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« Same old-Same old in New Orleans | Main | My two bits on FEMA »

Further thoughts on New Orleans

Posted by David Hardy · 9 September 2005 03:55 PM

Comments to the previous post have led me to do a little thinking. I'm not the one to do it (not admitted to practice in LA), and the courts may nonfunctional (I saw a law blog posting where they mentioned that the district court and the 5th Cir. were badly flooded ... and where do you keep records in a counthouse? In the basement....) Anyway,

1. As noted below, LA has a right to bear arms clause in its constitution (with an exception for CCW laws, making it obvious that it's individual and broad).

2. As far as the federal rights goes, LA is in the 5th Circuit, which recognizes the 2nd Amendment as an individual right. The most probable result of a federal challenge would be either (a) a win or (b) some caselaw on time-manner-place limitations of exercising the right, which would be useful toward establishing a jurisprudence of the amendment. It might also lead to a decision on incorporating the 2d via the 14th, an issue not present in Emerson.

3. The right to keep and bear arms is nowhere more important than in an emergency such as this, when the most fundamental right of all -- to defend oneself and one's family when the government has failed to do so -- is on the line.

4. Assuming that a present-day challenge is out of the question, the courthouse being under water and all that, how would one be brought down the road? One comment mentioned an action for intentional infliction of emotional distress... I doubt that'd fly. I suspect, tho, that emotional distress would be compensable in a 1983 civil rights suit against the state. I recall you can recover nominal damages in one of those, too. Now, if someone was attacked, under conditions where they could have defended themselves, there would be a serious basis for seeking damages. Considering the conditions there (the jails having been opened up) there would be a basis to fear that.

· contemporary issues

4 Comments | Leave a comment

GlockShooter | September 9, 2005 6:48 PM | Reply

Since the 5th Circuit is out of commission, couldn't we request another circuit court to issue an emergency stay or injunction? Or can't we find a judge from that circuit to issue it? Do the people within the 5th Circuit have no rights since the Judical branch is closed?

Why isn't the NRA or GOA on this? The ACLU would be all over this if the asst cheif said that pedophiles weren't allowed to leave NO. I wish those two organizations would go some balls.

Could it help that troops from outside the 5th Circuit are doing the confiscations? And those troops are operating under direction of their home state governors.

GlockShooter | September 10, 2005 6:00 AM | Reply

Apparently, CNN can get a judge to issue an injunction ... why can't the NRA/GOA?

http://www.cnn.com/2005/LAW/09/10/katrina.media/index.html

Alan Gura | September 10, 2005 12:50 PM | Reply

emotional distress is definitely awarded as an aspect of damages in 1983 claims.

but we're talking, typically, an excessive force/false arrest claim under the fourth amendment. you could say that taking your gun away was distressful to you emotionally, sure. if a jury agrees with you, why not?

if someone is harmed because they could not defend themselves following confiscation of their gun, the government would fight you on proximate cause. could go either way.

at the very least, injunctive relief, nominal damages, value of the seized guns, and attorney fees are no-brainers if the court agrees this is a 1983 violation of the second amendment. you need the right plaintiff, of course -- a non-looter, law abiding person whose gun got taken by a city cop. if i were admitted to practice in louisiana, i'd take such a case.

Rudy DiGiacinto | September 10, 2005 7:41 PM | Reply

In State v. Bias, 37 La. Ann. 259 (1885). The Court noted the following:

"The constitutional right is to bear arms openly, so that when one meets an armed man there can be no mistake about the fact that he is armed. When we see a man with musket to shoulder, or carbine slung on back, or pistol belted to his side, or such like, he is bearing arms in the constitutional sense. Of course there are other examples. These are but illustrations. There is no danger of any jury or court misinterpreting our statute prohibiting carrying concealed weapons, and confounding a case of lawful arms-bearing with one of carrying dangerous weapons concealed, unless verbal distinctions are pressed too far and they are misled by them."

So where does the authority to suspend part of the constitution come from? Not the Louisiana constitution!

The Louisiana Constitution , "ยง1. Origin and Purpose of Government

Section 1. All government, of right, originates with the people, is founded on their will alone, and is instituted to protect the rights of the individual and for the good of the whole. Its only legitimate ends are to secure justice for all, preserve peace, protect the rights, and promote the happiness and general welfare of the people. The rights enumerated in this Article are inalienable by the state and shall be preserved inviolate by the state.

The protection of Individual rights is the purpose of government. According to the Louisiana Constitution.

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