{ "id": 4173172, "name": "STATE OF NORTH CAROLINA v. DOUGLAS DWAYNE WHITAKER, Defendant", "name_abbreviation": "State v. Whitaker", "decision_date": "2009-12-08", "docket_number": "No. COA08-1406", "first_page": "190", "last_page": "212", "citations": [ { "type": "official", "cite": "201 N.C. App. 190" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "670 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642451, 12642452, 12642453 ], "weight": 2, "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/670/0907-01", "/se2d/670/0907-02", "/se2d/670/0907-03" ] }, { "cite": "663 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641512 ], "weight": 9, "year": 2008, "pin_cites": [ { "page": "344" }, { "page": "346" }, { "page": "348" }, { "page": "348" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0340-01" ] }, { "cite": "672 S.E.2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642741 ], "year": 2009, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0043-01" ] }, { "cite": "619 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634043 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/619/0855-01" ] }, { "cite": "649 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639188 ], "weight": 11, "year": 2007, "pin_cites": [ { "page": "405" }, { "page": "405-08" }, { "page": "409-10", "parenthetical": "Elmore, J., dissenting" }, { "page": "410", "parenthetical": "Elmore, J., dissenting" }, { "page": "406" }, { "page": "405-06", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0402-01" ] }, { "cite": "659 S.E.2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640822 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/659/0741-01" ] }, { "cite": "362 N.C. 238", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640900, 12640906, 12640907, 12640886, 12640822, 12640888, 12640889, 12640890 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/660/0053-01", "/se2d/660/0541-01", "/se2d/660/0541-02", "/se2d/660/0050-01", "/se2d/659/0741-01", "/se2d/660/0050-03", "/se2d/660/0051-01", "/se2d/660/0051-02" ] }, { "cite": "650 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639308 ], "year": 2007, "pin_cites": [ { "page": "4", "parenthetical": "citations, quotation marks, and ellipses omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0001-01" ] }, { "cite": "2009 WL 2231658", "category": "reporters:specialty_west", "reporter": "WL", "opinion_index": 0 }, { "cite": "195 P.3d 556", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2008, "pin_cites": [ { "page": "563", "parenthetical": "\"It is true that, pursuant to Heller, a restriction on the right to bear arms must meet a stricter standard of judicial review than 'rational-basis scrutiny,' (although exactly what standard must be met remains unclear.\" (citation omitted)" } ], "opinion_index": 0 }, { "cite": "309 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "492", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 302", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523552 ], "year": 1983, "pin_cites": [ { "page": "306", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0302-01" ] }, { "cite": "362 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "year": 2008, "opinion_index": 0 }, { "cite": "359 N.C. 855", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794921, 3795818, 3796073, 3804461, 3802061, 3794479, 3797647, 3801074, 3798099, 3800214, 3804024 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0855-07", "/nc/359/0855-01", "/nc/359/0855-04", "/nc/359/0855-08", "/nc/359/0855-06", "/nc/359/0855-03", "/nc/359/0855-10", "/nc/359/0855-02", "/nc/359/0855-05", "/nc/359/0855-09", "/nc/359/0855-11" ] }, { "cite": "610 S.E.2d 739", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "741-46" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8469669 ], "pin_cites": [ { "page": "303-10" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0301-01" ] }, { "cite": "344 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "279", "parenthetical": "\"Factfinding is not a function of our appellate courts.\"" } ], "opinion_index": 0 }, { "cite": "317 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4771671 ], "year": 1986, "pin_cites": [ { "page": "63", "parenthetical": "\"Factfinding is not a function of our appellate courts.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0051-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\" (citations omitted)" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\" (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "327 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "313 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724761 ], "year": 1985, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0324-01" ] }, { "cite": "503 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "104", "parenthetical": "\"In construing the North Carolina Constitution, this Court is not bound by the decisions of federal courts, including the United States Supreme Court.\" (citation omitted)" }, { "parenthetical": "emphasis added and citations omitted" } ], "opinion_index": 0 }, { "cite": "348 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659841 ], "year": 1998, "pin_cites": [ { "page": "648", "parenthetical": "\"In construing the North Carolina Constitution, this Court is not bound by the decisions of federal courts, including the United States Supreme Court.\" (citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0644-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "594 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "15", "parenthetical": "\"[T]he rational basis test or rational basis review applies, and this Court must inquire whether distinctions which are drawn by a challenged statute bear some rational relationship to a cpnceivable legitimate governmental interest.\" (citation, quotation marks, and ellipses omitted)" } ], "opinion_index": 0 }, { "cite": "358 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986939 ], "year": 2004, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0160-01" ] }, { "cite": "107 S.E. 222", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1921, "pin_cites": [ { "page": "226", "parenthetical": "Allen, J., concurring" }, { "page": "226" } ], "opinion_index": 0 }, { "cite": "181 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657830 ], "year": 1921, "pin_cites": [ { "parenthetical": "Allen, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/nc/181/0574-01" ] }, { "cite": "382 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1989, "pin_cites": [ { "page": "233" }, { "page": "233", "parenthetical": "citations, quotation marks, and ellipses omitted" }, { "page": "233", "parenthetical": "citation and quotation marks omitted" }, { "page": "233" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519750 ], "year": 1989, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0140-01" ] }, { "cite": "159 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1968, "pin_cites": [ { "page": "9", "parenthetical": "citation omitted" }, { "page": "8-9" }, { "page": "9" }, { "page": "10" }, { "page": "10" } ], "opinion_index": 0 }, { "cite": "272 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574015 ], "year": 1968, "pin_cites": [ { "page": "545", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0535-01" ] }, { "cite": "681 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2009, "opinion_index": 0 }, { "cite": "508 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "281-82", "parenthetical": "citations, quotation marks, and brackets omitted" }, { "page": "282", "parenthetical": "\"An individual challenging the facial constitutionality of a legislative act must establish that no set of circumstances exists under which the act would be valid.