GRNC Reminds Us What Could Have Been

North Carolina is under a declared state of emergency due to snow, ice, and extreme cold. I know those living in the upper Midwest are probably scratching their heads over this but remember North Carolina doesn't have the infrastructure - plows, etc. - to deal with this as a regular occurrence.

I bring this up as a reminder that before McDonald v. Chicago brought Second Amendment rights to the states it was state law in NC that no one could be armed outside the home during a state of emergency. Moreover, firearm and alcohol sales were also suspended. The win in the case of Bateman v. Perdue changed this as the US District Court for the Eastern District of North Carolina found this to be unconstitutional. Thanks needs to go to Grass Roots North Carolina, the Second Amendment Foundation, and attorney Alan Gura for bringing the case. It was the first case filed after the win in the McDonald case. If you search this blog using "Bateman" or "emergency", you will find numerous blog posts about the case.

Grass Roots North Carolina sent out a reminder yesterday about the win in Bateman yesterday.

'STATE OF EMERGENCY' & YOUR RIGHTS

Thanks to GRNC: Your Gun Rights are Recognized and Protected During this Snowstorm. . .  Due to winter weather, on Tuesday, Jaunary 16th, North Carolina Governor Roy Cooper declared a “state of emergency.” What does that mean to you today, and what could it have meant? Find out below.  As you may recall, Grass Roots North Carolina was a plaintiff in Bateman v. Perdue, when we sued Governor Beverly Perdue over the State of Emergency gun ban, a ban on law-abiding citizens carrying guns during a declared state of emergency. GRNC argued that the ban constituted an unconstitutional violation of the Second Amendment. We did so after the town of King, NC posted the entire town against firearms in advance of a pending snowstorm, and after Gov. Perdue declared a statewide State of Emergency, in response to an advancing hurricane, on the opening day of dove season, making criminals of thousands of dove hunters. GRNC and other plaintiffs won the lawsuit, and the law was struck down as unconstitutional under the Second Amendment. Like Our Work? Thanks to the GRNC, and gun owners like you who support GRNC, law-abiding North Carolina gun-carriers have not been rendered criminals today just because a little snow fell. So . . . rest easy, and enjoy your hot chocolate! And if you care to contribute to our all-volunteer organization so we can continue to protect and expand gun laws in our state, please  CLICK HERE  (or go to: https://www.grnc.org/join-grnc/contribute)

Why We Fight To Get Rid Of Pistol Purchase Permits

It looks like things are starting to settle down in Charlotte after the recent violence. You may have noticed some of the stories that referenced local citizens rushing out to buy firearms. Of course my readeers know that you should have the means to armed self-defence before the SHTF.

According to a spokesperson for Hyatt Gun Shop most of the purchases were for 12-gauge shotguns and buckshot. What was never mentioned in these stories is the purchase of a handgun in North Carolina requires either a pistol purchase permit or a NC Concealed Handgun Permit. Absent one of those two documents, you were legally restricted to purchasing a long gun. This is true even if it was a private sale.

While the Alan Gura's win in Bateman overturned the previous restrictions on possession of a firearm outside the home during a state of emergency as well as the restriction on firearm sales, we are still stuck with the Jim Crow-era pistol purchase permit.

Grass Roots North Carolina has been fighting the battle to get the permit system repealed for a number of years. They sent out the following alert yesterday afternoon requesting people contact both Gov. Pat McCrory (R-NC) and his Democratic opponent Attorney Gen. Roy Cooper (D-NC) urging them to support repeal of this system.

DELAYS IMPERIL CITIZENS

As Charlotte burned, the Jim Crow-era bureaucracy denied gun purchases to the terrorized . . . Aficionados of Natural rights know that free citizens should not be forced to obtain permission slips from the bureaucracy before exercising their protected rights. In fact, it has always been GRNC’s position that archaic and shameful laws designed to deny citizens their rights, like the Jim Crow-era Pistol Purchase Permit (PPP), must be eradicated. With all of GRNC’s moral arguments and its unceasing effort to eliminate the PPP system, never before has the need to discard this old-fashioned and embarrassing legality been so obvious—and so critical. A Right Delayed is a Life put in Peril As you may be aware, several counties around the state, including Mecklenburg County, have been using bureaucratic loopholes and high-demand for guns as an excuse to severely delay the issuance of PPPs and Concealed Handgun Permits (CHP).  Indeed, it is true that, “a right delayed is a right denied.” However, in the context of a city ravaged by violent rioters, it should also be said that, a right delayed is a life put in peril. As a small but deviant portion of Charlotte’s populace, reinforced by out-of-state agitators, attempted to raze Charlotte, law-abiding and rightfully terrified citizens lined up to purchase much-needed handguns to protect their families, only to be told, “no.” These citizens were told that they would be barred from purchasing defensive handguns until the weeks-long, and now often delayed, PPP and/or CHP process could be completed. The Sheriff and other law enforcement officials are paid to protect and serve the citizens, and thank goodness for the officers on the street. However, it is ironic that the law enforcement bureaucracy has been weighted to keep these same citizens from protecting themselves, particularly when the need is so immediate, and the situation so dire. In the context of riots, where citizens are at more risk than ever and law-enforcement is overwhelmed, laws delaying the citizen’s access to defensive weapons serve only to empower the thugs, thugs who seek to hurt these citizens and their livelihoods. This must end! Below, see how you can easily contact NC’s two contenders for governor. Remind them that you have not forgotten about this critical issue. Let them know that, even outside of the legislative season, this is an issue that is worthy of great attention, and gun owners will continue to monitor their actions on this; and actions after November will speak louder than words spoken before November. Remind them that, ultimately, the requirement for PPPs and CHPs (government “permission slips”) must be eliminated as a step toward genuine rights-recognition for law-abiding citizens in North Carolina.

