Firearm Rights after Felony Conviction

Revised March 2014

This part deals with North Carolina procedures for restoration of the right to possess a firearm after conviction of a nonviolent felony (see Table 19). The restoration procedure, in G.S. 14-415.4, became effective February 1, 2010, meaning that a person who meets the criteria in that statute is eligible for restoration whether his or her offense or conviction occurred before or after February 1, 2010. See S.L. 2010-108 (H 1260), as amended by S.L. 2011-2 (H 18) (clarifying effective date). A person with a nonviolent felony conviction in North Carolina or in another jurisdiction may petition for restoration of firearm rights in North Carolina if the person meets the statutory criteria.[1]

An order granting restoration overrides G.S. 14-415.1, which otherwise bans a person convicted of a felony from purchasing, owning, possessing, or having any firearm or weapon of mass death and destruction as defined in G.S. 14-288.8(c). See G.S. 14-415.4(a), (b). Restoration also removes the felony conviction bar on eligibility for a handgun permit (see G.S. 14-404(c)) and for a concealed handgun permit. See G.S. 14-415.12(b)(3).[2] Restoration does not constitute an expunction or pardon. G.S. 14-415.4(i).

Federal law also imposes a firearms ban for felony convictions. 18 U.S.C. 922(g)(1).[3] Federal law lifts this ban if a person’s civil rights have been restored unless the restoration does not permit the person to ship, transport, possess, or receive firearms. 18 U.S.C 921(a)(20). Completion of a felony sentence alone does not lift the federal firearms ban because although North Carolina law restores a person’s civil rights after the person completes his or her sentence, it continues to impose a firearms ban.[4] Whether North Carolina's restoration process lifts the federal firearms ban for felony convictions is beyond the scope of this edition of the guide. See generally Caron v. United States, 524 U.S. 308 (1998).

North Carolina’s restoration process does not lift other federal firearms bans, including the federal ban for a conviction of a “misdemeanor crime of domestic violence.” See 18 U.S.C. 922(g)(9) (prohibition); 18 U.S.C 921(a)(33) (definition of covered offenses). Although imposed by federal law, this ban affects the application of state firearms laws. For example, a person may not obtain a permit to purchase or receive a handgun or carry a concealed handgun if barred by federal law from owning, possessing, or receiving a firearm. See G.S. 14-404(a)(1) (permit to sell, give away, transfer, purchase, or receive handgun); G.S. 14-415.12(b)(1) (concealed handgun permit). Nor may a state court judge, after the expiration of a domestic violence protective order prohibiting a person from possessing firearms, order the return of firearms to that person if the person has been convicted of a misdemeanor crime of domestic violence as defined by federal law. See G.S. 50B-3.1(f). North Carolina law requires that a person receive notice of the federal firearms prohibition if convicted of a misdemeanor crime of domestic violence. See S.L. 2007-294 (H 1810); see also AOC-CR-617 (Dec. 2007) (Firearm Prohibition Notice).

North Carolina’s restoration process for prior felony convictions does not cover misdemeanor convictions. A person with a prior conviction for a misdemeanor crime of violence would need to obtain an expunction of the conviction (discussed earlier in this guide); an appropriate pardon (discussed later in this guide); or other relief, such as an order granting a motion for appropriate relief (discussed later in this guide). See 18 U.S.C. 921(a)(33)(B)(ii) (identifying these as grounds for relief from the federal firearms ban). As a practical matter, a petitioner who meets the eligibility criteria for the felony-based restoration often will not have a conviction of a misdemeanor crime of domestic violence for federal law purposes. The reason is that under North Carolina law, a petitioner is not eligible for restoration if since the time of the felony conviction he or she has been convicted of any “crimes of violence constituting a misdemeanor,” including any offense under Article 8, Assaults, of G.S. Chapter 14. See G.S. 14-415.4(d)(4); G.S. 14-415.4(e)(6). The state law disqualification, which covers any misdemeanor crime of violence, appears broader than the federal disqualification, which covers misdemeanor crimes of violence against a person in a domestic relationship. In a limited sense, however, the state disqualification may be narrower because it appears to apply only to misdemeanor convictions that occurred since the felony conviction that is the subject of the restoration procedure.[5]

A person who is not eligible for restoration of firearm rights under G.S. 14-415.4 may be able to obtain relief through a civil suit in some circumstances. The General Assembly enacted G.S. 14-415.4 after the North Carolina Supreme Court issued its opinion in Britt v. State, 363 N.C. 546 (2009), in which the court held under the North Carolina Constitution that the ban on possession of firearms by a person convicted of a felony was unconstitutional as applied to the plaintiff, who had one nonviolent felony conviction from 1979. Following the enactment of G.S. 14-415.4, the North Carolina Court of Appeals held, in Baysden v. State, ___ N.C. App. ___, 718 S.E.2d 699 (2011), that the ban was unconstitutional as applied to the plaintiff in that case, who did not satisfy the criteria for restoration in G.S. 14-415.4 because he had two separate felony convictions rather than one as required by the statute. Baysden is currently under review by the North Carolina Supreme Court. A person also may be able to obtain relief from federal firearms restrictions by filing a civil suit challenging the constitutionality of the restrictions as applied to him or her. See Jeff Welty, Constitutional Challenges to Federal Gun Laws, N.C. Crim. L., UNC Sch. of Gov’t Blog (Jan. 20, 2011).

