STATE v. WHITAKER
No. COA08-1406
IN THE COURT OF APPEALS
Filed 8 December 2009
[201 N.C. App. 190 (2009)]
STATE OF NORTH CAROLINA v. DOUGLAS DWAYNE WHITAKER, DEFENDANT
Firearms and Other Weapons— possession of firearm by felon—constitutionality—preservation of public peace and safety N.C.G.S. § 14-415.1 , which prohibits the possession of firearms by convicted felons, was constitutional as applied to defendant because it was a reasonable regulation that prohibited a convicted felon who violated the law on numerous occasions from possessing firearms in order to preserve public peace and safety.- Appeal and Error— preservation of issues—issue decided in prior case
Our Court of Appeals has previously concluded that
N.C.G.S. § 14-415.1 , which prohibits the possession of firearms by convicted felons, does not violate the prohibition against ex post facto laws and is not an unconstitutional bill of attainder. - Sentencing— possession of firearm by felon—multiple convictions improper
Defendant should have been charged with only one violation of
N.C.G.S. § 14-415.1 , instead of eleven, and the convictions for which defendant received arrested judgments were reversed.
Judge ELMORE concurring in part and dissenting in part.
Appeal by defendant from judgments entered on or about 10 June 2008 by Judge Lindsay R. Davis, Jr. in Superior Court, Moore County. Heard in the Court of Appeals 22 April 2009.
Attorney General Roy A. Cooper, III, by Assistant Attorney General E. Michael Heavner, for the State.
The Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr. and Amanda S. Zimmer, for defendant-appellant.
Defendant was convicted by a jury of eleven counts of possession of a firearm by a felon. Defendant appeals on various constitutional grounds, primarily arguing that the recent decision of the United States Supreme Court, District of Columbia v. Heller, 554 U.S. 570, 171 L.E. 2d 637 (2008), requires this Court to hold that North Carolina‘s law prohibiting possession of firearms by convicted felons violates defendant‘s individual right to keep and bear firearms under the
I. Background
The State‘s evidence tended to show that on or about 27 June 2005, Detective Sergeant George K. Dennis, a detective with the Moore County Sheriff‘s Office, saw some guns at defendant‘s residence. Detective Sergeant Dennis told defendant he could not have guns in his residence and informed defendant that
[t]here had been a change of State law on December 1st of 2004. Up until that point convicted felons could keep long rifles and—and shotguns inside their residence. This was several months afterwards and we were just going—giving him the benefit of the doubt that maybe he didn‘t know about it and gave him a warning to remove the weapons from his—from his residence.
On 11 April 2006, Officer Connie Burns, a probation and parole officer in Moore County, discussed with defendant “that he was not to have firearms in [his] residence.”
On 27 April 2006, Detective Sergeant Dennis, Officer Burns, Detective Sergeant John Andrew Conway, and one other detective sergeant searched defendant‘s residence. The law enforcement offi-
On or about 9 April 2007, defendant was indicted for eleven counts of possession of a firearm by a felon. The indictments were based upon defendant‘s 22 April 1988 conviction for possessing cocaine. However, defendant has also had prior felony convictions for indecent liberties with a minor on 24 August 1989 and possessing cocaine on 27 June 2005. On 21 November 2007, defendant filed a motion to dismiss his indictments based on various constitutional grounds; defendant also filed motions to dismiss and consolidate indictments requesting that “all the . . . indictments but one [be dismissed], and that the State be permitted to amend the remaining indictment to include the additional weapons.” Defendant‘s motions to dismiss and consolidate were denied.
On or about 10 June 2008, a jury found defendant guilty on all eleven counts. The trial court determined that defendant had a prior record level of five and sentenced him to 18 to 22 months imprisonment on one count, but arrested judgment on the other ten counts. Defendant appeals, claiming
II. Standard of Review
“The standard of review for questions concerning constitutional rights is de novo. Furthermore, when considering the constitutionality of a statute or act there is a presumption in favor of constitutionality, and all doubts must be resolved in favor of the act.” Row v. Row, 185 N.C. App. 450, 454-55, 650 S.E.2d 1, 4 (2007) (citations, quotation marks, and ellipses omitted), disc. review denied, 362 N.C. 238, 659 S.E.2d 741, cert. denied, 555 U.S. 824, 172 L. Ed. 2d 39 (2008).
