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Congress outlaws gun confiscation during disasters or emergencies:

This weekend, Congress passed, and sent to the President for his signature, the Homeland Security appropriations bill, H.R. 5441. The Conference Report of the bill includes a variety of non-appropriations measures to enhance homeland security. The most notable of these is the construction 700 miles of fence along the portions of the Mexican border which are the main transit zones for illegal aliens. Also included in the legislation is a ban on gun confiscation during emergencies and natural disasters, to prevent a repeat of the post-Katrina abuses such as law enforcement officers breaking into homes and confiscating firearms from law-abiding citizens.

The new legislation is a modified version of H.R. 5013, by Louisiana Representative Bobby Jindal, which overwhelmingly passed the House in July, and which I wrote about here.

The full text is below, preceded by my summary.

Summary: (a). The bill applies to all law enforcement, including state and local. (Formally, it applies to federal law enforcement, plus anyone receiving federal funds or assisting federal law enforcement. In a disaster, this means almost everyone.) It bans gun confiscation, gun registration, and restrictions on where a firearm may be possessed; confisction, registration, and restrictions pursuant to existing laws are still allowed. People who are assisting federal disaster relief, and who are allowed to carry firearms under existing law, may not be forbidden to do so.
(b) When mass transit is being used for evacuation (e.g., busses out of New Orleans), passengers can be required to surrender their firearms for the duration of the trip, and then reclaim the firearms when the trip is over.
(c) A person victimized by a violation of this law can sue in federal district court; a prevailing plaintiff will be awarded attorney fees.

SEC. 557. Title VII of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5201) is amended by adding at the end the following:

''SEC. 706. FIREARMS POLICIES.
''(a) PROHIBITION ON CONFISCATION OF FIREARMS.—
No officer or employee of the United States (including any member of the uniformed services), or person operating pursuant to or under color of Federal law, or receiving Federal funds, or under control of any Federal official, or providing services to such an officer, employee, or other person, while acting in support of relief from a major disaster or emergency, may—
''(1) temporarily or permanently seize, or authorize seizure of, any firearm the possession of which is not prohibited under Federal, State, or local law, other than for forfeiture in compliance with Federal law or as evidence in a criminal investigation;
''(2) require registration of any firearm for which registration is not required by Federal, State, or local law;
''(3) prohibit possession of any firearm, or promulgate any rule, regulation, or order prohibiting possession of any firearm, in any place or by any person where such possession is not otherwise prohibited by Federal, State, or local law; or
''(4) prohibit the carrying of firearms by any person otherwise authorized to carry firearms under Federal, State, or local law, solely because such person is operating under the direction, control, or supervision of a Federal agency in support of relief from the major disaster or emergency.
''(b) LIMITATION.—Nothing in this section shall be construed to prohibit any person in subsection (a) from requiring the temporary surrender of a firearm as a condition for entry into any mode of transportation used for rescue or evacuation during a major disaster or emergency, provided that such temporarily surrendered firearm is returned at the completion of such rescue or evacuation.
''(c) PRIVATE RIGHTS OF ACTION.—
''(1) IN GENERAL.—Any individual aggrieved by a violation of this section may seek relief in an action at law, suit in equity, or other proper proceeding for redress against any person who subjects such individual, or causes such individual to be subjected, to the deprivation of any of the rights, privileges, or immunities secured by this section.
''(2) REMEDIES.—In addition to any existing remedy in law or equity, under any law, an individual aggrieved by the seizure or confiscation of a firearm in violation of this section may bring an action for return of such firearm in the United States district court in the district in which that individual resides or in which such firearm may be found.
''(3) ATTORNEY FEES.—In any action or proceeding to enforce this section, the court shall award the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.''.

Tennessean (mail):
Would a municipality be permitted to pass a bill prior to any emergency that prohibited the possession of firearms during certain emergencies? In such a case, the possession would be "otherwise prohibited by Federal, State, or local law", and so confiscation would appear to be permitted.

In other words, is this bill banning the seizure of guns during emergencies or is it banning the ad hoc and/or administrative seizure of guns during emergencies?


[DK: The federal bill only bans ad hoc confiscations. The NRA has been working with great success to strengthen state laws so that they explicitly forbid gun confiscation in emergencies, and to repeal laws which allow for confiscation.]
10.2.2006 3:19pm
TC (mail):

Congress outlaws gun confiscation during disasters or emergencies


Quibble: Congress didn't outlaw gun confiscation, Congress voted to outlaw it.

