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August 29, 2009

North Carolina Supreme Court finds state constitutional right for some felons to bear arms

Thanks to this post at The Volokh Conspiracy, which is titled "Felons and the Right To Bear Arms," I discovered that late yesterday the North Carolina Supreme Court ruling in Britt v. State, No. 488A07 (NC Aug. 28, 2009) (available here), that at least North Carolina felons have a state constitutional right to bear arms under the North Carolina Constitution.  Here are a few key passages from the notable (and very important?) ruling:

Article I, Section 30 of the North Carolina Constitution provides, in pertinent part: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”  This Court has held that regulation of the right to bear arms is a proper exercise of the General Assembly’s police power, but that any regulation must be at least “reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.”...

Plaintiff pleaded guilty to one felony count of possession with intent to sell and deliver a controlled substance in 1979. The State does not argue that any aspect of plaintiff’s crime involved violence or the threat of violence. Plaintiff completed his sentence without incident in 1982. Plaintiff’s right to possess firearms was restored in 1987.  No evidence has been presented which would indicate that plaintiff is dangerous or has ever misused firearms, either before his crime or in the seventeen years between restoration of his rights and adoption of N.C.G.S. § 14-415.1’s complete ban on any possession of a firearm by him....

Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of lawabiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety....

Based on the facts of plaintiff’s crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute’s operation, as applied to plaintiff, the 2004 version of N.C.G.S. § 14-451.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety.  In particular, it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.  We conclude that N.C.G.S. § 14-415.1 is an unconstitutional violation of Article I, Section 30 of the North Carolina Constitution as applied to this plaintiff.  As discussed above, pursuant to N.C.G.S. § 14-415.1, the State unreasonably divested plaintiff of his right to own a firearm.  Such action violates plaintiff’s right to keep and bear arms under Article I, Section 30 of the North Carolina Constitution.

Though this ruling is based only on state constitutional law, it raises a host of very interesting questions in the wake of Heller (especially given that the language of the NC constitution is parallel to the language of the Second Amendment).  Let me do just a little issue spotting:

1.  Does this ruling automatically extend to all other NC felons who can show a "history of respect for the law [and] the absence of any evidence of violence" in their lives?  My guess is that a lot of drug and drunk driving felons might reasonably make such a claim; but do they need to go to court to get a formal ruling that they are like Britt?

2.  Because Britt had his civil rights restored under state law, he is no longer prohibited under federal statutory law from possessing a firearm.  But can this ruling help NC felons who don't have their civil rights restored if and when they get charged in federal court with felon-in-possession under federal law?

3.  Will any lower federal courts be moved by the bold and clear assertion in Britt that the NC blanket ban on felon gun possession is "an unreasonable regulation, not fairly related to the preservation of public peace and safety"?   

August 29, 2009 at 10:59 AM | Permalink


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I will take a partial stab at No. 2. As you say, the Supreme Court made it clear in Beecham v. United States, 511 U.S. 368 (1994), that the restoration of firearms rights for purposes of the federal felon-in-possession statute, like the classification of the offense as a "felony," is governed by the law of the convicting jurisdiction. Understandably, the decision is silent about what counts under any particular state law regime as a restoration of rights. But we know that it isn't limited to statutory mechanisms, since in most states a full and unconditional gubernatorial pardon restores firearms rights as well. Thus, if NC develops a body of caselaw delineating when a state offender has a right to possess firearms under the state constitution's version of the Second Amendment, notwithstanding a felony conviction, I see no good reason why the Supreme Court would refuse to give it effect.

With respect to your first question, I think the inexorable answer is yes. Britt's situation is surely not so uncommon that the decision doesn't likely extend to lots of other state offenders. On my quick read, nothing in the opinion suggests otherwise.

My prediction is that we will see these two questions come together (fairly soon?) when one of the US Attorneys in NC decides to test the reach of the decision by indicting a state felon under the federal statute.

Posted by: Sam | Aug 29, 2009 11:42:23 AM

Doug, Britt makes Justice Scalia's opinion in Heller look stingy. There is no reference to context (the home) purpose (self-defense) or type of weapon (must be in existence at the founding.) The focus is on the character of the person and his demonstrated responsibility over time.