III. Right to Bear Arms
[1] Defendant first claims that his individual right to keep and bear arms under the
A. Facial Challenge to N.C. Gen. Stat. § 14-415.1
Defendant‘s primary argument is that we must reexamine the holding of Britt v. State, 185 N.C. App. 610, 649 S.E.2d 402 (2007) upholding the constitutionality of
1. Standard of Review for a Facial Challenge to N.C. Gen. Stat. § 14-415.1
A heavy burden is imposed upon a party who attempts to make a facial challenge to a statute‘s constitutionality:
A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully. . . . An individual challenging the facial constitutionality of a legislative act must establish that no set of circumstances exists under which the act would be valid. The fact that a statute might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.
State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 281-82 (1998) (citations, quotation marks, and brackets omitted).
Our Supreme Court has stated that “[w]e seldom uphold facial challenges because it is the role of the legislature, rather than this Court, to balance disparate interests and find a workable compromise among them. This Court will only measure the balance struck in the statute against the minimum standards required by the constitution.” Beaufort County Bd. of Educ. v. Beaufort County Bd. of Comm‘rs, 363 N.C. 500, 502, 681 S.E.2d 278, 280 (2009) (citations omitted).
2. Britt v. State
However, though defendant contends we should reexamine Britt v. State, 185 N.C. App. 610, 649 S.E.2d 402 (2007), the North Carolina Supreme Court has recently reversed that opinion, though not unequivocally in defendant‘s favor. See Britt v. State, 363 N.C. 546,
On appeal, Mr. Britt argued that
the trial court erred by concluding the 1 December 2004 version of
N.C. Gen. Stat. § 14-415.1 is constitutional. Specifically, plaintiff contend[ed]N.C.G.S. § 14-415.1 (2004) sweeps too broadly and is not reasonably related to a legitimate government interest. Plaintiff argue[d] that because he was not convicted of a violent felony and because his conviction is so far in the past, the statute prohibiting all convicted felons from possessing any type of firearm is unconstitutional.
Britt v. State, 185 N.C. App. 610, 613, 649 S.E.2d 402, 405 (2007), rev‘d and remanded by Britt v. State, 363 N.C. 546, 681 S.E.2d 320 (2009).
The majority of the Court of Appeals rejected Mr. Britt‘s arguments and determined that
[t]he major differences between the 1995 and current versions of the statute lead me to conclude that the statute in its current form is no longer a reasonable regulation. Instead, I would hold that the current statute operates as an outright ban, completely divesting plaintiff of his right to bear arms without due process of law.
In enacting the 2004 amendment, the legislature simply overreached. Thereafter, the statute operated as a punishment, rather
than a regulation. Moreover, the statute as amended stripped plaintiff of his constitutional right to bear arms without the benefit of due process.
Id., 185 N.C. App. at 621, 649 S.E.2d at 410 (Elmore, J., dissenting) (citation omitted).
Mr. Britt appealed to the North Carolina Supreme Court and presented numerous issues, including, inter alia, whether
Thus, in summary, although defendant has argued that we must reexamine our own opinion in Britt due to Heller, by extension defendant argues that we must reconsider the many prior cases of this Court and the Supreme Court which use the rational basis test to evaluate regulations of firearms. Furthermore, the Supreme Court reversed this Court‘s opinion which had determined that
The North Carolina Supreme Court has previously reviewed the history of Article I, Section 30:
It is obvious that the second amendment to the Federal Constitution—“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed“—furnished the wording for the first part of the N.C. Constitution, Art. I § 24. Historical data and the reports of the deliberations and discussions which resulted in the wording of the second amendment and similar provisions in the constitutions of the original states lead to the conclusion that the purpose of these declarations (that a well regulated militia is necessary to the security of a free state) was to insure the existence of a state militia as an alternative to a standing army. Such armies were regarded as ” ‘peculiarly obnoxious in any free government.’ ” The framers of our constitutions were dedicated to the principle that the military should be kept under the control of civil power. . . .
State v. Dawson, 272 N.C. 535, 545, 159 S.E.2d 1, 9 (1968) (citation omitted).