\" (citation, quotation marks, and brackets omitted)" }, { "page": "282", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "349 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571662 ], "year": 1998, "pin_cites": [ { "page": "491", "parenthetical": "citations, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0483-01" ] }, { "cite": "171 L.E. 2d 637", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 3677081 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "683" }, { "page": "678-83" }, { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/us/554/0570-01" ] }, { "cite": "185 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8211750 ], "weight": 7, "year": 2007, "pin_cites": [ { "page": "613" }, { "page": "614" }, { "page": "613-14" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0610-01" ] }, { "cite": "172 L. Ed. 2d 39", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2008, "opinion_index": 0 }, { "cite": "185 N.C. App. 450", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8210269 ], "year": 2007, "pin_cites": [ { "page": "454-55", "parenthetical": "citations, quotation marks, and ellipses omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0450-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 56, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "554 U.S.-, 171", "category": "reporters:federal", "reporter": "U.S.", "weight": 2, "year": 2008, "opinion_index": 0 }, { "cite": "649 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639188 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "410", "parenthetical": "Elmore, J., dissenting" }, { "page": "409-10", "parenthetical": "Elmore, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/se2d/649/0402-01" ] }, { "cite": "364 F.3d 551", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9273458 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "555" }, { "parenthetical": "citations and quotations omitted" }, { "page": "555", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 1, "case_paths": [ "/f3d/364/0551-01" ] }, { "cite": "610 S.E.2d 739", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "744" }, { "page": "746" } ], "opinion_index": 1 }, { "cite": "169 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8469669 ], "weight": 2, "pin_cites": [ { "page": "308" }, { "page": "311" } ], "opinion_index": 1, "case_paths": [ "/nc-app/169/0301-01" ] }, { "cite": "594 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "15", "parenthetical": "quotations, citation, and alteration omitted" } ], "opinion_index": 1 }, { "cite": "358 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986939 ], "year": 2004, "pin_cites": [ { "page": "180", "parenthetical": "quotations, citation, and alteration omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0160-01" ] }, { "cite": "159 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "9" } ], "opinion_index": 1 }, { "cite": "272 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574015 ], "year": 1968, "pin_cites": [ { "page": "546" } ], "opinion_index": 1, "case_paths": [ "/nc/272/0535-01" ] }, { "cite": "681 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "322", "parenthetical": "quotations and citation omitted" }, { "page": "323" } ], "opinion_index": 1 }, { "cite": "185 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8211750 ], "year": 2007, "pin_cites": [ { "page": "621", "parenthetical": "Elmore, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/nc-app/185/0610-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 1 } ], "analysis": { "cardinality": 1536, "char_count": 54981, "ocr_confidence": 0.764, "pagerank": { "raw": 2.846675450789416e-07, "percentile": 0.8403474488280978 }, "sha256": "433fa75c817a14fa55d281125fc3159af8410dc7ef093c464fe341c06d4640e0", "simhash": "1:4f38c5e335ab9456", "word_count": 8946 }, "last_updated": "2023-07-14T21:19:33.177262+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ERVIN concurs.", "Judge ELMORE concurs in part and dissents in part in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. DOUGLAS DWAYNE WHITAKER, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant was convicted by a jury of eleven counts of possession of a firearm by a felon. Defendant appeals on various constitutional grounds, primarily arguing that the recent decision of the United States Supreme Court, District of Columbia v. Heller, 554 U.S.-, 171 L.E. 2d 637 (2008), requires this Court to hold that North Carolina\u2019s law prohibiting possession of firearms by convicted felons violates defendant\u2019s individual right to keep and bear firearms under the Second Amendment of the United States Constitution and Article I, Section 30 of the North Carolina Constitution. As we conclude that Heller has no effect upon the level of scrutiny which this Court has traditionally applied to regulations of the possession of firearms, we reject defendant\u2019s claim that Heller requires us to hold that N.C. Gen. Stat. \u00a7 14-415.1 is unconstitutional under either the Second Amendment or Article I, Section 30. We further reject defendant\u2019s contentions that N.C. Gen. Stat. \u00a7 14-415.1 is unconstitutional on any other grounds. However, because defendant should have been charged with only one violation of N.C. Gen. Stat. \u00a7 14-415.1, instead of eleven, we reverse the convictions for which defendant received arrested judgments. We find no error as to defendant\u2019s single conviction upon which he was sentenced and imprisoned.\nI. Background\nThe State\u2019s evidence tended to show that on or about 27 June '2005, Detective Sergeant George K. Dennis, a detective with the Moore County Sheriff\u2019s Office, saw some guns at defendant\u2019s residence. Detective Sergeant Dennis told defendant he could not have guns in his residence and informed defendant that\n[t]here had been a change of State law on December 1st of 2004. Up until that point convicted felons could keep long rifles and\u2014 and shotguns inside their residence. This was several months afterwards and we were just going \u2014 giving him the benefit of the doubt that maybe he didn\u2019t know about it and gave him a warning to remove the weapons from his \u2014 from his residence.\nOn 11 April 2006, Officer Connie Burns, a probation and parole officer in Moore County, discussed with defendant \u201cthat he was not to have firearms in [his] residence.\u201d\nOn 27 April 2006, Detective Sergeant Dennis, Officer Bums, Detective Sergeant John Andrew Conway, and one other detective sergeant searched defendant\u2019s residence. The law enforcement officials found \u201celeven rifles and shotguns in the gun cabinet in the defendant\u2019s bedroom.\u201d Detective Sergeant Conway told defendant \u201cto come to the sheriff\u2019s office on May 8th at a scheduled time to have himself served with the warrants.\u201d On May 8th, defendant turned himself in at the sheriff\u2019s office.\nOn or about 9 April 2007, defendant was indicted for eleven counts of possession of a firearm by a felon. The indictments were based upon defendant\u2019s 22 April 1988 conviction for possessing cocaine. However, defendant has also had prior felony convictions for indecent liberties with a minor on 24 August 1989 and poss'essing cocaine on 27 June 2005. On 21 November 2007, defendant filed a motion to dismiss his indictments based on various constitutional grounds; defendant also filed motions to dismiss and consolidate indictments requesting that \u201call the . . . indictments but one [be dismissed], .and that the State be permitted to amend the remaining indictment to include the additional weapons.\u201d Defendant\u2019s motions to dismiss and consolidate were denied.\nOn or about 10 June 2008, a jury found defendant guilty on all eleven counts. The trial court determined that defendant had a prior record level of five and sentenced him to 18 to 22 months imprisonment on one count, but arrested judgment on the other ten counts. Defendant appeals, claiming N.C. Gen. Stat. \u00a7 14-415.1 is unconstitutional both on its face and as applied to him.\n' II. Standard of Review\n\u201cThe standard of review for questions concerning constitutional rights is de novo. Furthermore, when considering the constitutionality of a statute or act there is a presumption in favor of constitutionality, and all doubts must be resolved in favor of the act.\u201d Row v. Row 185 N.C. App. 450, 454-55, 650 S.E.2d 1, 4 (2007) (citations, quotation marks, and ellipses omitted), disc. review denied, 362 N.C. 238, 659 S.E.2d 741, cert. denied,-U.S.