IMMEDIATE ACTION REQUIRED!
PHONE GOVERNOR McCRORY AND ATTORNEY GENERAL COOPER: Use the phone numbers provided below, and tell them: I am calling to inform [The Governor / Mr. Cooper] that, at the same time deadly riots raged in Charlotte, frightened citizens were denied their right to obtain defensive handguns. This happened due to our state’s outdated Jim Crow-era Pistol Purchase Permit system and the weeks-long process to obtain a concealed handgun permit (CHP). This denial of civil rights has the potential to cost innocent lives, and it is entirely unacceptable. We must end these archaic and dangerous PPP and CHP systems, which only serve to put citizen’s lives in peril. I insist that this be addressed in the upcoming legislative session, and that [The Governor / Mr. Cooper] prioritize the repeal of these shameful and dangerous systems. Governor Pat McCrory:              (919) 814-2000 Attorney General Roy Cooper: (919) 716-6400 (Candidate for Governor) EMAIL GOVERNOR McCRORY AND ATTORNEY GENERAL COOPER: Use the links to their web forms provided below, and the text provided under ‘Deliver this Message’ to send a message. Governor McRory’s Contact Web Form: https://governor.nc.gov/contact/email-governor Attorney General Cooper’s Contact Web Form: http://www.ncdoj.gov/getdoc/d1ba7632-eced-41be-945f-8c2015756efe/ContactNCDOJ.aspx
DELIVER THIS MESSAGE
Suggested Subject: "Riots: PPP/CHP Permit Delays Imperil Innocents"   Dear [Governor McCrory]   /   [Attorney General Cooper]: I am writing to inform you that as deadly riots raged in Charlotte, frightened citizens were denied their right to obtain defensive handguns. This denial of rights, which clearly put untold numbers of law-abiding citizens in peril, was due to our state’s outdated Jim Crow-era Pistol Purchase Permit (PPP) system, and the weeks-long process required to obtain a concealed handgun permit (CHP). In this context of civil unrest, it seems fitting to remind our state’s gubernatorial candidates that voters have not forgotten about this critical issue. Even outside of the legislative season, this is an issue that is worthy of great attention. The peaceful and law-abiding, who clearly have reason to fear for their safety, will continue to monitor your actions on this issue. You must work to put an end to these archaic and dangerous PPP and CHP systems, as it is your duty to protect the rights of North Carolina citizens, and not least among these is their right to protect themselves. As we saw last week, these PPP and CHP systems only serve to empower the unlawful and put innocent lives in peril. I insist that the repeal of these embarrassing throw-backs be a priority of yours in the upcoming legislative session. And please be aware: actions after November will speak much louder than words spoken before November. I will be watching your actions on this topic through alerts from Grass Roots North Carolina. Respectfully,

Update On HB 489 - The Effort To Negate The Bateman Win

Grass Roots North Carolina sent out an update yesterday evening on HB 489. This was the attempt to re-write North Carolina's state of emergency gun ban that would have negated the win in Bateman v. Perdue. It now appears that all efforts to re-write the gun ban have failed and that the NC General Assembly will just vote to repeal the offending law.

From GRNC:

Congratulate yourselves on applying pressure that has resulted in another GRNC win added to a growing trend of recent pro-freedom victories. As you recall, in the case Bateman v. Perdue, GRNC and SAF won the lawsuit over North Carolina's ban on transporting firearms outside the home during declared states of emergency, resulting in the law being declared unconstitutional under the Second Amendment. Because the state chose not to appeal, the decision stands and our unconstitutional law had to be repealed.

Rather than simply repealing the ban, however, NC Senate staffers apparently ran amok and drafted replacement language which was worse than the original law. But after GRNC issued alerts to tens of thousands of gun owners, your input shut down the committee and forced them to reconsider.

Suffice to say you made quite an impression. Instead replacing an unconstitutional gun ban with yet another unconstitutional gun ban, and even including language to "authorize" your right to bear arms in your home during emergencies, as did HB 489, the SOE gun ban is headed for repeal pending an almost certain floor vote in the Senate and House concurrence. This is what should have happened from the very beginning, and serves as a reminder that we need to remain ever vigilant against anti-gun legislation.

This is good news. More importantly, it emphasizes the need to keep an eye on the state legislature to nip these bills in the bud. Without an organized and aggressive state level organization this might have gone through. If you don't belong to a state level gun rights organization like GRNC, CalGuns, or whatever your state has to offer, you should strongly consider it. The NRA-ILA can only do so much and state-level organizations fill in the gap. Or in the case of organizations like GRNC and CalGuns, lead the way.

WizardPC at Guns, Car, & Tech is assembling a list of these organizations. Check there to find your state's organization if you don't know it already.

UPDATE: Two North Carolina gun bloggers, Knitebane and Mark of a Free Man, have been doing some detective work into just who rewrote HB 489 in an effort to negate the Bateman win. No state senator is taking credit for the substitute language and the chairman of the Senate Judiciary I committee won't identify the author. The person that they come up with makes sense to me. Go here to read the full story. It makes for some interesting reading.

Citizens Committee On HB 489

The Citizens Committee for the Right to Keep and Bear Arms just released an alert on North Carolina's HB 489 and the attempt to overturn the Bateman ruling.

The alert:

BELLEVUE, WA – The Citizens Committee for the Right to Keep and Bear Arms is alerting North Carolina gun owners that state lawmakers are attempting to pass a new “emergency powers” law that may be more restrictive than the one a federal judge just struck down.

House Bill 489, according to Grass Roots North Carolina, would enable cities to restrict firearms rights in the home in emergencies, something they never had the authority to do. Attorney Alan Gura, who represented GRNC and the Second Amendment Foundation in the recently-won federal lawsuit striking down the state’s emergency power to regulate firearms in a declared emergency, says that anyone who tries to enforce a ban on guns under this new legislation would lose qualified immunity.

The legislation, now in the Senate Judiciary I committee, establishes “dangerous weapons restrictions in emergencies.”

CCRKBA Chairman Alan Gottlieb said the new proposal suggests that North Carolina lawmakers responsible for this bill “either simply don’t get it or they are determined to undermine a constitutionally-protected civil right no matter what a judge says.”

“The federal court ruled against this sort of emergency regulation, but the legislature is turning around and trying to pass an even more restrictive law,” he observed.

CCRKBA is urging firearms owners to contact their state senator to oppose the measure.

“Try to adopt bad legislation in an effort to replace a bad law that was struck down by a federal judge is not just bad policy,” Gottlieb said, “it is an egregious abuse of legislative power.”

Update On Attempt To Negate Bateman Win

Grass Roots North Carolina sent out an update this evening regarding the NC Senate Judiciary I committee substitute for HB 489. The proposed language of this substitute would effectively negate the win that Alan Gura secured in Bateman v. Perdue.

The substitute has been pulled from the calendar to give the Judiciary I committee "more time to study the issue." As to why it was even proposed, GRNC speculates that it was legislative staff run amok.

What is becoming clearer, however, is that this might be a case of inadequately supervised staffers running amok. When emergency management bill HB 843 went to the Senate Judiciary I Committee, it still contained the language found unconstitutional in Bateman. Committee chair Sen. Pete Brunstetter then reportedly gave it to staff to “fix.” But instead of simply repealing the now-unconstitutional gun ban, they apparently took it upon themselves to draft new gun bans. Equally clear is that although HB 489 was Rep. “Skip” Stam’s bill, Stam wasn’t even informed that his bill would be gutted before it was attempted.

What remains to be seen is whether Brunstetter and other Republicans will do the right thing and simply repeal the old ban. Right now, too many are still making noises about using gun bans to combat looting during natural or manmade disasters – once again falling for the old trap of targeting lawful guns instead of unlawful behavior.

