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)

Guntersville Does The Right Thing

Guntersville, Alabama Mayor Leigh Dollar had proposed a change to the emergency ordinances of that city that would have allowed law enforcement to disarm residents. Mayor Dollar said it was to protect officers in the aftermath of an emergency such as the 2011 tornadoes.

While most of the ordinance was sensible and provided for the mayor to act without council in the aftermath of a disaster, it was the sixth of seven sections that caused the uproar. That was the section that allowed any law enforcement officer to disarm residents for the protection of the officer or other individuals. If someone was brandishing a firearm in an unsafe or threatening manner, Alabama law already gave an officer the authority to disarm them - and to arrest them.

I think Mayor Dollar was genuinely surprised by the outpouring of opposition to the ordinance caused by that section of the law. She quickly issued a statement saying her intent was not to disarm people and undermine the Second Amendment.

"As Mayor, I can say there is absolutely no intent to undermine the right to bear arms. I live in a house full of hunters and I am a strong supporter of the 2nd Amendment, as are all members of the City Council.

“The City’s intent was never to 'disarm our citizens or seize firearms'. The purpose is for the City to be able to respond in a timely manner in the event of a disaster which we hope never happens. However, after April 27, 2011, we know what can easily become a reality.

"The entire proposed local ordinance follows the state emergency ordinance, and the section related to firearms follows existing state statutes. That section was included so public workers and volunteers helping during a state of emergency are protected from someone causing harm or potentially causing harm. In no way is this ordinance trying to infringe upon anyone’s constitutional rights."

 Yesterday, the Guntersville City Council had a special meeting and voted to withdraw the ordinance in its entirety from consideration. The whole meeting lasted probably less than five minutes. According to one report, Mayor Dollar said "This entire council is a strong proponent of the Second Amendment. We all own guns."





We in my home state of North Carolina had to go to US District Court to secure our right to be armed in defense of home and family during an emergency. So I am pleased Mayor Dollar and the Guntersville Council did the right thing when they realized the magnitude of their actions. If this story has a moral, it is that about the power of social media to alert and activate opposition to threats to our rights. It doesn't always work but in this case it succeeded beautifully.

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.

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!

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,

An Open Letter From Paul Valone, President Of Grass Roots North Carolina

F. Paul Valone, President of Grass Roots North Carolina, just sent out this open letter regarding SB 594, HB 650, amendments, and the emergency powers gun ban. It shouldn't come as surprise that I agree 100% with Paul on this if you have read this blog for more than a week.

I am a Life Member of both the National Rifle Association and of the Second Amendment Foundation. I also belong to Grass Roots North Carolina. As Paul says, this isn't about the NRA or GRNC. I'd also add in the Second Amendment Foundation. It is about being smart and not-short sighted. We are in a Long War to regain our freedom and our God-given rights to protect ourselves and our families. We lost these rights bit by bit and now must win them back bit by bit. Among the tools we need to win are legal precedents. A case that gets mooted never becomes a precedent.

OPEN LETTER FROM PAUL VALONE:

IS SB 594 THE RIGHT BILL?

To: North Carolina Gun Rights Supporters

From: GRNC President F. Paul Valone

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 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

I would also urge you to read Sean Sorrentino's post that went up this afternoon entitled More Respectful Disagreement. It is an excellent post and I think his ideas are on the mark.

We Must Agree To Disagree

Sebastian at Snowflakes In Hell had a post yesterday in which he disagreed with my opposition to a bill in the North Carolina State Senate, S. 594, which would have amended North Carolina's emergency powers.

The bill introduced by Senators Doug Berger (D-Franklin) and Andrew Brock (R-Davie) would have allowed the possession of firearms during a declared state of emergency. As I said then and I will say again on the face of it this is a good thing EXCEPT that it would have mooted the Second Amendment Foundation/Grass Roots North Carolina's case Bateman et al v. Perdue et al. I hold that getting a good legal precedent in a court battle can often times trump getting a bill passed in a legislature for long lasting impact.

Sebastian holds that "if you're presented with the shot, take it" or in other words, go with the certainty of the legislative victory as opposed to the uncertainty of the courts. This presupposes that it was a lock that the North Carolina General Assembly would pass an act amending Chapter 36A of the General Statutes. The major gun rights bills this session included the Castle Doctrine (passed), firearms in parks (passed), concealed carry in restaurants that serve alcohol (passed in the House), an omnibus bill that would improve concealed carry (passed with amendments in the House), and the emergency powers act changes (stalled in committee). Of all of these bills, I would have to say that the Castle Doctrine was the most important and it was passed.