-, 172 L. Ed. 2d 39 (2008).\nIII. Right to Bear Arms\nDefendant first claims that his individual right to keep and bear arms under the Second and Fourteenth Amendments of the United States Constitution and under Article I, Section 30 of the North Carolina Constitution is a fundamental right that has been violated because N.C. Gen. Stat. \u00a7 14-415.1 prohibits him from keeping firearms in his home. Defendant challenges N.C. Gen. Stat. \u00a7 14-415.1 both facially and as applied.\nA. Facial Challenge to N.C. Gen. Stat. \u00a7 14-415.1\nDefendant\u2019s primary argument is that we must reexamine the holding of Britt v. State, 185 N.C. App. 610, 649 S.E.2d 402 (2007) upholding the constitutionality of N.C. Gen. Stat. \u00a7 14-415.1 in light of District of Columbia v. Heller, which held \u201cthat the District\u2019s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.\u201d 554 U.S.-, -, 171 L.E. 2d 637, 683 (2008). Defendant contends that pursuant to Heller, any restriction of his \u201cfundamental\u201d right to keep and bear arms must now withstand strict scrutiny.\n1. Standard of Review for a Facial Challenge to N.C. Gen. Stat. \u00a7 14-415.1\nA heavy burden is imposed upon a party who attempts to make a facial challenge to a statute\u2019s constitutionality:\nA facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully. ... An individua] challenging the facial constitutionality of a legislative act must establish that no set of circumstances exists under which the act would be valid. The fact that a statute might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.\nState v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 281-82 (1998) (citations, quotation marks, and brackets omitted).\nOur Supreme Court has stated that \u201c[w]e seldom uphold facial challenges because it is the role of the legislature, rather than this Court, to balance disparate interests and find a workable compromise among them. This Court will only measure the balance struck in the statute against the minimum standards required by the constitution.\u201d Beaufort County Bd. of Educ. v. Beaufort County Bd. of Comm\u2019rs,-N.C.-,-, S.E.2d-, (Aug. 28, 2009) (No. 106PA08) (citations omitted).\n2. Britt v. State\nHowever, though defendant contends we should reexamine Britt v. State, 185 N.C. App. 610, 649 S.E.2d 402 (2007), the North .Carolina Supreme Court has recently reversed that opinion, though not unequivocally in defendant\u2019s favor. See Britt v. State, -N.C.-, 681 S.E.2d 320 (2009). In Britt, plaintiff Mr. Britt challenged the constitutionality of N.C. Gen. Stat. \u00a7 14-415.1 as amended in 2004 by filing a declaratory judgment action against the State, requesting in part that the court grant \u201cdeclaratory relief by declaring the N.C.G.S. \u00a7 14-415.1, as amended by 2004 N.C. Sess. Law, c. 186, s. 14.1, unconstitutional and enjoining the Defendants from in any manner interfering with Plaintiffs right to purchase, own, possess, or have in his custody, care or control any firearm[.]\u201d The trial court granted summary judgment in favor of the State, concluding, in pertinent part, that \u201cN.C. Gen. Stat. \u00a7 14-415.1 is constitutional on its face and as applied to the Plaintiff.\u201d\nOn appeal, Mr. Britt argued that\nthe trial court erred by concluding the 1 December 2004 version of N.C. Gen. Stat. \u00a7 14-415.1 is constitutional. Specifically, plaintiff contended] N.C.G.S. \u00a7 14-415.1 (2004) sweeps too broadly and-is not reasonably related to a legitimate government interest. Plaintiff argue [d] that because he was not convicted of a violent felony and because his conviction is so far in the past, the statute prohibiting all convicted felons from possessing any type of firearm is unconstitutional.\nBritt v. State, 185 N.C. App. 610, 613, 649 S.E.2d 402, 405 (2007), rev\u2019d and remanded by Britt v. State, - N.C. -, 681 S.E.2d 320 (2009).\nThe majority of the Court of Appeals rejected Mr. Britt\u2019s arguments and determined that N.C. Gen. Stat. \u00a7 14-415.1, and specifically the 2004 amendment to the statute, was constitutional. Id., 185 N.C. App. at 613-18, 649 S.E.2d at 405-08. However, Judge Elmore dissented,- noting that he would hold N.C. Gen. Stat. \u00a7 14-415.1 as amended in 2004 facially unconstitutional. Id., 185 N.C. App. at 619-21, 649 S.E.2d at 409-10 (Elmore, J., dissenting). Judge Elmore explained that\n[t]he major differences between the 1995 and current versions of the statute lead me to conclude that the statute in its current form is no longer a reasonable regulation. Instead, I would hold that the current statute operates as an outright ban, completely divesting plaintiff of his right to bear arms without due process of law.\nIn enacting the 2004 amendment, the legislature simply overreached. Thereafter, the statute operated as a punishment, rather than a regulation. Moreover, the statute as amended stripped plaintiff of his constitutional right to bear arms without the benefit of due process.\nId., 185 N.C. App. at 621, 649 S.E.2d at 410 (Elmore, J., dissenting) (citation omitted).\nMr. Britt appealed to the North Carolina Supreme Court and presented numerous issues, including, inter alia, whether N.C. Gen. Stat. \u00a7 14-415.1 violated of the right to keep and bear arms under Article I, Section 30 of the North Carolina Constitution and the effect of District of Columbia v. Heller, 554 U.S.-, 171 L.E. 2d 637 (2008). The Supreme Court chose to address only a single issue: \u201cWhether the application of the 2004 amendment to N.C.G.S. \u00a7 14-415.1 to plaintiff violates his rights under N.C. Const, art. I, \u00a7 30.\u201d Britt,-N.C. at-, 681 S.E.2d at (quotation marks omitted). The Supreme Court emphatically declined to address the numerous other issues presented before it, including the facial challenge to N.C. Gen. Stat. \u00a7 14-415.1. Id.,-N.C. at-, 681 S.E.2d at-. Furthermore, the Supreme Court did not address the proper scrutiny level for considering an individual\u2019s right to keep and bear arms. Id., -N.C. at-, 681 S.E.2d at-n.2 (\u201cBecause we hold that application of N.C.G.S. \u00a7 14-415.1 to plaintiff is not a reasonable regulation, we need not address plaintiff\u2019s argument that the right to keep and bear arms is a fundamental right entitled to a higher level of scrutiny.\u201d). The Supreme Court ultimately decided only \u201cthat N.C.G.S. \u00a7 14-415.1 is an unconstitutional violation of Article I, Section 30 of the North Carolina Constitution as applied to this plaintiff.\" Id., \u2014\u2022 N.C. at-, 681 S.E.2d at-(emphasis added).\nThus, in summary, although defendant has argued that we must reexamine our own opinion in Britt due to Heller, by extension defendant argues that we must reconsider the many prior cases of this Court and the Supreme Court which use the rational basis test to evaluate regulations of firearms. Furthermore, the Supreme Court reversed this Court\u2019s opinion which had determined that N.C. Gen. Stat. \u00a7 14-415.1 was constitutional; however, the Supreme Court specifically declined to hold that N.C. Gen. Stat. \u00a7 14-415.1 is unconstitutional on its face. See id.,-N.C.-, 681 S.E.2d-. In sum, we now must venture to navigate the strait presented by this case, between the Scylla of relying upon a reversed case and the Charybdis of holding a statute unconstitutional on its face, when our Supreme Court declined to so hold.\n3. Article I, Section 30\nThe North Carolina Supreme Court has previously reviewed the history of Article I, Section 30:\nIt is obvious that the second amendment to the Federal Constitution \u2014 \u201cA well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed\u201d \u2014 furnished the wording for the first part of the N.C. Constitution, Art. I \u00a7 24. Historical data and the reports of the deliberations and discussions which resulted in the wording of the second amendment and similar provisions in the constitutions of the original states lead to the conclusion that the purpose of these declarations (that a well regulated militia is necessary to the security of a free state) was to insure the existence of a state militia as an alternative to a standing army. Such armies were regarded as \u201c \u2018peculiarly obnoxious in any free government.