In Concealed & Open Carry, Laws & Legal Challenges, Second Amendment
A relatively insignificant disorderly conduct case in North Dakota has the potential to create big headaches for gun control advocates across the country.
Keller v. Keller
On August 14, 2016, Nichole Keller drove with a friend to the residence of her ex-husband, Chad Keller, to retrieve the couple’s children for a visitation. Stopping short of the driveway, Nichole and her friend waited in the vehicle. A few moments later, Karen Keller, Chad’s current wife, emerged from the residence and studied the parked car idling near the property. When she turned to go back into the home, Nichole observed Karen had been carrying a handgun behind her back.
It is undisputed that Karen Keller did not make any threatening movement towards the parked car. In fact, she never went within 200 feet of the vehicle. She did not brandish or wave her handgun or threaten the vehicle’s occupants in any manner. She simply had her handgun with her when she stepped out of her home to get a better view of a vehicle idling near her property.
After speaking with one of her children, who did not wish to leave for their visitation, Nichole Keller left with her friend and called the police. The responding deputy, however, determined there was no cause to file any charges against Karen, as nothing in Karen’s conduct violated any firearm law.
Frustrated, Nichole approached the local court and obtained a one-year “disorderly conduct restraining order” against Karen, claiming she felt afraid because of Karen’s possession of a handgun.
Judge: “There was a gun…”
The judge issuing the restraining order determined that the mere presence of a firearm was enough to justify the restraining order, ruling, “[T]here was a gun. [Karen] brought it out on the property. And it’s obvious that Nichole was very scared. And she testified that she is still scared. And to me, that is the definition of gestures that are intended to adversely affect the safety, security, or privacy of another person…”
Disorderly conduct cannot be extended to “constitutionally protected activity”
North Dakota has a statutory definition of “disorderly conduct” as it applies to the issuance of a restraining order. N.D. Cent. Code § 12.1-31.2-01 allows a judge to grant such an order only if there are “reasonable grounds to believe” that a person has engaged in “disorderly conduct.”
Disorderly conduct is defined under state law as “intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.” However, the definition of disorderly conduct specifically excludes “constitutionally protected” activities such as carrying a gun on one’s own property. Put another way, a constitutionally-protected activity cannot BE disorderly.
Karen Keller appealed the restraining order, claiming the court erred in determining it was reasonable for someone to be afraid of another person for simply holding a weapon in a non-threatening manner. In addition, she explained that her constitutionally protected right to “keep and bear arms” cannot be disorderly conduct under the state’s laws.
Possession of a gun is a “constitutionally protected” activity
On Tuesday, May 16, the five-member panel of the Supreme Court of North Dakota unanimously agreed the judge erred in its ruling and invalidated the restraining order. They determined that the lower court made a mistake by not recognizing that Karen Keller’s possession of a firearm on her private property was a constitutionally protected act. As a constitutionally-protected activity, it cannot be “disorderly”.
The panel ruled, “Karen Keller’s conduct… was constitutionally protected. Nothing in the record suggests her conduct violated the statutory limitations of possessing a firearm… No evidence exists that the disorderly conduct was anything but possession of the gun, and nothing in the record suggests Karen Keller’s actions went beyond her constitutional right to possess a handgun on her private property.” Since the only evidence alleged as “disorderly conduct” was a “constitutionally protected” activity, the restraining order was ruled invalid.
“Fear” is no longer an valid reason for gun control… at least in North Dakota
This insignificant case could have a far-reaching impact on gun control efforts in the United States. Where gun restrictions have been enacted, proponents typically achieve those restrictions by exploiting an often irrational “fear” of guns. They use “scare tactics” to convince an ill-informed public and a politicized local court system to enact their gun control agenda. They wave the most powerful weapons they can find over the heads of assembled school children, and throw out scary phrases like “assault weapons”, registration “loopholes”, and “ghost guns”.
Given the fact that owning a firearm is a constitutionally protected right in all 50 states (by virtue of the second amendment), gun control advocates have often had little recourse but to play on the public’s fear. After all, no one should be required to live in fear, right?
Fear is no longer an option
This North Dakota case soundly deflates the “fear” tactics employed by gun control advocates. It establishes a legal principal, supported by a state supreme court’s unanimous ruling, that one’s fear of a constitutionally-protected activity is no longer sufficient to infringe upon that activity. Under North Dakota law, a person can no longer use their fear of guns to disarm their neighbors. In North Dakota, fear is no longer an option.
It remains to be seen whether other states will follow North Dakota’s lead, or continue to cater to the fear-mongers.Ready to get involved?
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Keywords: ChadKeller, ConstitutionallyProtected, DisorderlyConduct, GunControl, KarenKeller, NicholeKeller, NorthDakota, RestrainingOrder, SecondAmendment.