People Who Keep Their Guns Aren't Breaking The Law

[JohnKSa]

Yes, we hanged the Germans and the Japanese whose excuse was the absolute classic "but I was following orders."

Come on now. We're not talking about genocide or war crimes here, we're talking about U.S. LEOs carrying out weapons confiscations during a state of emergency.

The point is that, from the standpoint of a citizen confronted with LEOs (who aren't committing genocide, rape or murder and who have probable cause, etc.) resistance isn't usually a legal option. And further, that if a person does resist, even if the actual actions turn out to be invalid/unjustified (the persons giving the order didn't have the authority to do so, the citizens being confronted are innocent) they are likely still breaking the law.

And even those who were "just following orders," while knowing those orders were unlawful.

If it could be shown that those LEOs carried out the orders KNOWING them to be unlawful, then they would certainly be culpable, as would the people who gave them the orders. No one is saying that their actions were justified, the question is what someone on the receiving end of those actions could do legally and what might happen to them if they take certain courses of action.

So there the fallacy is laid bare that "the collective" can interpret the constitution and decide which laws to follow and which to ignore.

Exactly. Which is why the government is set up with one organization that is the final authority on the interpretation of the Constitution.

Good Lord. We've gone from debating the consequences of resistance to illegal gun confiscation in Katrina, to "I've got my orders" being sufficient authority to effect that confiscation (or by extension any other illegal action) under the color or Law.

That's a total and blatant mischaracterization. This isn't about whether or not the government had sufficient authority to confiscate weapons during Katrina or LE had the right to do so--the fact is that they didn't--or at least the NRA was able to convince a judge to make them stop the confiscations and then later made them give back the guns without forcing the owners to jump through hoops. I mentioned the problematic nature of the confiscations in my first post.

The original assertion was that a citizen could ignore laws or flaunt LE action and get away with it by citing the Constitution and/or their personal interpretation of it. That is a false assertion. The Constitution isn't a magic wand that can be waved at LE or the courts to stave them off and personal interpretations of the Constitution are only valid if they align with SCOTUS rulings or existing law.

That question has sort of morphed into whether or not a citizen can resist LE actions without breaking the law in the general case. Again, not talking about LE committing war crimes, genocide, murder, rape, etc., but rather carrying out actions which may later be found to be unjustified. Like arresting a person who turns out to be innocent, or enforcing a law that turns out to be unconstitutional, or carrying out orders which are later found to be illegal, etc. The answer is, generally, no.

What you're doing is like this:
Someone says: "If a person shoots at you with no cause, since they are in the wrong, their bullets won't hurt you."

Another person says: "Look, the bullets are going to be just as dangerous either way. You'd better duck and get behind cover if you don't want to get dead or hurt badly."

You say: "OMG! I can't believe it's come to this! Now we have people saying that it's perfectly ok for others to shoot at you for no reason. Haven't we learned anything from the Nazis?!!"

 

[44 AMP]

OK then, please reflect on what in the following list is an "arm:"
-A revolver
-A semi-auto pistols
-An AR-15
-A M2 machine gun
-A M1 Abrams
-A F35
-An aircraft carrier
-An ICBM complete with nuclear warhead

They all are!

After that, we get into what category of arm they are, and whether you take the narrowest or broadest view of what is meant by the term "arms".

The language of the Second Amendment says 'arms". It does not further define the term. It does not say "personal arms", it does not say "individual arms" it does not even say "firearms. It says "arms", which, to me is an all inclusive term. Other people argue differently.

Read Tench Coxe, and see if you agree with his statement about arms. I do.

The sword and every terrible implement of the soldier are the birthright of Americans....

Also consider we are discussing underlying principles and concepts here, not the details of modern practical reality. I am not saying that the govt does not have a valid interest in regulating things for public safety, only that they do not have solid moral grounds for complete prohibition of arms.

 

[Double Naught Spy]

Also consider we are discussing underlying principles and concepts here, not the details of modern practical reality. I am not saying that the govt does not have a valid interest in regulating things for public safety, only that they do not have solid moral grounds for complete prohibition of arms.

Which is the pragmatic arguing point. The question we are basically fighting about in legislatures is how much regulation is appropriate. Even non-extremists fail to agree on what is appropriate regulation.

