Alan Gura and SAF File Suit in NC

2 for 2 in the 4th for Gura this month.

gprimr1 said:

Plantiff wins.

NC Statue declared unconstitutional. Strict scrutiny applied.

Click to expand...

Link to decision?

esqappellate said:

Link to decision?

Click to expand...

http://www.mdshooters.com/showthread.php?t=79511

Hopefully the threads will be merged soon

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 clearly 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 [] [oneself] 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."

Click to expand...

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.

Click to expand...

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.

Click to expand...

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.

A great read, a great win. I'll bet NC doesn't appeal this one....it probably isn't worth it to them...

Damn. Fourth Circuit for the win(s).

Let's see the 4th overturn the three winning cases we've had in less than one month. There appears to be a general trend and the previous two were pretty solidly written (I have not read this one in depth yet). Assuming this one is also tight, we'd be looking at three different types of cases all coming to the conclusion outside the home is protected, and each does it in slightly different ways.

The other side basically has one theory to work with. We have many. Wilkinson tried to slow things down in Masciandaro, but he actually made it easier in the long run. By not taking on (and setting) standards for rights outside the home, he left it to the lower court judges and they have all come up with systems he would have hated. Good. Now the defendants got nothing more than hollow words form the 4th to avoid the question unless they cannot avoid it. And Gura is good at making these questions unavoidable.

While it can be claimed that the Weaver talk of "outside the home" was dicta, that can't be claimed in either Woollard or Bateman. These two at least show that the claim in Weaver was not an outlier. Coupled with what the other Judges said about Heller, we can conclude it was not dicta, anymore than the associated writings in Heller

While Bateman wasn't as tight as Woollard, I believe it is good enough to stand up to a challenge, should NC persue it.

Personally? I hope Judge Wilkinson chokes on these.

Patrick said:

Damn. Fourth Circuit for the win(s).

Let's see the 4th overturn the three winning cases we've had in less than one month. There appears to be a general trend and the previous two were pretty solidly written (I have not read this one in depth yet). Assuming this one is also tight, we'd be looking at three different types of cases all coming to the conclusion outside the home is protected, and each does it in slightly different ways.

The other side basically has one theory to work with. We have many. Wilkinson tried to slow things down in Masciandaro, but he actually made it easier in the long run. By not taking on (and setting) standards for rights outside the home, he left it to the lower court judges and they have all come up with systems he would have hated. Good. Now the defendants got nothing more than hollow words form the 4th to avoid the question unless they cannot avoid it. And Gura is good at making these questions unavoidable.

Click to expand...

A very good decision. I bet NC does not appeal as it was not a facial decision. That's a significant downside. It leaves it open as to other people, at least technically.

If only this also overturned Florida's emergency powers gun ban.

I am originally from NC and I am very pleased with this ruling. I have personally been affected by this law on several occasions since Hurricane season typically goes into hunting season and I hunt often. I was so mad that the day I was headed down to go hunting that they declared a state of emergency and ruined my trip. I am very proud to be from NC and I douby seriously that they will appeal this ruling. It was an old law that was just sitting on the books. Thanks SAF and Mr. Gura for getting it fixed. Now I can go hunting without worrying about things.

He didn't rule on the facial side but invalidated the laws in question as applied to a law-abiding person (I think that is where the distinction lies in this case). He's leaving that door open to the state, as well as several others. The chances they take them are small.

As for an appeal, it's dependent on AG Roy Cooper. He's has a pretty bad record when it comes to gun-rights, but has shown a willingness to not rock the boat. He signed an amicus for McDonald to be heard and kinda-sorta keeps a distance from anything the NRA fights hard over. The ILA gave him an 'A' rating in 2008 and people in the state got pissed at them for it.

It'll come down to whether he wants to pick that fight. Given that he is more concerned with the NRA than the SAF, he's going to have to figure out if he can put up with Grass-Roots NC's slam of him to all their people if he appeals. I think there is a decent chance he will. The door is open in the judge's use of the dissent in Masciandaro. There was some picking and choosing there.

I'd watch John Richardson's blog and see what he says about the chances.

