, 6, 7, and 8. Quite clearly the legislature meant to distinguish "prohibiting" authority from "regulating" authority. In the context of the statute, it is not plausible to claim that "prohibiting" means the same as "regulating."
  "Prohibiting" authority applies to the sale of alcohol, presence on public streets, and the sale of goods or services at excessive prices. "Regulating" authority applies to firearms, flammable materials, and sound devices (such as megaphones). The "regulating" authority is undoubtedly broad. But it is not equivalent to "prohibiting."
  The problem with this analysis is that the statute creates more than the power to "regulat[e]" the possession of fireams. It expressly creates the power to "regulat[e]" possession and the power to "control the possession" of firearms. Even if the power to regulate does not encompass the power to prohibit — a conclusion that seems plausible but not obvious, especially in the absence of any cases construing these terms — an order that individuals must give up possession of their firearms does seem to me to fall within the plain meaning of "controlling the possession" of firearms. It's not free of doubt, I think. But on balance, it seems to me that "controlling the possession" of an item in a state of emergency would include the authority for the state to take possession of the item. That is particularly likely because the statute grants the power to control possession in addition to the power to regulate possession; presumably the legislature intended control to be something beyond mere regulation.

  Let's move on to the procedural question. David argues that any confiscation order cannot be effective because particular procedural requirements have not been met:
  According to subsection B, emergency orders must be published in a newspaper in the jurisdiction; the Times-Picayune is heroically publishing on-line, but I did not find any evidence, on Friday night, of any publication of the gun confiscation order, whose implementation had already begun on Thursday. According to subsection C, an emergency order must also be filed with the court in the relevant parish (impossible under current conditions), and with the Secretary of State (whose office in Baton Rouge is entirely functional). The Secretary's website gives no indication that a gun confiscation order has been filed.
  I have a few problems with this analysis. First, the statute says nothing about the legality of emergency orders being contingent on the satisfaction of these procedural requirements. Second, the point about publishing the orders in a newspaper only dictates that the orders should be "published as soon as practicable in a newspaper of general circulation in the area." Given that the city is mostly under water and has no power, and thus no Internet access, I don't think there are any "newspapers of general circulation in the area" right now. As for Subsection C, the statute apparently does not say when the order must be filed with the Secretary of State. I'm not sure why the failure to file it so far (assuming it has not been filed) forbids the order from being effective now. Indeed, it would be a bit odd if the law governing emergency orders required those orders to be filed first with the Secretary of State before the emergency orders became effective. It's possible, but I'm not seeing it in the text of the statute.

   Finally, my understanding is that 42 U.S.C. 1983 is inapplicable. That law provides a private right of action against state officials for violating federal rights, not a private right of action against officials for violating state rights. See, e.g., Maine v. Thiboutot, 448 U.S. 1 (1980).

   Importantly, I have no sense of the remaining legal issues that David mentions. David suggests in his post that the confiscation may also violate a bunch of other laws, and I am certainly open to those arguments. Nor am I eager to defend the confiscation order on ground of policy: I don't know enough about the facts to have a good sense of whether the order was appropriate. But with those caveats made, I don't think I agree that the confiscation order violates 14 La. Stat. § 329.6. That's my tentative sense of the law, anyway. As always, comments and corrections welcome.

  UPDATE: I made minor substantive amendments to this post shortly after posting it, as I realized I misread one aspect of David's post.