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.

Headline of the Day

From The Daily Caller:

Gun-wielding ecoterrorist calls for reduction in human population, gets wish

The article was a short blurb on James Lee who invaded the Discovery Channel HQ in metro DC, took hostages to protest human overpopulation, and then was shot by a SWAT team sniper.

H/T Instapundit

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.

Pure Music to My Ears

I don't know if Johann Strauss would approve of this but I sure do!


H/T The Firearm Blog

A Trifecta in California

As reported in a release from the California Rifle and Pistol Association, three anti-gun bills in the California Assembly were voted down late last night. There was intense pressure on a few members to change their vote but they didn't switch.

•AB 1810(Feuer) – Registration of Rifles and Shotguns
•AB 1934 (Saldana) – Handgun Open Carry Prohibition
•AB 2358 (De Leon) – Ammunition Registration

AB 1810 would have registered ALL rifles and shotguns in the same manner that handguns are currently registered in California.

AB 1934 would have prohibited the open carry of handguns whether loaded or unloaded. There is currently a growing movment among California gunowners to participate in unloaded open carry or UOC. The goal is to normalize perceptions of firearms and those who carry them.

AB 2358 would have "required that ammunition vendors transmit records of sale, information on the quantity and type of ammunition purchased, and the personal information of purchasers collected at the time of sale to local law enforcement if required by city or county ordinance." The sponsor of this bill was the same Assemblyman who was the prime sponsor of AB 962 which requires face-to-face sales of handgun ammunition. The dangerous component of this bill is the last clause - if required by city or county ordinance. This would have allowed politicians in areas such as Oakland, LA, and San Francisco to make life even harder for lawful firearms owners.

Congratulations to our friends in California and to all who worked so hard to defeat these bills including CRPA and CalGuns.

UPDATE: Dirtcrashr at Anthroblogory has more including info on SB250 which mandated spay or neutering of (most) dogs.

Gun Blogs Get the Most Interesting Visitors

Over the past few months I have had some interesting visitors to this blog. I have been honored to see the NRA checks it out from time to time. I have been intrigued to see multiple visitors from the Department of Justice ending up at the blog after doing a Google search on a potential Director of ATF. And today, I got this visitor from Washington, DC:

I don't normally consider this blog as "not safe for work" but I guess it might be if you work for the Brady Campaign. Anyway, welcome visitor from the Brady Campaign. I hope you'll come back again and maybe learn a thing or two about individual liberties and freedom which includes gun rights.

Tackiness

First off, I am a NRA Life Member. You will also find a recruiting button for the NRA on the sidebar of this blog. That said, for Chris Cox and the NRA to claim credit for the win in McDonald v. Chicago is just plain tacky. To not even mention the role of the Alan Gura and the Second Amendment Foundation just compounds it.

Tom Gresham hit on this in his GunTalk radio show on Sunday and he was right. It just doesn't sit right. David Codrea has more in his National Gun Rights Examiner column from yesterday.

In terms of strategic Second Amendment litigation, Alan Gura is a master. He picks his plaintiffs with care and he crafts the case to have a narrow - but winnable - focus. One need only compare his follow-on Chicago case, Ezell v. Chicago, with that sponsored by the NRA, Benson v. Chicago. Ezell is focused solely on the gun range issue. Benson takes more of a scatter gun approach and has already been amended once.

In an ideal world, the NRA would focus on the legislative arena where they are really, really good and leave litigation to the Second Amendment Foundation and Alan Gura. The legislative arena calls for an organization that can be the 800-pound gorilla who must sometimes resort to steamroller tactics. Civil rights litigation requires a deft, strategic approach as the courts are not meant for steamroller tactics. With his wins in the Heller and McDonald cases, Alan Gura and - by extension - the Second Amendment Foundation have shown their great ability in Second Amendment litigation. The NRA is the heavy armored division to the SAF/Gura's Special Forces A-Team. Both are needed to win the war but each should be employed where they will do the most good.