*1 (2009)] [363 BARNEY BRITT v. STATE OF NORTH CAROLINA
No. 488A07 (Filed August 2009) Weapons— Firearms possession by and Other convicted felon — N.C.G.S. § 14-415.1 as amended 2004 —unreason- regulation applied able plaintiff as to Appeals
The Court of erred to the extent that it determined N.C.G.S. 14-415.1as amended in that makes it “unlawful any person who has been convicted purchase, of a own, possess, or custody, care, have his any or control fire- arm,” constitutionally can applied plaintiff be whose possess by firearms was operation restored in 1987 of law after completed he possession his sentence for with intent to sell and deliver a controlled substance without in 1982, incident and this case is Appeals remanded to the Court of for further remand to superior court for further proceedings not inconsistent with opinion, this Cl) because: presented no evidence was that would indicate dangerous was or has ever firearms, misused either before his crime or in years the seventeen between restora- tion adoption of his and of N.C.G.S. complete § 14-415.1’s any possession ban on by him; (2) sought out advice from his local sheriff following the amendment of N.C.G.S. 14-415.1 willingly gave up and weapons his when informed that presumably would statute; violate the (3) plaintiff, through his uncontested lifelong nonviolence toward other citi- zens, thirty years his law-abiding conduct since crime, his his years seventeen responsible, lawful firearm between 1987and Compliance and his with the 2004amend- affirmatively ment demonstrated that he among is not the class of citizens who a threat peace safety; and plaintiff’s based on the history crime, facts of long post-conviction respect law, for the the absence of evidence of vio- lence plaintiff, exception the lack of possible relief operation from the statute’s plaintiff, the 2004 ver- sion of N.C.G.S. § 14-451.1 is an regulation unreasonable fairly related to safety. N.C. Const, art. 30.§
Justice only. HUDSONconcurs in result Chief Justice PARKERdissenting.
Justice dissenting. TIMMONS-GOODSON COURT SUPREME
IN THE BRITT v. STATE ’ N.C. *2 of a from the decision 7A-30(2) Appeal pursuant § to N.C.G.S. 610, App. Appeals, 185 N.C. panel of the Court of divided summary for judgment granting affirming an order (2007), summary plaintiff entered judgment for denying defendant and Court, Wake Superior in by Morgan R. Judge Michael March 2006 May Supreme Court 5 2008. County. in the Heard - plaintiff Hardway, Office, by Dan L. Hardway Law Dan L. for appellant. Aldridge, III, Special General, by J. Cooper, Attorney John Roy General, defendant-appellee. Attorney Deputy for BRADY,Justice. the constitutional- presents as-applied challenge to case
This it 14-415.1 that makes to N.C.G.S. ity § of the 2004 amendment pur- any person has been convicted of for who “unlawful custody, care, or control have in his chase, own, possess, or unconstitutional as N.C.G.S. 14-415.1is § We determine that firearm.” Court of the decision of the and reverse Appeals. PROCEDURAL BACKGROUND FACTUAL AND felony possession Barney pleaded guilty to Britt In 1979 substance metha- deliver the controlled intent to sell and with the use and did not involve crime was nonviolent qualone. Plaintiff’s years in the North sentenced to two firearm. Plaintiff was of a impris- active Correction, with four months Department of Carolina which suspended years, during two and the remainder onment in completed probation his probation. He supervised plaintiff was on by fully operation of were restored 1982, his civil time, At that N.C.G.S. possess a firearm. law; including right his “any other possession handgun or only prohibited the 14-415.1 § length an overall less than 18inches or length with a barrel felonies, by persons convicted of certain than 26 inches” of less years nature, five from the “within mostly violent or rebellious of a from a correc- discharge conviction, or unconditional date of such sentence, probation, suspended institution, of a or termination tional 26, June conviction, whichever is later.” Act of parole such or 1273. 1, N.C. Sess. Laws 1975,ch. sec. Assembly amended
Subsequently, in the General by persons possession of such firearms prohibit 14-415.1to § of conviction regard to the date felony, without convicted of IN THE SUPREME COURT BRITT v. completion July of the defendant’s sentence. Act of ch. sec. Laws 1417. Sess. The 1995 amendment did previous change provision stating N.C.G.S. 14-415.1 “nothing prohibit any person pos- would to have [therein] place session of a firearm within his own house or on lawful However, business.” in 2004 the General amended N.C.G.S. prohibition 14-415.1 to extend the on to all firearms any person any felony, convicted of even within the convicted felon’s place July 15, 2004, own home and of business. Act of ch. sec. 14.1, 2004 N.C. Sess. Laws 737.1
Following passage amendment, plaintiff of this had a discussion County, with the Sheriff of Wake who concluded that of a *3 by plaintiff firearm would violate the statute as amended 2004. firearms, Plaintiff thereafter divested himself including of sporting rifles and shotguns game hunting that he used for on his own thirty years plaintiff’s land. In the since conviction of a nonviolent any charged any crime he has not been with other crime nor is there any way. evidence that he Furthermore, has misused a firearm in no by any determination has agency plaintiff been made or court that is violent, potentially dangerous, likely or general pub- is more than the lic to commit a crime a involving firearm. September 2005, plaintiff
