Britt, Heller, and the Right to Bear Arms

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The state supreme court issued a batch of opinions last Friday, and while several of them are notable, the one that has received the most attention is Britt v. North Carolina. (You can see the News and Observer’s story here, and a couple of commentators’ views here and here.)

Barney Britt pled guilty to PWISD methaqualone (Quaalude) in 1979. He served four months in prison and a couple of years on probation, and in 1987, in keeping with state law at that time, his civil rights were fully restored, including his right to possess firearms. Over the years, G.S. 14-415.1, North Carolina’s felon-in-possession law, was strengthened, and by 2004, it prohibited anyone who had ever been convicted of any felony from possessing any firearm (handgun, long gun, etc.) anywhere (including in the home) for any purpose (including hunting and self-defense).

Britt, who was now prohibited from possessing firearms, sued the state, arguing that the revised G.S. 14-415.1 was unconstitutional. He asserted, inter alia, that it violated the Ex Post Facto Clause’s prohibition against retroactive increases in punishment. The state obtained summary judgment against him, and he appealed. The Court of Appeals affirmed, but last week, the supreme court reversed.

The court did not find an ex post facto problem. Instead, it determined that G.S. 14-415.1, as applied, violated Britt’s rights under Article I, section 30 of the North Carolina Constitution — a provision that is textually identical to the Second Amendment to the United States Constitution. The court applied something akin to rational basis review. It noted that Britt’s crime was nonviolent and did not involve a firearm, that he had not been charged with any crime in the 30 years since his conviction, and that he had legally and without incident possessed firearms for much of that time. It concluded that the application of G.S. 14-415.1 to Britt was unreasonable because Britt had “affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety” and therefore, a regulation that prohibited him from possessing a firearm could not be “fairly related to the preservation of public peace and safety.”

Justice Brady’s majority opinion commanded four votes; Justice Hudson concurred only in the result, without explanation. Chief Justice Parker issued a three-line dissent, while Justice Timmons-Goodson dissented at greater length. She argued that the right to bear arms is subject to reasonable regulation and that prohibiting felons — like those determined to be mentally incompetent — from possessing firearms is quintisentially reasonable.

Justice Timmons-Goodson’s dissent suggests that this case will be the first step down a slippery slope, with other felons, incompetents, and persons subject to domestic violence protective orders challenging the applicable prohibitions against gun possession. An increase in challenges to those prohibitions strikes me as an exceptionally likely consequence of the Britt ruling, though of course, reasonable minds can differ about whether that’s a good thing or a bad one. Although Britt was a civil case, I suspect that most challenges will arise in criminal cases, when defendants move to dismiss charges based on constitutional concerns (or perhaps, request special verdicts from juries regarding whether the defendants pose a threat to public safety?). As to what standards the courts will or should use in deciding such challenges, time will tell — the Britt opinion doesn’t say.

Although not cited by Justice Brady, the ghost of Heller v. District of Columbia, 554 U.S. __ (2008), the case that found an individual right to bear arms in the Second Amendment, clearly animates Britt. For discussion of another court struggling to implement the right announced in Heller, see this prior post’s discussion of how a federal judge in Utah handled a related issue.

Finally, I wonder what effect this decision has on Britt’s status under federal law. Federal law contains a blanket and permanent prohibition on the possession of firearms by felons. 18 U.S.C. 922(g)(1). However, it doesn’t apply to felons who have had their “civil rights restored.” 18 U.S.C. 921(a)(20). I suppose that the Britt opinion does the trick for federal purposes, but if anyone thinks that the federal prohibition still applies to Britt, please let me know.

23 comments on “Britt, Heller, and the Right to Bear Arms

  1. In holding that the statute is unconstitutional as applied to a particular “type” of convicted felon, is that statute now considered unconstitutionally broad??

    • To the best of my knowledge, the overbreadth doctrine applies only in the First Amendment context, so I don’t think so.

  2. Yeah, between this and the Racial Justice Act, we’re going to see a busy few years of litigation here in NC.

  3. So the only route for a felon to get his rights restored is to get a judge to rule on his “as applied” challenge to the law?

    • It isn’t the only route — for example, obtaining a pardon or an expungement would do it, too. But for some folks it may be the most plausible route.

      • Going off on a bit of a tangent here, but an expungement does not change the fact that you were convicted, it only attempts to remove all the documentary evidence of that conviction. So when asked if you have ever been convicted on, say, a job application, to not include an expunged conviction would be lying.

        • Is that correct? GS 15A-145(b) includes this sentence: “No person to whom such an order [for expunction] has been entered shall be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement, by reason of his failure to recite or acknowledge such arrest, or indictment, information, or trial, or response to any inquiry made of him for any purpose.” The same language appears in other expunction statutes.

          It seems curious that the statute refers to “arrest, or indictment, information, or trial,” but does not say “conviction.” Nevertheless the statute seems to be understood to allow the person whose record has been expunged to omit reference to the conviction in employment applications and other documents. A quote from State v. Jacobs, 128 N.C. App. 559 (1998): “The purpose of the statute is to clear the public record of entries so that a person who is entitled to expunction may omit reference to the charges to potential employers and others, and so that a records check for prior arrests and convictions will not disclose the expunge entries.”

          With this, I’ve said what little I know about this subject and would be glad to hear from someone who knows more.

          • Again, does not change the fact that someone was convicted; it just prevents them from being prosecuted for lying about it, and removes any documented proof of that conviction.

