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.

Will Bateman Be Appealed?

Yesterday after the ruling in Bateman et al v. Perdue et al was released, I reached out to the public information officers for Gov. Beverly Perdue (D-NC) and the North Carolina Attorney General’s Office for their response. Specifically, I asked if they planned to appeal the ruling and if they had any comment on the ruling. I was fortunate to get responses from both offices.

From Noelle Talley, Public Information Officer, NC Department of Justice:

Attorneys with our office are currently reviewing the judge’s ruling. No decision has been made yet on an appeal.

Meanwhile, Mark Johnson of Gov. Perdue’s office had this to say:

Governor Perdue’s executive orders already address this issue – and will in the future – by including the following language:

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

The legislature would have to make any change in the statute.

If one goes by what the Attorney General’s Office says, there remains some possibility of an appeal. However, my reading of the response from Gov. Perdue’s office seems to indicate that they don’t plan any appeal. My feeling is that it won’t be appealed.

After the heat that Perdue took over earlier Executive Orders declaring states of emergency, she has started to include the language stated above in her Executive Orders. Unfortunately, until Judge Malcolm Howard found them unconstitutional, any declaration of a state of emergency under Article 36A of Chapter 14 of the NC General Statutes did trigger the firearms prohibitions regardless of what modifying language the governor put in them. While she may have thought she addressed that issue, she did not as there was never a provision to exempt the gun bans on the governor’s say-so.

Let’s Go To The Audio

North Carolina Gov. Bev Perdue’s press secretary and her enablers in the press want to pass off her anti-democratic remarks yesterday as some sort of a joke. After listening to the audio recording of her statement, I think she was dead serious when she made that statement about postponing elections for two years.

Again, I have to question the mental capacity of any American politician who would make a statement so blatantly and obviously stupid and irresponsible as well as their fitness to remain in office.

It Isn’t Just Gun Rights Bev Wants To Suspend

In what has to be the stupidest political statement of this year or any year, Gov. Beverly Perdue (D-NC) suggested at a Rotary Meeting in Cary that the next Congressional elections be suspended for two years so that “so that Congress can focus on economic recovery and not the next election.”

Her full statement is as follows:

“You have to have more ability from Congress, I think, to work together and to get over the partisan bickering and focus on fixing things. I think we ought to suspend, perhaps, elections for Congress for two years and just tell them we won’t hold it against them, whatever decisions they make, to just let them help this country recover. I really hope that someone can agree with me on that. The one good thing about Raleigh is that for so many years we worked across party lines. It’s a little bit more contentious now but it’s not impossible to try to do what’s right in this state. You want people who don’t worry about the next election.”

Chris Mackey, Perdue’s press secretary, later clarified that she meant it as a joke according to an email sent to The Daily Caller. Some joke.

While I don’t believe Gov. Perdue can be impeached as stupidity isn’t an impeachable offense according to § 123‑5 of the NC General Statutes which details the causes for impeachment, I do question her mental capacity to serve. The North Carolina Constitution speaks to that in Article III, Sec. 3 (4).

Mental incapacity. The mental incapacity of the Governor to perform the duties of his office shall be determined only by joint resolution adopted by a vote of two-thirds of all the members of each house of the General Assembly. Thereafter, the mental capacity of the Governor to perform the duties of his office shall be determined only by joint resolution adopted by a vote of a majority of all the members of each house of the General Assembly. In all cases, the General Assembly shall give the Governor such notice as it may deem proper and shall allow him an opportunity to be heard before a joint session of the General Assembly before it takes final action. When the General Assembly is not in session, the Council of State, a majority of its members concurring, may convene it in extra session for the purpose of proceeding under this paragraph.

That said, we all know the General Assembly isn’t going to a damn thing except huff and puff about it. If I were her opponent in the 2012 General Election, I would keep reminding the voters of that every chance I got so we can send the self-described “the coal miner’s daughter” back to New Bern.

Ace of Spades and Mike Vanderboegh both have some good comments on Perdue’s so-called “idea”.

UPDATE: JammieWearingFool  reports that more criminal charges are expected in an investigation of Bev’s campaign expenses. His suggestion to Bev – Maybe North Carolina’s Democrat Governor Beverly Perdue should suspend her re-election efforts while her campaign is under criminal investigation.

Or maybe she can just declare a statewide State of Emergency and suspend both elections and gun rights.

A Governor Who Takes Concealed Carry Seriously

Unlike Governor Bev Perdue (D-NC) who, despite her protestations, takes concealed carry lightly, Governor Susanna Martinez (R-NM) takes it very seriously. The state of New Mexico requires a refresher course to renew your concealed carry license. This course must include range time.

