Opinion: Daily Journal

A Gun Rights Victory

This week’s “Daily Journal” guest columnist is Daren Bakst, Legal and Regulatory Policy Analyst for the John Locke Foundation.

Recently, the North Carolina Supreme Court handed gun rights advocates a major victory. Under the North Carolina Constitution, a state statute prohibiting all felons from owning firearms was declared unconstitutional as it applied to a Garner man who was convicted of a nonviolent felony.

The state law still is valid, but as a result of this decision, some felons who had their gun rights taken away will be able to legitimately challenge whether the law is constitutional as it applies to their particular circumstances.

In 1979, Barney Britt, the plaintiff in the case, pled guilty to felony possession with intent to sell a controlled substance. The crime was nonviolent in nature and didn’t involve firearms.

For 30 years after being convicted, he hasn’t committed a crime. He owned firearms for 17 years without any incidents. In his whole life, there’s no evidence of violent behavior.

North Carolina law was amended in 2004 to create a blanket ban on felons owning guns. The law prohibits all felons from owning any firearm, even if the firearm is located within the convicted felon’s own home or business.

The North Carolina Supreme Court concluded that the law was unconstitutional as it applied to Mr. Britt because it unreasonably took away his right to own a firearm. The state statute has to be reasonable for the preservation of the public health and safety. As it applied to Mr. Britt, the Court deemed the law to be unreasonable.

In reaching this decision, the Court was significantly influenced by the nonviolent nature of the crime, Mr. Britt’s many years of respecting the law after he was convicted, and his nonviolent nature throughout his life. In addition, the court also pointed to his history of gun ownership without incident.

For felons who decide to file lawsuits, the more their situation is similar to Mr. Britt’s case, the more likely they will win their cases. Only individuals convicted of nonviolent felonies would likely have a chance to win, and there probably would need to be some significant period of law-abiding behavior after being convicted.

Hopefully, though, lawmakers will amend the law in next year’s legislative session so there’s no barrage of lawsuits. By taking action, the legislature also would be making sure that individuals who constitutionally have the right to possess firearms aren’t denied that right because of an overbroad statute.

In amending the law, the public’s health and safety certainly should be a concern. However, gun ownership is a right, and, as a result, regulations should be narrow in scope. In fact, North Carolina law used to provide a much better balance between gun rights and public safety.

Before 1995, restrictions on gun possession mostly applied only to violent felons and to certain types of guns. The law also limited the prohibition on gun possession to five years. Despite these prohibitions, any person still could possess a gun in his own home or business.

In 1995, the legislature amended the law so that it applied to all felons, including nonviolent felons, and the five-year ban was changed to a permanent ban. In 2004, the legislature amended the law again so that it applied to all firearms and even prohibited possession of firearms in homes and businesses.

The law should be changed in at least one major way. Nonviolent felonies, by themselves, shouldn’t deprive individuals of their right to possess firearms. The issue is whether it is reasonable to deprive someone of the right to possess a firearm in order to protect the public health and safety. An individual who committed a nonviolent crime isn’t a threat to safety. Making speculative leaps of logic to deny rights is inappropriate.

Gun control zealots already are trying to spin this case as some major threat to existing state gun control laws. The reality is that the case simply requires that a gun control law be reasonable. It’s unreasonable to expect anything less when protecting a constitutional right.