Johnston v. State (Lawyers Weekly No. 12-07-1225, 59 pp.) (Sanford L. Steelman Jr., J.) (Cheri Beasley, J., concurring in part & dissenting in part) Appealed from Caswell County Superior Court (Abraham Penn Jones, J.) N.C. App.
Holding: Assuming, without deciding, that the Second Amendment protects a convicted felon’s right to bear arms, we will apply the intermediate level of scrutiny to determine whether the N.C. Firearms Act violates plaintiff’s substantive due process rights. The state must have an opportunity to present evidence and argument to show a reasonable fit and substantial relationship between its goal – public safety — and the Act.
We reverse and remand the trial court’s conclusion that the Act, as applied to plaintiff, violates the substantive due process rights guaranteed by the U.S. and N.C. Constitutions. We reverse the trial court’s conclusion that the Act, on its face, violated the procedural due process rights guaranteed by the U.S. and N.C. Constitutions.
The trial court found that plaintiff was convicted of felonious receipt of stolen property and conspiracy to commit grand larceny on Jan. 27, 1978. The trial court also found that plaintiff was convicted of fraudulent setting fire, conspiracy, false statement to procure, and conspiracy to receive, receiving, conspiracy to commit larceny and accessory before the fact in violation of G.S. §§ 14-65, 14-214, 14-71, and 14-5 on June 11, 1981.
We cannot ascertain, based on the record before us, whether plaintiff’s convictions involved violence or the threat of violence. We remand for the trial court to take evidence on this issue.
Almost 31 years have passed since plaintiff was last convicted of a felony. Almost 16 years have passed since he was convicted of a misdemeanor hunting violation.
We cannot determine from the record before us whether plaintiff is among the class of citizens who pose a threat to public peace and safety. We remand to the trial court with instructions to take additional evidence regarding the factors set out in State v. Whitaker, 201 N.C. App. 190, 689 S.E.2d 395 (2009), as to plaintiff’s felony convictions and post-conviction history.
With regard to plaintiff’s procedural due process challenge, we conclude that the state’s interest in ensuring the public safety outweighs the private interest involved (if any) and any risk of erroneously taking away those interests. The Act does not deprive plaintiff of liberty without due process of law under the U.S. or N.C. Constitution.
Reversed and remanded.
(Beasley, J.) I dissent only as to the majority’s disposition of plaintiff’s substantive due process claims under the N.C. Constitution. First, plaintiff here has 10 felony convictions. Second, the very nature of fire and of the act of setting fire to a home, for whatever purpose, is violent per se. Under Baysden v. State, 718 S.E.2d 699 (2011), we need not remand to have the trial court make a finding that defendant was convicted of a crime of violence.