# North Carolina Suspends the Constitution On Account Of Rain **URL:** \ **Category:** In My Humble Opinion\ **Created:** [September 3, 2010, 4:18pm UTC](https://boards.straightdope.com/t/north-carolina-suspends-the-constitution-on-account-of-rain/552500 "2010-09-03T16:18:05Z")\ **Posts on this page:** 7\ **Page:** 5
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 7, 2010, 4:27pm UTC](https://boards.straightdope.com/t/north-carolina-suspends-the-constitution-on-account-of-rain/552500/81 "2010-09-07T16:27:31Z")
> [@Bone](#): > > > [@Bricker](#): > > > > The courts have upheld curfews durng emergencies - this impacts the general right of travel, surely as strong or stronger right than firearms. If a curfew is constitutional, why do you imagine a firearm restriction would not be? > > Just to expand on this a bit further - Curfews, restricting the right to assemble, falls under strict scrutiny correct? I think the times where the right to travel has been before the SCOTUS have been few. Zemel v. Rusk (1965) talks about: > \* > “The right to travel within the United States is of course also constitutionally protected, cf. Edwards v. California, 314 U. S. 160. But that freedom does not mean that areas ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area or the Nation as a whole.”\* There’s plenty of dicta: Kent v. Dulles (“Freedom of movement is basic in our scheme of values,”) and US v. Guest (“In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”) But (apart from being dicta) these are all discussing interstate travel, not simply movement within a particular state. And in Memorial Hospital et al v. Maricopa County et al, the Court distinguished clearly between a right to interstate travel and a right to intrastate travel. > [@](#): > > Is it your belief that the NC restrictions on possession and purchase of firearms and ammunition during states of emergency would survive strict scrutiny? Do you think strict scrutiny is the appropriate level of scrutiny here? > > Like I said before, the court will eventually decide since the SAF is pretty much on a suing rampage in several separate federal districts. You might want to read United States v. Chalk, 441 F. 2d 1277 (4th Cir. 1971). Chalk was arrested after his car was stopped by outside Asheville, NC. The mayor of Asheville had declared a state of emergency, which by NC law at the time banned possession off one’s own premises of dangerous weapons, explosives, or ammunition; banned all marches, parades, assemblies, or demonstrations on public property; and banned the sale of and consumption (off one’s own premises) of alcoholic beverages. Chalk and his passenger had a shotgun in plain view, and: > [@](#): > > The mayor’s proclamation declaring a state of emergency made appellants’ possession of a shotgun and ammunition a misdemeanor. At the time of Chalk’s arrest, the butt of the shotgun was in the plain view of the arresting officers and thus subject to seizure. (citations omitted) We think the discovery of the stock of the shotgun entitled the arresting officers to conclude that the automobile probably also contained the shotgun barrel and ammunition. The invocation of emergency powers necessarily restricts activities that would normally be constitutionally protected. Actions which citizens are normally free to engage in become subject to criminal penalty. A curfew, like ordinances restricting loudspeaker noise and limiting parade permits, doubtless has an incidental effect on First Amendment rights. The standard that has developed where regulation of conduct has an incidental effect on speech is that the incidental restriction on First Amendment freedoms can be no greater than is essential to the furtherance of the government interest which is being protected. [/quote] ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [September 7, 2010, 5:05pm UTC](https://boards.straightdope.com/t/north-carolina-suspends-the-constitution-on-account-of-rain/552500/82 "2010-09-07T17:05:55Z")
Me = not a lawyer. Forgive me if I get some terminology incorrect. Part of the scenario in Chalk was actual civil unrest. The court made a passing remark as to the necessity to evaluate the circumstance that caused the declaration of the state of emergency. The circumstances in Chalk were that of civil unrest, not weather. That seems to weaken the comparison. Of course this is all a tangent because Chalk was about _search_ correct? The SAF lawsuit is specifically as to the violation of the RKBA. Here is the [SAF complaint](http://saf.org/legal.action/nc.lawsuit/nc_complaint.pdf). Do you believe it has merit and/or will ultimately prevail? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 8, 2010, 12:23pm UTC](https://boards.straightdope.com/t/north-carolina-suspends-the-constitution-on-account-of-rain/552500/83 "2010-09-08T12:23:40Z")