On 20 against initiated a civil action the Carolina, alleging State of North that N.C.G.S. 14-415.1 as § amended exempt “antique firearm[s],” 1. This statute was later amended in 2006 to provisions. provides: § defined in § from its N.C.G.S. 14-409.11 “antique any (a) following: The term firearm” means of the Any (1) any (including matchlock, flintlock, per- firearm with a cap, type ignition system) cussion or similar of manufactured on or before 1898. Any (2) replica any (1) of firearm described in subdivision of this sub- replica designed redesigned using section if the is not or rimfire or conventional centerfire fixed ammunition. Any (3) loading rifle, loading shotgun, loading muzzle muzzle to use black or muzzle pistol, designed powder substitute, which is and which cannot use fixed ammunition. (b) purposes section, “antique For of this the term firearm” shall not include any weapon which: Incorporates
(1) a firearm frame or receiver. (2) loading weapon. Is a converted into muzzle loading weapon readily Is a muzzle that can be converted to fire barrel, replacing bolt, breechblock, fixed ammunition the or combination thereof. § The 2006 amendment to N.C.G.S. 14-415.1is not before the Court. THE COURT
IN SUPREME v. the States and North multiple rights he holds under United violates granted court On 31 March the trial Carolina Constitutions. that summary judgment, holding amended State’s motion for government and is rationally legitimate is related interest statute post attainder. Plaintiff ex facto law bill of unconstitutional Appeals, agreed of that court appealed to Court of plaintiff’s rights had not been violated. with the trial court that Appeals at would have held that the 2004 amend- dissent the Court of post plaintiff’s rights an ex facto law violated ment amounted to to the process under the Fifth and Fourteenth Amendments to due I, 19 of North and Article Section United States Constitution plain- On 24 March this Court retained Carolina Constitution. ques- constitutional appeal notice based a substantial tiff’s only: application of the following as to issue “Whether the tion violates his 2004 amendment to N.C.G.S. 14-415.1 § Const, I, agree we with under N.C. art. 30.” Because application I, N.C.G.S. 14-415.1to him violates Article Section unnecessary Constitution, it Carolina for us to 30 of North express we no plaintiff’s remaining arguments, and address opinion on their merit.
ANALYSIS provides, Article Section 30 of the North Carolina Constitution necessary being pertinent part: regulated “A well militia security people keep and State, bear arms a free *4 right held of infringed.” regulation not be This Court has that shall Assembly’s police proper bear a exercise of General to arms is power, any regulation must be at least “reasonable and not but that preservation prohibitive, bear relation of the and must a fair to Dawson, safety.” State v. public peace and Kemer, State v. approval N.C. (quoting with S.E.2d 579, 107 J., concurring)). Accordingly, (1921) (Allen, S.E. applied whether, plaintiff, as to this Court must determine regulation.2 14-415.1 a reasonable § is possession of with pleaded guilty
Plaintiff to one count to a substance in 1979. The State intent sell and deliver controlled any aspect plaintiffs not that of crime involved violence argue does completed his sentence without or the threat of violence. Plaintiff application § N.C.G.S. 14-415.1to is not a rea- 2. Because we hold that of plaintiff’s argument right keep regulation, and need not that the to sonable we address scrutiny. right higher arms is a entitled level of bear fundamental to incident in right possess 1982.Plaintiffs to firearms was restored in presented 1987. No evidence has been which would indicate that plaintiff is dangerous or has ever firearms, misused either before his years crime or in the seventeen between restoration of his rights and adoption complete of N.C.G.S. any possession § 14-415.l’s ban on of a firearm him. sought Plaintiff out advice from his local Sheriff fol- lowing the amendment of N.C.G.S. 14-415.1 willingly gave up § weapons his possession when informed that presumably would vio- late the Plaintiff, statute. through his lifelong uncontested nonvio- citizens, thirty years lence towards other his of law-abiding conduct crime, since his years his seventeen responsible, of lawful firearm between 1987 and and his proactive assiduous and compliance amendment, with the 2004 affirmatively has demon- strated that he is among not pose class of citizens who a threat to public peace safety. Moreover, the nature of the 2004 amendment is relevant. The statute permanent prohibi- functioned as.a total and any tion on type any of of firearm in location. See N.C.G.S. 14-415.1(2004). § plaintiffs
Based on crime, the facts of post-conviction his long history respect law, for the the absence of evidence of violence by plaintiff, and the lack exception possible relief from the statute’s operation, applied plaintiff, the 2004 version of N.C.G.S.§ 14-451.1is an regulation, unreasonable fairly related to safety. particular, In it is unrea- sonable to assert that a nonviolent citizen who responsibly, has safely, and legally owned and used years firearms for seventeen is in reality so dangerous any possession at all of a firearm would significant public safety. threat to
