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Posted: 7/17/2012 10:32:35 PM EDT
My brother and I were debating this tonight as in the situation of Katrina where gun confiscation happened and if it was constitutional.My brother explained that once Katrina was so far out of control that once Martial law was instituted that your rights under the constitution didn't matter anymore.The situation has now focused on gaining control.Is this true?
Link Posted: 7/17/2012 10:36:20 PM EDT
[#1]
I do not know for sure but would bet that if the gov declares martial law the COTUS will not mean shit to them.
Link Posted: 7/17/2012 10:37:56 PM EDT
[#2]
We might just find out in our lifetimes.
Link Posted: 7/17/2012 10:38:24 PM EDT
[#3]
The Constitution does not grant the power to place those not in the military (to include the militia when in Federal service) under martial law, which by definition is military law (which today would be the UCMJ).  Any efforts of this sort would most certainly be extraconstitutional.
Link Posted: 7/17/2012 10:38:58 PM EDT
[#4]
I am unaware of any legal provision under civilian law that allows the U.S. military to establish jurisdiction over criminal offenses committed by civilians. I am unaware of such a provision under military law as well.

If anyone is aware of such statutes in the US criminal code, or the UCMJ, I'd like to see it. I don't see how anyone has legal authority to suspend the constitutional protections enjoyed by Americans. I don't believe that resisting such an effort should be or could be criminal.


 
Link Posted: 7/17/2012 10:40:03 PM EDT
[#5]
I thought the whole point of martial law saw to suspend (at least some of) the constitution?
Link Posted: 7/17/2012 10:41:51 PM EDT
[#6]
When putting down an insurrection, those who are insurrectionists are not afforded such rights.
Link Posted: 7/17/2012 10:43:06 PM EDT
[#7]




Quoted:

I thought the whole point of martial law saw to suspend (at least some of) the constitution?




Martial law is the placing of civilians under the laws of the military (typically of the ground forces where there is a distinction between the laws of ground and naval services), hence the word "martial."  To implement it over civilians would obviously require ignoring the constitution.
Link Posted: 7/17/2012 10:43:51 PM EDT
[#8]




Quoted:

When putting down an insurrection, those who are insurrectionists are not afforded such rights.




Where in the constitution does it say that?  Seems to make no exceptions for classes of persons or crimes when it comes to the rights of due process.
Link Posted: 7/17/2012 10:44:51 PM EDT
[#9]
I know that military law takes over in a disastourus situation but under martial law could they "the military disarm my household "even though there was not a threat? Would it be unconstituttional? Would it matter?
Link Posted: 7/17/2012 10:47:04 PM EDT
[#10]



Quoted:


When putting down an insurrection, those who are insurrectionists are not afforded such rights.


What part of The Constitution says that? I understand that enemy combatants are a special catagory, but I think we're talking about a Katrina situation. A temporary breakdown in civil authority in a disaster area. Where does the U.S. military derive it's powers over the civilian population in such circumstances? What code, chapter, section, etc.?



 
Link Posted: 7/17/2012 10:48:37 PM EDT
[#11]
Quoted:

Quoted:
When putting down an insurrection, those who are insurrectionists are not afforded such rights.

What part of The Constitution says that? I understand that enemy combatants are a special catagory, but I think we're talking about a Katrina situation. A temporary breakdown in civil authority in a disaster area. Where does the U.S. military derive it's powers over the civilian population in such circumstances? What code, chapter, section, etc.?
 

This is what I want to know!
Link Posted: 7/17/2012 10:50:42 PM EDT
[#12]
I was under the impression that "Martial" law means, "shit is hitting the fan and now whatever the guys with the guns say goes, so sit the fuck down and wait until we deal with this mess", sort of thing.
Link Posted: 7/17/2012 10:51:00 PM EDT
[#13]
Quoted:

Quoted:
When putting down an insurrection, those who are insurrectionists are not afforded such rights.


Where in the constitution does it say that?  Seems to make no exceptions for classes of persons or crimes when it comes to the rights of due process.


Read the Insurrection Act of 1807.  It's a plain as day.

