The Second Amendment in the Carolinas

BY Herschel Smith
3 years, 9 months ago

In Second Amendment Quick Hits #3, there is a lawsuit in North Carolina that bears on the carrying of weapons in situations of so-called riots or “other emergencies.”  The Brady campaign has intoned against the Second Amendment (again) as you might guess.

The Brady Center to Prevent Gun Violence today filed a brief in federal court in North Carolina urging the court to dismiss a lawsuit seeking a right to take up arms in streets and other public spaces during riots or other emergencies.  The lawsuit challenges a longstanding North Carolina law that allows gun carrying on a person’s property but temporarily bars public gun carrying in the vicinity of a riot and during states of emergency.

“The Second Amendment does not grant a right of vigilantes to take up arms on our streets during a riot or state of emergency,” said Paul Helmke, President of the Brady Center to Prevent Gun Violence.  “Police and emergency responders seeking to quell a riot or deliver aid during an emergency should not be forced to contend with legally-authorized armed individuals and groups roaming alleys and public streets.”

The Brady Center’s brief argues that there is no right of armed vigilantes to take to the streets during riots or congregate in the vicinity of emergency responders trying to secure a downtown during riots, looting, or terrorist attacks.  The prospect of police and emergency responders being powerless to stop bands of armed citizens from taking to the streets during emergencies, looting, or rioting poses a serious threat to the government’s ability to maintain public order and deliver emergency services.  If the lawsuit were successful, law enforcement would be unable to detect whether roaming armed individuals or gangs were would-be looters, terrorists, or vigilantes, thus jeopardizing their safety and their ability to respond to states of emergency.

David Codrea observes that “on this much, Helmke is correct: The Second Amendment grants no rights.  It recognizes them, and declares they shall not be infringed.”  Codrea goes on to analyze the Los Angeles riots in the context of this lawsuit, very worthwhile reading.  But note the way the Brady Campaign has cast the issue.  Rather than defending yourself, family and property, if you own and carry a weapon in a time of “emergency,” you are a vigilante, a part of “armed bands of citizens” roaming the streets, making it impossible for the police to ascertain the difference between you and criminals.  Presuppositions are everything, no?

Next, note the Firearms Freedom Act introduced in South Carolina.

Prefiled in the South Carolina by State Senators Lee Bright and Danny Verdin is Senate Bill 249 (S0249), the Firearms Freedom Act (FFA). The bill states that:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in South Carolina and that remains within the borders of South Carolina is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce.

Since 2009, 8 states have passed similar legislation as law – Montana, Tennessee, Utah, Wyoming, South Dakota, Idaho, Alaska and Arizona. And, here at the Tenth Amendment Center we expect to see at least a dozen other states consider Firearms Freedom Acts in 2011.

The United States Constitution gives Congress the authority to regulate Interstate Commerce between the states, and 18 USC 922 makes it unlawful for any person not licensed as a manufacturer or dealer in firearms to engage in the business of manufacturing or dealing in firearms. Collectively, the Interstate Commerce Clause and 18 USC 922 are used by the federal goverenment as a means to regulate, control and often-times ban, firearms.

The South Carolina Firearms Freedom Act addresses this by exempting firearms, firearm accessories, and ammunition manufactured and retained in the state from all federal firearm control laws including registration, as firearms that meet these criteria cannot be regulated by the federal government because they have not traveled in interstate commerce.

“Basically, we’re saying if the gun is made here, South Carolina is going to say what kind of regulations apply,” Bright said. “We feel that South Carolinians should be able to determine how to protect themselves — not the federal government — which is why most people have firearms.”

It’s difficult to imagine a scenario in which this doesn’t eventually make its way to the SCOTUS, although it’s also difficult to imagine what the government’s case would be since there is no interstate commerce occurring under the stipulations of this law.  But my bet is that the current administration orders the U.S. Solicitor General to take up the case (or better said, make a case where there isn’t one).

Prior:

The Feds Muscle In On Long Gun Sales

Breyer: Founding Fathers Would Have Allowed Restrictions on Guns

  • Corsair8X

    A confession. I supported that Brady bill back in the day. Didn’t really see the need for all the guns. It just didn’t make any sense to me. Why?

    While watching the news on Katrina, the looting, the roving gangs, the almost Waterworld lawlessness I thought for the first time, “maybe all those NRA guys are actually on to something”. Over the years I’ve heard lots of stories about Katrina, and lots of stories about police bugging out or even turning into the problem. It all just sort of solidifies these new feelings and attitudes.

  • Lina Inverse

    I’m afraid your hopes for a Commerce Clause rescue for the Firearms Freedom Act and similar laws will founder on Wickard v. Filburn; it’s not even a stretch. In that 1942 New Deal decision the government was allowed to forbid the growing of wheat by Roscoe Filburn because otherwise he’d have to buy it and that obviously affects interstate commerce. Changing the scope from a farm to a single state doesn’t affect the logic and the Supremes are very protective of this jurisprudence, obviously it gives them as a part of the Federal government a LOT more power.

  • davod

    Lina Inverse, maybe it is time for another look at Wickard v. Filburn.

  • scott s.

    Note that the first significant federal law on firearms, the National Firearms Act of 1934, relies on the taxing power: You cannot manufacture a class of firearms such as machine guns without first paying a “special occupational tax”. Further, you cannot transfer a firearm regulated under the act without first obtaining a transfer tax stamp. By restricting the issuance of these tax stamps, the federal gov’t effectively prohibits these firearms (machine guns, short-barreled rifles, short-barreled shotguns, silencers, destructive devices, and so-called “any other weapons”).


You are currently reading "The Second Amendment in the Carolinas", entry #5956 on The Captain's Journal.

This article is filed under the category(s) Second Amendment,Second Amendment Quick Hits and was published January 2nd, 2011 by Herschel Smith.

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