If You’re Presented With the Shot, Take It

I have to disagree with John Richardson about NRA’s attempt to repeal North Carolina’s emergency powers law, which was opposed publicly by Grassroots North Carolina because it would moot their lawsuit.

I’m not in favor of scuttling an opportunity for a legislative fix to preserve a court case that may or may not ultimately win. If you have an opportunity to fix something legislatively, you take it. If you lose the vote in a legislature, you can always take another shot at goal. Fixing bad precedent because you came short on votes for a panel of judges is considerably more difficult. I hope I don’t again have to see again the absurdity of a pro-gun organization coming out against a piece of legislation that would strip states of the ability to disarm people in an emergency.

I’m reminded of the story of Patrick Ferguson, a famous British Sharp Shooter. who at the Battle of Brandywine found an officer in his sights, decided not to take the shot, because it would be ungentlemanly. Lucky for us. Not very lucky for the British cause in North America. The officer he had in his sights was none other than George Washington. The lesson is that when you have that kind of shot lined up, you take it.

26 thoughts on “If You’re Presented With the Shot, Take It”

  1. We will have to agree to disagree on this.

    That and it is my personal opinion that the NRA’s involvement pushing it at such a late date had more to do with trying to screw up an Alan Gura case than it had to do with getting the bill passed. If the NRA had really wanted to pass this piece of legislation, they would have been publicly pushing it from the start and not on the day of the crossover deadline.

    As a life member of both the NRA and the Second Amendment Foundation, I wish they could and would work together on gun rights litigation as well as legislation.

    The impact of not passing this bill is minimal right now. Gov. Perdue has an option on which part of the General Statutes to use to declare a statewide Emergency. Due to criticism, she is now using the section that does NOT impose any firearms restrictions.

  2. Sequence matters.

    Get the judicial win first if you can. That cannot be undone by the legislature. If you can’t win that, then go after the legislative win.

  3. By your logic, we should have mooted this little case called Parker, but known by everyone as Heller.

    This is a situation where the balance is way out of whack. Twice a year an emergency is called that everyone ignores, versus a friendly court with a carry case.

    Why doesn’t NRA push for a bill that does something that can’t be done today in courts. Constitutional carry, or shall issue NFA signatures come to mind.

    Nope, those would help gun owners with no costs to Alan Gura, so they aren’t priority…

  4. Mr. Richardson:

    I appreciate that you have a right to your personal opinions regarding the NRA efforts on Senate Bill 594, but you are incorrect. The NRA has been pushing for a legislative fix to the problem of gun rights and a declared State of Emergency for many years. The NRA has been pushing for legislation in Congress and the states to prohibit gun confiscation during states of emergency almost immediately after Hurricane Katrina, and has succeeded in enactment of such statutes at the federal level and in 31 states.

    In 2009, the NRA supported North Carolina House Bill 257 that sought to correct this problem:


    If you have been following NRA-ILA alerts this year, you will note that NRA has been “publicly pushing it from the start.” Here is our alert from April 15:


    It was mentioned again on April 22: http://www.nraila.org/Legislation/Read.aspx?id=6670

    Unfortunately, it was not until last week that the NRA was informed by Senate Republican leadership that S 594 would not be brought up for consideration. That is the reason for our recent push, and it has nothing to do with your speculated reason.


    Anthony Roulette
    North Carolina State Liaison

  5. Ferguson did not realize the officer was Washington, because he was wearing such an ordinary officer’s uniform. Had he realized who was in his sights, he probably would have taken the shot.

  6. It just amazes me that a group purporting to be pro-gun would oppose legislation prohibiting gun confiscation during states of emergency which has been enacted at the federal level and in 31 other states. Did GRNC also oppose North Carolina House Bill 257, similar legislation in 2009?

    Policy by judges is ALWAYS risky and often unpredictable. In fact, Alan Gura suggested more than once that he thought that the Parker/Heller case might be a unanimous favorable Supreme Court decision. As it turned out, our Second Amendment rights were affirmed by only a bare 5-4 ruling.

