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  • Tearing up the Constitution in New Orleans

    Posted by James R. Rummel on September 9th, 2005 (All posts by )

    The big news amongst civil libertarians (and Libertarians in general) is the order issued by the Mayor to forcibly evacuate New Orleans.

    The reasons why the authorities want people to leave are commendable. The sewage system has broken down, and the water choking the streets is little cleaner than what you’d find in a clogged honkytonk toilet on Saturday morning. There is a very real possibility of various plagues breaking out, cholera being the chief suspect. This could stretch relief efforts to the breaking point, as medical supplies and facilities simply aren’t adequate to handle such a disaster.

    The methods being used are somewhat less noble. Police are going from door to door, heavily armed and always in a sizable group, ordering residents out of their homes. I can’t find any reliable reports that force has been used yet, but that will probably change by tomorrow. (The live webcams available through this blog show the police staging area for the effort.)

    So far these heavy-handed tactics have worked, as individuals are rather loathe to tell the 5 or 6 guys crowding into their living room while toting assault rifles to get bent. But eventually there’s going to be someone who’s going to do exactly that, and then there will be what is referred to as “an incident”.

    The Mayor may have spoken, but not everyone is very comfortable with it. The military say they won’t take part in forcibly removing anyone from New Orleans, the LA National Guard said that they don’t take orders from the Mayor, and the police are very leery about the whole thing.

    It’s possible that, if everyone isn’t very careful, a homeowner could take a potshot at the police trying to get him out of his house. Then what?

    In an effort to reduce the chances of this looming news story, the Mayor has also decreed that all privately owned firearms are to be confiscated. (The place to go for the skinny is Publicola, who has the lowdown and the links.)

    My take on all this is that the Mayor is probably right to order the police to get as many people out of the city as possible, but he’s wrong to order a forcible evacuation. He’s also crashingly, loudly, agonizingly wrong to order the police to confiscate legally owned private property.

    Eugene has an interesting post about the legalities of the order, and he points out that private security guards are allowed to openly carry military weapons without fear of police. This comment by Robert Lyman outlines a dilemma for those who are on the Left side of the political fence.

    It looks like the Mayor is creating a huge problem for both himself and his administration, something that only makes sense if he is either a drooling incompetent or that he has come to the conclusion that his political career is doomed anyway. As far as this goes, though, I’m more interested in the legal and political fallout to come in the years ahead.

    And I hope that no one pulls a trigger, although the Mayor’s posturing has certainly increased the chances of something like that happening.

     

    14 Responses to “Tearing up the Constitution in New Orleans”

    1. Ginny Says:

      Thanks, James.

      I am uneasy with “mandatory evacuation” – of course, I’m not too crazy about these people contracting terrible diseases, dying terrible deaths in bospitals where they have exposed others to those terrible diseases. And this broad discomfort makes the Kelo decision seem even stranger.

      New Orleans may be the perfect, tragic storm: a city with a high murder rate, a city below sea level, a beloved tourist spot, a mouth to river traffic, corruption, a levee system that might not ever be challenged by a storm of Katrina’s magnitude so it was easy to hope for the best, etc. etc. You are talking about is the relation between the city & its citizens. But it may also lead to a change in the relation between the state & federal government in emergencies. We can hardly have a precedent that says, when a president decides a governor isn’t doing the right thing, then, well, the armed forces can take over the state in an emergency. It might be hard to define those parameters.

      More things change, the more they are the same: I was surprised to find (I guess) that we can thank for that popular phrase – “Hard cases make bad law” – John Campbell Argyll, Scottish, 1678-1743.

    2. Dan Says:

      Those people have the absolute right to stay if they want and to arm themselves. At times I think the Founders, wherever they are, laugh at us – or do they cry for us? James is right – there will be an “incident” – I know there would be if they tried to take my home or private property. And a lot of my private property is of a very large caliber.

    3. Ken Says:

      Damnit, are we ever going to leave people to their own devices? Are we ever going to let determined Darwin Award contenders get the prize they so ardently pursue? It’s not like idiots are an endangered species.

      I can see why we pulled them out last week… while they ignored a mandatory evacuation, some of them were physically incapable of evacuating, and there wasn’t enough transport to get them all out (what they were doing there without a means of escape is another interesting question that isn’t attracting much interest…). But now every last person is being offered transport out of the city, and people turning it down should be left alone.

      The choices are to either (a) point a gun at them, order them to move, and shoot them if they resist, or (b) leave them. We’re really going to go with option (a) because hanging around might be harmful to their health?

    4. James R. Rummel Says:

      The choices are to either (a) point a gun at them, order them to move, and shoot them if they resist, or (b) leave them. We’re really going to go with option (a) because hanging around might be harmful to their health?

      I think it more credible that the authorities are going with (a) because the Mayor can’t afford the political fallout from even more people dying because he didn’t get them out in time.

      But that’s just my cynical and hard-headed nature coming to the fore again.

      James

    5. Ken Says:

      Yeah, and having them shot dead because they resisted an order to leave will take the heat right off of him.

      Of course all this assumes that the people applying said heat aren’t bright enough to figure out that people refusing to leave now probably wouldn’t have got on those buses either if Mayor Nagin had had the presence of mind to offer people a ride out of town on those buses. Which, sad to say, isn’t that bad of an assumption…

    6. James R. Rummel Says:

      Yeah, and having them shot dead because they resisted an order to leave will take the heat right off of him.

      I didn’t say it was a good plan….

      James

    7. Patrick Says:

      In light of the destruction in New Orleans and the ensuing compromise to health and safety of its citizens, evacuation of that locale must go forward.
      Allowing residents to remain in their domicile leaves them in a situation where the very nature of their well-being can be problematic. Unless, of course, they are allowed to sign a waiver? Such documentation would provide the city administration a thread of inculpability. Under such dire circumstance equivocation in implementation of authority is unsound and thereby sets bad precedent. The dictates of individual “constitutional rights” must be allowed to fall, for the “time being,” having been “set aside,” temporarily, until a normal environment is restored and ultimately sanctioned for the benefit of public good.

