Guns in Emergencies: The Disaster Recovery Personal Protection Act

Earlier this week, I wrote about Second Amendment concerns that arise with emergency declarations that shut down non-essential businesses, including, in some states, gun stores. Showing how quickly these issues are moving, in the past few days there have already been changes in states and localities that have excluded guns from the list of essential businesses. For example, even after winning the lawsuit that kept gun stores shuttered, Pennsylvania modified its closure order: “Firearms dealers may now sell their wares by individual appointment during limited hours as long as they comply with social distancing guidelines and take other measures to protect employees and customers from the coronavirus.” In Los Angeles County, the sheriff declared that gun stores “are nonessential businesses and will have to close their doors amid coronavirus restrictions.” But just hours later, the county attorney concluded that such businesses are essential, presumably halting enforcement of the sheriff’s declaration.

It’s fair to say there’s confusion on the ground as state and local resources, including law enforcement resources, are stretched thin and public officials scramble for the best way to protect the public amidst a global crisis. New Jersey, as of this writing, is still defending its exclusion of gun stores as essential business. In my own backyard, the Wake County Sheriff’s Office has said it will “suspend pistol and concealed-carry permit applications until April 30 as demand surges amid the coronavirus outbreak.”

The rest of this post will focus on a different issue that arises in emergencies—orders that directly regulate firearm possession or carrying.

The Disaster Recovery Personal Protection Act was adopted in 2007 as part of a Department of Homeland Security Appropriations bill and is now codified at 42 U.S.C. § 5207. It states, in relevant part:

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.

The law has certain exceptions, including that officials may order “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.” It also authorizes a private right of action for individuals to enforce the provisions of the law and provides for attorney’s fees if they prevail.

The law was prompted by concerns over gun seizures in New Orleans after Hurricane Katrina, which led to an NRA lawsuit. As the NRA said after passage of the law:

“Following the chaos and civil disorder in New Orleans when the city effectively suspended the Second Amendment, NRA vowed to make sure we never again witnessed this kind of desecration on our rights,” declared Chris W. Cox. “As promised, NRA set out to pass legislation at both the federal and state levels to protect the Second Amendment rights of law-abiding American citizens.”

So far as I can tell, there are no reported cases dealing with the law. Since most orders so far regulate sales, rather than keeping or bearing, they fall outside the reach of the Act. But it’s possible that as more federal resources are poured into efforts to combat coronavirus, challenges could arise.

There are also some state law analogues to the federal law. Here is a sampling:

• Texas: Under the Texas Disaster Act, “[t]he governor may suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles.” But the governor’s power during emergencies does not include authority to “authorize the seizure or confiscation of any firearm or ammunition from an individual who is lawfully carrying or possessing the firearm or ammunition.”
• Florida: Under the State Emergency Management Act, the governor can “[s]uspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles.” But nothing in the law “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.”