By Eugene Volokh
Yesterday’s Baysden v. State (N.C. Ct. App. Nov. 15, 2011) (2–1) holds that North Carolina’s ban on possession of guns by a felon violates the North Carolina Constitution’s right to bear arms provision as to someone with two over-30-year-old nonviolent felony convictions. This follows Britt v. State (N.C. 2009), which held the same on similar facts; a North Carolina trial court decision from last month, Johnston v. State, held the same under the Second Amendment, and People v. Dewitt (Colo. Ct. App. 2011) seemed to secure an even broader right — sometimes applicable even to criminals whose convictions are more recent — under the Colorado Constitution.
Many other recent decisions have upheld bans on felon gun possession, either categorically (citing language to this effect in Heller) or as applied to people whose convictions were relatively recent (noting that Heller only said that bans on felon gun possession were “presumptivelylawful,” and that this presumption might be rebuttable in a proper case). But the North Carolina cases, coupled with the Colorado case, suggest that as-applied challenges brought by people with very old felony convictions might indeed succeed, at least in some courts, and especially if they are brought under state constitutional provisions as well as the Second Amendment. And if a court concludes that the state constitution mandates the restoration of a felon’s gun rights under state law, that should also lift the federal ban on gun possession by that felon, see 18 U.S.C. § 921(20).
For a recent The New York Times article arguing that some states might be making it too easy for felons to regain gun rights, see here; but my quick skim of the piece suggests that the objections are mostly to restoration of gun rights for people whose felonies are relatively recent, rather than about 30 years old or more, as in the North Carolina cases.
UPDATE: I just saw State v. Yuckel (N.C. Ct. App. Nov. 15, 2001), decided on the same day as Baysden, in which the same three-judge panel applies the same principles to reach a different result on different facts (some paragraph breaks added):
Defendant was convicted of the non-violent offense of felony larceny in 1998. Although Defendant’s prior felony larceny conviction stemmed from an event that occurred approximately ten years before the incident that resulted in his conviction in the present case, the record also indicates that, since being convicted of felonious larceny, Defendant was convicted of driving while subject to an impairing substance in 2001. As a result, unlike Mr. Britt and like Mr. Whitaker, Defendant has not been able to remain free of further entanglements with the criminal law for an extended period of time.
In addition, the present record, unlike that before the Supreme Court in Britt, indicates that Defendant has not possessed firearms in a responsible and lawful manner. Although Defendant argues that he has an overall history of responsible and law-abiding behavior, including attending to the needs of his disabled wife, the facts disclosed in the present record demonstrate that he acted in a completely irresponsible manner on the occasion that led to the conviction at issue in this case. More specifically, Defendant spent the evening consuming alcohol before wrestling with his wife and a houseguest over a handgun in a house in which a child was present. After the handgun discharged during the struggle, Defendant, with an alcoholic beverage in hand, took the handgun to a neighbor and asked him to hide the weapon.
Although Defendant ultimately admitted having possessed the handgun when investigating officers confronted him with the weapon, he initially denied that a handgun had been discharged in his home. As a result of the fact that this handgun was kept under a pillow on his bed, it was readily accessible to others. Thus, rather than having had a history of lawful and responsible firearms possession, the record shows that Defendant engaged in reckless and irresponsible behavior relating to the firearm he unlawfully possessed on the date of the incident that led to his conviction for violating N.C. Gen.Stat. § 14–415.1.
Finally, Defendant failed to “assiduously and proactively” comply with the 2004 amendments to the Felony Firearms Act, which preclude convicted felons from possessing firearms at any location and under any set of circumstances. Unlike Mr. Britt, who consulted with his local sheriff after the enactment of the 2004 legislation and divested himself of all firearms in order to remain in compliance with the relevant statutory provisions, Britt, 363 N.C. at 548, 681 S.E.2d at 322, Defendant continued to possess a handgun after it became unlawful for him to do so and raised his constitutional challenge to N.C. Gen.Stat. § 14–415.1 only after having been charged with criminally possessing a firearm. Thus, Defendant’s reaction to the enactment of the 2004 amendments to the Felony Firearms Act has been very different from Mr. Britt’s “assiduous and proactive” compliance with N.C. Gen.Stat. § 14–415.1.
Thus, after conducting the required constitutional analysis, we conclude that N.C. Gen.Stat. § 14–415.1, as applied to Defendant, “is a reasonable regulation which is ‘fairly related to the preservation of public peace and safety.’” Whitaker, 201 N.C.App. at 206, 689 S.E.2d at 405 (quoting Britt, 363 N.C. at 550, 681 S.E.2d at 323). Simply put, we find nothing impermissible about prohibiting a convicted felon who has exhibited such reckless and irresponsible behavior from possessing firearms regardless of the extent to which he may have cared for his disabled wife or engaged in other commendable activities in recent years. As a result, we conclude that Defendant’s “as-applied” constitutional challenge to N.C. Gen.Stat. § 14–415.1 lacks merit.