Absolute consitutionalists, sort of like the OP, would hold that any infringement, um, regulation, of firearms is invalid. Absolute reformers want all guns gun, but there is seemingly no mid ground that we can agree upon.

 

[Aguila Blanca]

Which is the pragmatic arguing point. The question we are basically fighting about in legislatures is how much regulation is appropriate. Even non-extremists fail to agree on what is appropriate regulation.

Absolute consitutionalists, sort of like the OP, would hold that any infringement, um, regulation, of firearms is invalid. Absolute reformers want all guns gun, but there is seemingly no mid ground that we can agree upon.

That would be me. I strongly believe that the language of the Second Amendment explicitly disallows any regulation of the RKBA. That's what "shall not be infringed" means.

That said, I also am pragmatic enough to understand that what counts is not what I think it means, but what the Supreme Court thinks it means.

 

[44 AMP]

We have, essentially two extreme viewpoints, one being any infringement (meaning any restriction or regulation at all) is a violation of our enumerated right, and the other is, essentially that as long as we are permitted to own some kind of firearm (one they approve of) then our right is not being infringed.

If we were all restricted to single shot muzzle loading arms, they would feel our right is preserved. This viewpoint, I think, is in error.

Do remember that it was the "infringers" and their primarily irrational fears that resulted in the actual historical arms used at Lexington and Concord, displayed (UNLOADED) on a wall in a museum where children visit required trigger locks be put on them for "safety". Considering that that had been on that wall for over a couple centuries, I think that a bit beyond reasonable.

And that's our basic problem. What they consider reasonable and what we consider reasonable are quite different. I think they are wrong. They think we are wrong.

I forget who said it, but there is a saying about how "the law may upset reason, but reason must never be allowed to upset the law:.

Personally, I disagree.
The problem is when the wrong "reason" either creates or upsets the law, and the people doing it believe it is the "right" reason.

 

[mehavey]

That was not the OP question/issue. The OP posed . . .

People who [kept] their guns during government gun seizures such as in
New Orleans after Hurricane Katrina aren't breaking the law by doing so

That position devolved into (and I paraphrase) "It matters not that what the police may be doing is patently* illegal.
To resist the police is in & of itself/ipso facto a crime -- and "I've got my orders" is their authority to act.

That was contrasted with the position that an illegal order, is not a lawful order

It was then that things went off the rails . . . .



*"Degree of infringement" is a whole other matter.

 

[JohnKSa]

"It matters not that what the police may be doing is patently* illegal. To resist the police is in & of itself/ipso facto a crime...

That is a mischaracterization. It absolutely does matter what the police do. Blatant disregard for the law or outright crimes are not going to fly. If the police are murdering, raping, committing genocide, taking action against citizens without any pretext whatsoever, etc. that's another thing entirely from the general case.

In general, citizens can not legally resist actions by the police simply because they disagree with their actions. In other words, they can't resist arrest because they feel that the basis of LE action is not justified under the Constitution or because they feel like they are innocent. Even in cases where the LE actions (excluding extreme/blatant disregard of the law) are later ruled illegal or unconstitutional, or the arrestee does actually turn out to be innocent, it is likely that resisting arrest was still against the law and the arrestee can be prosecuted for taking that option.

You can not make this into a black or white situation where either cops can do anything they want with impunity or it's always legal for citizens to resist them. The real world is never that simple.

...and "I've got my orders" is their authority to act.

You asked specifically under what authority the confiscations in Katrina were done. It appears that the officers were told by their superiors to confiscate the firearms and so that's what I said happened--I answered you accurately. I pointed out that the orders did not appear to be legal.

At that point, I went a bit further and commented on what I thought about the culpability of the individual officers. The fact is that there is precedent for firearm confiscations during states of emergency. I don't agree with that precedent, and since Congress changed the law, specifically due to Katrina, it's not an option any more. But in the past, it has been legal, in various parts of the U.S. for the authorities to confiscate firearms during states of emergency. Because of that, and because LE's are not required to be legal experts, I felt that, while I strongly disagree with the idea of firearms confiscation, even during emergencies, in that particular circumstance and in that time, I could understand why some LEs did comply with the orders and also that I'm not sure that it would make sense to hold them personally responsible--in this particular case. The people who ordered the confiscations are another story. It does appear that they overstepped their authority and a judge made them back down.

