I’ve blogged previously about the Britt and Whitaker cases. Britt held that a particular convicted felon retained his right to bear arms under the state constitution, and that G.S. 14-415.1 — which purports to prohibit all felons from possessing firearms — was unconstitutional as applied to him. Whitaker rejected a similar claim made by another convicted felon and made clear that Britt was an exceptional result, driven by the fact that the plaintiff in Britt had committed a single, non-violent felony many years earlier, and had since remained completely out of trouble.
Rather than wait for the courts to accumulate case law about which felons are entitled to possess guns and which are not, the General Assembly jumped into the issue during the just-concluded session. It enacted S.L. 2010-108, which attempts to clarify and limit the circumstances under which felons may retain or regain their gun rights. The statute appears to be consistent with the thrust of Britt and Whitaker, although I am sure that it will be challenged by someone who falls outside its scope.
My colleague John Rubin has drafted the following excellent summary of the legislation, for those interested in a bit more detail. I grateful for his willingness to share it:
[The law] [a]mends various statutes, described below, to allow people convicted of certain felonies to apply for restoration of the right to possess firearms and to create an exception from the firearm restrictions for certain white collar criminal convictions. Provides that changes become effective February 1, 2011, and apply to offenses committed on or after that date. Also directs North Carolina Attorney General, effective July 20, 2010, to request the U.S. Department of Justice and other federal agencies to review these changes and determine whether a person who qualifies under them may purchase and possess a firearm under federal firearms restrictions.
New G.S. 14-415.4 contains the new restoration procedures. The new statute gives the responsibility for hearing restoration petitions to the district court in the district where the person resides. New G.S. 14-415.4(i) states that restoration does not constitute an expunction or pardon, and G.S. 14-415.4(l) states that the knowing and willful submission of false information is a Class 1 misdemeanor and permanently bars restoration of firearm rights.
The initial prerequisite for restoration is that the person must have no more than one conviction for a “nonviolent felony,” which does not include any Class A, B1, or B2 felony or any Class C through I felony that involves an assault as an essential element, possession or use of a firearm or deadly weapon as an essential or nonessential element, or other specified circumstances. Multiple nonviolent felony convictions arising out of the same event and consolidated for sentencing count as one felony. A person is ineligible for restoration for various reasons listed in the statute, including having been adjudicated guilty of or having received a prayer for judgment continued or a suspended sentence for one or more misdemeanor crimes of violence or other listed misdemeanors. To obtain restoration, the person must have had their civil rights restored for at least 20 years, which typically occurs automatically under G.S. 13-1 following a person’s completion of all incidents of his or her sentence. The new statute also states that a person who was convicted of a nonviolent felony in another jurisdiction is eligible for restoration if his or her civil rights, including the right to possess a firearm, have been restored for at least 20 years in the other jurisdiction; this provision may inadvertently make the waiting period for restoration of firearm rights in North Carolina considerably longer for people with convictions from other jurisdictions because they may not be able to obtain restoration of their firearm rights in the other jurisdiction for some time after their citizenship rights have been restored there. New G.S. 14-415.4 establishes other criteria a person must satisfy to obtain restoration of firearm rights, such as a one-year period of residency in North Carolina.
The act amends G.S. 14-415.1 (possession of firearm by a felon) to provide that a convicted felon whose firearm rights have been restored is not subject to the prohibition in that statute; similarly, the act amends G.S. 14-404(c) (handgun permits) and G.S. 14-415.12(b) (concealed handgun permits) to provide that people whose firearms rights have been restored are eligible to obtain the indicated permits if they meet the other criteria for issuance. The act also amends the above statutes to exempt from the firearms restrictions felony convictions pertaining to antitrust violations, unfair trade practices, or restraints of trade. People convicted of these felonies do not need to apply for restoration of their firearms rights (unless convicted of other nonviolent felonies); the changes exempt them from the firearms restrictions.
