The maximum punishment for driving while impaired in violation of G.S. 20-138.1 increased from two to three years in 2011. As a result, defendants convicted of misdemeanor DWI and sentenced at the most serious level—Aggravated Level One—are prohibited from possessing firearms by federal law. That’s because federal law prohibits firearm possession by a person who has been convicted of a crime punishable by imprisonment for a term exceeding one year, though state law misdemeanors that are punishable by a term of imprisonment of two years or less are excluded from this category of disqualifying convictions. Because North Carolina law sets out a single offense of driving while impaired, which may be punished at varying levels, rather than six separate offenses, there is a question as to whether any defendant convicted of misdemeanor DWI on or after December 1, 2011 may lawfully possess a firearm, regardless of the level at which the defendant was actually punished.
Tag Archives: Heller
Do law-abiding North Carolina residents have a right to carry a gun openly in public? Generally, yes.
Federal constitutional right? The Supreme Court has recently ruled that the Second Amendment protects an individual right to bear arms, including handguns, District of Columbia v. Heller, 554 U.S. 570 (2008), and that it protects that right from infringement by state and local governments as well as the federal government, McDonald v. Chicago, 561 U.S. 3025 (2010). Heller makes clear that the Second Amendment encompasses the right to have a gun in one’s home, but whether the Amendment also guarantees a right to carry a gun in public, and if so, whether it guarantees a right to carry a gun openly as opposed to concealed, is a matter of debate. As a judge of the Seventh Circuit recently observed, “[t]he Supreme Court has not yet decided whether the post- Heller individual right to keep and bear arms at home under the Second Amendment extends beyond the home.” Moore v. Madigan, __ F.3d __, 2013 WL 656749 (7th Cir. Feb. 22, 2013) (Hamilton, J.). See also James Bishop, Note, Hidden or on the Hip: The Right(s) to Carry after Heller, 97 Cornell L. Rev. 907 (2012) (discussing the widely varying approaches of the states to this issue). I won’t speculate here about how the Supreme Court might, or should, rule when presented with the issue.
State constitutional right. There’s no need for such speculation, because the Supreme Court of North Carolina has already ruled on open carry under the state constitution. State v. Kerner, 181 N.C. 574 (1921). The defendant in Kerner got in a confrontation with another man. The defendant went to his workplace, grabbed his gun, and came back to the fight. He was charged with, among other things, “carrying a pistol off his premises unconcealed,” which violated a local act applicable to Forsyth County and was a misdemeanor. The trial judge dismissed the charge as unconstitutional. The state appealed, and the supreme court affirmed.
In keeping with prevailing federal constitutional doctrine at the time, the court first stated that the Second Amendment didn’t apply because “the first ten amendments to the United States Constitution are restrictions upon the federal authority and not upon the states.” Therefore it focused on the state constitution, which mimicked the Second Amendment, providing in Article I, Section 24 that: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” (The quoted language now appears, after the constitutional overhaul of 1971, in Article I, Section 30 of the North Carolina Constitution.)
The court clearly viewed the provision as protecting the right to carry arms in public, condemning the Forsyth County local act as “especially objectionable” because it limited a person’s right “to carry a pistol off his own premises, even openly, and for a lawful purpose.” Indeed, the court found that the people have a “sacred right . . . to bear arms and [be] ready to use them for the protection of their liberties or their country when occasion serves.” It also specifically ruled that the state constitution protects right to carry pistols, as “[t]he historical use of pistols as ‘arms’ of offense and defense is beyond controversy.”
State laws relevant to open carry. Kerner does not preclude all regulations regarding the carrying of firearms. The court noted several types of regulations that would be consistent with the state constitution, such as:
- Prohibiting the carrying of concealed weapons. (In fact, the state’s authority to do so is expressly mentioned in Article I, Section 30.)
- “[P]rohibit[ing] the carrying of deadly weapons when under the influence of intoxicating drink, or to a church, polling place, or public assembly, or in a manner calculated to inspire terror.”
- “[R]equir[ing] that a pistol shall not be under a certain length, which if reasonable will prevent the use of pistols of small size which are not borne as arms but which are easily and ordinarily carried concealed.”
