The Second Amendment and North Carolina

North Carolina’s courts still do not view a citizen's right to keep and bear arms as an individual liberty protected by the Federal Constitution. They cling to the position that any right to possess or own a firearm is a "common law right" created by the Courts. Unfortunately, they have ignored the United States Supreme Court ruling in District of Columbia v. Heller. Instead, they follow a 41 year old Opinion written by the late Justice Suzie Sharpe in State v. Dawson (no relation). In 1968, she held that the right to possess firearms was a “common law” right created by the courts, not an individual liberty. Justice Sharpe ruled the legislature could regulate or prohibit possession and ownership of guns. All the State had to show was some "rational basis." In other words, North Carolina only had to find some arguable reason to justify its criminalization of gun ownership.

Pursuant to statute, N.C.G.S. 14-415.1, it is a felony for anyone ever convicted of a felony to possess a firearm. The ban is absolute. It applies to people who were convicted of non-violent offenses. The statute makes no exceptions for where the gun is kept, even if it is in the citizen's home. Long guns can not be possessed by a former felon. Even a person whose citizenship rights had been restored can be convicted of the offense.

Recently, North Carolina's Supreme Court had an opportunity to strike down the statute. In Britt v. North Carolina, a civil action was brought to declare it unconstitutional. The Court recognized the folly of applying the law to Mr. Britt, who had been convicted 30 years before of a nonviolent offense. He had since led a productive, law-abiding life. His case demonstrated how silly the statute is. However, the Court chose to side-step the issue. Through judicial gymnastics, it held the law was unconstitutional as applied to Mr.Britt and no one else. It was an odd ruling.

A minority of trial court Judges have held the statute violates our Constitution. However, the State's appellate courts have avoided the issue, as did the Supreme Court in Britt, supra. Perhaps, it will take a Fourth Circuit Court of Appeals ruling to make North Carolina recognize its citizens' rights to keep and bear arms? Eventually, the State Court will be confronted with another appeal from N.C.G.S. 14-415.1, as now written.

What makes N.C.G.S. 14-415.1 unconstitutional? States may regulate individual liberties through legislation. However, their laws must serve "a compelling State interest." That means to withstand judicial scrutiny, the law must be "narrowly drawn," so as not to infringe upon the protected right. Our law is not narrowly drawn, nor is there any State interest in prosecuting law abiding citizens, because they committed a nonviolent crime years before. For example, under the current law, a 70 year old businessman would not be able to possess any kind of firearm, if he was convicted as a teenager of "Larceny of Dog," or any other felony. Hopefully, our Legislature will rewrite the statute, so that it only applies to those who committed violent or firearm-related crimes. Until then, the fight continues.