Back in February, the Court of Appeals decided State v. Nanes, COA24-487, ___ N.C. App. ___; 912 S.E.2d 202 (Feb. 19, 2025) (summarized here). The case considered and ultimately rejected facial and as-applied Second Amendment challenges to G.S. 14-415.1, our state prohibition on possession of firearms by a felon. Nanes squarely rejected the idea that G.S. 14-415.1 was facially unconstitutional but left open the possibility that the statute may be unconstitutional as applied to a different defendant. In State v. Ducker, COA24-373, ___ N.C. App. ___ ; ___ S.E.2d ___(May 7, 2025) (summarized here), the Court of Appeals closed the door on that possibility, ruling that Second Amendment rights do not apply to convicted felons and rejecting the need for a felony-by-felony analysis for as-applied Second Amendment challenges. Both Nanes and Ducker also considered and rejected related claims under Article I, Sec. 30 of the North Carolina Constitution. Today’s post examines these decisions.
Facial Second Amendment Challenges. A facial challenge asserts that a law is wholly unconstitutional and cannot lawfully be applied to any defendant under any set of circumstances. U.S. v. Salerno, 481 U.S. 739, 745 (1987). Perhaps unsurprisingly, facial Second Amendment challenges to laws prohibiting the possession of firearms by convicted felons have not been successful. For instance, the Fourth Circuit Court of Appeals rejected a facial challenge to the federal counterpart of our state firearm by felon law, 18 U.S.C. 922(g)(1), in December of 2024. U.S. v. Canada (“Canada II”), 123 F.4th 159, 161 (4th Cir. 2024) (“No federal appellate court has held that the federal felon in possession of a firearm statute is facially unconstitutional, and we will not be the first.”) (summarized here).
The defendant in Nanes argued that the firearm by felon law categorically and permanently disarmed almost all felons, regardless of whether the convictions involved violence. Rejecting that argument, Nanes observed that G.S. 14-415.4 allows certain nonviolent felons to seek restoration of their gun rights after 20 years of law-abiding behavior. State law therefore does not impose a permanent ban on possession of firearms for felons convicted of non-violent offenses. Further, the Nanes court pointed to language from the U.S. Supreme Court’s seminal Second Amendment cases condoning bans on felons possessing firearms. See, e.g., District of Columbia v. Heller, 554 U.S. 570, 626-27, n. 26 (2008); McDonald v. City of Chicago, 561 U.S. 742, 786 (2010). Nanes also noted that the Court reaffirmed that principle in the more recent decision, United States v. Rahimi, 602 U.S. 680 (2024). In Rahimi, the Court upheld the federal ban on firearm possession by people subject to certain protective orders—even though no criminal conviction was required to trigger the prohibition. The Court reasoned that temporary disarmament of people who present a credible risk of harm to others was consistent with the country’s historical tradition of firearms regulation (Jeff Welty blogged about that decision, here). In light of the Court’s guidance, our state ban on firearm possession by felons “fit[s] comfortably within the nation’s tradition of disarming dangerous individuals . . .,” at least as applied to some felons. Nanes Slip op. at 9 (citing Canada in support).
As-Applied Second Amendment Challenges. The defendant in Nanes also argued that, even if G.S. 14-415.1 was facially constitutional, it was unconstitutional as applied to him. The defendant in Nanes was convicted of felony larceny of a dog and felony animal cruelty for stealing and killing his parents’ dog. He argued that these were nonviolent offenses and that applying the state ban on firearms by felons to him did not fit within the historical tradition of firearms regulation. The Court of Appeals had no trouble rejecting that argument. In addition to the violent circumstances of his felony convictions, the defendant had a long history of assaultive conduct resulting in multiple misdemeanor convictions. “Simply put, as Defendant has a demonstrated history of violence towards others, applying section 14-415.1 against him and revoking his firearm rights is again well within this nation’s tradition and history of disarming individuals who pose a threat of violence towards others.” Id. at 12.
