People Who Keep Their Guns Aren't Breaking The Law

PhotonGuy · November 19, 2023, 01:43 PM

People who keep their guns during government gun seizures such as in New Orleans after Hurricane Katrina aren't breaking the law by doing so. Many people in New Orleans had their guns seized by the government after Hurricane Katrina but not everybody gave up their guns. Those that kept their guns were not breaking the law by doing so because they were exercising their constitutional right as identified by the second amendment. It is not against the law to exercise rights, that's why they're called rights.

The reason Im bringing this up is because apparently people who kept their guns after Katrina don't like to talk openly about it because it's not smart to talk about how you broke the law after breaking it. I want to point out that they didn't break the law so they shouldn't be afraid to talk about it.

**JohnKSa** · November 19, 2023, 03:32 PM

That's not how the law works. Individuals don't get to nullify existing laws based on their personal interpretation of the Constitution. That power is reserved exclusively to SCOTUS.

Unless SCOTUS has stated that a law is unconstitutional, then it is still the law of the land and breaking it will put the violator in jeopardy of arrest and prosecution, assuming that the statute of limitations hasn't expired.

I think people can state that they ignored the Katrina turn-in order without fear of prosecution in this specific case because:

It's not clear that the confiscations were performed within the scope of existing law.
Congress has since passed laws prohibiting a repeat performance during emergencies.
Katrina was 18 years ago so I would assume (you know what they say about assuming, of course) that the statute of limitations has expired.

**44 AMP** · November 19, 2023, 03:45 PM

I agree with you on principles, but like many things, the devil is in the details.

Every situation like that has its own individual (and often unique) factors, and those determine what/which laws apply.

There are levels of legal authority that can be applied due to emergency conditions. Govt agents can do many things they are not ordinarily authorized to do under various "emergency powers" as codified in law. And there is also the ultimate, marshal law where the local command authority has complete (and legal) control over everything.

With the Katrina situation, it was determined that the people seizing firearms (because they were there, and they could) acted outside their legal authority.

I believe LA (and some other places) passed laws after Katrina to prevent that situation from happening again.

When emergency powers are enacted, the Govt can do a lot of things, short of implementing marshal law.

They can, for example, prohibit the sale of firearms, the sale of alcohol, curtail your right to travel, order businesses to close, prevent public gatherings, people from going to work, or even leaving their homes , along with many other things.

COVID proved that rather thoroughly. It also showed that SOME Govt officials will play by the written rules, and others will not, unless forced to.

mehavey · November 19, 2023, 04:02 PM

Quote:

not clear that the confiscations were performed within the scope of existing law

OOC: What legal authority was claimed
by Nagin and his ilk at the time ?

(or did anyone ever figure out who actually
gave the order to start confiscation ?)

.

**JohnKSa** · November 19, 2023, 04:32 PM

I can't find that they claimed any specific justification or legal authority stemming from an existing law and a judge was apparently easily convinced to issue a restraining order stopping the confiscations. That's why I posted what I did.

mehavey · November 19, 2023, 04:46 PM

Follow-up . . .

Is there case law (and or precedent) for citizens actively resisting
illegal actions by police (or other law-enforcement authorities)
acting under the color of law ?

(Notice I did not ask for a recommendation... )

**JohnKSa** · November 19, 2023, 05:15 PM

I don't know the laws everywhere. TX law does provide justification for citizens to directly defend against some actions taken by law enforcement. However, the law explicitly states that defending one's self against LE is NOT justified by the fact that the arrest/search is unlawful, but only in situations where it appears that the officer immediately resorts to greater force than is necessary. Offhand, I don't recall ever hearing that someone used this law effectively in court, but that doesn't mean a whole lot.

The takeaway is that, in TX, even if the arrest/search is actually illegal, that fact alone does not give a citizen the legal right to use force to stop it or resist the actions of LE.

Quote:

(Notice I did not ask for a recommendation... )

Ok, then please ignore this next part. It's here for other people, not for you.

The way to fight against unjust laws or illegal official actions of LE, is to do it in court where you aren't going to be charged for resisting arrest, where you are unlikely to be shot or tased or beaten during the process, and where you won't be running the risk of injuring or killing police officers who may just feel like they are doing their job.

