A new front in the fight to repeal Jim Crow-era gun control law

AP Photo/Morgan Lee

Two years ago lawmakers in North Carolina launched an effort to scrap the state’s “permit-to-purchase” law; a Jim Crow-era relic that’s been on the books since 1919 requiring all prospective handgun buyers to present themselves to their county sheriff and be judged to have the “good moral character” to possess a pistol before being permission to own one. The repeal bill passed the Republican-controlled House and Senate, but was vetoed by Democrat Gov. Roy Cooper, who declared that the permit laws “reduce gun homicides and suicides and reduce the availability of guns for criminal activity” while ignoring the fact that black applicants are routinely denied at higher rates that than their white counterparts. Cooper was okay with taking down Confederate statues erected by Jim Crow supporters a century ago, but he doesn’t want to touch the statutes they enacted at the same time.

Republicans only needed a handful of seats in both chambers this year to have a veto-proof majority, but it looks like they’ve come up a hair short in the state House. While a repeal bill should be re-introduced and swiftly approved, the time may also be ripe for a legal challenge to the permit-to-purchase law, with Republicans now in control of the state Supreme Court thanks to big wins on Election Day.

Two Republicans running for seats on the North Carolina Supreme Court beat their Democratic opponents Tuesday, flipping the partisan makeup of the high court in Republicans’ favor for the first time since 2016. Republicans now hold a 5-2 majority on the panel.

Republican Trey Allen, general counsel for the state court system, defeated sitting Democratic Associate Justice Sam Ervin IV for his seat.

And Republican Court of Appeals Judge Richard Dietz beat Democratic Court of Appeals Judge Lucy Inman for an open seat. Dietz will succeed retiring Associate Justice Robin Hudson, a Democrat who has served on the panel since 2007.

Democrats held a slim 4-3 majority on the high court heading into this year. With two Democrat-held seats up for election, Republicans only needed to win one to retake control. The victories will give the party a majority for several years, likely through at least 2028, as the next two seats up for reelection are also held by Democrats.

I have to say I find it weird that North Carolina has partisan elections for their Supreme Court, but I’m glad that it should work in the Second Amendment’s favor for the next couple of years. The state Supreme Court should have no problem whatsoever finding that North Carolina’s permit-to-purchase law is an unconstitutional infringement on the right to bear arms by using the “text, history, and tradition” test spelled out by SCOTUS in the Bruen case.

Permit-to-purchase laws like the one in North Carolina are historical outliers, not a part of the historic tradition of the right to keep and bear arms. North Carolina’s law was put on the books in 1919 to allow law enforcement to subjectively determine who could possess arms commonly used in self-defense; a practice the Supreme Court said was patently unconstitutional in Bruen. Even if this law was racially neutral it would be unconstitutional, but it’s an even more egregious violation of the Second Amendment when you consider that to this day black applicants in Wake County, North Carolina are nearly three times as likely to be denied a permit compared to white applicants.

The permit-to-purchase system has also been abused by sheriffs who’ve delayed issuing permits long past the 14 days allotted to them under state law; another issue entirely, given that the provision amounts to a 14-day waiting period on the purchase of any pistol. As the Supreme Court noted in Bruen, even “shall issue” laws can be constitutionally suspect if they result in lengthy delays on the exercise of a fundamental right, so a “may issue” permit-to-purchase system that imposes an automatic two-week waiting period and allows for sheriffs to delay issuance for months longer without consequence or recourse would be legally problematic on a couple of different levels.

It’s time for a multi-pronged approach to removing this Jim Crow relic from the state’s statutes. While lawmakers work to repeal the permit-to-purchase law (and attract at least one or two Democrats to join in), Second Amendment activists can bring the fight to the state’s highest court and demand the law be thrown out as a violation of the Second and Fourteenth Amendment rights of North Carolinians. Legislation would probably be faster, at least if there are a couple of Democrats in the House brave enough to buck their party, but plaintiffs could also argue for an injunction blocking continued enforcement of the permit-to-purchase law. And if that injunction were granted based on the likelihood of ultimately prevailing ( a strong possibility given the current makeup of the state Supreme Court), that would put even more pressure on lawmakers (and Cooper) to repeal the law rather than continuing to defend it in court.

We really could see an end to the state’s permit-to-purchase law next year, and North Carolina 2A supporters should be reaching out now to let their elected representatives know they want this to be a top priority when the 2023 session kicks off.