NC Supreme Court: Felon wins the right to own a gun!

[Yoda]

Isn't it just great that a Brady rule was overturned by a judge named Brady? Now we'll have to specify which "Brady" we're talking about!

==============================

Felon wins the right to own a gun

RALEIGH -- A state law barring felons from owning firearms unfairly prevented a Garner man from owning guns, the N.C. Supreme Court ruled Friday, thrusting the court into the national debate over gun ownership.

The opinion applied only to Barney Britt, who was convicted of a drug crime in 1979, and it didn't have an immediate effect on the thousands of other felons in the state. Criminal defense lawyers who practice in federal courts said they don't know what effect, if any, the opinion will have on federal rules, which prevent felons from buying and owning weapons except when a state has restored that right.

The ruling authored by Justice Edward Thomas Brady held that Britt should be able to own guns and that the state unfairly took away his right to own a firearm with a 2004 law that barred felons from owning firearms. Britt was convicted in 1979 of selling Quaalude pills, but he didn't have any further tangles with the law....

...."This has implications beyond just North Carolina," said Robert Levy of the Cato Institute, a Washington-based Libertarian think tank that opposes gun control. "North Carolina has now decided that some felonies are not so serious to result in deprivations of the right to defend oneself."

Roxane Kolar, director of North Carolinians against Gun Violence, said the decision was troubling.

"I've never heard of this before, of a felon having an inalienable right to own a weapon," she said. "It's putting a lot of our state gun laws at risk."

The decision could spark a rush to local courthouses as felons try to have their rights to own and store firearms in their homes restored. Those with the best chance would likely be those with cases similar to Britt's; people convicted of nonviolent crimes who had their right to own a gun restored and then taken away with a 2004 law, said Jeanette Doran, a senior staff attorney with the N.C. Institute for Constitutional Law.....

....The state legislature may address the issue with a bill introduced for the 2009-2010 session by Rep. Phil Haire, a Democrat from Western North Carolina, that would give limited hunting privileges to nonviolent felons....

....A passionate hunter who never had any subsequent arrests, Britt had his right to own guns restored from 1987 until 2004, when the new law went into effect.

(Judge) Brady wrote that the law was too broad in including nonviolent felons like Britt, who had otherwise been law-abiding and had owned guns for 17 years after he successfully petitioned in 1987 to have his civil rights restored, including owning a gun.

"He is not among the class of citizens who pose a threat to public peace and safety," Brady wrote.

Troubled by the ruling

In a dissenting opinion, Justice Patricia Timmons-Goodson said she was alarmed that her fellow justices ignored state law by giving Britt an exemption. She said the ruling made North Carolina the first jurisdiction to uphold a convicted felon's right to own firearms over a state's power to regulate gun ownership.

"Today's decision opens the floodgates wide before an inevitable wave of individual challenges to not only the Felony Firearms Act, but our statutory provisions prohibiting firearm possession by incompetents and the mentally insane," Timmons-Goodson wrote.

Her fears were shared by those seeking tighter gun-control laws.

Kolar of North Carolinians against Gun Violence expressed concern that judges would be the ones to decide whether felons could own guns, something she says gives too much discretion to the courts....

Here's the link to read the full article:
http://www.newsobserver.com/news/story/1670142.html

- - - Yoda

 

[Hoxviii]

I was waiting for cases involving non-violent felonies to start coming down the line. So much stuff is a felony any more that the felon disqualification really doesn't mean anything anymore- it is applied way too broadly.

I've always thought that the disqualification should only be for violent felonies, so I applaud the decision.

 

[Zoogster]

Well considering it was a state law passed in 2004 that was retroactively applied it was unfair.
Declaring in 2004 that something someone did in the 1970s deserves more consequences is retroactive punishment.


This may have nothing to do with the Federal level. Many states already permit felons to have what some states consider guns, but the federal government does not, while other others allow complete restoration of rights.
In some states a felon can have all rights restored, and be allowed to possess firearms at the state level while still being prohibited at the federal level.