Again, you can not make this into a black or white situation. There are very obviously some situations where LEOs could be given orders that later turn out to be illegal but that might seem to have at least some chance of being justifiable at the time based on circumstances. In that case, "I was following orders might be a reasonable justification. There are also absolutely situations where "I was following orders." will carry zero weight given the circumstances.

I also pointed out that from a purely practical standpoint, it is dangerous to resist LE and that should certainly be a consideration in situations where immediate action is not required to prevent illegal actions by LE from resulting in death or serious injury. That is just an undeniable truth.

I am not claiming that it doesn't matter what cops do in terms of being able to resist them legally because it does matter.

I am not claiming that cops can justify anything by claiming they were following orders because I don't believe that is a true statement.

Saying that I am making either of those claims, at this point, is either the result of some serious issues with comprehension, a truly horrible oversimplification of my comments, or a deliberate attempt to vilify me.

 

[44 AMP]

Correct me if I'm wrong, but when we are talking about govt power during "emergencies" we are speaking about what the govt can lawfully do, seize, curtail, etc., short of declaring Martial Law.

and that if Martial Law is declared then civil rights, and protections are suspended, along with civil processes, and military rule is in effect.

None of the situations we have talked about (including Katrina) were cases where martial law was declared, as far as I know. Is that right??

 

[JohnKSa]

I'll answer that, but then I'm done with the topic of emergency powers. It's not like I have some special insight into the law or access to resources that others can't utilize. People who are actually interested can do the research on their own and then accuse themselves of defending Nazis if they don't like what they learn instead of taking me to task for telling them what I find out.

If a state of emergency is declared (NOT martial law) it can be used to authorize a number of different measures that wouldn't normally be considered reasonable. (I'm going to talk about TX law because I live in TX and have some knowledge of TX law and access it frequently so I know where it is and how to search it. I'm NOT saying that it's representative of all state's laws or that it is similar to LA law now or at the time of Katrina.) In TX, those special powers can include commandeering vehicles, appropriating buildings, restricting/controlling travel and movement in terms of both transportation and personal movement, control of the sale of alcoholic beverages, curfews, special control of explosives or flammable materials, etc., etc.

Prior to 2007, when the law was changed as the result of Katrina, TX law also allowed for the control of the sale, transportation and use of firearms and ammunition during states of emergency.

That does NOT mean I'm in favor of those kinds of powers, and again, I'm not saying that I know that LA law was similar at the time. I'm not saying that the order was lawful--in fact I've said that it seems that it was not based on the restraining order issued by a judge. All I said earlier in the thread was that, at the time of Katrina, IMO, based on the general sort of things that were authorized during states of emergency in at least some places it would not have been unreasonable for LEOs (who are not legal experts) to assume that an order to confiscate firearms was lawful.

 

[5whiskey]

It was then that things went off the rails . . . .

All I wanted to do was expose the falsehood in believing private citizens have any say in interpreting constitutional law. And my interest in doing so was that an argument was being presented here that suggested citizens could essentially decide to not obey laws if they (apparently as a collective?) believed said laws were unconstitutional.

Obviously there are some cases where citizens may have a moral obligation to resist laws. Suppose that Law Enforcement started apprehending Muslims for nothing other than being Muslim after 9/11. I believe it would be moral to resist that. But I still could be arrested until the courts settled out the constitutional aspects. And my resisting charge for hiding or protecting a Muslim may could still be prosecuted after the courts restrained government from rounding uo Muslims. Most likely it would be dropped, but there are no guarantees.

On the other end of the spectrum, you could resist a cop when he tries to search your car without a warrant (but based on probable cause) in the belief that it is unconstitutional... but that belief would be mistaken. US v Carroll decided that issue a century ago. Such are the potential dangers in advocating that private citizens forcibly resists the governments actions in the heat of the moment. Sure, extreme examples may justify it. Just do so with full recognition that your consequence may be dire if you're on the wrong side of that ruling later.

 

[dogtown tom]

PhotonGuy

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.

I don't think you've actually read the Constitution. If you had you wouldn't be posting utter nonsense.

"The final word on US law" is not now, nor has it ever been "US Citizens".

I'm surprised that this thread is still alive.

 

[stagpanther]

Hmmmm...interesting thread, one I know to stay out of.

