The Second Amendment Foundation On The Bateman Win

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


For Immediate Release: 3/29/2012

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

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

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

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

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

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

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

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

Bateman Is Another Win For Alan Gura

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

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

From the order by Judge Malcom J. Howard:

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

In other words, a complete win!

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

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

Hurricane Irene Brings With It The Usual NC State Of Emergency

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

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

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

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

Section 7.

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

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

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

The ordinances authorized by this section may permit prohibitions and restrictions:
(1) Of movements of people in public places, including directing and compelling the evacuation of all or part of the population from any stricken or threatened area within the governing body’s jurisdiction, to prescribe routes, modes of transportation, and destinations in connection with evacuation; and to control ingress and egress of a disaster area, and the movement of persons within the area;
(2) Of the operation of offices, business establishments, and other places to or from which people may travel or at which they may congregate;
(3) Upon the possession, transportation, sale, purchase, and consumption of alcoholic beverages;
(4) Upon the possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances, and gasoline;
(5) Upon other activities or conditions the control of which may be reasonably necessary to maintain order and protect lives or property during the state of emergency.

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

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

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

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

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

HB 650 Passes North Carolina Senate

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

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

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

Citizens Committee Weighs In On S. 594 And Bateman

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

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



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.



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:


  • 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.


You may find your NC STATE representative by going here:

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


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


I Respectfully Disagree

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

Thursday, June 09, 2011

Contact Your State Senator Immediately!

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

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

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

Please also call AND e-mail Senate Republican Leadership and urge them to ensure the language in S 594 is amended to other pro-gun legislation.

I have written a great deal on North Carolina’s ban on firearms during declared states of emergency. I have called the Governor’s Office to inquire about the declared emergency at the start of dove season last year and was called a rumor mongerer. I have chastised Gov. Bev Perdue for misstating the law. I have written about the Senate Bill above. No one can say that I have ignored it and want the emergency ban to remain in place.

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

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

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

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

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

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

UPDATE II: I was correct about GRNC recognizing the value of letting the District Court finish the process. GRNC’s leadership sent out this message yesterday to Republican State Senators

To: GOP Senators
From: Grass Roots North Carolina
Re: SB 679, anti-gun effort by Sen. Doug Berger

Ladies and Gentlemen:

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

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

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

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

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

Again, I strongly urge you to oppose any attempt by Sen. Doug Berger to
add State of Emergency language to SB 679.

Senate Bill 679 passed its 2nd and 3rd Reading yesterday without the Emergency Powers amendment. Sen. Doug Berger referred to in the letter is a pro-gun Democrat.

Bateman v. Perdue – Major Update

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

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

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

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

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

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

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

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

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

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

H/T Krucamm

Brady Campaign Seeks To File Amicus Brief In Bateman Case

From the Brady Campaign:

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

Dec 16, 2010

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

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

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

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

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

To paraphrase Lynyrd Skynyrd –

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

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

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

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

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

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

Hurricane Earl and North Carolina Law

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

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

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

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

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

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

Transporting dangerous weapon or substance during emergency; possessing
off premises; exceptions.
(a) Except as otherwise provided in this section, it is unlawful for any person to transport
or possess off his own premises any dangerous weapon or substance in any area:
(1) In which a declared state of emergency exists;
(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:


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

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:


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.


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
authorities still have the authority to establish states of emergency
within their jurisdictions that may impact your right to carry

Office of the Governor Bev Perdue

20301 Mail Service Center

Raleigh, NC 27699

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


919-733-2120 (fax)


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.