Federal judge allows Second Amendment lawsuit to proceed against Mecklenburg sheriff | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    A federal judge will allow gun rights activists to proceed with a Second Amendment lawsuit against Mecklenburg County Sheriff Garry McFadden. But the judge rejected a request for a preliminary injunction against McFadden because of the way his office handles concealed handgun permits.

    US District Judge Max Cogburn's 14-page order Tuesday offers a mixed result for plaintiffs, including gun-rights groups Grass Roots North Carolina, Gun Owners Foundation, Gun Owners of America, and Rights Watch International.

    Cogburn dismissed the Mecklenburg Sheriff's Office as a defendant in the case. He also rejected the plaintiffs' "facial" constitutional challenge against state laws regarding mental health requirements for concealed handgun permits. A facial challenge argues that the law is unconstitutional under all circumstances.

    The judge will allow plaintiffs to proceed with their case challenging the way McFadden applies the law to issue permits in Mecklenburg County.


    "The Court finds that, to the extent Plaintiffs make a facial challenge to the North Carolina mental health statues, Plaintiffs' Second Amendment and other constitutional claims have no merit," Cogburn wrote.

    "The Supreme Court's decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen mandates dismissal of a facial challenge to the North Carolina mental health statutes at issue," the judge wrote. "In Bruen, the Supreme Court struck down New York State's 'proper cause' statute for concealed carry permits. In so doing, the Supreme Court held that '[t]o justify its regulation [of firearms], the government may not simply posit that the regulation promotes an important interest. Rather the government must demonstrate that the regulation is consistent with this Nation's historical treatment of firearm regulation.'"

    "The question before this Court, then, is whether the North Carolina mental health statutes at issue are consistent with this Nation's historical treatment of firearm regulation. The Court concludes that they are," Cogburn explained.

    "Here, the North Carolina mental health statutes simply require every Sheriff's Office to determine whether someone is mentally ill and thus cannot safely handle a handgun, a proposition which the Supreme Court has repeatedly recognized is consistent with this country's historical tradition," he wrote. "Moreover, the statutes' plain language, on its own, does not create unreasonable waiting times for obtaining permits. For these reasons, the Court finds that the challenged North Carolina mental health statutes do not, on their face, violate the Second Amendment, or any other federal Constitutional provision."

    Cogburn noted that the same US Supreme Court case has implications for the suit against McFadden. "In making their as-applied challenge, Plaintiffs rely on the final sentence of footnote 9 in Bruen, which states that 'because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.'"

    The federal court will wait to render a decision about McFadden's actions.

    "Here, the Court will reserve ruling on Plaintiff's as-applied challenge to the North Carolina statutes at issue," Cogburn wrote. "That is, the Court will allow the parties to conduct discovery to determine whether, in applying the statutes, the Sheriff's practices have resulted in 'lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to [obtain permits].' Once the parties have conducted discovery on this issue, the parties may renew their arguments through summary judgment motions."


    North Carolina requires a permit for anyone who wants to carry a concealed handgun. State law includes a mental health check for anyone seeking a permit. Plaintiffs argued that McFadden's office engaged in excessive delays in dealing with mental health checks. Those delays led to delays in issuing permits.

    Cogburn noted that all three individual plaintiffs in the case had received concealed handgun permits since filing suit. The turnaround time from application to issued permit ranged from six months to nine months.