August 21, 1997
Michael P. Martin Assistant Chief Counsel Department of the Treasury Bureau of Alcohol, Tobacco, and Firearms 2600 Century Parkway, NE Atlanta, Georgia 30345-3104
Re: Advisory Opinion: Felony Firearms Act; N.C.G.S. § 14-415.1
Dear Mr. Martin:
Thank you for your letter to the North Carolina Attorney General’s Office. You request our opinion on the retroactive application of North Carolina’s Felony Firearms Act, N.C.G.S. § 14415.1, as amended in 1995. We are happy to respond.
Prior to its amendment in 1995, the North Carolina Felony Firearms Act allowed ex-felons to possess firearms after the lapse of five years from the date of their conviction or release from probation, parole or incarceration, whichever was later. The question then posed in your letter is whether a person whose firearms rights were restored under the former N.C. Felony Firearms Act could be prosecuted for a violation of current North Carolina and federal law if he were found in possession of a firearm today. For the reasons which follow we believe such a prosecution would be appropriate.
As set forth in your letter, the federal firearms law prohibits a person convicted of a crime punishable by imprisonment for a term exceeding one year from shipping, transporting, possessing, or receiving any firearm or ammunition in or affecting interstate or foreign commerce. See 18 U.S.C. § 922(g)(1). The provision defining a crime punishable "by imprisonment for a term exceeding one year" states:
What constitutes a conviction of such crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. 18 U.S.C. § 921(a)(20).
The issue is to what extent North Carolina restores the citizenship rights of ex-felons. Pursuant to
N.C.G.S. § 13-1, et. seq., a person’s citizenship rights are restored upon their release from probation, parole or incarceration. Whether this includes rights concerning firearms is determined by examining the entire state law and not simply the certificate granting the restoration of civil rights. U.S. v. McLean, 904 F.2d 216 (1990). The McLean court found North Carolina clearly intended to restore to ex-convicts their general citizenship rights but limit their firearms privileges. We find this opinion applicable to an analysis of current N.C.G.S. § 14-415.1, even though McLean was decided before the 1995 revision to § 14-415.1. We conclude that a person’s rights to purchase, own, possess or have in his custody, care or control a firearm are not automatically restored. U.S. v. McLean, 904 F.2d 216 (1990).
North Carolina’s Felony Firearms Act as amended effective December 1, 1995 prohibits any person previously convicted of a felony from purchasing, owning, possessing, or having in his custody, care, or control any handgun or certain other firearms except at his home or place of business. N.C.G.S. § 14-415.1(a)(1996). The statute specifically includes any felony conviction in North Carolina that occurred before, on, or after December 1, 1995. N.C.G.S. § 14415.1(b)(1996).
The Fourth Circuit Court of Appeals has not addressed the issue you raise. Its opinion in U.S. v. Haynes, 961 F.2d 50 (4th Cir. 1992), analyzing West Virginia law is inapplicable because the West Virginia statute at issue did not apply retroactively. In that case, the defendant’s rights were restored on January 9, 1986. In 1989, West Virginia made it a misdemeanor for a felon to possess a firearm. The defendant in this case was charged with the unlawful possession of a firearm on November 11, 1990. The court held that his prior felony conviction could not serve as a predicate offense under 18 U.S.C. § 922(g)(1) because his restoration did not include any language limiting the restoration of his firearm rights and because there was no law in West Virginia at the time of the restoration to prohibit him from possessing a firearm.
More analogous to the analysis of North Carolina law is the Seventh Circuit’s consideration of the issue in U.S. v. Melvin, 78 F.3d 327 (7th Cir.), cert. denied, 117 S. Ct. 384 (1996). In Melvin, the defendant was convicted of offenses in November 1974, November 1975 and December 1975.
He was released from prison on May 27, 1977 and his firearm rights were restored as of May 27, 1982, under Illinois law. In 1984, Illinois made it illegal for felons to possess weapons regardless of their date of conviction. In other words, the statute applied to convictions before, on, or after 1984, the date of the enactment of the current Illinois statute. The court held the defendant’s three prior convictions were predicate offenses under Illinois’ felon in possession law. The court reasoned that even though the defendant could have legally possessed firearms between May 27, 1982 (five years from prison release) and July 1, 1984 (the date of the enactment of the current Illinois statute), the Illinois law as modified did not permanently excluded his three Illinois convictions as predicate offenses for purposes of 18 U.S.C. §924 (e).
As in Melvin, even though a former felon could have possibly possessed firearms before the 1995 amendment to the North Carolina Felony Firearms Act, North Carolina would still consider an ex-felon "convicted" within the meaning of 18 U.S.C. § 921(a)(20) since his restoration of rights, when read in conjunction with current N.C.G.S. § 14-415.1, expressly prohibits the possession of firearms regardless of the date of felony conviction. Even though an ex-felon may have been able to possess firearms lawfully prior to current N.C.G.S. § 14-415.1, the North Carolina General Assembly clearly intended its application to be retroactive by its clear language that prohibiting convictions are those convictions occurring before, on, or after December 1, 1995.
In summary, it is our opinion a felon found in possession of a firearm today could be prosecuted under our Felony Firearms Act, even though he may have lawfully possessed it prior to the December 1, 1995 modification. We hope you find this opinion responsive to your letter. If you have any further questions please do not hesitate to write.
Andrew A. Vanore, Jr. Chief Deputy Attorney General
John J. Aldridge, III Assistant Attorney General Law Enforcement Liaison Section