Whoops!

The gun confiscation program that New Orleans tried to implement to get guns off the streets after the New Orleans PD basically disintegrated after Katrina and the subsequent flooding hit, had absolutely no basis in the law.

They violated the Second Amendment. Pure and simple.

The parties agreed to accept the the court's injunction (an injunction which is empowered only by section 1983, since an injunction is not a declaratory judgement) which:

1. Forbids them from confiscating guns.

2. Orders them to return all guns which have been confiscated.

Of course it was on Volokh.com where the legal argument was first made that "New Orleans Gun Confiscations are Blatantly Illegal." Now, the perpetrator governments have agreed to this legal conclusion, although they maintain the implausible assertion that gun confiscations were not the result of official policy. No doubt the factual issue will be explored in the lawsuits which are almost certainly to follow against the uniformed looters who stole guns from law-abiding citizens. Kudos to plaintiffs' attorney Stephen Halbrook, whose memorandum of law is available here.

It's always interesting that some people consider some parts of the Constitution to hold more weight and authority than others, even to the point where they claim that the Constitution forbids or creates rights that are not explicitly stated in the Constitution. Yet, when governments of the United States, in this case the state and local municipal governments in Louisiana illegally take away legally registered guns from their rightful owners, this doesn't get nearly the kind of coverage in the media that it should.

I hope that the state and local officials who tried to get away with this violation of the US Constitution are dealt with harshly and severely. As the Volokh Conspiracy noted earlier:

"Prohibiting" authority applies to the sale of alcohol, presence on public streets, and the sale of goods or services at excessive prices. "Regulating" authority applies to firearms, flammable materials, and sound devices (such as megaphones). The "regulating" authority is undoubtedly broad. But it is not equivalent to "prohibiting." The statute does not authorize the New Orleans Police--abetted by the National Guard and the U.S. Marshalls--to break into homes, point guns at people, and confiscate every single private firearm--or every single private bullhorn or private cigarette lighter.

Yet New Orleans' lawless superintendant of police, P. Edwin Compass, has declared, "No one is allowed to be armed. We're going to take all the guns."

The Compass order appears to be plainly illegal. 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.

So, on top of all the other failures to deal with the natural disaster caused by Katrina, state and local officials violated the Second Amendment of the US Constitution, may have caused others to violate the Second Amendment, and could and should be subject to legal action personally.