New Legislation Regarding the Restoration of Felons’ Gun Rights

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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.

179 comments on “New Legislation Regarding the Restoration of Felons’ Gun Rights

  1. I was convicted of possession of marijuana for sales I was sentenced for 6 month 18 years ago now that I live in Texas can I purchase a handgun..

    • I have a class 2 felony from 1980 related to drug charges. I live in TX now. Tried to have it expunged online like a lawyer told me to but it says I don’t qualify. What do I have to do to get my gun rights back?

      • Hi I’m in the same boat, with a non-violent felony conviction 15 years ago, & you could hire an attorney to file a “post conviction writ of Habeas Corpus” IF you were convicted within 7 years (or so, according to the atty I talked with yesterday specializing in these writs), and also if there’s a reason to challenge the conviction, such as an unreasonable search & seizure etc. Your other option that I know of is to apply for clemancy, through a governor pardon, BUT I believe all of this needs to be done in the county of your conviction.

      • Meant to say to please let me know if you find any other way to eliminate your felony

  2. my conviction was in California 18 years agoI had no guns knives just a young kid selling marijuana

  3. I was convicted of selling a small amount of marijuana 40 years ago. I’ve been legally voting since the election of Jimmy Carter. I live in Missouri, and the case was in Missouri. Where do I stand in regard to gun ownership? Thank you.

  4. How long do you have to wait to get rights back to own or buy a firearm is it 20 years I heard 10 years if some one knows about north carolina please email me back thanks.

  5. I was charged under the convictiom felon laws for having a 1905 shot gun witch is a very old gun my wife father had I was rabbet hunting with it my crime happen in 1994 when I got out of prison the offer told me I could hunt with this gun and now I,m charge with this crime afther 7 years it is not right to keep pucthing me I,m 58 years old I do not have 20 years left I have not been no trought at all I work whrn I can find a job that will hire felons please help .

  6. I think California needs to address persons with violent intention or acted crimes when they remove ones right to hold a firearm. California only wants to increase their conviction rate by making non-violent persons guilty for accusations punishable by imprisonment. That’s one of the little ways California justifies paying prison guards top $$$$’s for “watching dangerous criminals”. California can take that criminal offense and shove it where the guards keep there spouses (in the closet). I will keep my knives, spears and long range string propelled devices right next to my 7mm b-action sniper rfl! you come for my gun and I’ll see and stop you from getting within 800 yards.

  7. i was convicted of several felonys in state or oregon for unlawful use of motor vechicle its been 12 years how long or what do i have to do to own a firearm

  8. I had a 2nd degree felony in 1985 in Iowa I now live in florida have been here for 6 months,how or can I get my rights to carry a firearm in the state of florida,if so how dose one go about doing so. any body know? it was a none violent crime.

  9. I was convicted of a class I felony Non violent in 2000 i remember the judge giving me back my guns ,then telling me N.C. doesn’t take away civil Rights. I know the law change in 2010 but can’t find anything for year 2000 can you help clear this up.

  10. My husband was convicted of poss of marijuana and thift by receiving one in Missouri and the other in Arkansas the last one was in 2005 what if any step can he take to get his civil rights back.

  11. How do I get my gun ownership rights back after giving up my medical marijuana license up?

  12. i am just concerned about having to take away a gun from a lawful owner to protect another from it,if i physically take one to save another am i still liable to be charged, not keeping it of course

  13. Had owi 3rd in iowa back in 1991 it was a felony I now live in wis where that offense is not classified as felony. Trying to figure out how to get my rights back

  14. I Plead NO Contest to a felony charge in Florida for a worthless check. I made restitution before trial and the Judge withheld adjudication. This was in 1995. I would like to get my 2A rights back.

    I live in Raleigh area.


  15. lost gun rights, can I go shooting range ?

