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Constitution of North Carolina

ARTICLE I Declaration of Rights

Sec. 30. Militia and the right to bear arms.

A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.

History Note. - The provisions of this section are similar to those of Art. I, § 24, Const. 1868, as amended by the Convention of 1875.

Legal Periodicals. - For comment, "A Fighting Chance for Outlaws: Strict Scrutiny of North Carolina's Felony Firearms Act," see 32 Campbell L. Rev. 333 (2010).

For article, "Do the Mentally Ill Have a Right to Bear Arms?," see 48 Wake Forest L. Rev. 1 (2013).

For note, "The Fourth is Strong in This One: A Comparative Analysis of the Fourth Circuit's Approach to Judicial Scrutiny in Second Amendment Cases," see 9 Elon L. Rev. 225 (2017).

CASE NOTES

Editor's Note. - Most of the cases cited below were decided under former Art. I, § 24, Const. 1868, as amended by the Convention of 1875.

This section guarantees the right to bear arms to the people in a collective sense, similar to the concept of a militia, and also to individuals. State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968).

Purpose. - The purpose of the constitutional guaranty of the right to bear arms is to secure a well-regulated militia. State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968).

The purpose of the declaration that a well-regulated militia is necessary to the security of a free state was to insure the existence of a State militia as an alternative to a standing army. Such armies were regarded as peculiarly obnoxious in any free government. State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968).

"Militia". - Militia is defined as the body of citizens in a state, enrolled for discipline as a military force, but not engaged in actual service except in emergencies, as distinguished from regular troops or a standing army. State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968).

Law or Construction Destroying Right to Bear Arms Would Be Unconstitutional. - Any statute, or construction of a common-law rule, which would amount to a destruction of the right to bear arms would be unconstitutional. State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968).

Individual Has Right to Possess Weapon. - The individual has the right, subject to reasonable regulation by the legislature, to possess a weapon in order to exercise his common-law right of self-defense. State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968).

Convicted Felons. - G.S. § 14-451.1 did not violate the convicted felon's due process or equal protection rights because plaintiff's right to possess firearms was not a vested right and the statutory scheme treated all felons the same and served to protect the health, welfare, and safety of the citizens of North Carolina. Britt v. State, 185 N.C. App. 610, 649 S.E.2d 402 (2007).

Application of G.S. § 14-415.1 to a gun owner violated N.C. Const., Art. I, § 30 because pursuant to G.S. § 14-415.1, the State unreasonably divested the owner of his right to own a firearm, no evidence was presented indicating that the owner was dangerous or had ever misused firearms, and the owner affirmatively demonstrated that he was not among the class of citizens who posed a threat to public peace and safety; as applied to the owner, G.S. § 14-451.1 was an unreasonable regulation, not fairly related to the preservation of public peace and safety, and it was unreasonable to assert that a nonviolent citizen who had responsibly, safely, and legally owned and used firearms for seventeen years was in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety. Britt v. State, 363 N.C. 546, 681 S.E.2d 320 (2009).

In a case in which defendant appealed his convictions for possession of a firearm by a convicted felon, in violation of G.S. § 14-415.1, defendant argued unsuccessfully that the Heller decision required the court to examine the restriction upon his right to keep and bear arms under strict scrutiny and that under the strict scrutiny analysis the 2004 amendment to G.S. § 14-415.1 was unconstitutional. Inter alia, the strict scrutiny test was not adopted in the Heller decision, and the North Carolina Supreme Court declined to adopt the strict scrutiny test in the Britt decision, which involved G.S. § 14-415.1. State v. Whitaker, 201 N.C. App. 190, 689 S.E.2d 395 (2009), review denied 363 N.C. 811, 692 S.E.2d 877 (2010), cert. denied 2010 U.S. LEXIS 4774, 177 L. Ed. 2d 337 (U.S. 2010).

In a case in which defendant appealed his convictions for possession of a firearm by a convicted felon, in violation of G.S. § 14-415.1, defendant's facial challenge to the constitutionality of G.S. § 14-415.1 failed since he had not established that no set of circumstances existed under which G.S. § 14-415.1 would be valid. State v. Whitaker, 201 N.C. App. 190, 689 S.E.2d 395 (2009), review denied 363 N.C. 811, 692 S.E.2d 877 (2010), cert. denied 2010 U.S. LEXIS 4774, 177 L. Ed. 2d 337 (U.S. 2010).

