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.
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.
Related Posts (on one page):
- Follow-up to the follow-up to the follow-up:
- A Follow-Up to David's Follow-Up:
- Follow-up for Orin:
- Regulating, Prohibiting, and Controlling:
- The New Orleans Gun Confiscation -- A Response to David Kopel:
- New Orleans Gun Confiscation is Blatantly Illegal:
- Constitutions and Emergencies:
- Taking Away Their Guns in New Orleans:
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.
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?
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...
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?
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.
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.
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.
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...
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.
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"?
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:
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.
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.
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.
http://www.ktvu.com/video/4946889/detail.html
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.
[ . . . ]
29:737
Note that the Governor has nearly identical authority in this respect:
http://www.legis.state.la.us/lss/lss.asp?doc=85670
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.