In an update to his post on the legality of the confiscation of firearms in New Orleans, David Kopel takes issue with my view that "controlling the possession" of firearms includes the power to take the possession of firearms. He writes:

  The most serious problem is that [Kerr] reads the power of "regulating and controlling" as equivalent to the power of "prohibiting and controlling." By his theory, the Louisiana legislature could just as well have said "controlling" instead of "prohibiting and controlling" and the legislature still would have granted the power of prohibiting. In an abstract semantic sense, Orin's theory is not implausible. But the Louisiana legislature obviously used the words more precisely; the repeated shifts from "regulating" to "prohibiting" plainly show that the two words are not identical, and that adding "and controlling" after each word does not create identical phrases. If the Louisiana legislature meant to convey the same powers over each of the items in subsection (A), the legislature would have used the same operative words in each subsection.

  I don't think that's right. The lines between the different key phrases used in the statute aren't clear, but I don't think David's reading is the most natural interpretation of the state-of-emergency statute.

  Here's my thinking. The statute we are discussing, La. Stat., title 14, § 329.6, is located in the Louisiana Code's section on criminal laws. Thus, refusal to obey a valid order during a state of emergency can lead to criminal charges for failure to obey the order. See, e.g., State v. Gauthier, 263 La. 678, 269 So.2d 204 (1972). Given that the power to create emergency orders is the power to create enforceable criminal laws, I think the most natural reading of the power to "prohibit" the possession of an item is that it refers to the power to make possession of the item a criminal offense. That is, it is the power to arrest people and charge them with crimes for possessing the item prohibited.

  As fas as I can tell, this isn't what happened in New Orleans. There was no confiscation order prohibiting the possession of guns, which would have permitted the police to arrest people with guns and charge them with the crime of gun possession. Rather, the state officials were ordering individuals to hand over possession of their guns to the police. Whether this was a good idea or the beginning of the New World Order, as a matter of textual plain meaning it seems more an effort to "control the possession" of firearms than an effort to "prohibit the possession" of firearms.

  At the risk of repeating myself, my point is narrow. I don't have particular views on whether the confiscation order was an appropriate step, and I am quite open to arguments that it may have violated other laws. (I am particularly eager to hear David's argument for why it is inconsistent with the Universal Declaration of Human Rights.) But it seems to me that we shouldn't let our substantive views of the wisdom of the confiscation order cloud the legal question of whether it violated Louisiana law.