Friday, June 10, 2011

I Respectfully Disagree

The NRA-ILA sent out a legislative alert for North Carolina this morning concerning S. 594. This bill would do away with North Carolina's ban on possession on ammo and firearms off premises during a declared State of Emergency.
Thursday, June 09, 2011

Contact Your State Senator Immediately!

With time rapidly winding down on this year's legislative session, many pro-gun reforms are in a position to advance. One critical reform has been bottled up, and could die if it is not acted on soon.

Senate Bill 594, an emergency powers bill introduced by state Senator Doug Berger (D-7), has been stalled since its introduction. This critical legislation would ensure that our Right to Keep and Bear Arms cannot be suspended during a declared state of emergency. The NRA has been told that the Senate Republicans are preventing this bill from being heard.

Please call AND e-mail your state Senator IMMEDIATELY and urge him or her to support adding the language in S 594 as an amendment to all pro-gun legislation.

Please also call AND e-mail Senate Republican Leadership and urge them to ensure the language in S 594 is amended to other pro-gun legislation.
I have written a great deal on North Carolina's ban on firearms during declared states of emergency. I have called the Governor's Office to inquire about the declared emergency at the start of dove season last year and was called a rumor mongerer. I have chastised Gov. Bev Perdue for misstating the law. I have written about the Senate Bill above. No one can say that I have ignored it and want the emergency ban to remain in place.

Normally, I'd be urging North Carolina readers to call or email the State Senate leadership to move this bill. That said, I disagree with the NRA-ILA on pushing to rush this bill through the State Senate. The reason I don't want to see this bill passed right now is because of a conversation I had with a certain prominent attorney. All I will say about this attorney is that he has rock star status within the gun community.

He said that in strategic civil rights litigation you need the opinions and decisions so that you can build upon them to expand the right. For example, you had to have the Heller decision before you could get the McDonald decision which incorporated the Second Amendment to the states. If Mayor Adrian Fenty had not in his confident arrogance appealed to the Supreme Court from the Court of Appeals, you would not have had a Supreme Court decision in favor of Dick Anthony Heller.

Likewise here in North Carolina, if the General Assembly passed changes to the emergency powers, it will moot Bateman v. Perdue. At the heart of that case is the right to carry for self-defense outside of your residence. Bateman is fully briefed and is ready to go to oral arguments. It is a good case and despite the strong efforts of Attorney General Roy Cooper and his legal staff, I think we will win it.

There are many opportunities to get a bill passed or a law changed. There is only this one chance to win in the courts. Why blow it just because you are getting antsy? The strongest proponent for changes in this law has been Grass Roots North Carolina which is one of the plaintiffs in the case. With their Alerts going out almost daily as the General Assembly gets near the crossover date, you have not heard them pushing S. 594. Think about that. If the most hard-core, take no prisoners, gun rights group in North Carolina isn't pushing it, doesn't that say something? I think even GRNC realizes the value of letting the District Court finish the process that they started the day after the Supreme Court's favorable ruling in the McDonald case.

UPDATE: S. 594 was not passed (or even considered) by the State Senate before the Crossover Deadline of 11:59pm on June 9th. As a result, it is dead for this session of the General Assembly despite the last minute efforts of the NRA-ILA.

Is this a bad thing that the General Assembly didn't pass changes to the Emergency Powers statutes? The answer is no for two reasons. First, Bateman v. Perdue is moving along in the courts and as I said earlier, I think we have a good chance of winning it. And second, Governor Perdue herself has changed how she declares a State of Emergency. While she still retains the power to declare a statewide State of Emergency under Chapter 36A of the General Statutes which imposes the firearms restrictions, she has begun to use another section of the General Statutes, Chapter 166A,  that allows declaration of an emergency yet doesn't impose firearms restrictions.