The US Military can be used to put down an insurrection and target those who refuse to "disperse."

This is not considered law enforcement.

Link Posted: 7/17/2012 10:52:17 PM EDT
[#14]
Quoted:
I was under the impression that "Martial" law means, "shit is hitting the fan and now whatever the guys with the guns say goes, so sit the fuck down and wait until we deal with this mess", sort of thing.


Ok,so if you defend your home from invasion of our military you have the right to do so?
Link Posted: 7/17/2012 10:53:41 PM EDT
[#15]
Quoted:
Quoted:

Quoted:
When putting down an insurrection, those who are insurrectionists are not afforded such rights.


Where in the constitution does it say that?  Seems to make no exceptions for classes of persons or crimes when it comes to the rights of due process.


Read the Insurrection Act of 1807.  It's a plain as day.

The US Military can be used to put down an insurrection and target those who refuse to "disperse."

This is not considered law enforcement.



But to disarm the residence?
Link Posted: 7/17/2012 10:57:01 PM EDT
[#16]



Quoted:


When putting down an insurrection, those who are insurrectionists are not afforded such rights.


So you're saying it's entirely open to interpretation.





 
Link Posted: 7/17/2012 10:58:07 PM EDT
[#17]




Quoted:



Quoted:





Quoted:

When putting down an insurrection, those who are insurrectionists are not afforded such rights.




Where in the constitution does it say that? Seems to make no exceptions for classes of persons or crimes when it comes to the rights of due process.




Read the Insurrection Act of 1807. It's a plain as day.



The US Military can be used to put down an insurrection and target those who refuse to "disperse."



This is not considered law enforcement.







The Insurrection Act is not the U.S. Constitution.  And I don't think using force against people who are not associating in a peaceable fashion (but rather the opposite) has ever been a power that has been disputed.  One couldn't even handle a riot with such a rule.  Target people peacefully associating (or for which there is no evidence that their association is anything other than peaceful) is another story and is constitutionally offensive, even if Congress passed a law saying it was okay (the Constitution is supposed to trump laws passed by Congress that conflict with it).
Link Posted: 7/17/2012 10:58:38 PM EDT
[#18]
So once martial law was instated would one be responsible for protecting their home/property under the 2nd ammendment and face charges and be held in the court of laws.
Link Posted: 7/17/2012 10:59:13 PM EDT
[#19]
Paging NoloContendere?

NoloContendere to GD, STAT.......
Link Posted: 7/17/2012 11:00:02 PM EDT
[#20]
Question answered 1860-1865.
Link Posted: 7/17/2012 11:01:09 PM EDT
[#21]
Quoted:
Question answered 1860-1865.


Do you have a link?
Link Posted: 7/17/2012 11:02:37 PM EDT
[#22]




Quoted:

Question answered 1860-1865.




Not really.  It proved the Federal government can get away with violating the law in a rather egregious fashion.
Link Posted: 7/17/2012 11:03:42 PM EDT
[#23]




Quoted:

So once martial law was instated would one be responsible for protecting their home/property under the 2nd ammendment and face charges and be held in the court of laws.




Not really sure what you're asking.  The implementation of martial law over civilians has no constitutional basis, so it's hard to say what any procedures would be like.  I suppose one could glance at the UCMJ, but it's hard to say anything for sure.
Link Posted: 7/17/2012 11:05:08 PM EDT
[#24]
Link Posted: 7/17/2012 11:07:39 PM EDT
[#25]
Quoted:

Quoted:
Question answered 1860-1865.


Not really.  It proved the Federal government can get away with violating the law in a rather egregious fashion.


In real terms Habeus Corpus was suspended. In other cases the military was the legal authority in control without regard for the Constitution. That even lasted well past the end of the war in a number of situations.

While our ideal is that the Constitution is the law of the land and can't be superseded, the practical effect of the Civil War provides precedence for application of martial law.
Link Posted: 7/17/2012 11:08:23 PM EDT
[#26]
Quoted:

Quoted:
Quoted:

Quoted:
When putting down an insurrection, those who are insurrectionists are not afforded such rights.