We now have on the books a number of state laws that limit the scope of the right to open carry, such as the ban on guns on school grounds, G.S. 14-269.2, the ban on guns in “any assembly where a fee has been charged for admission . . . or into any establishment in which alcoholic beverages are sold and consumed,” G.S. 14-269.3, the ban on guns in courthouses and certain state buildings, G.S. 14-269.4, and the ban on guns at parades and demonstrations, G.S. 14-277.2. Obviously, those statutes don’t neatly track the regulations that Kerner said were permissible. Therefore, while some of the state’s gun laws have been upheld over constitutional challenges, see, e.g., State v. Sullivan, 202 N.C. App 553 (2010) (upholding ban on guns in courthouses); State v. Fennell, 95 N.C. App. 140 (1989) (upholding ban on sawed-off shotguns), it’s possible that other existing regulations could be challenged on constitutional grounds. Still, they illustrate the general idea that the right to open carry is not unlimited.
One issue that comes up in connection with open carry is the common law offense North Carolina of going armed to the terror of the people. (Jessie Smith discusses the elements of the crime here.) As relevant to open carry, the law prohibits a person from carrying a gun for the purpose of terrorizing others and in a manner that is likely to cause terror. Generally, a person doesn’t commit this offense by carrying a weapon in a non-threatening and orderly manner, such as going about one’s daily business with a handgun in a hip holster.
Local regulations regarding open carry. In addition to state law, local governments also have some authority to limit open carry rights. However, local government authority is limited by the pre-emption statutes that, with some exceptions, make gun regulation a matter of state rather than local concern. (I previously discussed those statutes here.)
An example of a regulation that is within the power of local government is the power to prohibit open carry in “public‑owned buildings, on the grounds or parking areas of those buildings, or in public parks or recreation areas.” G.S. 14-409.40(f). (Concealed carry in some of those areas may be permissible, but that’s a subject for another day.)
However, it appears that local governments do not have the authority to ban open carry completely, even on public property such as streets and sidewalks. One could argue that such authority exists under two statutes, both of which are recognized as exceptions to the statewide pre-emption laws:
- G.S. 160A-189, which allows cities to “by ordinance regulate, restrict, or prohibit the discharge of firearms at any time or place within the city except when used in defense of person or property or pursuant to lawful directions of law‑enforcement officers, and [to] regulate the display of firearms on the streets, sidewalks, alleys, or other public property.”
- G.S. 153A-129, which allows counties to “by ordinance regulate, restrict, or prohibit the discharge of firearms . . . except when used to take birds or animals . . . when used in defense of person or property, or when used pursuant to lawful directions of law‑enforcement officers. A county may also regulate the display of firearms on the public roads, sidewalks, alleys, or other public property.”
But reading the power to “regulate the display of firearms” to allow local governments to ban open carry in public is probably wrong for two reasons. First, it would be unconstitutional under Kerner. As the court noted, “[t]o exclude all pistols, however, is not a regulation, but a prohibition, of arms which come under the designation of ‘arms’ which the people are entitled to bear.” Second, such a reading ignores the fact that both statutes allow local governments to “regulate . . . or prohibit” the discharge of firearms, but only to “regulate” the display of firearms. The lack of parallelism appears to be intentional. Therefore, although the precise extent of local government authority isn’t clear, and a variety of local regulations might be permissible, a complete ban on public open carry does not appear to be.
Gun law webinar. Those interested in the law of gun rights and gun control may wish to participate in an upcoming webinar on the subject. I’m the presenter. The webinar will take place on Wednesday, March 20, from 10:00-11:15 a.m. It’s free, and we’ve applied for CLE credit. Registration is required. Details are here.
In District of Columbia v. Heller, 554 U.S. 570 (2008), the United States Supreme Court held that the Second Amendment protects an individual’s right to possess firearms for lawful purposes such as self-defense. Heller unleashed a tsunami of litigation over the nature and scope of that right. Of particular interest to criminal lawyers, Heller led to constitutional challenges of many of the subsections of 18 U.S.C. § 922(g), the federal statute that prohibits the possession of firearms by, among others, illegal immigrants, drug users, and convicted felons. I spent some time last night looking at several recent Fourth Circuit cases in this area, and I thought I’d combine them into a Second Amendment update. At the end of this post, I’ll note a couple of relevant state law developments as well.
