[Eugene Volokh, August 28, 2009 at 6:00pm<http://volokh.com/archives/archive_2009_08_23-2009_08_29.shtml#1251496843>] Trackbacks<http://technorati.com/search/http%3a%2f%2fvolokh.com%2farchives%2farchive_2009_08_23%2d2009_08_29.shtml%231251496843> Felons and the Right To Bear Arms:
The North Carolina Supreme Court has just held, in Britt v. State<http://www.aoc.state.nc.us/www/public/sc/opinions/2009/pdf/488-07-1.pdf>, that some felons -- whose crimes are long in the past -- do have a constitutional right to bear arms, at least under the North Carolina Constitution: Plaintiff pleaded guilty to one felony count of possession with intent to sell and deliver a controlled substance in 1979. The State does not argue that any aspect of plaintiff's crime involved violence or the threat of violence. Plaintiff ompleted his sentence without incident in 1982. Plaintiff's right to possess firearms was restored in 1987. No evidence has been presented which would indicate that plaintiff is dangerous or has ever misused firearms, either before his crime or in the seventeen years between restoration of his rights and [the 2004] adoption of N.C.G.S. § 14-415.1's complete ban on any possession of a firearm by him. Plaintiff sought out advice from his local Sheriff following the amendment of N.C.G.S. § 14-415.1 and willingly gave up his weapons when informed that possession would presumably violate the statute. Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of law-abiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety.... Based on the facts of plaintiff's crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute's operation, as applied to plaintiff, the 2004 version of N.C.G.S. § 14-451.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety [the constitutional test that the court was applying under the state constitution -EV]. In particular, it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety. [Footnote moved:] Because we hold that application of N.C.G.S. § 14-415.1 to plaintiff is not a reasonable regulation, we need not address plaintiff's argument that the right to keep and bear arms is a fundamental right entitled to a higher level of scrutiny. The vote was 5-2, with four of the five Justices joining the majority opinion and the fifth concurring in the judgment without written opinion. Note that since this is an interpretation of the North Carolina Constitution, the decision is final, with no basis for further review by the U.S. Supreme Court (though of course it can be overturned through the North Carolina constitutional amendment process, should there be enough support for that). Thanks to reader Steve Martin for the pointer.
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