GRNC is now asking that people contact their state senator (as opposed to the committee members) and make their displeasure known. You can find out your state senator (if you don't already know) by going to this link and putting in your ZIP+4. If you don't know your ZIP+4, you can find it on your driver's license or most any piece of mail coming to your home.

The suggested letter composed by GRNC reads:

Dear Senator:

I strongly urge you to oppose the Proposed Committee Substitute for House Bill 489: “Dangerous Weapons Restrictions in Emergencies” (H489-CSSA-71 [v.4]). The bill would be more accurately titled: “Gun Rights Authorized by Bureaucrats.”

North Carolina’s existing ban on bearing arms outside the home was recently declared unconstitutional under the Second Amendment by a federal court in the case Bateman v. Perdue. But instead of simply repealing what is now a largely unenforceable statute, HB 489 would replace it with an even more insidious ban.

That HB 489’s long title describes “authorizing” arms and ammunition in the home speaks volumes about the bill. Language purporting to restrict cities from banning guns outside the home is vague to the point of being useless; the bill is sloppily drafted; and worst of all, it stipulates for the first time which lawful firearm-related activities I may or may not exercise IN MY OWN HOME.

Understand that I will accept NO NEW GUN BANS, but only the repeal of the state of emergency gun ban found unconstitutional in Bateman.

Please advise me of your position on this issue. I will be monitoring it via Grass Roots North Carolina legislative alerts.

Respectfully,

This is too important an issue to just let other people do it. If you live in North Carolina and you value your gun rights, get off your duff, copy and paste this message into an email, and send it.

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.

North Carolina Will Not Appeal Bateman Ruling

The state of North Carolina will not be appealing their loss in Bateman v. Perdue which found the emergency powers ban on off-premises firearms and ammunition to be unconstitutional. In speaking with Alan Gottlieb at the NRA Annual Meeting, I got the impression that it would be OK with the Second Amendment Foundation if North Carolina did appeal. The rationale is that a win in the 4th Circuit would help to expand Second Amendment rights beyond just the state borders of NC. As it is, while Bateman is a welcome win and will be cited in future cases involving the Second Amendment, it does not carry the same weight as if the ruling came from the Court of Appeals.

The Second Amendment Foundation released the following statement regarding North Carolina's decision not to appeal the ruling.

BELLEVUE, WA – North Carolina’s failure to appeal a federal judge’s ruling that struck down the state’s emergency power to ban firearms and ammunition outside the home during a declared emergency adds one more Second Amendment victory to the court record being established by the Second Amendment Foundation.

“When the anti-gun lobby claims that courts have not struck down any laws on Second Amendment grounds,” noted SAF founder and Executive Vice President Alan Gottlieb, “they deliberately ignore the fact that the District of Columbia’s handgun ban was overturned. Likewise, Chicago’s ban was stricken by McDonald v. City of Chicago, as was the city’s ban on gun ranges. Maryland’s draconian regulations on concealed carry were struck down, and so was the Massachusetts ban on firearms ownership by legal alien residents. Part of Omaha’s registration law was overturned, and now North Carolina’s emergency powers gun ban has fallen.

“All but one of those cases,” he added, “were filed by SAF, and in the Heller case against Washington, D.C.s ban, SAF filed an important amicus brief.”

Gottlieb said North Carolina’s decision not to appeal their loss, “frees the foundation to file more legal actions against cities and states that still have laws on the books that violate our constitutional rights.” There are now at least six federal court victories to SAF’s credit, knocking down laws that infringed on Second Amendment rights, and Gottlieb is confident more are coming.

“The North Carolina case should send a message to other states and municipalities with similar emergency powers laws that violate civil rights that they should remove those restrictions immediately,” he stated.

“I want to thank our plaintiffs, our legal team, our staff and in particular, our members and donors who have made all of these victories possible,” Gottlieb said. “Three of these victories, including Bateman v. Purdue in North Carolina, affirm that the Second Amendment doesn’t stop at your front door, like the gun prohibition lobby claims.

“Winning firearms freedom one lawsuit at a time is a long, slow and expensive process, but SAF is committed to it,” he concluded.

Will Bateman Be Appealed?

Yesterday after the ruling in Bateman et al v. Perdue et al was released, I reached out to the public information officers for Gov. Beverly Perdue (D-NC) and the North Carolina Attorney General's Office for their response. Specifically, I asked if they planned to appeal the ruling and if they had any comment on the ruling. I was fortunate to get responses from both offices.

From Noelle Talley, Public Information Officer, NC Department of Justice:

Attorneys with our office are currently reviewing the judge’s ruling. No decision has been made yet on an appeal.

Meanwhile, Mark Johnson of Gov. Perdue's office had this to say:

Governor Perdue’s executive orders already address this issue – and will in the future – by including the following language:

This order is adopted pursuant to my powers under Article 1 of Chapter 166A of the General Statutes and under Article 36A of Chapter 14 of the General Statutes. It does not trigger the limitations on weapons in G.S. § 14-288.7 or impose any limitation on the consumption, transportation, sale or purchase of alcoholic beverages.

The legislature would have to make any change in the statute.

If one goes by what the Attorney General's Office says, there remains some possibility of an appeal. However, my reading of the response from Gov. Perdue's office seems to indicate that they don't plan any appeal. My feeling is that it won't be appealed.

After the heat that Perdue took over earlier Executive Orders declaring states of emergency, she has started to include the language stated above in her Executive Orders. Unfortunately, until Judge Malcolm Howard found them unconstitutional, any declaration of a state of emergency under Article 36A of Chapter 14 of the NC General Statutes did trigger the firearms prohibitions regardless of what modifying language the governor put in them. While she may have thought she addressed that issue, she did not as there was never a provision to exempt the gun bans on the governor's say-so.

Grass Roots North Carolina On Their Win In The Bateman Case

Grass Roots North Carolina, the other organizational plaintiff in Bateman et al v. Perdue et al, released a statement this afternoon on the decision. The statement notes that it helps to extend the right to keep and bear arms outside the home. They also note that their attorney Alan Gura has extended his string of victories in Second Amendment cases.

Grass Roots North Carolina & Second Amendment Foundation expand gun rights

Lawyer Alan Gura extends string of Second Amendment wins

CHARLOTTE, N.C., March 29, 2012 /PRNewswire-USNewswire/ -- Writing for the U.S. District Court for the Eastern District of North Carolina, Senior U.S. District Judge Malcolm J. Howard today added another to the growing list of gun laws struck down on Second Amendment grounds.

