On Tuesday, with Hurricane Irma tearing through the Leeward Islands, Gov. Kenneth E. Mapp of the U.S. Virgin Islands, issued an order mobilizing the National Guard. There’s nothing surprising about that. But included in that order was a directive to the Guard to “seize arms, ammunition, explosives, incendiary material, and any other property that may be required by the military forces for the performance of this emergency mission…”
You won’t see this in most of the major media. It isn’t enough of a story for them (nor does it fit their preferred narrative). But Gov. Mapp’s order clearly violates the Second, Fourth, and Fifth Amendments, as well as what is known as the “Vitter Amendment,” a 2006 law that specifically prohibits this type of action.
Military personnel are trained to know that they are obligated not to obey an unlawful order. The post-WWII Nuremberg trials ensured that “I was only following orders” is not a valid excuse if, to quote the Manual for Courts Martial, “a person of ordinary sense and understanding would have known the orders to be unlawful.” Army Lt. William Calley certainly learned that lesson at the Vietnamese village of My Lai in 1968.
Ignore for a moment that anyone would ever believe that the National Guard would be short of weapons and would need to seize private firearms to get the job done. The most recent figures I could find are from FY 2015, when the Virgin islands’ Army National Guard had an authorized strength of 793 soldiers and a budget of $44.6 million. I’ve been in some Army units with serious equipment shortages; individual firearms were never the issue.
Given all this, one would hope that an order to seize personal firearms would be an order that Guardsmen, from the Adjutant General on down, would ignore or disobey.
gun seizures in the wake of hurricane katrina
Almost exactly 12 years ago, after Hurricane Katrina inundated the city of New Orleans, the authorities felt it necessary to forcibly remove residents from flooded homes. As the New York Times reported on Sep. 9, 2005, Mayor Ray Nagin ordered the police to seize private firearms to make sure the removals went smoothly.
A federal court later ordered all the seized firearms returned. To prevent such an occurrence from happening again, Louisiana Republican Sen. David Vitter and Rep. Bobby Jindal filed the Disaster Recovery Personal Protection Act of 2006. The text of the bill, which eventually became law after Vitter offered it as an amendment to the Department of Homeland Security Appropriations Act, prohibits federal agents or agents of any organization that receives any federal funds from confiscating legally owned firearms during states of emergency.
will guardsmen refuse?
The “receiving federal funds” language clearly makes the National Guard of any state or territory subject to the law’s provisions. The question is, then, how many Guardsmen n the Virgin Islands, regardless of rank, actually know this is the law? And how many of them will refuse to follow the governor’s order?
In the run-up to the 2003 invasion of Iraq, many on the anti-war left hoped U.S. forces would agree with them that there was no basis for the invasion in international law and would refuse to participate in the action. More recently, some have hoped that uniformed personnel would “resist Trump’s illegal orders.” But in at least one case of a soldier who took this course during Operation Iraqi Freedom, the court declared he could “not excuse his disobedience of an order to proceed to foreign duty on the ground that our presence there does not conform to his notions of legality.”
But the Virgin Islands case should be different. Even putting side the Constitutional issues, we have a federal law on the books expressly prohibiting the governor from carrying out his wishes in this case. Look to see if the USVI Adjutant General, Brig. Gen. Deborah Howell, who received her federal recognition a month ago, makes any statements regarding if or how the order was implemented.
The point is likely to remain moot, since the storm has already passed the USVI, the damage appears to be not nearly as bad as in Barbuda, and the media has not reported on gun seizures.
But it would seem that Gov. Mapp needs a refresher in the limits of his authority.
