What hath Heller wrought?
Last week the North Carolina Supreme Court handed down a decision that, to my mind, would have been unlikely to say the least before District of Columbia v. Heller, the 2008 United States Supreme Court holding the Second Amendment's protection of the right "to keep and bear arms" to be an individual right. The North Carolina Court found that, as applied to a non-violent felon, North Carolina Constitution Article I, Section 30, which like the Second Amendment provides:
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.
prevents the State from divesting the felon of firearms.
The case is styled Britt v. State (no citation yet). It's an important decision, with a few caveats: First, it does not address the United States Constitution, but rather an identically worded right within the North Carolina Constitution. It has no precedential value anywhere except in North Carolina, does not bar enforcement of federal laws, and may, in years to come, be treated as an outlier rather than persuasive law by federal and other state courts.
Second, the facts are important and a little unusual. Barney Britt was convicted of methaqualone (aka quaalude) possession, a non-violent felony, in the 1970s, and by all accounts has lived an exemplary life since serving his sentence. He was allowed to maintain firearms under state law, on his own land (where he hunted), until state law was amended in 2004 to prevent him from doing so. His challenge to the law was also exemplary. He questioned his sheriff as to whether the law applied to him, got an opinion that it did, and voluntarily surrendered his guns. Then he hired a lawyer to contest the constitutionality of the law as it applied to him only.
And he was successful. The Court, in a 5-2 decision, limited its holding to Britt's specific facts, finding that the exercise of state police power to bar firearms to a non-violent felon, who had demonstrated good character for thirty years, was an unreasonable restriction of the state right to keep and bear arms. The Court did not address the statute's constitutionality as to violent felons, repeat offenders, or non-violent felons who have been out of prison only a short time.
The dissent predicts, and I agree, that this will lead to a flood of litigation in the state, as others like Britt, who as the dissent concedes made only one "huge mistake early in his life," seek to have their rights restored. And yet, when rights are unconstitutionally abrogated, that is precisely the proper remedy. The dissent would prefer to uphold the state's bright-line rule, both in deference to state police power and presumably to avoid choking the courts with similar suits.
Although North Carolina's case law in the area was (and is) better developed than federal law before Heller, I still can't imagine this result would have been reached in 2007. Congratulations are in order to Mr. Britt and to his lawyer, Dan Hardway, who picked the right client, with the right case, and brought it at the right time.
Last 5 posts by Patrick Non-White
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