Year: 2011

This time in North Carolina court:

The trial court concluded that, when Heller said that bans on felon possession of guns were “presumptively valid,” this presumption could be rebutted, and in this case it was rebutted, given the age of Johnston’s conviction and his apparently blameless life since then. The court also suggested that its analysis might also apply to people whose last convictions were as recent as seven years ago, especially when the convictions were for nonviolent crimes; but it didn’t have occasion to issue any specific holding on that point.

I agree that not all felony convictions should be disabling, especially when you have lawmakers that want to do things like mislabeling syrup to be a felony. It’s also interesting that the Court noted:

There are additional and substitute procedural safeguards which could go far towards preventing the erroneous civil deprivation, or continued civil deprivation, of a citizen’s rights under the Second Amendment. For example, a felon’s potential subjection to the civil disability could easily be dealt with in felony sentencing by findings of fact and rulings on the civil deprivation of the right after giving the felon an opportunity to be heard on the issue. An expansion of the persons allowed to ask for review, and a provision allowing such review at a meaningful time on the issue of whether the person poses a continuing threat to public safety, can satisfy a procedural due process requirement for a meaningful post-disqualification review. The fiscal and administrative burdens that these procedures would entail would not be great if the issue of future dangerousness and consequent civil deprivation of a fundamental liberty were dealt with in the sentencing phase of a trial or plea. The burden of an expanded procedure for review of a felon’s continued dangerousness may only be excessive if all felons continue to be deprived of firearms rights by conviction alone. If, however, that deprivation is limited to those who are found to pose a continuing danger in the sentencing phase after having been given an opportunity to be heard on the issue, then the additional burden of allowing periodic review of the continuing validity of that determination should not be unduly burdensome for a government that seeks to preserve the fundamental rights of its citizens.

I’m glad to see this, because I have always believed a blanket ban on felons is an improper means of handling the issue, and that a prohibition on firearms possession should be something placed on a person convicted during sentencing. Of course, legislatures would be free to require this punishment for certain crimes, but not necessarily all crimes. It’s hard to see how public safety is served by a blanket ban that also covers non-violent felonies.

This is more a 14th Amendment case, but the State Appeals Court tossed a conviction for having an unlicensed gun, arguing that it violated equal protection, and his right to bear arms. Eugene Volokh notes:

This independent focus on the Second Amendment is important because the Supreme Court has read the Equal Protection Clause as barring most (but not all) state discrimination against noncitizens; the federal government remains generally free to discriminate against noncitizens. But if the Washington Court of Appeals is right that legal aliens are protected by the Second Amendment, that means that even the federal government may not ban them from owning guns.

This would basically mean that anyone who’s in the country legally has a right to bear arms. Current federal law severely curtails the right for non-resident aliens, so this could be interesting if it makes its way to federal court.