 

[Aguila Blanca]

Some of the posts in this discussion have tip-toed around it but I don't think anyone has actually highlighted the fact that civilian law is different from military law under the UCMJ (Uniform Code of Military Justice). Under the UCMJ, there IS a duty to disobey an unlawful order. Basically, this is to prevent things such as executions of prisoners of war, and the perpetrators then defending themselves on the grounds that "I was just following orders."

It wasn't explained to us very well when I took Army Basic Training in 1966 but, in fact, our servicemen and servicewomen have not only a right but also a duty to disobey an unlawful order. NOTE: Not "immoral" order -- "unlawful" order.

https://www.findlaw.com/legalblogs/law-and-life/what-is-a-military-duty-to-disobey/

The problem is knowing if/when an order is unlawful, because there are penalties under the UCMJ for disobeying lawful orders. And the presumption under the UCMJ is that all orders are lawful orders (unless you know they are not). It's quite a can of worms.

https://ucmjdefense.com/resources/military-offenses/the-lawfulness-of-orders.html

The point of this is that we can't confuse military law with civilian law. Under military law, there is a duty to refuse to obey an unlawful order. Under civilian law, there is no duty or even right to refuse to obey a law that one considers illegal or immoral. Laws are "presumed" to be constitutional until such time as the Supreme Court says they are not.

https://exclusive.multibriefs.com/content/the-risk-of-obeying-an-unlawful-order/civil-government

 

[Wag]

We have, essentially two extreme viewpoints, one being any infringement (meaning any restriction or regulation at all) is a violation of our enumerated right, and the other is, essentially that as long as we are permitted to own some kind of firearm (one they approve of) then our right is not being infringed.

If we were all restricted to single shot muzzle loading arms, they would feel our right is preserved. This viewpoint, I think, is in error.

Do remember that it was the "infringers" and their primarily irrational fears that resulted in the actual historical arms used at Lexington and Concord, displayed (UNLOADED) on a wall in a museum where children visit required trigger locks be put on them for "safety". Considering that that had been on that wall for over a couple centuries, I think that a bit beyond reasonable.

And that's our basic problem. What they consider reasonable and what we consider reasonable are quite different. I think they are wrong. They think we are wrong.

I forget who said it, but there is a saying about how "the law may upset reason, but reason must never be allowed to upset the law:.

Personally, I disagree.
The problem is when the wrong "reason" either creates or upsets the law, and the people doing it believe it is the "right" reason.

Very well said, Sir.

Along those same lines, there is a lot of preaching about "common sense" gun (and other) laws. Most of the time, the term is used to brow beat people who disagree and tell them that they don't have common sense and that they are stupid because they disagree. And then, of course, they stop listening to any further discussion about it.

"Common sense," of course, is not common but in any case, it's often just opinion.

--Wag--

 

[mehavey]

Even in cases where the LE actions (excluding extreme/blatant disregard of the law)
are later ruled illegal or unconstitutional, or the arrestee does actually turn out to be
innocent, it is likely that resisting arrest was still against the law and the arrestee
can be prosecuted for taking that option.