State of Emergency Gun Ban

In Bateman et al. v. Perdue et al., at issue was the state's blanket prohibition on carrying firearms outside the home during declared states of emergency. During numerous states of emergency involving hurricanes and other phenomena, lawful North Carolinians have been prevented from protecting themselves outside the home, including an incident in which King, NC posted the entire town against firearms in anticipation of a snowstorm. Plaintiffs for the case were gun rights organizations Grass Roots North Carolina, the Second Amendment Foundation, and citizens Michael Bateman, Virgil Green and Forrest Minges, Jr.

Second Amendment Scholarship

The Bateman decision further extends the right to bear arms outside the home. Extensively cited in the decision were the recent Supreme Court decision affirming an individual right to keep and bear arms in D.C. v. Heller, the "incorporation" of the Second Amendment in Mc Donald v. Chicago, and recent Fourth Circuit decisions in U.S. v. Chester and U.S. v. Masciandaro.

From the decision:

Citing from Masciandaro: "…the Second Amendment right to keep and bear arms 'is not strictly limited to the home environment but extends in some form to wherever those activities or needs occur.'"

"It cannot be seriously questioned that the emergency declaration laws at issue here burden conduct protected by the Second Amendment…"

"…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."

In addition to the Heller and McDonald victories, attorney Alan Gura recently won a victory against Maryland's restrictive handgun permit law in Woollard et al. v. Sheridan et al.

The Second Amendment Foundation On The Bateman Win

The Second Amendment Foundation, an organizational plaintiff in Bateman v. Perdue, released this concerning the win today. There were those who had suggested that we go through the NC General Assembly to get the Emergency Powers ban changed. Many of us in North Carolina as well as Grass Roots NC and the Second Amendment Foundation opposed that move while this case was still active. I think the judgment of SAF, GRNC, and those who felt it was important to wait for this victory was vindicated with Judge Howard's decision.

SAF VICTORY STRIKES DOWN NORTH CAROLINA EMERGENCY POWERS GUN BAN

For Immediate Release: 3/29/2012

BELLEVUE, WA – A federal district court judge in North Carolina has just struck down that state’s emergency power to impose a ban on firearms and ammunition outside the home during a declared emergency, ruling that the provision violates the Second Amendment right to keep and bear arms.

The case, Bateman v. Purdue, was brought by the Second Amendment Foundation, Grass Roots North Carolina FFE and three individual plaintiffs. Defendants in the case were Gov. Beverly Purdue and Reuben F. Young, secretary of the state’s Department of Crime Control and Public Safety, in their official capacities.

In his opinion, Judge Malcolm J. Howard, senior United States district judge for the Eastern District of North Carolina, wrote, “…the court finds that the statutes at issue here are subject to strict scrutiny…While the bans imposed pursuant to these statutes may be limited in duration, it cannot be overlooked that the statutes strip peaceable, law abiding citizens of the right to arm themselves in defense of hearth and home, striking at the very core of the Second Amendment.”

“When SAF attorney Alan Gura won the Heller case at the Supreme Court,” noted SAF Executive Vice President Alan M. Gottlieb, “the gun ban crowd said that we were a ‘one-trick-pony’ and that we would never knock out another gun law. Well, SAF has now knocked out gun laws in Maryland, Illinois and North Carolina.

“We filed this lawsuit on the day we won the McDonald case against Chicago,” he added, “extending the Second Amendment to all 50 states. This was part of our strategy of winning firearms freedoms one lawsuit at a time.”

Gottlieb pointed to language in Judge Howard’s ruling that solidifies the Second Amendment’s reach outside the home. The judge noted that the Supreme Court in Heller noted that the right to keep and bear arms “was valued not only for preserving the militia, but ‘more important(ly) for self-defense and hunting.”

“Therefore,” Judge Malcolm wrote, “the Second Amendment right to keep and bear arms ‘is not strictly limited to the home environment but extends in some form to wherever those activities or needs occur."

“Under the laws at issue here, citizens are prohibited from engaging, outside their home, in any activities secured by the Second Amendment,” Judge Malcolm wrote. They may not carry defensive weapons outside the home, hunt or engage in firearm related sporting activities. Additionally, although the statutes do not directly regulate the possession of firearms within the home, they effectively prohibit law abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for self-defense. As such, these laws burden conduct protected by the Second Amendment.”

Bateman Is Another Win For Alan Gura

Bateman et al v. Perdue et al was the first Second Amendment case after the win in McDonald. It challenged North Carolina's Emergency Powers statutues. These statutes when invoked by either the Governor or local government officials banned the off-premises carry of firearms and ammunition during a declared state of emergency.

The case has been in the U.S. District Court for the Eastern District of North Carolina since June 2010 and today we have a decision.

From the order by Judge Malcom J. Howard:

IT IS ORDERED, ADJUDGED AND DECREED that the court GRANTS plaintiffs' motion for summary judgment and hereby DECLARES N.C. Gen.Stat §§ 14-288.7. 14-288.12(b), 14-288.13(b), 14-288.14(a) and 14-288.15(d)unconstitutional as applied to plaintiffs. The court DENIES defendants' motion to dismiss or, in the alternative for summary judgment.

In other words, a complete win!

I am in the process of reading Judge Howard's decision and will, of course, have a full summary as soon as possible.

As a North Carolinian, I want to thank Alan Gura and the Second Amendment Foundation for believing in us enough to make this the first post-McDonald case.

Hurricane Irene Brings With It The Usual NC State Of Emergency

Gov. Beverly Perdue (D-NC) issued Executive Order Number 103 today which declares a state of emergency for 39 eastern North Carolina counties due to the approach of Hurricane Irene. The counties are:

Beaufort, Bertie, Bladen, Brunswick, Camden, Carteret, Chowan, Columbus, Craven, Cumberland, Currituck, Dare, Duplin, Edgecombe, Gates, Greene, Halifax, Harnett, Hertford, Hyde, Johnston, Jones, Lenoir, Martin, Nash, New Hanover, Northampton, Onslow, Pamlico, Pasquotank, Pender, Perquimans, Pitt, Robeson, Sampson, Tyrrell, Washington, Wayne, Wilson

As Bob Owens notes, these are essentially all the counties east of Interstate 95. He is also correct in asserting that it invokes a ban on off-premises carry of a firearm in the affected counties due to the provisions of NCGS 14-288.7 which goes into effect when a state of emergency is declared under Article 36A of Chapter 14. I must correct his assumption that it is only that part of a county on the east side of I-95 that is impacted. As the order above states, it is the whole county and not just part of it.

Gov. Perdue invoked the State of Emergency using both sections of the General Statues that deal with emergency management and states of emergency.

Section 7.

