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The John Locke Foundation
is a501(c)(3) nonprot, nonpartisan researchinstitute dedicated to improving public policy debate in North Carolina. Viewpoints expressed by authors do not necessarilyrefect those o the sta or board o the Locke Foundation.
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spot
light
No. 380 – October 21, 2009
NC G
uN
L
aws
N
eed
a
C
haNGe
Legislature Went Too Far in Restricting Gun Possession by Ex-Felons
key acts:•In 2004, h lgilur wn oo r in ping om-pl nd prmnn bn on gun poion b ll x-lon.• In augu 2009, h Norh crolin suprm cour in
Britt v. North Carolina
hld h ho hng wr unoniuionl pplid o h plini,Brn Bri.• th cour’ diion w primril inund b h non-violn nur o Bri’ rim nd h non-violn nur o hi li.• th cour’ holding nd rionl indi h mn x-lon lil hvhir oniuionl righ viold hrough hi bn on gun poion.• th lgilur hould ion in h 2010 lgiliv hor ion ohng h lw in rpon o
Britt
o prvn ohr x-lon rom hvinghir oniuionl righ viold b hi ovrbrod lw.• spifll, h Norh crolin lgilur hould pl no rriion onh poion o frrm b non-violn x-lon. Bor 1995, Norh cro-lin gnrll pld no uh rriion on non-violn x-lon.• Unli wih violn x-lon, hr i no objiv h dmonrh h non-violn x-lon m b hr. I i unronbl o rrigun righ o pro h publi rom omon who h nvr prn-d hr o h publi .• a bln bn on frrm poion b violn x-lon lo m bproblmi, lhough h
Britt
do no dirl ugg rmoving uh bn. I hould b nod h rnl 2004, violn nd non-violn x-lon wr bl o po frrm in hir hom nd buin.• an hng o lw h would loon h rriion on gun po-ion hould in no w rri h p o frrm h ould b podb x-lon. I uh rriion xi, drl lw would prohibi hpoion o ll frrm hrb ming h hng in lw rlivlmningl.
more >>
ii
n 2004, the North Carolina legislature passed a blanket prohibition on the possession o all rearms by anyonewho has committed a elony.
1
On August 28, 2009, the North Carolina Supreme Court held in
Britt v. North Caro-lina
2
that this broad prohibition was unconstitutional as it applied to the specic plainti in the case.This
Spotlight
report provides analysis o the gun possession laws in North Carolina as well as the
Britt
case. It ar-gues that the legislature needs to take action in the 2010 legislative short session primarily to ensure that individualrights are not violated due to this overbroad law. While there may be greater changes that need to be made to the gunpossession laws, this
Spotlight
ocuses only on the changes that should be made in connection with
Britt
.
Gun Poion Lw Rgrding ex-lon
In less than 10 years, North Carolina went rom ew restrictions on gun possession by ex-elons to excessive re-strictions. The ollowing table provides a timeline and highlights the changes.
timlin nd Dil o irrm Poion Rriion in Norh crolin
Before 1995Law After 1995 Amendments
3
Law After 2004 Amendments
4
Rriion onNon-Violnex-lon
No, with some exceptions.Law generally drew distinctionsbetween violent and non-violentex-elons. Yes — no distinctions weremade between violent andnon-violent ex-elons. Yes
Rriion on Violn ex-lon
YesYesYes
Rriion Limido crin tp o irrm
Yes, restrictions only applied to“any handgun or other rearmwith a barrel length o less than18 inches or an overall length o less than 26 inches.” Yes, restrictions only applied to“any handgun or other rearmwith a barrel length o less than18 inches or an overall length o less than 26 inches.”No, the law covers all rearms.
tim Limiion onRriion
Yes, the restrictions lasted veyears ater a conviction or an“unconditional discharge roma correctional institution, ortermination o a suspendedsentence, probation, or paroleupon such conviction, whicheveris later.”NoNo
expion oRriion
Yes, all ex-elons could possessa rearm in their homes orbusinesses. Yes, all ex-elons could possessa rearm in their homes orbusinesses.No
th
Britt
c
The Facts
In 2005, the plainti, Barney Britt, challenged the 2004 law that created a complete and permanent ban on re-arm ownership by ex-elons.
