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Old July 11, 2010, 02:02 PM   #1
gc70
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WIN!! Bateman v. Perdue: N.C. Emergency Powers Ban

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 “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.” N.C. Gen. Stat. § 14-288.1(10).").
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Old July 11, 2010, 03:23 PM   #2
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This lawsuit is an example of several things.

First, it is using the strategy of picking low-hanging fruit. That is, a case that is easy to make and win. Such a strategy sets up several cases, one building upon the ones you've won before. There will be some inevitable loses, however, the fruit that is gathered will make the harder cases, just that much easier to win. It's also called setting precedent.

Next, this was entirely unexpected by the anti-gun factions, who thought (as did many in the gun-friendly world) that New York City would be the next target. Consider your history. Many, during WWII, thought Calais would be the next great thrust - The Allies hit them at Normandy.

I admit that I had thought the same, that NYC would be the next target. What I forgot, was one of my own earlier admonitions, right after Heller was won, to remember the NAACP struggle in overturning Plessy and bringing a successful Brown v. Board of Education.

In a round-about way, both Heller and McDonald argued that the laws in D.C. and Chicago were not "longstanding prohibition" The Sullivan Act will be much harder to argue. It is a longstanding prohibition, that has withstood several legal challenges. We also know that Scalia will not overturn precedent unless he is cornered and cannot write his way out of it.

Hence the cases in CA that are so important. Winning those cases, winning in D.C. (again), winning in Chicago (again), winning in NC, will all set up precedent to help storm the gates of NYC.

There most likely will be other low-hanging fruit that will be sought, before NYC is really targeted. Therefore, the NC case, Bateman v. Perdue, is as important as all the rest.
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Old July 11, 2010, 04:41 PM   #3
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Query: would a state of emergency prohibition be constitutional if limited in scope?


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Old July 11, 2010, 05:33 PM   #4
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A state of emergency should be one of the reasons that the 2nd EXISTS, not one of the reasons to over-ride it!
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Old July 11, 2010, 05:33 PM   #5
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During that 'state of emergency'; what happens to people traveling through NC, who legally entered the state with a handgun while carrying on a recognized permit?

Would they be required to purchase a case to lock up the weapon to follow the law? Would they even know if a state of emergency existed?
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Old July 11, 2010, 06:24 PM   #6
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This whole issue came up during a unusually heavy snow storm. It was a couple feet at once and shut down pretty much all roads etc. A local town mayor, I beleive it was, declared that under the state of emergency declared by our idiot governor Purdue that no one could possess otherwise legal firearms in their car on their person even if had ccw and no stores could sell guns or ammunition. It was a lot of fuss over nothing in one way -- very few people could even get out to travel anywhere but still, it is stupid because a state of emergency is usually when you might need a weapon the most and it infringed on the rights under the 2nd amendment. I hope they win the case against the State and local gov't and I hope we can get rid of this stupid Purdue next election here!
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Old July 11, 2010, 08:08 PM   #7
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Quote:
Originally Posted by Wildalaska
Query: would a state of emergency prohibition be constitutional if limited in scope?
Ken, I know that answering a question with a question is bad form. However one needs to have more information, before one can answer the query.

First, what prohibitions are you thinking of, and what do you mean by, "limited in scope?"
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Old July 11, 2010, 08:21 PM   #8
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This is interesting. I live in NC. I had no idea it would prohibit you from carrying a weapon. I had no idea it would prohibit you from buying ammo. And, I suspect that few of the hardware stores and other outlets where guns and ammo aren't their primary business knew it. In fact I suspect few in law enforcement knew it and if they did I would be surprised if it occurred to them to check anybody because of it. I would imagine it was intended for some other caused state of emergency.
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Old July 11, 2010, 08:39 PM   #9
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No one has mentioned this, but the law in question appears to violate several provisions of the North Carolina state constitution. It could very well be that the federal bench dismisses this case because it might have been more appropriately initially filed in a North Carolina district or appellate court. Right off the bat I can see a clearcut violation of section 30, and possibly sections 7 and 16.

http://statelibrary.ncdcr.gov/nc/stgovt/preamble.htm#I
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Old July 11, 2010, 10:09 PM   #10
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Quote:
Ken, I know that answering a question with a question is bad form. However one needs to have more information, before one can answer the query.

