« A notable and curious (and suspect?) sentence "correction" | Main | Bronx cheer for return of executions »

May 7, 2008

Another good test case for real fans of the Second Amendment

This local story from North Carolina provides more fodder for my view (and hope) that an individual and enforceable Second Amendment right could have lots of unexpected ripples if and when sympathetic felons start demanding that their rights get respected.  Here is the story:

Barney Britt holds a state record for shooting the third largest deer in North Carolina history. Hunting is his passion. "It's the challenge of the hunt," Britt said. But by law, the 46-year-old man from Garner cannot take a shot anymore.

When Britt was 20 years old, he was convicted on a felony drug charge.  He served four months in jail; and as a convicted felon, he was not allowed to carry a gun for five years.

He started hunting again in 1987, and for the next 18 years, he said, he was a law-abiding citizen. But in December of 2004, the state passed a law to conform with federal law, which states that a convicted felon can never again carry a gun. "I feel like I'm being violated and punished all over again," Britt said.

He said there was no appeals process, so he is suing the state to try to get the right back to hunt. The lawsuit is now in the hands of the N.C. Attorney General's Office....

"I think it's a public safety issue," Beth Froehling, public policy specialist with the N.C. Coalition Against Domestic Violence, which supported the change in state law. Despite Britt's nonviolent past, Froehling and other proponents of the law said it was just too difficult to pick and choose which convicted felons should carry a gun and which should not.  "Do we want convicted felons to be allowed to have firearms?" Froehling said.

An irony of this story, among others, is that I believe Britt was violating federal law against felons in possession when he started hunting again in 1987 (unless there is some exception to 18 U.S.C. 922(g) that might apply).  I think this also means that, even if Britt gets some relief in North Carolina, he still has to worry about the feds if he goes out hunting again unless he were to get his conviction expunged.

Some related Second Amendment posts:

May 7, 2008 at 07:26 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200e5522d8a7c8834

Listed below are links to weblogs that reference Another good test case for real fans of the Second Amendment:

Comments

The man should be allowed to hunt again. Does anyone disagree that if congress funded the ATF to perform back ground checks that he would indeed be allowed to own a firearm again? Congress stopped funding the ATF for these purposes in 1992.I hope the Heller case has some effect on allowing Barney Britt his Individual rights!!! All felons cannot and should not be lumped together.

Posted by: USMC | May 7, 2008 8:16:33 PM

I wonder if the Felons currently fighting in Iraq are violating federal law? What is going to happen when they start coming home demanding their 2nd Amendment rights? How is it going to set with them that they can carry a firearm to defend their country and fellow soldiers only to be told when they come home that they cannot defend their own homes and family?

Posted by: Disenfranchised | May 7, 2008 8:29:35 PM

"I think it's a public safety issue," Beth Froehling, public policy specialist with the N.C. Coalition Against Domestic Violence, which supported the change in state law. Despite Britt's nonviolent past, Froehling and other proponents of the law said it was just too difficult to pick and choose which convicted felons should carry a gun and which should not. "Do we want convicted felons to be allowed to have firearms?" Froehling said.

It did not appear to be a public safety issue in Mr. Britts case. Why is it so difficult to pick and choose which felons can carry firearms? It seems like a bunch of nonsense. C'mon the mans nonviolent conviction was in 1979. I think Mr Britts rights are being violated.

Posted by: ThatsBS | May 7, 2008 8:57:58 PM

Its not clear from the story whether he was convicted of a state or a federal offense. If the former, I don't think he was in violation of 922(g) once his state firearms rights were restored, since the only disability he was under was based on state law. If the latter, then he was indeed in violating federal law the entire time, notwithstanding the restoration of his state rights. Under the law as it now stands, a presidential pardon is the only way for a federal felon to get his firearms rights restored.

Posted by: anon | May 7, 2008 10:08:01 PM

Under the law as it now stands, a presidential pardon is the only way for a federal felon to get his firearms rights restored.

This is not true. Under 18 U.S.C. ยง 925(c), "the Attorney General" may grant "relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, . . . if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." When the Attorney General does so, he must must "promptly publish in the Federal Register notice of such action, together with the reasons therefor."

Posted by: Jonathan F. | May 8, 2008 12:48:15 AM

"Its not clear from the story whether he was convicted of a state or a federal offense. If the former, I don't think he was in violation of 922(g) once his state firearms rights were restored, since the only disability he was under was based on state law."

If I recall correctly, there are some variances in the approach of the different Circuits to the restoration of state civil rights issue. However, I think it generally requires restoration of more rights under state law than just the right to carry a firearm. I also think the issue is analyzed state by state.

Posted by: Tim Holloway | May 8, 2008 8:28:43 AM

If lawyers are not really sure how people can get their firearm rights back imagine how hard it is for the person with an average education. I think that Mr Britt deserves his firearm rights back if he has been in good standing with the law since 1979. I also find it curious that no one has commented on disenfranchised post about felons carrying arms in the military. I agree with disenfrachised.