There are plenty of videos online that demonstrate what happens to people who resist the actions of LE, and the outcomes aren't magically better just because the person resisting actually turns out to be in the right.

mehavey · November 19, 2023, 05:36 PM

Quote:

(Notice I did not ask for a recommendation... )

That was because I was asking about historical fact . . .
and did not want anyone put on the spot when
that great Search Engine in the sky cranks up.

However I will leave what else was said for others to ponder the implications:

Quote:

...even if the arrest/search is actually illegal, that fact alone does
not give a citizen the legal right to use force to stop it, or resist
the actions of LE.

rc · November 19, 2023, 08:51 PM

Consider the California assault weapons ban of 1989 that was ruled unconstitutional by federal judge Roger Benitez. Because California's Democrat attorney general won't accept his ruling, he has appealed the decision to the 9th circuit court of appeals and judges on that court are playing games with the state's appeal process to drag out the conclusion of the case. This is unjust, but I comply simply because anyone convicted of violating the law will have all their gun rights taken away. Better to avoid a fight with government and keep some of your gun rights than pick a fight with government and lose all of your gun rights.

mehavey · November 19, 2023, 08:56 PM

Quote:

Better to avoid a fight with government and keep some of your gun
rights than pick a fight with government and lose all of your gun rights.

Many, myself included, will take this under advisement.

PhotonGuy · November 19, 2023, 09:28 PM

Quote:

That's not how the law works. Individuals don't get to nullify existing laws based on their personal interpretation of the Constitution. That power is reserved exclusively to SCOTUS.

Unless SCOTUS has stated that a law is unconstitutional, then it is still the law of the land and breaking it will put the violator in jeopardy of arrest and prosecution, assuming that the statute of limitations hasn't expired.

And what if SCOTUS fails to declare a law unconstitutional when it is? You do know the underlying purpose of the 2A don't you? If all else fails the 2A is supposed to serve as a final check and balance. That is the underlying purpose of the 2A.

Quote:

I think people can state that they ignored the Katrina turn-in order without fear of prosecution in this specific case because:

It's not clear that the confiscations were performed within the scope of existing law.

They obviously weren't, they were a direct violation of the 2A.

Quote:

Congress has since passed laws prohibiting a repeat performance during emergencies.

And if the government ignores such laws?

Quote:

Katrina was 18 years ago so I would assume (you know what they say about assuming, of course) that the statute of limitations has expired.

Probably, but that's not relevant as people in New Orleans who kept their guns during Katrina weren't breaking any laws, it's the people who were seizing the guns who were breaking the law.

PhotonGuy · November 19, 2023, 09:50 PM

Quote:

The way to fight against unjust laws or illegal official actions of LE, is to do it in court where you aren't going to be charged for resisting arrest, where you are unlikely to be shot or tased or beaten during the process, and where you won't be running the risk of injuring or killing police officers who may just feel like they are doing their job.

I agree, that should be the first course of action, to fight injustice in court and/or by voting for the right people but if that fails, that's what the 2A is for.

**44 AMP** · November 19, 2023, 10:16 PM

Quote:

..that's what the 2A is for.

I disagree.

The 2nd Amendment is a limit on the power of government. That's all.

**JohnKSa** · November 19, 2023, 10:34 PM

Quote:

And what if SCOTUS fails to declare a law unconstitutional when it is?

This is not advice, just enumerating some possible courses of action.

You can support organizations who agree with you and have the resources and skills to challenge the law in court and hope the challenge is effective. It won't get you out of being arrested if the cops are at your door, or from being prosecuted if you are in court, but it might help you down the road.
You can ignore the law and risk arrest, prosecution and punishment.
You can move to another country.
You can try to start a rebellion.
You can actively resist the police if confronted and (if you survive) get arrested and prosecuted and then see if you can appeal and get the upper courts or SCOTUS to agree with you. But you WILL be arrested, and if your view of the 2A is different from what the Supreme Court says it is, you will not find that claiming the 2A protects your actions to be an effective tactic. Not for the original issue and absolutely not for the charges due to your active resistance.

Quote:

...that's what the 2A is for.

The 2A is what SCOTUS says it is. No more, no less. It's not some magic wand that any citizen of the U.S. can wave over a situation and resolve it on the spot.

