The Heller promise versus the Heller reality: will statutes prohibiting the possession of firearms by ex-felons be upheld after Britt v. State?

• Author: Bone, Deborah

1. INTRODUCTION

   With its decision in Britt v. State, (1) the North Carolina Supreme Court became the first court in the country to hold that a statute criminalizing firearm possession by an ex-felon is unconstitutional as applied to the challenging plaintiff under a state constitution. (2) In the wake of the United States Supreme Court's rulings in District of Columbia v. Heller (3) and McDonald v. City of Chicago, (4) will other state and local statutes prohibiting the possession of firearms by ex-felons be upheld? A close reading of both Britt and Heller in light of many of the firearm regulatory schemes currently in place in various jurisdictions indicates that felon possession statutes may very well be in danger, despite the Heller majority's unsupported assertion that these regulations are "longstanding" and "presumptively lawful." (5)

   The question of whether states can lawfully prevent ex-felons from firearm possession merges Second Amendment jurisprudence with the debate over the reintegration of ex-felons and restoration of their rights. In this Comment, I argue that it will be difficult for regulations that prevent certain nonviolent ex-felons from possessing firearms to withstand scrutiny if firearm possession is indeed an individual right as Heller and McDonald suggest. (6)

   Part II of this Comment will explore the various state and federal felon firearm possession regulatory schemes in place throughout the country. Part III will discuss and analyze the North Carolina Supreme Court's decision in Britt v. State and the particular facts that led the court to determine that the North Carolina statute was unconstitutional as applied. Part IV will suggest that the ruling in Britt v. State could easily occur in other jurisdictions, both local and federal, and evaluates whether the relevant felon possession statutes in particular jurisdictions will withstand constitutional scrutiny in light of Heller and McDonald. Part V of the Comment will consider whether nonviolent ex-felons should, in fact, be prevented from firearm possession after they have completed their sentences, and Part VI will suggest methods available to revise felon possession statutes to ensure that they both protect the rights of ex-felons and withstand scrutiny under an individual rights model.

2. THE CURRENT STATE OF THE LAW REGARDING EX-FELONS AND FIREARM POSSESSION

   1. FEDERAL LAW

      The Second Amendment of the United States Constitution protects "the right of the people to keep and bear [a]rms." (7) The Federal Firearms Statute, however, prohibits the possession of a firearm by any person "who has been convicted in any court of ... a crime punishable by imprisonment for a term exceeding one year." (8) The federal statute establishes an exception for ex-felons who have had their civil rights restored by the sentencing jurisdiction from the otherwise broad prohibition against firearm possession, provided that the state restoration of rights does not otherwise restrict possession. (9) Several circuit courts have interpreted this exception to mean that "[i]f state law has restored civil rights to a felon, without expressly limiting the felon's firearms privileges, that felon is not subject to federal firearms disabilities." (10) Additionally, until 1961, the Federal Firearms Act was also limited in that it only prohibited ex-felons convicted of a "crime of violence" from possessing a firearm. (11)

      Prior to Heller, the original Federal Firearms Act was challenged in two circuit courts under the Second Amendment, and both circuit courts upheld the statute on the grounds that the Second Amendment did not create an individual right to bear arms, (12) a premise that the Supreme Court has since rejected. (13) In one case, the First Circuit particularly focused on the fact that the appellant was not using his weapon as a "member of any military organization or ... us[ing] the weapon ... in preparation for a military career." (14) The court went on to note that:

      the only inference possible is that the appellant at the time charged in the indictment was in possession of, transporting, and using the firearm and ammunition purely and simply on a frolic of his own and without any thought or intention of contributing to the efficiency of the well regulated militia which the Second Amendment was designed to foster as necessary to the security of a free state. (15) While the United States Supreme Court has never directly ruled on the constitutionality of prohibitions against the restoration of an ex-felon's right to possess firearms, the Supreme Court has, on more than one occasion, commented in dicta on the government's ability to regulate the possession of firearms by ex-felons. (16)