Where in the constitution does it say that? Seems to make no exceptions for classes of persons or crimes when it comes to the rights of due process.


Read the Insurrection Act of 1807. It's a plain as day.

The US Military can be used to put down an insurrection and target those who refuse to "disperse."

This is not considered law enforcement.



The Insurrection Act is not the U.S. Constitution.  And I don't think using force against people who are not associating in a peaceable fashion (but rather the opposite) has ever been a power that has been disputed.  One couldn't even handle a riot with such a rule.  Target people peacefully associating (or for which there is no evidence that their association is anything other than peaceful) is another story and is constitutionally offensive, even if Congress passed a law saying it was okay (the Constitution is supposed to trump laws passed by Congress that conflict with it).


Well, if ever Federal Troops are mobilized to stop an insurrection, you should sue the government and have the Insurrection Act declared unConstitutional.

Until such a determination is made, this 200 year old law will remain in effect and "Constitutional."

Link Posted: 7/17/2012 11:09:57 PM EDT
[#27]
Quoted:

Quoted:
So once martial law was instated would one be responsible for protecting their home/property under the 2nd ammendment and face charges and be held in the court of laws.


Not really sure what you're asking.  The implementation of martial law over civilians has no constitutional basis, so it's hard to say what any procedures would be like.  I suppose one could glance at the UCMJ, but it's hard to say anything for sure.


I mean if martial law is instated and yet I defend my home because all communication is lost and having no knowledge of martial law being instated and people was to die would I be held accountable in the court of law since martial law was instated! AND is the martial law even constitional to begin with?
Link Posted: 7/17/2012 11:12:35 PM EDT
[#28]




Quoted:



Quoted:





Quoted:



Quoted:





Quoted:

When putting down an insurrection, those who are insurrectionists are not afforded such rights.




Where in the constitution does it say that? Seems to make no exceptions for classes of persons or crimes when it comes to the rights of due process.




Read the Insurrection Act of 1807. It's a plain as day.



The US Military can be used to put down an insurrection and target those who refuse to "disperse."



This is not considered law enforcement.







The Insurrection Act is not the U.S. Constitution. And I don't think using force against people who are not associating in a peaceable fashion (but rather the opposite) has ever been a power that has been disputed. One couldn't even handle a riot with such a rule. Target people peacefully associating (or for which there is no evidence that their association is anything other than peaceful) is another story and is constitutionally offensive, even if Congress passed a law saying it was okay (the Constitution is supposed to trump laws passed by Congress that conflict with it).




Well, if ever Federal Troops are mobilized to stop an insurrection, you should sue the government and have the Insurrection Act declared unConstitutional.



Until such a determination is made, this 200 year old law will remain in effect and "Constitutional."





Stopping an insurrection is not necessarily synonymous with instituting martial law or violating the constitution in other ways.



And what is or is not constitutional is not relative.  A law either is or is not constitutional; someone's words or actions to the contrary doesn't change the fact; neither does the date, for that matter, or public opinion.



Link Posted: 7/17/2012 11:13:23 PM EDT
[#29]
The closest thing to martial law would be the suspension clause of the Constitution: "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."

The government or its agents could arrest you, toss you in a cage, and tell any judges to piss off if that were in effect.

Typically martial law would be declared by a state governor. There have been a few cases of it, usually during strikes or natural disaster.
Link Posted: 7/17/2012 11:13:52 PM EDT
[#30]




Quoted:



Quoted:





Quoted:

Question answered 1860-1865.




Not really. It proved the Federal government can get away with violating the law in a rather egregious fashion.




In real terms Habeus Corpus was suspended. In other cases the military was the legal authority in control without regard for the Constitution. That even lasted well past the end of the war in a number of situations.



While our ideal is that the Constitution is the law of the land and can't be superseded, the practical effect of the Civil War provides precedence for application of martial law.





A lot more was done than the suspension of habeus corpus (which I believe was done by the President and not by Congress, which is not constitutional).  Saying that with enough force the law can be violated without consequence for the violator is not the same as saying it is constitutional or otherwise legitimate, though.
Link Posted: 7/17/2012 11:14:21 PM EDT
[#31]





Quoted:





Quoted:
Quoted:


When putting down an insurrection, those who are insurrectionists are not afforded such rights.