Telling the police or the courts that they are violating the 2A is not just ineffectual, it's likely to be counterproductive. Once a cop engages you, legal arguments are a waste of time. You aren't in a courtroom and the cop isn't a judge or prosecuting attorney. At that point, if you resist, you're just going to get arrested, and get additional charges in addition to whatever you were engaged for in the first place. And courts aren't bound by your view of what the 2A is, they will follow existing statutes and SCOTUS rulings.

This isn't an opinion sort of situation where you can agree to disagree and walk away. Your opinion simply doesn't matter to the cops or the courts unless your opinion aligns with existing statutes and SCOTUS rulings.

PhotonGuy · November 20, 2023, 08:40 AM

Quote:

I disagree.

The 2nd Amendment is a limit on the power of government. That's all.

And its a final check and balance if all else fails and the government becomes corrupt and tyrannical.

**Spats McGee** · November 20, 2023, 08:43 AM

If we're going to have this discussion in L&CR, how about we have some discussion of the legal provisions involved? Otherwise, this is just a General Discussion.

PhotonGuy · November 20, 2023, 08:57 AM

Quote:

If we're going to have this discussion in L&CR, how about we have some discussion of the legal provisions involved? Otherwise, this is just a General Discussion.

Can the thread be moved to the General Discussion folder?

**Spats McGee** · November 20, 2023, 11:59 AM

It can, indeed.

**44 AMP** · November 20, 2023, 02:49 PM

Quote:

And its a final check and balance if all else fails and the government becomes corrupt and tyrannical.

That is a popular misconception. If armed resistance to a tyrannical govt becomes necessary, the 2 Amendment has already failed.

Double Naught Spy · November 20, 2023, 03:09 PM

Quote:

And what if SCOTUS fails to declare a law unconstitutional when it is?

The Supreme Court is the final word in US law. If they deem something Constitutional or not, then it is, no matter what you or others think about it. This is based on the doctrine of judicial finality.

PhotonGuy · November 20, 2023, 04:54 PM

Quote:

That is a popular misconception. If armed resistance to a tyrannical govt becomes necessary, the 2 Amendment has already failed.

Ideally with the 2A we would never come to the point where armed resistance would be necessary so that just by having armed citizens should prevent the government from becoming tyrannical in the first place, but if all else fails the citizens can revolt.

PhotonGuy · November 20, 2023, 04:55 PM

Quote:

The Supreme Court is the final word in US law. If they deem something Constitutional or not, then it is, no matter what you or others think about it. This is based on the doctrine of judicial finality.

It is the US Citizens who are supposed to have the final word on US law and on everything else in the country. It is the government, including the SCOTUS, that serves the people not the other way around.

mehavey · November 20, 2023, 06:11 PM

Might makes Right
in such instances.

As RE Lee was reputed to have told one of his (then Washington) College
students when questioned about the rightness of the War's origins:"

"It was decided by force of arms"

Never forget that.

**44 AMP** · November 20, 2023, 07:24 PM

Quote:

Might makes Right
in such instances.

Disagree. Might makes victory.

Right, or wrong, depends on your ethics and morality, and which side you are on.

History is written by the victors. The losers are almost always made out to be the "bad guys", but often things are not that simple.

mehavey · November 20, 2023, 08:19 PM

Quote:

Disagree. Might makes victory.

A matter of semantics.
Might makes victory

The victors make the Laws
The victors write the history
The victors educate your children
The victors define what becomes your culture
Your children and their victors' culture then decide the Right.

And that Right is decided...and enforced... by force of arms . . . .
Never -- ever -- think otherwise.

BTW: That is what the 2nd Amendment (and Federalist #46) recognize as basis of defining and defending the Right.

Just a thought.

You just knew I'd bring this back around . . . .
Right ?

.

November 19, 2023, 01:43 PM	#1
PhotonGuy Senior Member Join Date: March 1, 2019 Posts: 146	People Who Keep Their Guns Aren't Breaking The Law People who keep their guns during government gun seizures such as in New Orleans after Hurricane Katrina aren't breaking the law by doing so. Many people in New Orleans had their guns seized by the government after Hurricane Katrina but not everybody gave up their guns. Those that kept their guns were not breaking the law by doing so because they were exercising their constitutional right as identified by the second amendment. It is not against the law to exercise rights, that's why they're called rights. The reason Im bringing this up is because apparently people who kept their guns after Katrina don't like to talk openly about it because it's not smart to talk about how you broke the law after breaking it. I want to point out that they didn't break the law so they shouldn't be afraid to talk about it.