  16. I have a felony of aggravated assault and my probation is finished as of Feb 27,2015.I was accepted to vote on 07-22-2015.So,with that being said ,can I. Have my gun rights back?This is in Georgia.

  17. I was convicted of possession of cocaine only $20 worth and broke a too both were in 05 or 06 I grew up hunting with my father I have sons now and eld like to teach them to hunt and gun safety I eld also Luke right to bare arms to protect my family cld anyone give me advice

  18. I was convicted of sale of 5 grams of pot lawyer quit during my case and i was not even told about prayer for judgment i filled out all paper work and had my finger prints done for the sbi and fbi then was call by the concealed instructor saying a fed. Officer called wanted to know why i filled this out so she called my home once i told her our sheriff got me started on this process she asked if i had hired an attorney i said no because i was told after i payed my 38.00 for finger printing and 200.00 court costs i was just to apear in front of the judge to ask fir my gun rights back her answer was since i hadnt hired an attorney not to worry about the feds i have yet to pay the court cost seems hopeless i have a spotless record after all these years can you help in any way sure would like to feel free to hunt and on my firearms again thank you.

  19. I fogot to say my conviction was 23 years ago i apologize.

  20. I was sentenced in Oct 2009 for 1 count mail fraud and aiding and abetting charges in 2004. Federal court. Can I get my gun rights back now that I have served my time and probation is complete?

  21. Hi I am 49 now and back when I was 24 I got 5 DUI which made me a felon.And then 2 years later I was caught with a firearm by a felon. Now 23 years later can I buy a small handgun to protect my family with and get a carrying permit? Thank you

  22. I live in Georgia if that helps

  23. I was convicted of possession with intent to distribute marijuana in Ohio.This was back in 1985.This was a non violent crime and I haven’t had as much as a ticket since.I reside in Tennessee and Florida now so what do I have to do to get my right to bear arms back.Thank you very much Don

  24. Indiana has a two time conviction law on marijuana which gave me a D felony 14 years ago can I legally own a gun and get a carry permit to protect my family

  25. Does it matter what the felony is or no? In the state of Virginia a 2 bad checks over $100 in a three day period is a felony…that should not keep you from owning a gun when you live in NC, should it?

  26. I was incarcerated for a crime I did not do for18 years and 7 month’s and I can’t fine a lawyer to help me a person with nothing so I to can enjoy my rights can anyone help I’m in North Carolina

  27. Am I misunderstand the 2nd amendment right to the US constitution, it says the right to a well formed militia, the right of the people to keep and bear arms ,SHALL NOT BE INFRINGED UPON.

    • The problem is that the US Supreme Court, which is made up of political appointees , gets to decide what the wording of the Constitution and Bill of Rights really means . For example, the 10th amendment says that any issue or area not covered in the Constitution is a matter for the states and not the Federal government . Since nothing concerning drugs or medicine ( and many other items ) were not mentioned at all, one might think that there should be no DEA or federal drug laws .

      They get around the plain reading of the documents by ruling that since drugs can theoretically cross a state line , even if that never happens , it affects ” Interstate Commerce ” which is a category the Congress can regulate . One Justice ( Thomas ) said that the founding fathers were ” rolling over in their graves ” at the thought that a product wholly produced within a state and never crossing a state line could somehow affect interstate commerce . It is ludicrous .

      As long as politicians have agendas their appointed judges will have agendas . It is all politics .

  28. My felony was a non violent felony or its been 10 years since it happened I wonder if I can get my gun rights back here in Minnesota please let me know

  29. I had a second degree theft charge which was a deferred sentence in 1990 and was just recently denied a gun purchase. The return appeal letter said that my deferred judgement had not been satisfied. Is a governors clemency the only way to reinstate gun rights?

  30. My husband was convicted in Mississippi of Grand larceny, uttering forgery, two counts of burglary, conspiracy of burglary, 20 years ago and hasn’t even had a traffic ticket since, aside from a no seat belt. How would he go about getting his rights back?

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