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December 8, 2009

Interesting Heller ruling from intermediate NC appeals court

Though the Supreme Court's Heller ruling does not yet officially apply to the states, this legal reality has not prevented a North Carolina appeals court from handing down this interesting opinion rejecting a Heller-based Second Amendment challenge to a state prosection for felon in possession.  Here is how the ruling in North Carolina v. Whitaker gets started:

Defendant was convicted by a jury of eleven counts of possession of a firearm by a felon. Defendant appeals on various constitutional grounds, primarily arguing that the recent decision of the United States Supreme Court, District of Columbia v. Heller, 554 U.S. ___, 171 L.E. 2d 637 (2008), requires this Court to hold that North Carolina’s law prohibiting possession of firearms by convicted felons violates defendant’s individual right to keep and bear firearms under the Second Amendment of the United States Constitution and Article I, Section 30 of the North Carolina Constitution.  As we conclude that Heller has no effect upon the level of scrutiny which this Court has traditionally applied to regulations of the possession of firearms, we reject defendant’s claim that Heller requires us to hold that N.C. Gen. Stat. § 14- 415.1 is unconstitutional under either the Second Amendment or Article I, Section 30.  We further reject defendant’s contentions that N.C. Gen. Stat. § 14-415.1 is unconstitutional on any other grounds.

December 8, 2009 at 05:39 PM | Permalink


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Doug, an interesting, and frustrating, thing about the Whitaker opinion is that it quotes, in bold, Justice Scalia's dictum that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons..."

There is an interesting little nexus between Scalia's statement above and his question in Johnson about whether the court has ever approved "kicking up" two misdemeanors to a felony. Does Justice Scalia really believe that a person who commits two misdemeanors, and thus one felony, is eligible to be forever barred from exercising the fundamental right to possess a gun of the kind in existence at the founding in his home for self defense? TWO MISDEMEANORS?? Like, in NC, breaking into a coin machine twice. First time a misdemeanor, second time a felony. So a recidivist coin machine thief has no Second amendment rights?

Does anyone other than me get the sense that several decades of envelope-pushing enactments of criminal sentencing statutes is beginning to implode?

bruce cunningham

Posted by: bruce cunningham | Dec 9, 2009 12:31:25 AM

The really outrageous thing in this opinion is that the judges apparently didn't see any problem in using a reasonableness interest-balancing test for second amendment rights, where that approach was specifically rejected by the Heller opinion.

Indeed, it's like Heller never happened.

Posted by: Vasco | Dec 9, 2009 11:07:38 AM

Bruce - A person convicted of repeatedly breaking into coin machines is a scofflaw and should not be trusted with firearms, in my opinion.

Posted by: Leif Rakur | Dec 9, 2009 3:17:12 PM

Leif, do you think a person who dumps a 501 pound old refrigerator off a pickup truck by the side of the road is such a threat to society that he has forfeited the right to have a pistol in the bedside table drawer for his protection in his own home?

Littering in Excess of Five Hundred Pounds is a felony in NC.


Posted by: bruce cunningham | Dec 9, 2009 6:01:28 PM

Bruce - A person who is convicted repeatedly of dumping old refrigerators by the side of the road is a scofflaw and should not be trusted with firearms, in my opinion.

Posted by: Leif Rakur | Dec 10, 2009 12:15:02 AM

Leif did you mis-read the question posed by Bruce or are you just trying to be funny? Please explain why someone should forfeit their firearm rights for the offense Bruce described.

Posted by: Anon | Dec 10, 2009 9:22:46 PM

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