I am quite confident that Professor Kopel understands our government much better than I do, but I am always bothered by headlines that give Congress the power to enact a law when we all know that they can't (other than by overriding a veto).
10.2.2006 3:54pm
Greedy Clerk (mail):
So the feds can't take our guns without due process, but thanks to the same Congress, President Bush can take our persons without due process. . . . Makes sense.
10.2.2006 4:16pm
Houston Lawyer:
Tennessean

I read it the same way you do. Also, I remember that during the Rodney King riots, California closed all of the gun stores. That way, if you didn't have a gun for the emergency, you couldn't get one.
10.2.2006 4:21pm
J. F. Thomas (mail):
Well, this opens all kinds of bizarre and unintended consequences. It means that in an emergency, unless police and other law enforcement actually witness a crime being committed they will be powerless to stop roving bands of armed thugs from wandering the streets. Remember, as much as may portray this as protecting the rights of "law abiding" citizens and decry the confiscation of firearms from supposedly "law abiding" citizens in New Orleans last year in the aftermath of Katrina, there were never any such confiscations. All of the law-abiding citizens had left New Orleans. Even those who ignored the pre-storm mandatory evacuation order were doubly wrong to continue to ignore state and federal orders to leave the city once the levees breached.

To claim they were law-abiding citizens exercising their second amendment rights is simply untrue. They were clearly breaking the law by remaining in New Orleans and making a very bad situation worse.
10.2.2006 4:24pm
Autumn:
I'm with J.F. Thomas---this gives street thugs a direct route to federal courts.
10.2.2006 4:31pm
JohnAnnArbor:

Even those who ignored the pre-storm mandatory evacuation order were doubly wrong to continue to ignore state and federal orders to leave the city once the levees breached.

Nice. Never mind the circumstances (immobile relative to care for, inability to find all family members...); if they didn't go when we said, screw 'em!

You should have been interviewed for the Spike Lee documentary.
10.2.2006 4:38pm
countertop (mail):
JF

What right does any government have to order you to leave your home and property?
10.2.2006 4:40pm
Anon1ms (mail):
Does this law prohibit law enforcement officials from seizing firearms left in abandoned (but still legally owned) buildings?

Perhaps they will need to stake out these buildings, wait for them to be looted, and then arrest the (now armed) looters.
10.2.2006 4:41pm
J. F. Thomas (mail):
Nice. Never mind the circumstances (immobile relative to care for, inability to find all family members...); if they didn't go when we said, screw 'em!

The "law abiding" citizens the Kopels of the world are getting all bent out of shape about having their God given rights to arm themselves to teeth and fight off the looters were hardly going to get interviewed for the Spike Lee documentary either. The people who did get their guns confiscated and got the NRA and other gun nuts to get this atrocious bill passed were those who, when the National Guard or other emergency personnel showed up at their door and told them to leave--and were offered a way out--absolutely refused. They were violating the law and putting themselves and others at risk.
10.2.2006 4:48pm
RKV (mail):
William Pitt had it right - "Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves."
10.2.2006 4:52pm
J. F. Thomas (mail):
What right does any government have to order you to leave your home and property?

It's derived from the Civil Defense System of World War II and the Cold War that eventually became FEMA. It is one of the things that declaring a disaster area or state of emergency gives the government the right to do.
10.2.2006 4:59pm
XON:
Hmmm. So, declare an emergency; organize an extra-legal militia group (we'll call them . . . purple-shirts); cause politically expedient havoc outside of the view of over-stretched (or politically weakened) law-enforcement; be able to stand four-square on Constitutional and statutory laws in resisting disarmament; take 'extraordinary measures' to remove said government forces for 'disregarding the law'.

Didn't I hear this one before?

(FTR: 2d amendment dear to my heart. Principle bad here is muddying it with bad statutes.)
10.2.2006 5:01pm
Enoch:
unless police and other law enforcement actually witness a crime being committed they will be powerless to stop roving bands of armed thugs from wandering the streets.

If people actually have not committed a crime, why should they be arrested?
10.2.2006 5:09pm
The Ace (mail):
So the feds can't take our guns without due process, but thanks to the same Congress, President Bush can take our persons without due process. . . . Makes sense.

