Civil Rights

Another Gun Rights Victory from Second Amendment Foundation


A suit organized by the Second Amendment Foundation wins another Second Amendment victory in a federal court in North Carolina. From SAF's press release:

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.

The case, Bateman v. Purdue, was brought by the Second Amendment Foundation, Grass Roots North Carolina FFE and three individual plaintiffs…..

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."

The release crows about the larger significance of this victory, and of SAF's longterm strategy of hitting at bad gun laws, actuated since its important victory in the 2010 McDonald v. Chicago case that extended Second Amendment protections to state and local laws:

"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.

"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."

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."

"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."

That this judge seems to think Second Amendment violations require "strict scrutiny" is another good development. 

The full decision.

Eugene Volokh gets into the legal weeds, stressing the potential importance of this court's scrutiny standard when it comes to the Second Amendment if it becomes the legal norm:

Note that, as is often the case, the application of "strict scrutiny" can be quite rights-protective or not depending on what one understands "narrow tailoring" to mean. If narrow tailoring requires some plausible reason to believe that the law will on balance help prevent crime and injury, then that requirement will very often be satisfied. If it requires social science proof that the law will on balance help prevent crime and injury, then that requirement will rarely be satisfied, especially in situations such as this: There will rarely be solid studies of the effects of this particular kind of law.

And if, as here, "narrow tailoring" requires that the law not "excessively intrude" on rights, then that might be something like a rule of per se invalidation (at least as to very heavy burdens on the right): The premise of such an approach is that, regardless of whether the restrictions will reduce crime and injury, it is still unconstitutional if it interferes with the core of the right, since the constitutional recognition of the right expresses a judgment that the right must be protected despite the threat it may pose to compelling government interests. 

My October 2010 Reason cover story on the McDonald case, and my book Gun Control on Trial on the 2008 Heller case that revived the Second Amendment.

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  1. So, no more Katrina disarmament scenarios?

    1. Not necessarily.

      1. The state will only obey its own laws if armed citizens force them.

        1. LOL

  2. Let’s not overdo it.

    Its not like the judge discarded the unconstitutional balancing tests or anything.

    The language of the 2nd amd. does not admit of any exceptions. As with the decalogue as a whole, the second amendment is not an admonition. Its absolute.

    Thus, fops, freaks and felons have a right to own firemarms.

    The framers understood all too well that there would be those who would raise the doomsday arguments and that is why the language is absolute – as the founders rejected the proposition that there there needs to be reasonable regulation of individual liberty.

  3. Then how the hell can the Peoples Republic of California ban people from open carry and restrict CCW permits to politicians and their cronies in many counties?
    I’m all for states rights, but not when it contradicts the plainly written Constitution.

    1. Don’t worry, SAF and Calguns are working on that…

    2. Then how the hell can the Peoples Republic of California–

      Because to them, all rights are collective. So as long as the California National Guard has its M-16s, then they’re in complaince with the 2nd Amendment.

    3. Lots of libertarians have a problem with the federal judiciary striking down state law which interfer with the exercise of an individual’s rights.

      They tend to forget that the constitution guarantees a republican form of government to each state.

      A hallmark of republican governance is that individual liberty is the raison d’etre of governance and that the only reason any law can be made is in fuirtherance of individual liberty.

      Thus, the real object of republican law making is to stymie socialism and to defeat redistributionist schemes.

    4. They can’t. And there’s a pretty damn good chance CA is going to lose the lawsuit over it.

    5. Because “fuck you, that’s why! BITCH!”

      Duh! How long you been round these parts, sloopy? It’s gummint-till-the-proles-revolt-again-which-they-won’t all the way down!

      Now give me your guns before the nice SWAT tea FLASHBANGBAMBAMBAMBAMBAMBAMBAM!!!!

    6. “ the hell can the Peoples Republic of California ban people from open carry and restrict CCW permits to politicians and their cronies in many counties?”

      Sadly, because the people of california let them.

  4. I finally have a reason to embrace life!

    1. Good, cuz I like reading what you have to say.

  5. Behindertsein ist sch?n

    1. Behindertsein ist sch?n

      Pretty crippled. Your new handle?

  6. May we all gather, bow our heads and recite the second amendment?

    1. Our Father
      Who art John Moses Browning,
      hallowed be thy designs.
      Thy patent come,
      Thy manufacturing be done,
      at Colt and Wilson Combat – as if in heaven.
      Give us this day our 1911.
      And forgive us our failure to regularly clean and care for our weapons,
      as we forgive those who revere the Glock.
      And lead us not into temptation (OK, maybe a little bit for a Les Baer Custom),
      but deliver us from piece of shit cheap knockoffs in .22 cal.
      For thine is the Winchester,
      and the Browning, and the Colt

      For ever and ever.


      1. as we forgive those who revere the Glock.

        Like shellfish, an abomination.

        1. I actually LOVE my Glock 17. But it ain’t no 1911. It just ain’t…

        2. I’ve never owned a Glock.

          I don’t keep ammunition long enough that I need to keep it in Tupperware.

          That said, I’m in the process of migrating from the 1911 to the Tanfoglio (CZ clone) in 10mm. If the CZ was good enough for Colonel Cooper to base the Bren Ten on it, it’s worthy of a good look — especially after seeing Colt 1911 10mms get frame cracks (their solution was to remove the metal where the cracks developed)!

      2. Right in the 10-ring!

      3. Almanian, you are my new hero.

  7. One of the problems facing a true enforcement of the second amendment in our time is the fact that the men who first authored and approved it were the kind of men who would literally take up arms, risk life and limb, and go to war against a world class military power for an idea as ephemeral as liberty. They KNEW the reasons why Americans should always be armed.

    The posers we have running the show today don’t even have a concept for anything resembling the motivation it took for our founding fathers to pull off the feat it took to do this, much less would they personally take up arms for anything less than self preservation – and I see reason to question that many would not even go there if required.

    1. Bingo Tejicano.

  8. Absolutamente, tejicano!

  9. Great sharing.Done superb post.

  10. Man you jsut have to wonder who comes up with all that stuff. Wow.

  11. “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”

    – Ex Parte Milligan

  12. Getting a case going that poses the issue of whether the standard should be strict scrutiny is a pretty big deal.

    The Court has evaded this question so far, but it will be put to them sooner or later.

    Given the current makeup of the Court (much less its probably makeup if Obama wins re-election), I’m not terribly optimistic.

  13. The judge only said that defense of the home was subject to strict scrutiny, and perhaps hunting.

    He included quotes from prior rulings stating that lower standards apply to the 2nd amendment outside the home.

  14. There are regular improvements in the gun protection law, and this is another victory in the legal field.

    legal aid lawyer

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