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September 1, 2009

Reactions to the NC ruling in Britt felon gun rights case

This new local article, headlined "Felon wins the right to own a gun: Narrow ruling causes big stir," reports on reactions to the North Carolina Supreme Court's 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 (discussed here). Here are excerpts:

The opinion applied only to Barney Britt, who was convicted of a drug crime in 1979, and it didn't have an immediate effect on the thousands of other felons in the state. Criminal defense lawyers who practice in federal courts said they don't know what effect, if any, the opinion will have on federal rules, which prevent felons from buying and owning weapons except when a state has restored that right....

Though the opinion focused just on Britt's case, both sides of the gun control issue saw the ruling as significant because the state's highest court found that Britt had a right to bear arms that trumped the state's ability to restrict him from owning any weapons.

Advocates spent Monday poring over the 5-2 decision in Britt v. State of North Carolina. The decision was seen as a victory for those who view government restrictions as too strict, while those in favor of tighter gun control described it as an alarming blow. "This has implications beyond just North Carolina," said Robert Levy of the Cato Institute, a Washington-based Libertarian think tank that opposes gun control. "North Carolina has now decided that some felonies are not so serious to result in deprivations of the right to defend oneself."

Roxane Kolar, director of North Carolinians against Gun Violence, said the decision was troubling. "I've never heard of this before, of a felon having an inalienable right to own a weapon," she said. "It's putting a lot of our state gun laws at risk."

The decision could spark a rush to local courthouses as felons try to have their rights to own and store firearms in their homes restored. Those with the best chance would likely be those with cases similar to Britt's; people convicted of nonviolent crimes who had their right to own a gun restored and then taken away with a 2004 law, said Jeanette Doran, a senior staff attorney with the N.C. Institute for Constitutional Law.

Legal e-mail message boards lit up over the weekend, with lawyers swapping tales of clients convicted of felony littering charges then barred from hunting deer for the rest of their lives.

The state legislature may address the issue with a bill introduced for the 2009-2010 session by Rep. Phil Haire, a Democrat from Western North Carolina, that would give limited hunting privileges to nonviolent felons....

The office of N.C. Attorney General Roy Cooper, who defended the state law in the case, declined to comment on the ruling....

Kolar of North Carolinians against Gun Violence expressed concern that judges would be the ones to decide whether felons could own guns, something she says gives too much discretion to the courts. Jim Woodall, the district attorney for Orange and Chatham counties, said he found the opinion worrisome and hoped it wouldn't be applied broadly to others. "They're carving out a one-person exemption," he said.

September 1, 2009 at 10:25 AM | Permalink


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Doug, in my opinion, it will be difficult to formulate a logical and coherent response to Britt. But, that is because Britt itself is a response to the illogical and incoherent belief that the felon/misdemeanant distinction has any validity in the light of modern grid sentencing.

We have nonviolent felonies for which the statute says a defendant cannot receive active time, and misdemeanors for which a def can get two years in prison.

