A federal judge in North Carolina today struck down that state’s emergency powers ability to ban firearms and ammunition outside the home during a declared emergency in a case filed by Bellevue’s Second Amendment Foundation, and it should send a signal to Washington State, where a similar emergency power exists.
Most interesting is that District Judge Malcolm J. Howard, senior United States district judge for the Eastern District of North Carolina, subjected the state statute to “strict scrutiny,” the highest level of review when a constitutional challenge is made against a law. This appears to subject laws that limit carry outside the home to strict constitutional scrutiny. However, right now, that only applies to the eastern district of North Carolina, where the ruling was handed down, but federal courts pay attention to one another.
Here is the Washington statute:
(1) The governor after proclaiming a state of emergency and prior to terminating such, may, in the area described by the proclamation issue an order prohibiting:
(e) The possession of firearms or any other deadly weapon by a person (other than a law enforcement officer) in a place other than that person’s place of residence or business;
SAF was joined in the case by Grass Roots North Carolina FFE and three individual plaintiffs. Defendants in the case were Gov. Beverly Purdue and Reuben F. Young, secretary of the state’s Department of Crime Control and Public Safety, in their official capacities.
SAF Executive Vice President Alan Gottlieb, in a statement issued Thursday morning, noted that this is significant victory for several reasons. Most importantly, he said the court win it refutes claims by anti-gun groups including the Brady Campaign, that the 2008 Supreme Court ruling that established the Second Amendment as an individual right would amount to a flash in the pan.
“When SAF attorney Alan Gura won the Heller case at the Supreme Court, the gun ban crowd said that we were a ‘one-trick-pony’ and that we would never knock out another gun law. Well, SAF has now knocked out gun laws in Maryland, Illinois and North Carolina.”—Alan Gottlieb
Earlier in the week, SAF suffered a lower court setback in its challenge of gun permit fees and how permits are issued in the City of New York. That was essentially Round 1 in what could be a lengthy battle. Thursday’s victory in North Carolina more than “squares the books” for the week, Gottlieb told this column. He believes SAF will ultimately win on that case, too.
“We filed this lawsuit on the day we won the McDonald case against Chicago, extending the Second Amendment to all 50 states. This was part of our strategy of winning firearms freedoms one lawsuit at a time.”.”—Alan Gottlieb
Judge Howard noted in his 17-page ruling that, “…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,” he said.
Near the end of his ruling, Judge Howard had this to say, which may be most significant of all:
“The problem here is that the emergency declaration statutes, are not narrowly tailored to serve the government’s interest in public safety. They do not target dangerous individuals or dangerous conduct. Nor do they seek to impose reasonable time, place and manner restrictions by, for example, imposing a curfew to allow the exercise of Second Amendment rights during circumscribed times. Rather, the statutes here excessively intrude upon plaintiffs’ Second Amendment rights by effectively banning them (and the public at large) from engagingin 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.”
Gottlieb quipped that it has already been a big year for SAF, and “It’s not even April, yet.” The biggest highlight so far has been the payment, by the City of Chicago, to SAF for legal fees in the McDonald case, which this column discussed.
Anti-gunners who had predicted that Second Amendment rulings would be scarce after Heller will now have to re-think their rhetoric, if Gottlieb’s – and Gura’s – winning streak continues.
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