September 23, 2014

Hon. Archie L. Smith, III

Clerk of Superior Court, Durham County

510 South Dillard Street

Durham, NC  27701

Re:       Handgun Registrations

Dear Clerk Smith:

As you know, on June 19, 2014, the North Carolina General Assembly repealed the 1935 Public-Local Law Chapter 157, which required registration with the Clerk of Superior Court any “pistol, revolver or short-arm machine gun or sub-machine gun” owned or possessed by any person in Durham County. With the repeal of that law, the Clerk has no statutory authority to maintain any handgun registrations, regardless of the former legality of their creation. The North Carolina Office of Archives and History has determined that the registrations have no historic or archival value.

The Clerk of Superior Court’s Office is informing citizens that, while it is now illegal to register handguns, all handgun registrations created prior to June 19, 2014 are the property of the Clerk’s office, and that retention and control of those records are legal. [1]

Were the erstwhile Public-Local Law Chapter 157 the only statutory authority on the question, that may be a reasonable position, as the law repealing it (S 226, SL 2014-11) does not address disposition of the existing registrations. However, that is not the only relevant law.

The North Carolina preemption statute[2] states, in pertinent part:

(a)     It is declared by the General Assembly that the regulation of firearms is properly an issue of general, statewide concern, and that the entire field of regulation of firearms is preempted from regulation by local governments except as provided by this section.

(b)    Unless otherwise permitted by statute, no county or municipality, by ordinance, resolution, or other enactment, shall regulate in any manner the possession, ownership, storage, transfer, sale, purchase, licensing, or registration of firearms, firearms ammunition, components of firearms, dealers in firearms, or dealers in handgun components or parts.

By the plain language of this statute – which is now the only valid and enforceable law to bear on the question – “no county . . . shall regulate in any manner . . . the registration of firearms.” What does this mean? As you know, the plain meaning of a statute is the most important guide to its interpretation. As the Supreme Court stated, “We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.”[3] The Supreme Court also said:

[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.[4]

The word “regulate” is a verb. It means “to fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws.”[5] The word “registration” is a noun. It means “the act or the fact of registering,” but also “an entry in a register; a document certifying an act of registration.”[6] The ordinary English language use of the term “registration” thus encompasses both the act of registration and the records comprising a registration. The preemption statute forbids Durham County to regulate – that is, control or direct by rule or restriction – either an act or record of registration of firearms.

Furthermore, the legislature clearly and unambiguously delineated the scope of this prohibition. There is no wiggle room – for example, no room for any “administrative regulation” or the like. The statute states that “no county . . . shall regulate in any manner . . . the registration of firearms.”

The Durham County Clerk of Superior Court’s Office is engaged in ongoing, continuous control and regulation of the handgun registrations created prior to June 19, 2014. Personnel representing the Clerk’s Office have opined as to whether the registrations are public records. They restrict which registrations a person may access. They control physical access to the registrations, making copies available but disallowing any physical contact with the originals.[7] Indeed, merely maintaining physical possession of the registrations in a secure facility, and restricting access to them, constitutes the regulation – in some manner – of the registration of firearms. NCGS § 14-409.40 unambiguously forbids this, in any manner.

Grass Roots North Carolina (GRNC) was created in 1994 as an independent, all-volunteer, 501(c)(4) not-for-profit organization dedicated to preserving constitutional freedoms. Many of the organization’s projects are devoted to defending the individual right to keep and bear arms. GRNC has successfully employed litigation against government entities on numerous occasions to vindicate our members’ rights. GRNC sued the state of North Carolina in 2010, resulting in a federal judge holding that a statute banning the possession of firearms outside the home during a declared state of emergency was unconstitutional.[8] GRNC’s sister organization, Rights Watch International, sued the town of Winston-Salem in 2012 to force compliance with statutory provisions allowing concealed carry of firearms in parks and recreational facilities; [9] Winston-Salem changed its laws to comply in 2013. GRNC has members who are residents of Durham, whose handgun registrations are being illegally regulated by the Durham County Clerk of Superior Court’s Office. These members are willing to be named plaintiffs in a lawsuit seeking a judicial order to destroy the registrations.

Given that state experts have already determined that the handgun registrations have no historic or archival value; given that no agent of Durham County or the City of Durham can legally utilize the registrations for any reason; given that, absent a statute authorizing their retention, the registrations are a violation of the privacy of Durham County residents; and given the liability to Durham County of the Clerk’s Office continuing to regulate the registrations in clear violation of state law – there is no reasonable course of action but to destroy these registrations. To remove any possible barrier to this end, GRNC will pay the fee of a commercial service provider to remove the illegal registrations from the Clerk of Court’s office, shred them onsite, and recycle the remains. Please contact me at your earliest convenience to arrange a mutually acceptable time for this action.

Sincerely,

________________________________

F. Paul Valone,

GRNC President

________________________________

Edward H. Green, III, Esq.,

GRNC Director of Legal Affairs