Sunday, May 20, 2012

An Attempt To Negate The Bateman Win Which Must Be Stopped

Bateman v. Perdue was a win for the Second Amendment. US District Court Judge Malcolm Howard found the North Carolina emergency ban on off-premises firearms during a declared state of emergency unconstitutional.
Rather, the statutes here excessively intrude upon plaintiffs' Second Amendment rights by effectively banning them (and the public at large) from engaging in conduct that is at the very core of the Second Amendment at a time when the need for self-defense may be at its very greatest. See Heller, 128 S. Ct. at 2799 ("[A]mericans understood the 'right of self-preservation' as permitting a citizen to 'repe[l] force by force' when 'the intervention of society in his behalf, may be too late to prevent an injury. ' " (quoting 1 Blackstone's Commentaries 145-146, n.42 (1803) ) (second alteration in original)). Consequently, the emergency declaration laws are invalid as applied to plaintiffs.
On Tuesday, the NC State Senate Judiciary I Committee will take up consideration of HB 489 which is currently titled "Mechanics Lien and Bond Law Changes". It had been approved 116-0 last May by the NC House. However, there is a proposed Committee substitute "H489-CSSA-71 [v.4]" which would effectively negate the Bateman win and would, in fact, give state and local official more power to infringe upon gun rights. This proposed change has not been published on the General Assembly's website but a copy was sent to Grass Roots North Carolina.

Grass Roots North Carolina points out the flaws in the substitute in an alert sent out late Friday. They are also encouraging everyone to send an email to the committee members which can be found at the link here.
The bill still restricts firearms outside the home during emergencies: Although new language in G.S. 14-288.12(b)(4) purports to let cities restrict outside-the-home carry only "when necessary to preserve the public peace where there is an imminent risk of damage, injury, or loss of life or property," that language is so vague as to be meaningless. Virtually every state of emergency - be it hurricane, riot or snowstorm - carries these "imminent risks."

Regulations now reach into your home: Although the bill purports to forbid cities from regulating guns and ammunition in the home during emergencies, neither cities nor the state ever had the power to apply in-home bans during states of emergency. Translated, by stipulating what lawful gun-related activities you may do in the home, the bill tries to replace your unequivocal right to arms in the home with a restricted "right" to arms in the home.

HB 489 replaces an unconstitutional statute with another unconstitutional statute: But because laws are constitutional until proven otherwise, you'll have to go back to court to prove it.
The proposed committee substitute to HB 489 reads as follow:
AN ACT TO AUTHORIZE THE POSSESSION, STORAGE, AND USE OF DANGEROUS WEAPONS DURING A STATE OF EMERGENCY FOR SELF DEFENSE IN A  PERSON'S HOME OR FOR OTHER LAWFUL PURPOSES IN A PERSON'S HOME;  AND TO AUTHORIZE THE TRANSPORTATION, POSSESSION, SALE, OR  PURCHASE OF AMMUNITION FOR SELF DEFENSE PURPOSES IN A PERSON'S  HOME OR FOR OTHER LAWFUL PURPOSES IN A PERSON'S HOME.

The General Assembly of North Carolina enacts:
SECTION 1. G.S. 14-288.7 is repealed.

SECTION 2. G.S. 14-288.12 reads as rewritten:
"§ 14-288.12. Powers of municipalities to enact ordinances to deal with states of emergency.
(a) The governing body of any municipality may enact ordinances designed to permit the imposition of prohibitions and restrictions during a state of emergency.
(b) The ordinances authorized by this section may permit prohibitions and restrictions:
(1) Of movements of people in public places, including directing and compelling the evacuation of all or part of the population from any stricken or threatened area within the governing body's jurisdiction, to prescribe routes, modes of transportation, and destinations in connection with evacuation; and to control ingress and egress of a disaster area, and the movement of persons within the area;
(2) Of the operation of offices, business establishments, and other places to or from which people may travel or at which they may congregate;congregate, including places that sell dangerous weapons, notwithstanding subdivision (4) of this subsection.
(3) Upon the possession, transportation, sale, purchase, and consumption of alcoholic beverages;
(4) Upon the possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances, and gasoline; and gasoline, when necessary to preserve the public peace where there is an imminent risk of damage, injury, or loss of life or property, except that prohibitions and restrictions adopted pursuant to this subdivision shall not do any of the following:
a. Prohibit the possession, storage, or use of a dangerous weapon for self-defense in a person's home or for other lawful purposes in a person's home or on other real property in which a person has a lawful possessory or ownership interest.
b. Prohibit the transportation, possession, sale, purchase, or use of ammunition for self-defense purposes in a person's home or on other real property in which a person has a lawful possessory or ownership interest.
(5) Upon other activities or conditions the control of which may be reasonably necessary to maintain order and protect lives or property during the state of emergency.
The ordinances may delegate to the mayor of the municipality the authority to determine and proclaim the existence of a state of emergency, and to impose those authorized prohibitions and restrictions appropriate at a particular time.
(b1) For purposes of Subdivision (b)(4) of this section, the term 'home' means a building or conveyance of any kind, to include its curtilage, whether the building or conveyance is 16 temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed as a temporary or permanent residence.
(c) This section is intended to supplement and confirm the powers conferred by G.S. 160A-174(a), and all other general and local laws authorizing municipalities to enact ordinances for the protection of the public health and safety in times of riot or other grave civil 21 disturbance or emergency.
(d) Any ordinance of a type authorized by this section promulgated prior to June 19, 23 1969 shall, if otherwise valid, continue in full force and effect without reenactment.
(e) Any person who violates any provision of an ordinance or a proclamation enacted or proclaimed under the authority of this section is guilty of a Class 3 misdemeanor."

