Free Markets, Free People

5th Circuit rules guns aren’t “property-like”

The war against private property proceeds apace with the 5th US Circuit Court of Appeals deciding that while you have a right to keep and bear arms, that right doesn’t extent to you keeping or bearing a particular arm.  Check out how the AP professionally and reports this in an unbiased manner:

A federal judge correctly dismissed a lawsuit against the city of New Orleans by a man who claimed that local law-enforcement authorities violated his constitutional right to bear arms, a divided panel from the 5th U.S. Circuit Court of Appeals ruled Wednesday. With the backing of the American Civil Liberties Union of Louisiana, Errol Houston Jr. sued after the Orleans Parish district attorney’s office refused to return a registered gun that police seized when he was arrested in 2008 on drug and firearms charges that were later dropped.

Emphasis mine.  “Correctly”?  No opinion injected there, huh?

At least one judge didn’t share that opinion on the panel.  But back to the majority point:

U.S. District Judge Jay Zainey dismissed the claims in December 2010, saying Houston failed to allege sufficient facts to show how authorities violated his right to bear arms by retaining his pistol.

In its majority opinion, a three-judge panel from the 5th Circuit said some regulation of firearms falls outside the reach of the Second Amendment, just as obscenity and defamation aren’t protected as free speech by the First Amendment.

"The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense," Judge Rhesa Hawkins Barksdale wrote.

Emphasis mine. Well how the hell do you do that if you don’t enjoy a right to property, i.e. the right to the freakin’ gun necessary to exercise the right?

Imagine the police setting up a roadblock and confiscating all weapons while telling you that you’re still entitled to your 2nd amendment rights, just not the right to this particular gun for whatever reason they choose to invoke?

Seems to me the 5th Circuit would endorse that.

The dissenting judge wrote:

In her dissenting opinion, however, Judge Jennifer Walker Elrod said she disagrees with the majority’s conclusion that the Second Amendment doesn’t protect an individual’s right to a specific firearm unless the government has prevented that person from acquiring others.

Elrod argued the majority impermissibly treated the Second Amendment as a "second-class right" by carving out an exception.

"It is particularly unfortunate for our circuit to endorse the atextual, ahistorical rule that the Second Amendment does not protect particular firearms," she wrote.

More importantly, this is government deciding it can violate the property rights of a gun owner whenever it wishes too with no penalty for doing so. This isn’t a 2nd amendment case.  It’s a property rights case.

Remember my “hypothetical” about the traffic stop above.  It’s not too far off the mark:

Houston sued the city, District Attorney Leon Cannizzaro and former Police Superintendent Warren Riley in July 2009, nearly a year after Cannizzaro’s predecessor dropped the charges against him stemming from a traffic stop.

Houston claimed Cannizzaro’s office had a policy of retaining firearms following arrests regardless of whether charges are filed. During an interview in 2009, Cannizzaro said his office decides on a "case by case basis" whether to return confiscated guns.

"There is no policy that we will not return weapons," he said.

Screw your policy or lack there of.  The point is, Mr, Cannizzaro, you have no right to keep it.  Keeping it is theft and a violation of the owner’s property rights, plain and simple.

For once, I’m with the ACLU  … appeal this.  This is a gross miscarriage of justice.


Twitter: @McQandO

10 Responses to 5th Circuit rules guns aren’t “property-like”

  • The 5th is one of our more sane courts of appeals, too. Without knowing the background here, my guess is this is a very clear case of gnat-straining over points in the law. I agree; it should be reconsidered en banc. If it is, I think the larger panel will render a better decision.

    • @Ragspierre The 5th Circuit is Louisiana, Mississippi and Texas, which is the center of the world for “civil seizures.” Perhaps the circuit decided that this really was a property rights case adn that they didn’t want to disturb anything that just might get near the “civil seizures” that pay for much of law enforcement there.

  • hell, the confiscate cash too, and I’ve heard cases where THAT hasn’t come back, even though there was no crime involved (no charges, or charges dropped). There were other property confiscation cases that are as bad. The fact that they decided to tinker with the 2nd Amendment here just makes it worse.
    Yeah, you got a right to bear arms, but not THAT arm, not today, so, hand the pistol over bub.

  • Milton Friedman explored this. He was speaking about property rights, and asked what good the 1st Amendment would be if printing presses were outlawed. It was a small epiphany for me, those decades ago. While I support LEOs in doing a job nobody could pay me to do, I know a lot of them really do not like us having guns, and many of them consider us criminals who just have not broken bad. New Orleans is also one of the most corrupt cities I’ve lived in.

  • I have much the same sorts of problems with “civil seizures”

  • And then they all wonder why respect for police in the nation drops daily.

  • The “correctly” in the story merely notes the Court of Appeals is ruling that the opinion of the district court was affirmed. I don’t think it’s opinion by the AP.