Where in the constitution does it say that?  Seems to make no exceptions for classes of persons or crimes when it comes to the rights of due process.






Read the Insurrection Act of 1807.  It's a plain as day.





The US Military can be used to put down an insurrection and target those who refuse to "disperse."





This is not considered law enforcement.








It's partner , the Posse Comitatus act, is no where as limiting as people think it is, either.





 
Link Posted: 7/17/2012 11:16:17 PM EDT
[#32]
Quoted:
Quoted:
We might just find out in our lifetimes.




i'm getting that same feeling
Link Posted: 7/17/2012 11:23:34 PM EDT
[#33]
Quoted:

Quoted:
Quoted:

Quoted:
Quoted:

Quoted:
When putting down an insurrection, those who are insurrectionists are not afforded such rights.


Where in the constitution does it say that? Seems to make no exceptions for classes of persons or crimes when it comes to the rights of due process.


Read the Insurrection Act of 1807. It's a plain as day.

The US Military can be used to put down an insurrection and target those who refuse to "disperse."

This is not considered law enforcement.



The Insurrection Act is not the U.S. Constitution. And I don't think using force against people who are not associating in a peaceable fashion (but rather the opposite) has ever been a power that has been disputed. One couldn't even handle a riot with such a rule. Target people peacefully associating (or for which there is no evidence that their association is anything other than peaceful) is another story and is constitutionally offensive, even if Congress passed a law saying it was okay (the Constitution is supposed to trump laws passed by Congress that conflict with it).


Well, if ever Federal Troops are mobilized to stop an insurrection, you should sue the government and have the Insurrection Act declared unConstitutional.

Until such a determination is made, this 200 year old law will remain in effect and "Constitutional."


Stopping an insurrection is not necessarily synonymous with instituting martial law or violating the constitution in other ways.
No, but the Constitution allows for certain rights to be suspended in the case of Insurrection or Rebellion.  In such instances, the Constitution is not "violated."


And what is or is not constitutional is not relative.  A law either is or is not constitutional; someone's words or actions to the contrary doesn't change the fact; neither does the date, for that matter, or public opinion.



I agree 100%.

The Insurrection Act has been challenged numerous times and the Supreme Court has upheld it.

Link Posted: 7/17/2012 11:25:34 PM EDT
[#34]



Quoted:



Quoted:




Quoted:

So once martial law was instated would one be responsible for protecting their home/property under the 2nd ammendment and face charges and be held in the court of laws.




Not really sure what you're asking.  The implementation of martial law over civilians has no constitutional basis, so it's hard to say what any procedures would be like.  I suppose one could glance at the UCMJ, but it's hard to say anything for sure.




I mean if martial law is instated and yet I defend my home because all communication is lost and having no knowledge of martial law being instated and people was to die would I be held accountable in the court of law since martial law was instated! AND is the martial law even constitional to begin with?


If the military was used, and you defended yourself against them, I don't think you'd have to worry about whether it was constitutional at all.
 
Link Posted: 7/17/2012 11:28:16 PM EDT
[#35]
Link Posted: 7/17/2012 11:32:06 PM EDT
[#36]
Quoted:
I do not know for sure but would bet that if the gov declares martial law the COTUS will not mean shit to them.


FPNI
Link Posted: 7/17/2012 11:32:23 PM EDT
[#37]
I agree and would law UPHOLD?
Link Posted: 7/17/2012 11:33:57 PM EDT
[#38]
Don't even have to do that.  





One good burst from a Mk-19 speaks volumes.


 
Link Posted: 7/17/2012 11:35:04 PM EDT
[#39]
Quoted:

Quoted:
Quoted:

Quoted:
So once martial law was instated would one be responsible for protecting their home/property under the 2nd ammendment and face charges and be held in the court of laws.


Not really sure what you're asking.  The implementation of martial law over civilians has no constitutional basis, so it's hard to say what any procedures would be like.  I suppose one could glance at the UCMJ, but it's hard to say anything for sure.


