Weapons: Handgun Permits; The Felony Firearm Act

Subject:

Weapons: Handgun Permits G.S. 14-404; G.S. 14-409.3; The Felony Firearm Act, G.S. 14-415.1

Requested By:

Sheriff’s Department New Hanover County Joseph McQueen, Jr., Sheriff

Questions:

(1) Whether a person who has been convicted of a felony is eligible to obtain a handgun permit under G.S. 14-404 or G.S. 14-409.3?

(2)Whether a person who has been convicted of a felony involving the use of a firearm is eligible to obtain a handgun permit under G.S. 14-404; G.S. 14-409.3 and G.S. 14-415.1?

Conclusion:

(1)

No, or not until he has obtained relief from the disability imposed by Federal law, form the Secretary of the U.S. Treasury and satisfies the Sheriff or Clerk of the Superior Court that he meets all the requirements of G.S. 14-404; G.S. 14-409.3 and G.S. 14-415.1.

(2)

No, or not until he has obtained a Presidential or Gubernatorial pardon, whichever is applicable, which expressly authorizes the possession of firearms and satisfies the Sheriff or Clerk of Court that he meets all the requirements of G.S. 14-404 or G.S. 14-409.3 and G.S. 14

415.1.

The relevant part of cited statutes read:

"G.S. 14-404 Issuance or refusal of permit; appeal from refusal; grounds for refusal; sheriff’s fee.

Upon application, the sheriff shall issue such license or permit to a resident of that county unless the purpose of the permit is for collecting, in which case a sheriff can issue a permit to a nonresident when the sheriff shall have fully satisfied himself by affidavits, oral evidence, or otherwise to the good moral character of the applicant therefor, and that such person, firm, or corporation desires the possession of the weapon mentioned for (i) the protection of the home, business, or property; (ii) target shooting, (iii) collecting, or (iv) hunting. If said sheriff shall not be so fully satisfied, he may, for good cause shown, decline to issue said license or permit and shall provide to said applicant within seven days of such refusal a written statement of the (reasons) for such refusal. An appeal from such refusal shall lie by way of petition to the chief judge of the district court for the district in which the application was filed. The determination by the court, on appeal, shall be upon the facts, the law, and the reasonableness of the sheriff’s refusal, and shall be final. A permit may not be issued to the following persons: (i) one who is under an indictment or information for or has been convicted in any state, or in any court of the United States, of a felony (other than an offense pertaining to antitrust violations, unfair trade practices, or restraints of trade), except that if a person has been convicted and later pardoned, he may obtain a permit; (ii) one who is a fugitive from justice; (iii) one who is an unlawful user of or addicted to marijuana or any depressant, stimulant, or narcotic drug (as defined in 21 U.S.C. § 802)." — (G.S. 14-409.3 contains identical language but made applicable to counties where Clerks of Superior Court issue permits).

"G.S. 14-415.1 Possession of firearms, etc. by felon prohibited.

(a)

It shall be unlawful for any person who has been convicted of any crime set out in subsection

(b)

of this section to purchase, own, possess, or have in his custody, care, or control any handgun or other firearm with a barrel length of less than 26 inches, or any weapon of mass death and destruction as defined in G.S. 14-288.8(c), within five years from the date of such conviction, or the unconditional discharge from a correctional institute, or termination of a suspended sentence, probation, or parole upon such conviction, whichever is later." [Ch. 13, Citizenship Restored.]

NOTE: The underlined portion of G.S. 14.415.1 set out above is superseded by 18 U.S.C. § 1201; 18 U.S.C. § 1203(2) and 18 U.S.C. § 925(c) hereinafter set out in relevant part.

18 U.S.C. App. § 1201 in relevant part reads:

"(a) Any person who –

(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, — and who received, possesses, or transports in commerce or affecting commerce after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. –

18 U.S.C. App. § 1203(2) provides in part that § 1202’s proscription shall not apply to "any person who has been pardoned by the President of the United States or the Chief Executive of a State and has expressly been authorized by the President or such Chief Executive, as the case may be, to receive, possess, or transport in commerce a firearm.

18 U.S.C. § 925(c) states:

"(c) A person who has been convicted of a crime punishable by imprisonment for a term exceeding one year (other than a crime involving the use of a firearm or other weapon or a violation of this chapter or of the National Firearms Act) may make application to the Secretary [of the Treasury] for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, or possession of firearms and incurred by reason of such conviction, and the Secretary [of the Treasury] may grant such relief if it is established to his satisfaction that the circumstances regarding the conviction, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. — Whenever the Secretary [of the Treasury] grants relief to any person pursuant to this section he shall promptly publish in the Federal Register notice of such action, together with the reasons therefor."

NOTE: For application of 18 U.S.C. App. § 1202, see United States of America vs. Glenson Hardin, Jr., 696 F.2d 1078 (4th Cir. 1982).

For a person who has been convicted of a felony which felony involved the use of firearms, the only way to meet the requirements would be by way of a Presidential or Gubernatorial pardon which expressly authorizes the possession of firearms.

Any prior opinion of this office relating to the right of a felon to bear arms which is in conflict herewith is specifically withdrawn.

RUFUS L. EDMISTEN Attorney General

William W. Melvin Senior Deputy Attorney General