Here are the recent Fourth Circuit cases:
- United States v. Moore, __ F.3d __ (4th Cir. Jan. 25, 2012) (Agee, J.). The Fourth Circuit rejected a defendant’s facial and as-applied Second Amendment challenges to 18 U.S.C. § 922(g)(1), the federal statute prohibiting felons from possessing firearms.
- United States v. Carter, __ F.3d __ (4th Cir. Jan. 23, 2012) (Niemeyer, J.). A long-time marijuana user was prosecuted under 18 U.S.C. § 922(g)(3), the federal statute prohibiting drug users from possessing firearms. He appealed on Second Amendment grounds, and the court ruled: “Although we conclude, applying the intermediate scrutiny standard, that Congress had an important objective for enacting § 922(g)(3) to reduce gun violence and might have reasonably served that objective by disarming drug users and addicts, we nonetheless find that the government failed to make the record to substantiate the fit between its objective and the means of serving that objective. Therefore, we vacate the judgment and remand” to allow the parties to litigate the provision’s tailoring before the district court.
- United States v. Chapman, __ F.3d __ (4th Cir. Jan. 4, 2012) (Hamilton, J.). The Fourth Circuit rejected the defendant’s as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(8), the federal statue prohibiting persons subject to a DVPO from possessing a firearm. The court ruled that even assuming that the defendant retained his Second Amendment rights, the government had shown, through statistical and social science evidence, that section 922(g)(8) serves the important purpose of reducing domestic gun violence, and that the section is tailored to serve that interest. Therefore, the section passes constitutional muster under the intermediate scrutiny standard.
- United States v. Staten, __ F.3d __ (4th Cir. Dec. 5, 2011) (Hamilton, J.). The Fourth Circuit rejected the defendant’s as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(9), the federal statue prohibiting persons previously convicted of misdemeanor domestic violence offenses from possessing a firearm. The court ruled that even assuming that the defendant retained his Second Amendment rights, the government had shown, through legislative history and common sense, that section 922(g)(9) serves the important purpose of reducing domestic gun violence, and that the section is tailored to serve that interest. Therefore, the section passes constitutional muster under the intermediate scrutiny standard.
The take-home message is that most of the federal gun prohibitions have withstood Second Amendment challenges. And, although I don’t follow the other federal circuits very closely, my sense is that the results elsewhere have been pretty much in line with the Fourth Circuit.
There have also been several interesting developments at the state level:
- A judge ruled that North Carolina’s statutory limits on gun possession during a declared state of emergency were unconstitutional. In response, the General Assembly amended the relevant statutes, tailoring gun restrictions more narrowly. My colleague Norma Houston has covered this issue in detail on the School of Government’s local government blog; her most recent post is here.
- The General Assembly is considering HB 111. Among other things, the bill would (1) allow concealed carry in restaurants, unless prohibited by the establishment, (2) increase the penalty for possession of a firearm by a felon if the defendant discharged the gun or injured someone with it, and (3) clarify the statute adopted last session prohibiting local governments from banning guns in parks but allowing local governments to ban guns in specified recreational facilities. (I discussed that statute here.)
This is a rapidly-evolving area, and there are probably interesting gun-related developments that I’ve missed. If you know of some, please post a comment.
I wrote here about 18 U.S.C. § 922(g)(9), the federal statute that prohibits people who have been convicted of domestic violence misdemeanors from possessing firearms. Federal law also prohibits felons, drug addicts, “mental defective[s],” illegal aliens, and various other groups from having guns. 18 U.S.C. § 922(g). In the wake of District of Columbia v. Heller, 554 U.S. 570 (2008), which held that the Second Amendment protects an individual right to possess firearms for traditionally lawful purposes such as self-defense, some of those prohibitions have been challenged on constitutional grounds.This post is an update on that litigation.
