State v. Whitaker

ELMORE, Judge,

concurring in part and dissenting in part.

For the reasons stated below, I respectfully dissent from part IV of the majority opinion. I concur by separate opinion in part III and concur fully in part V.

As the majority notes, I dissented from the majority opinion in Britt I7 Because the Supreme Court so clearly declined to base its decision reversing this Court’s holding in Britt I on my dissent or any of the legal issues, raised therein, I renew those same arguments here.

Right to Bear Arms

I agree with the majority’s analysis of Heller and its inapplicability to the case at bar. However, I disagree with what standard of review should be applied. The majority argues that we should apply rational basis review to defendant’s constitutional challenge to N.C. Gen. Stat. § 14-415.1. As applied in Rhyne v. K-Mart Corp., and as recited by the majority, to survive rational basis review, a challenged statute must “bear some rational relationship to a conceivable legitimate governmental interest.” Rhyne v. K-Mart Corp., 358 N.C. 160, 180, 594 S.E.2d 1, 15 (2004) (quotations, citation, and alteration omitted). The Supreme Court in Britt II cleárly stated that “any regulation of the right to bear arms .. . must be at least reasonable and not pro*210hibitive, and must bear a fair relation to the preservation of the public peace and safety.” Britt v. North Carolina,-N.C.-,-, 681 S.E.2d 320, 322 (2009) (quotations and citation omitted). In my dissent from Britt I, I asserted that this was the proper standard of review, not rational basis as applied by the Britt I majority. Britt v. North Carolina, 185 N.C. App. 610, 621, 649 S.E.2d 402, 410 (2007) (Elmore, J., dissenting) (“Despite the majority’s attempted reliance on Johnson for support of a rational relationship test, however, I believe that the proper standard, as articulated in Johnson, requires that the regulation must be reasonable and be related to the achievement of preserving public peace and safety. Rather than simply requiring that the statute be rationally related to a legitimate government purpose, I therefore would require that the regulation also be reasonable.”) (quotations and citations omitted). The standard articulated by the Supreme Court in Britt II is more stringent than rational basis, although certainly less stringent than intermediate or strict scrutiny. Because the majority here continues to follow the majority opinion in Britt I, which I believe to have been wrongly decided, I renew my previous dissent from Britt I.

However, I agree with the conclusion reached by the majority in its analysis of defendant’s as applied challenge. The majority interprets Britt II as having established a factors test for determining whether § 14-415.1 is a reasonable regulation. The factors articulated by the majority follow logically from the Supreme Court’s analysis in Britt II, the pivotal question that application of those factors seeks to answer is whether the statute, as applied to defendant, is “an unreasonable regulation, not fairly related to the preservation of public peace and safety.” Britt II, — N.C. at —, 681 S.E.2d at 323.8 For the reasons stated in the majority, I would also hold that § 14-415.1 is not unconstitutional as applied to defendant.

Ex Post Facto and Bill of Attainder

As when I dissented in Britt I, I believe that § 14-415.1 violates the prohibition ágainst ex post facto laws. The 2004 amendments to the statute renders this Court’s analysis in Johnson easily distin*211guishable from both the case at bar and Britt. To that end, I repeat the arguments I put forth in my earlier dissent:

In Johnson . . . we held that the 1995 statute was constitutional. At that time, it was clear to this Court that the intent of [the] legislature was to regulate the possession of dangerous weapons. Likewise, we held “that the law [was] not so punitive in effect that it should be considered punitive rather than regulatory.” [Johnson, 169 N.C. App. at 308, 610 S.E.2d at 744.] In so holding, this Court relied on the following facts: “[The law] continuefd] to exempt the possession of firearms within one’s home or lawful place of business. The prohibition remained] limited to weapons that, because of their concealability, pose a unique risk to public safety.” Id. (quoting [United States v. Farrow, 364 F.3d 551, 555 (4th Cir. 2004)]) (citations, quotations, and alterations omitted).
Applying the same analysis to the statute as amended, I would reach a different result. The amended statute does not exempt the possession of firearms within one’s home or business. Furthermore, rather than limiting the proscription “to weapons that, because of their concealability, pose a unique risk to public safety,” the legislature broadened the ban to essentially all weapons. Id. (citations and quotations omitted). The result is that the statute is no longer “narrowly tailored to regulate only the sorts of firearm possession by felons that, because of the concealability, power, or location of the firearm, are most likely to endanger the general public,” as it was when the Farrow court reached its decision. Farrow, 364 F.3d at 555 (citation and quotations omitted). The exceptional broadness of the statute serves to undermine the legislature’s stated intent of regulation and serves instead as an unconstitutional punishment.
I would also hold that the application of the statute to [defendant] violated [defendant’s]] due process rights. I recognize that “the right of individuals to bear arms is not absolute, but is subject to regulation.” Johnson, 169 N.C. App. at 311, 610 S.E.2d at 746 (quoting State v. Dawson, 272 N.C. 535, 546, 159 S.E.2d 1, 9 (1968)). . . . The major differences between the 1995 and current versions of the statute lead me to conclude that the statute in its current form is no longer a reasonable regulation. Instead, I would hold that the current statute operates as an outright ban, completely divesting [defendant] of his right to bear arms without *212due process of law. Cf. id. (holding that the Johnson defendant was not “completely divested of his right to bear arms as [the then current] N.C. Gen. Stat. § 14-415.1 allow[ed] him to possess a firearm at his home or place of business.”).
In enacting the 2004 amendment, the legislature simply overreached. Thereafter, the statute operated as a punishment, rather than a regulation.

Britt I, 185 N.C. App. at 620-21, 649 S.E.2d at 409-10 (Elmore, J., dissenting) (footnotes omitted).

Because I believe that § 14-415.1 operates as a punishment, rather than as a regulation, I would also find' the statute to be an unconstitutional bill of attainder.

. For ease of reference, I refer to the Court of Appeals 2007 Britt opinion as “Britt I' and the Supreme Court’s 2009 Britt opinion as “Britt II.”

. With respect to the majority’s concern that Britt II has enabled or even required appellate courts to engage in fact finding, I do not believe this to be an issue in this case or other criminal cases. Mr. Britt filed a civil suit against the State, and the parties then moved for summary judgment. The trial court granted the State’s motion for summary judgment, resulting in an order.. Here, we are dealing with a criminal defendant. The relevant facts are uncontroverted and were tried before a jury. We merely recite facts as represented during the trial phase, just as we would in any other criminal case.