Only if by "our persons" you mean non US citizens.

But I'm guessing facts aren't your strong suit.
10.2.2006 5:17pm
PersonFromPorlock:
J.F. Thomas:

They were violating the law and putting themselves and others at risk.


They have a right to put themselves at risk, and 'others' have a right to put themselves at risk in order to save them. But that doesn't give 'others' any right to override the rights of the risk-takers, any more than if I buy you an insurance policy gratis, I have a right to dictate what risks you may take.
10.2.2006 5:21pm
big dirigible (mail) (www):
Oh boy, another school of red herrings has been spotted!

If the only crime of these bands of armed "thugs" is "roving", then how are they a problem? "Roving" is not normally a crime. Nor, within certain definite limits, is being armed. And "thugs" is hardly a useful description. For instance, I consider all Democratic voters of the past decade or so to be intellectual and moral "thugs", yet don't call for them to be disarmed or prevented from roving.

Maybe we should just round "certain people" up because they look like they might, at some indefinite future date, resort to thuggish behavior. Ship them to some fenced-in camps in the desert, maybe. For their own protection, of course.
10.2.2006 5:22pm
J. F. Thomas (mail):
If people actually have not committed a crime, why should they be arrested?

Normally, if you see groups of armed men roaming the streets after a natural disaster, especially when there is a mandatory evacuation order in effect, one could assume they are up to no good (I know in DK's perfect world, everyone would carry a fully automatic weapon and cars would be equipped with James Bond-like rocket launchers, but we haven't reached that level of enlightenment yet). This brilliant law takes that presumption away. I guess we will have to fall back on good ol' racial profiling.

Well, they have committed a crime by ignoring a mandatory evacuation order. But apparently, this law now makes taking their guns away from them illegal because it would not be evidence in a criminal investigation. So I guess the police can arrest them for violating the curfew or evacuation order but can't take their firearms away.

That makes a whole lot of sense.
10.2.2006 5:24pm
TDPerkins (mail):
It means that in an emergency, unless police and other law enforcement actually witness a crime being committed they will be powerless to stop roving bands of armed thugs from wandering the streets.


What Enoch said, and by way of amplification, if they are accused of thuggery, the police can still treat that like a crime, confiscate their weapons and arrest them.

"Remember, as much as may portray this as protecting the rights of "law abiding" citizens and decry the confiscation of firearms from supposedly "law abiding" citizens in New Orleans last year in the aftermath of Katrina, there were never any such confiscations."


That is not true. Peaceable citizens firearms were taken for no more reason than that the police/et al thought they shouldn't have them.

"All of the law-abiding citizens had left New Orleans."


Very far from true.

"Even those who ignored the pre-storm mandatory evacuation order were doubly wrong to continue to ignore state and federal orders to leave the city once the levees breached."


If anything, it was doubly still their own business whether they stayed or went. Absent rebellion against previously existing constitutional laws, the governemnt has no rightful power to compel them.

"To claim they were law-abiding citizens exercising their second amendment rights is simply untrue."

Asserted and counter asserted.

"They were clearly breaking the law by remaining in New Orleans and making a very bad situation worse."


To ignore a null and void law, order, or proclamation is no crime.

Taking someone's property--firearms--without due process should always be.

"It is one of the things that declaring a disaster area or state of emergency gives the government the right to do."


That is the executive's assertion. I am unaware of the government successfully asserting it in a court of law, however.

Yours, TDP, ml, msl, &pfpp
10.2.2006 5:25pm
J. F. Thomas (mail):
Roving" is not normally a crime. Nor, within certain definite limits, is being armed.

Again, we are talking about specific circumstances. The circumstances that prompted this atrocious law were New Orleans was under a mandatory evacuation. Everyone except emergency responders had been ordered out of the city. If you didn't leave, then you certainly had no business being on the streets, with or without firearms.
10.2.2006 5:28pm
Joshua:
This is off-topic, but you might be interested to know that Congress has also just passed a port security bill that finally does something about that fearsome, ever-present threat to our nation's seaports: online gambling.

