AR on disobeying an unlawful order?

PFC Private RallyPoint Member — Sat, 14 Sep 2019 15:12:59 -0400

I was wondering if this gun control stuff comes down to it, could soldiers disobey an order to take someone’s weapons on the grounds that it violates the constitution?

Response by SGT Edward Wilcox made Sep 14 at 2019 3:15 PM

SGT Edward Wilcox — Sat, 14 Sep 2019 15:15:16 -0400

Only if they were able to prove that it violated the Constitution. The trick with disobeying a lawful order is being able to prove the order is unlawful.

Response by MSgt Private RallyPoint Member made Sep 14 at 2019 4:43 PM

MSgt Private RallyPoint Member — Sat, 14 Sep 2019 16:43:56 -0400

In my opinion, it would be an unlawful order. We took an oath to "Support and Defend the Constitution of the United States against all enemies....". The Constitution is the law of the land and any order given that violates the law is unlawful.

Response by SFC Private RallyPoint Member made Sep 14 at 2019 4:50 PM

SFC Private RallyPoint Member — Sat, 14 Sep 2019 16:50:44 -0400

You're making up imaginary scenarios. Soldiers can't be used to enforce civilian laws in the US. That's a police function.

Response by CPT Jack Durish made Sep 14 at 2019 6:19 PM

CPT Jack Durish — Sat, 14 Sep 2019 18:19:27 -0400

Oh, great question. It has happened. The National Guard confiscated weapons in New Orleans following Hurricane Katrina. No receipts handed out making it impossible to return them (especially onerous for those with collections of antique and specialty guns). And it's a tough question. There's a difference between unlawful and unconstitutional. Orders may be consistent with the law until the law is adjudicated to be unconstitutional. Until then, we have to follow them. I suspect that if you are penalized (fined/imprisoned/busted/discharged) for failure to follow an order that is lawful, but the law is latter judged to be unconstitutional, you won't get relief. The order was lawful at the time it was issued. However, that's just an opinion and I suspect there are others who will differ. (...and you know what we say about opinions)

Response by CW4 Guy Butler made Sep 14 at 2019 6:33 PM

CW4 Guy Butler — Sat, 14 Sep 2019 18:33:00 -0400

This is, surprisingly enough, testable - all you need to do is ignore all the information in the attached article for JBER.

https://www.jber.jb.mil/News/News-Articles/Article/771181/673d-sfs-offers-guidance-for-base-weapon-registration/

Not what I’d call recommended, but give us an update if you decide to poke the bear.

673d SFS offers guidance for base weapon registration

Recently, 673d Security Forces Squadron provided guidance for privately owned weapon registration, storage and transportation to ensure the Joint Base Elmendorf-Richardson community remains compliant

Response by LTC Jason Mackay made Sep 14 at 2019 8:22 PM

LTC Jason Mackay — Sat, 14 Sep 2019 20:22:56 -0400

This is a fools errand of a question. AR600-20 is the source of an officer's ability to issue orders and an NCOs ability to supervise. The MCM is the source on UCMJ particularly Article 92. Most of what you are looking for is not regulation but federal law. Much of it covered in the DSCA I and II joint course.

Posse Commitatus prevents Title 10 Active Duty military or state forces under federal control from enforcing the law unless the Insurrection act is in effect. There is an extremely narrow range of circumstances where Title 10 forces can enforce laws, which weapon confiscation would fall under. It requires a request from the state and a presidential order. It happened during the LA Riots, and they "read the riot act" and the crowd did not disperse. Federal troops restored order in conjunction with beleaguered law enforcement.

State forces under control of the governor may enforce the law in accordance with state law. Each state varies a little. The key term is State Active Duty (SAD). Title 32 authority is a gray area.

Just because it happened before does not mean it was legal or a lawful order. The Obama administration distributing fuel in NYC during Sandy was illegal...and an election year. Katrina was a whole series of made up stuff.

Coast guard can enforce law by Title 14 Authority

Response by MAJ Javier Rivera made Sep 14 at 2019 10:41 PM

MAJ Javier Rivera — Sat, 14 Sep 2019 22:41:55 -0400

Not a so easy question to answer since it would depend on very specific circumstances. But just to make something clear, Military personal are no law enforcement officers with the only exception MPs or service equivalents and are limited by jurisdiction.

Response by CPL Gary Pifer made Sep 14 at 2019 11:09 PM

CPL Gary Pifer — Sat, 14 Sep 2019 23:09:51 -0400

I'd be more concerned about getting shot.

Response by SFC Michael Hasbun made Sep 16 at 2019 10:11 AM

SFC Michael Hasbun — Mon, 16 Sep 2019 10:11:52 -0400

Soldiers ALWAYS have the option of disobeying orders... Having said that, freedom of action is not freedom from consequence. Or, to phrase it Combat Arms Style, "play stupid games, win stupid prizes".

Response by SGM Bill Frazer made Sep 16 at 2019 10:46 AM

SGM Bill Frazer — Mon, 16 Sep 2019 10:46:52 -0400

Stop Day dreaming PFC- the COMTUS act (?) prevents the services from enforcing civilian laws- Example during Hurricanes, etc- armed forces can only stop folks, we can't arrest them, chase them down, etc. 2. There are 5 million NRA members and over 120 million hunters in the US. that means you would be outnumbered by 120+:1, and that is if the NG didn't join them. We wouldn't stand a chance.

Response by SSgt Private RallyPoint Member made Sep 16 at 2019 8:14 PM

SSgt Private RallyPoint Member — Mon, 16 Sep 2019 20:14:55 -0400

Military case law is clear. All orders are presumed to be lawful and a soldier disobeys one “on his own personal responsibility and at his own risk.” United States v. New, 50 MJ 729, (ACCA 1999)

“The success of any combat, peacekeeping, or humanitarian mission, as well as the personal safety of fellow servicemembers, would be endangered if individual soldiers were permitted to act upon their own interpretation of constitutional, presidential, congressional or military authority.” United States v. Rockwood, 48 MJ 501 (Army Ct. Crim. App. 1998)

You would bear an extremely heavy burden of fighting the lawfulness of the order at a court-martial. You would have to prove that the order was “so manifestly beyond the legal power or discretion of the commander” as to justify the disobedience. Not an easy hill to climb.