The most frequent challenges have been to the law preventing domestic violence misdemeanants from possessing guns For example, the Seventh Circuit considered that issue in United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc). The court found the statute “generally proper,” though it reserved judgment on whether a defendant “who has been law abiding for an extended period must be allowed to carry guns again.” And in United States v. White, 593 F.3d 1199 (11th Cir. 2010), the Eleventh Circuit held that “although passed relatively recently,” the same statute “is a presumptively lawful ‘longstanding prohibition[ ] on the possession of firearms’.” Id. (quoting Heller, 554 U.S. at 626-27). Most recently, in United States v. Chester, __ F.3d __ (4th Cir. Dec. 2010), the Fourth Circuit considered and remanded a similar challenge. Here’s my summary of that case, since it is our own federal circuit:
In 2005, the defendant was convicted of “domestic assault and battery” after assaulting his daughter. In 2007, officers searched the defendant’s home after another domestic incident – this time involving his wife – finding two firearms. The defendant was charged with possessing a gun after having been convicted of a “misdemeanor crime of domestic violence,” in violation of 18 U.S.C. § 922(g)(9). He moved to dismiss, contending that the statute violated the Second Amendment as interpreted in Heller. The district court denied the motion, and the defendant entered a conditional guilty plea. On appeal, the Fourth Circuit established a two-step test for reviewing Second Amendment claims. First, a court must determine whether the conduct regulated by the challenged law falls within the scope of the Second Amendment at all; because Heller emphasized the historical underpinnings of the Second Amendment, this is a historical inquiry, asking “whether the conduct at issue was understood to be within the scope of the right at the time of [the Amendment’s] ratification.” If not, that is the end of the matter. But if the conduct falls within the Second Amendment, the second step of the test asks the government to justify the restriction. The level of scrutiny to be applied varies with how close the regulation comes to the core of the Second Amendment. Applying its newly-minted two-step test, the court first found that the historical evidence does not support placing domestic violence misdemeanants totally outside the scope of the Second Amendment. (It is apparently ambiguous even with respect to felons.) Then it determined that, because section 922(g)(9) involves people with a criminal record rather than law-abiding citizens, it does not burden the core of the Second Amendment. Thus, the court held, intermediate scrutiny is appropriate, and the government must show a “reasonable fit” between section 922(g)(9) and a “substantial” or “important” government interest. It remanded the case to give the government the opportunity to present evidence that satisfies that standard. The concurring judge suggested that the government should have “no difficulty” in meeting its burden.
These constitutional challenges haven’t been limited to subsection 922(g)(9). For example, in United States v. Reese, __ F.3d __ (10th Cir. Dec. 10, 2010), the Tenth Circuit rejected a challenge to subsection 922(g)(8), which prohibits gun possession by anyone who is the subject of a domestic violence restraining order. I’ll be interested to see how all of these challenges ultimately play out. But Skoien suggests that the case-by-case, individual approach endorsed by our own appellate courts may find some traction in the federal courts as well.
The Supreme Court just finished the Term that began in October 2009, and it went out with a bang. On Monday, it announced what was perhaps the most-anticipated opinion of the year, McDonald v. City of Chicago.
The genesis for McDonald was District of Columbia v. Heller, 554 U.S. __ (2008), the case in which the Court determined that the Second Amendment protects an individual right to bear arms, not merely a right to bear arms as part of service in a “militia.” Heller invalidated what amounted to a total ban on home handgun possession in the District of Columbia.
The next step for advocates of gun rights was to determine whether Heller applied to the states. The Supreme Court held many years ago that the Second Amendment applies only to the federal government and did not limit the power of state governments. United States v. Cruikshank, 92 U.S. 542 (1875). But that was before the Court began the process of “selective incorporation,” i.e., deeming some components of the Bill of Rights so essential to “due process” that they apply to state governments under the Fourteenth Amendment’s guarantee that no state shall “deprive any person of life, liberty, or property, without due process of law.”
So the NRA and several citizens filed suit, challenging de facto handgun bans in the cities of Chicago and Oak Park, Illinois. Relying on Cruikshank and similar cases, the federal district court and the Seventh Circuit upheld the bans. The Supreme Court agreed to review the case. Some constitutional law afficionados thought that the Court might use McDonald as a vehicle to abandon selective incorporation and instead declare some or all of the Bill of Rights applicable to the states through the Privileges and Immunities clause of the Fourteenth Amendment. In fact, one Justice — Justice Thomas — voted to do exactly that. Four other Justices — Justices Alito, Kennedy, Scalia, and Chief Justice Roberts — voted to selectively incorporate the Second Amendment. Despite this disagreement about the proper basis for the Court’s ruling, the five Justices in the majority agreed that the Second Amendment applies to the states. Having resolved that issue, the Court only needed to apply Heller to find unconstitutional the handgun bans at issue in McDonald.