At the time State v. Huntley was decided [in 1843], the constitutional provision with reference to the right of the people to bear arms was contained in section 17 of the Bill of Rights, which was a part of our Constitution of 1776. It read as follows: “That the people have a right to bear arms for the defence of the state; and as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.”
In 1868, the above provision was replaced by the first sentence of Art. I § 24 of the present Constitution: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they ought not to be kept up, and the military should be kept under strict subordination to, and governed by, the civil power.” To the foregoing, the Constitutional Convention of 1875 added a second sentence: “Nothing herein contained shall justify the practice of carrying concealed weapons, or prevent the Legislature from enacting penal statutes against said practice.”
Id. at 545, 159 S.E.2d at 8-9.
A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.
It is true, however, that the North Carolina Constitution has been interpreted to guarantee a broader right to individuals to keep and bear arms. North Carolina decisions have interpreted our Constitution as guaranteeing the right to bear arms to the people in a collective sense—similar to the concept of a militia—and also to individuals. Yet, as the Supreme Court of this state also noted, [t]hese decisions have consistently pointed out that the right of individuals to bear arms is not absolute, but is subject to regulation. The regulation must be reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.
Fennell at 143, 382 S.E.2d at 233 (citations, quotation marks, and ellipses omitted).
Defendant contends that he has an individual right to keep and bear arms under
The right to keep and bear arms afforded by the North Carolina Constitution is subject to regulations which are “reasonable and not prohibitive” and which “bear a fair relation to the preservation of the public peace and safety.” Fennell at 143, 382 S.E.2d at 233 (citation and quotation marks omitted). The rational basis standard for review of regulations upon the right to keep and bear arms has been articulated by North Carolina courts since at least 1921. See State v. Kerner, 181 N.C. 574, 579, 107 S.E. 222, 226 (1921) (Allen, J., concurring) (“The right to bear arms, which is protected and safeguarded by the Federal and State constitutions, is subject to the authority of the General Assembly, in the exercise of the police power, to regulate, but the regulation must be reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.“); see generally Rhyne v. K-Mart Corp., 358 N.C. 160, 180, 594 S.E.2d 1, 15 (2004) (“[T]he rational basis test or rational basis review applies, and this Court must inquire whether distinctions which are drawn by a challenged statute bear some rational relationship to a conceivable legitimate governmental interest.” (citation, quotation marks, and ellipses omitted)). Our Supreme Court recently noted the rational basis standard in Britt: “This Court has held that regulation of the right to bear arms is a proper exercise of the General Assembly‘s police power, but that any regulation must be at least reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.” Britt, 363 N.C. at 547, 681 S.E.2d at 322 (citation and quotation marks omitted).
4. N.C. Gen. Stat. § 14-415.1
It shall be 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 as defined in G.S. 14-288.8(c). For the purposes of this section, a firearm is (i) any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a pro-
jectile by the action of an explosive, or its frame or receiver, or (ii) any firearm muffler or firearm silencer. This section does not apply to an antique firearm, as defined in G.S. 14-409.11.
In Britt, this Court determined that
Our Supreme Court reviewed the history of
[In 1987], N.C.G.S. § 14-415.1 only prohibited the possession of “any handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches” by persons convicted of certain felonies, mostly of a violent or rebellious nature, “within five years from the date of such conviction, or unconditional discharge from a correctional institution, or termination of a suspended sentence, probation, or parole upon such conviction, whichever is later.”
Subsequently, in 1995 the General Assembly amended N.C.G.S. § 14-415.1 to prohibit the possession of such firearms by all persons convicted of any felony, without regard to the date of conviction or the completion of the defendant‘s sentence. The 1995 amendment did not change the previous provision in N.C.G.S. § 14-415.1 stating that “nothing therein would prohibit the right of any person to have possession of a firearm within his own house or on his lawful place of business.” However, in 2004 the General Assembly amended N.C.G.S. § 14-415.1 to extend the prohibition on possession to all firearms by any person convicted of any felony, even within the convicted felon‘s own home and place of business.
Id., 363 N.C. at 548-49, 681 S.E.2d at 322-23 (citations and brackets omitted).
