Can Cities and Counties Restrict Firearms Under A State Of Emergency?

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Norma Houston

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In a previous post, I summarized a 2012 federal district court ruling on the 2nd Amendment challenge brought against restrictions on dangerous weapons that can be imposed by local governments during a declared state of emergency.  The General Assembly responded to this ruling by prohibiting restrictions and prohibitions on the lawful possession and use of firearms and ammunition under a state of emergency declaration.  This prohibition was included in the legislature’s comprehensive rewrite of the State Emergency Management Act (G.S. Chapter 166A) (S.L. 2012-12; HB843).  This post describes what restrictions can – and importantly, cannot – be imposed on lawfully possessed firearms or ammunition under a state of emergency declaration.

As a quick reminder of the issue, North Carolina law previously authorized 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.” (formerly, G.S. 14-288.12(b)(4); now amended and recodified as G.S. 166A-19.31(b)(4)).  “Dangerous weapon” is broadly defined and includes any “deadly weapons, ammunition, explosives, incendiary devices, and radioactive materials and devices . . . or any instrument or substance designed for a use that carries a threat of serious bodily injury or destruction of property.”  (G.S. 14-288.1(2)).  Firearms and ammunition fall within this definition.  It was the application of emergency restrictions and prohibitions to the lawful possession of firearms that was challenged in Bateman v. Perdue (No. 5:10-CV-265-H (E.D.N.C. filed Mar. 29, 2012); the court found the statute authorizing these restrictions unconstitutional.  As a result, while cities and counties still have the legal authority to impose restrictions and prohibitions on dangerous weapons during a declared state of emergency, those restrictions cannot infringe on core 2nd Amendment rights.

The General Assembly reacted to the Bateman decision (which the State chose not to appeal) in a comprehensive rewrite of the State Emergency Management Act (S.L. 2012-12; HB843).  While the authorization to impose restrictions and prohibitions on dangerous weapons was retained, that authorization specifically exempts “lawfully possessed firearms or ammunition.”  Firearms are defined as handguns, rifles, and shotguns. (G.S. 14‑409.39(2))  Under this exemption, any restrictions or prohibitions on dangerous weapons imposed during a declared state of emergency cannot apply to lawfully possessed firearms or ammunition.  As amended, the authority to impose restrictions and prohibitions on dangerous weapons reads:

[Cities and counties 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). (G.S. 166A-19.31(b)(4); emphasis added)

The exemption for lawfully possessed firearms and ammunition strikes a balance between the core 2nd Amendment rights which the court found had been infringed in Bateman, and the need for cities and counties to impose restrictions on other dangerous weapons when deemed necessary during an emergency.  Keep in mind that a wide variety of events might constitute an emergency – from a hurricane to a winter ice storm to a terrorist attack to a nuclear plant melt-down.  Some emergencies 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 exemption, citizens can still lawfully possess handguns, rifles, and shotguns, and ammunition for firearms, even in these situations.

What does this mean for local governments and citizens? 

Although cities and counties cannot impose emergency restrictions or prohibitions on lawfully possessed firearms and ammunition, this limitation does not override other restrictions that local governments are authorized to impose during a state of emergency.  Cities and counties may still restrict or prohibit other dangerous weapons.  Cities and counties may still impose other emergency restrictions, and may enforce those restrictions even if an individual is lawfully possessing a firearm.  For example, if a curfew is imposed, lawfully possessing a firearm does not entitle an individual to violate the curfew.  Similarly, if an evacuation is ordered, an individual may lawfully transport a firearm while evacuating, but still must heed the evacuation order.  And, cities and counties may impose restrictions and prohibitions on other dangerous weapons and substances such as explosives, incendiary devices, and radioactive materials and devices.  All state laws regulating weapons remain in effect even if a state of emergency is declared (cities and counties have no authority to suspend state law under a local state of emergency), so cities and counties may still enforce those laws such as requiring permits for concealed carrying.  Of course, they also must still allow lawful concealed carrying.  If a city or county imposes restrictions on the operation of businesses and commercial establishments, such as limiting hours of operation, it may include gun stores within those restrictions to the same extent as other businesses.  Finally, other local ordinances relating to weapons (such as those prohibiting weapons in local government buildings) remain in effect and may be enforced.

What does this NOT mean for local governments and citizens? 

First and foremost, cities and counties cannot restrict or prohibit the lawful

  • possession,
  • transportation,
  • sale,
  • purchase,
  • storage, and
  • use of firearms (rifles, shotguns, and handguns) and ammunition for those firearms under a state of emergency declaration.

Cities and counties cannot close gun stores or limit their hours of operation unless those same restrictions are applied equally to other businesses and retail establishments (in other words, gun stores cannot be singled out).  Nor can they restrict or prohibit lawful concealed carrying of handguns or lawful open carrying of handguns, shotguns, or rifles.

Must cities and counties specify in their local state of emergency declarations that any restrictions or prohibitions imposed do not apply to lawfully possessed firearms or ammunition?  Because state law prohibits these actions, it is not legally necessary to exempt lawfully possessed firearms and ammunition in a local state of emergency declaration; if a city or county were to include such a restriction, the restriction would be unconstitutional, in violation of state law, and unenforceable.  Nonetheless, some cities and counties choose to specify in their state of emergency declarations that any restrictions or prohibitions imposed under the declaration do not apply to the lawful possession, transportation, sale, purchase, storage, and use of firearms and ammunition for those firearms (some even include a citation to G.S. 166A-19.31(b)(4)).  Including this language in a state of emergency declaration, although not legally necessary, may assist cities and counties, and importantly, local law enforcement, in clearly communicating to the public that the lawful possession and use of firearms and ammunition has not been restricted.  This is the practice of the Governor when declaring a state of emergency as the prohibition also applies to gubernatorial declarations; a gubernatorial executive order declaring a state of emergency typically includes a provision making clear that the declaration does not impose any restrictions or prohibitions on lawfully possessed firearms and ammunition.

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