Shotgun News, October 1, 2006
You may recall that last year, in the aftermath of Hurricane Katrina, police attempting to restore order confiscated firearms from law-abiding residents. They did not make this decision on their own; Mayor Nagin, who failed at almost everything else that he attempted with respect to saving lives and restoring order, came up with this directive.
Under the best of conditions, disarming law-abiding residents of New Orleans would be both unconstitutional and incredibly stupid. New Orleans, to put it mildly, has a violent crime problem. But in the aftermath of a hurricane that knocked out all phone service, in which large numbers of police officers deserted their posts? This was beyond stupid.
While it now appears that some of the breathless accounts of violent crime, especially in the Superdome, were exaggerated, there is no question that some criminals took advantage of the anarchy after Katrina. We have enough accounts across the region that have not been repudiated. I can see why it might have made sense to prohibit carrying of firearms in public streets as a temporary measure—but taking guns away from people in their homes when there was effectively no police force? This is beyond stupid, and approaching evil.
This idiocy did not survive for long. A number of gun rights groups, led by the NRA, went to court, and won a restraining order prohibiting any further confiscations. Another consequence of these confiscations is that a number of states either considered, or passed laws to prohibit such “emergency confiscations” in the future. My state, Idaho, for example, amended the emergency powers statute to declare: “During the continuance of any state of disaster emergency, neither the governor nor any agency of any governmental entity or political subdivision of the state shall impose restrictions on the lawful possession, transfer, sale, transport, storage, display or use of firearms or ammunition.”
Louisiana's legislature, to my surprise and delight, passed a similar measure prohibiting “any seizure or confiscation of any firearm or ammunition from any individual who is lawfully carrying or possessing the firearm or ammunition” with an exception for temporary seizure of a firearm. Even then, if the officer decides not to arrest the person in possession, he has to give the gun back as soon as he leaves the scene. It passed by a unanimous vote of both houses of the Louisiana legislature.
I'm not sure how many other states passed similar measures. I have read that at least Alaska, Florida, Kentucky, Mississippi, New Hampshire, Oklahoma, South Carolina, and Virginia did likewise, and both houses of Congress have passed a similar federal measure.
Of course, preventing future abuses isn't enough. NRA filed suit against the City of New Orleans for violating the rights of those from whom it confiscated guns—and as of April, the New Orleans Police Department still had about 700 confiscated guns. If you wanted your gun back, you had to produce either a bill of sale or file an affidavit with the serial number of the gun. Now, if you are a very organized person like me, with records of all the guns that I have ever owned, this isn't difficult. Of course, I haven't had a hurricane come through my home, either! The good news is that the City of New Orleans' initial motion to have the suit dismissed, was on the grounds that "the states, and by extension their political subdivisions, are free to proscribe [prohibit] the possession of firearms." Fortunately, U.S. District Judge Carl Barbier recognized that this was a pretty strong claim to make, and he refused to dismiss the suit against New Orleans.
I am impressed with the nerve of the lawyers who represent New Orleans. This claim should be grounds for a judge to ask the lawyers in what box of Cracker Jacks he found his law degree. The Louisiana Constitution has a right to keep and bear arms provision: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.”
In State v. Hamlin (La. 1986), the Louisiana Supreme Court heard an appeal from a couple found in possession of an unregistered short-barreled shotgun, who argued that their right to keep and bear arms was being infringed by the registration law. In that decision, the Louisiana Supreme Court refused to admit that the Second Amendment applied to the states (although they did not deny that it protected an individual right against federal action), but they did acknowledge that the Louisiana Constitution's provision did protect an individual right: “However, the right to keep and bear arms guaranteed by our state constitution is not absolute. The right may be regulated in order to protect the public health, safety, morals, or general welfare so long as that regulation is a reasonable one.” Somehow, this doesn't seem to fit with the claim of New Orleans' attorneys that the state or local governments were free to completely prohibit guns.
When I first saw that New Orleans had ordered disarming of law-abiding citizens, I was quite upset; this was clearly a situation where, if any action was justified, it might have been for the police department to pass out guns to the law-abiding, not take them away. Still, when I saw the first bills being introduced to prohibit emergency gun confiscation, I had some concerns. I can imagine circumstances under which such confiscations might make some sense. If you think that's a bizarre statement, let me throw out one scenario, and you tell me otherwise.
Iranian agents, entering the United States through our Southern border, infiltrate mosques across the United States, stirring up disaffected Muslims. In response, a tiny fraction of American Muslims--perhaps 0.1%--launch guerrilla attacks using explosives and firearms in schools and shopping malls. (Unless you have been in a cave for the last five years, and have not been following recent events in Europe, you know that there is nothing alarmist or implausible about this.)