Yessiree, our ports are now 100% safe from all those eeeeeeevil Internet poker players. From convicted felons working the docks, not so much. But hey, it's a start.
10.2.2006 5:29pm
Malvolio:
Normally, if you see groups of armed men roaming the streets after a natural disaster, especially when there is a mandatory evacuation order in effect, one could assume they are up to no good
One could assume whatever one likes, but here in the US, there is a presumption of innocence. Mr. Thomas may enjoy assuming things, but police have to act on evidence.
10.2.2006 5:29pm
Joshua:
Oh, and h/t Ace for the above.
10.2.2006 5:31pm
33yearprof (mail):
The precedent for a private right of action to recover for an arms seizure is probably the most important aspect of this bill. I have no doubt but that "well-meaning" authorities ARE going to seize guns wherever and whenever they have the raw power to do so in an "emergency." It's for the gun owners own good, of course.

Remember what the redcoats were doing on April 18-19, 1774? They were attempting to seize guns from the people.
10.2.2006 5:32pm
JohnAnnArbor:

when the National Guard or other emergency personnel showed up at their door and told them to leave--and were offered a way out--absolutely refused. They were violating the law and putting themselves and others at risk.

Please. Are you actually saying that police and the Guard visited every house before the hurricane? Get real. The Guard wasn't in the city ahead of time!

New Orleans had a written evacuation plan that involved using its hundreds of school buses to get people without cars out. Nagin the Incompetent didn't implement the plan. The buses were destroyed by the rising water. How the hell are you supposed to get out with no car, and/or with immobile relatives, etc. if the city can't be bothered to implement its own plan?

But the city DID make sure that, whatever happened, the people left behind would be defenseless; no guns for those guarding your house! Smooth.
10.2.2006 5:32pm
TDPerkins (mail):
Normally, if you see groups of armed men roaming the streets after a natural disaster, especially when there is a mandatory evacuation order in effect, one could assume they are up to no good


Interesting assumptions you make there. I nore you didn;t describe the "groups" as helping themselves through broken windows to non-survival related items. You must think the gov should just mow them down.

"This brilliant law takes that presumption away. "


Absent evidence of a crime, the presumption should not be made.

"I guess we will have to fall back on good ol' racial profiling. "


Your mind defaults to such interesting alternatives.

"Well, they have committed a crime by ignoring a mandatory evacuation order."


No they haven't.

But apparently, this law now makes taking their guns away from them illegal because it would not be evidence in a criminal investigation.


Eh?

"So I guess the police can arrest them for violating the curfew or evacuation order but can't take their firearms away."


Actually curfew law may be legally valid, it's telling people to leave their homes that is outside the power of the law, AFAIK.

"That makes a whole lot of sense."


It certainly does. They have the right to remain in their homes and the have the right to defend those homes.

Yours, TDP, ml, msl, &pfpp
10.2.2006 5:33pm
Daniel Chapman (mail):
Wait I thought everyone that was still in NO after Katrina was an innocent victim of the [Federal] Government's failure to provide proper evacuation. This is all so confusing.
10.2.2006 5:34pm
JohnAnnArbor:

Normally, if you see groups of armed men roaming the streets after a natural disaster, especially when there is a mandatory evacuation order in effect, one could assume they are up to no good

In 1906 San Francisco, those were looter patrols.

They shot looters on sight.
10.2.2006 5:34pm
TDPerkins (mail):
"nore you didn;t" /= "note you didn't"

Sheesh. TDP
10.2.2006 5:35pm
J. F. Thomas (mail):
That is the executive's assertion. I am unaware of the government successfully asserting it in a court of law, however.

If you don't like the assertion, challenge it. Just don't assert that it is null and void because you say it is. I can just turn around and counter your assertions with the same arguments.

Taking someone's property--firearms--without due process should always be.

Should and is are two different things. Courts have authorized all kinds of taking of property without due process as a law enforcement tool. Civil seizures have been found to be constitutional time and again (although I don't know if it has ever involved the touchy subject of firearms).

And btw, "thuggery" is generally not a crime.
10.2.2006 5:37pm
J. F. Thomas (mail):
Please. Are you actually saying that police and the Guard visited every house before the hurricane? Get real. The Guard wasn't in the city ahead of time!

