Posted by Eugene Volokh:
Felons and the Right To Bear Arms:
http://volokh.com/archives/archive_2009_08_23-2009_08_29.shtml#1251496843
The North Carolina Supreme Court has just held, in [1]Britt v. State,
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.
References
1. http://www.aoc.state.nc.us/www/public/sc/opinions/2009/pdf/488-07-1.pdf
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