As mentioned above, Nanes cited the Canada case from the Fourth Circuit in support of its rejection of a facial challenge. Notably, Nanes did not cite U.S. v. Hunt, 123 F.4th 697 (4th Cir. 2024); cert. denied, ___ S.Ct. ___; 2025 WL 1549804 (summarized here), decided by the Fourth Circuit the same month as the Canada decision. In Hunt, the Fourth Circuit held that the Second Amendment only protects “law abiding, responsible citizens” and found that felons were not protected by the Second Amendment. Thus, no felon can mount a successful as-applied Second Amendment challenge to 18 U.S.C. 922(g)(1) (at least absent an unconditional pardon of the conviction or invalidation of the underlying law of conviction). Hunt at 705. Alternatively, the Hunt court held that disarming convicted felons was consistent with the historical tradition of firearm regulation, to the extent that 922(g)(1) did infringe on protected Second Amendment activity.
The absence of a citation to Hunt, coupled with the Nanes court’s individualized analysis of the defendant’s crime and background, seemed to indicate that North Carolina state courts were taking a different approach than the Fourth Circuit in Hunt and would consider case-by-case, felony-by-felony as-applied challenges. No longer. In State v. Ducker, COA24-373, ___ N.C. App. ___; ___ S.E.2d___ (May 7, 2025), the North Carolina Court of Appeals shut down case-by-case as-applied challenges to the state firearm by felon law, joining the reasoning of the Hunt case.
Ducker’s disqualifying felony conviction was attempted fleeing to elude police. He argued that the application of state ban on firearms possession as applied to him violated the Second Amendment, given that fleeing to elude was a low-level (class I) felony, was not inherently violent, and occurred 13 years earlier. Like the Fourth Circuit in Hunt, the Ducker court found that felons simply enjoy no Second Amendment protections, without regard to the nature or circumstances of their conviction. According to the Ducker panel: “[W]e need not perform this felony-by-felony analysis to determine the constitutionality of Section 14-415.1 as applied to each individual defendant who challenges it.” Ducker Slip op. at 9.
The Ducker panel, like Hunt before it, relied on older cases decided before the analytical shift for Second Amendment challenges brought by New York Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022) (summarized here). See, e.g., State v. Fernandez, 256 N.C. App. 539, 545-57 (2017) (convicted felons are not law-abiding citizens and are unprotected by the Second Amendment); Hamilton v. Pallozzi, 848 F.3d 614 (4th Cir. 2017) (same). The Ducker and Hunt courts determined that these earlier decisions rejecting similar Second Amendment challenges were not overruled by Bruen and retained their precedential value. According to these courts, as-applied Second Amendment challenges fail at the first step of the Bruen analysis—the ban on possession of firearms by felons does not impact protected Second Amendment conduct, because felons fall outside of the Amendment’s protections. The Ducker court also observed that it was bound by Fernandez unless and until the North Carolina Supreme Court overruled it. Any suggestion to the contrary in Nanes was neither central to its holding nor binding considering the earlier Fernandez decision. In Re: Civil Penalty, 324 N.C. 384, 379 (1989) (where two opinions of the Court of Appeals conflict with each other, the earlier opinion controls). Given its holding that regulation of firearm possession by felons is not conduct covered by the Second Amendment, the Ducker court declined to rule on the question of whether there was an analogous historical tradition of this type of firearms regulation.
State Constitutional Challenges. As mentioned, the defendants in Ducker and Nanes both brought, and ultimately lost, challenges to G.S. 14-415.1 under Article I, Sec. 30 of the North Carolina Constitution. That provision contains language similar to the Second Amendment (as well as some quite different language) and states in pertinent part that “the right of the people to keep and bear arms shall not be infringed.” Under Britt v. State, 363 N.C. 546 (2009), regulations affecting this state constitutional right “must be at least reasonable and not prohibitive, and must bear some fair relation to the preservation of public peace and safety.” Britt at 549 (internal citation omitted). The Britt court established a five-factor balancing test to evaluate the reasonableness and relation to public safety of firearm regulations:
(1) The type of felony convictions, particularly whether they involved violence or the threat of violence; (2) The remoteness in time of the felony convictions; (3) The felon’s law-abiding behavior since the crime; (4) the felon’s history of responsible, lawful firearm possession during a time period when possession of firearms was not prohibited; and (5) the felon’s assiduous and proactive compliance with Section 14-415.1(a). Britt at 550.
In Britt, the North Carolina Supreme Court struck down the state firearm by felon law as applied to the plaintiff. His felony conviction for possession with intent to sell and deliver a controlled substance was not violent and was 30 years old at the time he sought to regain his gun rights. The plaintiff avoided any new trouble since his felony conviction and had a history of responsible gun ownership both before and after his conviction. Before an amendment to G.S. 14-415.1 in 2004, felons could lawfully possess firearms in certain circumstances. See G.S. 14-415.1 (1995). Britt did so legally and responsibly. When the law changed in 2004, he voluntarily surrendered his weapons to law enforcement. Under these circumstances, the factors weighed in the plaintiff’s favor and his as-applied state constitutional challenge was successful.
