Felons and the Right to Bear Arms

(Eugene Volokh)

Yesterday's Baysden v. State (N.C. Ct. App. Nov. 15, 2011) holds that North Carolina's ban on possession of guns by a felon violates the North Carolina Constitution's right to bear arms provision as to someone with two over-30-year-old nonviolent felony convictions. This follows Britt v. State (N.C. 2009), which held the same on similar facts; a North Carolina trial court decision from last month, Johnston v. State, held the same under the Second Amendment, and People v. Dewitt (Colo. Ct. App. 2011) seemed to secure an even broader right — sometimes applicable even to criminals whose convictions are more recent — under the Colorado Constitution.

Many other recent decisions have upheld bans on felon gun possession, either categorically (citing language to this effect in Heller) or as applied to people whose convictions were relatively recent (noting that Heller only said that bans on felon gun possession were "presumptively lawful," and that this presumption might be rebuttable in a proper case). But the North Carolina cases, coupled with the Colorado case, suggest that as-applied challenges brought by people with very old felony convictions might indeed succeed, at least in some courts, and especially if they are brought under state constitutional provisions as well as the Second Amendment. And if a court concludes that the state constitution mandates the restoration of a felon's gun rights under state law, that should also lift the federal ban on gun possession by that felon, see 18 U.S.C. § 921(20).

For a recent New York Times article arguing that some states might be making it too easy for felons to regain gun rights, see here; but my quick skim of the piece suggests that the objections are mostly to restoration of gun rights for people whose felonies are relatively recent, rather than about 30 years old or more, as in the North Carolina cases.