Publication Attacking North Carolina’s Felony Firearms Act
The Campbell Law Review has just published my recent piece entitled A Fighting Chance for Outlaws: Strict Scrutiny of North Carolina’s Felony Firearms Act. It can be downloaded by clicking here. As its title suggests to those with constitutional law backgrounds, this discussion lofts a Fourteenth Amendment challenge to the Act (codified at N.C. Gen. Stat. § 14‑415.1), which, as modified in 2004, criminalizes owning a firearm—even in your own home—if you’ve ever been convicted of a felony. The discussion is very comprehensive and (I am not hesitant to say) quite compelling.
My argument begins with an assumption (which by now is rather well-founded in Second Amendment jurisprudence) that individuals have a fundamental right of self-defense, and proceeds to demonstrate that the Act deprives persons of that right without being narrowly tailored toward furthering any compelling state interest. For example, the statute does not acknowledge that certain felonies are not indicative of dangerousness or that persons who have been model years for 30 years since their conviction can be trusted with firearms. And oddly enough, the Act completely ignores even the most patently dangerous misdemeanants. Problems with the statute are numerous, and are explained in detail in this piece. In short, the Act is far too under- and overinclusive to be deemed sufficiently tailored.
Notably, as part of trying to identify some convincing justification for the overbreadth of the statute, I unearthed a wealth of remarkable legislative history. Some of the circumstances of the Act’s amendments over the years are surprising, and a bit alarming. The piece details this legislative history exhaustively, for it suggests that the General Assembly’s focus was not really on public safety or any similar interest, but on the continued vilification of “convicted felons”—a very popular political tactic, but one that should embarrass the state’s legislators in this instance.
Some might recall that recently, in Britt v. State, the Supreme Court of North Carolina acknowledged some of the Felony Firearms Act’s problems when it decided the statute should no longer apply to Mr. Barney Britt, whose decades-old conviction for a non-violent crime rendered him an unlawful owner of firearms in 2004 (after many years of model behavior) when the Act was sloppily amended under the banner of “domestic violence” prevention. The court held the statute was not a reasonable regulation—as applied to Mr. Britt.
While the result was good for this gentleman, the statute will continue to deprive people of their right of self-defense without due process of law until something is done about it. My argument is that even if North Carolina’s General Assembly does not fix the Felony Firearms Act, the courts should not hesitate to strike it down on due process grounds.