Posted by: | May 8, 2008 10:43:50 AM

"Why is it so difficult to pick and choose which felons can carry firearms?"

It's not difficult at all. Louisiana does it and has a pretty good system to weed out the danerous felons. RS 14:95.1 provides an actual list of crimes for which a felon can't own a firearm for 10 years from the date they complete their sentence. This law also has and unless clause which gives the state the option of prohibiting a felon for life. Also if the felon gets convicted of another felony within the prescribed 10 year period then the count starts all over again. There is however a seperate option other than the 10 cleansing period. Under RS 14:95.1, section C (2) allows a felon to get a permit from the local Sheriff for hunting puposes if he is still within the prescribed 10 year statutory period but I don't think too many felons will be given this permit. Once the 10 years expires though this permit is no longer needed.

Posted by: Paul | May 8, 2008 12:09:53 PM

Jonathan F. -- I'm quite sure you are mistaken. The AG delegated that authority to ATF to restore firearms rights in appropriate cases. The AG himself, of course, doesn't review such applications. However, Congress has since 1992 refused to allow ATF to expend any of its appropriated dollars to conduct such investigations. So, while you're correct that the authority is still on the books, so to speak, it cannot legally be exercised, and there seems little prospect that Congress will lift the spending ban any time soon. Hence, a pardon is the only way, as a practical matter, for those convicted of a federal felony to get their firearms rights restored, even a non-violent, white collar offense.

Posted by: anon | May 8, 2008 12:23:17 PM

"If I recall correctly, there are some variances in the approach of the different Circuits to the restoration of state civil rights issue. However, I think it generally requires restoration of more rights under state law than just the right to carry a firearm. I also think the issue is analyzed state by state."

The federal circuit appeals courts have generally agreed that "civil rights restored" under 921 (a) (20) is the three key civil rights: the right to vote, hold public office and sit on a jury. The 5th ciruit has held that if the restoration is generalized then it is not necessary to have the three key rights restored.

Posted by: Paul | May 8, 2008 12:32:22 PM

"I think it's a public safety issue," Beth Froehling, public policy specialist with the N.C. Coalition Against Domestic Violence, which supported the change in state law. Despite Britt's nonviolent past, Froehling and other proponents of the law said it was just too difficult to pick and choose which convicted felons should carry a gun and which should not. "Do we want convicted felons to be allowed to have firearms?" Froehling said.

Grrrr. Constitutional rights are just too much damn trouble. Not just here but across the board. Do away them!

This nanny/matriarchy preventive state is very dangerous. No wonder our Founders didn't let women vote.

Posted by: George | May 8, 2008 2:24:06 PM

I think disenfranchised brings up an interesting point. There are many people serving in the military and in Iraq/afghanistan with felonies. After their honorable discharge maybe they should be pardoned and regain their 2A rights. Any thoughts Scotus or Federalist?

Posted by: | May 8, 2008 3:49:16 PM

I think that Federal law is unreasonable and I hope it is found to be unconstitutional. It would surely be found to be unconstitutional under a strict scrutiny test for an individual right to keep and bear arms (which Heller may establish). The previous Georgia law probably was reasonable and constitutional, even under a strict scrutiny test.

Posted by: Conservatarian | May 8, 2008 9:30:30 PM

Doug, I thought one of the most intriguing things during the Britt oral argument Monday was Justice Mark Martin's comment that he was bothered by the felony/misdemeanor distinction being of such consequence in these days of structured sentencing. His example was a person possessing a small amount of drugs could be guilty of a felony but couldn't be sent to prison. On the other hand a person convicted of "misdemeanor" assault with a deadly weapon can possess a firearm. Which one is more dangerous?

I am litigating this issue in a variety of contexts, particularly in terms of what triggers an habitual felon charge.

I think Burgess lends some support to the argument that we should take a functional look at what a felon is (punishment greater than one year) rather than a label look. That is the way it was under the common law.

In NC it is insane but true that a person charged with going armed to the terror of the people, a misdemeanor , can possess a gun but a person convicted of possessing one rock of crack cannot.

bruce cunningham

Posted by: bruce cunningham | May 8, 2008 10:30:58 PM

Jonathan F. -- I'm quite sure you are mistaken.

Assuming what you say is right, and I take your word for it, I stand pretty much corrected. (Also, I of course did not mean that the Attorney General himself was sitting around reviewing these applications. As you know, it's shorthand for the Justice Department, and so I intended it.)

Posted by: Jonathan F. | May 9, 2008 2:19:04 AM

Jonathan F -- I didn't mean to imply that you actually thought the AG was doing that; if I did, I apologize.

Posted by: anon | May 9, 2008 10:14:46 AM

Just my two cents. The drug laws of this country are absolutely ridiculous. It is very clear to me that Mr. Britts constitutional rights are being trampled. Mr Britt regains his rights after paying his debt to society. North Carolina Changes the law and in 2004 and all of a sudden after 20 years Mr Britt is a threat to society? Hopefully The North Carolina Supreme Court will tell the North Carolina Assembly that They simply over reached. If Not the Heller case in my opinion will.

