emergency powers gun ban

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Imagine If SAF And GRNC Hadn’t Won Bateman

March 11, 2020 by 5 Comments

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.

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GRNC Reminds Us What Could Have Been

January 18, 2018 by

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 
(or go to: https://www.grnc.org/join-grnc/contribute) 
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Guntersville Does The Right Thing

February 28, 2013 by 3 Comments

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.

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Update On Attempt To Negate Bateman Win

May 24, 2012 by

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.

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An Attempt To Negate The Bateman Win Which Must Be Stopped

May 21, 2012 by 4 Comments

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:
Ҥ 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.

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North Carolina Will Not Appeal Bateman Ruling

May 8, 2012 by

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.

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Will Bateman Be Appealed?

March 30, 2012 by

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.

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Hurricane Irene Brings With It The Usual NC State Of Emergency

August 26, 2011 by 5 Comments

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!

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Citizens Committee Weighs In On S. 594 And Bateman

June 15, 2011 by

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,

Uncategorized

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

June 14, 2011 by 2 Comments

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.