Second Amendment Math: Britt + Heller = Whitaker?

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A divided court of appeals decided another significant gun case this week. But before I talk about the opinion in State v. Whitaker, I’ll briefly summarize the legal backdrop for the case.

In June 2008, the United States Supreme Court decided District of Columbia v. Heller, holding that the Second Amendment protects an individual right to possess a firearm and to use it for traditionally lawful purposes. It invalidated a District of Columbia law that effectively banned the private ownership of handguns.

In August 2009, the North Carolina Supreme Court decided Britt v. North Carolina, holding that as it applied to plaintiff Barney Britt, G.S. 14-415.1, our felon-in-possession statute, violated Article I, section 30 of the North Carolina Constitution. The relevant parts of that article are textually identical to the Second Amendment.

The upshot of these two cases has been considerable uncertainty about the scope of the individual right to possess a firearm. This earlier post discusses some of the confusion and notes that the United States Supreme Court is currently considering a case, McDonald v. Chicago, that may answer some of the questions in this area, including whether the Second Amendment is “incorporated” in the Fourteenth Amendment’s Due Process Clause and so applies to the states.

This week, the court of appeals chimed in with Whitaker. Defendant Douglas Whitaker was a convicted felon who kept several — okay, eleven — long guns at his home, even after being warned several times that it was illegal for him to possess them. He was charged with, and convicted of, being a felon in possession. He appealed, arguing (1) that G.S. 14-415.1 is facially unconstitutional, (2) that it is unconstitutional as applied to him, and (3) that the 2004 amendment to G.S. 14-415.1 (which removed felons’ right to possess certain firearms in limited circumstances) is ex post facto punishment as to felons convicted prior to the amendment’s effective date.

The court of appeals first rejected the facial challenge. Because the defendant argued that the right to bear arms is a fundamental right and limitations on that right should be subject to strict scrutiny, the court began by addressing the standard of review. The standard probably didn’t matter very much in this case, which isn’t a close call, but it might matter a great deal in a closer case. The majority began by noting that regulations upon the right to bear arms have been subject to rational basis review in North Carolina “since at least 1921.” And it argued that the Britt court had effectively applied that standard when it stated that gun laws “must be at least reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.” Thus, it concluded that nothing in Britt required a higher standard. The court likewise found that Heller did not require a higher standard, though the reasons that the court gives for that conclusion aren’t fully convincing. (For example, the court notes that it is not bound by decisions of the United States Supreme Court when considering provisions of the state constitution. That’s true, but (1) the defendant asserted a federal constitutional claim as well, and (2) the court earlier indicated that the state constitution provides a “broader right” to bear arms than the Second Amendment does.)

Anyhow, the bottom line is that the court decided to apply rational basis scrutiny. Using that standard, the court easily rejected the defendant’s facial challenge. For authority, the court relied on its own opinion in the Britt case; since the state supreme court ruled only on Britt’s as-applied challenge, it left undisturbed the court of appeals’ holding that the statute was not facially unconstitutional.

The court then turned to the defendant’s as-applied challenge to the statute. It read Britt to turn on five factors:

  • The type of felony of which Britt was convicted (PWISD methaqualone) and specifically, its non-violent nature.
  • The remoteness in time of the conviction (1979).
  • Britt’s law-abiding conduct since the conviction.
  • His responsible and lawful possession of firearms during the time when felons had a limited right to possess guns.
  • His “assiduous” compliance with the 2004 amendment to G.S. 14-415.1 by getting rid of his guns and asserting his legal challenge through a civil suit.

Noting that Whitaker had three prior felony convictions, including one for taking indecent liberties with a minor, and another as recently as 2005; that he also had several misdemeanor convictions; and that he possessed firearms in violation of the terms of G.S. 14-415.1, even after being warned about the statute, the court rejected his as-applied challenge and determined that G.S. 14-415.1 was constitutional as to him. The important aspect of this holding is not the result — these aren’t sympathetic facts and the outcome was not in doubt — but the process the court used to reach it. The opinion sets out a framework and a set of factors that can be used in analyzing any defendant’s claim under Britt.

Finally, the court rejected the defendant’s ex post facto argument. A very similar argument about a prior amendment to G.S. 14-415.1 was rejected in State v. Johnson, 169 N.C. App. 301 (2005), and the court saw no reason to depart from that precedent.

Judge Elmore, who has also authored notable dissents in several recent satellite-based monitoring cases, concurred in part and dissented in part. He agreed that the defendant’s facial and as-applied challenges should be rejected, though he argued that the state supreme court’s Britt opinion applied a standard of review “more stringent than rational basis, although certainly less stringent than intermediate or strict scrutiny.” He disagreed with the majority’s resolution of the ex post facto argument, concluding instead that G.S. 14-415.1’s total prohibition on gun ownership is sufficiently punitive that ex post facto principles preclude its application to individuals whose felony offenses predated the 2004 amendment to the statute.

The existence of a dissent effectively guarantees further review by the state supreme court. That opinion is likely to come out after McDonald has been decided, and should provide substantial guidance to lower courts. In the meantime, the court of appeals has taken a giant step forward by providing a workable framework for analyzing Britt claims.

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