blank

Restoring State Firearm Rights as a Condition for Restoring Federal Firearm Rights

In 2010, the North Carolina General Assembly enacted G.S. 14-415.4, which allows a person convicted of a nonviolent felony to regain his or her firearm rights if he or she meets the statutory criteria for restoration (including, among other things, waiting twenty years after completing his or her sentence). The law took effect February 1, 2011, meaning that a person who meets the statutory criteria is eligible to utilize the restoration procedure whether his or her offense or conviction occurred before or after February 1, 2011. See S.L. 2010-108 (H 1260), as amended by S.L. 2011-2 (H 18) (clarifying effective date). A restoration order has the effect of lifting the state law ban, in G.S. 14-415.1, on possession of a firearm by a felon. See G.S. 14-415.4(a), (b). It also removes the ban on issuance of a handgun permit, G.S. 14-404(c)(1), and a concealed handgun permit. G.S. 14-415.12(b)(3).

In enacting the restoration legislation, the North Carolina General Assembly also had the goal of lifting the federal ban on possession of a firearm by a person convicted of a felony. See Section 6 of S.L. 2010-108 (directing North Carolina Attorney General to send enacted legislation to federal authorities for review and determination whether person who successfully petitions for restoration may legally purchase and possess firearm under federal law). The federal ban does not literally apply to felony convictions, but it typically does. The ban applies to offenses punishable by imprisonment for a term exceeding one year, 18 U.S.C. 922(g)(1), and excludes misdemeanors punishable by a term of imprisonment of two years or less. 18 U.S.C. 921(a)(20)(B).

Did the General Assembly succeed in lifting the federal ban? 18 U.S.C. 921(a)(20)(B) provides that the federal ban on possession of a firearm by a felon does not apply if the person’s civil rights have been restored under state law unless the restoration does not permit the person to ship, transport, possess, or receive firearms. In Caron v. United States, 524 U.S. 308 (1998), the U.S. Supreme Court interpreted the meaning of the “unless” clause. It held that for the federal felony firearms ban to be lifted, a state must completely restore a person’s firearm rights under state law. If a person’s felony conviction limits his or her state law firearm rights in any respect—Caron involved Massachusetts state law, which barred a person with a felony conviction from possessing a handgun outside his or her home or business—the person remains subject to the federal felony firearms ban.

G.S. 14-415.4 appeared to meet this command by providing a mechanism to restore a person’s North Carolina “firearm rights,” a term broadly defined in G.S. 14-415.4(a)(1). A lingering phrase left the question open, however. G.S. 14-415.4(a)(1) stated that the term ”does not include any weapon defined in G.S. 14-409(a)”—that is, machine guns and similar weapons. Those weapons are highly regulated already, available to limited people in limited circumstances. See G.S. 14-409(b). But, the quoted language could be viewed as creating an exception to restoration, resulting in a “Caron” problem.

Section 6 of S.L. 2015-195 (H 562), a lengthy firearms bill enacted this session, seeks to address this problem. It deletes the above phrase, making a person who successfully petitions for restoration of firearm rights subject to the same weapons restrictions as others in North Carolina. To ensure that the change applies to people who previously petitioned for restoration, the legislation states that it applies to restorations granted before, on, or after August 5, 2015, the date the legislation became law. See Section 18 of S.L. 2015-195. Thus, whenever obtained, a restoration under G.S. 14-415.4 should put a person with a prior felony conviction on the same footing as others. While federal authorities and courts ultimately determine the meaning of federal law, this change may accomplish the General Assembly’s goal of lifting both state and federal firearm disabilities resulting from a felony conviction when a person successfully petitions for restoration of firearm rights.