  7. Sebastian,

    Gotta agree with John here.

    If an issue can be voted ‘up’, then it can also be voted ‘down’. Good (or bad) precedent is much longer-lasting.

    Given that the case was already filed, with a good plaintif and a sympathetic judge (not to mention that moke that won Heller and McDonald), the NRA could have won back some much-needed cred by simply talking to the NC grass roots organization and SAF.

  8. Legislating from the bench is inherently undemocratic and ought to be avoided if at all possible.
    Alan Gura rolled the dice with our rights. He did it when the S.C. was stacked 5-4 AGAINST us. It was only the unforseeable departure of a (likely) ANTI justice who was fortunately replaced by Samuel Alito.
    Was the situation so dire? Was there no other way than to risk the enormous setback of a potential Heller loss?
    I don’t think so and I suspect that the situation is the same in NC right now.

  9. I want to add that Gura is not God. His main argument in McDonald was a loser and he showed a certain pettiness in his other losing argument when he tried to keep the NRA plaintiffs from being heard.

  10. If an issue can be voted ‘up’, then it can also be voted ‘down’. Good (or bad) precedent is much longer-lasting.

    Precedent is much longer lasting, but you can lose in Court too, and given how hostile many federal judges are to the Second Amendment, that’s likely. Not every case is going to make it to the Supreme Court. Some of these precedents are going to take a lot of time, effort and money to undo if they go the other way.

    It’s not that I think we should never go to court, just that legislation is a safer path if there’s an opportunity to do it. There’s going to be plenty of other opportunity to build the case law that needs to be built, as there are plenty of states where we’ll never get anything done legislatively, like California, New Jersey or Massachusetts.

  11. Sorry about the delay in approving Andrew from NRA’s comment… I did not see it in the moderation queue until just now. It tripped over the presence of links.

  12. I agree with Sebastian. Bad law is bad law, and it doesn’t matter how it gets struck down. Indeed, the Legislature has just as much power as the Supreme Court in getting rid of unconstitutional, or otherwise bad, laws.

    If the law is struck down this year, and then is passed again next year, then the case can be brought up again–but that isn’t likely, because law doesn’t normally bounce back and forth like that.

    That, and you can’t always count on judges to do the right thing! If the judges pass bad judgment, it will be up to the Legislature anyway to make things right again.

  13. D.C. wasn’t getting fixed without Heller. Even now that it’s established law, and we have a highly GOP House, they don’t seem to keen on getting the remaining fixes through. But yes, had the political will been there when the Parker case was introduced, to fix DC’s gun laws, I would have advocated doing it. It’s only in hindsight that I can say we’re better off now for having Heller. It was 5-4… it could have easily been 5-4 the other way if we hadn’t had some changes on the Court.

  14. This malarkey about just 5-5 is silly. It’s really easy to be the 4th vote against the Second Amendment and very hard to be the 5th.

    It is strategically the wrong choice to not create a body of good law around the 2A. We in the unfree states badly need rational decisions about the scope of the right to bear arms. Destroying those chances in North Carolina are awfully provincial.

    If the law can be passed before the decision is released in Bateman v. Perdue, I suspect it could also be passed after.

    Parker had a pro-gun majorities in both houses and a GOP president. Today, not so much. Your analogy is wildly inapt Sebastian..


  15. I want to add that Gura is not God.

    I’m unaware of anyone who thinks he is. He’s just won two major 2nd Amendment cases where no one before him has won any.

    His main argument in McDonald was a loser and he showed a certain pettiness in his other losing argument when he tried to keep the NRA plaintiffs from being heard.

    That’s one interpretation. Here’s mine: His main argument in McDonald was that the Slaughterhouse cases were bad precedent, that “privileges and immunities” was the correct basis of protection for all fundamental enumerated rights. He was right. He gave sufficient attention to the “due process” clause, but “privileges and immunities” was the correct (from a legal standpoint) defense of the right. Read Clarence Thomas’s concurrence. The other four Justices who voted in favor did so on the ground that “due process” was easier – it didn’t overturn 150 years of bad precedent.