bruce cunningham in NC

Posted by: bruce cunningham | Sep 1, 2009 10:59:24 AM

Doug & Other Readers: The "Britt" deision has larger ramifications than initally appear on its face. The Federal "felon in possession of a firearm" statute, 18 u.S.C. section 922(g)(1), looks to state law to determine whether, if the prior felony was a state law felony, the defendant is disqualified from possessing a firearm, and thus guilty of the Federal crime. See, 18 U.S.C. section 921(a)(20): "Any conviction ... for which a person ... has had civil rights resored shall not be considered a conviction for purposes of this chapter ...". Before the 2004 N.C. statute (mentioned in the article) was passed, North Carolina was the only state in the U.S. where all of a state law felon's civil rights (including the right to bear arms) were automatically restored by operation of law, within a short period of time after he completed his sentence (including probation or parole). The result before 2004 was that state law felons couldn't generally be guilty of violating the Federal law, section 922(g)(1). There are several pre-2004 Fourth Circuit cases on this point. The Feds absolutely hated this, and put pressure on North Carolina to change their laws, which the state ventually did. Britt may now mean that all or part of the 2004 statute is unConstitutional (under the N.C. Constitution) and that some people in Federal prison for violating section 921 may have to be released. Several Federal habeas Corpus Motion are likely to be filed once these people and their lawyers realize the possible import of "Britt" on their Federal convictions.
During my own time in Fedderal prison, I filed a 2255 Habeas Corpus Motion for a N.C. inmate who had been duped into accepting an unloaded revolver from an undercover Federal informant. The informant first tried to sell him the pistol, but when he repeatedly declined (his Mother had told him to stay away from guns) the informant kept lowering the price, until he finally gave him the gun for free! The defendant was arrested after walking 1 block after accepting the (unloaded) pistol, and charged with being a felon in possession of a firearm pursuant to section 922(g)(1). His only prior convictions were N.C. charges for possession of cocaine (not dealing or distribution). The Feds used the section 922(g) charge as his third strike, to make him an armed career criminal under 18 U.S.C. section 924(e), with a sentence of 15 years 8 months (188 months). Interestingly, his Court appointed lawyer pleaded him guilty and never even attempted to raise an entrapment defense or the "restored civil rights" defense of section 922(a)(20), which I argued was ineffective assistance of counsel. The Feds were so pissed of about this 2255 Motion (filed by an illiterate Lumbee Indian inmate, but obviously prepared by someone with significant legal knowledge) that they threatened to prosecute him for violating his oath taken at the time of his guilty plea if he didn't withdraw the Motion! And the prosecutors tracked me down thru my Warden, and had me transferred to another prison, so I couldn't help this man any further. "Tree" is still in Federal prison serving that illegal 188 month sentence, based on sections 922(g)(1) and 924(e). And I'll bet there are others too. Britt appears to now call some of these Fedral convcitions into question.

Posted by: Jim Gormley | Sep 1, 2009 11:42:28 AM

How about the constitutionality of 18 USC s 922(n), which prohibits the receipt of firearms by those under indictment for a felony offense? Those who are not even convicted felons are prohibited from receiving, and thereby possessing, firearms under s 922(n). That statute seems ripe for a constitutional attack.

Posted by: Jay | Sep 1, 2009 3:25:46 PM

As I noted in connection with the original Britt post last Saturday, 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 to federal 922(g) prosecutions by the Britt approach is likely to be confined to 2/3 of the states (!). Even federal offenders may get to play, since I don't know how long Beecham will survive Heller.

Posted by: margy love | Sep 1, 2009 5:25:26 PM

No chance of pardons in the great state of North Carolina unless Governor Perdue pardons former Gov Easley for some of his BS he did during his two terms. It appears that Gov Perdue is a clone of Easley at least when it comes to pardons.

Resident of North Carolina

Posted by: Anon | Sep 1, 2009 8:48:19 PM

From what I understand,the general definition of possession under 18 USC 922(g) is:

knowingly transported, possessed, shipped, or received a firearm, and the possession was in or affected interstate commerce.

Other than those previously discussed, what are the case law exception to this rule? I've heard some court's have carved out an exception for possession of a firearm within the a felon's domicile--any truth to this?

Posted by: jcocchiaro | Sep 17, 2009 11:26:45 AM

I am the mother of a convicted felon. I am looking for information on something that he told me that has me worried. He told me that North Carolina is attempting to do away with consecutive sentencing and trying to get all of the current consecutive sentencing changed to concurrent sentences. I haven't been able to locate information on this, but then again, I haven't a clue where to start looking.

I am interested in finding of this is true, and if it is true, who do I contact to become active in attempting to keep it from happening. I do NOT want my son out in society ever again. He is a sociopath, capable of killing without remorse and capable of raping children without remorse. The last thing I want is his consecutive sentences changed to anything that will let him out early.

Posted by: Carol Sexton | Oct 10, 2009 7:11:18 PM

"New York, in a statute) provide for restoration of all civil rights through a reasonably accessible restoration procedure"

You say NY has a statute for this but I can not seem to find it. I never knew of such a statute and they don't make it reasonably accessible. Do you have more information on this NY statute?

