North Carolina High Court Is First to Overturn Restriction on Felony Gun Ownership

The United States Supreme Court’s 2008 decision in District of Columbia v. Heller¹ focused national attention on the Second Amendment.  In a 5-4 opinion, the Supreme Court held that “the right of the people to keep and bear Arms”² was an individual right and therefore the District of Columbia’s ban on handgun possession in the home violated the Second Amendment.  However, the majority expressly stated that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill….”³  That is, the Court acknowledged that the right to bear arms is not absolute and that under certain circumstances the government may preclude particular individuals from owning or possessing a gun.

In Britt v. State, the North Carolina Supreme Court addressed this specific issue—whether a 2004 amendment of a North Carolina statute, which barred all felons from possessing a gun, was a reasonable restriction under North Carolina’s version of the Second Amendment as applied to Barney Britt, who was convicted of a nonviolent felony.⁴ In holding that the regulation was unreasonable, the North Carolina Supreme Court became the first state high court to maintain that a state’s attempt to protect the health and safety of its citizens by restricting a felon’s gun ownership violated his right to bear arms.

North Carolina's Changing Restrictions on Britt

In 1979, Barney Britt pled guilty to a felony drug crime: possession with intent to sell and deliver a controlled substance. Mr. Britt's crim was nonviolent and did not involve the use of a firearm.⁵  After completing his sentence (four months in prison and 20 months of supervised probation) in 1982, his civil rights—including his right to possess a gun—were fully restored in 1987 by operation of North Carolina law.⁶  In 1995, the North Carolina General Assembly modified the applicable law, N.C. Gen. Stat. § 14-415.1, to prohibit all persons convicted of a felony from possessing any firearms that did not meet certain minimum barrel and overall length requirements.⁷  The 1995 amendment did not alter the provision in the 1975 version of the statute which stated that “nothing herein would prohibit the right of any person to have possession of a firearm within his own house or on his lawful place of business.”⁸  In 2004, though, the General Assembly amended N.C. Gen. Stat. § 14-415.1 yet again, expanding the prohibition on possession to include all firearms by any person convicted of a felony, even possession in the convicted felon’s home or place of business.⁹

After learning about the 2004 amendment, Mr. Britt consulted a local sheriff regarding its impact on Mr. Britt’s right to possess a firearm.  The sheriff determined that Mr. Britt could not possess any firearms under the amended statute, and Mr. Britt subsequently got rid of his various firearms, which included rifles and shotguns that he used for hunting on his property.  The North Carolina Supreme Court emphasized that in the 30 years since his conviction for a nonviolent felony, (i) Mr. Britt had neither been charged with any other crime nor misused a firearm in any way and (ii) no agency or court in North Carolina had indicated “that plaintiff is violent, potentially dangerous, or is more likely than the general public to commit a crime involving a firearm.”¹⁰ 

In September 2005, Mr. Britt filed a civil action against the State of North Carolina alleging that N.C. Gen. Stat. § 14-415.1 as amended violated various rights of Mr. Britt under the United States and North Carolina Constitutions. In March 2006, the trial court granted the State’s motion for summary judgment on the grounds that “the amended statute is rationally related to a legitimate government interest and is not an unconstitutional ex post facto law or bill of attainder.”¹¹ A majority of a three judge panel on the North Carolina Court Appeals agreed with the lower court. The lone dissenter argued that the 2004 amendment constituted an ex post facto law that violated Mr. Britt’s due process rights under the Federal and State Constitutions. The North Carolina Supreme Court granted review on a single issue: “Whether the application of the 2004 amendment to N.C.G.S. § 14415.1 to plaintiff violates his rights under N.C. Const. art. I, § 30,” which is North Carolina’s version of the Second Amendment.¹²

The Restrictions as Applied to Mr. Britt

The right to bear arms in the Second Amendment to the United States Constitution finds expression in Article I, section 30 of the North Carolina Constitution: “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.”¹³ The North Carolina Supreme Court has interpreted this provision to guarantee the right of individuals to bear arms.¹⁴ Consistent with Heller, though, the North Carolina Supreme Court recognizes that this right is not absolute. The General Assembly may impose restrictions on the right to bear arms, but any such restrictions must be “reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.”¹⁵ Thus, the central issue in Britt is whether the complete ban on gun ownership by convicted felons under N.C. Gen. Stat. § 14-415.1 is reasonable as applied to Mr. Britt.¹⁶

Given the nonviolent nature of Mr. Britt’s original offense and his subsequent nonviolent conduct, the North Carolina Supreme Court determined that Mr. Britt did not endanger the public peace and safety. In particular, the court emphasized four features of Mr. Britt’s conduct that “affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety:”¹⁷ (i) Mr. Britt’s original crime did not involve violence or the threat of violence, (ii) he had been a law-abiding citizen for the thirty years since his crime, (iii) he had lawfully possessed and responsibly used firearms between 1987 and 2004, and (iv) he voluntarily and proactively complied with the 2004 amendment to N.C. Gen. Stat. § 14-415.1.¹⁸ Accordingly, because Mr. Britt did not jeopardize the State’s interest in preserving peace and safety, North Carolina’s complete ban on gun ownership was unreasonable as applied to him and, therefore, violated his right to own a firearm under Article I, section 30 of the North Carolina Constitution.