Posted by: | May 9, 2008 7:14:30 PM

Someone asked for my view, so here goes. I am, generally speaking, not in favor of civil restrictions on people who long ago served whatever time needed to be served and who have since led law-abiding lives. That means that someone who did some non-violent offense in 1979 should be free from these restrictions.

I must repeat though, from a federal constitutional standpoint, I don't think the right to keep and bear arms is a fundamental right. Maybe it should be, but as things stand now, it's not, because the Supreme Court has not ruled that the Second Amendment is binding on the states. I do believe that an armed citizenry is very important to our freedoms as Americans. The right to self-defense is a fundamental human right, and it doesn't mean a lot without the ability to keep and bear arms.

Posted by: federalist | May 9, 2008 7:31:21 PM

Most interesting comments here. I am the attorney representing Mr. Britt whose case was argued in the NC Supreme Court this month. I am quite surprised at the general supportive tenor of the posts. Most people hear "felon" and "gun" and nothing else.

For clarification, Mr. Britt, who at that age of 19 was convicted of a North Carolina felony, never lost his rights under North Carolina law to a long gun. His rights to a handgun were lost for five years and restored in 1987. The restoration means that his rights are restored for federal purposes under 4th Circuit cases.

The act that Mr. Britt has challenged is a retroactive ban of any possession of any firearm by anyone ever convicted of any felony anywhere. There are no exceptions. There is no exception for home defense. There is one person with whom I am familiar who had his federal rights restored after a federal conviction who can now no longer own a firearm here in North Carolina.

The law was denominated as an act to conform state law to federal and to "prevent domestic violence." The Court of Appeals, which upheld the law, held that the right to bear arms is not a "vested" right in North Carolina or in the United States and is, therefore, subject to regulation and even prohibition. The theory there was that any right subject to further government regulation is not a vested right and not eligible for due process protection. By the Court's reasoning, there are no rights for felons in North Carolina -- only privileges subject to the whim and good will of the General Assembly.

Dan Hardway

Posted by: Dan Hardway | May 19, 2008 4:41:51 PM

Dan I was at the North carolina supreme court on 5-5-08 and heard your oral argument. Just wanted to say I think you did a heck of a job. I am one North Carolinian who is pulling for Barney Britt.

Posted by: | May 20, 2008 7:16:58 PM

I was an Army Officer that flew helicopters for 11 years. Prior to that I held one of the highest security clearance for my job as an Atomic Demolitions Specialist. (Backpack nuclear weapons.) There are very few people in this country that have been more closely examined for conduct and propensity to follow the rules. I was always the first to volunteer for anything that was needed and I even volunteered to go to War when the rest of my unit stayed safe and sound in Alaska. While in the military, I even had the pleasure to saved a few lives. I was once as patriotic as anyone and I bled red white and blue. I truly believed that I was serving a greater cause than myself by putting my Country's needs ahead of mine. Then, while I was in Korea, I legally purchased over the counter medications while contained 5 mg of testosterone. After being given permission to have these items by the Army chain of commanded, I was later arrested and charged with "felony drug possession". Now, as a felon, I can't get a descent job, I can't hunt, and I can't even defend my life in my own home. The message is clear, I am a felon and my life is completely valueless. Oh to be sure, there are plenty of minimum wage jobs for bums like me. But no real jobs. After all, we Americans need someone to serve our meals and pick up our trash. Now, after 10 years, I'm growing bitter and I long for the day this nation fails. I pay taxes and obey the law. I have never in my life purposefully broke the law. But...now I see that I will never gain the benefits that this hypocritical and unforgiving nation has to offer. I have become a true monster inside.

Posted by: David | Sep 3, 2008 9:33:43 PM

Does anyone have an update on State V. Britt?

Posted by: BS | Oct 28, 2008 2:11:28 PM

In response to the October, 2008 comment above: I don't have an "update" on the Britt case, but for a number of reasons, I think a post-Heller attack on N.C.'s Felony Firearms Act is in order.

Posted by: COCHRAN | Feb 23, 2009 1:50:22 PM

In my opinion the law banning felons from possesson of a firearm is a punishment & not regulatory. If it was then it would not ban them from having weapons on their personal private property. This is proof that the law is a punishment not regulatory. For the publics saftey would only ban them from haveing a weapon in public not their own house or private land.

Posted by: bobby | Jun 3, 2009 2:22:06 AM

This case was decided by the NC Supreme Court and Britt won! He has been given another chance at his hunting, but the ruling is specific to him, not all felons. The Supreme Court remanded it back to the Court of Appeal for them to remand it back to Wake County Superior Court. So Britt will have his gun rights restored, at least in his home for self defense. Hopefully the General Assembly will change the law back to what it was before 2004.

Posted by: Rob | Aug 29, 2009 6:51:44 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB