Britt, Heller, and the Right to Bear Arms

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.