I did not see any major public movement on S. 594 by either the NRA or Grass Roots North Carolina until the end of the session. It is my feeling that GRNC would have pushed for passage of S. 594 without the wise counsel of their attorney and the Second Amendment Foundation. By not pushing for it - and actually opposing it at the end of the session - that organization showed its growing maturity as a gun rights organization. By this I mean they were willing to play the long war and sacrifice the temporary gains of a bill for the longer term impact of an opinion.

Anthony Roulette, NRA-ILA State Liaison for North Carolina, commented on Sebastian's blog that I was mistaken about the NRA's rationale for pushing S. 594 at the end of the session. I will do him the courtesy of reprinting his comments here.

Mr. Richardson:

I appreciate that you have a right to your personal opinions regarding the NRA efforts on Senate Bill 594, but you are incorrect. The NRA has been pushing for a legislative fix to the problem of gun rights and a declared State of Emergency for many years. The NRA has been pushing for legislation in Congress and the states to prohibit gun confiscation during states of emergency almost immediately after Hurricane Katrina, and has succeeded in enactment of such statutes at the federal level and in 31 states.

In 2009, the NRA supported North Carolina House Bill 257 that sought to correct this problem:

http://www.nraila.org/Legislation/Read.aspx?id=4496

If you have been following NRA-ILA alerts this year, you will note that NRA has been “publicly pushing it from the start.” Here is our alert from April 15:

http://www.nraila.org/Legislation/Read.aspx?id=6634

It was mentioned again on April 22: http://www.nraila.org/Legislation/Read.aspx?id=6670

Unfortunately, it was not until last week that the NRA was informed by Senate Republican leadership that S 594 would not be brought up for consideration. That is the reason for our recent push, and it has nothing to do with your speculated reason.

Sincerely,

Anthony Roulette
North Carolina State Liaison
NRA-ILA

House Bill 257 from the 2009 session referred to above was supported by Grass Roots North Carolina as they made clear in their Alert from February 27, 2009. Why the change from then to now? McDonald v. Chicago. That win brought the Second Amendment to the states through incorporation and with it a whole new valid way to advance gun rights.

My training in political science reflects two divergent schools of thought. As an undergraduate, I was trained in the classical or legalistic approach to government with heavy emphasis on constitutional law and the structure of governmental institutions. As a graduate student at Chapel Hill, I was trained in the behavioral approach to political science which is the polar opposite of the classical approach. It is heavy on quantitative measurement and studying the actual behavior of political actors. In other words, what they do as opposed to what they say.

If one takes Mr. Roulette at his word that it was not their intention to moot Bateman, the impact of S. 594 passing would still have the same impact. Bateman would be mooted because the underlying case or controversy no longer existed regardless of whether or not this was the NRA-ILA's intention. Thus, from a behavioral standpoint, their actions, if successful, would have mooted Bateman and screwed one of their critics, attorney Alan Gura, for good measure.

And they would have been able to say they got the Emergency Powers ban done away with. From a bureaucratic standpoint how much better could that have been - they get the glory, their critics are diminished, and a threat to their power is removed.

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.

Bill Introduced In NC Senate To Protect Gun Rights During State Of Emergencies

Senators Doug Berger (D-Franklin) and Andrew Brock (R-Davie) have introduced S. 594 in the North Carolina Senate. The bill introduced on Thursday would allow the possession or transport of a weapon during a state of emergency. The bill would also prohibit the enactment of any directive, proclamation, or local ordinance that would the confiscation or seizure of legally owned and possessed firearms during any declared state of emergency. Finally, the bill would prohibit the imposition of "additional restrictions or prohibitions upon the possession, carrying, transportation, sale, purchase, storage, or use of otherwise lawfully possessed firearms, ammunition, or ammunition components."

This bill goes to the heart of the restrictions on firearms contained in NCGS § 14-288 which are now being challenged in U.S. District Court for the Eastern District of North Carolina in Bateman et v. Perdue et al.

In what is obviously unintended timeliness, Central North Carolina was hit by very severe storms today including tornadoes. These storms are responsible for the deaths of 17 across four states including at least seven in North Carolina. The Raleigh News and Observer is reporting that three people were killed in a mobile home park in Raleigh, another three were killed in Bladen County, and one person was killed in Cumberland County.