> [@Bone](#): > > Me = not a lawyer. Forgive me if I get some terminology incorrect. > > Part of the scenario in Chalk was actual civil unrest. The court made a passing remark as to the necessity to evaluate the circumstance that caused the declaration of the state of emergency. The circumstances in Chalk were that of civil unrest, not weather. That seems to weaken the comparison. Sure, you could argue, somehow, that weather doesn’t create the same kind of emergency as rioting. But as the court in Chalk said, it all comes down to the need to impose order: > [@](#): > > North Carolina General Statutes defines “state of emergency” as: “The condition that exists whenever, during times of public crisis, disaster, rioting, catastrophe, or similar public emergency, public safety authorities are unable to maintain public order or afford adequate protection for lives or property, or whenever the occurrence of any such condition is imminent.” N. G.Gen.Stat. § 14-288.1(10). The mayor’s power to impose the restraints enumerated in North Carolina General Statutes § 14-288.12 and Asheville City Ordinance No. 613[2] is subject to a “narrow, objective, and definite standard.” Shuttlesworth v. Birmingham, 394 U. S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). Only when local law enforcement is no longer able to maintain order and protect lives and property may the emergency powers be invoked. That language clearly contemplates “catastrophe,” as a predicate condition. > [@](#): > > Of course this is all a tangent because Chalk was about _search_ correct? The ultimate holding in Chalk was the validity of a search predicated on a weapon being in p[lain view. Under ordinary circumstances, this would not have violated the law. But because the mayor had declared the emergency, the weapon became contraband and the sight of it could legally trigger probable cause for a search. So Chalk does stand for the proposition that the mayor’s declaration of an emergency was valid for making the transport of a weapon a crime. > [@](#): > > The SAF lawsuit is specifically as to the violation of the RKBA. Here is the [SAF complaint](http://saf.org/legal.action/nc.lawsuit/nc_complaint.pdf). Do you believe it has merit and/or will ultimately prevail? It’s true that neither side in Chalk argued the Second Amendment question, and even if they had, it would need to be argued again in light of the holdings in Heller and MacDonald. However, given Heller and MacDonald’s explicit limits, in my view the claim in the SAF complaint is unfounded. For the court to grant SAF et al the relief they seek, they would have to expand the current understanding of the rights in the Second Amendment. I believe that’s properly the job of the legislature, not the courts. I can’t tell you how many times on the SDMB I’ve typed a variant of that last sentence. Thousands of times, I suspect. Seldom has it involved the Second Amendment. As a lifetime NRA member, gun owner, concealed-carry permit holder, and general conservative I believe that, as a matter of public policy, North Carolina’s law is foolish in the extreme. But “foolish” and “unconstitutional” are not synonyms. I don’t believe it violates the Second Amendment, and I don’t believe we should be asking unelected, lifetime-tenured judges to set public policy for us. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [September 8, 2010, 4:00pm UTC](https://boards.straightdope.com/t/north-carolina-suspends-the-constitution-on-account-of-rain/552500/84 "2010-09-08T16:00:39Z")
I’m from CA. There is no hope here to win on RKBA issues through the legislature. Only through the courts can progress on this front be made. I do believe the courts are the proper avenue when the legislature systematically violates individual’s rights. There are some things that should not be left to the legislature. It’s a slippery slope I know, but the courts do serve as a check on the legislature in this regard. I think you see limitations in Heller and McDonald that are not there. Or at least, there are alternate readings of those opinions that give the SAF complaint room to operate. There were no “explicit limits” as you say with regard to bear. Those opinions did not define what _bear_ meant in terms of RKBA - it wasn’t an issue raised. It is now being raised. The court said, “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.” I read this to mean that laws forbidding the carrying of firearms in sensitive places are not in question. This also means that laws forbidding the carrying of firearms in \*\*non-\*\*sensitive places are in question. The entire state can not be construed as a sensitive place or else that phrase has no meaning. The Nordyke case in CA attempts to both define levels of scrutiny and the definition of a sensitive place. With both of these cases happening, along with at least 3 others in other districts, it’s likely the _bear_ issue and level of scrutiny will go back to the SCOTUS. > [@](#): > > For the court to grant SAF et al the relief they seek, they would have to expand the current understanding of the rights in the Second Amendment. I believe that’s properly the job of the legislature, not the courts. I understand that’s what you prefer to happen. What do you think will actually happen? I’m betting on Gura and the SAF. (not literally as I understand your propensity to wager) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 8, 2010, 7:58pm UTC](https://boards.straightdope.com/t/north-carolina-suspends-the-constitution-on-account-of-rain/552500/85 "2010-09-08T19:58:50Z")