Tags: Britt, felons, firearms, guns, second amendment, whitaker
We must do this for the hole country and for every one of us please help in the fight to obtain our rights back
I think this would be great,one thing is a person with a fel. can buy a black powder rev. with no paper work, they are just as dangerous as a reg. gun at least they will have a record of who has a gun if they are a fel. and reg. the fire arm.
Nonviolent felony I would like my fire arm card back
Regain my gun right,unfortnately I pleaded guilty and did not understand
what would happen.This happen 20 years ago and I was awarded custody
of my 7 year old.My ex lied and didn’t have enough money at the time to fight both. Yet I was recently on jury duty when they said something about
20 year law.Does this mean I can regain my gun right also
I was convicted of a class d felony for dui, so am i able to get my gun rights back after i complete my sentence? If so what channels would i take to get them back?
In 1997, after voluntarily pleasing guilty to the crime of failing to register as an investment adviser (in Massachusetts), on advice of counsel, I received a felony conviction. After 5 years, I was eligible by MGL c. 129B, to receive a FID card which will permit me to possess rifles, shotguns and ammo, BUT my local police dept. informed me that I may be a federally prohibited person, which means that although I have a valid FID issued by the state, I cannot legally have any sort of firearm under federal law. I believe that my felony is one of the few exempted from the federal gun ban under USC 18 Section 921(a)(20)(A), as it pertains to regulation of business practice, but I cannot get a straight answer, interpretation of that section, or an opinion from the ATF or the state Attorney General’s office to my question about the federal disability and the exempted crimes. Even if they do opine and inform me that my felony is exempt from the federal gun ban, how does that opinion get reflected at NCIS which is handled by the FBI? If a person can’t pass the background check, having a valid FID isn’t much good to them. Thanks.
How would this affect me who was convicted of a felony 25 years ago? It was for Burglary. I have not been in trouble since I was 17 when it occurred. I served my probation and continued to live my life rehabilitated, raised my daughter and obeyed the laws of society. I petitioned the State of Missouri almost 4 months ago and already hearing good news that I have high chances of being pardoned and are recommending that I be pardoned by Governor Jay Nixon. It is now up to him, but they said my chances are good considering my story. And Missouri doesn’t pardon a lot of people. But it isn’t as low as North Carolina.
I’ve also lived the last 12 years in North Carolina. So I guess my questions is if I am pardoned will NC recognize my pardon and all my restored rights? The main thing I wanted was firearm rights restored. I’ve never been able to own a gun.
I don’t know! I just heard about this last night from a buddy if mine. I was convicted of a burglary 27 years ago hear in ca. I have my best friend who is a corrections officer and one friend who is a BPD and one who is a CHP have even gone on a ride along with one of them and yes they all know my background been friends for at least twenty yrs. One of witch told me sure I could get a pardon and he would even be a character reference for me, heck they all have volunteered that but the likely hood of getting signed off by the Federal. Level would be the problem! Guess I’ll Google that one see if its been done before I believe it! PS the buddy I talked to last night saw something on tv that was stating that when Regan was shot thats what sealed the deal for me not overcoming the Federal level. The soga continues! Good luck to us.
Here’s a question for you: 1) How can current gun laws that are passed be applicable to these old felonies? These new laws should be enacted from the day that they are passed AND FORWARD. They would apply to any convictions after that law was enacted. How can they magically go back in time and be used to convict someone or affect someone whose crimes fall under completely different laws that were in place at the time? This is foolishness at it’s best. If the laws from the time of your felonies state that your gun rights are automatically given back then that’s how it should be.
Ok….you want to get your firearms rights restored? I have been talking to every Representative and Senator in NC. I’ve been able to get a few to listen and consider my point of views. What I have been told today is to get more people to speak out and make themselves heard. I am willing to lead the effort but I need others to stand with me. Contact me and I can share how I need help….don’t worry I am not going tomask for money. My email is poqusin@gmail.com. My web page is http://www.ncfirearmsrights.com. If you want to change your situation you will have to get involved.
Kevin Harris
I have seen William Harris spam post all over Craigslist with his desire
to own a firearm. He has three felonies. I understand we all make mistakes, and we should get a second chance. But a fourth chance? No sir. If you committed three felonies, the odds are you are still breaking the law.
