During the disaster wrought by Hurricane Harvey in Texas and the impending landfall in Florida of Hurricane Irma, many of our members have been asking if the government can confiscate their firearms if the Governor or Federal Government declare a state of emergency.
Following the devastation caused by Hurricane Katrina in 2005, the New Orleans police went door to door seeking people who rode out the storm in their homes to force them to comply with the forced evacuation ordered by the government. As part of the effort, the officers were also confiscating firearms.
This created an outrage among the law-abiding gun owners of the country and resulted in the passage of state and federal laws to prevent such confiscations from occurring in the future.
In 2006, Congress passed the DISASTER RECOVERY PERSONAL PROTECTION ACT OF 2006. The law was intended to prevent the government from seizing legally owned firearms during the time of a disaster. It was incorporated as an amendment to the Department of Homeland Security Appropriations Act 2007 and signed into law on October 4, 2006.
Can The Federal Government Confiscate My Firearms?
This law amended 42 U.S.C 5207 Disaster Relief and Emergency Assistance Act to add the following provision:
SEC. 706. FIREARMS POLICIES.
(a) PROHIBITION ON CONFISCATION OF FIREARMS- No officer or employee of the United States (including any member of the uniformed services), or person operating pursuant to or under color of Federal law, or receiving Federal funds, or under control of any Federal official, or providing services to such an officer, employee, or other person, while acting in support of relief from a major disaster or emergency, may--
(1) temporarily or permanently seize, or authorize seizure of, any firearm the possession of which is not prohibited under Federal, State, or local law, other than for forfeiture in compliance with Federal law or as evidence in a criminal investigation;
(2) require registration of any firearm for which registration is not required by Federal, State, or local law;
(3) prohibit possession of any firearm, or promulgate any rule, regulation, or order prohibiting possession of any firearm, in any place or by any person where such possession is not otherwise prohibited by Federal, State, or local law; or
(4) prohibit the carrying of firearms by any person otherwise authorized to carry firearms under Federal, State, or local law, solely because such person is operating under the direction, control, or supervision of a Federal agency in support of relief from the major disaster or emergency.
(b) LIMITATION- Nothing in this section shall be construed to prohibit any person in subsection (a) from requiring the temporary surrender of a firearm as a condition for entry into any mode of transportation used for rescue or evacuation during a major disaster or emergency, provided that such temporarily surrendered firearm is returned at the completion of such rescue or evacuation.
Following the lead of the federal government, most state legislatures adopted their own version of this law.
Texas Law on Firearm Confiscation
In Texas, Government Code Chapter 418 (EMERGENCY MANAGEMENT) permits the Governor to declare a State of Disaster which suspends certain state laws and regulations to allow local authorities to conduct rescue and recovery operations.
However, it does not allow for the seizure of any legally owned firearms, with limited exception.
Sec. 418.003. LIMITATIONS. This chapter does not:
(5) except as provided by Section 418.184, authorize the seizure or confiscation of any firearm or ammunition from an individual who is lawfully carrying or possessing the firearm or ammunition;
Sec. 418.184. FIREARMS.
(a) A peace officer who is acting in the lawful execution of the officer's official duties during a state of disaster may disarm an individual if the officer reasonably believes it is immediately necessary for the protection of the officer or another individual.
(b) The peace officer shall return a firearm and any ammunition to an individual disarmed under Subsection (a) before ceasing to detain the individual unless the officer:
(1) arrests the individual for engaging in criminal activity; or
(2) seizes the firearm as evidence in a criminal investigation.
To read Governor Abbott’s actual declaration, click here.
Florida Law on Firearm Confiscation
Article IV, Section 1(a) of the Florida Constitution permits the Governor to issue an Executive Order to declare a State of Emergency in times of a natural disaster, allowing him to enact provisions of the State’s Emergency Management Plan.
For Hurricane Irma, the Executive Order provides specific provisions regarding the activities permissible to state and local officials during the emergency, as provided for in Florida Statutes beginning with Chapter 252.31 “State Emergency Management Act.”
