This is the first in a multi-part series on Firearms and Self-defense Law.  First, let me say that I am not an attorney and anything written in these articles should not be construed as legal advice.  Further, while I have taken a number of law classes and done extensive research, I am not an expert and in no way should be considered one.  If you have any questions regarding what I have written or desire legal advice, I recommend you seek a competent firearms and self-defense attorney.  Furthermore, if any attorney who reads these articles and would like to add their input, please feel free and I will pass on the information in subsequent articles.  I only ask that you justify your comments with legal references so we may all learn.  These articles are intended to help educate current and future gun owners so they can make better and more informed decisions regarding gun ownership and application of force in self-defense.

The reason that I am writing these articles is that I am constantly getting questions regarding the use of firearms in self-defense.  We are seeing lawlessness on the rise and there are many people concerned about what is to come.  We are seeing people buying guns at an unprecedented rate.  Ammo is exceptionally hard to find and very expensive.  This means that more new shooters are buying guns and people in general are concerned about their families.

We live in a society that is governed by rule of law.  It is the law that allows us to live together, work and play together, build and achieve great things.  If it were not for the law, then chaos would rule.  The most violent would take from the weak and only the strong would survive.  Throughout history, law has provided the foundation of society.  Because of law and our observance of it, we live together in relative peace.

This means that it is our responsibility to understand the law and as law abiding citizens conform to the constraints of the law.  Unfortunately, when it comes to firearms law, most people do not know the basics.  Add to that the complexity, volume of, and penalties for violating the law, and the average citizen is risking potential loss of freedom and financial ruin if they ever have to use their gun in self-defense.

Through this series, I hope to provide you with a basic understanding of firearms law, use of force law, and self-defense law.  This series is not meant to be a complete understanding of applicable laws.  A class is in the works for next year that will provide a much more complete treatment of applicable laws.

As we begin this series, there are several concepts that need to be defined and understood as they impact how we view various events in the context of the law.  I have listed several below and will introduce others as we proceed.

• Ownership – The person in whom is vested the dominion, or title of property; proprietor.  He who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to enjoy and do with as he pleases, even to spoil or destroy it as far as the law permits, unless he be prevented by some agreement or covenant which restrains his right. 
• Possession – The fact of having or holding property in one’s power.  That power meaning having physical dominion and control over the property.
• Trespass – An unlawful act committed against the person or property of another; especially, wrongful entry on another’s real property.
• Assault – The threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery.
• Battery – Any unlawful beating, or other wrongful physical violence or constraint, inflicted on a human being without his consent.
• Simple Assault – An assault committed with no intention to do any other injury.
• Aggravated Assault – Aggravated assault is an attempt to cause serious bodily harm to an individual with disregard for human life. Factors that raise an assault to the aggravated level typically include the use of a weapon, the status of the victim, the intent of the perpetrator, and the degree of injury caused.
• Assault with a Deadly Weapon – Assault with a deadly weapon is a felony offense regardless of the actual injuries caused to the victim. An assault with a deadly weapon occurs when an attacker accompanies a physical attack   with a physical object capable of inflicting serious bodily injury or death, by virtue of its design or construction. 
• Personal Property – Any movable thing or intangible item of value that is capable of being owned by a person and not recognized as real property.
• Real Property – land, and anything growing on, affixed to, or built upon land. This also includes man-made buildings as well as crops. Real property is best characterized as property that doesn’t move, or that is attached to the land. This is in contrast to personal property, which can be moved or transferred physically.
• Highly Defensible Property – That property which may be inhabited by an individual.
• Curtilage – The curtilage of a home is the enclosed area encompassing the grounds and buildings immediately surrounding a home. The law considers the curtilage an extension of the home because of the privacy expectation they have. Curtilage is treated just like the home for purposes of the Fourth Amendment.

Before we start to look at specific laws, we need to understand a couple of additional concepts.  The first is what is commonly termed the “Supremacy Clause”.  It is found in Article VI Section 2 of the US Constitution and in Section 3 of the NC Constitution.  These clauses state that the laws of the US supersede the laws of the States and that the laws of the State supersede local laws.  So how does this play out?  These clauses hold that laws made at the lower levels of government cannot be in conflict with the laws of the higher government entity.  This is why you may have heard that people in states that have legalized marijuana and are users are prohibited from purchasing a firearm.  This is because Federal law regulates firearms ownership and prohibits illegal drug users (marijuana is illegal at the Federal level) from purchasing a firearm (ATF Form 4473).  It is important for us to understand this relationship because local governments may attempt to enact legislation that is more restrictive or in conflict with State or Federal law (Greensboro greenway controversy).   In North Carolina, our Constitution in Section 24 explicitly prohibits the State from making laws in a number of areas.  Firearms is not on that list.  Thus, we find firearms laws at the Federal, State, and Local Government levels and you the citizen are responsible for abiding by all both where you currently are and wherever you may go.

In our legal system, there are two types of laws; Common Law and Statutory Law.  Common Law is those laws that developed from English court decisions and customs and form the basis for our laws in the US.  Common Law is furthered by the body of law based on judicial decisions and are known as precedent.  Statutory Law are those laws passed by legislature or other governing bodies.  We use the term “codified” to refer to the written Statutory Law.

When it comes to firearms laws (not self-defense or use of force), they all have basis in the Second Amendment to the US Constitution.  This Amendment says “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  People over the years have argued what this one sentence really means.  Some have argued that we should be allowed to own any firearm available.  Others have argued that Militia is synonymous with Military and citizens should not be allowed to own guns.  In 2008, a court case, DC vs Heller, made its way to the US Supreme Court.  In a 5-4 decision, the Court affirmed the right of the individual to possess firearms for the purpose of self-defense.  In the prevailing opinion Justice Antonin Scalia argued that the “right of the people to keep and bear arms, shall not be infringed” codifies an individual right derived from English common law and codified in the English Bill of Rights. (In his opinion, Justice Antonin Scalia provides a wonderful history lesson on why we have and should continue to have the Right to Bear Arms.)  However, as the case was restricted to the District of Columbia, a federal district and not a state, a subsequent case McDonald v Chicago affirmed that the decision in DC v Heller applied to the States as well.

Further of interest but less known is that 44 States have some form of the right to bear arms codified in their State Constitution.  North Carolina, along with Virginia and Pennsylvania, were the first to include this right in 1776.  Article 30 of the NC Constitution states “A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power.”

One final point on this topic, in multiple cases at both the Federal and State level, the “right to bear arms” has been held to be limited.  The vision that this right is unlimited is not supported by case law and “reasonable” restrictions are permitted.  Herein lies much of the conflict between those who advocate for “reasonable” gun laws and those that support a more lenient position.

I hope this has given you some things to think about.  In subsequent articles we will explore topics such as legal ownership, possession and transportation of firearms, your right to self-defense and legal use of deadly force, and the criteria for claiming self-defense as a legal defense.  If you have friends or know of someone that would benefit from these articles, feel free to pass them along.  

Copyright Neblett & Associates 2020