One of the many questions in this time of uncertainty due to coronavirus is “Will the government declare martial law?”
Martial law means two things in reality; first, that civilians can be tried under military law by military tribunals, and, two, military acting in place of local law enforcement. The former situation applies only to war/civil war and the second requires essentially widespread rioting and lawlessness.
The National Guard on the street to aid police isn’t truly martial law, though stupid people describe it as such. If you are arrested, you go to normal jail and go to normal court. The Guard isn’t going to try you via court martial for breaking curfew or summarily shoot looters.
I don’t forsee a shutdown of state borders. This would stop vital truck traffic and do little to stop transmission of disease. It would also face huge challenges in court and the public wouldn’t stand for it.
What is possible, and legal:
On emergency declarations in general:
“Congress passed the National Emergencies Act in 1976. Under this law, the president still has complete discretion to issue an emergency declaration—but he must specify in the declaration which powers he intends to use, issue public updates if he decides to invoke additional powers, and report to Congress on the government’s emergency-related expenditures every six months. The state of emergency expires after a year unless the president renews it, and the Senate and the House must meet every six months while the emergency is in effect “to consider a vote” on termination.” (The Atlantic)
Emergency declarations are largely administrative and logistical moves. For instance, it allows FEMA to begin coordinating emergency responses, allocates federal resources to transport needed goods and personal, and most often releases federal funds.
Article 1, Section 9 of the US Constitution states, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Congress must approve of the suspension.
This act only applies in cases of war or rebellion; not a mere disaster. Per Ex parte Milligan, the Supreme Court ruled that "martial rule can never exist when the courts are open" and restricts martial law to places where "war really prevails."
The need for military to supercede local government applies only when there is the “failure or inability of the legitimate government to exercise its functions on account of the military occupation, or the undesirability of allowing it to do so.” (FM 27-10)
The Posse Comitatus Act prohibits the military from engaging in law enforcement duties. This does not apply to state National Guard units on state missions (it does apply if the state guard is federalized). In 1992, during the Los Angeles Riots, the National Guard, Army, and Marine Corps were ordered into the city under the Insurrection Act, which does allow the military to engage in law enforcement. The current law does not include disasters as reason for deploying the military.
The Insurrection Act requires specific circumstances to go into effect. In short, law enforcement must be unable (in this case) to enforce the law which thus denies equal protection of the law, guaranteed by the 14th Amendment, to citizens. One could imagine that because police are sick or have deserted, things get so dire that rampant rioting and looting threaten a city (or the nation). At that point, ordinary “crime” is so out of hand that it qualifies as “domestic violence,” on par with war.
10 USC §253
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it--
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
...In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
10 USC §254
Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.
NRS 414.060 Powers and duties of Governor.
3. (g)(5) The conduct of the general public and the movement and cessation of movement of pedestrians and vehicular traffic during, before and after exercises or an emergency or disaster.
(6) Public meetings or gatherings.
National guard powers
NRS 412.602 Right-of-way on public street and highway; penalty for interference. The Nevada National Guard in the performance of its military duties has the right-of-way over any persons or vehicles on any public street or highway of this state, except United States mail carriers, fire apparatus and other emergency vehicles. Any person who hinders or delays, or obstructs, the Nevada National Guard in the performance of its military duties is guilty of a misdemeanor.”
State health authority powers
NRS 439.170 Prevention of sickness and disease; legal action for enforcement of laws and regulations. The Division shall take such measures as may be necessary to prevent the spread of sickness and disease, and shall possess all powers necessary to fulfill the duties and exercise the authority prescribed by law and to bring actions in the courts for the enforcement of all health laws and lawful rules and regulations.
No gun regulations/confiscation
NRS 414.155 Limitations on emergency powers relating to firearms. Pursuant to Amendment II of the Constitution of the United States and Section 11 of Article 1 of the Constitution of the State of Nevada, and notwithstanding any other provision of law, the emergency powers conferred upon the Governor and upon the executive heads or governing bodies of the political subdivisions of this State must not be construed to allow:
1. The confiscation of a firearm from a person unless the person is:
(a) In unlawful possession of the firearm; or
(b) Unlawfully carrying the firearm; or
2. The imposition of additional restrictions as to the lawful possession, transfer, sale, carrying, storage, display or use of:
(b) Ammunition; or
(c) Components of firearms or ammunition.
This doesn’t include general executive powers or overreaches or strange constructions of existing laws. Congress could pass a whole host of new laws allowing the military to intervene in all sorts of situations.
I don’t see the Supreme Court going along with really extreme laws, such as gun confiscation. We live in a different time than WWII and our courts and country is now extremely intolerant of civil liberties restrictions; I doubt that in today’s climate the Patriot Act would have been passed.
So in a legal sense, there is no real threat of a boot of tyranny coming down on your neck. People saying that this will happen are paranoid fearmongerers (and probably quite also stupid). Stay calm, stay home, and stay alert. Keep your gun handy.
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Clayton E. Cramer
Gun Free Zone
The War on Guns
The View From Out West