The United States Supreme Court has made significant pronouncements in recent years about Americans’ Second Amendment rights.
Now a North Carolina criminal defendant hopes those rulings in the nation’s capital will help him beat a gun-related conviction in state court.
Eric James Ducker has the state’s leading gun-rights group, a major civil liberties organization, and a prominent libertarian think tank in his corner.
North Carolina’s sheriffs, police chiefs, district attorneys, and Gov. Josh Stein have lined up against him.
A Buncombe County jury found Ducker guilty in August 2023 of possession of a firearm by a felon. He had been convicted in 2009 of a felony charge of attempted fleeing to elude arrest. He also had been convicted in 2018 of a misdemeanor violation of a domestic violence protective order.
A unanimous bipartisan North Carolina Appeals Court panel upheld the felon gun possession conviction last year. Now Ducker is asking the state Supreme Court to overturn that ruling.
“In the interest of public safety, legislatures can construct regulatory regimes that temporarily disarm individuals who pose a demonstrated risk of firearm misuse,” Ducker’s lawyers wrote on July 23. “No one disputes this.”
“But no matter how strenuously the State wishes to shift the terrain, that is not the question raised by this case,” Ducker’s court filing continued. “Rather, the question is whether a legislature may use the mere existence of almost any prior felony conviction, no matter how old, non-violent, and unrelated to firearms, to effect what amounts to a total forfeiture of an individual’s core constitutional right to keep and bear arms for defense of self, business, and home.”
Relying on language from the US Supreme Court, Ducker argues judges must determine “whether the text and history of our constitutions permit the State to wield a tool as blunt as N.C.G.S. § 14-415.1 in service of its duty to protect public safety.”
Ducker answers no, “particularly in a country where nearly 10% of all adults, and one in three Black men, fits within the modern category of ‘felon,’” his lawyers wrote.
The defendant admits that “felon-in-possession bans are commonplace” and that the nation’s highest court is “not ready to opine” on the issue. But Ducker argues that the latest US Supreme Court decisions signal “the writing is on the wall.”
“No matter how hard the State squints, it cannot establish the broad principle it needs: that our Nation at the Founding would have accepted a categorical lifetime disarmament of nearly one-tenth of the adult population as concordant with the preexisting natural right to keep and bear arms recognized by the Second Amendment,” Ducker’s lawyers wrote. “The inconvenient reality that ‘not one piece of historical evidence suggests that… the Founders authorized Congress to disarm anyone it deemed dangerous’ is fatal to the State’s desire to enforce a statute that represents little more.”
The ACLU of North Carolina and libertarian Cato Institute submitted a joint brief supporting Ducker’s cause. Gun-rights advocacy group Grass Roots North Carolina also backs Ducker.
“GRNC argues that the courts below erred in their application of relevant Second Amendment law,” the group’s lawyers wrote. “Furthermore, GRNC argues that existing precedent on interpretation of the North Carolina Constitution’s right to keep and bear arms fails to adhere to the originalist jurisprudence more recently articulated by this Court.”
On the other side of the dispute, state Attorney General Jeff Jackson defends § 14-415.1. Groups representing prosecutors and local law enforcement leaders also support the law.
The governor submitted a rare friend-of-the-court brief challenging Ducker’s arguments.
“North Carolina’s Felony Firearms Act is an important tool that balances the rights of law-abiding citizens’ right to bear arms and the State’s interest in public safety: it keeps dangerous weapons away from individuals who have proven more likely than law-abiding individuals to misuse firearms,” Stein’s lawyers wrote.
“The Felony Firearms Act represents North Carolina’s commonsense determination that people who have committed violent crimes are more likely to misuse firearms and put innocent people at risk,” the governor added in a news release. “Most states and the federal government join North Carolina in prohibiting felons from possessing firearms, and none of these prohibitions have been deemed unconstitutional.”
The state Supreme Court has not yet scheduled oral arguments in State v. Ducker. The earliest possible argument date falls in November. No decision in this case is likely before 2027.
So North Carolinians must wait to learn whether recent US Supreme Court precedents will have any impact on felons’ gun rights in the Tar Heel State.
Mitch Kokai is senior political analyst for the John Locke Foundation.