I mean if martial law is instated and yet I defend my home because all communication is lost and having no knowledge of martial law being instated and people was to die would I be held accountable in the court of law since martial law was instated! AND is the martial law even constitional to begin with?

If the military was used, and you defended yourself against them, I don't think you'd have to worry about whether it was constitutional at all.


 


Even if I was dead and couldn't tell my side as they wouldn't allow me too,would the constitution still be in affect?
Link Posted: 7/17/2012 11:36:57 PM EDT
[#40]
Quoted:
Quoted:

Quoted:
Quoted:

Quoted:
So once martial law was instated would one be responsible for protecting their home/property under the 2nd ammendment and face charges and be held in the court of laws.


Not really sure what you're asking.  The implementation of martial law over civilians has no constitutional basis, so it's hard to say what any procedures would be like.  I suppose one could glance at the UCMJ, but it's hard to say anything for sure.


I mean if martial law is instated and yet I defend my home because all communication is lost and having no knowledge of martial law being instated and people was to die would I be held accountable in the court of law since martial law was instated! AND is the martial law even constitional to begin with?

If the military was used, and you defended yourself against them, I don't think you'd have to worry about whether it was constitutional at all.


 


Even if I was dead and couldn't tell my side as they wouldn't allow me too,would the constitution still be in affect?


If so wouldn't they be breaking the law as our founders saw it?
Link Posted: 7/17/2012 11:45:33 PM EDT
[#41]
From Article 1, section 9.

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.


The hallmark of what we would term "martial law" is a suspension of Habeas Corpus, along with a suspension of "due process of law" as we know it.

Therefore, in cases of rebellion(AKA insurrection) or invasion, it is within the power of the federal government to institute "martial law" within the borders of the U.S.


The implementation of "emergency powers" or "martial law" by State and local governments would be governed by the laws of the respective States, though it seems to me that the 14th amendment should allow for the federal government to step in and protect those Constitutional rights which are incorporated against the States, should the need arise. Whether the feds would actually do such a thing is questionable, at best.
Link Posted: 7/17/2012 11:47:41 PM EDT
[#42]
Quoted:
Quoted:
Quoted:

Quoted:
Quoted:

Quoted:
So once martial law was instated would one be responsible for protecting their home/property under the 2nd ammendment and face charges and be held in the court of laws.


Not really sure what you're asking.  The implementation of martial law over civilians has no constitutional basis, so it's hard to say what any procedures would be like.  I suppose one could glance at the UCMJ, but it's hard to say anything for sure.


I mean if martial law is instated and yet I defend my home because all communication is lost and having no knowledge of martial law being instated and people was to die would I be held accountable in the court of law since martial law was instated! AND is the martial law even constitional to begin with?

If the military was used, and you defended yourself against them, I don't think you'd have to worry about whether it was constitutional at all.


 


Even if I was dead and couldn't tell my side as they wouldn't allow me too,would the constitution still be in affect?


If so wouldn't they be breaking the law as our founders saw it?


When President George Washington put down the Whiskey Rebellion, was he breaking the law as his fellow founders saw it?

Link Posted: 7/17/2012 11:54:52 PM EDT
[#43]



Quoted:



Quoted:





Even if I was dead and couldn't tell my side as they wouldn't allow me too,would the constitution still be in affect?




If so wouldn't they be breaking the law as our founders saw it?


Constitution would more than likely still be in effect.





Breaking the laws?  Not if operating within them, such as under the Insurrection act, if employed legally.  





If US troops are deployed, and you do something that makes them shoot you, I would guess the reason would more than likely be you violating their rules of engagement. Troops normally don't just start shooting for the hell of it, for the most part they abide by ROE's, even when they REALLY don't want to.





Most people don't take that into account in their SHTFantasies.



 
Link Posted: 7/17/2012 11:55:57 PM EDT
[#44]
I still don't have a definite answer! Does martial law trump the constitional law?
Link Posted: 7/18/2012 12:01:41 AM EDT
[#45]
Quoted:
My brother and I were debating this tonight as in the situation of Katrina where gun confiscation happened and if it was constitutional.My brother explained that once Katrina was so far out of control that once Martial law was instituted that your rights under the constitution didn't matter anymore.The situation has now focused on gaining control.Is this true?


