Temporary Archive: Suzanne Brockmann's Message Board

Back to Archive Index

Here's an opinion on how it relates to state law.

Posted by Lisa on 9/24/2005, 11:45:07, in reply to "Stacey B.....do you think you could get your Bro. to "
opinion of Orin Kerr associate professor of law George Washington University


The statute we are discussing, La. Stat., title 14, § 329.6, is located in the Louisiana Code's section on criminal laws. Thus, refusal to obey a valid order during a state of emergency can lead to criminal charges for failure to obey the order. See, e.g., State v. Gauthier, 263 La. 678, 269 So.2d 204 (1972). Given that the power to create emergency orders is the power to create enforceable criminal laws, I think the most natural reading of the power to "prohibit" the possession of an item is that it refers to the power to make possession of the item a criminal offense. That is, it is the power to arrest people and charge them with crimes for possessing the item prohibited.

" the statute creates more than the power to "regulat[e]" the possession of fireams. It expressly creates the power to "regulat[e]" possession and the power to "control the possession" of firearms. Even if the power to regulate does not encompass the power to prohibit — a conclusion that seems plausible but not obvious, especially in the absence of any cases construing these terms — an order that individuals must give up possession of their firearms does seem to me to fall within the plain meaning of "controlling the possession" of firearms. It's not free of doubt, I think. But on balance, it seems to me that "controlling the possession" of an item in a state of emergency would include the authority for the state to take possession of the item. That is particularly likely because the statute grants the power to control possession in addition to the power to regulate possession; presumably the legislature intended control to be something beyond mere regulation."


Responses:


Temporarily archived without permission from Suzanne Brockmann's Message Board.
Contact Donna if questions or concerns.