The Second Circuit just decided a case regarding gun control legislation in Connecticut and New York. It’s important in its own right, and because it concerns two issues that the Supreme Court could soon take up: bans on assault weapons and on high-capacity magazines. Continue reading
Tag Archives: gun 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). Continue reading →
Regular readers know that I try to keep abreast of changes in gun laws, both because guns are involved in a significant number of serious crimes and because the gun laws themselves are often criminal provisions. There’s been considerable recent media coverage of a proposal by the Bureau of Alcohol, Tobacco, Firearms, and Explosives to change the legal status of a specific type of ammunition. Depending on who you talk to, the move is either a technical reclassification that will improve officer safety at no significant cost to law-abiding gun owners, or President Obama’s first step towards gun control by executive action. As usual for a School of Government piece, this post doesn’t take a side, but does provide some facts. Continue reading →
This week, the court of appeals decided State v. Price, an interesting gun rights and Fourth Amendment case.
Facts. The defendant was standing in a forest, near a deer stand, holding a rifle, in full camouflage, when a wildlife officer approached him. The officer asked the defendant for his hunting license, under the license check authority of G.S. 113-136(f). The officer then asked the defendant whether he was a convicted felon, and the defendant admitted that he was. The officer called another officer for backup, and they seized the defendant’s gun. The defendant was subsequently charged with possession of a firearm by a felon.
Trial court proceedings. The defendant moved to suppress his statement about his criminal record, and his gun, apparently on the basis that the inquiry regarding his record unduly prolonged the license check and that without the admission, there would have been no basis for seizing the gun. The judge agreed with the defendant’s argument but ordered dismissal, rather than suppression, as the remedy. The defendant also argued that the felon-in-possession statute, G.S. 14-415.1, was unconstitutional as applied to him, because his possession of a firearm did not pose a danger to the community. The judge stated that he agreed with that argument, too, but that he was “dismissing [the case] not based on those grounds,” instead relying on the Fourth Amendment violation. Confusingly, the judge eventually signed two written dismissal orders, one based on the Fourth Amendment violation and one based on the Second Amendment claim. The State appealed.
Second Amendment issue. The court of appeals first addressed the defendant’s constitutional challenge to G.S. 14-415.1. The court observed that under Britt v. State, 363 N.C. 546 (2009), and State v. Whitaker, 201 N.C. App. 190 (2009), as-applied challenges to the statute require consideration of the following factors:
- The type of felony conviction(s) at issue, including whether the conviction(s) involved violence
- How long ago the conviction(s) took place
- “The felon’s history of law-abiding conduct since the crime”
- “[T]he felon’s history of responsible, lawful firearm possession during a time period when possession of firearms was not prohibited”
- “[T]he felon’s assiduous and proactive compliance with the 2004 amendment” to G.S. 14-415.1 (rendering it applicable to all guns everywhere rather than just handguns outside the home)
The court rejected the defendant’s as-applied challenge, noting that he had three prior felony convictions, two for selling marijuana and one for an attempted deadly weapon assault. The assault conviction was “more recent,” as it took place in 2003. And, while there was “no evidence . . . that the defendant has misused firearms, there [was] also no evidence” that the defendant had complied with the Felony Firearms Act, as he possessed his hunting rifle in violation of the statute. The court’s discussion is consistent with my general impression that individuals with felony convictions are much more likely to win the argument that they are constitutionally entitled to possess firearms when that argument is made proactively in a lawsuit against the state than when the argument is raised as a defense after being arrested in possession of a gun.
Fourth Amendment issue. The court also reversed on the Fourth Amendment issue, concluding that once the defendant produced his hunting license to the wildlife officer, he was free to leave. Thus, the further discussion regarding the defendant’s criminal record was consensual, not part of a seizure, and was outside the scope of the Fourth Amendment. (And once the defendant admitted to being a felon, the rifle itself was properly seized as evidence of a crime that was in plain view.) This result is generally consistent with the courts’ treatment of traffic stops, where the return of the driver’s license to the driver generally marks the end of the seizure and the beginning of a consensual encounter. My paper on traffic stops – available here – discusses that issue in detail.