WIN!! Bateman v. Perdue: N.C. Emergency Powers Ban

[Al Norris]

For those following the case, Bateman v. Perdue, an exciting (to me, at least) brief was filed today.

Today, 01-10-2011, Alan Gura has filed his Opposition to the States Motion for Summary Judgment. Go to the docket and scroll down to item #73 to read it.

As you may remember, the 4th Circuit very recently came out with their opinion in U.S. v Chester, in which they sent back to the district court with instructions to look at 922(9) with intermediate scrutiny and demanded the government to justify the Lautenberg Act. Albeit dicta, the Circuit strongly implied that laws that conflict with the RKBA, as regards law-abiding people, the standard would be strict scrutiny. Their opinion is included as an exhibit, here.

With that background in mind, this pleading is priceless! Here are some of the pearls, as I read them...

Whatever else the Defendants might do to regulate the right to carry firearms, they cannot ban the carrying of firearms by law abiding people for the purpose of self-defense when social order has broken down—the absolute core of the Second Amendment’s guarantee.

That was to the State.

To groups like the Brady Center, who believe that even the possession of guns inside the home may be banned, every armed individual is an incipient criminal or at least too unaccountably irresponsible to use firearms. But the Constitution requires the government to make a distinction between law-abiding individuals, who may have guns, and criminals, who may not. And that distinction must be honored wherever the right of self-defense is implicated, even, and indeed especially, during times of public emergency.

Nail? Meet Coffin!

Brady’s proposition of a “reasonable regulation” test is based on the manner in which state courts have allegedly applied analogous state right to arms provisions. ... But having federal courts defer to state authorities on the question of how to best secure a federal constitutional right contradicts the very logic of the Fourteenth Amendment, which was ratified precisely because state courts were not upholding basic civil rights, including the right to keep and bear arms.

Coffin? Meet another nail!

 

[Aguila Blanca]

Attorney Gura is a shining example, but I can't avoid the random thought that he is probably thankful on a daily basis that his opposing counsel are so inept that they seem to consistently hand him "gimmes" on a regular basis. It helps, of course, that he is on the side of the Constitution and that his opponents are trying to circumvent the very document that is the cornerstone of the United States of America.

 

[Eghad]

In Heller was it not stateded that the Second Amendment allowed citizens to own firearms for self defense? The same reasoning was present in the McDonald case.

If the state is saying that they are not allowing firearms to be transported outside the home or property because there is limited law enforcment available. That seems be at odds with both these decisions since the basis for having a firearm is self defense and now the state is saying we will not be able to provide protection to some citizens and we are not going to let you be able to defend yourself.

The argument by Chicago was that the Second Amendment did not apply to the States. The Supreme Court said it applies to the federal government and the States. I do not see any wiggle room for the state there.

So how can the state argue that we are going to limit your right to self defense when we can not provide protection to you in the case of a emergency caused by nature.

That is not an argument I would want to defend in front of the court in light of Heller and McDonald.

 

[Al Norris]

The States court ordered response and MTD is in (see the current 2A cases thread for links).

Chester states that the State bears the burden of showing that the challenged law is constitutional “unless the conduct at issue is not protected by the Second Amendment at all[.]” Chester at * 18 (emphasis added). The obvious implication of this statement is that it is Plaintiffs, not the State Defendants, who bear the burden of satisfying the first prong of the test set out in Chester – that is, proving that a recognized right to carry guns off of one’s property during a state of emergency existed at the time of the Second Amendment’s ratification. Plaintiffs’ Response Brief fails to meet this burden, offering no historical evidence of their own on this question and, instead, incorrectly implying that it is the State Defendants’ burden to do so.

Note the part I underlined. That is twisting the facts to suit your own agenda (that we've never seen before... ).

No... The plaintiffs need only establish that carry, outside the home was recognized at the time of ratification. It is the very act of the statute that offends the right.

But the State does not stop there.

The defendants go on to conflate the English right (predecessor to our own 2A) with its various restrictions, to our own version of the right, "This notion that the right to bear arms was subject to governmental restriction carried over into the common law in America." The State then ignores that the English right to arms was subject to the absolute discretion of the Parliament, while ours was went much stronger in character with the words, "shall not be infringed."

Having set up this straw man, the State quickly knocks it down with, "Not only does the ability to possess a firearm outside of one’s home during a state of emergency not lie at the “core” of the Second Amendment but, in fact, it does not even reside within the Amendment’s outer limits ... that is, the right to possess a gun in one’s home."

Forgive me if I restate the core holding of Heller, the right to possess a gun for self-defense is the "core" holding. The "in the home" portion only answered the question that was asked in that particular case.

Once again, we see (what has become) the standard argument by the various defendants, that your right to self-defense stops at the door to your home.

 

[Al Norris]

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.uscourts.nced.107258/gov.uscourts.nced.107258.87.0.pdf

First, the Court held that the 2A claerly applies outside the home when addressing the As Applied challenge:

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:

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.

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.

 

[Glenn E. Meyer]

Good news! Thanks for the update, Al.

 

[gc70]

This decision is not as broad or as clear as I might have wished, but it does have interesting ramifications.

The decision explicitly recognizes that the scope of the 2nd Amendment extends beyond the home.

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."

Different locales have different levels of scrutiny, as per Masciandaro.

Therefore, a law that burdens the "fundamental" or "core" Second Amendment right -a law abiding citizen's right to self-defense in the home- is subject to strict scrutiny.
...
So, a law that burdens only the right to keep and bear arms outside of the home will survive constitutional challenge upon a lesser showing by the government. (intermediate scrutiny)

The decision is particularly intriguing in the manner in which it arrives at strict scrutiny.

