Second Amendment Protects Felon Whose Convictions Were 30 Years Ago

So held a North Carolina trial court in Johnston v. State (Oct. 24, 2011). Richard Johnston had been convicted of “felonious receipt of stolen property and conspiracy to commit grand larceny” in 1978, and pled no contest “to fraudulent setting fire, conspiracy, false statement to procure, and conspiracy to receive, receiving, conspiracy to commit larceny and accessory before the fact” in 1981. (The underlying crimes occurred in 1976, and “did not involve either violence or the use of a firearm.”) Since then, Johnston has apparently led a law-abiding life, setting aside “routine traffic citations and two hunting citations, one of which was dismissed”; he is now 69 years old.

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.

The court also concluded that North Carolina’s firearms rights restoration law — which allows firearms rights to be restored only when a person has only one felony conviction, that felony is a nonviolent felony, and the conviction is at least 20 years old — violates the Due Process Clause, because it “provides no procedural mechanism by which a person subject to it may be heard on the issue of … her likelihood to commit future crimes of violence using a firearm before being deprived of her fundamental liberty interest” (p. 23). (I’m not sure that this is a sound argument: If a permanent ban on gun ownership by all felons who have more than one felony conviction is unconstitutional on Second Amendment grounds, the due process analysis is beside the point, but if it is unconstitutional as to certain felons, the objection is to the substantive prohibition and not to the procedure.)

Finally, though the court favorably cites Britt v. State, a 2009 North Carolina Supreme Court case that held that a felon whose crimes were similarly far in the past regained his constitutional right to bear arms, the Johnston decision rests on the Second Amendment, and Britt relied only on the North Carolina Constitution’s right to bear arms provision. This makes Johnston potentially more influential in other jurisdictions, assuming it is appealed and affirmed on appeal.

The opinion is also quite long and pretty detailed in setting forth its arguments; if you’re interested in the subject, read the whole thing.