While I still have issue with an illegal arrest still be prosecutable, we've kinda beat that to death and I'll a jury decide.
(....unless the Judge says citing an illegal arrest is not a defense and forbids it during trial, then we have a whole nother issue.)

~~~~~~~~~~~~~~~~~

Interesting tidbit today while we're on the subject of governments ignoring the Law:

Last Week:
Fourth Circuit Court of Appeals Strikes Maryland’s Handgun Qualification License Requirement
Maryland Shall Issue v. Moore.
> ...a three-judge panel of the United States Court of Appeals ruled > that Maryland’s Handgun Qualification License (“HQL”) requirement
> is unconstitutional under the Second Amendment.
https://www.cnn.com/2023/11/22/us/maryland-gun-law-struck-down/index.html

This Week:
Police ...will continue enforcing ‘draconian’ handgun law ruled unconstitutional by court
> Maryland State Police will continue enforcing the state's handgun law for now,
> despite a federal appeals court ruling that the licensing requirement is unconstitutional.
>
> "At this time, the HQL law remains in effect and there are no immediate
> changes in the process to purchase a firearm in Maryland," the department
> wrote in an agency-wide advisory after last week's ruling.
https://www.foxnews.com/politics/po...nian-handgun-law-ruled-unconstitutional-court


And we wonder why there is increasing loss of respect/consent for what used to be well-thought of rule of Law as central theme of "the American Way..."

 

[JohnKSa]

While I still have issue with an illegal arrest still be prosecutable...

The problem is that if you want police to be effective, (and any organized society needs effective LE) then their powers can't be nullified simply because someone disagrees with their actions. From a purely practical standpoint, except in very limited cases, it is absolutely necessary for citizens to cooperate with police, either voluntarily or otherwise.

Imagine the chaos that would result if it were possible for anyone who is the focus of LE action to simply say: "I don't believe this is a valid arrest." and the utterance of that sentence would force the LEOs to immediately abandon the action and move on. For LEOs to have any utility at all to society, they must have the power to carry out their actions even when the targeted citizens don't want them to and that means that there must be penalties for those who resist LE actions.

You can't create a situation where you tell citizens--yeah, if you think you're right, if your legal knowledge tells you the arrest isn't justified or if you think their actions might not be legal, go ahead and fight the police--take up arms against them and there will be no penalties if you were right. It would be mayhem. You can't pit citizens against cops as if the streets are a court where each side tries to bolster their legal opinions with violence.

That is why, except in very limited cases, it is illegal to resist LE actions. If there's a legal problem with the LE actions taken, that should be hashed out later in the courts--NOT by resisting in the moment. We have a legal system and LE so that things can be done in an orderly fashion, without violence if at all possible. Things are settled in court based on existing laws.

The whole idea of a court system and law enforcement is that nearly all the time, things can be settled without violence. You don't want to abandon that ideal except in extreme cases--in very limited circumstances.

 

[44 AMP]

Imagine the chaos that would result if it were possible for anyone who is the focus of LE action to simply say: "I don't believe this is a valid arrest." and the utterance of that sentence would force the LEOs to immediately abandon the action and move on.

IF this were actually the situation, I can't imagine any criminal failing to take advantage of it, let alone "wrongly" accused "innocent" people.

You don't fight the cops on the street or in your home. You accept the arrest and fight them in court. That's what the system expects and is set up to do.

do things differently and you are wrong. You might be dead wrong.

 

[seanc]

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.

Those who chose to keep their firearms when the "authorities" came by to confiscate them, were smart enough to not die on that hill and are smart enough not to brag about it afterwards. Regardless of any state laws that were subsequently passed, local tyrants are going to tyrant, that's what they'll do. You don't need to kill a cop to fight the power, you do need to shut the heck up. And a little compliance doesn't mean you completely complied.

 

[mehavey]

Imagine the chaos that would result if it were possible for anyone who is the
focus of LE action to simply say: "I don't believe this is a valid arrest."

And there's the crux:
> You may not resist the executive, even when the Executive's agents are SO far out
> of line as to put you or yours in mortal danger, and/or are SO far outside the Law in
> their actions as to be prosecutable themselves.

Even "as a man again under authority" as I was (still am to some degree), I also "...view with alarm..." as the saying goes,
that the "I've got my orders" crowd cannot see no less a danger in that, as in the chaos of individual anarchy.

Bottom line, I ascribe to neither. But I offer that both are dangerous when taken to the boundary limits.

 

[JohnKSa]

You may not resist the executive, even when the Executive's agents are SO far out of line as to put you or yours in mortal danger, and/or are SO far outside the Law in their actions as to be prosecutable themselves.

It is possible to claim self-defense against LE in at least some areas (TX being one of them) in certain circumstances, so I think that's an overstatement. If they put you in mortal danger without justification, you can claim self-defense if you survive. Unless the circumstances were clear cut, it would probably go to trial and I wouldn't like to be put in the position of having to claim self-defense against LE, but that is a viable option.

But yes, it is possible that an LEO could do something and get prosecuted for it AND the citizen involved could also be charged with resisting. Wrongdoing on the part of LE certainly isn't, in the general case, carte blanche for any citizens involved in the incident to do as they please.

...the "I've got my orders" crowd cannot see no less a danger...

Everybody can see the danger in that, if it is allowed to be used indiscriminately to justify actions. Any "out" that lets people justify anything they do by shifting responsibility or saying some magic words is a serious problem. That doesn't mean it is NEVER justification, because in some cases it might be reasonable for someone to believe that an order is legitimate even if it turns out not to be later. But yes, of course there is danger there and potential for misuse.