          • Prosecutor’s response is asinine …

            A “conviction” is a creature of statute. An act is an act; once committed, it will always have been committed. However, an act is not a crime unless there is some statute making it a crime. A statute that expressly “kills the creature” and effectively renders it nonexistent and permits a previously convicted person to state that they have no conviction does not make that person a liar. It changes his status and record.

        • if you were pardoned, or your conviction was set aside, or received an expungement you have not been convicted of a felony.

  4. I would just like to clarify a couple points in the blog. The majority opinion in Britt v. State did not address any of the constitutional issues we raised except the violation of Article I, Section 30. As a second point, the majority also declined to address what standard would be applied in these types of cases because the application of this statute to Mr. Britt was so clearly unreasonable it could not even meet that minimum standard.

    As to the Federal issue, Mr. Britt’s rights were restored in 1987. As such his rights under Federal law are not at issue under 4th Circuit cases interpreting North Carolina rights restorations. But I would be interested in hearing any other attorneys’ thoughts on this.

    • Thanks for the comment. I agree with both points. In saying that the court “did not find an ex post facto problem,” I did not mean to convey that the court found that there was not an ex post facto problem. Likewise, although the court did, in fact, apply rational basis review, it expressly dodged the issue of whether some greater scrutiny might be appropriate — an issue that’s potentially very important for future cases. I don’t claim any special expertise in the restoration of rights question, so perhaps others will weigh in on that.

    • I Always thought that when you got your citizenship back you got your rights to bear arms back 18 u.s.c 921(a)(20) us law, the nc supreme court voted 5- 2 in favor of up holding nc right to bear arms if you are not a violent felon with citizenship restored why would have to go to court to get back what was taking in violation of the constitution. im not an attorney!

  5. For a detailed account of the legislative history of the Felony Firearms Act (written before the latest Britt decision), check this out: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1386182 . The paper exposes the bizarre and entirely non-compelling manner in which the 2004 amendments to the Act came to pass. It also features a detailed heightened scrutiny argument, and discusses why the “other options” mentioned by some of the posters above (pardons, etc.) are a fantasy.

  6. the whole felony firearms act is stupid i think if the felon was only convicted of a nonviolent felony. And especially if the person has a PJC on their record!

    • Typically a PJC would not be granted to a felony offense.

      • i got a pjc for one

  7. isn’t there talk of restoring “white-collar” felon’s gun rights?

  8. Hi, last week I tried to buy a shotgun and was denied a permit to purchase because of a simular situation as Mr Britt’s case. I was convicted in 1985 and rights restored in 1988. My conviction was a drug charge, non violent, but it was a felony. Was is very upsetting to me since I have been a law abiding citizen without even a speeding ticket or any other arrest in my life except that one charge. What can I do about this without spending alot of money I don’t have, I really sick about this, never being able to hunt with my children or have a gun at home to protect my household and family, can anyone help me ???
    Regards,
    Bradley Carson

  9. Most states automatically restore your civil rights upon completion of your sentence. USC 18-922 “If rights have been restored, the right to vote, hold office,sit on a jury, then ALL rights have been restored!” It all depends on the state in which the conviction occured.

  10. I hav small busniess where i buy and sell,recently i was at a reidient sale when all my buying was compeleeted my customers daughter came out to my truck and asked if i would dispose of some twenty two bullets her mother said that the grand children where getting into them,of course i said yes,when her daughter came out with the bullets she said mother wants to see if you can get rid of a old gun she had in the closet ,she was down sizing and didnt have a place for the gun ,her grand children was her main concern,she came out of the house with gun pointed at my mid section,while slapping yes slapping cartridge full of twenty two rounds,i take the gun out of her hands and cleared the chamber,and told her i would give it too my son,for heis graduation present and for being accepted in to honors college in wilmington,to shorten this story ,had two pender county sherieffs i felt likee where profiling me and my friend,we wheree pulled over said my small trailer was illegal,which found out later it wasnt,gave him my driver licencse he came back and ask me if he was too search my truck would ihe find any cocaine,since in the early eighties,i had cocaine charge,i said know then he ask me if i was a felon i told he i diidnt think so because my rights where given back to me over twenty years ago,i did vlolunteer t the ,information about the gun,and i actually said that i would get it out of the vehicle for him which he said i could,we walked around the truck i got it out and checked the chamber again .handed it to him and told him how i got ithe thought it was a neat rifle because either of us had sen that style before,he tells me he has to run the numbers and make sure it wasnt stolen,and if it check out we could leave with a warning,while sitting back in the truck with my friend he says that he cant take any resposiblity for the gun because he was a reecent felony for breaking and entering,,i tell him not to worry i will say its my any way because it was,well what happens next a detective arrives and thinks all the merchandise is stolen ,because my friend un benost to me was under indictment right now for b .and e and is currently doing time.theey then put handcuffs on me and tell i am being held because of stolen merchandise,and was put in the car,they ram sacked my truck looking for drugs,which of course they didnt find any,i gave the ladies name who i bought the stuff from they couldnt get in touch with her,so i gave the address they sent a cop over she verified my story,the deputy acknowledge thaat i was telling the truth and that if it was up to him they would release me,but the detective with out ever talking to me had me taken in then after in handcuffs the entire tells me i being charged for felony gun procession,i have two sons in college aand a daughter who i taught to hunt and protect them selves,a new busniess without alot of money ,i have no attorney and court next thursday and suggestions or comments

  11. […] There will be more litigation over gun rights. Although State v. Britt, discussed here, already provided a platform for such litigation, McDonald adds fuel to the fire. In fact, the News […]

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