HB 489

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Update On HB 489 – The Effort To Negate The Bateman Win

June 1, 2012 by 3 Comments

Grass Roots North Carolina sent out an update yesterday evening on HB 489. This was the attempt to re-write North Carolina’s state of emergency gun ban that would have negated the win in Bateman v. Perdue. It now appears that all efforts to re-write the gun ban have failed and that the NC General Assembly will just vote to repeal the offending law.

From GRNC:

Congratulate yourselves on applying pressure that has resulted in another GRNC win added to a growing trend of recent pro-freedom victories. As you recall, in the case Bateman v. Perdue, GRNC and SAF won the lawsuit over North Carolina’s ban on transporting firearms outside the home during declared states of emergency, resulting in the law being declared unconstitutional under the Second Amendment. Because the state chose not to appeal, the decision stands and our unconstitutional law had to be repealed.

Rather than simply repealing the ban, however, NC Senate staffers apparently ran amok and drafted replacement language which was worse than the original law. But after GRNC issued alerts to tens of thousands of gun owners, your input shut down the committee and forced them to reconsider.

Suffice to say you made quite an impression. Instead replacing an unconstitutional gun ban with yet another unconstitutional gun ban, and even including language to “authorize” your right to bear arms in your home during emergencies, as did HB 489, the SOE gun ban is headed for repeal pending an almost certain floor vote in the Senate and House concurrence. This is what should have happened from the very beginning, and serves as a reminder that we need to remain ever vigilant against anti-gun legislation.

This is good news. More importantly, it emphasizes the need to keep an eye on the state legislature to nip these bills in the bud. Without an organized and aggressive state level organization this might have gone through. If you don’t belong to a state level gun rights organization like GRNC, CalGuns, or whatever your state has to offer, you should strongly consider it. The NRA-ILA can only do so much and state-level organizations fill in the gap. Or in the case of organizations like GRNC and CalGuns, lead the way.

WizardPC at Guns, Car, & Tech is assembling a list of these organizations. Check there to find your state’s organization if you don’t know it already.

UPDATE: Two North Carolina gun bloggers, Knitebane and Mark of a Free Man, have been doing some detective work into just who rewrote HB 489 in an effort to negate the Bateman win. No state senator is taking credit for the substitute language and the chairman of the Senate Judiciary I committee won’t identify the author. The person that they come up with makes sense to me. Go here to read the full story. It makes for some interesting reading.

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Citizens Committee On HB 489

May 25, 2012 by

The Citizens Committee for the Right to Keep and Bear Arms just released an alert on North Carolina’s HB 489 and the attempt to overturn the Bateman ruling.

The alert:

BELLEVUE, WA – The Citizens Committee for the Right to Keep and Bear Arms is alerting North Carolina gun owners that state lawmakers are attempting to pass a new “emergency powers” law that may be more restrictive than the one a federal judge just struck down.

House Bill 489, according to Grass Roots North Carolina, would enable cities to restrict firearms rights in the home in emergencies, something they never had the authority to do. Attorney Alan Gura, who represented GRNC and the Second Amendment Foundation in the recently-won federal lawsuit striking down the state’s emergency power to regulate firearms in a declared emergency, says that anyone who tries to enforce a ban on guns under this new legislation would lose qualified immunity.

The legislation, now in the Senate Judiciary I committee, establishes “dangerous weapons restrictions in emergencies.”

CCRKBA Chairman Alan Gottlieb said the new proposal suggests that North Carolina lawmakers responsible for this bill “either simply don’t get it or they are determined to undermine a constitutionally-protected civil right no matter what a judge says.”

“The federal court ruled against this sort of emergency regulation, but the legislature is turning around and trying to pass an even more restrictive law,” he observed.

CCRKBA is urging firearms owners to contact their state senator to oppose the measure.

“Try to adopt bad legislation in an effort to replace a bad law that was struck down by a federal judge is not just bad policy,” Gottlieb said, “it is an egregious abuse of legislative power.”

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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.