We conclude that N.C.G.S.§ 14-415.1is an unconstitutional viola- I, tion of Article Section 30 of the North Carolina Constitution as plaintiff. to this above, pursuant As discussed to N.C.G.S. unreasonably the State divested right own a firearm. plaintiff’s Such action violates keep and bear arms under Article Section 30 of the North Carolina Constitution. For that reason, we reverse the Appeals decision of the Court the extent that court determined N.C.G.S. 14-415.1 can be constitu- tionally applied plaintiff. This case remanded to the Court of Appeals for Superior further remand Court, County, Wake *5 further proceedings not opinion. inconsistent with this
REVERSEDAND REMANDED. Justice HUDSON only. concurs in the result 551 COURT
IN THE SUPREME v. dissenting. Chief Justice PARKER vio- my applied to does not view N.C.G.S. 14-415.1as
In Carolina Constitution. Article Section 30 of North late respectfully Accordingly, I dissent. dissenting. TIMMONS-GOODSON
Justice exception for majority has an individualized Because the crafted unique thereby in the sympathetic plaintiff, placing a North Carolina state, position jurisdiction, federal or to hold being of the first either yield police power of must to a convicted that the inherent the State respectfully right to firearm, own I dissent. Plaintiffs right félon’s to absolute, subject to possess regulation. firearm not but is regulation right to Felony at issue is a reasonable Firearms Act facially plaintiff. arms, and as bear both initially strong presumption is a that enact note that “there I Spruce Assembly are Town the General constitutional.” ments of 144, (cit Cty., 787, 792, 147 Avery (1997) 346 N.C. 488 S.E.2d Pine v. Wayne Cty. Cty. Tax v. Wayne Citizens Ass’n Better Control ing Moreover, it is Comm’rs, 24, (1991). 399 311 S.E.2d Bd. of “ state, in the exer ‘[a]ding good, for the well settled may impose police power, reasonable restrictions cise of its ” Moore, 289 In re and constitutional of its citizens.’ natural Cavitt, 182 95, 103, 307, (1976) (quoting 221 312 In re S.E.2d N.C. recently Indeed, 715, 157 171, 175(1968)). this Court 712, N.W.2d Neb. may police power to enact properly exercise its that the State noted safety general welfare of soci protecting promoting and laws 728, Woodfin, S.E.2d Standley v. N.C. ety. Town arms, this “con right Court has regard With to bear (2008). is not sistently pointed right individuals bear arms out that Dawson, 272 N.C. subject regulation.” is v. absolute, but State pass muster, regula To S.E.2d 9 constitutional preserving public reasonable; and related to (1) (2) must be tion peace 546-47, safety. (citing at 9-10 State See id. at (Allen, J., concur N.C. 107 S.E. Kemer, subject reg arms proposition that the to bear ring), for the police of its inherent the General the exercise ulation power, related to must be reasonable and regulation but the safety). indi- place manner in which an regulating In addition Assembly may arms, the General right to bear exercise his vidual *6 552
BRITT v. STATE (2009)] N.C. 546 [363 properly point regulate also of absolute restriction —certain —to persons reasonably by classes of legislature deemed safety.3 a threat to See District Columbia v. Heller, -, 637, 554 U.S. 171 L. Ed. 2d 678 (affirming that prohibitions the “longstanding by on the of firearms mentally felons and the ill” survive Second scrutiny); Amendment Emerson, United States v. (5th 270 F.3d 261 2001) Cir. (stating felons, infants, that “it is clear that may and those of unsound mind prohibited be from possessing firearms”), denied, cert. 536 U.S. 153 L. (2002); Ed. 2d 184 Moore, In re 289 102-03, N.C. at cf. that, S.E.2d at 311-12(stating although procreate is a fun right, damental the state limit a class of right). citizens in this Thus, in addition to felons, convicted our unequivocally pro statutes incompetents, persons hibit acquitted by insanity reason (whether crime non-violent), persons violent or subject to do mestic violence orders from purchasing, owning, or possessing firearms. See soning 14-269.8, N.C.G.S. majority’s §§ 415.3 rea upon
casts serious doubts constitutionality of these and invites individual challenges only Felony statutes Firearms
Act, but statutory provisions these other as well. Assembly’s prohibition The General of firearm use convicted felons is both reasonable and related preserving public peace safety. Felonies constitute our most serious offenses. One who has displayed committed a has a degree of lawlessness that makes entirely it reasonable for legislature, safety concerned for the public represents, it keep to want to firearms out of the hands of person. such a As this Court stated in Jackson, State v. (2001):
Just heightened as there is public risk and concern associated with firearms on property, educational legislature which the addressed through heightened N.C.G.S. there is also risk and concern pos- associated with convicted felons sessing firearms, which legislature addressed through exceptional § 14-415.1.Both are situations, which have been through statutory addressed dedicated law.