What does this mean for North Carolina? My tentative thoughts are as follows:
1. There will be more litigation over gun rights. Although State v. Britt, discussed here, already provided a platform for such litigation, McDonald adds fuel to the fire. In fact, the News and Observer reports this morning that a lawsuit has already been filed challenging the governor’s authority to limit the public carrying of guns during a declared state of emergency.
2. The basic prohibition against felons possessing guns will remain in place. Both in Heller and McDonald, the Court made clear that its rulings should not be read to foreclose all restrictions on gun possession, particularly restrictions on gun possession by convicted felons. Some commentators, like Doug Berman at Sentencing Law and Policy, have expressed doubts about the propriety of such laws, but given the Court’s endorsement of them, I doubt that they are at risk. Of course, Britt has already created an exception to North Carolina’s felon-in-possession law for certain felons, but that exception appears to be fairly narrow, as discussed here.
3. Some other gun restrictions are less clearly constitutional. For example, G.S. 14-277.2 prohibits the possession of weapons at parades and demonstrations. I can imagine a court finding that statute unconstitutional in the wake of McDonald, and there are several other statutes that might also be vulnerable. Of course, one lesson from Britt and Whitaker is that challenges to statutes may gain more traction when brought prospectively by law-abiding citizens rather than retrospectively by defendants charged with violating the statutes at issue.
To sum up, I see McDonald as having a modest impact in North Carolina. It may intensify the ongoing debate over gun rights and may spawn some litigation around the edges of our gun laws, but because those laws are already relatively protective of gun rights, I doubt that McDonald will bring a sea change. If you see things differently, please post a comment.
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.
We’ve seen several significant cases concerning gun laws in the past few years. The two biggest, of course, are District of Columbia v. Heller, 554 U.S. ___ (2008), in which the United States Supreme Court struck down the District of Columbia’s ban on handgun possession as inconsistent with the Second Amendment, and Britt v. North Carolina, discussed in this prior post, in which the North Carolina Supreme Court ruled, under the state constitution’s analogue to the Second Amendment, that a particular convicted felon, whose single, non-violent conviction was many years in the past, could not be prohibited from possessing a gun.
More changes may be afoot in this area, and lawyers on both sides should be aware of the legal landscape. For starters, the United States Supreme Court will hear, this Term, McDonald v. Chicago, a case that asks whether the Second Amendment applies to the states, either through selective incorporation under the Fourteenth Amendment’s due process guarantee or (more radically) because selective incorporation is wrong and all of the bill of rights apply to the states. This question wasn’t relevant in Heller, because the District of Columbia is a federal jurisdiction, but it’s a critical question because if the Second Amendment only applies to the federal government, the practical importance of Heller will be quite limited. A brief discussion of McDonald is here; a gun rights group’s website about the case, with links to some briefs, is here. I don’t think that a date has been set yet for the argument, but it looks like it won’t be until February, at least, based on the briefing schedule. If the Court rules that the Second Amendment applies to the states, that will open the door to Second Amendment challenges to an array of state and local firearm regulations.
An example of the type of litigation that we might see post-McDonald at the state level is the Seventh Circuit’s recent decision in United States v. Skoien. The defendant in that case was convicted of possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9). He appealed, arguing that his motion to dismiss the indictment under Heller should have been granted. The Seventh Circuit remanded the case for further consideration by the district court. It slapped the prosecution’s wrist in this passage, which gives a flavor of how seriously the court views the defendant’s claim:
The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke Heller’s language about certain “presumptively lawful” gun regulations—notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rationalbasis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies.
Again, if the Second Amendment applies to the states, we can expect to see similar arguments in state courts. (Or maybe we should be seeing them now, under Britt.) For example, what about the requirement that people who are subject to a domestic violence protective order surrender their firearms, under G.S. 50B-3.1? Farther afield, what of gun laws such as the prohibition against weapons at parades and similar events, under G.S. 14-277.2? What of municipal ordinances prohibiting high-capacity firearms, e.g., Durham County Code of Ordinances § 17-71, or the display of certain handguns, e.g., Chapel Hill Code of Ordinances § 11-134? Suffice it to say, Heller, Britt, and McDonald — however it comes out — will be reshaping the legal landscape regarding firearms for years to come.