First, what prohibitions are you thinking of, and what do you mean by, "limited in scope?"
I'll rephrase: would a ban on carrying guns outside ones own home or property during a declared emergency pass muster?

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Old July 11, 2010, 10:50 PM   #11
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You gotta remember one thing---The Carolinas are not equipped to deal with snow. 3 inches of snow will shut a town and all it's businesses down. Schools close when the weatherman SAYS it's gonna snow, not when the snow starts to fall. I promise I'm being serious and not being a smart alec. I live in Catawba County just outside of Hickory. They didn't get more than 8 to 10 inches of snow. The law, if read in the Hickory Daily Record correctly, is a town or county ordinance for one county or a couple towns, I don't remember which now. It is not a state law. So, if you were in other parts of our glorious state, you'd be fine. Inside those areas, you could not carry your gun outside your door during the 'state of emergency'. Which on that point, I feel it is absolutely unfair and backward. That, as said before, is when you would be stand the chance to need your gun the most.

Last edited by sixgun67; July 11, 2010 at 10:59 PM.
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Old July 11, 2010, 11:11 PM   #12
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Quote:
Originally Posted by Wildalaska
I'll rephrase: would a ban on carrying guns outside ones own home or property during a declared emergency pass muster?
Carefully crafted carry restrictions during a well defined state of emergency would be as probable to pass constitutional muster as similar restrictions during martial law or curfews. The NC statute appears to give far too much latitude to restrict a fundamental constitutional right on the flimsiest of pretexts.

Many, if not most, of the state of emergency declarations are related to securing state or federal funding rather than a real need to take extraordinary measures to control an area or its population. A state of emergency (without firearms restrictions) was declared in my county after heavy rains in 2008. A couple of creeks overflowed and "the state of emergency paves the way for property owners to receive federal funding for flood damage." The state of emergency was lifted two days later after state officials had inspected the area "to determine eligibility for Individual Assistance for privately owned structure damage."

The NC statute also provides a potentially unique admission that the tools of self defense can be denied when the government is unable to "afford adequate protection for lives or property." That type of contradiction is nearly too good to pass up.
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Old July 11, 2010, 11:30 PM   #13
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Quote:
Originally Posted by Antipitas
Hence the cases in CA that are so important. Winning those cases, winning in D.C. (again), winning in Chicago (again), winning in NC, will all set up precedent to help storm the gates of NYC.
Even if we lose some of the cases, having them in multiple circuits provides an opportunity to quickly take circuit splits to the Supreme Court while we still have a favorable majority. Just the Chicago case (7th), California cases (9th), North Carolina case (4th), and Heller II (in the DC Circuit) give us cases with probable overlap in four circuits.

The sequence and locations of cases convinces me that Levy is a master strategist.
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Old July 11, 2010, 11:51 PM   #14
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Quote:
I'll rephrase: would a ban on carrying guns outside ones own home or property during a declared emergency pass muster?
Very possibly. We still don't know where we are on scrutiny, but even assuming strict scrutiny, a judge could fall back on the old "time/place/manner" test.

A crafty attorney could argue that a ban on carrying weapons outside the home during a time of declared emergency serves a "compelling government interest" in preventing looting. If the tailoring of the ordinance is expected to be narrower, he could say, "well, just during a really bad snow storm" or "when the electricity is expected to be out for more than twelve hours."

It all depends. Anyone know where the 4th Circuit generally stands on 2nd Amendment issues?
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Old July 12, 2010, 12:13 AM   #15
gc70
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Quote:
Originally Posted by Tom Servo
It all depends. Anyone know where the 4th Circuit generally stands on 2nd Amendment issues?
I don't know about "generally" but the court recently reversed and remanded on a Lautenberg disqualification suit (much like Skoien in the 7th). See US v. Chester, No. 09-4084.
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Old July 12, 2010, 07:11 AM   #16
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N.C. has several 'unconstitutional' gun laws...

One example is you must get a permit from your local sheriff to purchase a handgun... either through an FFl or even a private sale.