SECTION 3. If House Bill 843, 2011 Regular Session, becomes law, then Section 2(c) of that act is rewritten to read:
"SECTION 2.(c) G.S. 14-288.7 is repealed."

SECTION 4. If House Bill 843, 2011 Regular Session, becomes law, then G.S. 166A-19.31(b), as enacted by Section 1(b) of that act, reads as rewritten:
"(b) Type of Prohibitions and Restrictions Authorized. – The ordinances authorized by this section may permit prohibitions and restrictions:
(1) Of movements of people in public places, including imposing a curfew; directing and compelling the voluntary or mandatory evacuation of all or part of the population from any stricken or threatened area within the governing body's jurisdiction; prescribing routes, modes of transportation, and destinations in connection with evacuation; and controlling ingress and egress of an emergency area, and the movement of persons within the area.
(2) Of the operation of offices, business establishments, and other places to or from which people may travel or at which they may congregate. congregate, including places that sell dangerous weapons, notwithstanding subdivision (4) of this subsection.
(3) Upon the possession, transportation, sale, purchase, and consumption of alcoholic beverages.
(4) Upon the possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances, and gasoline. gasoline, when necessary to preserve the public peace where there is an imminent risk of damage, injury, or loss of life or property, except that prohibitions and restrictions adopted pursuant to this subdivision shall not do any of the following:
a. Prohibit the possession, storage, or use of a dangerous weapon for self-defense in a person's home or for other lawful purposes in a person's home or on other real property in which a person has a lawful possessory or ownership interest.
b. Prohibit the transportation, possession, sale, purchase, or use of ammunition for self-defense purposes in a person's home or on other real property in which a person has a lawful possessory or ownership interest.
As used in this subdivision, the term 'dangerous weapon and substance' has the same meaning as it does under G.S. 14-288.1.
(5) Upon other activities or conditions the control of which may be reasonably necessary to maintain order and protect lives or property during the state of emergency.
The ordinances authorized by this section need not require or provide for the imposition of all of the types of prohibitions or restrictions, or any particular prohibition or restriction, authorized by this section during an emergency but may instead authorize the official or officials who impose those prohibitions or restrictions to determine and impose the prohibitions or restrictions deemed necessary or suitable to a particular state of emergency."

SECTION 5. If House Bill 843, 2011 Regular Session, becomes law, then G.S. 166A-19.31, as enacted by Section 1(b) of that act, is amended by adding a new subsection to read:
"(b1) For purposes of Subdivision (b)(4) of this section, the term 'home' means a building 22 or conveyance of any kind, to include its curtilage, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed as a temporary or permanent residence."

SECTION 6. This act is effective when it becomes law.
When I read through this substitute bill I was aghast. It explicitly authorizes the same restrictions that Judge Howard just found unconstitutional with the exception of the transport of ammo. Moreover, the Heller decision explicitly - not implied or inferred but explicitly - said the Second Amendment protects the right to keep and bear a firearm in the home for self-defense. So where does the drafter of this substitute bill get off saying the state can "authorize" the possession of a firearm in my home?

At the GRNC Annual Meeting held in Greensboro yesterday evening, GRNC President Paul Valone discussed this bill at length. He noted that no one on the committee seems to be willing to take credit for its drafting.

I should hope not! The Judiciary I Committee should consign this committee substitute to the dustbin of history.

4 comments:

  1. @slowfacts: For now, we don't know. GRNC would like 500 emails in each of the committee members' mailbox on Monday morning. They did send out 16,000 alerts.

    ReplyDelete
  2. "AN ACT TO AUTHORIZE THE POSSESSION, STORAGE, AND USE OF DANGEROUS WEAPONS DURING A STATE OF EMERGENCY FOR SELF DEFENSE IN A PERSON'S HOME OR FOR OTHER LAWFUL PURPOSES IN A PERSON'S HOME; AND TO AUTHORIZE THE TRANSPORTATION, POSSESSION, SALE, OR PURCHASE OF AMMUNITION FOR SELF DEFENSE PURPOSES IN A PERSON'S HOME OR FOR OTHER LAWFUL PURPOSES IN A PERSON'S HOME."

    talk about truth in advertising...

    ReplyDelete
  3. Pete Brunstetter, NC Senate District 31
    http://www.ncleg.net/gascripts/members/viewMember.pl?sChamber=S&nUserID=223

    ReplyDelete