September 01, 2005
Looting in New Orleans
Glenn Reynolds suggests shooting looters. Eric Muller proudly looks down his nose at the idea. How uncivilized! But the irony is that it's Muller whose position is uncivilized.
There are lots of snarky remarks about looting coverage (Prawfsblawg, unlike Wonkette, at least noted that one can't expect consistency across different news organizations), but in reality, as a look at blogs from people actually in New Orleans show, the looting is far worse than the media is reporting until recently. This isn't an issue of salvaging spoiling food and water (though, even here, allowing looting means the strong get food and the weak starve); they're attacking rescuers and doctors and hospitals. "At flood-swamped Charity Hospital, looters with handguns forced doctors to give up stores of narcotics." Other looters are stealing generators from unarmed citizens. This is the anarchy that Muller is defending; he can bring to bear a lot of sarcasm on the matter, but that's hardly a useful policy suggestion. If someone wishes to argue that shooting violent looters is inefficacious, that's one thing, but simply to argue that doing so will lead to loss of life seems to me to ignore the opportunity costs of permitting looting.
I fully acknowledge that shooting looters is an inappropriately disproportionate response if one views looting as mere larceny. But one doesn't shoot looters to protect property, one does so to protect order. Somebody is going to suffer unjustly when society breaks down. I don't understand why Muller thinks it preferable for the law-abiding citizens to be the cost-bearers. History has shown repeatedly that the way to stop an anarchic riot is an early display of substantial force.
Of course, with the New Orleans police having close to third-world levels of corruption in good weather, there isn't exactly law enforcement that I would trust on the ground in the city until the National Guard gets sent in, so the whole question may be moot.
The original comment thread on Volokh is here. The bash Glenn Reynolds and Ted Frank thread is here.
"This one is very interesting and on topic of protecting oneself with firearms":
Defenseless On the Bayou
New Orleans gun confiscation is foolish and illegal
In the nearly two weeks since Hurricane Katrina, the government of New Orleans has devolved from its traditional status as an elective kleptocracy into something far more dangerous: an anarcho-tyranny that refuses to protect the public from criminals while preventing people from protecting themselves. At the orders of New Orleans Mayor Ray Nagin, the New Orleans Police, the National Guard, the Oklahoma National Guard, and U.S. Marshals have begun breaking into homes at gunpoint, confiscating their lawfully-owned firearms, and evicting the residents. "No one is allowed to be armed. We're going to take all the guns," says P. Edwin Compass III, the superintendent of police.
Last week, thousands of New Orleanians huddled in the Superdome and the Convention Center got a taste of anarcho-tyranny. Everyone entering those buildings was searched for firearms. So for a few days, they lived in a small world without guns. As in other such worlds, the weaker soon became the prey of the stronger. Tuesday's New Orleans Times-Picayune reported some of the grim results, as an Arkansas National Guardsman showed the reporter dozens of bodies rotting in a non-functional freezer.
In the rest of the city, some police officers abandoned their posts, while others joined the looting spree. For several days, the ones who stayed on the job did not act to stop the looting that was going on right in front of them. To the extent that any homes or businesses were saved, the saviors were the many good citizens of New Orleans who defended their families, homes, and businesses with their own firearms.
These people were operating within their legal rights. The law authorizes citizen's arrests for any felony, and in the past (in the 1964 case McKellar v. Mason), a Louisiana court held that shooting a property thief in the spine was a legitimate citizen's arrest.
The aftermath of the hurricane has featured prominent stories of citizens legitimately defending lives and property. New Orleans lies on the north side of the Mississippi River, and the city of Algiers is on the south. The Times-Picayune detailed how dozens of neighbors in one part of Algiers had formed a militia. After a car-jacking and an attack on a home by looters, the neighborhood recognized the need for a common defense; they shared firearms, took turns on patrol, and guarded the elderly. Although the initial looting had resulted in a gun battle, once the patrols began, the militia never had to fire a shot. Likewise, the Garden District of New Orleans, one of the city's top tourist attractions, was protected by armed residents.
The good gun-owning citizens of New Orleans and the surrounding areas ought to be thanked for helping to save some of their city after Mayor Nagin, incoherent and weeping, had fled to Baton Rouge. Yet instead these citizens are being victimized by a new round of home invasions and looting, these ones government-organized, for the purpose of firearms confiscation.
The Mayor and Governor do have the legal authority to mandate evacuation, but failure to comply is a misdemeanor; so the authority to use force to compel evacuation goes no further than the power to effect a misdemeanor arrest. The preemptive confiscation of every private firearm in the city far exceeds any reasonable attempt to carry out misdemeanor arrests for persons who disobey orders to leave.
Louisiana statutory law does allow some restrictions on firearms during extraordinary conditions. One statute says that after the Governor proclaims a state of emergency (as Governor Blanco has done), "the chief law enforcement officer of the political subdivision affected by the proclamation may...promulgate orders...regulating and controlling the possession, storage, display, sale, transport and use of firearms, other dangerous weapons and ammunition." But the statute does not, and could not, supersede the Louisiana Constitution, which declares that "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."
The power of "regulating and controlling" is not the same as the power of "prohibiting and controlling." The emergency statute actually draws this distinction in its language, which refers to "prohibiting" price-gouging, sale of alcohol, and curfew violations, but only to "regulating and controlling" firearms. Accordingly, the police superintendent's order "prohibiting" firearms possession is beyond his lawful authority. It is an illegal order.
Last week, we saw an awful truth in New Orleans: A disaster can bring out predators ready to loot, rampage, and pillage the moment that they have the opportunity. Now we are seeing another awful truth: There is no shortage of police officers and National Guardsmen who will obey illegal orders to threaten peaceful citizens at gunpoint and confiscate their firearms.
Dave Kopel is Research Director of the Independence Institute.
Now, can the officers of the government under any circumstances, forcibly make citizens give up their firearms? I thought it was written in blood that Americans had the right to bear arms?
And, for a news clip and .....go to:
[Edited by MikeJ on 09-24-2005 at 03:06 AM]