Table 19. Restoration of Firearm Rights after Felony Conviction

Matters Subject to Restoration of Firearm Rights

Principal Restrictions on Restoration of Firearm Rights

Applicable Statutes and Forms

  • Conviction of a “nonviolent felony,” as defined in G.S. 14-415.4(a)(2), including multiple nonviolent felony convictions arising out of the same event and consolidated for sentencing, but excluding
    • any Class A through B2 felony, and
    • any Class C through I felony described in G.S. 14-415.4(a)(2)a., b., c., or d.
  • No other felony convictions
  • No misdemeanor conviction of type described in G.S. 14-415.4(e)(6) since conviction of nonviolent felony
  • None of the other disqualifying matters in G.S. 14-415.4(e) apply
  • Residence in North Carolina for at least one year immediately before filing of petition
  • Restoration of citizenship rights for at least 20 years before filing of petitiona

a For a discussion of the length of the waiting period for a person convicted of a felony in a jurisdiction other than North Carolina, see [1].

 

 

[1] G.S. 14-415.4 contains some conflicting language about the length of the waiting period before a person convicted of a felony in another jurisdiction may petition for the restoration of firearm rights in North Carolina. G.S. 14-415.4(c) states that a person may petition the court for a restoration order if his or her civil rights, including the right to possess a firearm, have been restored in the other jurisdiction for at least 20 years. The AOC form, AOC-SP-620, reflects this language. Under this approach, if the other jurisdiction does not have a firearms restoration process, a person who is a resident of North Carolina and has an out-of-state felony conviction may have no right to use the restoration procedure in G.S. 14-415.4. If the state of conviction has a firearm restoration process but imposes a waiting period before restoration—for example, 20 years following the restoration of civil rights, as in North Carolina—then the person may have to wait for that period to expire in the other state, apply for restoration of firearm rights in that state, and then wait an additional 20 years before applying for restoration in North Carolina. G.S. 14-415.4(d)(3) also states, however, that the court may grant a petition by a person with an out-of-state felony conviction if he or she has had his or her civil rights restored for 20 years; it makes no mention of a requirement of restoration of firearm rights in the other jurisdiction. If this language is controlling, the same waiting period would apply to people with out-of-state and in-state convictions—that is, 20 years following restoration of the person’s civil rights.

[2] A person who obtains a restoration order still must comply with other laws regulating use and possession of a firearm and other weapons. Thus, a person may not possess a weapon of mass death and destruction unless one of the exceptions in G.S. 14-288.8 applies and may not obtain a handgun or concealed handgun permit without satisfying the eligibility criteria in the statutes authorizing those permits.

[3] Federal law does not specifically use the term “felony.” Rather, the federal firearms ban applies to people convicted of a “crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. 922(g)(1). Federal law excludes misdemeanors from this definition if punishable by a term of imprisonment of two years or less (18 U.S.C. 921(a)(20)(B)), which describes almost all misdemeanors in North Carolina. This guide does not assess how the quoted language from 18 U.S.C. 922(g)(1) would apply to North Carolina felonies in light of North Carolina’s current and prior sentencing schemes. See generally McNeill v. United States, ___ U.S. ___, 131 S. Ct. 2218 (2011) (in considering whether a state conviction supports an enhanced sentence based on the possible term of imprisonment for that conviction, a federal court must look at the applicable imprisonment ranges at the time of the defendant’s state conviction); United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc) (in considering whether a state conviction supports an enhanced sentence based on the possible term of imprisonment under North Carolina’s structured sentencing scheme, a federal court must look at the sentence the defendant actually could have received, not a hypothetical sentence that an offender with the worst possible record could have received); U.S. v. Carter, 471 Fed. Appx. 136 (4th Cir. 2012) (unpublished) (applying the approach in Simmons to a federal charge of possession of firearm by felon and holding that the defendant’s conviction under North Carolina’s structured sentencing scheme was not punishable by a term of imprisonment exceeding one year).

[4] The North Carolina restoration statutes, G.S. 13-1 through 13-4, do not specifically mention any firearms restriction. Nor is there any mention of a firearms restriction in the AOC form, AOC-CR-919M (Dec. 2007), notifying a person of the restoration of civil rights. But, G.S. 14-415.1 makes it clear that a person who has been convicted of a felony is subject to a permanent firearms ban unless the person obtains relief from the ban. Consequently, completion of a felony sentence alone does not lift the federal firearms ban. See United States v. Newbold, 215 Fed. Appx. 289, 295–96 (4th Cir. 2007) (unpublished) (reviewing the “whole of state law” and finding that the defendant’s completion of a North Carolina felony sentence did not restore the defendant’s firearm rights under state law and therefore the defendant remained subject to the federal firearms bar).

[5] Another federal firearms ban applies to a person “who has been adjudicated as a mental defective or who has been committed to a mental institution.” 18 U.S.C. 922(g)(4). North Carolina has a firearms restoration procedure for people who have been involuntarily committed. See G.S. 122C-54.1. For a discussion of this federal firearms ban, see Benjamin M. Turnage, John Rubin, & Dorothy T. Whiteside, North Carolina Civil Commitment Manual § 12.3, at pp. 170–73 (UNC School of Government, 2d ed. 2011).