This order is adopted pursuant to my powers under Article 1 of Chapter 166A of the General Statutes and under Article 36A of Chapter 14 of the General Statutes. It does not trigger the limitations on weapons in G.S. § 14-288.7 or impose any limitation on the consumption, transportation, sale or purchase of alcoholic beverages.

Bev Perdue is incorrect in her assertions that the declaration of the State of Emergency does not trigger firearm restrictions. As I noted last year when she invoked a State of Emergency in the face of Hurricane Earl, if she uses Article 36A of Chapter 14 of the General Statutes, it invokes G.S. § 14-288.7 which states in part, "it is unlawful for any person to transport or possess off his own premises any dangerous weapon or substance in any area" if a state of emergency is declared. Just because she is the governor does not give Bev Perdue the authority to ignore plainly written state laws when it is politically inconvenient for her.

The relevant section on the declaration of an emergency under Article 36A is § 14‑288.15. This section grants the power to the governor to declare a state of emergency AND to impose further restrictions on firearms and alcohol as enumerated in § 14‑288.12(b) which include:

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;
(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
(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.

I thought Gov. Perdue had learned her lesson giving the uproar over the State of Emergency at the start of last year's dove season. Subsequent Executive Orders 75, 78, and 87 which declared states of emergency had this statement:

This order is adopted pursuant to my powers under Article 1 of Chapter 166A of the General Statutes and not under my authority under Article 36A of Chapter 14 of the General Statutes. It does not trigger the limitations on weapons in G.S. § 14-288.7 or impose any limitation on the consumption, transportation, sale or purchase of alcoholic beverages.

Notice that these Executive Order explicitly noted that they were not adopted under Article 36A of Chapter 14 of the General Statutes. By contrast Executive Order 103 was adopted "pursuant to my powers under Article 1 of Chapter 166A of the General Statutes and under Article 36A of Chapter 14 of the General Statutes."

I don't know whether it was a drafting error in Executive Order 103 that included both Chapter 166A and Chapter 14 or not. I do know that legally - the Governor's proclamation notwithstanding - that the method she chose to invoke her  powers just triggered a ban on the off-premises possession of firearms in those counties named above.

And as we all know, this is the basis of the suit brought by the Second Amendment Foundation and Grass Roots North Carolina against Governor Perdue and Secretary of Crime Control and Public Safety Young. Bateman et al v. Perdue et al is still proceeding albeit too slowly for my tastes!

HB 650 Passes North Carolina Senate

HB 650 which amends various firearms laws and contains the Castle Doctrine passed its 2nd and 3rd Readings last night in the North Carolina State Senate. It is unclear currently whether it was a voice vote or a roll-call vote. This means HB 650 and the Castle Doctrine have passed both houses of the General Assembly. All that remains is reconciling the differences and we in North Carolina will have the Castle Doctrine once the bill is signed by Governor Bev Perdue.

Sean at An NC Gun Blog reports that there is one small amendment dealing with storing firearms in a locked vehicle by a legislator or legislative employee.

Having scanned the entire bill, the repeal of the emergency powers gun ban under Chapter 36A of the General Statutes was not put in this bill as an amendment. As a number of posts since last Thursday have made clear, any such amendment would have mooted Bateman v. Perdue. That case challenged the constitutionality of the ban on off-premises possession of firearms and ammunition during declared States of Emergency.

Citizens Committee Weighs In On S. 594 And Bateman

The open letter sent out this afternoon by Paul Valone has now been slightly rewritten and is joined in by Alan Gottlieb of the Citizens Committee for the Right to Keep and Bear Arms (and the head of the Second Amendment Foundation).

The CalGuns Foundation sent out a tweet to it followers this evening stating that Bateman v. Perdue is of national importance.

URGENT ACTION ALERT

ACT NOW TO PASS CASTLE DOCTRINE & PARKS CARRY

In the shell game characterizing the North Carolina legislative process, a modified HB 650 passed the Senate Judiciary II Committee today and heads for the floor for its Second and Third Readings, quite probably tomorrow. With the legislature likely to recess on Friday, time is short. YOU MUST RESPOND IMMEDIATELY.

In its current version, HB 650 contains Castle Doctrine, parks carry, enhanced concealed handgun reciprocity, improvements to our concealed handgun law, and far more.

Sadly, HB 650 – and your rights – face a threat not from legislators, but from the efforts of an organization ostensibly dedicated to defending the Second Amendment. Below is an open letter to North Carolina gun rights supporters – but equally vital to gun rights supporters everywhere – which explains the problem.

OPEN LETTER FROM PAUL VALONE AND ALAN GOTTLIEB:

IS SB 594 THE RIGHT BILL?

To: North Carolina Gun Rights Supporters

From: GRNC President F. Paul Valone

CCRKBA Chairman Alan Gottlieb

Members of the NRA recently received postcards urging them to call NC Senate leadership in support of Senate Bill 594, described in the postcard as “an emergency powers bill [to] ensure that our Right to Keep and Bear Arms cannot be suspended” during declared states of emergency.

But while North Carolina’s state of emergency law is indeed a problem, SB 594 is the wrong solution. Worse, it seems to be a short-sighted effort by the NRA to grab credit for what some would have you believe to be a victory.

Why? Because it would render moot – and cause the dismissal – of crucial litigation to expand recognition of the Second Amendment in the U.S. Supreme Court. The case is Bateman v. Perdue. Together with the Michael Bateman, Virgil Green, Forrest Minges, and the Second Amendment Foundation, GRNC is working with Alan Gura – the winner of DC v. Heller and McDonald v. Chicago – the cases which led the Supreme Court to affirm the individual right to keep and bear arms.

Although GRNC has made numerous entreaties to NRA representatives to back the Bateman case, they have apparently fallen on deaf ears. Just as the NRA tried to derail the DC v. Heller decision in its early stages through its attempts to repeal the DC gun ban, now it apparently wants gun owners to regard GRNC – the state’s most vocal and effective gun rights organization – as somehow “anti-gun” for realizing that SB 594 is a short-sighted and misguided vehicle to advance gun rights.

Gun rights supporters have two choices:

Help the NRA achieve a narrow, short-sighted win by amending HB 650 or other gun bills to include language from SB 594, the now-dead “state of emergency” bill; or

Help Gura, SAF and GRNC expand the interpretation of the Second Amendment, which will not only render North Carolina’s state of emergency law unconstitutional, but will advance gun rights for everyone, everywhere.

Don't support GRNC. Don’t support CCRKBA. Don't support the NRA. SUPPORT THE SECOND AMENDMENT! And do so by helping Bateman v. Perdue expand your right to keep and bear arms.

