Bateman Decision on Emergency Weapon Restrictions: Legislative Response Step 1

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Norma Houston

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In my last post (here), I summarized the recent federal court ruling on the 2nd Amendment challenges brought against restrictions on dangerous weapons that can be imposed by local governments during a declared state of emergency.  Yesterday, the State Senate took the first official step in the legislature’s response to the court’s decision.

As a quick reminder of the issue, North Carolina law authorizes cities and counties to impose restrictions and prohibitions during a declared state of emergency on the “possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances, and gasoline.” (G.S. 14-288.12(b)(4)) “Dangerous weapon” is broadly defined and includes firearms such as handguns, rifles, and shotguns.  (G.S. 14-288.1(2)).  The statutes authorizing these restrictions were found unconstitutional as applied to the plaintiffs in Bateman v. Perdue (No. 5:10-CV-265-H (E.D.N.C. filed Mar. 29, 2012).  As a result, while local governments still have the legal authority to impose restrictions on dangerous weapons during a declared state of emergency, those restrictions cannot infringe on core 2nd Amendment rights.

During yesterday’s Senate Judiciary I committee meeting, the committee approved the Senate version of House Bill 843, a comprehensive rewrite of the state’s emergency management act.  The bill included an amendment to the dangerous weapons restriction authorization at issue in the Bateman case.  While the authorization to impose restrictions and prohibitions on dangerous weapons was retained, that authorization excludes “lawfully possessed firearms or ammunition.”  Firearms are defined as handguns, rifles, and shotguns.  (G.S. 14‑409.39(2))  Under this exception, any restrictions or prohibitions on dangerous weapons imposed during a declared state of emergency could not apply to lawfully possessed firearms or ammunition. The exact text of the exception is:

[Local governments may, by ordinance, impose restrictions and prohibitions during a declared state of emergency] Upon the possession, transportation, sale, purchase, storage, and use of gasoline, and dangerous weapons and substances, except that this subdivision does not authorize prohibitions or restrictions on lawfully possessed firearms or ammunition. As used in this subdivision, the term “dangerous weapons and substances” has the same meaning as it does under G.S. 14‑288.1. As used in this subdivision, the term “firearm” has the same meaning as it does under G.S. 14‑409.39(2). (HB843 3rd ed., p. 13, lines 20-26)

What does this mean for local governments and citizens? 

If HB843 is enacted with the current version of the revised dangerous weapons restriction authorization, local governments can still impose restrictions on dangerous weapons such as explosives, incendiary devices, and radioactive materials and devices, but cannot impose restrictions on lawfully possessed handguns, rifles, and shotguns.  For example, if an individual is carrying a concealed handgun with a valid concealed carry permit during a declared state of emergency under which a dangerous weapons prohibition has been imposed, the local prohibition would not apply to this individual’s lawful possession of a concealed handgun.

The exception described above strikes a balance between the core 2nd Amendment rights which the court found had been infringed in Bateman, and the need for local governments to still have the option to impose restrictions on dangerous weapons other than lawfully possessed firearms when necessary during a disaster situation.  Keep in mind that a wide variety of events may constitute a disaster – from a hurricane to a winter ice storm to a terrorist attack to a nuclear plant melt-down.  Some disasters may warrant restrictions on dangerous weapons to protect public health and safety (imagine the need to ban the sale of explosives when under threat of a terrorist attack).  However, under the exception, citizens can still lawfully possess handguns, rifles, and shotguns, even in these situations.

What does this NOT mean for local governments and citizens? 

This exception to the dangerous weapons restriction authorization does not override other restrictions that local governments are authorized to impose during a state of emergency.  For example, if a curfew is imposed, an individual cannot violate the curfew even if he lawfully possessed a firearm.  Or, if an evacuation is ordered, an individual may lawfully transport a firearm while evacuating, but must still heed the evacuation order.  This exception also does not override other local ordinances relating to weapons (such as those prohibiting weapons in local government buildings); it only applies if and when restrictions on dangerous weapons are imposed during a declared state of emergency.

What happens next?

HB843 still has several steps to travel in the legislative process before it becomes law.  It is currently scheduled to be considered by the full Senate during session on Monday, June 4th.  If the bill passes the Senate, it will then be considered by the House of Representatives, which is where it originated.  The House may either agree (concur) or disagree (not concur) with the Senate version.  If the House concurs in the Senate’s version of the bill, then it will go to the Governor who can either approve it or veto it.  If the House does not concur in the Senate’s version, then the bill will go to what is called “conference,” where a committee of House and Senate members will negotiate the differences.  If agreement is reached, the compromise version of the bill will then be voted on again by both chambers and be sent to the Governor.  If agreement is not reached before the end of session, the bill is “dead.”

You can track HB843’s progress through the General Assembly’s website.  The current status of the bill and other relevant information, including the text of the bill, is on the bill page for HB843.

Stay tuned for more updates and, if HB 843 becomes law, a full summary of the entire emergency management act rewrite will be available on our SOG legislative summaries webpage after session adjourns.

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