That is not what I am saying at all. The confiscations (and the mass confiscations--all 400 or so firearms, of which 80% were unsecured firearms, not confiscations from people) took place over the course of a couple days and were quickly cancelled because it was horrible PR. It was part of a larger effort to empty the city of people, which was also given up on. The NG and other law enforcement started, Thursday or Friday after the storm, to go door to door in the unflooded parts of the city (mostly the Garden District and Uptown) and told people to leave. If they refused, they told them to hand over any firearms they had. After a couple days, they decided they had better uses for their personnel and scrapped the whole plan.
10.2.2006 5:47pm
_Jon (mail) (www):
I love reading the debate here.
:)
10.2.2006 5:48pm
Beerslurpy (mail) (www):

Maybe we should just round "certain people" up because they look like they might, at some indefinite future date, resort to thuggish behavior.

Yeah, that is an especially bad place to take things. Consider who such laws are likely to be enforced against.

In reality, I think that while people may be both armed and roving in the wake of a disaster, the thuggery will mostly be confined to the headlines of the media. Didnt the vast majority of post-Katrina horror stories turn out to be false?

Also, nearly all state and local agencies receive federal funding as part of the war on drugs. Billions of it every year.
10.2.2006 5:52pm
J. F. Thomas (mail):
Didnt the vast majority of post-Katrina horror stories turn out to be false?

Including the ones about the mass confiscations of firearms from "law-abiding" citizens.
10.2.2006 6:21pm
Dave Hardy (mail) (www):
The people who did get their guns confiscated and got the NRA and other gun nuts to get this atrocious bill passed were those who, when the National Guard or other emergency personnel showed up at their door and told them to leave—and were offered a way out—absolutely refused. They were violating the law and putting themselves and others at risk.

The one case which I saw on the tube, where an old lady was body-slammed and her revolver taken, had her making an entirely decent argument. Her area had not flooded, the storm had passed, she had laid in a good supply of food and water, and wanted to stay there.
10.2.2006 6:24pm
J. F. Thomas (mail):
<i>In 1906 San Francisco, those were looter patrols.</i>

Well, I daresay if Katrina had come through New Orleans in 1906, more than a few "looters" would have been lynched. I don't think we really want to go back to those good old days, do we?
10.2.2006 6:27pm
J. F. Thomas (mail):
Her area had not flooded, the storm had passed, she had laid in a good supply of food and water, and wanted to stay there.

And if she had gotten sick or injured? There was no water, electric, sewer or phone and wouldn't be for over two months.
10.2.2006 6:30pm
The False God:
And if she had gotten sick or injured? There was no water, electric, sewer or phone and wouldn't be for over two months.


By that same logic, the government shouldn't allow anyone to live in Death Valley, most of Alaska, or many, many other parts of America. There's much more of a chance of dying in those places than in Lousiana.

It's called roughing it.

And just how does that justify confiscating her weapon?
10.2.2006 6:59pm
Ross Levatter (mail):
DH: "Her area had not flooded, the storm had passed, she had laid in a good supply of food and water, and wanted to stay there."

JFT: "And if she had gotten sick or injured? There was no water, electric, sewer or phone and wouldn't be for over two months."

The issue at hand, JF, is not whether her decision was the most enlightened one she could have made, but whether or not she, as property owner, has the right to make the decision, or whether her property rights evaporate in the face of government power, even government power you believe is being used in a benign and wise fashion. DH's point was merely that she was not acting crazed.
10.2.2006 7:14pm
steveH (mail):
Tennessean


Also, I remember that during the Rodney King riots, California closed all of the gun stores. That way, if you didn't have a gun for the emergency, you couldn't get one.


Living in California at the time, I recall things a bit differently.

Gun stores, even in L.A. County, were not closed. You could go in and buy whatever you wanted.

What you could not do, however, was take possession of anything you bought until the mandatory waiting period had passed.

Which had pretty much the same effect. And got some people thinking in directions that some of them might not otherwise have gone.
10.2.2006 7:25pm
RMCACE (mail):
You get attorney's fees if the authorities deem it necessary to confiscate to safely administer disaster relief. But if you successfully challenge government actions as violating the Establishment Clause, no attorney's fees for you. Interesting.
10.2.2006 7:56pm
shotgunjohn (mail):
What one liberal kook might consider to be a "roving band of thugs" might be interperted by one more temperate as a duly constituted patrol of the local militia.
10.2.2006 8:48pm
Gumbey (mail) (www):
I'm a cop and I think it's a good thing that honest citizens can defend themselves, since I/we can't be everywhere at one time. I'd hate to think I was working 12 hour shifts and my family couldn't use the weapons we have for personal defense.
10.2.2006 8:53pm
Gray One (mail):
During the aftermath of Katrina Texas had a little Hurricane action (Rita) and during that the residents of some areas of Houston and Galveston formed very successfull and effective neighborhood patrols, capturing several looters. That is a repeat of previous similar actions in Florida during previous Hurricane situations Andrew comes to mind). All of these were well documented in newspaper reports of the time.

