A Follow-Up to David's Follow-Up:
Just two quick responses to David's latest response.

  1. David, where did you get the idea that the police are breaking into homes to look for guns? I haven't seen any news reports that say this, but you have mentioned this repeatedly. Can you point me to the news reports of this happening? Or is this just supposed to be a hypothetical? The police do seem to be knocking on doors, and maybe they have broken into houses, too. If they have broken into houses, they necessarily must have done so without a warrant: the courts are flooded and all the judges have fled town, so there are no warrants that could possibly be obtained. But I haven't seen anything about breaking into homes to take guns.

  2. On the more substantive question, David's argument seems to be that there is an implicit nontextual limitation on the power to "control the possession" of firearms: specifically, that this power cannot be construed in a way that can have functionally similar effects to the power the government would have if the statute permitted the government to "prohibit the possession" of firearms. This just seems like a big stretch to me: I just don't see the textual hook for such a reading. For example, David's reading would seem to make the power to "control the possession" a nullity. It would make the power to control the possession identical to the power to regulate the possession, which would seem to violate his own interpretive principles that every word must be treated as having a very distinct meaning. Indeed, I don't know what the power to regulate possession could mean under David's view, as someone who refused to follow the regulation could be arrested for his possession, which would once again be the functional equivalent of prohibiting possession. In any event, perhaps David and I will just have to agree to disagree on this point.
M Larson (mail):
where did you get the idea that the police are breaking into homes to look for guns?

I've seen footage of heavily armed men in uniform wrestling a grey haired lady to the ground in her kitchen after they entered her house against her expressed will. She was holding a pistol. Evidently the camera man did not feel threatened by old lady. He calmly filmed the whole thing while standing in the kitchen as the men in uniform tackled her and took her gun.

Can you point me to the news reports of this happening?

I think the video was on ABC News. I was flipping through the channels at the time.
9.11.2005 4:30am
Student (mail):
(Posted here, because Mr. Kopel has not enabled comments.)

I have to ask: Why isn't this a reasonable (albeit warrantless) search under the 4th amendment?

Camara v. Municipal Court did away with individualized suspicion and allowed generalized searches - a health inspector was allowed to inspect a house for housing code violations. ("it is obvious that 'probable cause' to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respecty to a particular dwelling.")

Nor do valid administrative searches require individual warrants. New York v. Burger allowed a warrantless search of an automobile junkyard, even though the purpose of the regulatory statute - the deterrance of criminal behavior - was identical to that of the penal statute. Griffin v. Wisconsin(?) (J. Scalia writing) allowed a warrantless search of petitioner's house upon reasonable suspicion of a probation violation. (administrative interest in regulating probationers.)

Finally, City of Indianapolis v. Edmond (drunk driving and illegal immgration checkpoints) elucidated that the purpose of the search matter: "We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes." Illinois v. Lidster affirmed this reasoning: "The checkpoint here differs significantly from that in Edmond. The stop's primary law enforcement purpose was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others." (holding no 4th amendment violation in stop and search resulting in information collected to prosecute DUI information.)

Is there any doubt that the "primary purpose" of a house search is to search for the dead and stranded persons, not to search criminals or evidence of crime? And if not, then how is there any violation of the 4th amendment?
9.11.2005 5:18am
Jeff Davidson (mail):
Hi -

I find this discussion very interesting. As one with no legal training, I have no worthwhile opinion on the legal merits. It does seem to me, though, that Mr. Kopel's insistence on a very close and very narrowly defined meaning of some of these words is at odds to some degree with his earlier insistence that roaming citizens should feel free to shoot those they suspected of looting...
9.11.2005 6:24am
If the critics of your thinking were comfortable with their positions, one would think they wouldn't shut off the comments feature. If nothing else, they could choose to comment here - and end what appears to be a rather silly series of attempts at one-upmanship on what I thought was an academic blog. (And if a law review article were footnoted in the manner that Kopel "hyperlinks" to support his Reason article, would even a 2L approve?)

All hyperbole aside, where the police are executing a lawful evacuation order, and come across civilans who are both armed and refuse to abide by that order, Kopel is arguing that they cannot be legally disarmed? Or is it legal to take guns away from people who resist and obstruct the police only when there isn't also some form of general confiscation order in effect?
9.11.2005 9:01am
Government has the power to 'control' speech, as per the famous shouting of "fire" in a crowded theater. Does it therefore have the power to prohibit speech to some class of citizens?

Let's suppose that Chief Compass, fearing that continued criticism of the NOPD is harming its ability to do its job, promulgates an order under section 329.6 forbidding residents of New Orleans from commenting at all about the NOPD. Under Orin Kerr's argument that 'control' extends to 'prohibition', this would seem to be a reasonable exercise of government's power to control speech.

And so it might be, if it didn't violate specific protections in both the US and Louisiana constitutions. Likewise, a prohibition on the possession of weapons conflicts with at least the Louisania constitution and therefore, under settled law, is no law at all.

