Possession Of A Firearm By A Felon

The Felony Firearms Act in North Carolina makes it illegal for anyone who has ever been convicted of a felony to possess a gun or any other “weapon of mass death and destruction.” A felony is any crime that is potentially punishable by more than a year’s incarceration, regardless of what sentence the person actually received or served. Amendments in recent years have greatly increased this statute’s power to curtail the gun rights of people with criminal backgrounds.

What counts as a “firearm?”

The statute specifically includes as weapons any firearm muffler or silencer and starter guns. Certain “antique” guns and antique replicas that cannot use fixed ammunition do not count as weapons under this statute.

Does this apply to any conviction ever?

Prior to 1995, this statute only made it illegal for a person convicted of a felony to possess a firearm within five years of conviction or completion of sentence, whichever was later. However, in 1995 the North Carolina legislature amended the statute to apply to any felony conviction regardless of how long ago it occurred.

A 2004 amendment to the statute took things a step further. It took away the two exceptions that existed in the Felony Firearms Act that still allowed someone convicted of a felony to possess a firearm within his or her own house and lawful place of business. This brought the statute to where it is today: a blanket ban on any firearm possession, anywhere, for any felony conviction, from any time.

Exception for some white-collar crimes

Felony convictions that relate to unfair trade practices, antitrust violations, or restraints of trade do not cause a person to lose their right to possess a firearm under the Act.

Penalties

Anyone convicted of felony firearm possession in North Carolina is guilty of a Class G felony, which has a normal sentencing range of 12 to 26 months imprisonment if it is your second offense (the underlying felony counts as at least the first offense). Depending on your criminal record, felony firearm possession can carry a regular sentence of up to 39 months imprisonment. Aggravating factors in your particular case can cause a judge to increase this.

Courts have considered a number of factors in evaluating and applying the Felony Firearms Act over the years, including whether a person’s underlying felony convictions actually involved weapons or were crimes of violence.

Federal enhancements

Besides the amendments over the years that have given the Felony Firearms Act even more power, a related but even more stringent statute exists under federal law. The “Armed Career Criminal Act” imposes a minimum of 15 years imprisonment for individuals convicted of firearm possession when they have three underlying state or federal convictions for serious drug offenses or violent felonies. However, there is an exception in this statute that does not count towards a person’s past felonies any convictions that have been expunged from a person’s record, unless their expungement contained a specific provision to the contrary.

Can my right to own a firearm ever be restored?

The Felony Firearms Act has a Restoration of Firearm Rights provision. It allows a North Carolina resident with one single nonviolent felony conviction to petition in district court for the restoration of their right to possess a firearm, if they had their civil right restored after serving their sentence at least 20 years ago. Until 2004 this provision allowed the restoration of firearm rights after only five (5) years. This massive change in law created the obligation for many individuals with older felony convictions to turn in guns they had since been legally possessing until the 20 year mark passes.

A person’s civil rights cannot be restored until they have completed all terms of their sentence. This includes fines, restitution and supervised release.

What about second amendment rights? Challenging the statute

Some individuals have successfully challenged the application of the Felony Firearms Act as it applied to them specifically on the grounds that their convictions were very old and North Carolina’s blanket ban violated their Second Amendment rights to bear arms. However, in many of these cases the defendant was arrested for felony firearm possession first and had to sit in jail while their case reached the appellate level. The courts were also careful to tailor these decisions so that they only applied to the specific individuals in those cases and not other potential defendants.

However, it is possible to raise the issue to the civil courts without being arrested criminally first. At least one individual did just that when he successfully sued the State in 2011 in Johnston v. State of North Carolina, challenging the constitutionality of the Felony Firearms Act as it applied to him. His right to possess a firearm had been restored in 1987, five years after he completed his prison sentence, but the 2004 amendment to the statute increased this wait period to 20 years. He voluntarily surrendered the firearms he had legally possessed since restoration but argued in civil court that the newer blanket ban on all felony firearm possession was unconstitutional as applied to him because his felony convictions were over 30 years old and did not involve the use of violence or a firearm. The court agreed, also pointing to the fact that the Johnston had lived a law-abiding life in his years since conviction.

If you or someone you love has been charged with a crime, especially one that involves a firearm, it is critical to have experienced defense representation. The attorneys at Arnold & Smith, PLLC have years of experience in the local state and federal courts and defend individuals accused of a variety of firearm-related offenses. Please contact our office today for a free case consultation.