Where did that come from?.... don't know exactly when the laws came in effect but it sure sounds like something from the Jim Crow days... I doubt that too many black folks went to the sheriffs office and asked for a permit back in the sixties.... actually, I doubt too many do now in a number of counties.

Reminds me of something I just learned because of being caught misquoting Hitler on this forum. The gun laws Hitler and Germany used to restrain decent were not made by the Nazis...but actually were brought about to keep guns out of the hands of the Nazis... figure that one out.

A bad law made to harm your enemies can be used against you down the road.
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Old July 12, 2010, 07:33 AM   #17
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Great.
A good ruling in NC would probably toss Florida's prohibition as well.

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Old July 12, 2010, 08:07 AM   #18
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Quote:
Originally Posted by Wildalaska
I'll rephrase: would a ban on carrying guns outside ones own home or property during a declared emergency pass muster?
In the instant case, given the legislative reasoning, "public safety authorities are unable to maintain public order or afford adequate protection for lives or property,¹" such a law will fail both facially and as applied.

In general however, assuming that the legislature articulated a compelling governmental interest, then such a law would probably withstand facial challenges. As Applied, would be a different game, yes?

The "problem" as I see it, is that until now, the RKBA has not been federally incorporated as a fundamental right, therefore barring such a decision at the State level, legislatures (both State and Federal) passing gun laws have not had to articulate any compelling reasons whatsoever.


¹ North Carolina Gen. Stat. § 14-288.1(10)
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Old July 12, 2010, 09:52 AM   #19
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blume357, you are right about the pistol permits thru the sheriff, but only if buying thru FFLs. Private sales do not require permits at this time, although the state 'strongly urges' individuals to require them, and many do.
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Old July 12, 2010, 09:58 AM   #20
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I think Lautneberg provides an excellent statute to challenge. While it is well established that one can lose some civil rights(voting, firearms, jury duty, hold public office) after a felony conviction. However misdemeanor convictions generally don't result in the loss of civil rights.

Shouldn't a crime that is severe enough to warrant the permanent loss of fundamental rights be a felony?
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Old July 17, 2010, 09:20 PM   #21
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thoughts

Just a thought, since parts of King NC are in both Stokes and Forsyth County, why is only Stokes being sued and not Forsyth?
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Old July 17, 2010, 09:40 PM   #22
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Quote:
Shouldn't a crime that is severe enough to warrant the permanent loss of fundamental rights be a felony?
Perhaps not always even then.

Consider: a guy falls on hard times. He kites a few checks. They add up to just enough of an amount to qualify as a felony. The guy gets convicted and does his time. Once released, he is a law-abiding model citizen.

Does he deserve to be stripped of certain civil rights for the rest of his life? Should he be treated the same as a violent predator? These are questions we've yet to adequately answer.

Regarding the Lautenberg amdnement, we suffered a loss. Basically, the 7th Circuit chose to find the law constitutional on grounds that look suspiciously like interest-balancing. The 4th could decide to act in the same way, arguing that the government's interest in maintaining order during a crisis is "compelling."

(I wonder if attacking the Lautenberg amendment head on might have been a bad idea, given that it's harder to generate sympathy for a plaintiff in such situations.)
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Old July 17, 2010, 09:53 PM   #23
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Quote:
Originally Posted by Tom Servo
The 4th could decide to act in the same way, arguing that the government's interest in maintaining order during a crisis is "compelling."
It might be a bit more difficult for the government to claim an interest in maintaining order when, by statute, the government has admitted to being "unable to maintain public order or afford adequate protection for lives or property." I suspect that may be a factor in the choice of the North Carolina law as Gura's next target.
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Old July 18, 2010, 07:55 AM   #24
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Are you sure about that sixgun67?

that's now how I understood it.

I have a residence in N.C. and would be willing to exercise my rights to buy and sell in NC with private sales if not for how I understand the state law....
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Old July 18, 2010, 08:22 AM   #25
gc70
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From the NC Attorney General's booklet on firearms laws (page #4):

Quote:
This requirement to obtain a permit prior to the transfer of a pistol applies not only to a commercial transaction, typically at a sporting goods store, but also between private individuals or companies throughout North Carolina. N.C. Gen. Stat. § 14-402(a)
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