Professor Kerr continues to ignore this elephant in the room, but it won't do. It won't do at all.
9.11.2005 9:15am
TC (mail):
On a related note, what is the authority of the Louisiana or federal government to FORCIBLY evict people from their homes? Is their explicit authority for them to order a mandatory evacuation of the city?
9.11.2005 11:43am
TC (mail):
Good grief -- "Is THERE explicit authority..."
9.11.2005 11:43am
Hugo Lloyd (mail):
where did you get the idea that the police are breaking into homes to look for guns?

My understanding is that the police are not breaking into homes specifically to looks for guns, but rather to check for survivors and dead bodies. (See CNN video linked from this article.) Perhaps they confiscate all guns they come across during that process.
9.11.2005 1:10pm
Matt22191 (mail):

You said, "If the critics of your thinking were comfortable with their positions, one would think they wouldn't shut off the comments feature." I think you've jumped to an unwarranted and quite uncharitable conclusion. As best I can recall (with a little help from a brief review of the archives) Kopel never turns on comments. Neither, as far as I've noticed, do Jim Lindgren or David Post. Randy Barnett, David Bernstein and others do so irregularly. Etc. Should we assume that this is evidence that they, too, are arguing in bad faith? I can think of lots of other good reasons not to turn on comments, such as limited time to devote to blogging.
9.11.2005 2:21pm
42USC1983 (mail):
Student: Good analysis. I wish I had the time to research the 4A issue myself. Care to try your hand at this issue: ***Does forcbly removing residents from their homes violate the residents' procedural due process rights assuming NOLA provides a post-deprivation remedy? Subissue: how long would be an appropriate delay between the deprivation and post-deprivationg hearing? (I'm assuming NOLA's conduct, in light of the circumstances, isn't conscience shocking and therefore isn't an SDP violation.)

Incidentally, this same question would apply to the gun-grabbing issue, namely:
***Does Does forcibly removing gun owners' firearms violate the gun owners' procedural due process rights assuming NOLA provides a post-deprivation remedy?

The 14A violation is a tough issue, which is why it's frustrating for me to see people say, "Removing them [taking their guns] violates the 14th Amendment." Well, maybe, but I'd need to crunch a lot of cases before confidentaly saying that. I'm mad busy today and can't do so. But if you're game...
9.11.2005 7:34pm
Thanks, 1983. I have to admit that I didn't do actual research on the 4th question... just took a bit out of my crim pro book. The PDP questions would require actual research because my con law book contains few PDP cases, and they don't speak at this level of specificity. You've posed very interesting and tough questions, and I'd like to give it a shot if I have the time, but I'm not sure how successful I'll be. Here's another question I have regarding PDP (and it is a question, not a long-shot answer): given that the state-defined property interest (or liberty interest) has to be identified prior to identifying the amount of process due, how are property rights defined in the case of a natural disaster? With respect to real property, does LA define property ownership as including an absolute right to continuous usage during a natural disaster? (sticks-in-the-ownership-bundle analogy: nuisance law in other states seems to be premised upon an assumption/claim that property ownership does not include the right to make uses of property that interfere with the reasonable usage other's property.)
9.11.2005 10:53pm
As a practical matter, courts will bend over backwards to give the government the power it says it needs to bring New Orleans back to life. This deference won't last forever, but it will last for some time.

The bottom line is that the military and police are (finally) taking control of the city. When the cops take control of a situation (any situation), one of the first things they do is disarm everyone else.

As to the need of New Orleans residents to protect themselves, the authorities have made it clear that residents should leave. The authorities don't have any interest in making it feel safe or comfortable for people who aren't relief workers to be in the city for the next month or so.

And it's not just the Second Amendment that's taking a short-term beating. I bet I'd have a hard time convincing the 82nd Airborne to let me bus people to the French Quarter for an anti-Bush rally this week.
9.12.2005 8:43am
(I woke up thinking about another bundle-of-rights real estate ownership example: public or private necessity is sometimes a defense to trespass actions. Thus, some states presume/claim that ownership of real estate does not include the right to exclude in cases of public or private necessity.)
9.12.2005 9:08am
Tom Tildrum:
PD's comment seems quite right to me. Indeed, I suspect that the gun-confiscation order is intended to make people feel less safe, by disarming them at a time when they know that predatory individuals are still wandering loose (and fully armed).

The First Amendment is at least getting public airplay, as journalists complain about any attempts to limit the scope of their wanderings. The Second Amendment is only getting discussed on blogs, as far as I can tell.

It also strikes me that a mandatory evacuation order raises concerns under the amorphous right to privacy existing somewhere in the Constitution. That area of law has been most active in the area of sexual privacy in recent years, but didn't it start out as simply "the right to be left alone"?
9.12.2005 9:10am
42USC1983 (mail):
Student, re: your most recent question. Would that mean NOLA would be liable to the homeowners under a temporary takings theory?
9.12.2005 2:24pm
What I find interesting wabout this thread is the different way academics and practioners look at the law.