\u2019 \u201d The framers of our constitutions were dedicated to the principle that the military should be kept under the control of State v. civil power. ...\nState v. Dawson, 272 N.C. 535, 545, 159 S.E.2d 1, 9 (1968) (citation omitted).\nAt the timeState v. Huntley was decided [in 1843], the constitutional provision with reference to the right of the people to bear arms was contained in section 17 of the Bill of Rights, which was a part of our Constitution of 1776. It read as follows: \u201cThat the people have a right to bear arms for the defence of the state; and as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.\u201d\nIn 1868, the above provision was replaced by the first sentence of Art. I \u00a7 24 of the present Constitution: \u201cA well regulated militia being necessary to the security of a free state, the right of the people to keep and bear' arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they ought not to be kept up, and the military should be kept under strict subordination to, and governed by, the civil power.\u201d To the foregoing, the Constitutional Convention of 1875 added a second sentence: \u201cNothing herein contained shall justify the practice of carrying concealed weapons, or prevent the Legislature from enacting penal statutes against said practice.\u201d\nId. at 545, 159 S.E.2d at 8-9.\nThus, Article I, Section 30 currently provides as follows:\nA well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.\nN.C. Const, art. I, \u00a7 30. The first phrase of Article I, Section 30, which was adopted in 1868, see Dawson at 545, 159 S.E.2d at 9, is exactly the same as the Second Amendment to the United States Constitution, except for punctuation. Compare U.S. Const, amend. II; N.C. Const, art. I, \u00a7 30. Furthermore, the individual right to keep and bear arms under Article I, Section 30 is the same or perhaps even a greater individual right than that as recognized under the Second Amendment. See State v. Fennel, 95 N.C. App. 140, 143, 382 S.E.2d 231, 233 (1989).\nIt is true, however, that the North Carolina Constitution has been interpreted to guarantee a broader right to individuals to keep and bear arms. North Carolina decisions have interpreted our Constitution as guaranteeing the right to bear arms to the people in a collective sense \u2014 similar to the concept of a militia\u2014 and also to individuals. Yet, as the Supreme Court of this state also noted, [t]hese decisions have consistently pointed out that the right of individuals to bear arms is not absolute, but is subject to regulation. The regulation must be reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.\nFennell at 143, 382 S.E.2d at 233 (citations, quotation marks, and ellipses omitted).\nDefendant contends that he has an individual right to keep and bear arms under Article I, Section 30 of the North Carolina Constitution which provides \u201ca broader right to individuals to keep and bear arms.\u201d Id. Due to the \u201cbroader\u201d individual right to keep and bear arms under Article I, Section 30, id., we need only consider the North Carolina Constitution and not attempt to determine under Heller the full extent of the individual right under the Second Amendment to keep and bear arms or whether the protections of the Second Amendment are applicable to the states by incorporation through the Fourteenth Amendment. However, because the Second Amendment and Article I, Section 30 are worded the same in pertinent part, we must carefully consider whether Heller's holding and rationale should change the analysis this Court must apply to N.C. Gen. Stat. \u00a7 14-415.1 under Article I, Section 30. See U.S. Const., amend II; N.C. Const, art. I, \u00a7 30.\nThe right to keep and bear arms afforded by the North Carolina Constitution is subject to regulations which are \u201creasonable and not prohibitive\u201d and which \u201cbear a fair relation to the preservation of the public peace and safety.\u201d Fennell at 143, 382 S.E.2d at 233 (citation and quotation marks omitted). The rational basis standard for review of regulations upon the right to keep and bear arms has been articulated by North Carolina courts since at least 1921. See State v. Kerner, 181 N.C. 574; 579, 107 S.E. 222, 226 (1921) (Allen, J., concurring) (\u201cThe right to bear arms, which is protected and safeguarded by the Federal and State constitutions, is subject to the authority of the General Assembly, in the exercise of the police power, to regulate, but the regulation must be reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.\u201d); see generally Rhyne v. K-Mart Corp., 358 N.C. 160, 180, 594 S.E.2d 1, 15 (2004) (\u201c[T]he rational basis test or rational basis review applies, and this Court must inquire whether distinctions which are drawn by a challenged statute bear some rational relationship to a cpnceivable legitimate governmental interest.\u201d (citation, quotation marks, and ellipses omitted)). Our Supreme Court recently noted the rational basis standard in Britt: \u201cThis Court has held that regulation of the right to bear arms is a proper exercise of the General Assembly\u2019s police power, but that any regulation must be at least reasonable and not prohibitive, and must bear a fair relation to the\npreservation of the public peace and safety.\u201d Britt,-N.C. at-,\n681 S.E.2d at-(citation and quotation marks omitted).\n4. N.C. Gen. Stat. \u00a7 14-415.1\nN.C. Gen. Stat. \u00a7 14-415.1(a) provides,\nIt shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction as defined in G.S. 14-288.8(c). For the purposes of this section, a firearm is (i) any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive, or its frame or receiver, or (ii) any firearm muffler or firearm silencer. This section does not apply to an antique firearm, as defined in G.S. 14-409.11.\nN.C. Gen. Stat. \u00a7 14415.1(a) (2007).\nIn Britt, this Court determined that N.C. Gen. Stat. \u00a7 14-415.1 bore a rational relation \u201cto a legitimate state interest\u201d and was therefore constitutional on those grounds. Britt, 185 N.C. App. at 614, 649 S.E.2d at 406. The Supreme Court reversed this Court\u2019s decision in Britt, but limited its holding to an as-applied challenge to the constitutionality of the 2004 amendment to N.C. Gen. Stat. \u00a7 14-415.1, which expanded \u201cthe prohibition on possession to all firearms by any person convicted of any felony, even within the convicted felon\u2019s own home and place of business.\u201d Id.,-N.C. at-, 681 S.E.2d at-(citation omitted).\nOur Supreme Court reviewed the history of N.C. Gen. Stat. \u00a7 14-415.1 in Britt as follows:\n[In 1987], N.C.G.S. \u00a7 14-415.1 only prohibited the possession of \u201cany handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches\u201d by persons convicted of certain felonies, mostly of a violent or rebellious nature, \u201cwithin five years from the date of such conviction, or unconditional discharge from a correctional institution, or termination of a suspended sentence, probation, or parole upon such conviction, whichever is later.\u201d\nSubsequently, in 1995 the General Assembly amended N.C.G.S. \u00a7 14-415.1 to prohibit the possession of such firearms by all persons convicted of any felony, without regard to the date of conviction or the completion of the defendant\u2019s sentence. The 1995 amendment did not change the previous provision in N.C.G.S. \u00a7 14-415.1 stating that \u201cnothing therein would prohibit the right of any person to have possession of a firearm within his own house or on his lawful place of business.\u201d However, in 2004 the General Assembly amended N.C.G.S. \u00a7 14-415.1 to extend the prohibition on possession to all firearms by any person convicted of any felony, even within the convicted felon\u2019s own home and place of business.\nId., \u2014 N.C. at -, 681 S.E.2d at - (citations and brackets omitted).