5
He took the case to the North Carolina Supreme Court arguing that the law was uncon-stitutional under the North Carolina Constitution.
6
Article I, Section 30 o the North Carolina Constitution states “A well regulated militia being necessary to the security o a ree State, the right o the people to keep and bear arms shallnot be inringed.”
7
The Court already has interpreted this right to include an individual right to bear arms.
8
In 1979, Mr. Britt was convicted o a non-violent elony (drug possession with the intent to sell and deliver drugs).
9
Since his conviction 30 years earlier, Mr. Britt committed no other crimes.
10
According to the North Carolina SupremeCourt, he had exhibited “uncontested lielong nonviolence towards others.”
11
Mr. Britt even owned rearms or 17 years, between 1987 and 2004 when it was lawul or him to do so.
12
Ater the2004 legislative changes were made, he proactively went to the sheri and willingly gave up his weapons.
13
The Court’s Holding and Analysis
In 2009, the North Carolina Supreme Court held that the 2004 law that banned Mr. Britt rom possessing rearmswas unconstitutional under the North Carolina Constitution as it applied to Mr. Britt.
14
When courts hold that a lawis unconstitutional “as applied,” it is saying that the law is not unconstitutional in every circumstance and thereorethe law should not be struck down completely. In this instance, the Court is saying that “as applied” to Mr. Britt, thelaw is unconstitutional.In analyzing the case, the Court considered whether the restrictions imposed on Mr. Britt were reasonable andbore “a air relation to the preservation o the public peace and saety.”
15
The Court ound the restrictions to be unrea-sonable, explaining “the State unreasonably divested plainti o his right to own a rearm.”
16
Who Would This Holding Apply to?
Critics o the
Britt
decision have expressed concern that ater the case many other ex-elons will go to court andchallenge the law as it applies to them.
17
Unless the law is changed, this is exactly what those victimized by this over-broad law should and will do.Certainly, i a plainti has a case with acts similar to the
Britt
case, he is likely to win his case. The Court wasinfuenced by the non-violent nature o Mr. Britt’s crime, his history o non-violence, and his respect or the law sincebeing convicted. The act that there was no way or Britt ever to own a rearm legally also was important. The Courtalso seems to have been infuenced by his 17 years o ownership o rearms without incident.
18
Whether all o these actors have to be present or another ex-elon to win a case is unclear. For example, while theCourt seemed infuenced by Mr. Britt’s ownership o rearms without incident, it makes little sense or the Court torule against an ex-elon who has a very similar history as Mr. Britt but had decided not to own rearms.
How Far-Reaching Could This Opinion Become?
This case is a major victory or the rights o individuals to possess guns even beyond protecting the rights o ex-el-ons. The North Carolina Supreme Court has made it clear that it is not going to rubber-stamp every law that is passedunder the guise o protecting the public saety — there are limits that the Court is willing to enorce.Justice Patricia Timmons-Goodson wrote a dissent in
Britt
. She argued, “Today’s decision opens the foodgateswide beore an inevitable wave o individual challenges to not only the Felony Firearms Act [the laws governing gunpossession by ex-elons], but to our statutory provisions prohibiting rearm possession by incompetents and the men-tally insane.”
19
She certainly is correct that there will be challenges by ex-elons, as there should be. Laws should not be upheldthough because citizens would have the audacity to try to protect their constitutional rights.There is absolutely no basis to believe that the
Britt
case would somehow undermine reasonable provisions deal-ing with incompetents and the mentally insane. I there are unreasonable restrictions, such as prohibiting competentindividuals that pose no threat to the public rom possessing rearms, then these restrictions should be ound uncon-stitutional.
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NC Gun Laws Need a Change: Legislature Went Too Far in Restricting Gun Possession by Ex-Felons
October 21, 2009
Key facts:
* In 2004, the legislature went too far in passing a complete and permanent ban on gun possession by all ex-felons.
* In August 2009, the North Carolina Supreme Court in… (More)
Key facts:
* In 2004, the legislature went too far in passing a complete and permanent ban on gun possession by all ex-felons.
* In August 2009, the North Carolina Supreme Court in… (More)
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