No guns for career felons.
David,
I am guessing you are the one that kept trying to keep my posts pulled and actually recommended felons come visit me in an off hand attempt to threaten me. It is people like you that do not need a gun. My three felonies all occurred on the same day, so I am not a repeat criminal. I might also add I have been working for one of the largest banks in NC for nearly 15 years, and will be getting my rights to possess a firearm back shortly.
I am also working to get the law changed to get the right back for other felons if they meet certain criteria. Since you don’t know me and are not a judge your opinion on the matter is not fully educated on the matter. I have been attempting to legally pursue this matter as it smacks of the unconstitutionality of a blanket ban without a method of recourse. Besides, if I were a career felon with intent to do mischief or harm do you think I would really care if it were legal or not? Most of those wishing to prevent ex-felons from possessing firearms simply do not want anyone to possess firearms, or they want to hold themselves as special individuals that have a higher right as a citizen to possess. I am a citizen of the US and have the same rights via the Constitution as anyone else. I paid my debt and have rehabilitated. You do not have the right to restrict me my god given rights.
So we all make mistakes. We deserve second chances. But where I draw the line is on repeat criminals having guns. If you have more than one felony, I have a hard time digesting the fact you should get your gun rights back. If you decided to stop breaking the law after one felony I would not think twice about it. But three felonies? I do not think this should happen.
Rodina,
Obviously by the name and the time submitted you are either a friend of David’s or his alter ego. Rather than re-type everything, simply read the post to him listed above.
I think that if a presons crime was not up a gun I c no reason they cant get there rights back
Read lots of comments,I to would like to own a gun legally,but I have a few felonies for drug possession ,so I guess I really have no chance,I can understand why,even though I don,t like it
I was 16 when I was charged with felony larceny I went through court for a year before I was convicted I was charged as an adult is it possible to own or get back my rights to own a fire arm I really like hunting I’m 25 now and I don’t think ill ever b able to go
See: Boren v. State of Idaho. Idaho is another state who gives gun rights back to felons. Sort of. Boren has two appeals at stake here. One is that Idaho Code I.C. 18-310(4) is ambiguous and open to interpretation. The Idaho State Court of Appeals agreed, reversed and vacated his conviction. It is now under appeal by the State of Idaho.
If this appeal fails for Boren another appeal is waiting in the wings. Appeal No. 2 would have wide ranging effects on gun laws in the State of Idaho and maybe more states. To treat an out-of-state felony differently than an Idaho felony is a violation of the 14th Amendment right-to-travel. When a felon moves from one state to another his/her felonies “move” with them. The right-to-travel guarantees that those felonies will be treated the same as similar felonies committed in the new state of residence. In Idaho they are NOT. “…upon final discharge, a person convicted of any Idaho felony shall be restored the full rights of citizenship…..” The police in Idaho have been throwing persons in jail for firearm violations because those persons have out-of-state felonies.
I,TOO HAD A Felony,42 years ago
I’m,sixty now I don’t know if I’ll ever have my right to bear a fire arm restored. IT’S Like my love ones don’t matter. Sign me up!
I’m on house arrest for carrying a handgun with me on me.. I had a job as a ice cream truck driver. My ice cream truck has been threatened and I was given the pistol free by a guy who was about to rob me with his friends until he recognized me and gave me the gun..they are tellin me to find another job it is already hard enough for convicted felons toobtain employment as is.. so any job that comes my way I’m takin it. So should I ask for life in prison because I refuse to live in a society where I do not have the right to protect my own life. I have been in situations where I have been beaten by men and the police will come and tell me there’s nothin they can do because they DIDNT see it.. but they see me bleeding and hysterical and I’m tellin them who did it.. I am 4’11 female..
I have a couple drug felonies in Nebraska but I currently live in KC, MO. Can I ever bear arms here? I have tried to get a straight answer but have comeup empty handed. I don’t even personally want the right for myself but my boyfriend who has no convictions of any sort owns a couple firearms. So are we not even able to live together because of my mistake ridden past?