Id. at 546 S.E.2d at (emphasis 573-74 added); see also Dickerson Inst., v. New Inc., Banner n.6, 460 U.S. 74 L. Ed. 2d brought equal protection 3. Plaintiff has not challenge, nor has the any equal protection Felony addressed concerns with the Firearms Act. I therefore do not comment this issue. THE IN SUPREME COURT Congress’s enacting 922(g), (1983) (stating n.6 intent U.S.C. possession by prohibits felons, was to which convicted “keep presumptively risky people”), firearms out of hands *7 superseded grounds by statute, Firearms Owners’ on other in Act, 99-308, recognized Pub. L. No. 100 Stat. as Protection States, 23, —, Logan v. 552 L. Ed. 2d 438 United U.S. 169 Felony scope: prohibi Act is moreover limited in the The Firearms apply persons on firearm not to all convicted tion does only offenses, our most felonies. those convicted of serious crimes— weapons— possessing are from And convicted felons not barred only firearms. Assembly, acting compelling its interest in the General safety, that, mentally insane,
public welfare like the determined pose unacceptable regard those of felonies risk with convicted possession. properly In has ful- doing, legislature to firearm so the “ duty reasonably ‘The regulate filled its firearms: protection violence, public peace, people against and the guarantee legislature, are duties of the and the constitutional in keep and bear arms is to be understood and construed ” harmony, connection and in with these constitutional duties.’ Dawson, State, 272 at (quoting N.C. at Hill v. Thus, (1874)). 53 Ga. because I conclude that preserving public peace 14-415.1 reasonable and related to safety, in general particular both in and to Mr. Britt a convicted Felony drug offender, Act is its face Firearms constitutional on and as to Mr. Britt. poses temptation
This case for is difficult and the Court Britt. depart from established case law in order to accommodate Mr. However, Supreme as the Chief Justice of the United States Court recently articulated: prin- legal
Extreme cases often test the bounds of established ciples. yielding a cost desire to There is correct principle. That case, adhering legal extreme rather than captured legal in a cost has been demonstrated so often that it is aphorism: “Hard cases make bad law.” Co., -, Caperton Massey Inc., -, 556 U.S. A.T. Coal C.J., dissenting). Although Mr. (2009) (Roberts, L. Ed. 2d sympathetic plaintiff, huge be he made a mistake Britt drug and a early life, in his he is a convicted offender nevertheless by the such, belongs persons and as to a class of deemed felon BRITT v. recognized General “heightened this Court to public risk and regard possession. concern” with to firearm Other supreme state temptation courts have avoided the to craft individual- exceptions particular plaintiffs. ized Smith, See State v. 132 N.H. 571 A.2d (holding that the state’s felon-in- narrowly significant statute served a governmental inter- est in protecting general and was therefore constitutional Hampshire under the Constitution, New though even the New Hampshire Supreme Court recognized that some felons falling within potentially the statute’s reach Today’s were not dangerous). decision opens floodgates wide before an inevitable wave of individual challenges only Felony to not Act, Firearms statutory but to our provisions prohibiting possession by incompetents and the mentally insane. The authority has not cited direct from jurisdiction this Court or support other position of its that the legislature may prohibit convicted felons Mr. pos- like Britt from *8 sessing firearms. Plaintiff does not case, cite such and I have none, authority found being contrary. to the Although majority up stands for Mr.Britt and other convicted felons undoubtedly who will now judicial seek exemption from policy this is a matter and determination best left legislative executive or branches. Mr. Britt seek relief from the General through contact with legisla- individual tors or by way from the Governor of a conditional or unconditional Const, pardon. See N.C. Ill, 6; art. cl. N.C.G.S. §§ 13-1 to 13-4. judicial resists restraint in an effort to fashion exception individual for Mr. I Britt. believe this Court should
properly temptation resist such and affirm the decision of the Court Appeals.