As others have pointed out, "mandatory" evacuation orders usually do not carry any criminal penalties. Thry are at best the Governments recommended action and a good legal
CYA action to releive responsibilities for responding _during_ an emergency.

Those who have provided sufficient supplies to sustain themselves may indeed be better off holding in place
than ending up in a highway parking lot. If that is their reasoned choice, they are certainly entitled to defend
their family and its supplies from possible looting.

Gray One
10.2.2006 9:38pm
TDPerkins (mail):
And btw, "thuggery" is generally not a crime.


Thuggery is rape, murder, pillaging.

Unless you are calling playing one's music too louf thuggery, it s a crime.

In fact the name come from the thuggee cults of India who killed people to glorify Kali and incidentally made off with their goods.

Yours, TDP, ml, msl, &pfpp
10.2.2006 9:59pm
TDPerkins (mail):
And I suppose that if only one innocent old lady got body slammed, abused, and kidnapped, that leaves the confiscation of firearms as a policy something the government should be able to do without effective constitutional or legal impediment.

Your views disgust me.

Yours, TDP, ml, msl, &pfpp
10.2.2006 10:02pm
Glenn W. Bowen (mail):

You should have been interviewed for the Spike Lee documentary


it was a cartoon.

...that's all, folks.
10.2.2006 10:35pm
JSP (mail):
Is this a precedent for federal law overriding state and local firearms regulation? In other words, could this be a step in federal preemption of state and local prohibitions and regulations concerning firearms generally?

js
10.2.2006 10:44pm
txjeansguy:
TENN'N: Would a municipality be permitted to pass a bill prior to any emergency that prohibited the possession of firearms during certain emergencies? In such a case, the possession would be "otherwise prohibited by Federal, State, or local law", and so confiscation would appear to be permitted.


TXJG: As long as your "certain" emergencies are "major" ones, the law wouldn't be "otherwise," at least to my reading. More importantly, the municipality would be violating the proscription not to "prohibit possession of any firearm, or promulgate any rule, regulation, or order prohibiting possession of any firearm," from the start, as entities who receive federal funds (everyone does). Also, wouldn't that be "authoriz[ing] seizure" of firearms? So that's at least two subsections violated. Phew!


Question: Has Congress incorporated Am. 2 against the states using the spending power?


SHOTGUNJOHN: What one liberal kook might consider to be a "roving band of thugs" might be interperted by one more temperate as a duly constituted patrol of the local militia.


TXJG: Funny, I always picture the kooks who'll be taking our guns as fascists kept in power by the war machine. Wearing purple shirts, apparently! Who'd have guessed they'd go for such flamboyance!


In any case, any true "liberal" is about freedom, including the freedom to defend your life (of course). Liberals, under any definition, will join appreciators of the Second Amendment as our government grows more repressive. If they stop dividing us, by repressing all of us, they lose their ability to conquer us.
10.3.2006 12:07am
American Psikhushka (mail) (www):
J. F. Thomas-

I'm not sure of New Orleans or LA law, but I believe there would have been nothing stopping the police from stopping anyone with a gun and asking who they were, where they lived, where they got the gun, whether they owned it lawfully, whether they had a permit if necessary, what they were doing, etc. - essentially, good old-fashioned police work.

Now whether they had the time or manpower for that is another thing. But if you have the time and manpower to go around knocking on doors and demanding that firearms be surrendered it sort of follows logically that they did have the time and manpower to do what I outlined above.

So I conclude that the emphasis seemed to be on confiscating firearms, not on confronting "roving armed bands" which would have been readily identifiable as the armed bands engaged in the process of roving. Note that I say "seemed" - I wasn't there so I don't know what actually happened. I know there was a lot of confusion and chaos. But it seems odd that the focus was on confiscating guns from people's houses, rather than patrolling and confronting anyone they encountered off their property that was armed.
10.3.2006 1:24am
TDPerkins (mail):
JSP wrote:

<blockquote>Is this a precedent for federal law overriding state and local firearms regulation? In other words, could this be a step in federal preemption of state and local prohibitions and regulations concerning firearms generally? </blockquote>

Considering the standard model of the 2nd amendment is the only plausible interpretation of the constitution--that all otherwise law abiding citizens shall have the opportunity to arm theselves in a manner that see fit from their own resources, unrestricted by apriori law--I certainly hope so.

