Imagine If SAF And GRNC Hadn’t Won Bateman

Gov. Roy Cooper (D-NC) today declared a state of emergency that covers all of North Carolina. It was declared in response to the spread of COVID-19 or the coronavirus. As of Monday, there have been seven confirmed cases of it with six of those in Wake County and the seventh in Chatham County. For non-North Carolinians, that is Raleigh and the Pittsboro/Siler City areas.

From NC Office of Emergency Management

Excerpts from Gov. Cooper’s press release:

Governor Roy Cooper took the next step in the state’s coronavirus COVID-19 preparedness plan today and issued an executive order declaring a state of emergency. The declaration activates the Emergency Operations Center to help agencies coordinate from one location and makes it easier to purchase needed medical supplies, protect consumers from price gouging, and increase county health departments’ access to state funds…

Key provisions in the order are similar to those enacted in a natural disaster. The order will help with the cost burdens and supplies that may be difficult for providers and public health to access due to increased demand. It also increases the state public health department’s role in supporting local health departments, which have been tasked with monitoring quarantines, tracing exposure and administering testing.

Executive Order No. 116 in its entirety is found here.

Let’s take a trip down memory lane back to January 2010 when there was a heavy snow storm in the Piedmont of North Carolina. The City of King and Stokes County were particularly hard hit. In response, Gov. Beverly Perdue and both locales declared states of emergency. This automatically triggered then NC General Statute § 14-288.7(a) which provided, in part,:

“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.”

The City of King went further and invoked their powers under NC General Statute § 14-288.12(b). This “forbade the sale or purchase of firearms and ammunition, as well as the possession of firearms and ammunition off an individual’s premises.” It also banned the sale of alcoholic beverages.

Thus, any time a state of emergency covering all of North Carolina or any time a city or county declared a state of emergency, § 14-288.7(a) kicked in and you could not carry a firearm outside your own home. There were no exceptions made for those of us who hold a Concealed Handgun Permit.

Fast forward a few months to June and the US Supreme Court handled down a monumental Second Amendment ruling. That was, of course, McDonald v. Chicago which applied the Second Amendment as an individual right to the states under the 14th Amendment. That was on the morning of June 28, 2010.

By the close of business on June 28th, the Second Amendment Foundation and Grass Roots North Carolina with attorney Alan Gura had filed suit against the State of North Carolina, the City of King, and Stokes County for violating the Second and 14th Amendments. The case, Bateman v. Perdue, using the newly won application of the Second Amendment to the states in McDonald, directly challenged NC’s emergency powers gun bans.

To make a long story short, US District Court Judge Malcom J. Howard, using strict scrutiny found that the emergency powers gun ban did violate the Second Amendment in March 2012.

The problem here is that the emergency declaration statutes, are not narrowly tailored to serve the government’s interest in public safety. They do not target dangerous individuals or dangerous conduct. Nor do they seek to impose reasonable time, place and manner restrictions by, for example, imposing a curfew to allow the exercise of Second Amendment rights during circumscribed times. 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.

Session Law 2012-12 was signed by Gov. Beverly Perdue (D-NC) on June 11, 2012 and became effective on October 1, 2012. This codified the ruling by Judge Howard and repealed NC General Statutes § 14-288.7 and § 14-288.12 through § 14-288.17.

Thanks to Alan Gura, the Second Amendment Foundation, and Grass Roots North Carolina just because seven people have COVID-19 and the governor has declared a state of emergency you can no longer be disarmed. We owe them and the individual plaintiffs a debt of gratitude.