\n5. District of Columbia v. Heller\nDefendant argues that Heller requires this Court to examine the restriction upon his right to keep and bear arms under strict scrutiny and that under the strict scrutiny analysis the 2004 amendment to N.C. Gen. Stat. \u00a7 14-415.1 is unconstitutional. However, defendant\u2019s arguments pursuant to Heller fail for several reasons.\nFirst, we are not bound by decisions of the United States Supreme Court as to construction of North Carolina\u2019s constitution. State v. Jackson, 348 N.C. 644, 648, 503 S.E.2d 101, 104 (1998) (\u201cIn construing the North Carolina Constitution, this Court is not bound by the decisions of federal courts, including the United States Supreme Court.\u201d (citation omitted)). Secondly, Heller did not adopt a strict scrutiny standard, or indeed any specific standard, for review of laws regulating the right of an individual to keep and bear firearms.\nThird, even assuming arguendo that we are bound to interpret our constitution pursuant to United States Supreme Court cases and that Heller established strict scrutiny as the applicable .level of scrutiny to be applied to regulations of an individual\u2019s right to keep and bear arms, we still cannot read Heller as extending an unqualified right to keep and bear arms to convicted felons. See Heller at-, 171 L.E. 2d at 678. Heller provides,\nLike most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose____Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.\nId. (emphasis added and citations omitted). Heller\u2019s final statement as to Mr; Heller\u2019s request to register his handgun was: \u201cAssuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.\u201d Id. at-, 171 L.E. 2d at 683-84 (emphasis added). Although Heller does not directly state how Mr. Heller might become \u201cdisqualified from the exercise of his Second Amendment rights,\u201d it appears, when this provision is read in the context of the entire opinion, that he might be \u201cdisqualified\u201d if he were a felon or mentally ill. Id. at, 171 L. Ed. 2d at 678-83.\nFinally, in Britt our Supreme Court declined to adopt a strict scrutiny standard of review in a case involving this very statute, N.C. Gen. Stat. \u00a7 14-415.1. See Britt,-N.C. at-, 681 S.E.2d at-n.2. The Supreme Court in Britt instead cited and quoted the rational basis test. See id., \u2014\u2014 N.C. at \u2014 , 681 S.E.2d at \u2014. Thus, for us to adopt strict scrutiny, we would have to overrule decisions of the North Carolina Supreme Court, including an opinion dating back to before this Court was even formed. See, e.g., Dawson at 547, 159 S.E.2d at 10; Kerner at 579, 107 S.E. 222, 226 (Allen, J., concurring). However, we do not have authority to overrule decisions of the Supreme Court, see Cannon v. Miller, 313 N.C. 324, 324, 327 S.E.2d 888, 888 (1985) (\u201cI[t] appearing that the panel of Judges of the Court of Appeals to which this case was assigned has acted under a misapprehension of its authority to overrule decisions of the Supreme Court of North Carolina and its responsibility to follow those decisions, until otherwise ordered by the Supreme Court.\u201d), and it is not the province of this Court to adopt a new standard for constitutional review, particularly in a situation where our Supreme Court has so recently declined to so hold. See Britt, \u2014 N.C. at-, 681 S.E.2d at-n.2. As the level of constitutional scrutiny is unchanged, we are still bound to apply the rational basis test, see, e.g., Dawson at 547, 159 5.E.2d at 10, under which this Court has previously concluded that N.C. Gen. Stat. \u00a7 14-415.1 is constitutional. See Britt, 185 N.C. App. 610, 649 S.E.2d 402.\n6. Analysis\nWe therefore consider defendant\u2019s facial challenge to the constitutionality of N.C. Gen. Stat. \u00a7 14-415.1, which presents many of the same issues as presented to this Court in Britt. See Britt, 185 N.C. App., 610, 649 S.E.2d 402. Again, despite the fact that Britt has been reversed, it was only on an \u201cas applied\u201d basis, see Britt,-N.C.-, 681 S.E.2d 320, and thus we conclude that we are still bound by this Court\u2019s rationale, analysis, and holding in Brill as to the facial constitutionality of N.C. Gen. Stat. \u00a7 14-415.1. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d (citations omitted)).\nIn Brill, this Court stated:\nA convicted felon is prohibited from possessing a firearm if the State shows a rational relation to a legitimate state interest, such as the safety and protection and preservation of the health and welfare of the citizens of this state. Legislative classifications will be upheld, provided the classification is founded upon reasonable distinctions, affects all persons similarly situated or engaged in the same business without discrimination, and has some reasonable relation to the public peace, welfare and safety. A court may not substitute its judgment of what is reasonable for that of the legislative body when the reasonableness of a particular classification is to be determined. Where the language of an Act is clear and unambiguous the courts must give the statute its plain and definite meaning.\nIn this case, plaintiff argues that a more appropriate legislation would allow convicted felons the ability to apply for restoration of the right to possess firearms. Plaintiff also argues that long guns, such as rifles and shotguns should be lawful for certain types of convicted felons to possess. We disagree. The General Assembly has made a determination that individuals who have been convicted of a felony offense shall not be able to possess a firearm. This statutory scheme which treats all felons the same, serves to protect and preserve the health, safety and welfare of the citizens of this State. Here, the legislature intended to prevent convicted felons from possessing firearms in its 2004 amendments. The 2004 amendment to N.C.G.S. \u00a7 14-415.1 is rationally related to a legitimate state interest.\nBritt, 185 N.C. App. at 613-14, 649 S.E.2d at 405-06 (citations omitted).\nDefendant here has not established \u201cthat no set of circumstances exists under which . . . [N.C. Gen. Stat. \u00a7 14-415.1] would be valid.\u201d Thompson at 491, 508 S.E.2d at 282 (\u201cAn individual challenging the facial constitutionality of a legislative act must establish that no set of circumstances exists under which the act would be valid.\u201d (citation, quotation marks, and brackets omitted)). In fact, as discussed below, N.C. Gen. Stat. \u00a7 14-415.1 operates constitutionally as to defendant. This argument is overruled.\nB. As Applied Challenge\nDefendant also contends that N.C. Gen. Stat. \u00a7 14-415.1 is unconstitutional as applied to him because\n[t]he indictment in this case alleged that the Defendant had been convicted in 1988 for possession of cocaine. R. pp 13-14. There is nothing inherently violent in [sic] possession of cocaine that would demonstrate that the Defendant\u2019s possession of a firearm would be a threat to public safety. The Defendant\u2019s record consists mostly of drug related offenses. No prior offenses had possession of a firearm as an essential element.\n\u201c[T]his Court must determine whether, as applied to plaintiff, N.C.G.S. \u00a7 14-415.1 is a reasonable regulation.\u201d Britt,-N.C. at-, 681 S.E.2d at-. Our Supreme Court stated the pertinent facts as to Mr. Britt as follows:\nPlaintiff pleaded guilty to one felony count of possession with intent to sell and deliver a controlled substance in 1979. The State does not argue that any aspect of plaintiff\u2019s crime involved violence or the threat of violence. Plaintiff completed his sentence without incident in 1982. Plaintiff\u2019s right to possess firearms was restored in 1987. No evidence has been presented which would indicate that plaintiff is dangerous or has ever misused firearms, either before his crime or in the seventeen years between restoration of his rights and adoption of N.C.G.S. \u00a7 14-415. l\u2019s complete ban on any possession of a firearm by him. Plaintiff sought out advice from his local Sheriff following the amendment of N.C.G.S. \u00a7 14-415.1 and willingly gave up his weapons when informed that possession would presumably violate the statute. Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of lawabiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety. Moreover, the nature of the 2004 amendment is relevant. The statute functioned as a total and permanent prohibition on possession of any type of firearm in any location. See N.C.G.S. \u00a7 14-415.1 (2004).\nBased on the facts of plaintiff\u2019s crime, his long postconviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute\u2019s operation, as applied to plaintiff, the 2004 version of N.C.G.S. \u00a7 14-451.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety. In particular, it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.\nBritt,-N.C. at-, 681 S.E.2d at-.\nThus, the Supreme Court in Britt focused on five factors in order to determine if N.C. Gen. Stat. \u00a7 14-415.1 is unconstitutional as applied to Mr. Britt: (1) the type of felony convictions, particularly whether they \u201cinvolved violence or the threat of violence[,]\u201d (2) the remoteness in time of the felony convictions; (3) the felon\u2019s history of \u201clawabiding conduct since [the] crime,\u201d (4) the felon\u2019s history of \u201cresponsible, lawful firearm possession\u201d during a time period when possession of firearms was not prohibited, and (5) the felon\u2019s \u201cassiduous and proactive compliance with the 2004 amendment.\u201d Id.,N.C. at-, 681 S.E.2d at \u2014. In Mr. Britt\u2019s case, our Supreme Court held that N.C. Gen. Stat. \u00a7 14-415.1, as applied to Mr. Britt, was \u201can unreasonable regulation, not fairly related to the preservation of public peace and safety.\u201d Id., \u2014 N.C. at \u2014\u2014, 681 S.E.2d at \u2014. We must therefore consider whether N.C. Gen. Stat. \u00a7 14-415.1 is a reasonable regulation which is \u201cfairly related to the preservation of public peace and safety\u201d as to defendant. Id.,-N.C. at-, 681 S.E.2d at-.\nWe first note that the factors identified in Britt required findings of fact regarding the plaintiff. See id., \u2014 N.C. at \u2014, 681 S.E.2d at-. Normally, the trial court finds facts, and the appellate courts do not engage in fact finding. See Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 63, 344 S.E.2d 272, 279 (1986) (\u201cFactfinding is not a function of our appellate courts.\u201d) However, the trial court order in Britt did not find most of the facts regarding Mr. Britt as noted by the Supreme Court, and thus the Supreme Court apparently based its factual findings as to Mr. Britt upon the uncontroverted evidence presented before the trial court. Just as in Britt, the trial court here did not make findings of fact regarding defendant, but there was uncontroverted evidence presented as to defendant\u2019s prior convictions, his history of a lack of \u201claw abiding conduct since [the] crime,\u201d Britt,-N.C. at-, 681 S.E.2d at-, and of firearm possession, and his compliance with the 2004 amendment. As these facts are not in dispute, we will analyze defendant\u2019s as applied challenge to N.C. Gen. Stat. \u00a7 14-415.1 in the same manner as did our Supreme Court in Britt. See Britt,-N.C. at \u2014\u2022, 681 S.E.2d at-.\nAs to defendant\u2019s previous felony convictions, defendant was convicted in 1988 for selling and delivering cocaine, in 1989 for indecent liberties with a minor, and in 2005 for possessing cocaine. As with Mr. Britt, there is no indication that these crimes \u201cinvolved violence or the threat of violence[,]\u201d but whereas Mr. Britt had only one drug possession conviction, defendant herein has had three felony convictions, including indecent liberties with a minor. Id.,-N.C. at-, 681 S.E.2d at-. Furthermore, Mr. Britt\u2019s felony convictions were more remote in time, as he was convicted in 1979; id.,-N.C. at-, 681 S.E.2d at-, defendant\u2019s most recent felony conviction was in 2005. In addition to his felony convictions, defendant has demonstrated a blatant disregard for the law as he has been convicted of numerous misdemeanors: possession of drug paraphernalia in 1984; possession of cocaine in 1988; driving while impaired in 1987; driving while impaired in 1992; maintaining a place to keep controlled substances in 2000; misdemeanor possession of a controlled substance in 2008; and possession of drug paraphernalia in 2008. Just as in Britt, \u201c[n]o evidence has been presented which would indicate that [defendant] is dangerous or has ever misused firearms\u201d since his felony convictions; id.,-N.C. at-, 681 S.E.2d at --; however, defendant acquired the guns at issue after N.C. Gen. Stat. \u00a7 14-415.1 specifically prohibited him from possessing them. Furthermore, in 2005 Detective Sergeant Dennis warned defendant about the 2004 change in the law and gave \u201chim the benefit of the doubt that maybe he didn\u2019t know about it\u201d so that defendant had an opportunity to remove the guns from his residence. In 2006, Officer Bums again discussed with defendant the fact that he was prohibited from possessing guns in his home. Defendant failed to heed both of these specific warnings. Instead of demonstrating \u201cassiduous and proactive compliance with the 2004 amendment,\u201d defendant flagrantly violated it. Id., \u2014 N.C. at-, 681 S.E.2d at-. Thus, in considering the factors as noted by Britt, see id., \u2014 N.C. at-, 681 S.E.2d at-, we cannot conclude that N.C. Gen. Stat. \u00a7 14-415.1 is unconstitutional as applied to defendant.\nAs to defendant, N.C. Gen. Stat. \u00a7 14-415.1 is a reasonable regulation which is \u201cfairly related to the preservation of public peace and safety.\u201d Id.,-N.C. at-, 681 S.E.2d at-. It is not unreasonable to prohibit a convicted felon who has violated the law on numerous occasions, even as recently as last year, and who ignored two valid warnings of his unlawful conduct, from possessing firearms in order to preserve \u201cpublic peace and safety.\u201d Id., \u2014 N.C. at \u2014, 681 S.E.2d at \u2014-. We therefore hold that N.C. Gen. Stat. \u00a7 14-415.1 is constitutional as applied to defendant. This argument is overruled.\nIV. Ex Post Facto and Bill of Attainder\nDefendant also contends that N.C. Gen. Stat. \u00a7 14-415.1 violates the prohibition against ex post facto laws and is an unconstitutional bill of attainder; however, these issues have previously been decided by this Court. See State v. Johnson, 169 N.C. App. 301, 303-10, 610 S.E.2d 739, 741-46 (concluding that N.C. Gen. Stat. \u00a7 14-415.1 does not violate prohibitions against ex post facto laws nor is it an unconstitutional bill of attainder), review denied and appeal dismissed, 359 N.C. 855, 619 S.E.2d 855 (2005); see also State v. Watkins,-N.C. App.-,-, 672 S.E.2d 43, 52 (2009) (concluding that \u201cdefendant\u2019s increased sentence due to the change in the classification of his prior conviction serves only to enhance his punishment for the present offenses . . . and not to punish defendant for his prior conviction, the constitutional prohibition on ex post facto laws is not implicated\u201d). Neither Heller nor Britt require any change in this Court\u2019s analysis of these issues. Accordingly, these arguments are overruled. \u2022\nV. Double Jeopardy\nDefendant also argues that\nthe trial court erred in denying the defendant\u2019s motion to dismiss and consolidate indictments for possession of a firearm by a felon when the evidence supported only a single act of possession of multiple firearms. Convictions for multiple charges violated legislative intent and the defendant\u2019s constitutional right to be free from double jeopardy.\n(Original in all caps.)\nIn State v. Garris, the defendant was convicted of, inter alia, \u201ctwo counts of possession of a firearm by a felon[.]\u201d - N.C. App.-,-, 663 S.E.2d 340, 344, disc, review denied, 362 N.C. 684, 670 S.E.2d 907 (2008). The defendant argued that \u201cthe trial court erred by entering two felony convictions for possession of a firearm by a felon instead of one felony conviction.