Gov. Martinez is shown below doing her refresher training. It looks to me that she went over and beyond the shooting requirements. She’s not a bad shot either!

UPDATE: Gov. Martinez passing her refresher course has gotten a lot of press in New Mexico. She qualified with both a .38 Special revolver and a .45 ACP pistol and got perfect scores according to the reports.

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!

GRNC On Signing Of HB 650 By Governor Perdue

As might be expected, Grass Roots North Carolina is very, very happy that the Castle Doctrine was signed by Governor Perdue. Their statement on this is below:

Your Efforts Rewarded

Congratulations! Your calls and emails have proven once again the power you wield. Despite an orchestrated effort by anti-gunners and their associates in the media to depict this bill as dangerous with little public support, HB 650 has been signed into law by Governor Beverly Perdue.

Once it became clear that all our provisions had to be included in one large gun bill, GRNC fought to include Castle Doctrine and Carry in Parks provisions in this bill. Of course none of this would have been possible had GRNC not managed to remove former House Majority Leader Hugh Holliman from his position in the last election. Holliman had blocked Castle Doctrine from coming to a vote for several years. The Parks Carry provision caps an effort GRNC spearheaded dating back to 1997. You – our supporters – have accomplished a vast amount in this one session on the heels of your hard work in the last election.

GRNC rewards cooperation. In this spirit, Governor Perdue has managed to raise her GRNC star rating due to her timely signing of this valuable law.

Thank These People:

Rep. Mark Hilton – 919-733-5988,
Sen. Buck Newton – (919) 715-3030,
Gov. Beverly Perdue – Phone: (800) 662-7952 or (919) 733-2391, Fax: (919) 733-2120,

An Insult To North Carolinians

Yesterday, Governor Bev Perdue announced that she was appointing former U.S. Representative Bob “Who are you?” Etheridge as the new Director of the NC Office of Economic Recovery and Investment.

Nearly 80 percent of the state recovery funds have been dispersed and the money will continue to flow through at least 2012. Projects to date include train station expansions, highway improvements, new water and sewer projects for local governments, historic expansion of the state’s broadband network, funding to keep teacher positions across the state and assistance towards single family home ownership.

In his new position, Etheridge will oversee how the funds are dispersed, ensuring that money continues to be spent in a timely fashion with high accountability, and will make sure the projects under contract are getting done.

For overseeing the administration of the remaining 20% of the “stimulus” funds, Etheridge will be paid $98,500 a year. Of course, this is on top of his pension as a (forcibly) retired Congressman.

Michelle Malkin commented on this appointment saying:

That’s right. Etheridge was booted out of office thanks to the Tea Party movement — which coalesced against the federal porkulus — and now he gets to redistribute porkulus wealth on the public’s dime.

To give this a gun rights related spin, Etheridge’s NRA-PVF ranking was D. His opponent, Rep. Renee Ellmers, was AQ rated and eventually got the NRA endorsement.

Here We Go Again With A State Of Emergency

Here we go again.

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

As most will remember, it was the declaration of a state of emergency by the City of King, Stokes County, and the Governor due to a snow storm which lead to the first post-McDonald case, Bateman et al v. Perdue et al. In North Carolina, a declaration of a state of emergency triggers a ban on off-premises carry of firearms and ammunition. NC Gen. Statues 14§ 288.7 bans transportation and off-premises possession of “dangerous weapons”:

Transporting dangerous weapon or substance during emergency; possessing
off premises; exceptions.
(a) Except as otherwise provided in this section, it is unlawful for any person to transport or possess off his own premises any dangerous weapon or substance in any area:
(1) In which a declared state of emergency exists;
(2) Within the immediate vicinity of which a riot is occurring.
(b) This section does not apply to persons exempted from the provisions of G.S. 14-269
with respect to any activities lawfully engaged in while carrying out their duties.
(c) Any person who violates any provision of this section is guilty of a Class 1
misdemeanor. (1969, c. 869, s. 1; 1993, c. 539, s. 192; 1994, Ex. Sess., c. 24, s. 14(c).)

G.S. 14 § 269 deals with the carrying of concealed weapons. The only exemptions it provides to those “carrying out their duties” involve law enforcement and military personnel. The holder of a NC Concealed Handgun Permit does not have “duties” and therefore could not be considered an “exempted person” under G.S. 14 §  288.7.

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

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

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

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

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

Rumor Mongerer

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

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

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

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

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

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

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

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

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

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