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Court ruling should prompt change in constitutionally problematic gun law

JLF analyst says state should not ban firearms for nonviolent ex-felons

Contact: Daren Bakst
919-828-3876
dbakst@johnlocke.org

October 21, 2009

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RALEIGH -- A recent N.C. Supreme Court ruling should convince state lawmakers to rewrite a law that tramples on some ex-felons' constitutional right to own guns. That's the conclusion the John Locke Foundation's in-house legal expert reaches in a new Spotlight report.

Click here to view and here to listen to Daren Bakst discussing this Spotlight report.

"Owning firearms is a right, not just a privilege," said Daren Bakst, JLF Legal and Regulatory Policy Analyst. "But an overbroad law that creates blanket prohibitions on exercising a right, even for an ex-felon, makes gun possession a privilege rather than a right. The legislature can amend the law in 2010 and make North Carolina once again a state that respects the right to bear arms."

Bakst's report responds to the state Supreme Court's August ruling in Britt v. North Carolina. In that case, justices ruled that a 2004 change in state law violated ex-felon Barney Britt's right to own guns. "The court concluded that the legislature went too far in passing a complete and permanent ban on gun possession by all ex-felons," Bakst said.

Technically, the court's recent ruling affected Britt alone, Bakst said. "Based on the holding and rationale of the court, though, it's likely that many other ex-felons are having their constitutional rights violated through this excessively broad ban on gun possession."

Bakst examines changes in state gun laws enacted since 1995. "In less than 10 years -- from 1995 to 2004 -- North Carolina went from few restrictions on gun possession by ex-felons to excessive restrictions," he said. "In 2004, the General Assembly passed a blanket prohibition on the possession of all firearms by anyone who has committed a felony."

Supreme Court justices found that law to be overbroad in the case of Britt, who committed no crimes in the 30 years since his 1979 conviction on a nonviolent drug charge. Britt had owned firearms without incident for 17 years preceding the 2004 law change.

"It's unclear which other ex-felons would benefit from the Britt ruling," Bakst said. "Certainly, if a plaintiff has a case with facts similar to the Britt case, he's likely to win. Critics of the Britt decision have expressed concern that many other ex-felons will now go to court and challenge the law as it applies to them. Unless lawmakers change the law, this result is exactly what those victimized by an overbroad law should do."

Lawmakers can correct this problem when they return to Raleigh, Bakst said. "The legislature should take action in 2010 to change the law in response to Britt," he said. "The goal is to ensure that other ex-felons are not having their constitutional rights violated by an overbroad law."

The General Assembly could look into the not-too-distant past to find a better way of dealing with ex-felons' gun rights, Bakst said. "Before 1995, North Carolina generally placed no restrictions on gun ownership for nonviolent ex-felons," he said. "There's no need for restrictions now."

Nonviolent ex-felons clearly represent a different case from ex-felons who committed violent crimes, Bakst said. "There is no objective act that demonstrates a nonviolent ex-felon might pose a threat to society," he said. "It is unreasonable to restrict gun rights to protect the public safety from someone who never has presented a threat to public safety."

Even a blanket ban on gun possession for violent ex-felons might cause problems, Bakst said. "The Britt case does not directly suggest removing such a ban," he said. "But it should be noted that as recently as 2004, both violent and nonviolent ex-felons were able to possess firearms in their homes and businesses."

As legislators consider changes in North Carolina law, they should keep in mind a quirk in federal law, Bakst said. "Any change in state law designed to loosen restrictions on gun possession should include no provisions that restrict the types of firearms ex-felons can possess," he said. "For instance, there's no good reason to say an ex-felon could own a rifle but not a handgun."

"Any restrictions of this type would trigger a federal law that bans the ex-felon from possessing all firearms," Bakst explained. "That federal provision would render the state law relatively meaningless."

Though it deals with just one person's legal rights, the Britt decision has widespread importance, Bakst said. "This case is a major victory for the rights of individuals to possess guns even beyond the limited issue of protecting the rights of ex-felons," he said. "The North Carolina Supreme Court has made it clear that it is not going to rubber-stamp every law that is passed under the guide of protecting the public safety. There are constitutional limits the court is willing to enforce."

Daren Bakst's Spotlight report, "NC Gun Laws Need a Change: Legislature Went Too Far in Restricting Gun Possession by Ex-Felons," is available at the JLF Web site. For more information, please contact Bakst at (919) 828-3876 or dbakst@johnlocke.org. To arrange an interview, contact Mitch Kokai at (919) 306-8736 or mkokai@johnlocke.org.

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