Defendant challenges state’s arguments for NC felon gun ban

The defendant in a case challenging North Carolina’s ban on felons’ gun ownership argues in a new state Supreme Court brief that the law cannot survive recent federal court precedents.

Lower state courts have ruled against Eric James Ducker. He’s asking North Carolina’s high court to reverse those decisions.

Gov. Josh Stein filed a brief earlier this month opposing Ducker and supporting the existing law. Groups representing North Carolina district attorneys, sheriffs, police chiefs, and police executives also defend the law.

On the other side of the argument, gun-rights group Grass Roots North Carolina, the ACLU, and the libertarian Cato Institute all have sided with Ducker.

“In the interest of public safety, legislatures can construct regulatory regimes that temporarily disarm individuals who pose a demonstrated risk of firearm misuse,” Ducker’s lawyers from the Durham-based Office of the Appellate Defender wrote Thursday. “No one disputes this: Rahimi holds as much.”

The US Supreme Court decided the Second Amendment case United States v. Rahimi in 2024.

“But no matter how strenuously the State wishes to shift the terrain, that is not the question raised by this case,” Ducker’s lawyers continued. “Rather, the question is whether a legislature may use the mere existence of almost any prior felony conviction, no matter how old, non-violent, and unrelated to firearms, to effect what amounts to a total forfeiture of an individual’s core constitutional right to keep and bear arms for defense of self, business, and home.”

“The answer has nothing to do with allegedly ‘commonsense’ determinations or the existence of familiar and ‘workable’ tests, but rather whether the text and history of our constitutions permit the State to wield a tool as blunt as N.C.G.S. § 14-415.1 in service of its duty to protect public safety,” the brief added.

“As a review of the text, history, and controlling Supreme Court precedent make clear, the Second Amendment does not — particularly in a country where nearly 10% of all adults, and one in three Black men, fits within the modern category of ‘felon,’” Ducker’s lawyers wrote.

“The State correctly notes that these sorts of indiscriminate felon-in- possession bans are commonplace,” the brief continued. “And it is evident at this point the Supreme Court is aware of the issue — but not ready to opine.”

“But with the Supreme Court’s most recent gun decisions in Hemani and Wolford v. Lopez, the writing is on the wall,” Ducker’s lawyers argued.

“In arguing that the Second Amendment’s protections simply don’t apply to a healthy portion of ‘the people,’ the State untenably ignores the amendment’s text,” the brief argued. “As for its continued search for historical analogues that could support the sort of indiscriminate disarmament implemented by the statute, the State fares no better.”

“Understandably so. As the Hemani and Wolford opinions make clear, the State bears a ‘considerable’ burden in presenting relevant historical analogues justifying an infringement on the right,” Ducker’s lawyers wrote. “This includes not only identifying historically relevant analogues that were ‘widespread, well-known, and widely accepted,’ at the time of the Constitution’s enactment, but also demonstrating that they are ‘relevantly similar’ to the modern law the State wishes to apply here.”

“No matter how hard the State squints, it cannot establish the broad principle it needs: that our Nation at the Founding would have accepted a categorical lifetime disarmament of nearly one-tenth of the adult population as concordant with the preexisting natural right to keep and bear arms recognized by the Second Amendment,” Ducker’s lawyers argued. “The inconvenient reality that ‘not one piece of historical evidence suggests that . . . the Founders authorized Congress to disarm anyone it deemed dangerous’ is fatal to the State’s desire to enforce a statute that represents little more.”

Stein’s July 13 brief defended the felon gun ban spelled out in NC Gen. Stat. § 14-415.1.

“Here, Ducker asks this Court to vacate not only his own conviction under the Felony Firearms Act but to invalidate the Act as applied to any convicted felon,” the governor’s lawyers added. “North Carolina’s Felony Firearms Act is an important tool that balances the rights of law-abiding citizens’ right to bear arms and the State’s interest in public safety: it keeps dangerous weapons away from individuals who have proven more likely than law- abiding individuals to misuse firearms.”

Lawyers in state Attorney General Jeff Jackson’s Justice Department, led by Solicitor General Nicholas Brod, defended the law in a July 6 brief.

“The Felony Firearms Act … reflects the commonsense view that those convicted of serious and often violent crimes are more likely than law-abiding individuals to misuse firearms, endangering law enforcement and the public,” state lawyers wrote. “To address that acute safety risk, the Act bars felons from possessing guns. It thus seeks to deter gun violence while providing a critical tool for punishing recidivist offenders.”

“Defendant Eric Ducker challenges the Act on its face and as applied to him, under both the state and federal constitutions,” the brief continued. “Ducker’s frontline arguments are extreme. He asks this Court to overturn more than a century of precedent interpreting the state constitutional right to keep and bear arms under Article I, Section 30. And he asks this Court to become the first appellate court in the nation to facially invalidate a felon-in-possession law under the Second Amendment.”

“Accepting those arguments could open the door for even the State’s most dangerous felons — individuals convicted of crimes like murder, rape, or armed robbery — to repossess firearms, profoundly disrupting efforts to address the scourge of gun violence and related offenses,” state government lawyers wrote. “The Court should reject Ducker’s destabilizing request to upend settled firearms law across the State.”

Grass Roots North Carolina criticized the felon firearm possession law in a March 30 brief.

“Overcriminalization and overregulation have made the law endlessly more complex than it was at our Nation’s founding,” wrote lawyer Tyler Brooks while representing GRNC. “Many commentators, including a sitting U.S. Supreme Court Justice, have remarked that it is now virtually impossible for an individual to be sure she has not run afoul of some law at some time.”

“With this complexity has come a radical change in the understanding of what constitutes a felony offense,” Brooks added. “GRNC argues that the courts below erred in their application of relevant Second Amendment law when considering whether Mr. Ducker could be convicted under North Carolina’s felon in possession of a firearm statute, N.C. Gen. Stat. § 14-415.1.”

“Furthermore, GRNC argues that existing precedent on interpretation of the North Carolina Constitution’s right to keep and bear arms fails to adhere to the originalist jurisprudence more recently articulated by this Court,” the brief continued. “Therefore, it urges this Court to hold that the right to keep and bear arms guaranteed by the State Constitution is to be given heightened scrutiny and interpreted in light of the original public meaning of its language.”

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 a friend-of-the-court brief supported by the libertarian Cato Institute. “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.

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.

“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 Toby Hampson in 2025.

“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.

“Defendant challenges state’s arguments for NC felon gun ban” was originally published on www.carolinajournal.com.