Armatissimi e liberissimi,

F. Paul Valone

President, Grass Roots North Carolina

Alan M. Gottlieb

Chairman, Citizens Committee for the Right to Keep and Bear Arms

If you agree with this - and I hope you will - and you live in North Carolina, here is what you need to do:

IMMEDIATE ACTION REQUIRED

• Immediately all your state senator and tell him to pass HB 650 without amendments of any kind – especially to oppose efforts to add the contents SB 594; and

• Immediately e-mail all members of the NC Senate with the message above.

CONTACT INFORMATION

You may find your NC STATE representative by going here:

http://www.grnc.org/contact_reps.htm

To e-mail all members of the Senate, use the following addresses:

Austin.Allran@ncleg.net, Tom.Apodaca@ncleg.net, Bob.Atwater@ncleg.net, Doug.Berger@ncleg.net, Phil.Berger@ncleg.net, Stan.Bingham@ncleg.net, Harris.Blake@ncleg.net, Dan.Blue@ncleg.net, Andrew.Brock@ncleg.net, Harry.Brown@ncleg.net, Peter.Brunstetter@ncleg.net, Debbie.Clary@ncleg.net, Daniel.Clodfelter@ncleg.net, Warren.Daniel@ncleg.net, Charlie.Dannelly@ncleg.net, Jim.Davis@ncleg.net, Don.East@ncleg.net, James.Forrester@ncleg.net, Linda.Garrou@ncleg.net, Thom.Goolsby@ncleg.net, Malcolm.Graham@ncleg.net, Rick.Gunn@ncleg.net, Kathy.Harrington@ncleg.net, Fletcher.Hartsell@ncleg.net, Ralph.Hise@ncleg.net, Neal.Hunt@ncleg.net, Brent.Jackson@ncleg.net, Clark.Jenkins@ncleg.net, Edward.Jones@ncleg.net, Ellie.Kinnaird@ncleg.net, Eric.Mansfield@ncleg.net, Floyd.McKissick@ncleg.net, Wesley.Meredith@ncleg.net, Martin.Nesbitt@ncleg.net, Buck.Newton@ncleg.net, Louis.Pate@ncleg.net, Jean.Preston@ncleg.net, William.Purcell@ncleg.net, Bill.Rabon@ncleg.net, Gladys.Robinson@ncleg.net, David.Rouzer@ncleg.net, Bob.Rucho@ncleg.net, Dan.Soucek@ncleg.net, Josh.Stein@ncleg.net, Richard.Stevens@ncleg.net, Jerry.Tillman@ncleg.net, Tommy.Tucker@ncleg.net, Don.Vaughan@ncleg.net, Michael.Walters@ncleg.net, Stan.white@ncleg.net

DELIVER THIS MESSAGE



In sending e-mails, use the subject line: “Pass HB 650 without amendments”

Dear Senator:

I strongly urge you to vote for HB 650: “Amend Various Gun Laws/Castle Doctrine” and to oppose ANY AND ALL amendments to the bill, however well-intentioned they may appear. The present contents of HB 650 have been voted on — and passed – in various versions by both the Senate and House. The bill’s passage is long overdue.

Efforts to amend gun-related legislation to include the contents of SB 594: “Firearms/State of Emergency” are misguided and short-sighted. Such an amendment would render moot the Bateman lawsuit filed by numerous plaintiffs, including Grass Roots North Carolina and the Second Amendment Foundation, and argued by famed gun rights lawyer Alan Gura, to expand the US Supreme Court interpretation of the Second Amendment.

As always, I will be monitoring your actions via Grass Roots North Carolina legislative alerts

Respectfully,

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.

Bateman v. Perdue - Major Update

Bateman et al. v. Perdue et al was the first case filed after the Supreme Court incorporated Second Amendment rights in McDonald et al v. Chicago et al. The case is a challenge to the State of North Carolina's emergency powers ban on the possession of firearms and ammunition outside of the home during declared emergencies. The City of King, Stokes County, and the State of North Carolina were sued over the firearms and ammunition ban that occurred as a result of an emergency proclamation brought on by a heavy snow storm.

All three defendents filed Motions to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. This motion is for the failure to state a claim upon which relief can be granted. The State Defendents - Gov. Beverly Perdue and Sec. of Crime Control and Public Safety Reuben Young - also filed a Motion to Dismiss for lack of subject matter jurisdiction.

On Thursday, March 31st, Senior U.S. District Court Judge Malcolm J. Howard issued a decision on these motions. He granted the motion to dismiss for the City of King and Stokes County. However, he found that the motion to dismiss for the State Defendents was moot due to their filing a Motion for Summary Judgment.

Judge Howard noted that both Stokes County and the City of King were authorized under NC General Statute § 14-288.12 and § 14 -288.13 to declare states of emergency as well as impose restrictions on firearms during declared states of emergency. He goes on to say that even though they had statutory authority granted by the state, this alone was not enough to state a claim for injunctive relief under 42 USC § 1983.

To impose liability against either Stokes County or the City of King, there must have been some "deliberate action attributable to the [local governmental body]" that is the "moving force" behind a deprivation of the plaintiffs' federal rights. Bd. of County Comm'rs v. Brown, 520 U.S. 397, 400 (1997). Because plaintiffs are challenging only the state statutes and not any ordinance, regulation, policy or custom of either of these governmental bodies, plaintiffs' § 1983 claim against them fails.

Judge Howard then goes on to discuss the State Defendents' motion to dismiss. He notes that since they filed this motion, both the plaintiffs and defendents have filed cross motions for summary judgment. Both the plaintiffs and State Defendents included by reference their arguments for and against dismissal in their Motions for Summary Judgment as well as in their replies.

In light of these circumstances, the court construes the State Defendants' motion for summary judgment as a motion to dismiss or, in the alternative, for summary judgment. The court will rule on the parties' summary judgment motions in due course and in so doing will consider the briefs previously submitted in support and opposition of the State Defendants' motion to dismiss, as well as the parties' summary judgment briefs. The State Defendants' motion to dismiss [DE #29] is DISMISSED as moot.

In summary, Judge Howard granted the motions to dismiss for the City of King and Stokes County. He dismissed as moot the motions for summary judgment for the City of King and Stokes County and the motion to dismiss for the State Defendents. This leaves the motions for summary judgment by the plaintiffs and the State Defendents still remaining.

On a side note, the attorney of record for the State Defendents, Special Deputy Attorney General Mark Davis was replaced by Special Deputy Attorney General Alexander McClure Peters. Mr. Davis has left the North Carolina Department of Justice so could no longer remain as attorney of record.

Mr. Peters has an undergraduate degree in music from UNC-Greensboro and his J.D. from UNC-Chapel Hill. From a Google search on Mr. Peters, it appears that he has been with the NC Department of Justice since sometime in the late 1990s. Since all the motions for summary judgment have been filed by both parties, it probably will mean little that Mr. Davis has left the case.