    It isn’t supposed to be about easy – it’s supposed to be about JUSTICE.

    And, WRT the NRA, I’m an NRA Patron (Life) Member – and the dickless way they meddled in both Parker and McDonald should earn them a severe smackdown. “Petty”? “Petty”? Like hell. What Gura said was, “The suggestion that I wouldn’t present all the arguments to the Court was uncalled for. I hope that this time Paul (Clement) understands that handgun bans are unconstitutional.” He was exactly correct to do so.

  16. It’s difficult for me to accept that it’s better to hold off on legislative priorities to roll the dice in court. I have a lot of faith in Alan Gura’s ability, but even the best of lawyers lose cases every once in a while.

    If you get legislation voted down, you’re not out anything, except for that session. If you lose a court case, you might spend a lot of time trying to undo that.

    But I can see where Gene is coming from. Truth is I don’t feel all that comfortable with my position, but I’m more uncomfortable with leaving bad law stand if there’s an opportunity to repeal it.

  17. NRA == Nothing Really Accomplished

    I find the NRA meddling in local groups’ agenda is very telling about how they view our freedom and how we should “use it (NRA) or lose it.”

  18. NRA == Nothing Really Accomplished?

    Really? How adsurb and ridiculous.

    Scott, you must be blind to reality. The NRA has advocated for a legislative fix to the problem of gun rights and a declared State of Emergency for many years. The NRA has been pushing for legislation in Congress and the states to prohibit gun confiscation during states of emergency almost immediately after Hurricane Katrina, and has succeeded in enactment of such statutes at the federal level and in 31 states.

  19. The NRA has been fighting for years for their pet legislation, but when it comes down to it the state’s groups have to get it done. In GA the nra lobbyist tried his hardest to convince legislators they would not be graded on their ‘no’ vote for a gun rights bill to eliminate a 140 yr old Jim Crow law.

    The NRA’s strategy is to let another group do all the hard leg work and then come in at the last second before a final vote, crap on everything already accomplished, throw a new bill or some amendment in legislators faces, and claim some victory in the final result. Heck, the NRA-ILA can’t even pronounce the Second Amendment Foundation in full or part in it’s press releases.

    It’s my opinion the NRA serves to continue the FUD and not take on serious challenges. Any call I get from them asking for money is full of FUD. When the SAF calls they’re reps are very calm and polite. I have seen better results from the SAF’s litigation than the NRA.

    Yes, the NRA took on Louisiana and finally got a favorable ruling on the Katrina confiscations. Perhaps they should see every RKBA restriction as a problem and fight them pro-actively instead of reactively.

    These are my opinions and I have had limited exposure to the the NRA. I know they’re not perfect bu neither am I. If only the NRA would stop the last minute issue hijacks and let the local groups finish what they’ve started.

  20. Scott,

    As the North Carolina State Liaison for the NRA-ILA, I work very closely with local groups. I have been working the General Assembly in Raleigh regularly this year, as I do every year. I have been working with local groups this year, as I do every year.

    Virtually every pro-gun reform that has been introduced in Raleigh this year was introduced at NRA’s request. I have been present at most committee hearings. H 650 is predominantly an NRA bill. H 111 was taken from an original draft of H 650. If you have a problem with these kinds of efforts, I’d love to hear what it is.

    As for S 594, as previously stated, we have been promoting it since its introduction. We have been promoting similar legislation to fix the current problem with North Carolina State of Emergency laws for several years. We have been working S 594 with the support of local groups. I’m not sure if this is to what you are referring when you talk about “last minute issue hijacks,” but if it is, you could not be further from the truth.


    Anthony Roulette
    North Carolina State Liaison

  21. “Kevin Baker Said,

    It isn’t supposed to be about easy – it’s supposed to be about JUSTICE.”

