ACLU, Cato join forces to support defendant’s 2A case at top NC court

The ACLU of North Carolina and the libertarian Cato Institute are working together to support a challenge of North Carolina’s law banning felons from possessing guns.

The two groups filed a joint brief Friday at the North Carolina Supreme Court in the case State v. Drucker.

Defendant Eric James Ducker is attacking the current state law as unconstitutional under both the Second Amendment to the US Constitution and Article I, § 30 of the state constitution. A unanimous North Carolina Court of Appeals panel ruled against him in May 2025.

“North Carolinians value their constitutional rights to keep and bear arms,” ACLU lawyers wrote in the amicus, or friend-of-the-court, brief. “An estimated 40 percent of North Carolinians keep guns in their homes. The rights to keep and bear arms, and to hunt, are enshrined in our state constitution.”

“Yet N.C. Gen. Stat. § 14-415.1, which categorically disarms people convicted of felonies — no matter how minor, non-violent, or old the conviction — imposes severe constraints and unequal burdens on too many North Carolinians’ exercise of their constitutional rights,” the court filing continued.

The brief reminded North Carolina Supreme Court justices about two recent decisions from the nation’s highest court.

“Just under four years ago, the U.S. Supreme Court transformed how courts review the constitutionality of government restrictions on firearm possession,” ACLU lawyers wrote. “In N.Y. State Rifle & Pistol Ass’n v. Bruen, the Court held that a government seeking to restrict an individual’s right to keep and bear firearms bears the burden to show that the restriction is consistent with the Second Amendment’s text and history. Two years later, in United States v. Rahimi, the Supreme Court affirmed the power of government to bar dangerous persons from accessing firearms, but it also made clear that determination of dangerousness — and the permissible scope of such restrictions — is not subject to generalizations and should be grounded in the facts of each case.”

The Bruen and Rahimi precedents should impact Ducker’s case, according to the brief.

“These precedents require trial courts to evaluate, on a case-by-case basis, whether and to what extent individuals like Eric Ducker can be barred from firearm possession based on a prior felony conviction,” ACLU lawyers argued. “The court of appeals thus erred when it determined that the Second Amendment allows N.C. Gen. Stat. § 14-415.1(a) to be applied to bar all North Carolinians previously convicted of a felony from purchasing, owning, possessing, or having ‘in their custody, care, or control any firearm,’ without regard to whether the predicate felony was violent, the individual’s overall history of violence, and the time elapsed since conviction.”

“Because of its sweeping scope and general effect of imposing a lifetime ban on gun possession, § 14-415.1 may violate the Second Amendment as applied to certain criminal defendants,” the brief argued. “And because the protections of Article I, Section 30 of North Carolina’s Constitution at least match those afforded by the Second Amendment, certain applications of § 14-415.1 also violate our State Constitution. Careful as-applied scrutiny in § 14-415.1 cases is critical to mitigate the harsh and unequal impact of the law on rural and Black North Carolinians.”

The ACLU and CATO urged the North Carolina Supreme Court to send the case back to a trial judge to determine whether Ducker’s conviction violated his federal and state constitutional rights.

A Buncombe County jury found Ducker guilty in August 2023 of possession of a firearm by a felon. He had been convicted in 2009 of a felony charge of attempted fleeing to elude arrest. He also had been convicted in 2018 of misdemeanor violation of a domestic violence protective order.

Ducker challenged the state law against gun possession by a felon — NC Gen. Stat. § 14-415.1 — as unconstitutional under both the Second Amendment to the US Constitution and Article I, § 30 of the state constitution.

“Under the North Carolina Constitution, it is within the Legislature’s power to regulate the right to bear arms so long as the regulation is ‘at least reasonable and not prohibitive, and [bears] a fair relation to the preservation of the public peace and safety,’” wrote Appeals Court Judge Tobias Hampson last spring.

“We have in the past upheld Section 14-415.1 and rejected the argument it violates either State or Federal Constitutional guarantees of the right to bear arms,” Hampson wrote, citing 2009 and 2017 decisions. “Defendant argues recent United States Supreme Court decisions require we revisit this analysis.”

Hampson acknowledged that the US Supreme Court’s 2022 decision in New York Pistol and Rifle Association v. Bruen changed the way courts analyze gun laws.

“Thus, under Bruen, courts apply a new two-part test to determine the constitutionality of firearms regulations,” he wrote. The government must prove that its regulation “is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

“This Court has examined and upheld the constitutionality of Section 14-415.1 against facial challenge following Bruen and determined its provisions fall within this historical tradition of ‘disarming individuals who pose a threat to the safety of others,’” Hampson wrote. He cited a 2025 decision in State v. Nanes.

“[W]e held Section 14-415.1 fell within the historical tradition of disarming individuals who pose a clear threat of physical violence to another, in particular because the statute includes a provision by which certain nonviolent felons may petition to have their rights restored,” Hampson added.

“We note as well that our decision in Nanes is consistent with the emerging post-Bruen consensus among federal courts that felon-in-possession statutes do not facially violate the Second Amendment,” the Appeals Court opinion continued.

Ducker raised both “facial” and “as-applied” constitutional challenges against the law. The facial challenge argued that the law is unconstitutional in all circumstances. The “as-applied” challenge argued that the law failed in Ducker’s specific circumstances.

“[W]e continue to hold Section 14-415.1 is facially constitutional under both the United States and the North Carolina Constitutions,” Hampson wrote.

The as-applied challenge was based on Ducker’s argument that “Section 14-415.1 is unconstitutional as applied to him because his predicate felony, Attempted Fleeing to Elude Arrest, was nonviolent in nature,” Hampson wrote. Ducker attempted to distinguish himself from the defendant in the Nanes case, who had a “demonstrated history of violence against others.”

“However, we need not perform this felony-by-felony analysis to determine the constitutionality of Section 14-415.1 as applied to each individual defendant who challenges it,” Hampson explained. “Prior to the Supreme Court’s decision in Bruen, we held as-applied challenges to Section 14-415.1 to be universally unavailing because convicted felons fall outside of the protections of the Second Amendment.”

Hampson cited recent decisions from the 4th US Circuit Court of Appeals and the nation’s highest court. “We note the United States Supreme Court in its recent jurisprudence on the matter has made it clear that prohibitions on firearm possession by felons are presumptively lawful.”

“Although Bruen rejects means-end scrutiny to determine what regulations on protected conduct are acceptable, it does not affect our understanding of the types of conduct the Second Amendment protects,” Hampson wrote. “As the Supreme Court has repeatedly, in Bruen and other decisions, defined the right to bear arms as one afforded to ‘law-abiding citizens,’ nothing in Bruen upsets prior determinations that the possession of firearms by felons falls outside of its protections.”

The Appeals Court rejected Ducker’s state constitutional arguments. “Section 14-415.1 is a reasonable regulation which is ‘fairly related to the preservation of public peace and safety’ as applied to Defendant,” Hampson wrote. “It is not unreasonable to disarm an individual who was convicted of a felony, subsequently violated a domestic violence protective order, and chose to continue to carry a firearm in violation of the law.”

Judges Donna Stroud and John Tyson joined Hampson’s opinion.

“ACLU, Cato join forces to support defendant’s 2A case at top NC court” was originally published on www.carolinajournal.com.