\u201d Id. at-, 663 S.E.2d at 346. This Court concluded that\na review of the applicable firearms statute shows no indication that the North Carolina Legislature intended for N.C. Gen. Stat. \u00a7 14-415.1(a) to impose multiple penalties for a defendant\u2019s simultaneous possession of multiple firearms. Here, defendant was not only convicted twice for possession of a firearm by a felon but was also sentenced twice, evidenced by File Numbers 06CRS053058 and 06CRS053059. The two firearms, both entered into evidence, originated out of the same act of possession. The firearms were possessed simultaneously because as defendant ran from the vehicle they were both on his person, either in his clothing or inside the black plastic bag he removed from the vehicle. Upon review, we hold that defendant should be convicted and sentenced only once for possession of a firearm by a felon based on his simultaneous possession of both firearms. Therefore, we find error with the trial court\u2019s decision to enter two convictions against defendant for possession of a firearm by a felon and to sentence defendant twice based on these convictions. We uphold the trial court\u2019s first conviction for possession of a firearm by a felon (06CRS053058) but reverse the second conviction (06CRS053059).\nId. at-, 663 S.E.2d at 348.\nThe State argues that the case at bar and Garris\nare dramatically different in that the trial court in Garris failed to arrest judgment on either of the two convictions. Thus, the defendant in Garris was not only convicted twice, but was also sentenced twice and subject to multiple penalties for his simultaneous possession of multiple firearms. Garris stands for the proposition that multiple penalties may not be imposed under N.C.G.S. \u00a7 147415.1 for a defendant\u2019s simultaneous possession of multiple firearms.\nHowever, we first note that in Garris this Court concluded that the trial court erred in \u201center[ing] two convictions],]\u201d not merely in entering two sentences. Id. Also, instead of simply requiring the trial court to arrest judgment on one of the convictions, this Court reversed the second conviction entirely. See id. Thus, this Court\u2019s language and mandate in Garris indicates that multiple convictions for simultaneous possession of firearms by a felon is reversible error. See id. Furthermore, \u201c]t]he legal effect of arresting judgment is to vacate the verdict and sentence. [However,] [t]he State may proceed against the defendants if it so desires, upon new and sufficient bills of indictment.\u201d State v. Goforth, 65 N.C. App. 302, 306, 309 S.E.2d 488, 492 (1983) (citations omitted). As the State could issue new indictments against defendant upon the arrested judgments, defendant could be placed in double jeopardy. See, e.g., id. Therefore, pursuant to Garris, we reverse the ten convictions upon which judgment was arrested. Garris at-, 663 S.E.2d at 348.\nVI. Conclusion\nIn conclusion, we reverse defendant\u2019s ten convictions for possession of a firearm by a felon where judgment was arrested. As to defendant\u2019s remaining conviction upon which he was sentenced, we find no error.\nREVERSED IN PART and NO ERROR IN PART.\nJudge ERVIN concurs.\nJudge ELMORE concurs in part and dissents in part in a separate opinion.\n. However, Heller did imply that rational basis scrutiny is not appropriate. See Heller at-, 171 L.E. 2d at 679 n.27. In footnote 27, Justice Scalia stated that \u201cJustice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. In those cases, \u2018rational basis\u2019 is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.\u201d Id. (citations omitted). In turn, Justice Breyer\u2019s dissent \u201ccriticizes [the majority] for declining to establish a level of scrutiny for evaluating Second Amendment restrictions.\u201d Id. at-, 171 L. Ed. 2d at 682; see also State v. Hunter, 195 P.3d 556, 563 (Wash. App. 2008) (\u201cIt is true that, pursuant to Heller, a restriction on the right to bear arms must meet a stricter standard of judicial review than \u2018rational-basis scrutiny,\u2019 (although exactly what standard must be met remains unclear.\u201d (citation omitted)).\n. The Supreme Court\u2019s dicta regarding possession of firearms by felons has been criticized for its apparent wholesale approval of all such laws without analysis of any particular law. See U.S. v. McCane,-E3d-(Olda. 2009 WL 2231658) (lymkovich, J., concurring) (\u201cThe Court\u2019s summary treatment of felon dispossession in dictum forecloses the possibility of a more sophisticated interpretation of \u00a7 922(g)(l)\u2019s scope. Applying Heller\u2019s individual right holding to various regulations would be complicated, and it is of course possible (if not probable) that different courts Would articulate different standards. Already a number of commentators have considered and proposed approaches to the existing gun laws and the proper level of constitutional scrutiny. But the existence of on-point dicta regarding various regulations short-circuits at least some of the analysis and refinement that would otherwise take place in the lower courts.\u201d (citations omitted)).\n. The majority in Heller also did not specify whether it was referring to \u201cfelons\u201d solely in the context of federal law or as generally used and separately defined by each state.\n. We recognize that if use of the rational basis standard results in a lesser level of protection of the right to keep and bear arms under Article I, Section 30 than the protection as conferred by the Second Amendment, use of the rational basis standard may not be appropriate, as our Court has stated that \u201cthe North Carolina Constitution has been interpreted to guarantee a broader right to individuals to keep and bear arms.\u201d Fennell at 143, 382 S.E.2d at 233. However, given the lack of authoritative direction from both Heller and Britt regarding the appropriate standard of review, we are still bound by precedent to use rational relation as the level of constitutional scrutiny in questions regarding an individual\u2019s right to keep and bear arms. See, e.g., Dawson at 547, 159 S.E.2d at 10.\n. Although the Supreme Court held N.C. Gen. Stat. \u00a7 14-415.1 was unconstitutional as applied to Mr. Britt, see Britt,-N.C.-, 681 S.E.2d 320, \u201c[t]he fact that [the] statute might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.\u201d Thompson at 491, 508 S.E.2d at 282 (citation and quotation marks omitted).\n. Defendant\u2019s indictments for possession of a firearm by a felon were based upon Ms 1988 felony conviction, but as we must consider the defendant\u2019s history of \u201clawabiding conduct,\u201d Britt,-N.C. at-, 681 S.E.2d at-, we note his more recent felonies also for purposes of this constitutional analysis.", "type": "majority", "author": "STROUD, Judge." }, { "text": "ELMORE, Judge,\nconcurring in part and dissenting in part.\nFor the reasons stated below, I respectfully dissent from part IV of the majority opinion. I concur by separate opinion in part III and concur fully in part V.\nAs the majority notes, I dissented from the majority opinion in Britt I Because the Supreme Court so clearly declined to base its decision reversing this Court\u2019s holding in Britt I on my dissent or any of the legal issues, raised therein, I renew those same arguments here.\nRight to Bear Arms\nI agree with the majority\u2019s analysis of Heller and its inapplicability to the case at bar. However, I disagree with what standard of review should be applied. The majority argues that we should apply rational basis review to defendant\u2019s constitutional challenge to N.C. Gen. Stat. \u00a7 14-415.1. As applied in Rhyne v. K-Mart Corp., and as recited by the majority, to survive rational basis review, a challenged statute must \u201cbear some rational relationship to a conceivable legitimate governmental interest.\u201d Rhyne v. K-Mart Corp., 358 N.C. 160, 180, 594 S.E.2d 1, 15 (2004) (quotations, citation, and alteration omitted). The Supreme Court in Britt II cle\u00e1rly stated that \u201cany regulation of the right to bear arms .. . must be at least reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.\u201d Britt v. North Carolina,-N.C.