For example under Texas law a felon has the right to have all firearms after 5 years have passed from prison or parole (whichever is greater) at thier place of residence. So a felon can legally possess firearms under Texas law, never having any official procedure to have rights restored once 5 years have gone by. They would still be in violation under federal law though.


That is just one example there is many similar examples in other states.
Some states also consider black powder muzzle loaders firearms and other states do not, while federal law does not.
So in such places they could prohibit a felon from having them at some point, but then allow them to have any firearms at a later point, and federal law would only still prohibit the cartridge arms. So they would have regained the freedom to have all firearms at the state level, and be able to have muzzle loaders at the federal level.
Other states consider airguns firearms at the state level. While federally they are not firearms. So if they regained the ability to have firearms at the state level they could then possess airguns again.



So there is already numerous similar examples that make this not really news at all. It only becomes news if it is appealed to a higher court that sets regional or national standards. There is already numerous states that allow "firearms" when federal laws does not.

 

[ants]

Do I read it wrong, or is this about restoring rights and then taking them away? Not just gun ownership rights, but the rest of his rights, too.

I'm not convinced that this is solely a gun issue, but it surely has an impact upon gun ownership.

 

[Hoxviii]

In 1987 he petitioned to get his rights back that were removed with the felony conviction and was granted those rights, including voting and firearms ownership. The law was later passed in 2004 that took his firearm rights away while leaving his voting rights intact. He petitioned again, and got his guns rights back, again.

 

[627PCFan]

Might be diverging but couldn't this guy have gotten his record expunged after a period of time, and then purchased a firearm?

 

[wyofool]

Here is a law professor's take on this:
volokh.com/archives/archive_2009_08_23-2009_08_29.shtml#1251496843
Please also note the last paragraph.

 

[Rio Laxas]

In some states a felon can have all rights restored, and be allowed to possess firearms at the state level while still being prohibited at the federal level.

I have always understood this to be the case as well, but I went and read the statute again and now I am not so sure.



TITLE 18 > PART I > CHAPTER 44 > § 922

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;

(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));

(6) who has been discharged from the Armed Forces under dishonorable conditions;

(7) who, having been a citizen of the United States, has renounced his citizenship;

(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

It appears to me that as long as state law does not prohibit it, then a felon could possess a firearm that does not affect interstate or foreign commerce. I am not sure how you would define which firearms affect interstate or foreign commerce, but would this leave it open to a felon to build one for themself?

Could you somehow argue that firearms owned and possessed prior to conviction no longer have an affect on interstate commerce as long as they are not re-sold? Let's say this guy turned all of his guns into the police in 2004 and the police give them back to him now. Has he affected interstate commerce and run afoul of federal law?

 

[Erik]

Federally, the interstate commerce clause applies. Good luck getting around that.

 

[Zoogster]

It appears to me that as long as state law does not prohibit it, then a felon could possess a firearm that does not affect interstate or foreign commerce. I am not sure how you would define which firearms affect interstate or foreign commerce, but would this leave it open to a felon to build one for themself?

No Gonzales v Raich in 2005 changed all of that. It dealt with marijuana grown legally in California, never intended to be sold, and never crossing state lines or even entering commerce within the state, nevermind outside of it.
Part of the logic applied was that simply its existence meant some people were no longer going to be purchasing the illegal black market stuff. So by not purchasing the illegal black market drug they would not be increasing demand and causing a change in the price.
Another portion of the logic was saying that its high demand will may draw it into the black market, even though it is not intended for the black market or for sale.
So even though it was grown only for personal use, legally under CA law by someone with a medical permit and never sold or crossing state lines it still was said to effect the black market outside the state. Having an effect on interstate commerce.

Its first application to gun laws happened shortly after.
In United States v. Stewart. The case was decided by the 9th Circuit of Appeals, but was essentially told what to decide by the Supreme Court of the United States.