The defendants in Ducker and Nanes were not similarly situated to the plaintiff in Britt. Nanes’ felony conviction for animal cruelty was violent, according to the court, and preceded his current case by only around three years. That defendant also had a string of violent misdemeanors spanning 2010 to 2017. His behavior since his 2017 felony conviction included two more convictions for intoxicated and disruptive conduct and first-degree trespassing. Nanes had no history at all of responsible gun ownership—“the first known instance of Defendant possessing a gun was when he utilized a revolver to kill two people in the present case.” Nanes Slip op. at 16. Further, unlike Britt, Nanes did not proactively comply with the law. He only raised this challenge after he was charged with the crime of possession of firearm by felon.
Ducker’s felony conviction for attempting to flee to elude arrest, though not violent per se, indicated “a disregard for the safety of others . . .”. Ducker Slip op. at 16. While his conviction was 13 years old at the time of his challenge, that was nowhere near the 30 years at play in Britt, and the court noted that it had rejected other similar challenges where the conviction was up to 18 years old. Ducker was also convicted of a misdemeanor in 2017 for violating a domestic violence protective order. This meant that he was not law-abiding since the time of his 2009 felony conviction. There was no history in the record of the defendant’s responsible gun ownership at any point. Even if he had demonstrated a history of responsible gun ownership, this factor would not outweigh the others. Thus, the state constitutional challenges in both cases failed.
Takeaways. Ducker, Nanes, and the Fourth Circuit’s decision in Canada indicate that facial Second Amendment challenges to firearm by felon laws are dead in the water. The same cases seem to shut the door on as-applied Second Amendment challenges as well. The as-applied issue is worth preserving, given the circuit split on the point. See Range v. Att’y Gen., 124 F.4th 218 (3rd Cir. 2024) (striking down 922(g)(1) as applied to a defendant with a 1995 conviction for making false statements). That said, only the Third Circuit has so far granted a defendant relief on that kind of challenge, while many other circuits have joined the reasoning of the Fourth Circuit in Hunt. See, e.g., U.S. v. Jackson, 110 F.4th 1120 (8th Cir. 2024) (rejecting the need for felony-by-felony analysis of as-applied Second Amendment challenges to 18 U.S.C. 921(g)(1); Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025) (same). The North Carolina Supreme Court has temporarily stayed the Court of Appeals decision in Ducker, which may indicate a desire to review the decision. See State v. Ducker, ___ N.C. ___; 915 S.E.2d 37 (May 20, 2025). Still, unless the North Carolina or United States Supreme Court rules otherwise on the issue, a defendant is unlikely to succeed on an as-applied Second Amendment challenge to North Carolina’s firearm by felon law.
Despite this development, defenders should keep in mind that there may be other potentially meritorious Second Amendment challenges to bring in a criminal prosecution involving firearms or other weapons. See, e.g., State v. Radomski, 294 N.C. App. 108 (2024) (finding the firearm on education property law unconstitutional under the Second Amendment as applied to the defendant); disc. review denied, 386 N.C. 557 (2024). As far as state constitutional challenges, the Ducker decision indicates that it will be difficult, but perhaps not impossible, for a defendant to make a successful as-applied challenge to the firearm by felon law under Sec. 30, Article I of the state constitution. In both Nanes and Ducker, the court noted that the defendants never raised this state constitutional challenge until after they were criminally charged, unlike the plaintiff in Britt, who went on the offense and sought declaratory judgment (rather than raising the claim as a defense to a criminal charge). The Ducker court seemed to place special weight on this point. “Defendant has not identified—and we are not aware—of any cases in which a defendant has successfully challenged Section 14-415.1 as applied to him after being convicted of it.” Ducker Slip op. at 14-15. Under that rationale, a cautious defendant with a felony conviction who seeks to lawfully possess firearms may want to pursue relief under G.S. 14-415.4 or sue civilly for declaratory judgment like the plaintiff in Britt, rather than raising the constitutional argument for the first time after being charged with possession of firearm by felon.
I can be reached with questions or comments as usual at dixon@sog.unc.edu.