-,-, 681 S.E.2d 320, 322 (2009) (quotations and citation omitted). In my dissent from Britt I, I asserted that this was the proper standard of review, not rational basis as applied by the Britt I majority. Britt v. North Carolina, 185 N.C. App. 610, 621, 649 S.E.2d 402, 410 (2007) (Elmore, J., dissenting) (\u201cDespite the majority\u2019s attempted reliance on Johnson for support of a rational relationship test, however, I believe that the proper standard, as articulated in Johnson, requires that the regulation must be reasonable and be related to the achievement of preserving public peace and safety. Rather than simply requiring that the statute be rationally related to a legitimate government purpose, I therefore would require that the regulation also be reasonable.\u201d) (quotations and citations omitted). The standard articulated by the Supreme Court in Britt II is more stringent than rational basis, although certainly less stringent than intermediate or strict scrutiny. Because the majority here continues to follow the majority opinion in Britt I, which I believe to have been wrongly decided, I renew my previous dissent from Britt I.\nHowever, I agree with the conclusion reached by the majority in its analysis of defendant\u2019s as applied challenge. The majority interprets Britt II as having established a factors test for determining whether \u00a7 14-415.1 is a reasonable regulation. The factors articulated by the majority follow logically from the Supreme Court\u2019s analysis in Britt II, the pivotal question that application of those factors seeks to answer is whether the statute, as applied to defendant, is \u201can unreasonable regulation, not fairly related to the preservation of public peace and safety.\u201d Britt II, \u2014 N.C. at \u2014, 681 S.E.2d at 323. For the reasons stated in the majority, I would also hold that \u00a7 14-415.1 is not unconstitutional as applied to defendant.\nEx Post Facto and Bill of Attainder\nAs when I dissented in Britt I, I believe that \u00a7 14-415.1 violates the prohibition \u00e1gainst ex post facto laws. The 2004 amendments to the statute renders this Court\u2019s analysis in Johnson easily distinguishable from both the case at bar and Britt. To that end, I repeat the arguments I put forth in my earlier dissent:\nIn Johnson . . . we held that the 1995 statute was constitutional. At that time, it was clear to this Court that the intent of [the] legislature was to regulate the possession of dangerous weapons. Likewise, we held \u201cthat the law [was] not so punitive in effect that it should be considered punitive rather than regulatory.\u201d [Johnson, 169 N.C. App. at 308, 610 S.E.2d at 744.] In so holding, this Court relied on the following facts: \u201c[The law] continuefd] to exempt the possession of firearms within one\u2019s home or lawful place of business. The prohibition remained] limited to weapons that, because of their concealability, pose a unique risk to public safety.\u201d Id. (quoting [United States v. Farrow, 364 F.3d 551, 555 (4th Cir. 2004)]) (citations, quotations, and alterations omitted).\nApplying the same analysis to the statute as amended, I would reach a different result. The amended statute does not exempt the possession of firearms within one\u2019s home or business. Furthermore, rather than limiting the proscription \u201cto weapons that, because of their concealability, pose a unique risk to public safety,\u201d the legislature broadened the ban to essentially all weapons. Id. (citations and quotations omitted). The result is that the statute is no longer \u201cnarrowly tailored to regulate only the sorts of firearm possession by felons that, because of the concealability, power, or location of the firearm, are most likely to endanger the general public,\u201d as it was when the Farrow court reached its decision. Farrow, 364 F.3d at 555 (citation and quotations omitted). The exceptional broadness of the statute serves to undermine the legislature\u2019s stated intent of regulation and serves instead as an unconstitutional punishment.\nI would also hold that the application of the statute to [defendant] violated [defendant\u2019s]] due process rights. I recognize that \u201cthe right of individuals to bear arms is not absolute, but is subject to regulation.\u201d Johnson, 169 N.C. App. at 311, 610 S.E.2d at 746 (quoting State v. Dawson, 272 N.C. 535, 546, 159 S.E.2d 1, 9 (1968)). . . . The major differences between the 1995 and current versions of the statute lead me to conclude that the statute in its current form is no longer a reasonable regulation. Instead, I would hold that the current statute operates as an outright ban, completely divesting [defendant] of his right to bear arms without due process of law. Cf. id. (holding that the Johnson defendant was not \u201ccompletely divested of his right to bear arms as [the then current] N.C. Gen. Stat. \u00a7 14-415.1 allow[ed] him to possess a firearm at his home or place of business.\u201d).\nIn enacting the 2004 amendment, the legislature simply overreached. Thereafter, the statute operated as a punishment, rather than a regulation.\nBritt I, 185 N.C. App. at 620-21, 649 S.E.2d at 409-10 (Elmore, J., dissenting) (footnotes omitted).\nBecause I believe that \u00a7 14-415.1 operates as a punishment, rather than as a regulation, I would also find' the statute to be an unconstitutional bill of attainder.\n. For ease of reference, I refer to the Court of Appeals 2007 Britt opinion as \u201cBritt I' and the Supreme Court\u2019s 2009 Britt opinion as \u201cBritt II.\u201d\n. With respect to the majority\u2019s concern that Britt II has enabled or even required appellate courts to engage in fact finding, I do not believe this to be an issue in this case or other criminal cases. Mr. Britt filed a civil suit against the State, and the parties then moved for summary judgment. The trial court granted the State\u2019s motion for summary judgment, resulting in an order.. Here, we are dealing with a criminal defendant. The relevant facts are uncontroverted and were tried before a jury. We merely recite facts as represented during the trial phase, just as we would in any other criminal case.", "type": "concurring-in-part-and-dissenting-in-part", "author": "ELMORE, Judge," } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General E. Michael Heavner, for the State.", "The Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr. and Amanda S. Zimmer, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DOUGLAS DWAYNE WHITAKER, Defendant\nNo. COA08-1406\n(Filed 8 December 2009)\n1. Firearms and Other Weapons\u2014 possession of firearm by felon \u2014 constitutionality\u2014pr\u00e9servation of public peace and safety\nN.C.G.S. \u00a7 14-415.1, which prohibits the possession'of firearms by convicted felons, was constitutional as applied to defendant because it was a reasonable regulation that prohibited a convicted felon who violated the law on numerous occasions from possessing firearms in order to preserve public peace and safety.\n2. Appeal and Error\u2014 preservation of issues \u2014 issue decided in prior case\nOur Court of Appeals has previously concluded that N.C.G.S. \u00a7 14-415.1, which prohibits the possession of firearms by convicted felons, does not violate the prohibition against ex post facto laws and is not an unconstitutional bill of attainder.\n3. Sentencing\u2014 possession of firearm by felon \u2014 multiple convictions improper\nDefendant should have been charged with only one violation of N.C.G.S. \u00a7 14-415.1, instead of eleven, and the convictions for which defendant received arrested judgments were reversed.\nJudge ELMORE concurring in part and dissenting in part.\nAppeal by defendant from judgments entered on or about 10 June 2008 by Judge Lindsay R. Davis, Jr. in Superior Court, Moore County Heard in the Court of Appeals 22 April 2009.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General E. Michael Heavner, for the State.\nThe Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr. and Amanda S. Zimmer, for defendant-appellant." }, "file_name": "0190-01", "first_page_order": 218, "last_page_order": 240 }