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Old March 29, 2012, 02:07 PM   #45
Al Norris
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Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,318
Another win!

In Bateman v. Perdue (NC Emergency Powers firarms prohibition), Judge Howard, Eastern District of North Carolina, has struck down NC's ban on possession of firearms outside during a state of emergency.

Opinion here: http://www.archive.org/download/gov....07258.87.0.pdf

First, the Court held that the 2A claerly applies outside the home when addressing the As Applied challenge:
Quote:
It cannot be seriously questioned that the emergency declaration laws at issue here burden conduct protected by the Second Amendment. Although considerable uncertainty exists regarding the scope of the Second Amendment right to keep and bear arms, it undoubtedly is not limited to the confines of the home. In Heller, the Supreme Court found that the Second Amendment includes ~the right to 'protect [] [onself] against both public and private violence,' thus extending the right in some form to wherever a person could become exposed to public or private violence."
And then this court said this:
Quote:
Applying the Fourth Circuit ' s reasoning in Masciandaro, the court finds that the statutes at issue here are subject to strict scrutiny.

While the bans imposed pursuant to these statutes may be limited in duration, it cannot be overlooked that the statutes strip peaceable, law abiding citizens of the right to arm themselves in defense of hearth and home, striking at the very core of the Second Amendment. As such, these laws, much like those involved in Heller, are at the "far end of the spectrum of infringement on protected Second Amendment rights." Marzzarella, 614 F.3d at 97.

That being the case, the emergency declaration statutes are presumed invalid, and defendants bear the burden of rebutting that presumption by showing that the laws are narrowly tailored to serve a compelling government interest. This[,] defendants have failed to do.
This is the third court to correctly read the 2A protections and the first court to apply Strict Scrutiny.

Having addressed the Plaintiffs "As Applied" challenge and invalidating the laws, the Court does not consider the Facial challenge.

Quote:
For the foregoing reasons, the court GRANTS plaintiffs' motion for summary judgment [DE #44] and hereby DECLARES N.C. Gen. Stat. 14-288.7, 14-288.12(b), 14-288.13(b), 14-288.14(a) and 14-288.15(d) unconstitutional as applied to plaintiffs. The court DENIES defendants' motion to dismiss or, in the alternative, for summary judgment [DE #52]. The clerk is directed to close this case.
This is a big win for Alan Gura and the SAF!

The ruling is pretty tight and should survive appeal, should N.C. decide to go to the 4th Circuit.
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