Legislature Should Amend the Felony Firearms Act: Protecting the Right to Bear Arms

As my colleague Mitch Kokai wrote, the North Carolina Court of Appeals just held that the state’s Felony Firearms Act was unconstitutional as applied to an ex-felon (Baysden).  The law places severe restrictions on the right to bear arms for ex-felons.

I wrote about the Felony Firearms Act and a North Carolina Supreme Court case called Britt v. North Carolina a couple of years ago.  In that case, the Court held that the statute was unconstitutional as applied to an ex-felon (Britt) who had been convicted of a non-violent felony, had committed no crimes for the entire 30 years following his conviction, and even had owned guns for 17 years post-conviction.

The Court examined several factors in determining that Britt’s rights were violated, including the type of felony conviction and the history of “good behavior” since the crime.  The question was whether the restrictions were reasonable regulations “fairly related to the preservation of public peace and safety.”  The Court found that the statute was unreasonable as applied to Britt.

In 2010, the legislature addressed the Britt case but did so in an inadequate way.  Instead of properly addressing the flaws in the law and ensuring that there wouldn’t be a constant stream of ex-felons challenging the law, it did as little as possible with the hope that severe restrictions could remain in place even for nonviolent ex-felons.

It should be noted that prior to 1995, there generally was no prohibition on nonviolent ex-felons possessing firearms.  In 2004, the legislature passed a complete and permanent ban on firearm possession by all ex-felons, including nonviolent ex-felons.

Now comes the most recent case, Baysden v. State (PDF).  The facts are very similar to the Britt case.  There are some differences though.  Baysden had been convicted of two crimes, not one.  One of the crimes was considered a “violent” crime by the legislature.  The Court though wans’t influenced by the “violent” label because it obviously wasn’t a violent crime.

The “violent” crime was possession of a sawed-off shotgun, which, by the way, was “rusted up and inoperable.”

In some ways, restrictions imposed on Baysden were even more unreasonable than on Britt.  Baysden had worked for the United States Department of Defense from 1981 to 2007 maintaining aircraft for the Navy.  He passed a DoD background check and was “decorated for exemplary service during a tour of duty in Iraq.”

The Court of Appeals held, in a 2-1 decision, that the Felony Firearms Act was unconstitutional as applied to Baysden.

The legislature, in 2010, responding to Britt, made minor changes to the blanket prohibition such as changing the law to allow gun possession by someone who committed one nonviolent felony, but not two.  As we can see in the Baysden case, this change was completely inadequate to properly address whether a nonviolent ex-felon should own a gun.

There are probably narrow ways for the legislature to address the unreasonable regulations contained within the Felony Firearms Act.  However, as I have argued, there’s no basis for prohibiting nonviolent ex-felons from owning guns.  The entire prohibition should be lifted. As for violent ex-felons, there should be reasonable regulations but not a complete and permanent ban.

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