Yours, TDP, ml, msl, &pfpp
10.3.2006 7:27am
Beerslurpy (mail) (www):

Is this a precedent for federal law overriding state and local firearms regulation? In other words, could this be a step in federal preemption of state and local prohibitions and regulations concerning firearms generally?

It takes a while to build consensus on issues like this, but I think this is where it is heading, yes.

Right now they are proposing the sorts of laws that "anyone could agree with" to show who won't vote for even the most tepid pro-gun laws. If constituents start tossing them out of office and keeping the ones that voted the right way, eventually we can start taking bigger strides. It is a frustratingly slow process, but I cant think of a better way of accomplishing it.
10.3.2006 8:12am
American Psikhushka (mail) (www):
TDPerkins-

What does "ml, msl, &pfpp" mean?
10.3.2006 8:15am
PersonFromPorlock:
One thing that seems to be overlooked is that this legislation is really a pretty tepid response to the NOPD's action. New Orleans is in the US Fifth District, where the RKBA is officially an individual right, so the responsible parties could have been charged with 'conspiracy against rights under color of law', a federal felony.

But of course, that would require the Bush administration to take its own rhetoric seriously.
10.3.2006 9:58am
TDPerkins (mail):
molon labe, montani semper liberi, &para fides paternae patria
10.3.2006 10:01am
TDPerkins (mail):
Begging your pardon, what does Psikhushka mean?
10.3.2006 10:02am
American Psikhushka (mail) (www):
TDPerkins-

"Psikhushkas" were the psychiatric hospitals used as prisons to imprison and abuse dissidents in Russia during the Soviet era. Especially interesting were the phony psychiatric diagnoses that were created for use on dissidents, like "sluggishly progressing schizophrenia".
Here's the Wikipedia entry on them.

I use the name as sardonic shorthand for the way this country is heading, and unfortunately has been heading for some time.

My latin is bad, and its very difficult to find translations of latin phrases on-line, so what do those phrases mean?
10.3.2006 11:35am
TDPerkins (mail):
ml - "take them" - response of Leonidas of Sparta to the Persians at Thermopylae, after being asked to lay down their arms.

msl - "mountaineers are always free" - motto of West Virginia

pfpp - "for the faith of the founders" - and bad Latin at that

As for where the country's going, I'd say it was going there since the 1890's or so, and really picked up steam in the 1920' and '30's. What say you?

Yours, TDP, ml, msl, &pfpp
10.3.2006 11:43am
Don Miller (mail):
I have always had a question about gun control, the 2nd amendment and constitutional law. It seems there should be someone here who might have a good answer for me.

I have always been told that the 14th amendment extended federal constitutional protections to state and local governments. This is why federal judges had jurisdiction over issues like school prayer and miranda warnings to arrested individuals. Okay, that seems like a good thing.

How come those same constitutional protections don't seem to extend to the 2nd amendment? Everyone seems to be of the opinion that is okay for local governments to regulate firearm ownership.

Maybe I am just to sensitive on the subject, but it has always struck me as weird that people have one set of rules constitutional amendments and another set for the 2nd.
10.3.2006 12:00pm
TDPerkins (mail):
Don Miller wrote:

"How come those same constitutional protections don't seem to extend to the 2nd amendment?"


The Supreme Court invented the "Incorporation" doctrine out of whole cloth and then refused--since then--to take a case squarely addressing the issue.

Yours, TDP, ml, msl, &pfpp
10.3.2006 12:16pm
American Psikhushka (mail) (www):
TDPerkins-

As for where the country's going, I'd say it was going there since the 1890's or so, and really picked up steam in the 1920' and '30's. What say you?

I don't know. Economic matters have basically gone downhill since then but there have been some improvements in civil rights since then. Of course a different set of civil rights have been going out the window the past couple years. When viewing history from a libertarian perspective you can play these games endlessly.....
10.3.2006 12:55pm
Beerslurpy (mail) (www):

I have always been told that the 14th amendment extended federal constitutional protections to state and local governments. This is why federal judges had jurisdiction over issues like school prayer and miranda warnings to arrested individuals. Okay, that seems like a good thing.