UPDATE II: I was correct about GRNC recognizing the value of letting the District Court finish the process. GRNC's leadership sent out this message yesterday to Republican State Senators
To: GOP Senators
From: Grass Roots North Carolina
Re: SB 679, anti-gun effort by Sen. Doug Berger

Ladies and Gentlemen:

Grass Roots North Carolina has reason to believe that Sen. Doug Berger
will attempt to amend SB 679 ("Castle Doctrine/Amend Firearms Laws") on Third
Reading by adding the contents of SB 594 ("Firearms/State of Emergency").

I strongly urge you to oppose any such attempt by Sen. Doug Berger.

Although this bill appears to be a well-intentioned effort to repeal the
gun ban which applies during States of Emergency declared by the Governor or
local governments, in reality it is an effort to moot a lawsuit filed
against Gov. Perdue and others by Second Amendment lawyer Alan Gura.

As you may recall, Gura won DC v. Heller and McDonald v. Chicago, forcing
SCOTUS to recognize the Second Amendment as an individual right.

This lawsuit, Bateman et al. v. Perdue et al., is intended to expand the
definition of the Second Amendment by the United States Supreme Court. If
won, not only would the lawuit cause repeal of the State of Emergency law in
question, but it would further expand our rights under the Second Amendment.

Again, I strongly urge you to oppose any attempt by Sen. Doug Berger to
add State of Emergency language to SB 679.
Senate Bill 679 passed its 2nd and 3rd Reading yesterday without the Emergency Powers amendment. Sen. Doug Berger referred to in the letter is a pro-gun Democrat.


  1. That's pretty strange. I had a conversation with a guy who's got some status in the gun rights litigation arena too. He said basically the same thing. He said it was important that we not do anything to screw this litigation up because we had a fantastic shot at really opening up the Pro-rights cause with this. He said we could not have a better chance, nor a better judge to try this case.

  2. John,

    You know the NRA aren't known for taking direction well, don't you?!

  3. Good point. On a perhaps tangentially related note, I wonder if California gun rights advocates should be fighting so hard to stop California AB 144 (ban of open carry of unloaded firearms).

    Why not let it pass?

  4. Also, the NRA seems to actively dislike the rock-star John's talking about. To the point of not even being able to mention his name in a press release.

  5. Early in the NC legislative session, NRA-ILA sent out a list of bills they would be supporting. I read down the list going, "Uh, huh, good, that one needs to change, cool,..." and then let out a good "NOOOO" when I saw this one listed. I quickly gave them a call and left a message, along with my Life membership number, pleading with them to contact said rock star attorney and work with him and to think strategically about it.

    It's only the second time I've contacted the NRA about a bad move, the first being their backing of DISCLOSE.

    After the NH Constitutional Carry fiasco, I'm becoming more and more convinced that with friends like these...

  6. The NRA used this same tactic to try and prevent the Second Amendment Foundation from getting Heller to the Supreme Court. But I am sure it has nothing to do with sabotaging a non-NRA lawsuit. [/sarcasm]

  7. "...anti-gun effort by Sen. Doug Berger"

    This is a BS title on the message.

    It is reasonable to disagree on pro-gun tactics, such as between legislation or a court case. Such disagreement may make you misguided or even naive but it in no way makes you "anti-gun".

    All I have to go on is this post but, given that the message was sent to "GOP Senators", it sure looks like yet another case of pro-gun "Republicans" trying to score partisan points on the back of the gun issue. Which is definitely counter-productive long term.

    Why not simply send a message to all the "pro-gun Senators", of both parties, including Berger, re-explaining the reasoning behind moving forward with the lawsuit instead of the amendment? That would have been equally easy, and that ease calls into question where some of these types would fall should gun rights conflict with party membership.

    I have no beef with holding NRA accountable, they don't get any points for pretending SAF doesn't exist and trying to claim all the credit, nor should they be countering moves of the locals in state gun issues, but this short-sighted partisan hijacking of the gun issue needs to be called out whenever it happens.

    You want to be "pro-Second Amendment"? You check the R and D at the door on that issue and support the good guys on an individual basis.