Come Heller high water: Can the felony firearms act withstand scrutiny?

Abstract

The question for North Carolina (in light of the District of Columbia v. Heller decision) is whether the Felony Firearms Act in its current form - which outlaws all gun possession by persons having any felony conviction- represents a constitutional response to gun violence, or whether the State's decision to dispossess all felons of all firearms in all places is instead a policy choice which the Constitution, through Heller's recognition of a fundamental right of self-defense, has taken off the table. Put quite simply, this article assumes the Fourteenth Amendment's Due Process Clause protects an individual, fundamental right of self-defense. It further assumes that application of strict scrutiny to any law infringing this fundamental right is appropriate, in keeping with the Supreme Court’s multitudinous Fourteenth Amendment substantive due process holdings. With these assumptions in place, I argue that the Felony Firearms Act is such a law and that it fails such scrutiny. More particularly, this article explores the Felony Firearms Act's legislative history (spanning almost four decades), considers the legislature's purpose in creating and enforcing the Act (while critically evaluating potentially-assertable state interests); analyzes the Act's current text; and evaluates its effectiveness in statistical terms - all in order to determine whether the limitations the Act places on individuals' exercise of the fundamental right of self-defense are narrowly tailored toward achieving a compelling State interest. In its current form, North Carolina's Felony Firearms Act infringes on that fundamental right by denying an impermissibly broad classification of individuals the ability to acquire, own, control, or otherwise possess a firearm - even in their own home, faced with a life-threatening conflagration; even when the person whose rights have been deprived has done shown a flawless respect for the law for the past forty years; even when that person’s original "felony" was nothing more than an innocuous violation of a technical rule; even when other, comparatively more violent criminals get to keep their firearm. The Act's objectives, however, can be substantially realized through a more narrowly-tailored legislative approach. Through looking at several lawmaking examples (discussed in detail in the article), we see that the General Assembly is indeed capable of more careful statutory craftsmanship.

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