GUN POLITICS--As President Donald Trump weighed the prospect of declaring a national emergency to erect a wall on the U.S.-Mexico border without dealing with Congress, one of the survivors of the Marjory Stoneman Douglas High School shooting in Parkland, Florida, offered an alternative: How about Trump declare a national emergency over gun violence instead?
"If we really want to start talking about the national emergency like the president likes to talk about, 40,000 Americans dying annually from gun violence is a pretty damn good one to start off with," David Hogg, now an outspoken advocate for gun control, told CNN on January 8th.
Hogg isn't totally wrong: If Trump has proffered the fictional image of a violent, murderous caravan of immigrants as evidence enough to necessitate a declaration of emergency, then the thousands of annual firearm deaths and steady drumbeat of mass casualty incidents in the United States should almost certainly meet that standard.
Trump is unlikely to declare a gun violence emergency, but with more Americans supporting stricter gun laws today than at any other time in the last 20 years, it's worth asking the question: What could a president actually do, without congressional consideration, during a state of emergency declared over gun violence?
The U.S. is awash in firearms: There are more guns than people in the country and, according to a Harvard-Northeastern study published in 2016, half the nation's firearms are concentrated in the hands of some 3 percent of American adults. These adults are mostly white, rural, male, and overwhelmingly conservative, according to demographic information analyzed by the Pew Research Center.
Could a president take federal action to seize their firearms?
Perhaps, under the Insurrection Act of 1907. In a masterful Atlantic magazine assessment of America's emergency powers, Elizabeth Goitein of the Brennan Center for Justice notes that, despite the restrictions on deploying U.S. troops on American soil, the Insurrection Act of 1807 gives the president the explicit constitutional authority to send U.S. troops into American cities "either because he determines that rebellious activity has made it 'impracticable' to enforce federal law through regular means, or because he deems it necessary to suppress 'insurrection, domestic violence, unlawful combination, or conspiracy' … that hinders the rights of a class of people or 'impedes the course of justice.'"
Goitein identifies various instances in which presidents have used the act: Dwight Eisenhower sent troops into Little Rock, Arkansas, in 1957, to enforce school integration, George H.W. Bush ordered troops into Los Angeles after 1992 Rodney King case verdict.
Does gun violence in the United States pose the type of "domestic violence … [that] impedes the course of justice" that permits action under the Insurrection Act?
Trump seems to think so, at times. As Goitein notes, following a spike in homicides in Chicago in 2017, Trump tweeted that the city must "fix the horrible 'carnage'" or he would "send in the Feds!"
The legal infrastructure to levy an emergency declaration, Goitein writes, exists thanks to the Presidential Emergency Action Documents developed by the Eisenhower administration, designed to address such extra-legal actions as declarations of martial law and the suspension of habeas corpus. These documents could potentially extend to encompass outright firearms confiscations given the scope of a national crisis, but recent history calls into question the ultimate viability of firearm seizure. While no president has ever declared a national emergency over gun violence, there is precedent for restricting firearm usage during times of emergency declared for other reasons.
In the evacuation of New Orleans during Hurricane Katrina, New Orleans police officers demanded evacuating residents "give up any guns they had before they boarded buses and trucks because police desperately needed the firepower," the Associated Press reported. A week after the hurricane, and following reports of violence throughout the city, New Orleans Police Department superintendent Edwin P. Compass III demanded the blanket confiscation of all firearms, legal or otherwise, in early September when he declared, "Only law enforcement are allowed to have weapons." A few weeks later, a federal court issued a restraining order to prevent the seizures.
It's unclear exactly how many weapons NOPD ended up confiscating. While the police revealed as part of a court-brokered deal with the National Rifle Association that it only had taken 552 guns during the seizures, The Trace reports that one legal analyst estimated that several thousand weapons were taken by law enforcement.
In the aftermath of Katrina, then-President George W. Bush amended the U.S. Code to its current form, guaranteeing gun ownership even in times of national emergency with the exception of during evacuations. Title 42 of the U.S. Code section 5207, entered into the ledger in October of 2006, prohibits federal authorities from temporarily or permanently seizing firearms that aren't already prohibited under state and federal law, except "as a condition for entry into any mode of transportation used for rescue or evacuation during a major disaster or emergency."
The Trace notes that the Katrina-era seizures helped fuel paranoia among more intense Second Amendment advocates that a state of emergency might simply be a pretext for agents of the "Deep State" to disarm Americans. For example, when Pennsylvania Governor Tom Wolf declared a 90-day state of emergency to address the state's rising opioid death rate last month, his decision drew criticism from state Republicans because Pennsylvania state law prohibits carrying a firearm in public during an emergency, of any kind, without a license.
Some states have even embraced measures explicitly protecting gun rights during declared emergencies. A Florida bill signed into law by then-Governor Rick Scott in May of 2015 allowed state gun owners to temporarily carry concealed handguns without a permit during the mandatory evacuations anticipated during the 2015 hurricane season.
The president—and, on a state by state basis, governors—are relatively safe in their constitutional capacity to suspend the rule of law in order to save it, and to exercise that ultimate form of sovereignty that they as chief executives are charged with. But as the experience of gun seizures during Katrina shows, any effort to unilaterally disarm Americans won't go easily—and in a country awash with guns, that resistance may unleash more gun violence than any mass shooting before it.
For now, a year after Parkland, it's a sad reality of gun control and the modern national emergency: this "American carnage" is distinctly American—and its not disappearing anytime soon.
(Jared Keller is a contributing editor at Pacific Standard where this piece originated.)