March 19, 2020: Los Angeles, CA
Due to the Coronavirus, cities across America have placed restrictions on their citizens and their ability to freely associate. Many are under forced quarantines. In Orange County, CA, all public and private gatherings outside a single household are now banned – including work. San Francisco is under indefinite “lockdown” (joining Italy, France, Spain, and Belgium) – although cannabis dispensaries have been deemed “essential” and allowed to stay open. Most schools have closed indefinitely. Courts have shut down most of their operations. Widespread looting has been reported, and there are long lines at gun stores. Police departments are intentionally making fewer arrests. Regular household products like toilet and milk are sold out at many stores.
This atmosphere has created a lot of anxiety and uncertainty for the public. Nothing seems to be functioning as normal, and people are looking for assurance that society will not descend into chaos or anarchy. The law provides tools for the government to take extraordinary steps in dealing with a public health crisis, but Americans are used to having freedom, and are unlikely to accept a totalitarian government.
In situations of mass disorder, without a functioning rule of law, societies turn to martial law – rule by the military. Martial law gives the military authority to enforce civil laws during times of emergency when local courts and police are unable to do so. On a federal level, only the president (as commander-in-chief of the military) has the power to impose martial law. In addition, in each state, the governor has the right to impose martial law within the borders of the state. Under martial law, certain civil liberties may be suspended, including the right to be free from unreasonable searches and seizures, the right to a hearing on lawful imprisonment (habeas corpus), and freedom of association and movement. Martial law was imposed during the US Civil war, and in Hawaii following the attack on Pearl Harbor.
America has not announced it is turning to martial law, but the head of the U.S. National Guard reported on March 19 that “tens of thousands” of National Guard troops could be called up to help with the coronavirus. So far, local jurisdictions have remained free to set their own balance of restrictions and liberties based on their local conditions. There is no national lockdown, and soldiers are not forcing people to stay in their homes. In California, local police are generally not enforcing lockdown orders by force, and have trusted people to listen to advice and voluntarily comply. California Governor Gavin Newsom recently stated that martial law is not necessary to combat the Coronavirus, but that the state is equipped to impose martial law if needed later.
As we move forward, various laws and policies allow the government to provide relief to struggling Americans short of imposing martial law. President Trump declared a national emergency, granting new powers to provide federal relief. The 1988 Stafford Disaster Relief and Emergency Assistance Act was designed to provide an orderly means of federal natural disaster assistance for state and local governments in carrying out their duties to aid citizens. Under the Stafford Act, a presidential emergency declaration triggers financial and physical assistance through the Federal Emergency Management Authority (FEMA), which is responsible for coordinating government relief efforts. In addition, the federal Small Business Association is providing loans to small businesses suffering economic hardship where, as now, there is a declared disaster.
Many local governments have also passed new laws that temporarily prevent commercial and residential evictions, and waive burdensome taxes and regulations. State public health laws also give local governments the power to ban large gatherings, close otherwise lawful businesses like restaurants, and order people to stay in their homes during an emergency – powers that would normally be restricted by our Constitutional rights to travel and free association.
Americans have also found comfort in the Second Amendment, allowing them to acquire guns to defend themselves and others from citizens or rogue government agents who seek to harm them. If the government is unable to keep public order through police and the courts, then individuals will remain free to protect themselves by exercising their right to bear arms. Like all constitutional rights, however, Second Amendment rights are not absolute, and governments are allowed to continue enforcing reasonable regulations banning certain types of weapons and excluding classes of people including felons from possessing guns.
Author: Raza Lawrence of Margolin & Lawrence.
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