Since there are between two million and seven million Muslims living in the United States, if even 0.1% of American Muslims responded to such a call, this would be 2000 to 7000 terrorists. It would only take two terrorist attacks a day—two Columbines each and every day for a few weeks—to shred the social fabric. At that point, the choice might be a very broad, permanent national gun control law, to avoid violating the equal protection clause of the Constitution—or a temporary emergency confiscation of guns from those suspected of terrorist sympathies. Do not kid yourself that in a situation this dire that the population would calmly refuse to give up some liberties for a little security. We have too many examples throughout American history.
One of those examples was in 1916. The United States was not yet involved in World War I. Mexico was in the middle of an extended civil war, with at least four major warlords all claiming to be president of Mexico. There was widespread and openly expressed racism in America—with Democratic newspapers in the forefront, talking about how whites were committing “race suicide” by failing to reproduce as fast as blacks. Republican newspapers, such as the Los Angeles Times (this was a long time ago), were strong proponents of racial equality. Millions of Mexicans fled the barbaric violence by coming to the United States.
Our government betrayed the most pro-American of the warlords, Pancho Villa, and in retaliation, he attacked the border town of Columbus, New Mexico, killing eighteen Americans. Ugly anti-Mexican incidents were already happening because of the murder of Americans in Mexico, and a series of military raids into Texas starting in 1915, with the goal of reconquering the Southwest. Acts of sabotage along the border, and reports from informants of plans to blow up government buildings in Los Angeles, soon led to concerns about Villa supporters in the United States. In addition, Mexicans living in the United States were reportedly buying large caliber handguns, exhausting the inventories of used gun stores.
While the Los Angeles police chief saw this sudden demand for firearms as evidence of some sort of potential insurrection, another explanation might be self-defense. There was a similar emptying of gun stores in El Paso, Texas, where the white population was arming itself for defense against another border incursion. The Times reported—once the crisis had passed in Los Angeles—that Mexicans in Nogales had been buying arms, “though as individuals, probably in fear of harm from the Americans in the event of war.” Especially because the guns purchased in Los Angeles were “heavy revolvers,” far better suited to defense than offense, and the Columbus raid inflamed sentiments against Mexicans, self-defense is at least as plausible an explanation for Mexicans buying guns as insurrection. Nonetheless, the police chief issued the following order (with no apparent legal basis): “No guns can be sold to Mexicans and all dealers who have used guns for window displays have been ordered to take them from the windows and to show them to no Mexican until the embargo is lifted.”
A bit farther back in history, the Continental Congress directed the colonial governments “to cause all persons to be disarmed..., who are notoriously disaffected to the cause of America, or who have not associated, and shall refuse to associate, to defend, by arms, these United Colonies...”
Different colonies achieved this in different ways. Contrary to some who have seen this disarming of Tories as evidence that there was no specific right to possess arms, these laws often affected much more than gun ownership, impairing a great many rights that are generally recognized today. Virginia required loyalty oaths of all citizens, with those refusing facing “the loss of weapons and the franchise, sacrificing as well all right to public office, jury duty, sue for debt, and purchase property.” Pennsylvania’s 1777 Test Act similarly required all free white males to swear a loyalty oath, with those refusing prohibited from, “serving on juries, suing for any debts, electing or being elected, buying, selling or transferring any lands..., and shall be disarmed.” The rationale was, “allegiance and protection are reciprocal, and those who will not bear the former are not nor ought not to be entitled to the benefits of the latter…” These lists included all the rights and responsibilities of citizenship, similar to how current U.S. law prohibits firearms purchase by those who have renounced U.S. Citizenship.
I worry about what might happen in the future, under circumstances that are dreadful, and might seem to justify disarming particular persons who have not yet committed a crime. Still, there is nothing theoretical about what happened in New Orleans. On balance, while there is a small risk that such laws prohibiting emergency gun confiscation may cause serious problems in the future, there is no question that gun confiscations after Katrina disarmed those who had the most clear-cut need to be armed. If the nightmare scenario that I have described above happens, I suspect that police departments will do what needs to be done at the time (even if it violates these new laws), and throw themselves on the mercy of the courts. I can't claim to be happy about this, but if the nightmare scenario happens, there may be no good choices—or the best of several bad choices.
Clayton E. Cramer is a software engineer and historian. His last book was Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999). His web site is http://www.claytoncramer.com.
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 18 USC 922(g)(7).