NC HB562: Undoing Prohibitions Held to be Presumptively Lawful Under the Second Amendment

Jun 14, 2015   //   Politics



An examination of Supreme Court decisions in both Heller and McDonald reveal that North Carolina lawmakers are looking to undo several prohibitions held to be presumptively lawful by the court.

The following is a reproduction of correspondence sent to the North Carolina legislature regarding House Bill 562 (Amend Firearms Laws).  The principles here, however, are broadly applicable to pending legislation in other states.


I write the NC House Leadership with copy to primary sponsors of HB562 (Amend Firearms Laws), my elected representation Nelson Dollar (House) and Tamara Barringer (Senate), Senate President Pro Tempore Berger, and Senate Democratic Leader Blue.  My understanding is that HB 562 (Amend Firearms Laws) is likely headed to the House floor once again this week and I ask that you forward this correspondence to your respective caucuses.

Op-Ed (Raleigh N&O)

Last week I was published in the Opinion Section of the Raleigh News and Observer – Applying the Benefits vs. Risk Standard to Guns in NC.  My research and writing on the issue of gun violence, including it being held as a human rights violation and a failure of our government in one of its most fundamental of duties, has taken me before multiple venues both here and abroad.

The first point of the opinion piece has to do with Life being a fundamental and foundational right in our country – two committees overseeing our obligations under treaties ratified by the US Senate in the 1990’s both ruled last year that the extensive loss of life to gunfire in our country, including the proliferation of Stand-Your-Ground (SYG) laws, represented a failure of our government in one of its most fundamental duties – to protect the life and well-being of its citizens.  

The second point is that expansion of public exposure to firearms fails benefit/risk.   That public exposure to firearms, including concealed firearms, increases the risk of serious bodily injury and death to the general public is beyond dispute.  Yet the many claims of benefit, such as a reduction in violent crime, robbery, assault, and even the claim of self-defense outweighing the public risk, remain unsubstantiated.  In fact there is a growing body of information in recent years being generated from reputable academic institutions in our country that Right to Carry Laws are Linked to Rise in Violent Crime (Stanford and Johns Hopkins both here  and here) and the American Bar Association National Task Force report on SYG laws cite two studies (one out of Georgia the other Texas);  the Task Force recommended that legislatures not enact such laws because empirical evidence (based in part from those studies) shows that states with statutory SYG Laws have not decreased theft, burglary, or assault crimes.  The report further concluded that SYG laws “are a solution searching for a problem”, and are associated with increased homicide and reinforce racial bias. 

Second Amendment Issues

But of equal, if not greater, concern is the over-reach, if not outrightly false claims of rights infringements under the Second Amendment by lawmakers and ‘gun rights’ activists in support the legislation.  Two Supreme Court decisions, Heller and McDonald, are often used by ‘gun rights’ activists to support expansion of firearms, including concealed carry.  However, Justice Scalia wrote for the majority in Heller (excerpted below) and addressed many of the aspects under consideration with HB 562 (a legal review of both Heller and McDonald is provided here):

“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose….For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues….nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Supreme Court Justice Alito wrote for the majority in McDonald and reaffirmed Justice Scalia’s assurances:

“It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home (emphasis added), recognized that the right to keep and bear arms ’is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose’. . . .We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ’prohibitions on the possession of firearms by felons and the mentally ill’, ’laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms’. . . . We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms (ibid, pp. 39-40).”

The above cited legal review provides a summary of these prohibitions thusly:

“The 2nd Amendment right to keep and bear firearms is not absolute and a wide range of gun control laws remain “presumptively lawful,” according to the Court. These include laws that (1) prohibit carrying concealed weapons, (2) prohibit gun possession by felons or the mentally ill, (3) prohibit carrying firearms in sensitive places such as schools and government buildings, (4) impose “conditions and qualifications on the commercial sale of arms,” (5) prohibit “dangerous and unusual weapons,” and (6) regulate firearm storage to prevent accidents.”

And there are other cases as well that support such prohibitions, such as Peterson v Garcia where the US Court of Appeals for the 10th Circuit (that referenced the above Supreme Court cases) unanimously held that “the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause.”  

And there is the the North Carolina Constitution itself:

Sec. 30. Militia and the right to bear arms.

A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.  (emphasis added).

Concluding Comments

With HB 562, the NC legislature is attempting to do away with multiple prohibitions intended to protect the public, e.g., restrictions on concealed carry, prohibiting firearms in sensitive places such as schools and legislative buildings, imposing conditions and qualifications on the commercial sale of arms (Sheriffs permit check), that have been held by SCOTUS to be lawful under the Second Amendment.

With the public risk of serious bodily injury and death to firearms being established, with no public benefit having been substantiated to offset the risk, and with such prohibitions being held to be lawful under the Second Amendment, should HB 562 find its way into law it is unclear as to how the NC Legislature would not fail regarding one of its most fundamental duties – protecting the life and well-being of its citizens.  

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