    8. Dove Says:

      Damnit, are we ever going to leave people to their own devices? Are we ever going to let determined Darwin Award contenders get the prize they so ardently pursue? It’s not like idiots are an endangered species.

      The rational side of me says that’s probably hyperbole and you don’t mean it, but the intuitive side of me has to wonder if there aren’t people that really mean this.

      I’m all for a society that lets people mess themselves up so long as they take responsibility for the consequences. But the fact of the matter is that we aren’t that sort of society–however badly people mess themselves up, we aren’t going to abandon them. Even if everyone who wanted to stay in the city signed a waiver forgoing any help that might come in (and fat chance of that!), when things got worse, and ugly things started happening, and lots of them thought better of it… a lot of people would help them. That’s the sort of society we are.

      We aren’t the sort of people that would be willing to abandon others to plague just because they were too pigheaded to leave their homes. Maybe other societies would–maybe some of us would rather live in one that did–but we aren’t that sort of people. For better or for worse, we help even stupid people.

      So abandoning people to the consequences of their own decisions isn’t really an option. Bailing them out afterwards really isn’t an option either–it sounds like things could get quite bad. By my reading, that really only leaves forcing them to avoid the problem in the first place. While admitting that the anti-liberty tones seem ominous, this seems moral and sensible to me, and quite justified by the circumstances.

    9. Don Says:

      Enlighten me. Back in my old days, I remember that while government had limited authority under most circumstances, public health usually trumped the usual constraints. If one was a plague carrier or TB carrier, the interests of public health outweighed the right of the individual to move about in public to spread the disease. We’ve had mandatory evacutions for ‘contaminated’ ground at Love Canal and Times Beach, also based upon the public health issue. So has the law changed?

    10. Steve Says:

      James, I’m surprised an “incident” hasn’t already occurred. There has to be a better way to evacuate the willing while respecting an individual’s right to choose for himself.

      In a free man’s contract with government there should be a “termination clause.” Sometimes logic will drive man to throw-off the demands and benefits of government. So long as he acknowledges that he forfeits the right to make demands on the same government later, no one should have a problem with that.

      Rescuers should carry tablets of “waiver forms” so the folks who resist evacuation can officially waive government assistance – and with it their whining rights. A photo and a thumbprint should do.

      This contract-variance registration may help in other ways. It represents a loose census of the “stay-behinds”, and if looting or other criminality breaks out in the “evacuated” areas, it could help the authorities prosecute once things settle down.

      Rescuers could lower their guns and the tension, and pull out the ink pad instead.
      -Steve

    11. Brett Bellmore Says:

      “James, I’m surprised an “incident” hasn’t already occurred. “

      I’d be suprised if an “incident” hasn’t already occured, and been covered up. It would be very easy to do under the circumstances.

    12. mark safranski Says:

      *If* martial law is in effect *and* the civilian courts are unable to operate then it is permissable for *military authorities* to take civilian U.S. citizens in to custody without regard to Habeas Corpus- but *only* so long as civilian courts are not functioning. Once they re-open this special exception ends( Ex Parte Milligan) and normal Constitutional procedures apply.

      Note that the Mayor of New Orleans is a) not in the chain of command for the U.S. military and b) demonstrably is some kind of idiot, based on his record during recent events.

    13. JorgXMckie Says:

      Don, 30 years ago I think most of us believed that the Public Health police power was just about the most power available — forced quarantine, etc. What happened was AIDS. Public health officials found a health problem quickly became a political problem of individual rights. They were not allowed to close the bath houses, nor to track possible contacts of those infected, nor quarantine the infected, nor force treatment, nor do most of the other things we had theretofore done in the case of an outbreak of an infectious disease that killed. Most of these things were seen as violations of the rights of the individual, and perhaps they were, but it would appear to be impossible to reconcile the individual rights and the rights of the community.

      I’m in favor of individual rights to the max, but that presupposes individual responsibility. Thus, if you behave in a way that damages you, you shouldn’t expect to be bailed out by the rest of society in the form of tax resources.

    14. James R. Rummel Says:

      Enlighten me. Back in my old days, I remember that while government had limited authority under most circumstances, public health usually trumped the usual constraints. If one was a plague carrier or TB carrier, the interests of public health outweighed the right of the individual to move about in public to spread the disease. We’ve had mandatory evacutions for ‘contaminated’ ground at Love Canal and Times Beach, also based upon the public health issue.

      Sure, and the arguement could also be made that people are forced to leave condemned houses where continued occupancy was a danger to their health. It could be said that the entire area, considering the sewage and chemical leaks in the water, could be condemned.

      So has the law changed?

      Not so far as I’m aware, but you’ve just made my point for me. Condemning houses, moving people out of Love Canal, etc., all that is done after the courts have their chance to make a ruling. This, very obviously, hasn’t happened.

      I’m absolutely positive that these steps can be skipped if there is a declaration of martial law. Can it be done with only the decleration of a state of emergency? I don’t know, but I’m betting not considering how the police, military and National Guard are acting.

      But the main focus of the post was about the confiscation of the guns. Confiscating legally held private property from law abiding citizens is wrong. The excuse that this is to be done in order to avoid crimes against the police isn’t something I can agree with. Innocent until guilty, dontchya know.

      The reason why this is an issue that should be looked at very closely is because gun possession is guaranteed in both the Federal and state Constitutions. Confiscation sets a very bad precedent, in effect saying that it’s okay to ignore the highest law of the land in extreme circumstances.

      James