In part, the Executive Order states:
Section 2. I designate the Director of the Division of Emergency Management as the State Coordinating Officer for the duration of this emergency and direct him to execute the State’s Comprehensive Emergency Management Plan and other response, recover, and mitigation plans necessary to cope with the emergency. Pursuant to section 252.36(1)(a), Florida Statutes, I delegate to the State Coordinating Officer the authority to exercise those powers delineated in sections 252.36(5)-(10), Florida Statutes, which he shall exercise as needed to meet this emergency, subject to the limitations of section 252.33, Florida Statutes.
But those powers have certain limitations with regards to firearms. In particular,
Chapter 252.36(5)(h) states the Governor may:
(h) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles. However, nothing contained in ss. 252.31-252.90 shall be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in the commission of a criminal act.
So, there you have it. During our times of disaster, we can all focus on recovery and not have to worry about the authorities coming along and confiscating our firearms. The Second Amendment survives disasters.
[Addendum: Due to inquiries from Members, this story was updated on Sept. 7.]
U.S. Virgin Islands Law on Firearm Confiscation
On Tuesday, the island's Governor ordered the National Guard to confiscate weapons and ammo that may be required for them to carry out their mission. What that specifically means is unclear. Also, the U.S. Virgin Islands IS NOT governed by the U.S. Constitution, but instead by the "Revised Organic Act of the Virgin Islands," a federal law approved by Congress in 1954. The island does not have its own constitution yet.
The NRA has threatened to file a lawsuit, and here is their take:
In 1997, the chairman of the House Committee on Resources asked the General Accounting Office (GAO) to clarify just how the U.S. Constitutional applies to various “U.S. Insular Areas,” including the U.S. Virgin Islands. Its findings were inconclusive and unsettling, especially to those now living under Governor Mapp’s orders. Said the report:
Under the Insular Cases and subsequent decisions, rights other than fundamental rights, even though they may be stated in the Constitution, do not apply to the territories or possessions unless the Congress makes them applicable by legislation. The Congress can by law extend the coverage of the Constitution in part or in its entirety to a territory or possession, and has done so with respect to some territories. In the absence of such congressional action, however, only fundamental rights apply.
Digging further, one finds that only parts of the Fifth Amendment are considered to be “fundamental” based on court rulings, and none of the Sixth Amendment applies. And nothing is said in the 75-page report about the Second.
If the NRA does sue and their position is sustained by the courts that people living on the island are U.S. Citizens with full protection of the U.S. Constitution, the issue will be settled. If not, or no suit is filed, those living on the island will be subjected to having their weapons confiscated by the National Guard.
The information provided in this publication is intended to provide general information to individuals and is not legal advice. The information included in this publication may not be quoted or referred to in any other publication without the prior written consent of U.S. LawShield, to be given or withheld at our discretion. The information is not a substitute for, and does not replace the advice or representation of a licensed attorney. We strive to ensure the information included in this publication is accurate and current, however, no claim is made to the accuracy of the information and we are not responsible for any consequences that may result from the use of information in this publication. The use of this publication does not create an attorney-client relationship between U.S. LawShield, any independent program attorney, and any individual.
Thank you. This was very helpful. Will print out copy to keep
Does anyone else find it an interesting example of hypocrisy that that individuals in the Virgin Islands are explicitly determined to not be protected by the constitutional rights afforded by the US Constitution, but the progressive left wants to declare that any non-citizen, including those from areas that present a clear and present danger of terrorism or other violence, who wants to come to the US has those rights and cannot be denied entry?
Thanks for the article. It was very informing.
I see that Texas, Florida and the US Virgin Islands adopted their own version of this law. Have you heard anything about PA doing the same?
I think this issue is a bit more complicated. If the owner of a firearm is carrying, and presents at a shelter, she may be confronted by legal notice prohibiting her from bringing her weapon into the facility. Especially if the shelter is organized in a school or other prohibited place, or managed by American Red Cross. If the owner was rescued, she may not have been given a choice of shelter and may not have a reasonable place to secure their weapon outside the shelter. Other than being denied shelter, what options does she have?
There was reports that the police chief in Houston was running a confiscation operation during hurricane Harvey I wish someone could look into this
I’m not sure how valid this may eventually prove to be, politicians being politicians, but the U.S. Virgin Islands Governor was on FOX with Tucker Carlson after this was “announced.” He explained that this was not a confiscation order, meant to disarm citizens, but to allow the Guard to purchase, not confiscate, from firearms stores whatever they needed carry out their mission.