H/T Krucamm

Brady Campaign Seeks To File Amicus Brief In Bateman Case

From the Brady Campaign:

Brady Center Urges Court to Dismiss Lawsuit Seeking Right to Carry Guns During Riots and States of Emergency

Dec 16, 2010

Washington, D.C. -- The Brady Center to Prevent Gun Violence today filed a brief in federal court in North Carolina urging the court to dismiss a lawsuit seeking a right to take up arms in streets and other public spaces during riots or other emergencies. The lawsuit challenges a longstanding North Carolina law that allows gun carrying on a person’s property but temporarily bars public gun carrying in the vicinity of a riot and during states of emergency.

“The Second Amendment does not grant a right of vigilantes to take up arms on our streets during a riot or state of emergency,” said Paul Helmke, President of the Brady Center to Prevent Gun Violence. “Police and emergency responders seeking to quell a riot or deliver aid during an emergency should not be forced to contend with legally-authorized armed individuals and groups roaming alleys and public streets.”

The Brady Center’s brief argues that there is no right of armed vigilantes to take to the streets during riots or congregate in the vicinity of emergency responders trying to secure a downtown during riots, looting, or terrorist attacks. The prospect of police and emergency responders being powerless to stop bands of armed citizens from taking to the streets during emergencies, looting, or rioting poses a serious threat to the government’s ability to maintain public order and deliver emergency services. If the lawsuit were successful, law enforcement would be unable to detect whether roaming armed individuals or gangs were would-be looters, terrorists, or vigilantes, thus jeopardizing their safety and their ability to respond to states of emergency.

The U.S. Supreme Court recently held that the Second Amendment grants a right to possess a gun in the home for self-defense, but emphasized that this right “is not unlimited” and is subject to “reasonable firearms regulations.” The Supreme Court has held that bans on carrying concealed weapons do not violate the Second Amendment and courts have given the government broad authority to restore order during riots and emergencies.

The lawsuit, Bateman v. Purdue, was filed by the Second Amendment Foundation in the United States District Court for the Eastern District of North Carolina. The Brady Center’s brief was joined by North Carolina Million Mom March Chapters of the Brady Campaign to Prevent Gun Violence and the Religious Coalition For a Nonviolent Durham. The brief was filed by attorneys with the Brady Center and the firm Hogan Lovells US LLP, along with Drew Erteschik of the Raleigh, N.C. firm Poyner Spruill LLP.

To paraphrase Lynyrd Skynyrd -

Well, I heard Ms. Brady sing about her
Well, I heard ole Sarah put her down
Well, I hope Sarah Brady will remember
A Carolina man don't need her around anyhow

UPDATE: David Codrea has some good commentary on this nonsensical press release from the Brady Bunch in his National Gun Rights Examiner column.

Bateman v. Perdue - Gura Files a Motion for Summary Judgment

It is fitting that my 400th post deals with the first post-McDonald decision case - Bateman et al v. Perdue et al - as this blog really started to take off with my post on that case.

On Monday, Alan Gura and Andrew Tripp filed a Motion for Summary Judgment in U.S. District Court for the Eastern District of North Carolina in the Bateman case. They ask that as a matter of law that the Court find North Carolina's state of emergency law violates the Second and Fourteenth Amendments.

I will have a much longer and detailed update on this after I have time to fully read and digest the motion. However, I did want to get the news out that this important new motion had been filed in this case.

Hurricane Earl and North Carolina Law

Bateman et al v. Perdue et al was the first case to be filed after the Supreme Court incorporated the Second Amendment to the states with its decision in the McDonald case. Bateman challenges North Carolina's emergency powers law which makes it a Class 1 misdemeanor to transport or possess a firearm off your own premises. As Alan Gura noted in his complaint, North Carolina is often hit by hurricanes.

As of 11am on Thursday, the National Hurricane Center estimates that Hurricane Earl is approximately 300 miles south of Cape Hatteras, North Carolina. It is a Category 4 hurricane with sustained winds of 140 mph near the eye of the storm. Even if the eye of the storm doesn't make landfall, the outer bands of the storm will have hurricane force winds and these will hit sometime this evening or in the early morning hours of Friday.

Governor Perdue issued Executive Order No. 62, "Proclamation of a State of Emergency by the Governor of the State of North Carolina Due to Hurricane Earl" on Wednesday, September 1st. The order is effective immediately and could last for up to 30 days. The proclamation declares a state of emergency exists. Section 3 delegates her power by Article 36A of Chapter 14 of the NC General Statues to the Secretary of Crime Control and Public Safety "to such further action as is necessary to promote and secure the safety of populace in North Carolina." The Executive Order does not specify that it is limited to certain eastern North Carolina counties such as Dare and Hyde.

NC Gen. Statues Section 14-288-1.10 defines a State of Emergency as follows:

The condition that exists whenever, during times of public crisis, disaster, rioting, catastrophe, or similar public emergency, public safety authorities are unable to maintain public order or afford adequate protection for lives or property, or whenever the occurrence of any such condition is imminent.

NC Gen. Statues Section 14-288-7 bans transportation and off-premises possession of "dangerous weapons":

Transporting dangerous weapon or substance during emergency; possessing
off premises; exceptions.
(a) Except as otherwise provided in this section, it is unlawful for any person to transport
or possess off his own premises any dangerous weapon or substance in any area:
(1) In which a declared state of emergency exists; or
(2) Within the immediate vicinity of which a riot is occurring.
(b) This section does not apply to persons exempted from the provisions of G.S. 14-269
with respect to any activities lawfully engaged in while carrying out their duties.
(c) Any person who violates any provision of this section is guilty of a Class 1
misdemeanor. (1969, c. 869, s. 1; 1993, c. 539, s. 192; 1994, Ex. Sess., c. 24, s. 14(c).)

G.S. 14-269 deals with the carrying of concealed weapons. The only exemptions it provides to those "carrying out their duties" involve law enforcement and military personnel. The holder of a NC Concealed Handgun Permit does not have "duties" and therefore could not be considered an "exempted person" under G.S. 14-288-7.

G.S. 14-288-7 makes no exemptions for recreational shooting, it makes no exemptions for hunting, and it makes no exemption for concealed carry permit holders. If you possess or transport a firearm off your premises during the state of emergency, you will have committed an offense that the state considers a Class 1 misdemeanor. It does not matter that you live in an area that has received no rain, no wind, and no damage from Hurricane Earl.

I predict that on Saturday at noon, unless the state of emergency is lifted, there will be widespread lawlessness occurring across the state of North Carolina as that is the opening of dove season. Furthermore, I understand from another message board that the Louis Awerbuck Tactical Carbine class begins on Saturday in Durham at the Durham Pistol and Rifle Club. One wonders if North Carolina will enforce its own laws with the same rigorousness that Chicago seems to have enforced their gun ban. That is, rarely, if ever. If they do attempt to enforce it, I doubt that there will be enough jail space to hold all of the scofflaws.