In a case in which defendant appealed his convictions for possession of a firearm by a convicted felon, in violation of G.S. § 14-415.1, defendant argued unsuccessfully that G.S. § 14-415.1 was unconstitutional as applied to him. Under the five Britt factors, G.S. § 14-415.1 was not unconstitutional as applied to defendant; it was not unreasonable to prohibit a convicted felon who had violated the law on numerous occasions, even as recently as last year, and who ignored two valid warnings of his unlawful conduct, from possessing firearms in order to preserve public peace and safety. State v. Whitaker, 201 N.C. App. 190, 689 S.E.2d 395 (2009), review denied 363 N.C. 811, 692 S.E.2d 877 (2010), cert. denied 2010 U.S. LEXIS 4774, 177 L. Ed. 2d 337 (U.S. 2010).

Dismissal of a charge of possession of a firearm by felon under G.S. § 14-415.1 was error because no evidence was presented and defendant did not file affidavit in support of his motion to dismiss; without a "definite and certain" stipulation of facts pertinent to the Britt factors, and without any other evidence, the trial court had no basis for its findings. State v. Buddington, 210 N.C. App. 252, 707 S.E.2d 655 (2011).

Felony Firearms Act, G.S. § 14-415.1 et seq., was unconstitutional as applied to a gainfully employed gun owner who had two prior felonies, both decades old and neither of which involved violent conduct, and who had, after having his firearms-related rights restored, used his weapons in a safe and lawful manner for 17 years. Baysden v. State, 217 N.C. App. 20, 718 S.E.2d 699 (2011), dismissed and review granted 720 S.E.2d 390, 2012 N.C. LEXIS 16 (N.C. 2012).

North Carolina Felony Firearms Act, G.S. § 14-415.1 et seq., does not violate procedural due process rights under the Constitution of the State of North Carolina or the Constitution of the United States. Johnston v. State, 224 N.C. App. 282, 735 S.E.2d 859 (2012), aff'd 367 N.C. 164, 749 S.E.2d 278, 2013 N.C. LEXIS 1156 (2013).

Trial court erred in dismissing the charges against defendant on the basis that the Felony Firearms Act was unconstitutional as applied to him, as it was not unreasonable to prohibit defendant, who had two felony convictions for selling a controlled substance and one for attempted assault with a deadly weapon, from possessing firearms in order to preserve public peace and safety. State v. Price, 233 N.C. App. 386, 757 S.E.2d 309 (2014).

In a case in which defendant appealed the defendant's conviction of possession of a firearm by a felon, the appellate court concluded that the State established that defendant's "as applied" challenge to G.S. § 14-415.1 under N.C. Const. art. I, § 30, failed as a matter of law. The fact that defendant's right to possess a firearm at his home may have been restored under Texas law did not mean that right was restored under North Carolina law. State v. Bonetsky, - N.C. App. - , 784 S.E.2d 637 (2016).

But Right Is Subject to Regulation. - For case stating that the last clause of this provision constitutes an exception to the first and indicates the extent to which the right of the people to bear arms can be restricted, that is, that the legislature can prohibit the carrying of concealed weapons, but no further, see State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921).

The right of individuals to bear arms is not absolute, but is subject to regulation. State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968).

The right to bear arms, which is protected and safeguarded by the federal and State Constitutions, is subject to the authority of the General Assembly, in the exercise of the police power, to regulate, but the regulation must be reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety. State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968).

Right to Bear Arms and Carrying of Concealed Weapons Distinguished. - This provision of the Constitution plainly observes the distinction between the "right to keep and bear arms" and "the practice of carrying concealed weapons." The first, it is declared, shall not be infringed, while the latter may be prohibited. Even without this constitutional provision, the legislature may by law regulate the right to bear arms in a manner conducive to the public peace. State v. Speller, 86 N.C. 697 (1882), approved in State v. Reams, 121 N.C. 556, 27 S.E. 1004 (1897).

This section does not license self-appointed vigilantes, extremist groups, hoodlums, or any persons whomsoever to arm themselves for the purpose of intimidating the people and then, so long as they flaunt those weapons, to roam with impunity to the terror of the people. State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968).

Common-Law Offense Not Abrogated. - The constitutional guaranty of the right to bear arms does not abrogate the common-law offense of going armed with unusual weapons to the terror of the people. State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968).

Cited in State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971); State v. Huckelba, 240 N.C. App. 544, 771 S.E.2d 809 (2015), rev'd 780 S.E.2d 750, 2015 N.C. LEXIS 1254 (2015); State v. Miller, - N.C. App. - , 783 S.E.2d 512 (2016).

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