18 U.S.C. § 922(g)(3) prohibits the possession of firearms by a person who “is an unlawful user of or addicted to any controlled substance.” Is that constitutional as to a regular marijuana user who is not impaired at the time he possesses a gun? Last week, the Supreme Court granted review in a case that presents that question. The answer has implications for state court, as explained below.
firearms
Laws Taking Effect October 1
The North Carolina General Assembly has been quite busy this session. This year’s legislative updates span a range of topics within the world of criminal and motor vehicle law. Summaries of those enactments will be published on the School of Government website once the General Assembly adjourns for the session. For now, I’ll use this post to highlight the laws taking effect tomorrow, October 1, 2025.
COA Shuts Down Second Amendment Challenges to Firearm by Felon
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.
Surrender, Return, and Disposal of Firearms in Civil Domestic Violence Cases
North Carolina General Statute 50B-3.1 provides that, under certain circumstances, a person who is subject to a DVPO must be ordered to surrender to the sheriff “all firearms, machine guns, ammunition, permits to purchase firearms, and permits to carry concealed firearms that are in the care, custody, possession, ownership, or control of the defendant.”
That statute also permits the person to seek return of the surrendered items following the expiration of the protective order and final disposition of any related criminal charges. If the person is ineligible for the return of the items or fails to request return, then a court may order disposal of the items in one of several ways set out in the statute. This post details the procedure for surrender, return, and disposal of firearms and related items in DVPO cases.
Supreme Court Upholds ATF Regulation Defining Gun “Parts Kits” as Firearms
A couple of weeks ago, the Supreme Court decided Bondi v. VanDerStok, 604 U.S. __ (2025). It is an administrative law case, not a Second Amendment case, but folks interested in firearms law will still want to know about it. The media has generally described this case as allowing the ATF to ban “ghost guns,” which is not exactly wrong but also is not precise. Read on for more details.
Bruen Comes to North Carolina
My colleague Jeff Welty has covered the U.S. Supreme Court’s decision in New York Rife and Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), and subsequent lower court cases several times before on the blog. Under Bruen, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Id. at 17. To overcome this presumptive protection, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 19. If the government fails to come forward with evidence showing the challenged rule is consistent with “the Nation’s historical tradition of firearm regulation,” the rule is unconstitutional under the Second Amendment. Id. at 24.
The Court of Appeals recently applied that rule in the context of G.S. 14-269.2, North Carolina’s law prohibiting possession of weapons on educational property. In State v. Radomski, COA23-340; ___ N.C. App. ___ (May 21, 2024); temp. stay allowed, ___ N.C. ___ (June 7, 2024), a unanimous panel held that the law was unconstitutional as applied to the defendant on the facts of the case. This is the first successful Bruen challenge to a state criminal law. Today’s post examines the holding and implications of the decision, and offers suggestions to defenders on how to raise, litigate, and preserve such claims.
Third Circuit Deems Federal Felon-in-Possession Law Unconstitutional
Earlier this month, the Third Circuit, sitting en banc, found the federal felon-in-possession statute unconstitutional as applied. The decision was based on the new interpretive approach announced in New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). The Third Circuit’s ruling is a massive decision that seems virtually certain to be reviewed by the Supreme Court. Keep reading for more details.
Open Carry and Reasonable Suspicion
A decade ago, I wrote a post about the circumstances under which police may stop a person who is carrying a gun openly. A lot has changed since then. The Supreme Court has strengthened the Second Amendment in New York State Rifle & Pistol Association v. Bruen, 597 U.S. __ (2022). The General Assembly has eliminated the requirement that North Carolina residents obtain a permit before buying a handgun. See S.L. 2023-8. And empirical scholarship suggests that many more Americans are carrying guns on a daily basis. See Ali Awhani-Robar et al., Trend in Loaded Handgun Carrying Among Adult Handgun Owners in the United States, 2015-2019, Am. J. Pub. Health (2022) (finding that in 2019, “approximately 6 million [gun owners carried] daily,” which was “twice the 3 million who did so in 2015”). So it is a good time to revisit the question.
Spring 2023 Update on the Constitutionality of Gun Laws
Last fall, I wrote a post about the litigation over the constitutionality of various firearms restrictions in the wake of New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). Recall that in Bruen, the Supreme Court announced a new interpretive approach for Second Amendment claims: courts must determine whether the challenged regulation is “consistent with the Nation’s historical tradition of firearm regulation.” Litigants have subsequently come forward with numerous challenges to gun laws, and courts have struggled with how to apply the new test. As detailed below, the Fifth Circuit recently issued a major federal appellate case decided under the Bruen framework, and we are awaiting another from the Third Circuit on an even more important issue.
Quick Post-Bruen Update on the Constitutionality of Gun Laws
Earlier this year, the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022), holding that New York could not constitutionally require residents to show a special need (beyond the general concerns about self-defense that any person might have) in order to obtain a permit to carry a handgun outside the home. I wrote a detailed summary of the case in this prior post. North Carolina doesn’t require any such showing, so the direct impact on our state was minimal.
However, Bruen’s holding arose from a new interpretive approach. The Court rejected the intermediate scrutiny test most lower tribunals had used when analyzing gun laws and replaced it with a historical analysis in which a limit on gun rights is constitutional only if it is “consistent with the Nation’s historical tradition of firearm regulation.” Lower courts have now begun to apply this framework to assess the constitutionality of various gun laws. The early returns suggest that Bruen’s impact may be substantial across a wide range of federal and state gun laws.