Applying the Fourth Circuit's reasoning in Masciandaro, the court finds that the statutes at issue here are subject to strict scrutiny. North Carolina General Statute § 14-288.7 prohibits the transportation or possession of both "deadly weapons" and ammunition off one's own premises. This prohibition applies equally to all individuals and to all classes of firearms, not just handguns. It is not limited to a certain manner of carrying weapons or to particular times of the day. Most significantly, it prohibits law abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for self-defense.

While it may not be glaringly apparent, this decision recognizes that ammunition -not just guns- falls within the scope of the 2nd Amendment. I would think that this decision would dash the hopes of anti-gunners to tax or regulate ammunition beyond reach.

 

[Al Norris]

Glad you caught all of that, gc70.

Did you also catch that this is an as-applied challenge? This means that for these plaintiffs in these specific circumstances, the law is void.

It will probably take a few other claims in State Courts to completely dissolve these laws (facially). But those are other cases. The legal groundwork has been laid, and it shouldn't too terribly difficult for any others to challenge those statutes.

It also means that the NC legislature can moot further adverse decisions by excising the bans from the law.

Was it all we wanted? No. But it is what we expected.

 

[gc70]

Al, the ruling was more than I expected, even if it was less than I wished for.

It is doubtful that the NC legislature would moot the case. The NC legislature holds its regular session in odd-numbered years (2011); only budget issues and regular session bills passed in one house can be considered in the legislature's short session in even-numbered years (2012). The only way to change the offending laws before the 2013 regular session is for the Governor to call a special session of the legislature. The prospects of a special session are remote because nobody wants one in an election year and the Republican-controlled legislature would not be well-disposed to helping the Democratic Governor and Attorney General pull their irons out of the fire on this issue.

 

[Tom Servo]

This should bolster Woollard quite nicely as well.

 

[Al Norris]

And we thought it was over in North Carolina?

CCRKBA ALERT: N. CAROLINA LAWMAKERS TRYING TO NEGATE BATEMAN RULING​

Friday, May 25th, 2012

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.”

With more than 650,000 members and supporters nationwide, the Citizens Committee for the Right to Keep and Bear Arms is one of the nation’s premier gun rights organizations. As a non-profit organization, the Citizens Committee is dedicated to preserving firearms freedoms through active lobbying of elected officials and facilitating grass-roots organization of gun rights activists in local communities throughout the United States. The Citizens Committee can be reached by phone at (425) 454-4911, on the Internet at www.ccrkba.org or by email to InformationRequest@ccrkba.org.

I would hope this legislation is just pandering to some anti-gunners base and goes nowhere. You folks in NC need to start watching and calling!!

 

[armoredman]

Wow, that's terrible! Need to publicize the names of all the NC politicians who signed off on/are pushing this thing.
Restricting rights in the home, the one place even the Brady Bunch agreed Heller and MCDonald cover...egad. Unelect them.

 

[gc70]

The proposed revisions to the Emergency Powers Ban were ugly. However, the explanation was provided that "What is becoming clearer, however, is that this might be a case of inadequately supervised staffers running amok."

At this point, the revisions drafted by staff have been withdrawn and we will have to see how the issue is addressed with oversight from the Majority Leadership (Republican).

Moreover, revising a law that has been ruled unconstitutional is somewhat a waste of effort when the Senate should be focused on passing a restaurant carry bill passed by the House in the prior legislative session.

 

[maestro pistolero]

We almost want them to try. Without qualified immunity, their posteriors are exposed to significant financial ramifications. (And they really do not want their posteriors ramificated)

 

[Aguila Blanca]

Can someone explain why/how the police would lose qualified immunity if they enforce a newly-written law? As has been noted, any new law is enforceable until a court rules that it's not Constitutional.

 

[Al Norris]

Can someone explain why/how the police would lose qualified immunity if they enforce a newly-written law? As has been noted, any new law is enforceable until a court rules that it's not Constitutional.

In a word - Heller.

The longer explanation is that State actors cannot forbid the use of firearms for self-defense in the home. Under this legislation, such use would have to be "authorized" by local law. The State and local authorities have no power to prohibit nor authorize such use.

Under Bateman, the State and local authorities have no power to prohibit nor authorize the defensive use of firearms in or out of the home. Such a law deprives you of your fundamental right to self defense, under color of law, and is actionable under a section 1983 suit. Any sheriff or other police authority trying to enforce a clearly unconstitutional law would lose any immunity that would otherwise attach.

 

[Spats McGee]

With all due respect, Al, I disagree. Under a QI analysis, the officers will not be expected to make an assessment of the constitutionality of the new laws, or of the interaction between Heller and the new laws. Statutes are presumed constitutional, and LEO trying to enforce the new laws will likely be entitled to QI for operating on that presumption.

 

[JimPage]

I'll be interested in how this plays out. What is QI?

 

[Fishing_Cabin]

Qualified Immunity

 

[Aguila Blanca]

With all due respect, Al, I disagree. Under a QI analysis, the officers will not be expected to make an assessment of the constitutionality of the new laws, or of the interaction between Heller and the new laws. Statutes are presumed constitutional, and LEO trying to enforce the new laws will likely be entitled to QI for operating on that presumption.

That's about what I thought. It's one thing to continue enforcing a law you know has already been ruled unconstitutional. When the legislature subsequently enacts a new law, which they presumably believe WILL be constitutional, I would be surprised if the police would not be protected by QI for enforcing said new law.