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State "Emergency Powers" vs. The Right to Arms

Monday, October 15, 2007

After Hurricane Katrina, many New Orleans residents legally armed themselves to protect their lives and property from civil disorder. With no way to call for help, and police unable to respond, honest citizens were able to defend themselves and their neighbors against looters, arsonists and other criminals.1

However, just when these people needed guns the most, New Orleans's Police Superintendent ordered the confiscation of firearms, allegedly under a state emergency powers law. "No one will be able to be armed," he said. "Guns will be taken. Only law enforcement will be allowed to have guns."2 (Fortunately, an NRA lawsuit brought an end to the seizures—along with a far-fetched denial that confiscation had ever been ordered. Following this, Judge Carl J. Barbier, presiding over the U.S. District Court for the Eastern District of Louisiana, held New Orleans Mayor Ray Nagin and Police Chief Warren Riley in contempt for “failure to provide initial disclosures and to compel answers to discovery” during NRA’s injunction against the City for their illegal gun confiscations.)

Of course, no one condones the mindless violence of those who would loot a helpless city, or shoot at rescue workers. But one reason for the citizens to retain a legal right to arms, is precisely because the government has no legal duty to protect them.3Legislative bodies can, and should, act to protect the self-defense rights of citizens at the times when those rights are most important.

Unfortunately, many states have "emergency powers" laws that give the government permission to suspend or limit gun sales, and to prohibit or restrict citizens from transporting or carrying firearms. In some states, authorities are authorized to seize guns outright from citizens who've committed no crime--and who would then be defenseless against disorder.

The movement to change these laws is gaining speed. Just two months after Hurricane Katrina, the Louisiana legislature--with only one dissenting vote--adopted a resolution declaring "the policy of the state of Louisiana to protect and uphold the citizens' right to keep and bear arms in their residences, businesses, and means of transport, and on their persons," condemning the seizure of firearms from New Orleans citizens, and announcing it planned to amend Louisiana's emergency powers law "to rectify the denial of these rights."4 Since then, 21 additional states have joined Louisiana by passing laws to protect the rights of law-abiding gun owners by prohibiting the confiscation of firearms during a time of emergency.

Congress and President Bush also saw the need to act to protect gun owners’ rights during emergencies. H.R. 5013, the “Disaster Recovery Personal Protection Act,” was introduced in the House by Congressman Bobby Jindal (LA - 1) and passed the House on July 25, 2006 with a broad bi-partisan margin of 322-99. Senator David Vitter (R-La) introduced the Senate version of the bill and added it as an Amendment to Homeland Security Appropriations, which passed the United States Senate by 84-16, the largest margin of victory for a NRA-backed measure. On October 9, 2006, President George W. Bush signed this legislation into law.

In the past, America has balanced emergency needs with respect for constitutional rights. Months before Pearl Harbor, the U.S. Congress passed the Property Requisition Act of 1941, which allowed the President, as a last resort, to seize needed war materials "upon the payment of fair and just compensation."5 The Congress, concerned about the prospect of gun confiscation, included language to prohibit registration or seizure of privately owned firearms. America and its allies went on to win the greatest armed conflict in history. Today, Congress and the state legislatures should follow that lead.


1 Felicity Barringer & Jere Longman, Police and Owners Begin to Challenge Looters, New York Times, September 1, 2005; Robert Tanner, With Guns And Generators, A Few Homeowners Stand Guard (AP), Columbia Tribune, September 5, 2005; Bob Dart, Armed Militia Protects Its New Orleans Neighborhood, Austin American-Statesman, Sept. 10, 2005.

2 Timothy Dwyer & Ann Scott Tyson, Troops Escalate Urgency of Evacuation, Washington Post, Sept. 9, 2005.

3 See, e.g.. DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 197 (1989) ("[A] State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.").

4 H.C.R. 39, 1st Extraordinary Session 2005 (La.).

5 Property Requisition Act, Ch. 445, 55 Stat. 742 (1941).

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