From SAF

[FONT=&quot]

[/FONT]

[FONT=&quot]SAF VICTORY STRIKES DOWN NORTH
CAROLINA EMERGENCY POWERS GUN BAN [/FONT]​

[FONT=&quot]BELLEVUE, WA - A federal district court judge in North Carolina has just struck down that state's emergency power to impose a ban on firearms and ammunition outside the home during a declared emergency, ruling that the provision violates the Second Amendment right to keep and bear arms.[/FONT]

[FONT=&quot] The case, Bateman v. Purdue, was brought by the Second Amendment Foundation, 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.[/FONT]

[FONT=&quot] In his opinion, Judge Malcolm J. Howard, senior United States district judge for the Eastern District of North Carolina, wrote, "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."[/FONT]

[FONT=&quot] "When SAF attorney Alan Gura won the Heller case at the Supreme Court," noted SAF Executive Vice President Alan M. Gottlieb, "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.[/FONT]

[FONT=&quot] "We filed this lawsuit on the day we won the McDonald case against Chicago," he added, "extending the Second Amendment to all 50 states. This was part of our strategy of winning firearms freedoms one lawsuit at a time."[/FONT]

[FONT=&quot] Gottlieb pointed to language in Judge Howard's ruling that solidifies the Second Amendment's reach outside the home. The judge noted that the Supreme Court in Heller noted that the right to keep and bear arms "was valued not only for preserving the militia, but 'more important(ly) for self-defense and hunting."[/FONT]

[FONT=&quot] "Therefore," Judge Malcolm wrote, "the Second Amendment right to keep and bear arms 'is not strictly limited to the home environment but extends in some form to wherever those activities or needs occur."[/FONT]

[FONT=&quot] "Under the laws at issue here, citizens are prohibited from engaging, outside their home, in any activities secured by the Second Amendment," Judge Malcolm wrote. They may not carry defensive weapons outside the home, hunt or engage in firearm related sporting activities. Additionally, although the statutes do not directly regulate the possession of firearms within the home, they effectively prohibit law abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for self-defense. As such, these laws burden conduct protected by the Second Amendment."[/FONT]


[FONT=&quot]The Second Amendment Foundation (www.saf.org) is the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. In addition to the landmark McDonald v. Chicago Supreme Court Case, SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; New Orleans; Chicago and San Francisco on behalf of American gun owners, a lawsuit against the cities suing gun makers and numerous amicus briefs holding the Second Amendment as an individual right.[/FONT]






​

[FONT=&quot]< Please e-mail, distribute, and circulate to friends and family >[/FONT]
​

Copyright © 2012 Second Amendment Foundation, All Rights Reserved.

​

[FONT=&quot]Second Amendment Foundation[/FONT]
[FONT=&quot] James Madison Building[/FONT]
​

[FONT=&quot] 12500 N.E. Tenth Place[/FONT]
[FONT=&quot] Bellevue, WA 98005[/FONT]
​

[FONT=&quot]Voice: 425-454-7012
Toll Free: 800-426-4302
FAX: 425-451-3959
email: InformationRequest@saf.org[/FONT]
​

To stop receiving these alerts, send an email to subscriptions@liberty.seanet.com with UNSUBSCRIBE in the subject line.
To ensure your alerts are delivered to your inbox (and not inadvertently diverted to a bulk or junk email folder by spam filters), be sure to add saf_alerts@liberty.seanet.com to your email address book or contact list.
​

Click to expand...

For being considered a pro-gun state, NC always seemed to have some backasswards gun laws IMO

3 for 3 outside the home in 4th circuit district courts. I think it's going to be extremely difficult for Wilkinson to try to 2A two-step either Wollard or Bateman because he's going to risk SCOTUS slapping him down telling him,"You're wrong, but your district courts got it right." Perhaps this trend is enough where he doesn't feel he's out on a limb anymore, or, he just may not be on the panel altogether(hopefully).

As to the gun control history of seemingly gunfrienly Southern states , look back to the history. They were origionaly intended to control the "undesireables". It was assumed that the white christian nonunion people would instantly get their permits and aprovals on the spot.

North Carolina was swamped with an influx of liberals. It's not as conservative as you think.

Abacab said:

North Carolina was swamped with an influx of liberals. It's not as conservative as you think.

Click to expand...

The Research Triangle is just a less expensive version of Berkley, Silicon Valley and various Ivy League school territories. Quite liberal. Georgia is also quite liberal in the urban areas. While both are in The South, neither are necessarily run the way most people would consider historically "Southern". At least, not in the whole. Even Maryland has pockets of Southern-ness.

Proof people move, I guess.