The Second Amendment MUST APPLY! All possessions must be subject to the Constitution as are the States.
The Houston police did seize firearms and knives at the Brown Center in violation of Texas Local Government Code Section 229.001 as well as (as to firearms) 42 U.S.C. 5207.
Authorities were apparently doing so at the Alexandria, La as all persons entering or re-entering the center had to pass through a metal detector.
As a member of US Law Shield I’m a very concerned as to this terrible news. When they did in fact confiscate ones firearm such as a pistol will they eventually return your firearm?
Seems, law agencies fail to know they are in violation of your right to have your firearm even in shelters. Seems law-abiding citizens are being stripped of their God given right in which our 2nd Amendment LAW states. I feel Texas Law Shield Attorneys need to step up and explain why this confiscation is going on.
I for one like to know. Otherwise I don’t blame people staying with their home and family do to looting. Who goes after these criminals that steal from others during disasters.
I feel this country is a mess do to the politicians.
The Governor of the Virgin Islands clarified the order he issued, pursuant to their laws, allowed only for the purchase of guns, by local police departments etc. and ammo from legal sales places if the police etc. did not have sufficient armament without processing thru the normal purchasing channels.
@John, you are completely wrong. The order he issued, pursuant to their code, did and does allow seizure by the Guard of firearms and ammunition legally possessed by any and all qualified individuals, if the National guard feels less guns in civil hands is required guard forces to make their job safer — the same justification as the New Orleans used for seizing some legally owned and possessed firearms.
That requirement is much broader than your claim it is limited to the Guard having sufficient firearms or not.
The VI code section related to emergency response and management is together with confiscation of alcoholic beverage. Do you think VI code on emergency allows seizure of alcoholic beverage is because the national Guard may run out of rum and needs to confiscate it if they “did not have sufficient rum through normal channels”?
The governor’s own fuzzy claims on it do not change the order, nor the code — and its possible use to preemptively take firearms to reduce civilian access to firearms.
Laws are only as good as the people that abide by them………..in the state of Texas a father/son in Temple were stopped by local PD while crossing county road detained both-officer stated it was for his safety that he took the owners AR-15 rifle …………….at times there seems to be a “game” to find something to write a ticket by either asking leading questions or testing the citizen……..law enforcement officers have a difficult job no doubt=anyone thinking it’s easy research Paul Harvey’s tribute to them=all of us have to be respectful of each other no matter a persons background……….the situation in Katrina was pretty bad……….local/state authorities are responsible for the safety of its citizens………..if conditions do not permit some people to evacuate whether financial,disability or other means and have to stay on their premises Im sure they understand what could happen……………it’s not right for any organization to go in to confiscate an individuals property by force which happened in New Orleans/other parts of Louisiana leaving them defenseless at the mercy of looters
Author and cultural commentator, Robert Heinlein was correct when he wrote that “An armed society is a polite society.” I am old enough to remember that back in the 1950s, when the National Guard was deployed and local policy makers said that “Looters will be shot.” They meant it.
Whenever you hear some politician say, “Don’t worry , I am not going to take away your guns.” He or she is not offering reassurance. What they are doing is trying to establish that they have the authority to do so. In light of the Second Amendment they clearly do not have this authority and never will. Yet what we allow will continue. If we continue to let the government operate outside its Constitutional limits then private firearm ownership will eventually cease to exist.
My concern with the wording is that an officer can simply claim that everything they are doing all the time is part of a criminal investigation, and that the removal of any weapons present is the interest of officer safety, and that the officer has no way in a disaster zone to verify the person owns the firearm, and no way to verify that the person is not prohibited from possessing it.
In addition, any person entering any mode of transport for rescue would be required to surrender them, and therefore anyone being forced to comply with an evacuation order could be forcibly disarmed.
In cases were persons are stripped of said firearms the person could be moved by transferring them to other vehicles. Maybe more than once, and then the persons and their weapons would end up at different destinations. Of course anyone attempting to then go track down their weapon could be stopped from retrieving it from a collection point by officers saying that they will not hand over any weapons to anyone from the public unless that person can produce proof of legal ownership which could prove near impossible in a disaster zone.
You’re disarmed, probably for weeks.
And the officers can still claim that they violated none of those laws.