Should felons be allowed to own guns? Yes, advocates tell NC Supreme Court
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For generations, felons in North Carolina and other states have been banned from owning guns. But the North Carolina Supreme Court could get rid of that rule — or at least pare it down — as soon as this year after it considers a case that has led to unity among strange political bedfellows.
The American Civil Liberties Union, which is often associated with liberal political causes, is teaming up with conservative Second Amendment advocates to argue for the ban to be overturned.
On the other side, law enforcement advocacy groups — including at least one with a board comprised mostly of Republican elected officials — are teaming up with Democratic Gov. Josh Stein to urge the court to keep the ban in place.
Republicans hold a 5-2 majority on the state Supreme Court. In January the court’s justices agreed to hear the case, noting that the arguments present “a substantial constitutional question” that warranted addressing. Oral arguments could be held this fall.
The case revolves around a question of whether it’s fair for the state to automatically deny all felons the right to own guns — typically for the rest of their lives, even after they do their time and rejoin society — or if it would be better to consider the factors in individual cases and let many more felons get their gun rights back.
In particular it seeks to ease the ban on people with nonviolent felony convictions, an argument the state says would create a slippery slope toward violent offenders eventually earning the same rights.
Attorney General Jeff Jackson, a Democrat, is leading the state’s case to keep the ban in place. “This is a big case for us,” he said in an interview. “And listen — we are on the side of law enforcement here. Joining us in this argument are police chiefs, sheriffs, prosecutors.”
Not everyone agrees that’s a good side to take. The ACLU teamed up with the Cato Institute, a national libertarian think tank, to file a brief with the state Supreme Court, saying the ban is unconstitutionally broad — in part because of what they describe as racially discriminatory policing.
“Black residents are more likely to be stopped by police, searched by police, charged with more severe crimes, and sentenced more harshly than white residents,” their brief argues, although they add that Black people are far from the only ones harmed by the law.
“The prevalence of gun ownership among rural North Carolinians and veterans results in the severe burden of the felon-in-possession statute falling especially hard on these groups,” the ACLU and Cato said in their brief. “And that burden is particularly harsh for North Carolinians for whom hunting is a way of life: a means to feed their families, manage wildlife, or recreate.”
In defense of the ban
Stein said in his brief that it would be unprecedented for the court to make the kind of ruling gun rights advocates are asking for in this case. It’s widely acknowledged that while the Second Amendment protects people’s rights to own guns, those rights are not unlimited, he told the Supreme Court.
“People who have demonstrated a heightened disregard for the law are more likely to misuse firearms,” Stein wrote. “That conclusion is well supported by empirical evidence. It is unsurprising, then, that most states and the federal government join North Carolina in prohibiting felons from possessing firearms.”
Joining him are advocacy groups representing prosecutors, sheriffs and police chiefs. They write that banning felons from having guns “is consistent with our country’s historical tradition of firearms regulation.”
Anticipating counter-arguments from an Originalist legal perspective, the law enforcement groups acknowledge that felon gun bans are largely a 20th century invention that don’t date back to the founding of the country. But they say that makes sense, since the ideas of what can be a felony — as well as how to punish criminals — have evolved over time.
In early U.S. history, they note, “most felonies were punishable by death or at the very least forfeiture of property, meaning there weren’t many convicted felons running around with guns.”
But the gradual expansion of what counts as a felony, which the law enforcement groups cite, is exactly why the other side says the ban needs to be re-examined.
Reconsidering the ban
Gun-rights advocacy group Grassroots NC says decades of overcriminalization have created a long list of misdeeds that can lose people their right to own a gun for questionable reasons, including financial crimes that those who wrote early felon gun bans 100-plus years ago wouldn’t have considered at the time.
Its brief cites two famous felons, TV host Martha Stewart and President Donald Trump.
Stewart spent five months in prison for her conviction in a stock-trading investigation. Trump is currently appealing his 34 felony convictions of falsifying business records to cover up hush-money payments made during his 2016 presidential campaign.
“It makes little sense to deny Martha Stewart, who has the financial means to employ armed private security for her safety, the right to personally possess a firearm,” the Grassroots NC brief says. “Even more questionable is why Donald Trump cannot possess a gun when he currently commands the most powerful military in the world.”
The group argues that while it’s sensible to keep some violent offenders banned from carrying guns, the state is violating the constitutional rights of other felons who pose no apparent risk to public safety.
“Loss of the lawful right to own or possess a firearm should be driven by the dangerousness of the individual in question rather than the fact alone of her prior felony conviction,” Grassroots NC said in its brief.
Cato and the ACLU add that the ban unjustly feeds people back into the prison system, including many who committed no underlying crime other than having a gun.
“Ironically, the most frequently sentenced felony in 2024 in North Carolina was felon-in-possession of a firearm,” they wrote. “Broad application of [the law] thus keeps people cycling in and out of the criminal justice system, rather than contributing to their communities as productive citizens.”
History of the case
Although it’s now a larger legal battle that could affect thousands of North Carolinians with criminal records, the case started with one man’s legal troubles in Asheville.
After a 2009 run-in with the law, Eric James Ducker pleaded guilty to a DWI and attempting to flee from the police. Driving while impaired is a misdemeanor, but fleeing is a felony.
The courts didn’t view him as a particularly dangerous offender, so he was given probation without having to serve time in jail. But he still lost his right to have a gun because of his record.
Ducker ignored that and continued to carry a gun anyway.
Thirteen years later, he was pulled over again while driving around with a holstered pistol on his hip. The officer arrested him for violating the law prohibiting felons from carrying firearms. A Buncombe County jury convicted Ducker in 2023. He was sentenced to spend as much as 25 months in prison.
Ducker appealed that conviction, arguing his constitutional rights were violated. His appeal is now drawing attention from Raleigh to Washington, D.C.
Ducker lost at the state Court of Appeals last year in a unanimous decision handed down by a three-judge panel made up of two Republican judges and one Democrat. The state Supreme Court, however, has given him another chance.
His argument revolves around the fact that more than a decade had elapsed between his felony conviction and when he was caught with a gun, plus the fact that his initial felony for attempted fleeing was nonviolent. The appeals court shot that argument down, writing in part that Ducker had a more recent misdemeanor conviction for violating a domestic violence protective order — and that his original felony, while nonviolent, was still cause for concern.
“Fleeing from police officers in vehicle shows disregard for the safety of others, particularly as [Ducker] pled guilty to the charge along with three aggravating factors: speeding in excess of 15 miles per hour, driving recklessly, and while his driver’s license was revoked,” the appellate judges wrote in upholding the jury’s verdict against him.
Ducker hopes the Supreme Court sees things differently, potentially as early as this fall when it is planning several weeks of oral arguments in pending cases.
He argues that the U.S. Supreme Court’s landmark “Heller” Second Amendment decision in 2008, as well as more recent U.S. Supreme Court rulings in 2022 (“Bruen”) and 2024 (“Rahimi”) lay the groundwork for the state’s highest court to rule in his favor now.
He cites the U.S. Supreme Court’s heavy reliance in those gun-rights cases on Originalist arguments, about interpreting modern laws through a historical lens.
“Felon-in-possession bans have no analog in American law prior to the 20th century,” Ducker wrote in a brief to the high court. “They are, instead, creatures of a time
