I posted in this thread…
…about something I wrote back around Christmas and posted as a FaceBook note. Since I dug it up anyway, I thought I’d post here…
On Christmas morning I had the opportunity to have a conversation discussing some of North Carolina’s not so carry friendly gun laws. A friend of the family, who is from Minneapolis, has a family member, who over the years has become less and less satisfied with the progressive policies in his current locale, the kind of progressive policies one often finds in many of our states to the north and in particular large urban areas. He has decided that a move to the south, and in his mind a move towards the conservative side of the political spectrum, may be forth coming. In particular, he would like to enjoy the benefits of strong gun rights.
I mentioned to our friend that a move to the south doesn’t necessarily equate a move to a location that has strong gun rights protection as the majority of gun laws are state laws. I used North Carolina, which is often considered a peculiar anomaly in a region that typically DOES have strong right to carry laws, as an example of this. Of course it’s not so peculiar when you consider that North Carolina’s State House has been controlled under a Democrat majority for over a century, and it shows in their gun laws.
In North Carolina a law abiding citizen who has completed an application, under oath, on a form provided by the sheriff’s office, paid a non-refundable fee of $80.00, allowed the sheriffâ??s office to take two full sets of fingerprints for a background check, provided an original certificate of completion of an approved handgun safety course, and provided a release authorizing disclosure to the sheriff of any record concerning the applicantâ??s mental health or capacity may NOT carry his or her handgun:
Into assemblies and establishments where admission is charged. (§14-269.3)
To an extracurricular activity sponsored by a school. (§14-269.2)
Into financial institutions (§14-415.11(c))
To events occurring in public (yes, really…§14-277.2)
Into state parks (15A NCAC 12B .0901)
Into state forests (15A NCAC 09C .1243)
Into wildlife management areas (15A NCAC 10D .0102)
So a law abiding citizen in NC who is interested in protecting his or her family from the violent aggression of the armed criminal element may not carry to a movie theater, a fair, an art show, a chorus concert in a downtown theater sponsored by their child’s school, a bank to cash their check, a visit to a state park, forest or WMA, a local parade, participate in a funeral procession, a picket line, or a demonstration. Because of course violent crime is guaranteed not to happen in any of those locations. And we’re much better off communicating to the armed criminals that private citizens who are to be found in these locations are completed disarmed, helpless and ripe to be victimized. And of course North Carolinans forfeited their right to carry, their right to defend themselves and their families in these locations under the guise of public safety. Ahh yes, progressive policies at their finest. Because goodness knows these folks are much safer being disarmed, well a least the criminals are…just ask this guy. 
But during our conversation about these unfriendly gun laws in North Carolina I forgot one of the worst.
On Christmas Day, North Carolina Governor Bev Perdue placed the state under a State of Emergency, this time because of snow. For those in NC who may not know:
â??NCGS § 14-288.7 clearly and unambiguously forbids the possession of any firearm off one’s premises during any declared State of Emergency, with exceptions only for law enforcement and military in the course of their duties. Under NC law, whenever a State of Emergency is declared, no citizen may possess any gun outside of their home."
After our friend from Minneapolis, laughs his ass off over the idea of the state of NC declaring a State of Emergency because it snowed, he will probably come to the conclusion that this is unfortunate for the law abiding citizens of NC, because a state of emergency is one of those times where one absolutely SHOULD be armed.
After hurricane Katrina, and the fiasco of local law enforcement attempting to disarm the vulnerable citizens of New Orleans, while looting and violent crime was off the charts, and lest we forget, the cases of murder perpetrated by law enforcement officers against the disarmed populace, North Carolina’s gun rights organizations have been trying to repeal this law.
In this most recent election, Republicans took control of the NC State House. Hopefully with this shift from the political left to the right in the NC General Assembly, they will be successful in the next legislative session.
But that point may end up being moot, anyway, because this law may be found void via the judicial and not the legislative system.
In 2008, the SCOTUS ruled in District of Columbia v. Heller that the 2nd Amendment recognizes not a collective right, but an individual one. This put to rest the liberal argument that the militia clause of the 2A indicated a desire by the framers to preserve a collective right. It only took us 217 years to settle that little argument.
It was immediately obvious after the Heller decision that there would be many more cases to follow, at all levels of government, challenging laws that were found to be in conflict with the spirit of the Heller decision…these cases are often referred to as a “Post-Heller” cases.
One of the first post-Heller cases at the Federal level was the 2010 SCOTUS case McDonald v. Chicago, a case that challenged Chicago’s outright handgun ban as unconstitutional as it denied the citizens of Chicago an individual right guaranteed by the 2A, and recently defined by the 2008 Heller decision. This case was important in that it not only ruled that the ban was indeed unconstitutional, but it did so by incorporating the 2A to state and local levels.
If you’re not aware, prior to the 1890’s, the Bill of Rights was only applicable at the federal level, not state or local. Under the incorporation doctrine, most, but not all, provisions of the Bill of Rights now also apply to state and local governments, by virtue of the due process clause of the 14A. Up until this most recent ruling of the McDonald case in June of 2010, the 2A was not incorporated and only applied protections against the federal government.
So it is only after the Heller decision in which the SCOTUS recognized the 2A as guaranteeing an individual right, and after the McDonald decision in which the SCOTUS incorporated the 2A, via the due process clause of the 14A, protecting citizens against state and local governments that on June 28, 2010, the Second Amendment Foundation and three private plaintiffs, represented by Alan Gura, filed suit (Case No. 5:10-cv-265) in the United States District Court for the Eastern District of North Carolina seeking a permanent injunction against North Carolina state, county and local officials from enforcing state laws “forbidding the carrying, possession, sale or purchase of firearms and ammunition during declared states of emergency.”
The case, Bateman v Purdue, is significant because it focuses on carry outside the home and it also specifically addresses ammunition.
Two aspects of the case make it particularly interesting. First, it cites a recent state of emergency that was based on the potential effects of an expected snow storm (“On or about January 30, 2010, Defendant Perdue issued Executive Order 47, declaring a state of emergency throughout the entire state of North Carolina for up to thirty days.”). Second, it cites part of the statute as a basis for overturning the statute (“The need for defensive arms is never more acute than â??during times of public crisis, disaster, rioting, catastrophe, or similar public emergency, [when] public safety authorities are unable to maintain public order or afford adequate protection for lives or property, or whenever the occurrence of any such condition is imminent.â?? N.C. Gen. Stat. § 14-288.1(10).”).
I suspect they will be successful, it is hard to deny the clarity of the Heller and McDonald cases. And let us all hope, for the sake of the law abiding citizens of North Carolina, that I’m right.