EDIT: For the record, I was born a Yankee and have lived in LA and Silicon Valley. Berkley has great food and California is a terrific place to just be. By the same token I own a backhoe and live on old tobacco land. It's all good. Noting differences between those worlds does not mean I am disparaging either. Each has good and bad.

Thanks for clarifying.

Patrick said:

T and California is a terrific place to just be. B.

Click to expand...

I agree, I have been from one end of California to another, North to South, East to West and it IS a great place to be. But it has become a terrible place to *live* as it is currently terribly governed. The State has squandered the investments made by prior generations. It is living off its legacy and that can't last. And I am very saddened by it.

esqappellate said:

I agree, I have been from one end of California to another, North to South, East to West and it IS a great place to be. But it has become a terrible place to *live* as it is currently terribly governed. The State has squandered the investments made by prior generations. It is living off its legacy and that can't last. And I am very saddened by it.

Click to expand...

Agree 200%.

Wife and I had a great place in Redondo Beach. We loved it. 400 feet to the beach, walking distance to everything we wanted yet still quiet, surrounded by Los Angeles but still not Los Angeles, 15 minutes to LAX, and freaking awesome neighborhood. I learned a long time ago that if you want a 'small town' feel then you need to move to a huge city and find a good established neighborhood. Old place in LA was more Mayberry than Calvert County.

Nothing happened on my street without someone looking out for each other. I left the garage door open - lights on and facing the street - multiple times and never lost jack (bikes, you name it). If I was out of town I had neighbors who would go into my house after a storm to make sure all was 100% - if not, they would freaking fix it. When I moved in, neighbors I never met would stop by for no other reason than to introduce themselves and ask if I needed anything. We would shut down the street for parties and the fire department, police and mayor would show up - not to tase anyone, but just to hang out and hit the frozen margarita machine. Christmas was a party that literally stretched 8 houses and 100 people. I once served 60 neighbors in my upper loft. We'd party at noon on Wednesday. Parties with all kinds of people in all kinds of places, low and high...wandering WeHo on a hot night...good stuff.

People who knock LA don't know the people. The people are routinely awesome. It's the state and city gubbermint that sucks. My home city was not LA, but still in LA County. We lived the CA tax nightmares.

We decided to pull stakes and move when we lost a Constitutional Amendment to spend somewhere between $38 and $60 BILLION dollars on unnamed "infrastructure projects" that were pure give-aways to unions, connected contractors and public employees, all while already facing a budget in the red. And by "Lost", I mean the wife and I voted against it but were over-ridden by the many. Our city was against it, but CA is large. We listed the house two weeks later and accepted an offer in 48 hours. We were gone in 4 weeks.

The market crashed 8 weeks later - banks stopped writing home loans in SoCal for the next year. Countrywide - the biggest lender in California - went under. Our timing was great, but not because we were brilliant. The budget was the proverbial "straw" that combined with a general sense that we wanted to have kids and have them grow up with certain sensibilities that do not exist in LA. We love our LA friends but don't want our kids to grow up like them...? It's complicated and not a knock on LA people, per se.

And the taxes and business regulations.... Crazy. We had no choice but to leave.

Anyway, California is probably the most exquisite state in this nation. I feel privileged to have lived there, from Silicon Valley to Monterrey, to LA to Orange County. I had some days where I woke up and drove to the mountains for snowboarding and then ended the same day at home on the beach in shorts with a Margarita. The Mojave Desert needs to be seen, and while most hit Sequoia you really need to spend two days working into the back lands of Kings Canyon just to spend a few more taking it in. We could hike 900 foot verticals just 15 minutes from home and rock-climb 100 foot cliffs on a beach in Malibu literally hanging by two fingers over the water. The geography is amazing.

Anyway, we really miss the place but won't move back. We hope our kids learn to love it (someday) for a short spell, but honestly the chances of it being fixed in a structural sense are small. As much as we love Maryland (we do), we'd take our old home in LA in a flash. Only if...


Anyway, thread drift over. Sorry 'bout that.

Gene Hoffman of CalGuns does good things. He's got bigger membership but also immensly bigger challenges than Maryland does. I have a feeling we'll be solidly shall-issue (meaning: argument over) before California, but this is not a knock on the CalGuns folks. Their shit is solid. Happenstance puts us in a slightly better place, where ironically their work benefits us faster than it does them. If you ever meet Gene or Brandon or the other CalGuns leaders, please buy them a drink or two.