Tuesday, June 28, 2022

Conflicting rights: How a state of emergency can challenge constitutional rights

Declaring a state of emergency can be helpful to residents during times of disaster, but with benefits comes the potential loss of rights as well.

SOUTHEAST N.C. — Before Hurricane Florence hit the Carolinas almost two weeks ago, dozens of local government entities, as well as state governments, declared a state of emergency for their respective population. And while a state of emergency declaration can help residents by preventing price gouging, lifting transportation restrictions, and other benefits, the declarations also have the ability to strip citizens of constitutional rights.

Governor Roy Cooper declared a state of emergency on Sept. 7, ahead of the storm.

In the declaration, Cooper explicitly stated that this declaration did not prohibit or restrict lawfully possessed firearms or ammunition, and it did not prohibit the consumption of alcohol — but it could have.

As seen in towns like Carolina Beach, the sale of alcoholic beverages was banned after 8 p.m. on Wednesday prior to the storm. The declaration of the state of emergency also stated, “No firearms, ammunition, or explosives. No open carry after 8 p.m. Wednesday.”

State law

Under state statute 166A-19.30., declaring a state of emergency offers government entities a considerable degree of power, far more than typically granted to them — including the following abilities:

  • To establish a system of economic controls over all resources, materials, and services to include food, clothing, shelter, fuel, rents, and wages, including the administration and enforcement of any rationing, price freezing, or similar federal order or regulation.
  • To regulate and control the flow of vehicular and pedestrian traffic, the congregation of persons in public places or buildings, lights and noises of all kinds, and the maintenance, extension, and operation of public utility and transportation services and facilities.
  • To procure, by purchase, condemnation, seizure, or by other means to construct, lease, transport, store, maintain, renovate, or distribute materials and facilities for emergency management without regard to the limitation of any existing law.

New Hanover County Commission Chairman Woody White did not respond to questions regarding the state of emergency declaration.

Mayor of Leland Brenda Bozeman was asked about her own declaration — she declined to answer, instead asking the Town Manager David Hollis to respond.

Leland’s declaration stated, “Effective at 9:00 p.m. on Wednesday, September 12, 2018, the transportation or possession, or the sale or purchase of dangerous weapons or substances, while off one’s own premises, is prohibited. This prohibition and restriction does not apply to lawfully possessed firearms or ammunition.”

Since the declaration states the restrictions do not apply to lawfully possessed firearms or ammunition, the declaration only applies to illegally-owned firearms and ammunition.

“The language follows the statute. It doesn’t mean anything more or anything less than what is stated in the statute,” Hollis said.

State statute regarding the abilities of municipalities does indeed state that restrictions can not be on lawfully possessed firearms.

“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,” according to General Statute 166A-19.31.

Constitutionality

The constitutionality of the state’s ability to ban guns during emergency situations was brought into light in 2012 when in the court case of Bateman v. Perdue. The premise of the case, which was heard by a judge in the U.S. District Court for the Eastern District of North Carolina, was that the state’s actions violated the plaintiffs’ Second Amendment rights.

“The plaintiffs asserted that restrictions imposed under these statutes during declared states of emergency denied them of their Second Amendment right to keep and bear arms for lawful purposes, including self-defense and hunting,” according to an article by Norma Houston at the UNC School of Government.

While the judge in the case found that the state statute, as applied to the plaintiffs, was indeed unconstitutional, he did not find the statute itself unconstitutional.

“By declaring the statutes unconstitutional only as applied, Judge Howard left the door open for restrictions on dangerous weapons – including guns – to be imposed during a state of emergency so long as those restrictions are not inconsistent with 2nd Amendment rights. State and local governments may face extreme conditions during a disaster when reasonable restrictions on weapons must be imposed to maintain public safety and prevent injury, loss of life, and damage to property, such as looting after a major hurricane or public rioting. However, because of the Bateman decision, these restrictions cannot be imposed as broadly as in the past,” Houston wrote.

The ruling does limit the amount of restrictions that can be imposed on residents during times of emergency.

According to Houston, “Although Judge Howard found the statutes unconstitutional as applied to the plaintiffs in the case, he did not strike down the statutes entirely. This still leaves local governments with the legal authority to impose restrictions on dangerous weapons during a state of emergency, but these restrictions must be more narrowly prescribed. Drawing on Judge Howard’s concerns and applicable case law, future restrictions on weapons during a declared state of emergency should:

  • Be limited to situations and geographic areas where the restriction is necessary to preserve the public peace in the face of an imminent risk of damage, injury, or loss of life or property; and
  • Not prohibit the possession, storage, or use of dangerous weapons in an
    individual’s home for self-defense or other lawful purposes.

Send comments and tips to Michael.p@localvoicemedia.com

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