Defendant argues that Heller requires this Court to examine the restriction upon his right to keep and bear arms under strict scrutiny and that under the strict scrutiny analysis the 2004 amendment to
First, we are not bound by decisions of the United States Supreme Court as to construction of North Carolina‘s constitution. State v. Jackson, 348 N.C. 644, 648, 503 S.E.2d 101, 104 (1998) (“In construing the North Carolina Constitution, this Court is not bound by the decisions of federal courts, including the United States Supreme Court.” (citation omitted)). Secondly, Heller did not adopt a strict scrutiny standard, or indeed any specific standard, for review of laws regulating the right of an individual to keep and bear firearms.1
Third, even assuming arguendo that we are bound to interpret our constitution pursuant to United States Supreme Court cases and that Heller established strict scrutiny as the applicable level of scrutiny to be applied to regulations of an individual‘s right to keep and bear arms, we still cannot read Heller as extending an unqualified right to keep and bear arms to convicted felons. See Heller at 626, 171 L.E. 2d at 678. Heller provides,
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any man-
ner whatsoever and for whatever purpose. . . . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Id. at 626-27, 171 L. Ed. 2d at 678 (emphasis added and citations omitted).2 Heller‘s final statement as to Mr. Heller‘s request to register his handgun was: ”Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” Id. at 635, 171 L.E. 2d at 683-84 (emphasis added). Although Heller does not directly state how Mr. Heller might become “disqualified from the exercise of his Second Amendment rights,” it appears, when this provision is read in the context of the entire opinion, that he might be “disqualified” if he were a felon3 or mentally ill. Id. at 626-35, 171 L. Ed. 2d at 678-83.
Finally, in Britt our Supreme Court declined to adopt a strict scrutiny standard of review in a case involving this very statute,
6. Analysis
We therefore consider defendant‘s facial challenge to the constitutionality of
In Britt, this Court stated:
A convicted felon is prohibited from possessing a firearm if the State shows a rational relation to a legitimate state interest, such as the safety and protection and preservation of the health and welfare of the citizens of this state. Legislative classifications
will be upheld, provided the classification is founded upon reasonable distinctions, affects all persons similarly situated or engaged in the same business without discrimination, and has some reasonable relation to the public peace, welfare and safety. A court may not substitute its judgment of what is reasonable for that of the legislative body when the reasonableness of a particular classification is to be determined. Where the language of an Act is clear and unambiguous the courts must give the statute its plain and definite meaning.
In this case, plaintiff argues that a more appropriate legislation would allow convicted felons the ability to apply for restoration of the right to possess firearms. Plaintiff also argues that long guns, such as rifles and shotguns should be lawful for certain types of convicted felons to possess. We disagree. The General Assembly has made a determination that individuals who have been convicted of a felony offense shall not be able to possess a firearm. This statutory scheme which treats all felons the same, serves to protect and preserve the health, safety and welfare of the citizens of this State. Here, the legislature intended to prevent convicted felons from possessing firearms in its 2004 amendments. The 2004 amendment to N.C.G.S. § 14-415.1 is rationally related to a legitimate state interest.
Britt, 185 N.C. App. at 613-14, 649 S.E.2d at 405-06 (citations omitted).
Defendant here has not established “that no set of circumstances exists under which . . . [
B. As Applied Challenge
Defendant also contends that
[t]he indictment in this case alleged that the Defendant had been convicted in 1988 for possession of cocaine. R. pp 13-14. There is nothing inherently violent in [sic] possession of cocaine that would demonstrate that the Defendant‘s possession of a firearm would be a threat to public safety. The Defendant‘s record consists mostly of drug related offenses. No prior offenses had possession of a firearm as an essential element.
“[T]his Court must determine whether, as applied to plaintiff,
Plaintiff pleaded guilty to one felony count of possession with intent to sell and deliver a controlled substance in 1979. The State does not argue that any aspect of plaintiff‘s crime involved violence or the threat of violence. Plaintiff completed his sentence without incident in 1982. Plaintiff‘s right to possess firearms was restored in 1987. No evidence has been presented which would indicate that plaintiff is dangerous or has ever misused firearms, either before his crime or in the seventeen years between restoration of his rights and adoption of N.C.G.S. § 14-415.1‘s complete ban on any possession of a firearm by him. Plaintiff sought out advice from his local Sheriff following the amendment of
N.C.G.S. § 14-415.1 and willingly gave up his weapons when informed that possession would presumably violate the statute. Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of lawabiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety. Moreover, the nature of the 2004 amendment is relevant. The statute functioned as a total and permanent prohibition on possession of any type of firearm in any location. SeeN.C.G.S. § 14-415.1 (2004) .Based on the facts of plaintiff‘s crime, his long postconviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute‘s operation, as applied to plaintiff, the 2004 version of
N.C.G.S. § 14-415.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety.
