In 2004, the General Assembly amended state law to ban felons from possessing all firearms except “antique weapons,” a departure from previous state law, which allowed felons to possess guns in their own homes or businesses under certain circumstances. Earlier this month, the state’s second highest court upheld the new law, finding that it did not violate the constitutional rights of felons.
North Carolina originally adopted legislation in 1971 banning felons who had not had their civil rights restored from possessing firearms. In 1975 that was modified to include a five-year ban on gun ownership after release from prison, parole, or probation for those convicted of certain crimes.
In 1995, the ban became lifelong, but still included an exception for a felon’s home or business. The Assembly removed that exception in 2004, which applies to all felons regardless of when they were convicted. The regulation is codified as N.C. General Statue § 14-415.1.
Barney Britt was convicted of felony possession with intent to sell and deliver a controlled substance in 1979. He was released from prison in 1982 and his civil rights, including the right to possess a gun, were restored in 1987. Britt challenged the constitutionality of the 2004 changes to the law, claiming it amounted to ex post facto increase in punishment, which is prohibited by both the U.S. and N.C. constitutions.
After a Superior Court judge ruled against him, Britt challenged the new law before the N.C. Court of Appeals.
“The trial court properly ruled that plaintiff is prohibited from possessing firearms,” Judge Wanda Bryant wrote for the Court of Appeals on Sept. 4.
“In the instant case, the General Assembly did not intend to punish plaintiff for actions that occurred prior to the 2004 amendment to N.C.G.S. § 14-415.1. Because the intent of the legislature was to create a non-punitive, regulatory scheme by amending N.C.G.S. § 14-415.1, and because the result of the amended statute is not so punitive in nature and effect as to override the legislative intent, N.C.G.S. § 14-415.1 is a non-punitive, regulatory scheme that does not violate the ex post facto clause under either the North Carolina Constitution or the United States Constitution.”
The Court of Appeals also found the law did not deprive Britt of his due process rights:
“The General Assembly made a determination that individuals who have been convicted of a felony offense shall not be able to possess most firearms. This statutory scheme, which treats all felons the same, serves to protect and preserve the health, safety and welfare of the citizens of this State.”
Judge Rick Elmore dissented from the majority holding.
“Because I would hold that the 2004 amendment to N.C. Gen. Stat. § 14-415.1 is unconstitutional, I respectfully dissent from the majority opinion.”
Elmore noted that the majority’s opinion relied heavily upon State v. Johnson, a 1995 case in which the Court of Appeals considered the earlier version of the law. In that decision, the court distinguished between laws that aimed at imposing punishment versus law that merely establishes regulations, the point being that even if a law aims to be regulatory in nature, it can still be so harsh as to effectively amount to punishment.
The court upheld the earlier version of the law precisely because it was limited in scope, allowing, for example, felons to have guns at home or at their businesses, and thus regulatory.
“The major differences between the 1995 and current versions of the statute lead me to conclude that the statute in its current form is no longer a reasonable regulation,” Elmore wrote.
“Instead, I would hold that the current statute operates as an outright ban, completely divesting plaintiff of his right to bear arms without due process of law.
“In enacting the 2004 amendment, the legislature simply overreached. Thereafter, the statute operated as a punishment, rather than a regulation. Moreover, the statute as amended stripped plaintiff of his constitutional right to bear arms without the benefit of due process. I would therefore reverse the trial court’s grant of summary judgment,” Elmore said.
Because of Elmore’s dissent, the N.C. Supreme Court would have to hear the case should Britt ask it to review the Court of Appeals’ ruling.
The case is Britt v. State, (06-714).
Michael Lowrey is associate editor of Carolina Journal.