I'm glad that there are academics out there who will parse orders, statutes and the constitution to figure this out, but the reality is that the judiciary is going to give the executive a very, very, very long leash in New Orleans.

If the issues were ever litigated, it would remind me of a regular Far Side theme:

What the law professors hear: (Insert thoughtful dialog between Orin Kerr and David Kopel).

What the judges hear: "Blah, blah, blah, blah, we need the power, blah, blah, blah, blah, public safety, blah, blah, blah, blah. . . ."

Again, I'm not trying to insult the law professors. The dialog is interesting, and I'm glad someone is thinking about it. But, in the end, the necessity of an emergency will prevail.
9.12.2005 3:03pm
1983: I have no idea, but my first guess would be that if a real property interest implicates PDP, then it would also implicate the takings clause. My question arose from thinking about where I might start researching if I were defending LA, and wondering if this might involve quite a bit of state, rather than federal, law. (and I do think of this as a question, not an answer.)

A related question that I started was wondering about: It seems that a lot of deprivations of liberty have the effect of depriving property. For example, if someone is imprisoned, does it follow that any of their real estate ownership interests in their house are implicated? (This is, again, a question, not an answer. Maybe criminals are deprived of the property right of usage, though not ownership, as punishment.) Here, they are moving people, and may affect both their liberty (if LA provides a right to this) and property rights, but I'm not sure how might affect any legal analysis, if at all.
9.12.2005 3:14pm
anonymous coward:
It would be interesting to define police in this context given the possibility that someone way out of his ordinary jurisdiction might be overcome by the impulse to confiscate a nice high grade Parker shotgun. How many of the enforcement people report to or indeed have any substantial connection with local authority?

Consider too the possibility that in the normal course a New Orleans resident's best hope of raising quick cash might be to pledge or sell that nice high grade Parker which in an instant goes from being an asset to being contraband. Doesn't sound very equitable to me.
9.13.2005 1:13am
Mike C (mail):
Here is the link to the video of California Hwy Patrol entering the ladies house, tackling her, forcing her to leave, and confiscating her gun.
9.14.2005 11:44am
eecee (mail):
I find it interesting that the discussion so far has revolved around the somewhat limited language contained in Section 329.6 (?) of the Revised Statutes, and not around the broader discretion given the head of a municipality under the Louisiana Homeland Security and Emergency Assistance and Disaster Act (Ch. 6 (commencing with Section 721), Title 29, RS.

Specifically, Section 723 of Title 29 provides as follows:

ยง737. Municipalities; authority to respond to emergencies

A. Subject to the provisions of R.S. 29:736, whenever a situation develops within or outside of a municipality which the chief executive officer of the municipality determines requires immediate action to preserve the public peace, property, health, or safety within the municipality or to provide for continued operation of municipal government, nothing in this Chapter shall diminish the authority of the chief executive officer of the municipality to undertake immediate emergency response measures within the municipality to preserve the public peace, property, health, or safety within the municipality or to provide for continued operation of the municipal government. Whenever the chief executive officer of the municipality undertakes immediate emergency response measures because of a disaster or emergency, he shall immediately notify the parish president and advise him of the nature of the disaster or emergency and the emergency response measures being undertaken.

B. As used in this Section, "emergency response measures" includes, but is not limited to, any or all of the following:

(1) Suspending the provisions of any municipal regulatory ordinance prescribing the procedures for conduct of local business, or the orders, rules, or regulations of any municipal agency, if strict compliance with the provisions of any ordinance, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency.

[. . .]

(4) Directing and compelling the evacuation of all or part of the population from any stricken or threatened area within the municipality if he deems this action necessary.

[. . .]

(7) Suspending or limiting the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles.

[ . . . ]


Note that the Governor has nearly identical authority in this respect:

I would bet the National Guard units operate under this same authority through the state compacts, but am not interested enough in that aspect to research it.

However, I think the reasonable reading of these provisions yields legislative intent to grant the mayor and local authorities broad discretion in the manner in which the public health and safety is going to be protected. After all, Section 737 specifically says that nothing in the act diminishes the authority of the chief executive officer of the municipality to undertake response activities in this regard. In addition, the authorized "emergency response measures" are specifically not limited to those enumerated in sub. B, so even if the suspension of the "dispensing" or "transportation" of firearms could not be reasonably construed to include every instance in which firearms have been confiscated, the authority is there, in my view.
9.17.2005 3:54am
eecee (mail):
By the way, I should add that the act cited above contains its own self-limiting language; specifically that its provisions shall not be construed to diminish any right granted to "persons" under the Bill of Rights of the state or federal constitutions. See 29:736 RS (through link above).
9.17.2005 1:25pm