A major decision.

bruce cunningham

Posted by: bruce cunningham | Aug 29, 2009 1:15:57 PM

Doug - It seems clear that if a state felony offender has all civil rights restored, and is not expressly prohibited from possessing at least some guns under state law, federal felon-in-possession law does not apply. See Caron v. United States, 524 U.S. 308 (1998). Clearly Mr. Britt is home free under federal law. However, it is far from clear whether and to what extent the NC Supreme Court ruling applies to other NC felony offenders, even those in exactly the same position under the NC firearms laws as Britt himself, since the majority's decision on the reasonableness of the prohibition relies heavily on the sympathetic facts of Britt's case, and gives little guidance as to how one might determine what reasonable regulation is in other cases. To the extent it matters whether Britt's firearms rights were previously restored or not lost at all (and that is far from clear from the majority's opinion), there are several other classes of offenders who can claim its benefit since NC has amended its felony firearms laws twice since Britt's rights were restored in 1987, each time imposing further restrictions. Indeed, long guns were not barred at all until 2004. I imagine that the federal courts are not going to feel very comfortable applying such a subjective standard in FIP cases.

Posted by: margy love | Aug 29, 2009 3:22:43 PM

Interesting. We're slowly moving towards a jurisprudence where laws restricting felons from owning guns are constitutionally suspect, but laws restricting felons from voting are permissible. If you've broken the law we exile you from the democratic polity, but not from your ability to do violence.

Posted by: dm | Aug 29, 2009 6:42:36 PM

Margy -- Maybe I am missing something, but the fact that Britt's firearms rights had previously been restored is not especially relevant, except perhaps that it underscores the fact that he is not a genuine threat to public safety. But the state surely has the authority to retroactively impose a firearms prohibition on convicted felons, because it is not punishment for constitutional purposes. What the state gives, it can take away, at least in the absence of a full and unconditional pardon, which would constitute an independent basis for relief from the disability. So, if Britt is home free under federal law, and I agree that he is, it is only because he now has a right under the NC constitution to possess firearms. I also agree that the right seems to turn on a fact-specific inquiry about the extent to which a person has been rehabilitated and thus presents a present threat (or not) to public safety. But if someone is "in exactly the same position" then, at least in principle, he is also home free, isn't he? How is that factual inquiry any more difficult than lots of other sorts of inquiries that court's routinely undertake?

Posted by: Sam | Aug 29, 2009 7:14:48 PM

In previous comments on the Second Amendment (and I do not say Hller issues) I pointed out that there is the 14th Amdt. incorporation of the Second and there is also the unenermerated rights protected by the 9th Amdt. This NC decision seems to affirm the rights of the person affected by the prosecution. Usually the courts will aim at the goal of government to deny gun rights. Once we get courts to focus on rights of persons vs goals of government then we trend toward America and not Germany in 1936 when the suspended their civil laws and constitution. So, Doug, when you do your seminar on the 2nd Amdt might you mention the 'unenumerated rights' guaranteed by the 9th amdt and also the fact taht the 14th amdt incorporated the 2nd amdt.

Posted by: mpb | Aug 29, 2009 7:15:32 PM

Doug, one of the encouraging things to me, as a NC practitioner, about Britt is that it adopts a subjective standard of analysis, not a knee-jerk, one size fits all. In other words, in NC, a person convicted of Assault with a Deadly Weapon and Going Armed to the Terror of the People, both misdemeanors, are not prohibited from possessing a gun, but someone convicted of Felonious Littering or Failure to Appear in Court for a Felony, or Submitting False Affidavit for a Driver's License, all felonies, can be barred.

In my opinion, in this modern era of grid sentencing the felony/misdemeanor distinction should be relegated to the trash pile.

Laudably, Britt focussed on the "nonviolent" nature of the def's record and his seventeen years of responsible and safe gun use.

Since you are teaching a 2nd amendment seminar this fall, if you would like I can keep you in the loop on what the legislative response to Britt should be and would welcome your students' input. I have some nascent ideas of what I think the new statute should look like in response to Britt.


