Posted by David Kopel:
U.S. House votes to ban gun confiscation in disasters:
http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1153899155
On Tuesday, the House of Representatives voted 322 to 99 to prohibit
federal employees, as well as state and local police which receive
federal funding (that is, most of them) from confiscating
lawfully-owned firearms. "The Disaster Recovery Personal Protection
Act" (H.R. 5013) was sponsored by Rep. Bobby Jindal (R-Louisiana), in
response to the illegal gun confiscation perpertrated by two Louisiana
parishes after Hurricane Katrina. (For the VC's discussion of the
issue last fall, and for other documents related to the contoversy, is
[1]here.)
A similar measure, sponsored by Louisiana Senator David Vitter (R), as
a rider to the homeland security appropriations bill, H.R. 5441,
passed the Senate 84-16 last week. Section 570 of that bill simply
states "SEC. 570. None of the funds appropriated by this Act shall be
used for the seizure of a firearm based on the existence of a
declaration or state of emergency."
The Jindal bill prohibits federal and state/local police from
confiscating (at any time, not just after a natural disaster) firearms
which are legally owned under state and federal law. The bill likewise
forbid police from requiring the registration of firearms, or
prohibiting the possession of firearms in particular places, to the
extent that registration or possession bans are not authorized by
federal or state law. Finally, the bill forbids bans on the
otherwise-lawful carrying of firearms by persons engaged in disaster
relief under federal supervision. The bill creates a right to sue for
persons aggrieved by the violation of the law, and provides for the
award of attorney's fee to victorious plaintiffs.
The bill's findings state:
(1) The Second Amendment to the Constitution states, `A well
regulated militia being necessary to the security of a free State,
the right of the people to keep and bear arms, shall not be
infringed,' and Congress has repeatedly recognized this language as
protecting an individual right.
(4) Many of these citizens [those affected by Katrina] lawfully
kept firearms for the safety of themselves, their loved ones, their
businesses, and their property, as guaranteed by the Second
Amendment, and used their firearms, individually or in concert with
their neighbors, for protection against crime.
(5) In the wake of Hurricane Katrina, certain agencies confiscated
the firearms of these citizens, in contravention of the Second
Amendment, depriving these citizens of the right to keep and bear
arms and rendering them helpless against criminal activity.
(6) These confiscations were carried out at gunpoint, by
nonconsensual entries into private homes, by traffic checkpoints,
by stoppage of boats, and otherwise by force.
(8) The means by which the confiscations were carried out, which
included intrusion into the home, temporary detention of persons,
and seizures of property, constituted unreasonable searches and
seizures and deprived these citizens of liberty and property
without due process of law in violation of fundamental rights under
the Constitution.
(9) Many citizens who took temporary refuge in emergency housing
were prohibited from storing firearms on the premises, and were
thus treated as second-class citizens who had forfeited their
constitutional right to keep and bear arms.
(11) These confiscations and prohibitions, and the means by which
they were carried out, deprived the citizens of Louisiana not only
of their right to keep and bear arms, but also of their rights to
personal security, personal liberty, and private property, all in
violation of the Constitution and laws of the United States.
If the Jindal bill becomes law in its current form, then the bill
would be the fifth time in which a Congressional law has formally
recognized the Second Amendment as an individual right. These laws are
the Freedmen's Bureau Act of 1866, the 1941 Property Requisition Act,
the Firearms Owners' Protection Act of 1986, and the 2005 Protection
of Lawful Commerce in Firearms Act (S. 397). See Stephen Halbrook's
Tennessee Law Review [2]article for discussion of the first three.
Interestingly, the Jindal bill refers to a plaintiff's "rights,
privileges, or immunities", while S. 397 stated Congress's intent to
protect the "rights, privileges, and immunities guaranteed to a
citizen of the United States under the Fourteenth Amendment to the
United States Constitution."
Under the Supreme Court's narrowest readings of the Privileges and
Immunities clause of the 14th Amendment, nothing in the Bill of Rights
is a Privilege and Immunity. Arguably, the Congressional bills could
be said to be related to the few national rights which have been held
to a P&I of national citizenship. For example, gun prohibition
(enforced through outright confiscation, or through lawsuit-based
destruction of the firearms business) might be said to impose an
impermissible burden on the right of interstate travel. (The 1986 FOPA
contains preemption language limited the prosecution of interstate
travelers with unloaded guns which are not "directly accessible from
the passenger compartment." The preemption applies only if the
traveler may lawfully possess the gun in both his place of origin and
his destination. Section III.D.2 of David Hardy's huge [3]article on
FOPA supplies the details.)
On the other hand, the repeated privileges & immunities language might
be considered a signal to the Court that its narrow P&I decisions were
mistaken, and ought to be reconsidered, and the Second Amendment is
among the Privileges & Immunities guaranteed by the Fourteenth
Amendment. Of course neither the Congressional hints about P&I, nor
the repeated explicit statements about the Second Amendment are
binding on the courts. On the other hand, the Court is often reluctant
to diverge too far from public sentiment, and the huge, bipartisan
majority in favor of the Jindal bill (especially if it becomes law) as
well as the substantial bipartisan support for the Protection of
Lawful Commerce in Firearms Act might well be regarding by Supreme
Court Justices who believe in "a living Constitution" as proof that
the Second Amendment is alive and well, and not obsolete or
irrelevant, as some law review authors have claimed.
References
1. http://volokh.com/archives/archive_2005_09_25-2005_10_01.shtml#1127701704
2. http://www.guncite.com/journals/halcoeq.html
3. http://www.guncite.com/journals/hardfopa.html
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