"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."

In my opinion, Kartrina did not fall under this privilege and agents confiscating weapons were unlawfully doing so.

* I am not a constitutional scholar, nor lawyer, nor .gov employee.
Link Posted: 7/18/2012 12:04:55 AM EDT
[#46]
Quoted:

Quoted:
Quoted:


Even if I was dead and couldn't tell my side as they wouldn't allow me too,would the constitution still be in affect?


If so wouldn't they be breaking the law as our founders saw it?

Constitution would more than likely still be in effect.


Breaking the laws?  Not if operating within them, such as under the Insurrection act, if employed legally.  


If US troops are deployed, and you do something that makes them shoot you, I would guess the reason would more than likely be you violating their rules of engagement. Troops normally don't just start shooting for the hell of it, for the most part they abide by ROE's, even when they REALLY don't want to.


Most people don't take that into account in their SHTFantasies.
 


You have not read my thread very carefully.As stated earlier,if all communication was down and martial law was instated and I was to stand for my 2nd amedment right would I be held accoutable for crimes under martial  law even if I was protecting my 2nd amendment rights?
Link Posted: 7/18/2012 12:06:58 AM EDT
[#47]
Quoted:
I still don't have a definite answer! Does martial law trump the constitional law?


I don't believe there is a definite answer to this, it is a grey area.  One can argue that one side or the other is unlawful in their actions with the Constitution as their guides, yet who is right?  The ones who win an armed conflict?

Much like today's administration, or admins of the past... What can 'We The People' do when the .gov overreaches the Constitution?  How do we enforce such laws if those breaking them are not going to be punished for doing so?  Example: Eric Holder.

Doesn't it come down to enforcement, or rather, if it can be enforced and who will be doing the enforcing?
Link Posted: 7/18/2012 12:07:11 AM EDT
[#48]
Quoted:
I still don't have a definite answer! Does martial law trump the constitional law?


Trump is the wrong word.

This is very similar to the misstatements that claim Anwar Al Aulaqi did not receive his "due process" because he was not indicted or read his rights.

In instances such as his, or the one you are discussing, "due process" may come in the form of a decison by the President, an order to the Military and a Hellfire missle.

The Constituion grants such powers.

Link Posted: 7/18/2012 12:07:12 AM EDT
[#49]
Interesting question. I'm rusty on this stuff since I retired from USAF in 2005.  There are two types of Martial Law. Absolute, and Qualified.  Absolute meant Uncle Sam made the rules, and you followed them. Qualified meant we "Helped" local LE enforce the laws.

Just dug this up, this makes for some interesting reading (From WIKI):

National Defense Authorization Act for Fiscal Year 2012 (NDAA) Section 1031

At least two American lawmakers have stated on the record that, in their opinion, Section 1031 of the National Defense Authorization Act for Fiscal Year 2012 legalizes or authorizes martial law in the United States.

Senator Mark Udall (D-Colorado) stated "These provisions raise serious questions as to who we are as a society and what our Constitution seeks to protect...Section 1031 essentially repeals the Posse Comitatus Act of 1878 by authorizing the U.S. military to perform law enforcement functions on American soil."[27]
Link Posted: 7/18/2012 12:07:52 AM EDT
[#50]
Quoted:

Quoted:
Quoted:


Even if I was dead and couldn't tell my side as they wouldn't allow me too,would the constitution still be in affect?


If so wouldn't they be breaking the law as our founders saw it?

Constitution would more than likely still be in effect.


Breaking the laws?  Not if operating within them, such as under the Insurrection act, if employed legally.  


If US troops are deployed, and you do something that makes them shoot you, I would guess the reason would more than likely be you violating their rules of engagement. Troops normally don't just start shooting for the hell of it, for the most part they abide by ROE's, even when they REALLY don't want to.


Most people don't take that into account in their SHTFantasies.
 


It's a matter of law not fantasy!
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