Posted by: bruce cunningham | Aug 29, 2009 9:24:07 PM

"...in this modern era of grid sentencing the felony/misdemeanor distinction should be relegated to the trash pile."

Amen. Especially in the federal system where so many crimes seem to have been designated felonies to tacitly justify the time and efforts of the deified bureaucrats (agents and prosecutors) who work the cases.

Posted by: John K | Aug 30, 2009 6:34:25 PM

The constitutions of 44 states guarantee the "right to bear arms." I would not be surprised to see a spate of lawsuits in state courts by people who remain under a state (and therefore federal) firearms disability. Also people charged/convicted under 18 USC 922(g) may defend based on state constitutional rights. I am wondering how the federal courts will decide these state/federal law issues. If they use the subjective case-by-case approach of the NC court, it could get really wild out there!

Does anyone know of a current reliable compilation of state laws governing firearms privileges for people with a felony conviction? (My “Relief” book is not complete for firearms, the FAMM/NACDL lodging in the Logan case is similarly incomplete, and the 1996 Pardon Attorney survey is by now quite out-of-date.)


Posted by: margy love | Aug 30, 2009 6:38:53 PM

One additional note, in response to Sam's first post. For a state felony conviction to be excluded as a predicate for federal FIP prosecution, it is not enough that state firearms rights are restored (or not lost in the first place). 18 USC 921(a)(20) requires in addition that all civil rights (vote, jury, office) must be restored, or that the conviction be pardoned, expunged or set-aside.

There are 23 states and the District of Columbia that restore all three civil rights automatically (either after release from prison or after completion of sentence), 19 of which have a "right to bear arms" provision in their state constitution. In addition to North Carolina, those states are: Alaska, Arizona (first offenders only), Colorado, Conncticut, Idaho, Illinois, Kansas, Maine, Massachusetts, Michigan, Nebraska, New Hampshire, North Dakota, Ohio, Oregon, Rhode Island, South Dakota, Washington. Another 10 states with a "right to bear arms" clause in their constitution (or, in the case of New York, in a statute) provide for restoration of all civil rights through a reasonably accessible restoration procedure. But in 15 states with a "right to bear arms" clause, at least one of the major civil rights (generally jury right) can be regained only through a governor's pardon. So any mischief caused by the Britt approach is likely to be confined to 2/3 of the states (!).

Posted by: margy love | Aug 30, 2009 10:17:07 PM

Margy, as we've discussed off-line (I post this for the benefit of Doug's readers), our comments aren't inconsistent, since my point was confined to North Carolina. As you correctly point out, North Carolina is one of those states in which all major civil rights are restored automatically under state law. In 2004, the state retroactively imposed a total ban on felons' possession of firearms. I pointed out that is a permissible exercise of the police power, because civil disabilities of this sort aren't punishment, in the strict constitutional sense. See Lewis v. United States, 445 U.S. 55, 65-67 (1980). I also note that the NC Court of Appeals rejected Britt's claim that the 2004 ban was an ex post facto law or a bill of attainder, which the NC Supreme Court did not address. Thus, the fact that his firearms rights previously had been restored is irrelevant.

The upshot is that felons in NC are under a statutory firearms disability, which, as applied to Britt, is unconstitutional under the state constitution, because he doesn't pose a genuine threat to public safety. Thus, the only basis for saying that his firearms rights have been restored, and hence his defense to a federal FIP prosecution, is his state constitutional right to bear arms. We can expect every similarly situated state offender in NC to make the same argument, which will have to be hashed out on a case-by-case basis. If the NC legislature wants to preempt that result, it can make the restoration of a felon's other civil rights dependent on some other restoration mechanism.

We can also expect that any similarly situated defendant -- one with all civil rights except firearms rights -- in a state with a "right to bear arms" clause in their state constitution to cite Britt as well. Whether Britt gets any traction outside NC I have no idea, but it looks likely to keep lawyers busy for some time.

