Guns and Forced Evacuations

The Volokh Conspiracy is debating the decision in New Orleans to confiscate all firearms from people who refuse to evacuate before the police start evacuating them by force. This confiscation order apparently does not include firearms carried by private security guards hired by businesses and wealthy individuals to protect property. I thought to check out the Volokh blog because of an email question posted on the CrimProf listserve today by Eugene Volokh, asking whether this policy might violate the individual right to keep and bear arms enshrined in the Louisiana Constitution. He apparently had posted that same question on his blog yesterday.

Today, David Kopel, of “shoot-looters-on-sight” fame, argues that the gun confiscation order is “blatantly illegal.”

After concluding a very technical analysis of whether the confiscation order violates the various laws, and even “natural law,” Kopel adds:

“Under section 1983 of the federal Civil Rights law, any government employee who assists in the illegal confiscation would appear to be personally liable to a civil lawsuit. Moreover, higher-ranking officials--such as the National Guard officers who have ordered their troops to participate in the confiscation--would seem to be proper subjects for impeachment or other removal from office (and attendant forfeiture of pensions), depending on the procedures of their particular state. [¶] All police officers, National Guard troops, and U.S. Marshals take an oath to uphold the Constitution and the laws. It appears that carrying out an illegal order to confiscate lawfully-owned firearms from homes would be inconsistent with the oath, contrary to sworn duty, and perhaps a criminal act.”

Orin Kerr responded quickly with a thoughtful post disagreeing with much of Kopel’s legal analysis. Professor Kerr limited his comments, however, by adding: “Nor am I eager to defend the confiscation order on ground of policy: I don’t know enough about the facts to have a good sense of whether the order was appropriate.” I certainly don’t know any more than, or even as much as, Professor Kerr about exactly what's happening in New Orleans. But, I think I still can take a shot at the policy interests motivating this confiscation order, which I’m surprised have been so downplayed from what I’ve read in these posts.

The police are being asked to remove large numbers of unwilling people from their homes by force following a devastating natural disaster, the collapse of the city, and failed efforts to persuade them to leave. I suspect that the police would like to accomplish this unenviable and easily volatile task without engaging in a shootout in which police officers or some of these unwilling persons end up injured or dead. While I doubt that most of the remaining residents of New Orleans present this threat, I am willing to believe that some of the remaining people there who are armed might attempt to use their arms to resist forcible removal by the police. Even one such incident could prove disastrous, let alone four or five. To avoid this predicament, the police, as I understand the order, are demanding only that people surrender their firearms temporarily, in this one locale, for this limited purpose. The other policy option? Good luck officers--Keep those fingers crossed as you wade into each building.

I’m a little confused about where the policy conundrum is.

Professor Volokh in his original blog post did ask, “doesn’t the emergency make the right [to have arms] especially valuable to the rightsholders?” But at this point, the question seems circular: if no one remains in New Orleans now except for the people Volokh thinks may need guns to protect themselves, from whom will they be protecting themselves, except each other? I suspect a few may believe it’s from the police who plan to drag them out of their homes. The not-far-fetched prospect of adding dead cops to the already horrific images on the streets of New Orleans seems like a compelling policy basis for taking a few people’s guns for just a little while—even if this interest generally is protected by constitutional provision, statute, regulation, or whatever (a.k.a “natural law”). Now if, as Kopel claims, the police are engaging in indiscriminate “house-to-house break-ins and gun-point confiscations,” I would have much more concern about the order, but still, not because the police are temporarily confiscating guns …

**Update: Yesterday, Glenn Reynolds at Instapundit.com offered this wish after noting David Kopel's argument: "I hope that some civil rights organization -- the NRA, say -- will help the injured parties bring suit." Orin Kerr this morning added to his previous post on this topic, highlighting an important distinction: "There was no confiscation order prohibiting the possession of guns, which would have permitted the police to arrest people with guns and charge them with the crime of gun possession. Rather, the state officials were ordering individuals to hand over possession of their guns to the police. Whether this was a good idea or the beginning of the New World Order, as a matter of textual plain meaning it seems more an effort to 'control the possession' of firearms than an effort to 'prohibit the possession' of firearms."