It’s anyone’s guess what the trial court will do. The Fourth Circuit will do something along of what you’re asking for, but SCOTUS will smack it down. ---
**Author:** ![The\_King\_of\_Soup](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@The\_King\_of\_Soup](https://boards.straightdope.com/u/The_King_of_Soup)\ **Post date:** [September 11, 2010, 2:34am UTC](https://boards.straightdope.com/t/north-carolina-suspends-the-constitution-on-account-of-rain/552500/86 "2010-09-11T02:34:31Z")
Okay, I give up. According to way too many, the reasonable position is that of the guys who, claiming fear of criminals, claim also the right to ignore laws they don’t like, just like criminals. **GusNSpot** managed to ask almost 50 guys the same politically-charged question and get the exact same answer _every single time_, which makes him a miraculous pollster (as opposed to, say, a statistically ignorant, idiotic liar), but still, as long as he keeps himself and his guns home, we merely need duck, not listen. For God’s sake: in an emergency, evacuate – unarmed, preferably, but at least with weapons out of sight. Or if you must, _be_ armed and stay at home. For the sake of the people charged with keeping you safe during a real emergency, as well as the other people for whom they’re responsible, _don’t_ wander around a disaster area armed, no matter what heroic hallucination you and your Uncle Sam are currently starring in. ---
**Author:** ![GusNSpot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gusnspot/32/436_2.png) [@GusNSpot](https://boards.straightdope.com/u/GusNSpot)\ **Post date:** [September 11, 2010, 6:44am UTC](https://boards.straightdope.com/t/north-carolina-suspends-the-constitution-on-account-of-rain/552500/87 "2010-09-11T06:44:28Z")
> [@GusNSpot](#): > > It would seem to me that the average person who does not want me to be able to defend myself is the one who won’t defend himself. > > The non average people are the ones who want to have power over others. > > YMMV My first post in the thread, post # 59 and no question asked or poll made. > [@](#): > > The King of Soup > ::: snip :::: > There are lots and lots and lots of guys like you, and all of you seem to know exactly what would happen in a situation you’ve never met, and that’s just super. > ::: snip ::: > :: Can you say “Broad Brush”, I knew you could. :: > > Nonetheless, in a state of emergency, I and most other public safety officers > > ::: snip::: > > :::::: I have asked at least 25 Highway patrol and 10 city police officers and 3 AR Game & Fish enforcement officers and 6-7 State Park Rangers and 3 Enforcement State Park officers who carry and do 911 responding here on this mountain and other LEO’s in AR, OK, TX. And not ONE has been against CCW and several were the ones who taught CCW classes. > > ::: snip :::: > > wish the hell you’d either evacuate the area or stay close to home with your guns, and if you don’t and get into trouble, I hope at least you won’t have hurt anyone else first. Yup, I know: it’s physically impossible for someone fearful enough to need a firearm to deal with normal modern society to ever misperceive dangers during a real disaster. > > ::: snip ::: > > :: It is not the normal people of modern society that loot, assault, and generally threaten innocent people during an emergency. :::: > > Even so, defend yourself with your guns at home, and let the imaginary armed Marxist thugs over yonder alone. Please. > > ::: snip :::: > > ::: We would have loved to but Uncle Sam said we must not do that but go and maybe die to help ensure your right to be as you are. Really glad no fool stood up and said those kinds of things during a fire fight with bad guys inside the perimeter. Damn glad we did not kill our own guys being so rattled and all… \<---- Now that is being sarcastic & snarky… ::: > So, what state you in? I know folks all over who could ask some of the LEO’s in your area what they think. I would like to see what others in your area say. .. Next time I posted was # 79, this one above. \* I asked you one question, see the last 2 sentences, red letters so you can’t miss it.\* and you have not answered. Still no poll question. Then you say this: > [@](#): > > The King of Soup > Join Date: Apr 2004 > Okay, I give up. According to way too many, the reasonable position is that of the guys who, claiming fear of criminals, claim also the right to ignore laws they don’t like, just like criminals. GusNSpot managed to ask almost 50 guys the same politically-charged question and get the exact same answer every single time, which makes him a miraculous pollster (as opposed to, say, a statistically ignorant, idiotic liar), but still, as long as he keeps himself and his guns home, we merely need duck, not listen. Please show where I made the claims of fear of criminals, to ignore laws, and of 86 total posts the 50 guys with the EXACT same answer. Also, what was the politically charged question? I have still not found it, please point it out to me. Thanks [Previous page](https://boards.straightdope.com/t/north-carolina-suspends-the-constitution-on-account-of-rain/552500.md?page=4)