Posted by: Sam | Aug 31, 2009 3:51:45 PM

Sam -
Would you apply your reasoning to persons with federal or out-of-state convictions who reside in North Carolina? The Supreme Court in Beecham v. U.S., 511 U.S. 368 (1994), held that federal offenders who had had their civil rights restored under state law could not avail themselves of the "rights restored" defense in 18 USC 921(a)(20). But I have always thought that both the factual underpinning and reasoning of Justice O'Connor's opinion were questionable, and I don't see how the decision can survive Heller. (I don’t know if out-of-state offenders have been required to seek restoration in the jurisdiction of their conviction to avail themselves of 921(a)(20)'s safe harbor.) The fact is that Congress wanted restoration under the FFA to be controlled by state rather than federal law, and I can think of no sensible reason the North Carolina courts would treat their residents differently for purposes of state firearms law simply because of the jurisdiction in which their conviction happened to be obtained, as long as they fit the profile of the rehabilitated offender in Britt. Indeed, if they did so it might raise equal protection issues. So might federal 922(g) prosecutions in North Carolina that were directed only at out-of-state and federal offenders.

It is true that there are a handful of states in which federal and out-of-state offenders may not avail themselves of the same full civil rights restoration that is available to in-state offenders (those states that require a gubernatorial pardon to restore the right to sit on a jury or, in one case, hold office). Perhaps in those jurisdictions convicted persons would be required to obtain restoration in the jurisdiction where they were convicted.

But at least in states like North Carolina whose restoration laws apply even-handedly to all convicted persons no matter the jurisdiction of conviction, I think there is a strong argument that a North Carolina resident's right to bear arms should not depend upon the fortuity of the jurisdiction of her conviction. If the success of such an argument requires reconsideration of Beecham for federal offenders, I say it's high time.


Posted by: margy love | Aug 31, 2009 5:11:06 PM

How does this effect Federal felons in NC after Bean, and the failure to fund ATF to give back gun rights?

Posted by: tim oates | Sep 1, 2009 3:03:56 PM

For a detailed account of the legislative history of the Felony Firearms Act (written before the latest Britt decision), check this out: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1386182 . The paper exposes the bizarre and entirely non-compelling manner in which the 2004 amendments to the Act came to pass.

Posted by: Matthew Cochran | Sep 24, 2009 9:13:46 PM

can i get my 2nd ammendment rights restored?IT HAS BEEN ALMOST 20 YEARS AGO?im from north carolina and i havent been in any trouble since my last conviction.Ihave applied for an unconditional pardon trying to get it reviewed from the governors office of clemency.check out this site felons fighting back,learnaboutguns.com,,,,,james g.

Posted by: james a ,gibbs | Oct 17, 2009 8:48:11 PM

a passenger in a suv , cops stop the suv routine check driver jump out and run passenger stays gets arrested guns found in back seat behind passenger. passenger charged with possession of weapons.not passenger car drivers girlfriend car, no finger prints of passenger on anything but front seat.why was passenger charged. NC

Posted by: MALIK | Jan 31, 2010 12:07:52 PM

I have been denied a CCW permit because of the mental health dept in catawaba county NC wants me to pay them $118. for a substance abuse evaluation.
I have never failed a drug test, and I have no DWI's. I am 50 years old and use to drink beer, and had smoked pot as a young man. I no longer drink; peroid.I am currently in college. I last worked upholstering furniture, in NC.
I strongly feel my 2nd, 5th, and 14th, amendment rights have been violated by the mental health dept.
The burden of proof is on the state. I do not have to prove that I am not a alcoholic! It is the states job to do that.
The substance abuse evaluation is a violation of the 5th amendment; Against self incrimination. Also, My right to due process of the law has been violated. I have never been charged with anything. One Quack doctor has denied my rights with out any charges, That is Corruption!

Posted by: David | Mar 2, 2010 3:59:35 PM

I'm from N.C.in 1988 I was military was convicted for receiving stolen property at Ft. Bragg did 6mo at Ft.Riley, labled as a felon.I now live in Va I'm trying to get my rights back so which state should I try to get my rights back?

Posted by: sam | Mar 3, 2010 3:42:10 AM

I thought I would find this much earlier considering how good the information is.