November 19, 2023, 03:32 PM	#2
JohnKSa Staff Join Date: February 12, 2001 Location: DFW Area Posts: 24,782	That's not how the law works. Individuals don't get to nullify existing laws based on their personal interpretation of the Constitution. That power is reserved exclusively to SCOTUS. Unless SCOTUS has stated that a law is unconstitutional, then it is still the law of the land and breaking it will put the violator in jeopardy of arrest and prosecution, assuming that the statute of limitations hasn't expired. I think people can state that they ignored the Katrina turn-in order without fear of prosecution in this specific case because: It's not clear that the confiscations were performed within the scope of existing law. Congress has since passed laws prohibiting a repeat performance during emergencies. Katrina was 18 years ago so I would assume (you know what they say about assuming, of course) that the statute of limitations has expired. __________________ Do you know about the TEXAS State Rifle Association?

November 19, 2023, 03:45 PM	#3
44 AMP Staff Join Date: March 11, 2006 Location: Upper US Posts: 28,100	I agree with you on principles, but like many things, the devil is in the details. Every situation like that has its own individual (and often unique) factors, and those determine what/which laws apply. There are levels of legal authority that can be applied due to emergency conditions. Govt agents can do many things they are not ordinarily authorized to do under various "emergency powers" as codified in law. And there is also the ultimate, marshal law where the local command authority has complete (and legal) control over everything. With the Katrina situation, it was determined that the people seizing firearms (because they were there, and they could) acted outside their legal authority. I believe LA (and some other places) passed laws after Katrina to prevent that situation from happening again. When emergency powers are enacted, the Govt can do a lot of things, short of implementing marshal law. They can, for example, prohibit the sale of firearms, the sale of alcohol, curtail your right to travel, order businesses to close, prevent public gatherings, people from going to work, or even leaving their homes , along with many other things. COVID proved that rather thoroughly. It also showed that SOME Govt officials will play by the written rules, and others will not, unless forced to. __________________ All else being equal (and it almost never is) bigger bullets tend to work better.

November 19, 2023, 04:32 PM	#5
JohnKSa Staff Join Date: February 12, 2001 Location: DFW Area Posts: 24,782	I can't find that they claimed any specific justification or legal authority stemming from an existing law and a judge was apparently easily convinced to issue a restraining order stopping the confiscations. That's why I posted what I did. __________________ Do you know about the TEXAS State Rifle Association?

November 20, 2023, 08:43 AM	#16
Spats McGee Staff Join Date: July 28, 2010 Location: Arkansas Posts: 8,792	If we're going to have this discussion in L&CR, how about we have some discussion of the legal provisions involved? Otherwise, this is just a General Discussion. __________________ I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.

November 19, 2023, 04:46 PM	#6
mehavey Senior Member Join Date: June 17, 2010 Location: Virginia Posts: 6,774	Follow-up . . . Is there case law (and or precedent) for citizens actively resisting illegal actions by police (or other law-enforcement authorities) acting under the color of law ? (Notice I did not ask for a recommendation... )

November 19, 2023, 08:51 PM	#9
rc Senior Member Join Date: April 28, 2001 Location: CA Posts: 1,587	Consider the California assault weapons ban of 1989 that was ruled unconstitutional by federal judge Roger Benitez. Because California's Democrat attorney general won't accept his ruling, he has appealed the decision to the 9th circuit court of appeals and judges on that court are playing games with the state's appeal process to drag out the conclusion of the case. This is unjust, but I comply simply because anyone convicted of violating the law will have all their gun rights taken away. Better to avoid a fight with government and keep some of your gun rights than pick a fight with government and lose all of your gun rights.

November 20, 2023, 11:59 AM	#18
Spats McGee Staff Join Date: July 28, 2010 Location: Arkansas Posts: 8,792	It can, indeed. __________________ I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.

November 20, 2023, 06:11 PM	#23
mehavey Senior Member Join Date: June 17, 2010 Location: Virginia Posts: 6,774	Might makes Right in such instances. As RE Lee was reputed to have told one of his (then Washington) College students when questioned about the rightness of the War's origins:" "It was decided by force of arms" Never forget that.

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