    Wrong pal: it’s supposed to be about victory!

  22. Really people. Have you ever been sued by anyone and actually gone to court?

    GRNC was sued for, I think libel. When they actually faced the expense and uncertainty of a real court date, they folded.

    If something can be resolved without the uncertain proceeding of a court case, you better take that option.

    Whomever said that a court case is more certain than legislation has never been in court.

    Even if you have a perfect case, you may not have a perfect judge or jury.

    Good luck, GRNC.

  23. Anthony,

    Why can’t the emergency powers fix legislation be passed next session. It otherwise seems like you have good control of the NC process.


  24. Gene,

    Thanks for the supportive comment about the process, but even with the new leadership in Raleigh this year, the pro-Second Amendment movement has been met with a surprising amount of resistance. Just look at how H 650 and H 111 were amended in the House, and how long H 111 has been sitting in the Senate with no action. Not to mention S 594 being bottled up.

    As for S 594, I have several concerns about waiting to pass it.

    First, what happens if there is a declared State of Emergency on a local level, like in King last year? Ever since Hurricane Earl, Governor Perdue has been very careful to ensure when she declares a State of Emergency, she does not impact our Right to Keep and Bear Arms. But locals don’t have that option, as far as I know. Are you OK with a local State of Emergency leading to people being afraid to provide for their personal protection for fear of being arrested? What if someone becomes a victim of violent crime because he or she decided to leave a personal protection firearm at home? The locals can’t be sued, according to what has happened thus far with the existing lawsuit. I’d rather fix the problem now than run the risk of someone being made a victim for the sake of the suit.

    Second, when is the suit going to be resolved? Do we wait until it has reached a final disposition? Next year, without action on S 594 now, that bill is dead. It has already failed to meet the crossover deadline to remain viable for next year.

    Third, if S 594 fails to pass now, and it cannot pass next year, we have to wait until 2013. What if we lose our pro-gun majority in one of the chambers in 2012? If we lose pro-gun support, and the suit fails, why would legislators feel compelled to make the fix legislatively? Even if the suit succeeds, what’s to prevent legislators from “fixing” the law in a way that is still unacceptable to the pro-Second Amendment community. As we have seen with DC, even winning a suit doesn’t mean we get the law that we want.

    We have the opportunity to pass a good law right now, although time is rapidly running out. As Sebastian says, we need to take the shot.


    Anthony Roulette
    North Carolina State Liaison

  25. I’m amazed at the self-proclaimed 2nd Amendment purists who have made a habit out of bashing NRA. It’s unfortunate that a handful of folk with big egos and hurt feelings seem to put more energy into damaging the NRA than putting that energy towards preserving the 2nd Amendment. Some of the loudest opinions come from people who have never even bothered to write their state reps or members of Congress – or given money for that matter. All of the nonsensical conspriacy theories that NRA somehow wants to sabotage the efforts of others if NRA doesn’t get credit is an absurdity worthy of those who entertain 9/11 truther bunk.
    Opposing S 594 on the gamble that Bateman v Perdue may be decided in our favor is a HUGE gamble. Hopefully Bateman v Perdue will go our way and the puritans can pat themselves on the back. If it doesn’t go our way, then I guess we’ll all be two steps back from where we started won’t we?
    I’m getting sick and tired of reading all the NRA bashing that is often on the same level as some typical leftist propaganda. NRA has done more for gun rights that GOA, SAF, and all the other johnny-come-latelys combined have done or ever will do. It’s about strength in numbers for those who have yet to figure it out.
    Sweeping hysterical statements from GOA like “NRA SUPPORTED THE 1968 GUN CONTROL ACT!” are nonsense. NRA supported SOME parts of the 1968 GCA – parts that anyone with common sense would support.
    If you happen to be of the opinion that the mentally ill should have unrestricted access to firearms, I’m afraid that’s where we must part ways, because I support NRA’s position on that issue. In the real world the practice of constantly gambling on “all or nothing” most often gets you nothing.

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