UPDATE: The NC Wildlife Resources Commission released this tonight:

FOR IMMEDIATE RELEASE

Dove Season Opens as Scheduled on Sept. 4

RALEIGH, N.C. (Sept. 2, 2010) – Despite North Carolina’s current state of emergency, dove season will open as scheduled at noon on Sept. 4.

After Gov. Perdue declared a state of emergency on Wednesday due to the impending arrival of Hurricane Earl, the N.C. Wildlife Resources Commission received numerous calls from the public asking if dove hunting will be allowed beginning this weekend. The Governor’s Office has informed the N.C. Wildlife Resources Commission that nothing in the current emergency declaration, Executive Order 62, invokes any provision of law that would prohibit lawful hunting activities, including transporting a firearm to and from a hunting location (subject to local emergency ordinances to the contrary). Hunters in coastal areas should stay tuned to local media for the latest updates on Hurricane Earl and related emergency conditions that could affect the safety of themselves or others.

For more information on hunting, visit www.ncwildlife.org.

While the Governor's Office states that nothing in the emergency declaration invokes any provision of the law that would prohibit hunting or transportation of a firearm to and from the dove fields, that is not how the law reads. The law does not say it is at the Governor's discretion to invoke or not invoke a prohibition on the transport or possession of a firearm off-premises. I will note that the Governor's Office gives themselves some wiggle room by saying "subject to local emergency ordinances to the contrary."

It is obvious to me that they are starting to feel some heat. Now if the General Assembly would just get off its duff and do away with the ban totally we wouldn't be in this Twilight Zone situation.

UPDATE II: Grass Roots North Carolina, one of the organizational plaintiffs in Bateman et al v. Perdue et al, released this statement tonight. It looks like their legal counsel agrees with my interpretation of the law.

GRNC Alert 09-02-10:

NORTH CAROLINA GOVERNOR LIES ABOUT STATE GUN BAN

State of emergency order makes criminals of concealed handgun
permit-holders, sport shooters and hunters...

"Even if EO 62 were worded...to expressly permit the possession of
firearms, the governor has no constitutional or statutory authority to
suspend the effect or enforcement of a valid NC criminal law."

The State of Emergency order issued by Governor Beverly Perdue in
response to Hurricane Earl makes carrying a firearm outside one's home
or place of business a Class I misdemeanor. Beyond law enforcement and
the military there are no exceptions: Not for hunters, sport shooters
or concealed handgun permit-holders.

Worse, with the legislature out of session, there is no immediate way
to address the crisis. As NC gun owners are aware, GRNC is among
plaintiffs on a lawsuit against the State of Emergency law, arguing
that it violates the Second Amendment, but legal redress is months, if
not years away.

PERDUE'S LIE

Gov. Perdue's office has been issuing various denials to input about
the gun ban implications of the SoE, but the most blatant misstatement
is this:

"Thank you for contacting the Office of the Governor. After checking
with legal counsel, we are pleased to inform you that THE CURRENT
STATE OF EMERGENCY WAS WRITTEN IN SUCH A WAY THAT THE RIGHTS OF NC GUN
OWNERS ARE NOT INFRINGED UPON. . However, local
authorities still have the authority to establish states of emergency
within their jurisdictions that may impact your right to carry
weapons."

Office of the Governor Bev Perdue

20301 Mail Service Center

Raleigh, NC 27699

1-800-662-7952 (for NC residents only)

919-733-4240

919-733-2120 (fax)

governor.office@nc.gov

http://www.governor.state.nc.us/

THE TRUTH

From GRNC legal counsel Ed Green:

"On Sept. 1, 2010, Governor Perdue issued Executive Order No. 62
declaring "that a state of emergency exists in the State due to the
approach of Hurricane Earl." Nothing in EO 62 mentions gun owners or
the possession of guns in any way. Nothing in EO 62 purports to
suspend the operation of any NC law.

"NCGS § 14-288.7 clearly and unambiguously forbids the possession of
any firearm off one's premises during any declared State of Emergency,
with exceptions only for law enforcement and military in the course of
their duties. Under NC law, whenever a State of Emergency is declared,
no citizen may possess any gun outside of their home.

"Even if EO 62 were worded (or amended) to expressly permit the
possession of firearms, the governor has no constitutional or
statutory authority to suspend the effect or enforcement of a valid NC
criminal law. Once she declared a State of Emergency, Gov. Perdue
legally disarmed all NC civilians outside their own homes, including
the thousands of otherwise legally licensed hunters expected to take
to the fields for the opening of Dove season at noon Saturday."

UPDATE III: A good article by Paul Valone in the Examiner on this. Paul is the president of Grass Roots NC and is the Charlotte Gun Rights Examiner.

Hurricane Earl and the Bateman Case

This news release from Grass Roots North Carolina, one of the organizational plaintiffs in Bateman v. Perdue, helps put the case into perspective. The entire state of North Carolina is now under a state of emergency.

GRNC Alert 09-01-10:

Gov. Perdue's Order Suspends Rights of NC Gun Owners

HIS NAME IS EARL AND YOUR RIGHTS ARE NIL

With the approach of Hurricane Earl, the North Carolina state of
emergency statute (N.C. Gen. Stat. 14-288.7) has once again reared its
ugly head. Gov. Perdue has declared a state of emergency for the
entire state of North Carolina. As a result it is a Class 1
misdemeanor "for any person to transport or possess off his own
premises any dangerous weapon or substance." There is no exception for
recreational shooting. There is no exception for hunting. There is no
exception for having a concealed carry permit. The prohibition applies
to all possession -- open carry, concealed carry and transportation in
a vehicle.

GUESS WHAT SATURDAY IS!

Anybody? That's right... Dove season opens Saturday at noon. Unless
Earl is well past NC and the SoE has been lifted (not likely), every
hunter who doesn't live in the dove field is a criminal.

Following the state of emergency declared this winter in King, GRNC
attempted legislation to solve this problem. Now GRNC is part of the
lawsuit filed against the state of N.C. on this very issue. Attorney
Alan Gura - who won the Heller and McDonald decisions affirming the
Second Amendment as an individual right and overturning the gun bans
in DC and Chicago - helms this case.

Elections have consequences and this November, you have a unique
opportunity to change the landscape of the N.C. General Assembly. Not
only would this allow legislation like that attempted by GRNC to pass,
it will set up a friendlier environment for the redistricting of U.S.
Congressional districts. Remember last time this allowed Brad Miller
to custom design the 13th district just for himself. Elections have
consequences. Make them positive.