The North Carolina Supreme Court is likely to revisit the issue of under what conditions the state constitution requires the gun ownership rights of convicted felons to be restored. In November, a divided panel of the state’s second highest court held that recent changes to the Felony Firearms Act allowing the restoration of that right may not be adequate.

The North Carolina Court of Appeals split over the number of nonviolent felony convictions a person could have on his record before he qualified for regaining the right to own firearms, which has implications for a number of residents who broke the law years ago but since have stayed out of legal trouble.

North Carolina has increased limits on gun ownership by felons over time. In 2004, the General Assembly took the final step, banning all gun ownership by those convicted of a felony.

A challenge to this gun ownership ban came from Barney Britt. Britt had pleaded guilty to felony charges of possession with intent to sell and deliver Quaaludes in 1979. He served a short prison sentence followed by two years of probation. He owned guns legally for many years before giving them up to comply with the 2004 law.

In response to Britt’s lawsuit, in 2009 the N.C Supreme Court found that a permanent ban on gun ownership for all convicted felons violated the state constitution.

The high court based its holding upon Article I, Section 30 of the North Carolina Constitution, which states that: “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.”

The Supreme Court cited a 1921 case in which it held that the General Assembly could regulate gun ownership, but that such legislation must be “reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.”

“Based on the facts of plaintiff’s crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute’s operation, as applied to plaintiff, the 2004 version of N.C.G.S. § 14-451.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety,” wrote Justice Edward Brady for the high court.

“In particular, it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for 17 years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.”

The General Assembly reacts

In response, the General Assembly modified the Felony Firearms Act, allowing those convicted of a single nonviolent felony more than 20 years ago who had maintained a clean record to petition a Superior Court judge to have their gun ownership rights restored.

Walter Baysden sought to take advantage of this provision. Superior Court Judge Lucy Inman rejected his petition, so Baysden took his case to the Court of Appeals.

In 1972, Baysden was convicted in Virginia Beach, Va., of felonious possession of an unlawful weapon, a “rusted up and inoperable” sawed-off shotgun he had found under a house on the beach. Five years later, Baysden was convicted in Norfolk of felonious sale of marijuana. Virginia restored Baysden’s right to own a gun in 1982. A year later, the Bureau of Alcohol, Tobacco, and Firearms also restored his right to have a gun.

Baysden had worked for the Navy maintaining aircraft from 1981 until his retirement in 2007. He obtained the necessary security clearances and was decorated for his service during a tour in Iraq. Like Britt, he disposed of his guns when state law changed in 2004 barring a felon from having a gun under any circumstances.

A majority of the three-judge Court of Appeals panel found that under the state constitution’s protection of gun ownership, Baysden also should have his gun rights restored.

“After carefully examining the undisputed evidentiary materials in the record, we believe that Plaintiff is in essentially the same position as Mr. Britt,” wrote Judge Sam Ervin IV for the court.

The appeals court did not find that the narrow exception the General Assembly had crafted to the felon gun ban in 2010 in any way prohibited it in reaching this decision.

“At bottom, a decision to reject Plaintiff’s claim based on the enactment of the 2010 amendment to the Felony Firearms Act would be inconsistent with the judiciary’s obligation to make constitutional determinations,” wrote Ervin.

Judge Cheri Beasley dissented from the majority holding. “It is certainly reasonable for the General Assembly to decide that those felons who have not committed more than one crime, and have not committed any violent crimes, should be afforded an opportunity to have their rights to own firearms restored while repeat felons and those convicted of possession of dangerous firearms should not,” she wrote.

Because the appeals court issued a split decision, the Supreme Court is required to review that ruling.

The Court of Appeals decision does not surprise John Locke Foundation legal analyst and attorney Daren Bakst.

“Convicted felons will continue to challenge the Felony Firearms Act, and many of them will have a legitimate basis for doing so. The only thing surprising in this current case is that there was one judge that dissented in the decision,” said Bakst.

“The North Carolina Supreme Court in Britt v. State provided a fairly straightforward framework for the legislature that helps guide them as to how to amend the Felony Firearms Act,” he said. “The legislature amended the law in 2010, but it was far too narrow and the unconstitutional problems remained, as seen in this decision.”

The case is Baysden v State, (11-395).

Michael Lowrey is an associate editor of Carolina Journal.