In particular, it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.
Britt, 363 N.C. at 547-50, 681 S.E.2d at 322-23.
Thus, the Supreme Court in Britt focused on five factors in order to determine if
We first note that the factors identified in Britt required findings of fact regarding the plaintiff. See id., 363 N.C. at 547-50, 681 S.E.2d at 322-23. Normally, the trial court finds facts, and the appellate courts do not engage in fact finding. See Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 63, 344 S.E.2d 272, 279 (1986) (“Fact finding is not a function of our appellate courts.“) However, the trial court order in Britt did not find most of the facts regarding Mr. Britt as noted by the Supreme Court, and thus the Supreme Court apparently based its factual findings as to Mr. Britt upon the uncontroverted evidence presented before the trial court. Just as in Britt, the trial court here did not make findings of fact regarding defendant, but there was uncontroverted evidence presented as to defendant‘s prior convictions, his history of a lack of “lawabiding conduct since [the] crime,” Britt, 363 N.C. at 549, 681 S.E.2d at 323, and of firearm possession, and his compliance with the 2004 amendment. As these facts are not in dispute, we will analyze defendant‘s as applied challenge to
As to defendant,
IV. Ex Post Facto and Bill of Attainder
[2] Defendant also contends that
V. Double Jeopardy
[3] Defendant also argues that
the trial court erred in denying the defendant‘s motion to dismiss and consolidate indictments for possession of a firearm by a felon when the evidence supported only a single act of possession of multiple firearms. Convictions for multiple charges violated legislative intent and the defendant‘s constitutional right to be free from double jeopardy.
(Original in all caps.)
In State v. Garris, the defendant was convicted of, inter alia, “two counts of possession of a firearm by a felon[.]” 191 N.C. App. 276, 280, 663 S.E.2d 340, 344, disc. review denied, 362 N.C. 684, 670 S.E.2d 907 (2008). The defendant argued that “the trial court erred by entering two felony convictions for possession of a firearm by a felon instead of one felony conviction.” Id. at 283, 663 S.E.2d at 346. This Court concluded that
a review of the applicable firearms statute shows no indication that the North Carolina Legislature intended for
N.C. Gen. Stat.
§ 14-415.1(a) to impose multiple penalties for a defendant‘s simultaneous possession of multiple firearms. Here, defendant was not only convicted twice for possession of a firearm by a felon but was also sentenced twice, evidenced by File Numbers 06CRS053058 and 06CRS053059. The two firearms, both entered into evidence, originated out of the same act of possession. The firearms were possessed simultaneously because as defendant ran from the vehicle they were both on his person, either in his clothing or inside the black plastic bag he removed from the vehicle. Upon review, we hold that defendant should be convicted and sentenced only once for possession of a firearm by a felon based on his simultaneous possession of both firearms. Therefore, we find error with the trial court‘s decision to enter two convictions against defendant for possession of a firearm by a felon and to sentence defendant twice based on these convictions. We uphold the trial court‘s first conviction for possession of a firearm by a felon (06CRS053058) but reverse the second conviction (06CRS053059).
Id. at 285, 663 S.E.2d at 348.
The State argues that the case at bar and Garris
are dramatically different in that the trial court in Garris failed to arrest judgment on either of the two convictions. Thus, the defendant in Garris was not only convicted twice, but was also sentenced twice and subject to multiple penalties for his simultaneous possession of multiple firearms. Garris stands for the proposition that multiple penalties may not be imposed under
N.C.G.S. § 14-415.1 for a defendant‘s simultaneous possession of multiple firearms.
