September 09, 2005

Of Constitutions, Laws & Emergency Powers

Now as a matter of law there is some support of the idea that while wrong the confiscation of arms in New Orleans is legal because it’s spelled out in the emergency powers law of Louisiana concerning the Powers of the Governor.

Section 8 is the only thing I found remotely applicable:

”(8) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles.”

As you can see it only covers selling, dispensing or transporting firearms. Nothing is mentioned about mere possession.

But even if there is a section I haven’t found covering possession of firearms & their confiscation we must first reconcile it with the higher authority.

In the Louisiana constitution, Article IV section 5 (J) we find:

"Commander-in-Chief. The governor shall be commander-in-chief of the armed forces of the state, except when they are called into service of the federal government. He may call out these forces to preserve law and order, to suppress insurrection, to repel invasion, or in other times of emergency."

This would qualify as "other times of emergency" but I do not see a suspension of constitutional rights being listed under his capabilities as commander in chief.

To continue in section (k)

"Other Powers and Duties. The governor shall have other powers and perform other duties authorized by this constitution or provided by law."

Again nothing directly relating to the authority to suspend a constitutional directive, though it does allude to other powers contained within the constitution.

Article VI:

"Section 23. Subject to and not inconsistent with this constitution and subject to restrictions provided by general law, political subdivisions may acquire property for any public purpose by purchase, donation, expropriation, exchange, or otherwise."

It can't be justified under that takings clause as it's inconsistent with the constitution.

I would also submit Article I from the Louisiana constitution, specifically sections 1; 2; 4; & 11.

I won't reprint them all. But I will point out section 11:

"Section 11. 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."

(& slightly off subject but I thought section 20 was very cool.)

So I have not found any legal or constitutional justification for the stealing of guns from citizens by the government. In fact I've only found the contrary; that the government of Louisiana is prohibited from disarming civilians. Since no mention is made of specific times it must be assumed that it a general prohibition irregardless of occurences or emergencies. That would include city govenment as well as state.

Here is the link to the Louisiana Constitution. Look it over for yourself. Please leave a comment if you find anything in it that would justify civilian disarmament.

Posted by Publicola at September 9, 2005 07:23 AM | TrackBack
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