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.
Several recent news stories that may be of interest:
1. Governor Perdue just signed S 920, which makes substantial changes to the probation laws. For example, it requires all probationers to submit to warrantless searches by probation officers, and to a lesser degree, by law enforcement officers. It also clarifies the tolling provisions of the probation statutes, modifies the requirements for intensive probation, and imposes new rules regarding community service, among other things. The News and Observer’s story about the new law is here; if we’re lucky, Jamie Markham will give us a breakdown soon.
2. In a story that’s a particularly appropriate topic for a blog post, a Virginia woman has been arrested for blogging about the members of a law enforcement drug task force, including posting their pictures, and in at least one case, an officer’s home address. The story — available here — implies that she was trying to expose officers who work undercover as a way of frustrating their efforts. She was charged with harassment of a police officer, a charge that doesn’t exist in North Carolina. Anyone think a charge of resisting, delaying, or obstructing an officer would fly on these facts? Or another charge? Or is this protected speech?
3. Finally, there’s been a tremendous amount of discussion recently about a concurring opinion in a Tenth Circuit felon-in-possession case. The case upheld the defendant’s conviction over a Second Amendment challenge grounded in Heller v. District of Columbia, the Supreme Court case that held that the Constitution protects an individual right to bear arms. Because Justice Scalia’s majority opinion went out of the way to state that nothing in Heller should be taken to cast doubt on the validity of laws preventing felons from carrying firearms, the Tenth Circuit held that the federal felon-in-possession law survived Heller. Concurring judge Tim Tymkovich, however, questioned whether Justice Scalia should have prejudged the felon-in-possession issue, suggesting that nonviolent felons might have the same self-defense rights as nonfelons. You can read the opinion here, and some blogosphere commentary here, here, and here. Unsurprisingly, the defendant plans to petition for certiorari review, and some of the big names in legal academia and appellate practice seem interested enough that this issue might have some legs. For what it’s worth, I note that the federal felon-in-possession law already excludes some nonviolent felons, such as those convicted under the antitrust laws. See 18 U.S.C. s. 921(a)(20)(A). North Carolina’s Felony Fireams Act, however, has no exceptions. See G.S. 14-415.1.
Several interesting news items have cropped up recently.
First, the United States Supreme Court decided District Attorney’s Office v. Osborne, in which a 5-4 majority ruled that there is no constitutional right to post-conviction DNA testing. Having slogged through the whole decision, my sense is that it will have limited impact in North Carolina given the existence of G.S. 15A-269, which provides such a right, under certain circumstances, by statute. I did, however, find the reasoning to be noteworthy. In part, the majority concluded that there is no such constitutional right because most states have provided for post-conviction DNA testing by statute. So if most states weren’t providing for testing, would there be a constitutional right to it? It seems odd to say — outside the Eighth Amendment context, anyhow — that the content of the Constitution depends on what one or another state legislature happens to have done. In any case, if you’re hungry for more, but not hungry enough to read the opinion, you can check out this New York Times story.
Second, a federal judge in Utah recently ruled that a defendant charged with possessing a firearm after having been convicted of a crime of domestic violence in violation of 18 U.S.C. § 922(g)(9) is entitled to raise, as an affirmative defense, the argument that he poses no elevated danger and so is constitutionally entitled to possess a firearm in his home. The judge’s opinion is available here, and a post at the Volokh Conspiracy blog about the opinion is here. It doesn’t take a rocket scientist to imagine defendants who are prohibited from possessing firearms for other reasons advancing variants of this argument in their cases, but it’s the first case I’ve seen on point.
Third, the Utah case isn’t the only recent fallout from the Supreme Court’s decision in Heller v. District of Columbia. According to a Washington Post article, the District itself has recently revamped its gun laws, allowing residents to possess certain firearms in their homes upon passing a written safety examination.
Fourth, the News and Observer is reporting that Court of Appeals Judge Jim Wynn may be nominated (again) to the Fourth Circuit.
Finally, a human interest story. I live in Durham, and for the past few years, I’ve coached the debate team at Durham Academy. We’ve had some terrific debaters in that time, including several state champions. Last week, for the first time, two Durham Academy debaters — Josh Zoffer and Robert Kindman — won the national championship. They’re juniors, so look for them in the law school class of 2017.