Posted by: tiffany charm bracelet | May 30, 2011 5:16:29 AM

I was convicted of a Felony in 1999. Me and some fraternity brothers forged a bunch of Credit Card checks that were sent to on of our addresses, I couldn't afford an attorney, and got convicted of a Forgery Felony. I have been a Hunter all my life, have a wife and 2 kids, I am a national sales executive, and cannot currently own a gun. I was told by my probation officer in 99, that I would be able to have my gun rights restored? It seems as though things have changed. What steps can I take to have my gun rights restored in NC? Thank you for your help!

Posted by: shane | Dec 13, 2011 2:31:02 PM

Hello, I have been serching my brains out seeking someone that can please help me! No one seems to want to either get back to me or have time to help or deal with me at all. I am a first time non-violent offender. My crime took place back in 1989. We were raided for trafficing with the intent to sell cocain. The charges were dropped by the state on North Carolina for illegal search and sizure. They had a warrent for appartment "C" we were in appartment "E" so the State of NC threw it out. In 1991 the feds came back with a reindictment and pretty much said they did not care, they got what they got so we were going to prison! I know we done wrong, thats a given! And Im not complaining about that, I take responsibility for my actions. I was a kid "21 yrs old" I was really stupid for even being around that kind of mess! I didnt use drugs and I still dont use drugs nor do I drink, never have! I was sentenced as a first time non-violent offender to 6 and a half year in a high security prison and 3 years of supervised probation. My whole time in prison i did not get not one infraction nor did I when i was on supervised probation. I maintained being a model inmate and completed all the programs that were offered to me. I am 45 years old now and still not been in any trouble since that one time in my life I made one bad mistake. I have maintained honest work, raised one of my daughters by myself, buying a house and a new car. I am well respected by everyone who knows me. I am asking someone "anyone" if they can help me or help guild me in the right direaction to please help me get my rights back to bare arms and all the rights back as a free american citizine. I have paid deeply for my one mistake, Please someone tell me I dont have to pay for the rest of my life for the one mistake I made in 1989 Is there any help for me? Yianni P.S. Please forgive any misspelled words! not the best speller! :)

Posted by: Yianni A, Drakakidis | Jun 28, 2012 10:55:36 PM

I'm not living in NC, and have never has residence there. I live in Illinois and have 2 felonies. Burglary 1985 and theft 1989. In Illinois I may petition the Court to grant an FOID Card and for Restoration of Rights if the Illinois State Police denies my application for the FOID Card. The Statute 430 ILCS 65/10 states that the court will determine if substantial justice has been done, or find that substantial justice has not been done.

I found this page searching for understanding of the term, substantial justice. While I will have a lawyer representing me and the Petition, I like to get a better understanding of the processes.

From my understanding, the state has jurisdiction over the restoration of rights petition because, restoration of rights can no longer be obtained on a federal level. As for fairness, I completed my terms of probation successfully and paid all the restitution required by the the court. And by using my freedom properly for the 23 years since the most recent conviction, I have shown that I am not a threat to the community not to society as a whole.

I fully understand a restoration of rights is not a pardon, nor does it expunge the criminal convictions from the public record. Nor will I be able to answer the question, "have you ever been convicted of a felony", truthfully by answering "no". The restoration of rights will only allow me to be granted an FOID Card.

I am currently not under any immediate threat to my safety. Granting a FOID Card is part of the rebuilding process from a lifetime of being labeled a criminal.

If anyone has some clarification of the term substantial justice I am interested in obtaining a better understanding.

Posted by: William Roberson | Jul 24, 2012 5:36:39 AM

My name is Michael Farrow. My farther which name is Michael Farrow Case was compared to Britt barney. My dad is the black Britt barney my dad argued the same case to the courts he was under u,s.c 921.after serving prison from 1990 to 1992 cocain possession . He rights were restored, not knowing once your free your right are restored under the 1791 bill of rights as well as no.1 sec30. Under nc. Constitution. Ten years later the cops searched the vechical found shot guns and a hand gun.Were in the south who doesn't like hunting. non violent offender. The system did not work for my farther he has been in prison for 13years. for what? My family is happy for.Mr.Britt were using this case for inspiration to help my dad released from the slavery he is in.

Posted by: michael | May 3, 2015 4:45:24 PM

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