Part II: Firearms Rights Restoration – Are You Eligible to Have Your Rights Restored in North Carolina?

By KevinMarcilliat, In Criminal Defense, 0 Comments

Here is what you need to know. In general, you are only eligible to file a petition if you meet the following requirements:

  1. You can only have a single felony conviction on your record (or multiple convictions from the same incident in some circumstances).
  2. The felony must be non-violent.
  3. It must have been at least 20 years since your felony conviction.

If you believe you meet these requirements, it might be possible to restore your right to own or possess a firearm in North Carolina. Continue reading to learn more about the process.

For One North Carolina Man, Permanent Ban on Firearms Ruled Unconstitutional

In Part I, we offered a brief history of the right to keep and bear arms in North Carolina, and mentioned the five-factor test that must be satisfied before the court will restore your rights. To learn more, let’s first look at the case of Britt v. State, in which the Supreme Court of North Carolina, roughly six years ago in 2009, decided in favor of a convicted felon who sought to have his rights restored.

About five years before Britt v. State, North Carolina lawmakers delivered a blow to the right to own or possess a firearm. Convicted felons (subject to the facts and circumstances of their particular offense) have long known that their right to own or possess a firearm will vanish for at least a certain number of years after the offense took place. In 2004, lawmakers pushed that idea further by amending the Felony Firearms Act to revoke the right permanently.

But, as it turns out, the blow wasn’t fatal.

In the Britt case, the state’s highest court ruled that the legislature’s permanent ban was unconstitutional as applied in the plaintiff’s case. As the Court wrote, “[I]t is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.”

The Five-Factor Test

The Britt ruling paved the way for the five-factor test we know today. In the 2009 case of State v. Whitaker, the North Carolina Court of Appeals considered the Supreme Court’s Britt analysis and created the five-factor test. Then in 2010, North Carolina lawmakers once again amended the Felony Firearms Act, incorporating the five factors.

These five factors are:

  1. The type of felony offense and whether it was violent or nonviolent in nature.
  2. How long ago the felony offense took place.
  3. The petitioner’s history of “law-abiding” behavior since his or her conviction and sentence.
  4. The petitioner’s history with firearms in regard to responsible and lawful use.
  5. Whether the petitioner proactively complied with the 2004 amendment to the Felony Firearms Act, which required convicted felons to give up their firearms.

The law requires all five factors to be satisfied, but under the Britt standard of deciding cases based on their unique facts and circumstances (looking at whether the petitioner actually poses a threat to public safety), it is possible to restore your rights even if one or more factors are not satisfied.

In Part III of this series, we will discuss the constitutional argument toward restoring your right to own or possess a firearm, which goes beyond the five-factor test.

Call Marcilliat & Mills PLLC at 877-204-5365 Today to Discuss Filing a Petition

Under North Carolina’s firearms rights restoration process, you have a chance at restoring your right to keep and bear arms. If you appear eligible, we can help you file a petition with the court.