Gov. Bev Perdue has not yet declared a state of emergency. She is reported to be out of state on personal business. However, Wake and Cumberland counties have both declared states of emergency as has the City of Fayetteville. The power of municipal and county governments to declare states of emergency is found in NCGS § 14-288.12 through 14-288.14.

Please keep the people of central North Carolina in your thoughts and prayers. Tornadoes are a rare occurrence in North Carolina and we aren't prepared for them like residents of tornado alley with storm cellars and safe rooms. On a side note, a couple of well-known gun bloggers, Bob Owen (Confederate Yankee) and Sean Sorrentino (A NC Gun Blog) live in the Raleigh area.

UPDATE: The damage from the storm in terms of lives was much worse that I previously reported. The N&O is reporting 22 deaths from the tornadoes including 11 in Bertie County. Sean's personal report on the storm is in the comments below.

Governor Perdue declared a state of emergency due to the storm and it can be found here. Executive Order No. 87 enacts the state of emergency under powers granted to the Governor under Chapter 166A of the North Carolina General Statutes. Unlike, declarations enacted under Chapter 36A, Section 14, this does not prohibit the possession of firearms.

The text of S. 594 is embedded below.

NC SB 594v1

Another Snow Storm, Another State of Emergency For NC

WRAL-Raleigh is reporting that Governor Beverly Perdue has declared a state of emergency for North Carolina.

Gov. Beverly Perdue declared a state of emergency for North Carolina Monday to mobilize resources to respond to snow and ice forecast across the state.

Snow fell across parts of western and central North Carolina around dawn, and areas along the coast and south of Fayetteville saw some accumulation, but the Triangle was still waiting for flakes at 2 p.m.

There is nothing yet on the Governor's website as to the wording of the Executive Order declaring the state of emergency. The state of emergency declared on Christmas Day by Lt. Governor Walter Dalton was only under the authority of the North Carolina Emergency Management Act and did not invoke the restrictions on firearms off-premises. That was the first state of emergency declared during the Perdue administration that did not invoke state of emergency restrictions on firearms.

I have hope that she has learned her lesson regarding snow storms and restrictions on firearms.

UPDATE: It looks like the Governor has learned her lesson. The text of Executive Order No. 78 includes this:

Section 7.

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.

Update On NC's State of Emergency

The Governor's Office finally posted the Executive Order declaring a State of Emergency due to the heavy snow received. It was declared by Lt. Governor Walter Dalton on Christmas Day under the powers granted to him when the Governor is out of the state. It notes that he did this only after consulting Governor Bev Perdue.

Where this order declaring a State of Emergency gets interesting is that it is declared pursuant to the powers vested in the Governor under N.C. General Statutes Article 1 of Chapter 166A. This is the North Carolina Emergency Management Act of 1977. An emergency declared in this manner does not trigger the prohibition on the off-premises possession of firearms and ammunition unlike NCGS 14 § 288.15.

The Executive Order makes specific note that:

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.

The previous six States of Emergency declared by Governor Perdue were pursuant to both Chapter 166A (Emergency Management Act) and Article 36A (NCGS 14 § 288.15). The latter is what triggers the ban on firearms off-premises.

When Governor Perdue declared a State of Emergency prior to Hurricane Earl in Executive Order 62 on September 1st, she insisted that it did not impact the possession of firearms off-premises as that would have interfered with the start of dove season. The wording of the current Executive Order with specific references to Article 36A gives lie to that assertion.

In Executive Order 62, Governor Perdue delegated all powers and authority to the Secretary of Crime Control and Public Safety that had been granted to her by Chapter 166A and Article 36A of Chapter 14. It did not specifically mention NCGS 14 § 288.15 but that would have been included under Article 36A of Chapter 14.

It looks like someone in Raleigh must finally be getting the message about gun bans during a state of emergency. One can only hope that the newly elected Republican majority in the North Carolina General Assembly will amend the law to prohibit gun bans during emergencies.

Here We Go Again With A State Of Emergency

Here we go again.

North Carolina Lt. Gov. Walter Dalton declared a state of emergency on Christmas Day for the entire state. He did this after consulting with Gov. Beverly Perdue. The state of emergency was declared due to heavy snow. News reports don't detail why it was the Lt. Governor who made the declaration and not the Governor. While it is not specified, I am presuming that this state of emergency was declared under authority granted by NCGS 14§ 288.15. Neither the Governor's nor the Lt. Governor's website has posted the actual Executive Order declaring the state of emergency.