Yes, that was the original intent. But shortly after the 14th amendment was ratified, there was a series of consolidated cases called "The Slaughterhouse Cases" in which the Supreme Court held that:
a) privileges and immunities only applied to a very narrow set of procedural rights due from national citizenship as opposed to state citizenship
b) the amendment was only for the protection of the freed slaves and shouldnt be construed broadly c) the 14th amendment had no affect on the "police powers" of the states.

A very bad ruling IMO. It basically gutted the 14th amendment.

"Incorporation into Due Process" is basically a piecemeal return of privileges and immunities. And yes, obviously the 14th was meant to apply the 2nd against the states.
10.3.2006 1:28pm
Beerslurpy (mail) (www):
Oh sorry I didnt spell it out completely, but most of the constitutional rights the supreme court talks about today are 14th amendment Due Process rights that incorporate bits and pieces of the BOR (or novel ideas they just like).

Yeah it seems kind of arbitrary and random because it is. Rule of law? Yeah, we're being ruled alright.
10.3.2006 1:34pm
Kevin P. (mail):
The Supreme Court in the late 19th century eviscerated the 14th Amendment in the Slaughterhouse Cases.

In the 20th century, rather than simply overruling the bad precedent of the Slaughterhouse cases, the Supreme Court invented the Incorporation doctrine and started selectively enforcing the rights that they liked.

This is what Living Constitution (TM) interpretation does - it results in a Dead Republic.
10.4.2006 4:59am
Kevin P. (mail):
Perhaps we need a constitutional amendment that restricts judicial interpretation of the constitution and the laws like:


The Constitution and the laws shall be interpreted to their plain meaning in ordinary English as understood by a citizen of ordinary education. In a case where plain meaning results in ambiguity, the meaning as commonly understood at the time of enactment of the statute or provision shall be used. In no case shall the Constitution or the laws be understood to change meaning according to the changing mores of the time.
10.4.2006 5:05am
TDPerkins (mail):
Suggest you tack on, "absent an amendment to that undertaken in accordance with article V."

Yours, TDP, ml, msl, &pfpp
10.4.2006 9:19am
J. F. Thomas (mail):
Those who have provided sufficient supplies to sustain themselves may indeed be better off holding in place
than ending up in a highway parking lot. If that is their reasoned choice, they are certainly entitled to defend
their family and its supplies from possible looting.


Okay then, In the case of New Orleans after Katrina this would mean, food, water and medicine to last for two months. As for the old lady mentioned above. Did anyone ask her what she planned to use for a toilet. The sewer system on the eastbank of New Orleans was inoperable and would be until early December (and still does not reach all sections of the city more than a year later). What did she plan to do with her garbage? How did she plan on maintaining her personal hygeine without running water or electricity (again utilities would not begin to be restored to New Orleans for at least two months, it would be January before all the unflooded neighborhoods got their power and water back).

Having people leave the city was a public health and safety issue. There was no food, no water, no sewer, no electricity, no medical services. Everyone who stayed was a potential disease vector because they were producing fecal matter and urine that was going to be untreated and garbage that was going to go uncollected. Even if people had a source of bottled drinking water, there was no water to wash or bathe with and unlike most cities even if there was water to fill the toilets with, the sewer system in New Orleans is not gravity fed (shit in New Orleans does not flow downhill) but relies on pumps to pump waste uphill to the treatment plant--so the toilets would back up. New Orleans has temperatures (and had temperatures last year) well into the 90s into October.

The confiscation of guns was simply part of the effort to empty the city. It was dropped after a couple days after it proved to be fruitless. I daresay that many of the people that were so adamant about saying left when it became obvious that the lights weren't coming back on.
10.4.2006 6:35pm
TDPerkins (mail):
JF Thomas wrote:

"Having people leave the city was a public health and safety issue."


At that point, the "public" was gone, and the issues were ones of individul discretion--not your business or the government's to resolve by force, particularly by illegal means.

"The confiscation of guns was simply part of the effort to empty the city."


And always an unconstitutional one at that, and now explictly illegal. That's a good thing.

Yours, TDP, ml, msl, &pfpp
10.5.2006 10:24am