      Most recently, the Supreme Court has suggested that prohibitions against the possession of firearms by ex-felons are valid. In both District of Columbia v. Heller (17) and McDonald v. City of Chicago, (18) the Court, in dicta, called prohibitions on the possession of firearms by felons "longstanding" and "presumptively lawful." (19) The Court, however, did not cite to a single authority to support its assertion that regulations prohibiting the possession of firearms by felons are valid. (20)

      Similarly, in United States v. Emerson, (21) the Fifth Circuit stated, also in dicta, that a ban on firearm possession by ex-felons "is in no way inconsistent with an individual rights model." (22) To support the validity of laws preventing ex-felons from possession, the Fifth Circuit relied only upon law review articles from the 1980s to suggest that America at its founding excluded felons from the right to bear arms. (23)

      The closest the Supreme Court came to ruling on the constitutionality of felon possession laws was in Lewis v. United States. (24) In Lewis, the petitioner challenged his conviction for felon firearm possession under the Sixth and Fourteenth Amendments of the United States Constitution by arguing that his prior state conviction was invalid because he was not adequately represented by counsel. (25) The Court upheld the statute, focusing on the fact that the petitioner could have challenged the validity of his prior conviction in state court but failed to do so. (26) The Court went on to find that:

      [t]he firearm regulatory scheme at issue ... is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment if there is some rational basis for the statutory distinctions made ... or ... [if] they have some relevance to the purpose for which the classification is made. (27) As was the case with the earlier circuit court cases, the Supreme Court pointed to the collective-right theory of the Second Amendment to support the validity of the regulatory scheme, a theory that Heller has since disposed of in favor of an individual rights model. (28) In essence, Heller's adoption of an individual rights theory of the Second Amendment invalidates the holding in Lewis and wipes the slate clean of case law directly supporting ex-felon possession restrictions--except, of course, that the Heller opinion calls such laws permissible. (29)

   2. STATE LAW

      Prior to the Supreme Court's recent decision in McDonald v. City of Chicago, (30) states were generally thought to have the ability to regulate firearms pursuant to their general police powers. (31) In McDonald, the Court held that the Second Amendment applies to state regulations. (32) Since the Court's application of the Second Amendment to state regulation is extremely recent, it has yet to be seen how incorporation will impact state firearm regulatory frameworks and felon firearm possession laws more specifically.

      Current state laws regulating firearms generally, as well as regulations regarding the prohibition and restoration of firearm ownership by ex-felons more specifically, vary greatly from state to state. Some jurisdictions, such as Montana, essentially permit automatic restoration of all rights, including the right to firearm ownership, upon the completion of an ex-felon's sentence. (33) Other states have a process by which an ex-felon can move to have his right to firearm possession restored upon the completion of his sentence, usually by petitioning the court and presenting evidence that he does not pose a danger to the community. (34) Many states have statutes similar to the federal provisions outlined in 18 U.S.C. [section] 922, prohibiting persons convicted of any felony from the possession of firearms, regardless of the amount of time that has passed since the completion of the felon's sentence. (35)

      North Carolina is one of the many jurisdictions that have an outright prohibition against the possession of firearms by ex-felons that is similar to the federal restrictions. Under North Carolina law, it is "unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction...." (36) The version of the statute that was at issue in Britt became effective in 2004. (37)

3. ANALYSIS OF BRITT V. STATE

   1. MR. BRITT'S STORY

      In 1979, Barney Britt, a resident of Wake County, North Carolina, was convicted of felony possession with intent to sell and deliver a controlled substance in violation of state law. (38) Britt completed his sentence in 1982 and his civil rights were restored in 1987 pursuant to North Carolina law. (39) At that time, N.C. GEN. STAT. [section] 14-415.1 allowed ex-felons to regain their rights to the possession of certain firearms, and Britt purchased several sporting rifles and shotguns for use on his property. (40) In 2004, the North Carolina legislature amended the statute making it "unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction." (41)

      Before the new law became effective, Britt voluntarily handed over his firearms...