The 9th Circuit ruled that Stewart who had built homemade firearms, only for personal use, kept in his home was immune to the NFA. The firearms were never intended to be sold or enter commerce and were going to remain in Arizona. The 9th Circuit ruled that the NFA does not apply to homemade firearms using the same logic as presented in the Morrison case, as federal jurisdiction comes from the commerce clause, and they were outside the scope of commerce.

Then the Stewart case finally is appealed to the SCOTUS. The SCOTUS having ruled on Gonzales vs Raich in the meantime sent the case back down to the lower court of appeals (the 9th circuit) and told them to come up with a better decision "in light of" Raich.
Essentially saying that Raich has now created new logic where everything is part of commerce, even if it is not part of commerce, and so the gun laws always apply and are within federal jurisdiction.
The 9th Circuit complied and ruled against Stewart.


If a plant grown for personal use, only for personal use within the state, and never intended to be sold is still subject to federal power through interstate commerce, then a gun made for personal use, never intended to be sold, and intended to remain within the state is also subject to the laws deriving thier power from the commerce clause.

There is nothing no longer subject to federal power since Raich.
For example the same logic could be used to regulate water you collected in a container from rainwater. You would no longer need to purchase as much water, effecting the demand, and therefor effecting commerce just by not needing to buy more water. A strong demand for that water may even cause you to sell it, and so it may effect commerce. The exact same logic as in Raich.


It is a huge increase since Wickard v. Filburn, where a farmer receiving federal funds and subsidies was held to be subject to federal regulations on the farm essentially being paid for by the government.
Now anyone anywhere at any time is always subject to the federal authority through Raich regardless of federal involvement, federal funding, or involvement in commerce, because the logic of Raich can always allow it to be twisted as being subject to federal authority if so desired.
Yet a court with an agenda drew parallels between the two. So a guy with a contract with the government is similar to one that is not? Under that logic even schools that accept no federal funding would be subject to federal guidelines and curriculum.
But it it what they said.


So no. A felon building his own gun would no longer be purchasing illegal guns from the black market. As a result he would have an effect on demand, reducing the black market price of illegal guns. Therefor effecting interstate commerce just by building himself his own gun.

Let me cite part of the SCOTUS decision and demonstrate by replacing the crossed out bolded word with the Italic bolded word:

The parallel concern making it appropriate to include [strike]marijuana[/strike] firearms [strike]grown[/strike] built for home [strike]consumption[/strike] use in the [strike]CSA[/strike] NFA/GCA is the likelihood that the high demand in the interstate market will draw such [strike]marijuana[/strike] firearms into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of [strike]homegrown marijuana[/strike] homemade firearms tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or [strike]marijuana[/strike] firearms, has a substantial effect on supply and demand in the national market for that commodity

But Raich added an additional catch all just in case that is not enough. Scalia personally added it in his concurrent separate opinion. Now anything considered "necessary and proper" even in the most remote of ways can be regulated. So just in case the logic of the commerce clause misses something, the "necessary and proper" will not.
It is certainly contrary to the meaning by the founders, but it is what the SCOTUS has decided the founders meant.


Ironically it is similar to the argument presented by the dissenting Breyers in the United States v Lopez case, a case which was even cited in Raich for other reasons! Breyers (leftist ant-gun) was arguing that the Gun Free School Zones Act was under federal jurisdiction. Saying that since the children there were getting an education to eventually join the work force, and that the career they obtained would have a substantial effect on the economy, anything that effected thier education was therefore effecting the economy and hence commerce. "significantly undermines the quality of education that is critical to economic prosperity".
He lost, but that was still part of argument in Lopez.
In Raich you see almost the same type of logic by the other side, saying that since something homemade/homegrown may potentially effect commerce, that it is within federal jurisdiction.
So in light of that I imagine the Gun Free School Zone Act would also be valid under Raich.