Posted by: Scot | Oct 12, 2009 4:33:41 AM

Here is one for you guys. I am preparing to bring suit against the feds for denying my right to firearms. I was convicted of one felony 15 years ago. Ten years ago Ohio granted me a Relief of Disability O.R.C. 2923.14, which states I am "allowed to own and possess firearms as allowed by state and federal law...this does not apply to dangerous ordnance." In my NICS appeal, the feds denied me based on the "unless clause" of 922, stating the the state limited my firearms ownership by not granting dangerous ordnance. According to O.R.C. 2923.11, dangerous ordnance are exactly what the feds require all citizens to apply for with a class 3 form 4. Therefore, the state does not even have the power to grant permission to ownership or possession of dangerous ordnance.

This creates several issues. First, the feds are denying my rights based on the state not granting me rights that THEY say the state does not have the power to grant! Next, the will of the Ohio legislature was to allow me to petition the court to be allowed to own and possess firearms, which I did and was subsequently granted. The feds denial of my rights is a direct defiance of the will of the Ohio legislature.

Also, the Gun Control Act itself is not Constitutional. How does the interstate commerce clause give the feds the right to regulate the use and ownership of the product once the interstate commerce is complete? How about product items that were not shipped interstate but were strictly intrastate? (see Firearms Freedom Act and current Montana challenge).

I am seriously doing this, working close with my attorney, lobbyists, and soveriegnty and firearms groups. If anyone would like to help me in developing defense or whatever, please respond and email me.

Posted by: V | Oct 25, 2009 8:57:04 PM

My fiancee was convicted in July of 2009 of a felony in South Carolina. He received 3 years probation. Immediately following, he was extridited to Virginia to face some former probation issues. 3 weeks ago we were trying to evaluate things that may be problamatic with his probation and were changing them. He remembered that he had 2 shot guns that were registered to his name in a safe at his brothers home. I drove to his brothers house with him, picked them up, I drove to the gun store to sell them with him, we then drove to my home and I stored them there until a personal friend came 2 days following to purchase the guns from my home. The guns went from his brother's possession to my possession until sold.

He is now facing a full investigation. Someone supposedly saw him walking into the gun store and reported him to his probation officer. Is there a violation to the above story that he made (as a felon)?? I already gave my affidavit and they are having the man that purchased the guns come in tommorrow and give an affidavit.

Posted by: Julie | Nov 15, 2009 9:01:01 AM

When someone goes to jail and completes his sentence.He paid his debt to the world.But the Gov wants to make you as a felon unequal as a man . The 2 amendment rights done!!. How do you defend your self , a knife, pepper spray Its not right to take our guns as we paid our debt.

Posted by: hal | Dec 16, 2009 4:08:55 PM

I just wanted to know if my son is serving consectuive terms can it be changed to run concurrent

Posted by: lisa johnson | Jan 15, 2010 6:48:09 PM

in 1965 I was convicted of auto theft I ran out of gas befor I could
get it back anyway I was sentenced from 2-4 yr.Iwas parolled after 1
yr.in 1984 I applied for FFL license at that time ATF done background checks.after 6 months I was granted releif and got my
FFL.I kept my FFL for 13 years.I never heard of any new law untill
may 2007.I went to sheriff dept for a handgun permit as I had done
for the past ten years.but this time I was told of the new law and I am now a convicted felon again.so I applied to ATF for a new FFL.
I now have a valid type #3 FFL.the U.S. gov says I am an O.K. guy.
NC says I am a criminal so why in the hell didnt they keep me locked up for the rest of my life?I have worked hard all my life
my wife&I have put three children through college without any help
from the gov.I do know this that no matter what law is on the book
it will not keep vilont people from getting a gun.it only punishes
those who are trying to do the best.

Posted by: Thomas Draughn | Aug 13, 2010 1:51:38 PM

This is a great decision.
When the Constitution was written, hence the meaning of the 2nd, a felon was only someone who had committed a crime for which the death penalty applied. Check it yourself.

So most of these men in reality should have NEVER had their right to bear arms violated.

Posted by: Inalienable Wrights | Jul 24, 2012 12:10:03 PM

My son is incarcerated in N.C. He has consecutive sentences. I am trying to find a lawyer who can go back to court have these remodified. His sentences were imposed in Wilkes County and Ashe County. In both instances he was sentenced a week apart. Same Judge and D.A. in both counties.

Posted by: Deborah Ervin | Dec 19, 2015 5:31:16 PM

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