The Britt decision spawned two dissents. In a short, two sentence dissent, Chief Justice Parker stated simply that she did not think that the statute as applied to Mr. Britt violated Article I, section 30. Justice Timmons-Goodson, drawing on the United States Supreme Court’s decision in Heller, argued that North Carolina’s ban on gun ownership by convicted felons was a reasonable restriction that directly related to the State’s interest in preserving public peace and safety.¹⁹ Given that felonies represent the most serious crimes, the legislature could reasonably conclude that this entire class of persons posed a threat to the public peace and safety if they were allowed to possess firearms.²⁰ Thus, although Mr. Britt was a sympathetic plaintiff , the court should not have crafted an individual exception for him. As the saying goes, “‘[h]ard cases make bad law.’”²¹ Moreover, according to Justice Timmons-Goodson, by granting Mr. Britt relief from the statute, the majority (i) became the first court to hold that a convicted felon’s right to bear arms superseded the inherent police power of the State to protect the public peace and safety²² and (ii) called into question statutes restricting other classes of citizens—such as incompetents, persons acquitted by reason of insanity, and persons subject to domestic violence orders—from purchasing or possessing firearms.²³ As a result, Justice Timmons-Goodson would have deferred to the legislature’s determination that gun ownership by felons posed a risk to public safety and upheld the statute.

The Impact of Britt on the Right to Bear Arms

Regardless of whether one agrees with the majority or dissent, Justice Timmons-Goodson is probably correct that Britt will open “the floodgates wide before an inevitable wave of individual challenges” to North Carolina’s felony firearms act.²⁴ Because it is unreasonable to preclude Mr. Britt from possessing a firearm, similarly situated felons will contend that N.C. Gen. Stat. § 14415.1 also is unconstitutional as applied to them. Thus, it will be critical to know when a plaintiff is “similarly situated enough” to qualify for relief under Britt. But the Court does not specify which, if any, of Mr. Britt’s personal circumstances were dispositive. At a minimum, a challenger may have to show that she was convicted of a nonviolent felony. To make a successful as applied challenge, though, must the nonviolent felon also show that her right to possess a firearm had been restored and then subsequently taken away by the 2004 amendment? Or that she “assiduous[ly] and proactive[ly] compli[ed] with the 2004 amendment”? Must she have 30 years of law-abiding conduct since her crime to demonstrate that she is not a threat to the public peace and safety?²⁵ Or is some shorter time sufficient? Moreover, if certain felons cannot be deprived of their right to bear arms, others who have been precluded from owning a firearm under North Carolina statutes—such as incompetents, those acquitted of a nonviolent crime by reason of insanity, and the mentally ill—also may file as applied challenges. The lower courts, therefore, will have to wrestle with all of these (and various related) questions until the North Carolina Supreme Court clarifies the standard for as applied challenges to statutes that infringe on the right to bear arms under Article I, section 30 of the North Carolina Constitution.

* Scott Gaylord is an Associate Professor of Law at Elon University School of Law, where he teaches courses related to Constitutional Law and the First Amendment.

 

Endnotes

1 128 S.Ct. 2783 (2008).

2 U.S. Const. amend. II.

3 Heller, 128 S.Ct. at 2816-17.

4 681 S.E.2d 320 (N.C. 2009).

5 Id. at 321. 

6 See N.C. Gen. Stat. § 14-415.1 (1975) (prohibiting the possession of “any handgun or other firearm” with a certain barrel length or overall length by persons convicted of certain felonies “within five years from the date of such conviction, or unconditional discharge from a correctional institution, or termination of a suspended sentence, probation, or parole upon such conviction, whichever is later”).

7 The 1995 amendment retained the minimum requirements originally specified in the 1975 legislation, thereby banning the possession of “any handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches.” N.C. Gen. Stat. § 14-415.1 (1995).

8 Id.

9 N.C. Gen. Stat. § 14-415.1 (2004).

10 Britt, 681 S.E.2d at 322.

11 Id.

12 Id.

13 N.C. Const. art. I, § 30.

14 State v. Dawson, 159 S.E.2d 1, 9 (N.C. 1968).

15 Id. at 10. Because the North Carolina Supreme Court ultimately granted Mr. Britt’s as applied challenge under Dawson’s reasonableness test, the Court did not address his argument “that the right to keep and bear arms is a fundamental right entitled to a higher level of scrutiny.” Britt, 681 S.E.2d at 322 n.2.

16 Britt, 681 S.E.2d at 322.

17 Id. The Britt majority also noted that “the nature of the 2004 amendment is relevant” because it “functioned as a total and permanent prohibition on possession of any type of firearm in any location.” Id. In light of Mr. Britt’s nonviolent history, the complete ban, which “lack[ed] … any exception or possible relief from the statute’s operation,” reinforced the unreasonableness of the restriction. Id.

18 Id. at 323.

19 Id. at 323-24 (Timmons-Goodson, J., dissenting) (citing Heller, 128 S.Ct. at 2816-17 for the proposition that “the ‘longstanding prohibitions on the possession of fi rearms by felons and the mentally ill’ survive Second Amendment scrutiny”).

20 State v. Jackson, 546 S.E.2d 570 (N.C. 2001) (“[T]here is also heightened risk and public concern associated with convicted felons possessing fi rearms, which the legislature addressed through N.C.G.S. § 14-415.1.”).

21 Britt, 681 S.E.2d at 325 (Timmons-Goodson, J., dissenting) (quoting Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252, 2272 (2009) (Roberts, C.J., dissenting)).

22 Britt, 681 S.E.2d at 323 (Timmons-Goodson, J., dissenting).

23 See, e.g., N.C. Gen. Stat. §§ 14-269.8 and 14-415.3.

24 Britt, 681 S.E.2d at 325 (Timmons-Goodson, J., dissenting).

25 Id. at 323.

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