Defending Your Family During States of Emergency
In Houston, as in New Orleans after Hurricane Katrina, looting follows as floodwaters recede. Homeowners already ravaged by Hurricane Harvey are finding themselves ravaged yet again by thugs and looters. Nor is Harvey the only hazard. As we approach the height of hurricane season, Hurricane Irma threatens the Caribbean and, potentially, our Atlantic coast.
Even beyond natural disasters, residents of Charlottesville, Charlotte, Baltimore, and elsewhere have suffered from America's increasing propensity for riots, looting, and property destruction.
As you probably know, you may legally defend yourself using deadly force if you or your family faces a reasonable fear of imminent death or great bodily harm. And with rare exceptions, lawful citizens may keep defensive firearms in the home.
But can authorities legally confiscate your firearms during an emergency as they did in New Orleans after Katrina? What about using deadly force to protect property? Most important, can you legally carry firearms to protect your family if forced to evacuate?
For North Carolinians, until recently, the answer to the last question was "no." Until 2012, the State prohibited carrying "dangerous substances" – including firearms and ammunition – outside the home during declared states of emergency.
Although the prohibition probably resulted from racial disorder in the 1960s, nothing in statutes differentiated between civil insurrection and natural disasters. Indeed, the law drew attention in February of 2010, when King, N.C. declared a state of emergency in advance of a pending winter storm and proceeded to post signs prohibiting guns throughout the town.
In September 2010, Governor Beverly Perdue issued a statewide state of emergency in advance of Hurricane Earl on the opening day of dove season, making criminals out of thousands of hunters. Although Perdue responded to Grass Roots North Carolina alerts by attempting to "clarify" her executive order, claiming that it permitted lawful use of firearms, in truth, nothing in the statutes empowered her to enact only part of the law.
Just weeks prior, GRNC and the Second Amendment Foundation had filed litigation in the case Bateman v. Perdue, arguing that the state's blanket prohibition on carrying arms outside the home during states of emergency violated the Second Amendment. Our counsel was the brilliant Alan Gura of D.C. v. Heller and McDonald v. Chicago fame.
The bad news is that we won. On March 31, 2011, Judge Malcolm Howard of the U.S. District Court for the Eastern District of North Carolina ruled North Carolina's state of emergency gun ban unconstitutional under the Second Amendment. Our victory was bad news because North Carolina chose not to appeal, meaning that the case Gura planned to use to further expand the U.S. Supreme Court interpretation of the individual right to bear arms never went to the High Court.
The good news is that the following year, we repealed the unconstitutional gun ban, making it legal to carry firearms for self-protection outside the home during states of emergency. (Important caveat: Unlike in Virginia, where demonstrators in Charlottesville legally carried firearms, you may not carry firearms at any picket line or political demonstration in North Carolina.)
So what about using deadly force to defend your property against looters? Here Texas has it over North Carolina. Texas Penal Code §9.42 reportedly allows use of deadly force to defend property under at least some limited circumstances. We should note, however, that North Carolina's Castle Doctrine law does create a rebuttable legal presumption that you face a "reasonable fear of imminent death or great bodily harm" if someone "forcibly and unlawfully" enters your home, your motor vehicle, or your workplace. Those parameters are the legal prerequisites for use of deadly force in self-defense.
What about the horrific confiscation of guns from homeowners during Katrina? Happily, the federal "Disaster Recovery Personal Protection Act," prohibiting Katrina-style confiscations, became law as the Vitter Amendment to the 2007 Department of Homeland Security Appropriations Act after being signed by President George W. Bush. Additionally, says the NRA-ILA, "[t]oday, most states, including Louisiana, have laws prohibiting the seizure or confiscation of lawfully-owned firearms and ammunition during a declared state of emergency." North Carolina does not have such a law.
With twenty-three years as a gun rights leader, F. Paul Valone is president of Grass Roots North Carolina and executive director of Rights Watch International. You can reach him via his website at www.GunsPoliticsAndFreedom.com.