As most will remember, it was the declaration of a state of emergency by the City of King, Stokes County, and the Governor due to a snow storm which lead to the first post-McDonald case, Bateman et al v. Perdue et al. In North Carolina, a declaration of a state of emergency triggers a ban on off-premises carry of firearms and ammunition. NC Gen. Statues 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.

Back in September when a state of emergency was declared due to anticipated problems from Hurricane Earl, the Governor's Office declared that they had structured it so that it would not invoke the ban on off-premises possession of firearms. As I said then and I will say now, nothing in the law allows the Governor (or Lt. Governor) to arbitrarily decide which part of a law will be valid or not.

Since coming into office in January 2009, Governor Bev Perdue has declared seven states of emergency. Three have been snow or winter storm related, three have been due to tropical storms or hurricanes, and one was due to a rockslide which closed Interstate 40 in Haywood County.

It is interesting to contrast her use of state of emergency powers with that of her predecessor Mike Easley. In his eight years in office, Easley declared 25 states of emergency. Most of Easley's declarations were combined with declaring a state of disaster and, more importantly, were limited to the locale where the problem existed. They did not extend statewide. The exceptions were the back to back years of multiple major hurricanes hitting the state in 2004-2005. Finally, he only declared a state of emergency due to snow once in those eight years.

All I can say is that if you are carrying concealed or are traveling with a firearm in your vehicle, be careful.

UPDATE: See my post on the Executive Order proclaiming a state of emergency.

Rumor Mongerer

I guess that is what I am according to the people in Gov. Beverly Perdue's office. I had called this afternoon to ask when the declared state of emergency would be lifted.

The young lady who answered the phone didn't know exactly but was sure it would be in effect for a few more days. She asked if I lived in coastal North Carolina and was I affected by the storm. I replied no but I was concerned about it due to the impact of the declaration on my ability to be transport or possess a firearm outside the home.

She immediately got defensive and flustered. The position of the Governor's Office was that the state of emergency did not ban this because it wasn't a riot. She was adament that Chapter 14, Section 288 of Article 36A only dealt with riots. Actually it is entitled "Riots and Civil Disorders". She pointed me to the Governor's Office Blog for a release by Chris Mackey, Gov. Perdue's press secretary, as if it were the definitive word on this:

We've received a number of questions about dove hunting season. Executive Order 62 did not trigger the provisions of G.S. 14-288.7 and there was never any intention by the issuance of Executive Order 62 to restrict the transportation or possession of off premises firearms. The order was written in such a way that the rights of North Carolina gun owners were not infringed upon.

I'm sure the pronouncement of a press secretary will go over really well when you try to use it as a defense in criminal court.

The young lady in the Governor's Office did opine that she wished those spreading the "rumor" about the impact of the Executive Order would stop. The only problem is that the law reads the way it does and not the way the young lady, the Governor, or her press secretary would like it to read.

The entirety of Chapter 14 of the NC General Statutes can be found here. I would encourage readers to scan the statutes beginning at § 14‑288.1. Definitions. and continue through § 14‑288.20. Certain weapons at civil disorders. Much of this section does indeed deal with riots and I won't disagree about that. However, if you read carefully you will see the words "catastrophe", "storm", "fire", "flood", and "calamity."

G.S. 14‑288.7 does not discriminate between storm and riot if an emergency has been declared. It does not read "in an area in which a state of emergency exists; AND, Within the immediate vicinity of which a riot is occurring." The two clauses are connected by OR which means that they are independent clauses and either will trigger the prohibition on transport or possession off-premises.

Where I think the Governor's Office has it wrong is that they assume she must specifically invoke the provisions of G.S. 14‑288.12.(b)(4) which prohibits "the possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances, and gasoline" to impose restrictions on the possession and transportation of firearms. Actually, the declaration of the state of emergency triggers the lesser restrictions on possession and transportation and G.S. 14‑288.12.(b)(4) allows the Governor or local officials to go over and beyond that.

If excellent attorneys such as Alan Gura, Kearns Davis, and Andrew Tripp read the law this way - and they do - then I don't think I'm off base in my statement of the facts regardless of what Bev Perdue and her minions may think.

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.