Protecting The Second Amendment During Emergencies

posted on June 27, 2020

South Dakota became the first state to adopt an improved emergency powers law when Gov. Kristi Noem signed HB 1296 on March 31. 

The framers of the Constitution “knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation.” So wrote Justice Robert H. Jackson in his famous concurring opinion on the scope of executive power in the Steel Seizure Case. Nearly 70 years later, Justice Jackson’s words seem as pertinent as ever. 

In the last few months, many Americans have experienced the exact “usurpation” of power and corresponding diminishment of their civil rights of which Jackson warned. While the Second Amendment alone should clearly protect the right to keep and bear arms during emergencies, as many have experienced this year, further protection by statute often provides an additional bulwark against executive overreach. 

While many of the “usual” Second Amendment antagonists have used the present situation created by COVID-19 to restrict the right to keep and bear arms, the residents of some states that are considered less gun-friendly may have been surprised to find their state executives hadn’t used the virus as a pretext to restrict their gun rights. This pattern is not without reason. 

After Hurricane Katrina and the ensuing gun confiscation that followed it in 2005, NRA-ILA set to work seeking “emergency powers” limitation laws that expressly limit executive authority to regulate firearms. These laws explain why some less gun-friendly jurisdictions have placed few “emergency” limitations on firearms.

In Virginia, Gov. Ralph Northam is certainly no friend to gun owners. He even took the time to sign multiple gun-control bills in the middle of dealing with the COVID-19 epidemic. Virginia’s emergency powers law contains an important limitation that it does not “empower the Governor, any political subdivision, or any other governmental authority to in any way limit or prohibit the rights of the people to keep and bear arms ... including the otherwise lawful possession, carrying, transportation, sale, or transfer of firearms ... .”

Similar restrictions on emergency powers in Minnesota and even Hawaii have kept firearm businesses operating in those states. 

To provide even further protection, NRA-ILA has been working to improve these laws. 

South Dakota became the first state to adopt an improved emergency powers law when
Gov. Kristi Noem signed HB 1296 on March 31. 

Passed on the final day of the South Dakota legislative session, HB 1296 provides that no state agency, political subdivision, or any elected or appointed official or employee may prohibit, regulate, or curtail the otherwise lawful possession, carrying, sale, transportation, transfer, defensive use, or other lawful use of any firearm or ammunition.

The law also protects indoor and outdoor ranges and prohibits firearm confiscation, revocation or suspension of carry permits, the refusal to accept carry permit applications, mandated gun store closures, or a limitation on the number of firearms or ammunition purchases.

NRA-ILA continues to fight the authoritative overreach that Justice Jackson warned about, and will take the lessons of the current emergency to help craft laws that provide further protection for law-abiding gun owners.


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