However, we first note that in Garris this Court concluded that the trial court erred in “enter[ing] two convictions[,]” not merely in entering two sentences. Id. at 285. Also, instead of simply requiring the trial court to arrest judgment on one of the convictions, this Court reversed the second conviction entirely. See id. Thus, this Court‘s language and mandate in Garris indicates that multiple convictions for simultaneous possession of firearms by a felon is reversible error. See id. Furthermore, “[t]he legal effect of arresting judgment is to vacate the verdict and sentence. [However,] [t]he State may proceed against the defendants if it so desires, upon new and sufficient bills of indictment.” State v. Goforth, 65 N.C. App. 302, 306, 309 S.E.2d 488, 492 (1983) (citations omitted). As the State could issue new indictments
VI. Conclusion
In conclusion, we reverse defendant‘s ten convictions for possession of a firearm by a felon where judgment was arrested. As to defendant‘s remaining conviction upon which he was sentenced, we find no error.
REVERSED IN PART and NO ERROR IN PART.
Judge ERVIN concurs.
Judge ELMORE concurs in part and dissents in part in a separate opinion.
ELMORE, Judge, concurring in part and dissenting in part.
For the reasons stated below, I respectfully dissent from part IV of the majority opinion. I concur by separate opinion in part III and concur fully in part V.
As the majority notes, I dissented from the majority opinion in Britt I.7 Because the Supreme Court so clearly declined to base its decision reversing this Court‘s holding in Britt I on my dissent or any of the legal issues raised therein, I renew those same arguments here.
Right to Bear Arms
I agree with the majority‘s analysis of Heller and its inapplicability to the case at bar. However, I disagree with what standard of review should be applied. The majority argues that we should apply rational basis review to defendant‘s constitutional challenge to
However, I agree with the conclusion reached by the majority in its analysis of defendant‘s as applied challenge. The majority interprets Britt II as having established a factors test for determining whether
Ex Post Facto and Bill of Attainder
As when I dissented in Britt I, I believe that
In Johnson . . . we held that the 1995 statute was constitutional. At that time, it was clear to this Court that the intent of [the] legislature was to regulate the possession of dangerous weapons. Likewise, we held “that the law [was] not so punitive in effect that it should be considered punitive rather than regulatory.” [Johnson, 169 N.C. App. at 308, 610 S.E.2d at 744.] In so holding, this Court relied on the following facts: “[The law] continue[d] to exempt the possession of firearms within one‘s home or lawful place of business. The prohibition remain[ed] limited to weapons that, because of their concealability, pose a unique risk to public safety.” Id. (quoting [United States v. Farrow, 364 F.3d 551, 555 (4th Cir. 2004)]) (citations, quotations, and alterations omitted).
Applying the same analysis to the statute as amended, I would reach a different result. The amended statute does not exempt the possession of firearms within one‘s home or business. Furthermore, rather than limiting the proscription “to weapons that, because of their concealability, pose a unique risk to public safety,” the legislature broadened the ban to essentially all weapons. Id. (citations and quotations omitted). The result is that the statute is no longer “narrowly tailored to regulate only the sorts of firearm possession by felons that, because of the concealability, power, or location of the firearm, are most likely to endanger the general public,” as it was when the Farrow court reached its decision. Farrow, 364 F.3d at 555 (citation and quotations omitted). The exceptional broadness of the statute serves to undermine the legislature‘s stated intent of regulation and serves instead as an unconstitutional punishment.
I would also hold that the application of the statute to [defendant] violated [defendant‘s]] due process rights. I recognize that “the right of individuals to bear arms is not absolute, but is subject to regulation.” Johnson, 169 N.C. App. at 311, 610 S.E.2d at 746 (quoting State v. Dawson, 272 N.C. 535, 546, 159 S.E.2d 1, 9 (1968)). . . . The major differences between the 1995 and current versions of the statute lead me to conclude that the statute in its current form is no longer a reasonable regulation. Instead, I would hold that the current statute operates as an outright ban, completely divesting [defendant] of his right to bear arms without
due process of law. Cf. id. (holding that the Johnson defendant was not “completely divested of his right to bear arms as [the then current]
N.C. Gen. Stat. § 14-415.1 allow[ed] him to possess a firearm at his home or place of business.“).In enacting the 2004 amendment, the legislature simply overreached. Thereafter, the statute operated as a punishment, rather than a regulation.
Britt I, 185 N.C. App. at 620-21, 649 S.E.2d at 409-10 (Elmore, J., dissenting) (footnotes omitted).
Because I believe that