{ "id": 4348146, "name": "WALTER SUTTON BAYSDEN v. THE STATE OF NORTH CAROLINA", "name_abbreviation": "Baysden v. State", "decision_date": "2011-11-15", "docket_number": "No. COA11-395", "first_page": "20", "last_page": "35", "citations": [ { "type": "official", "cite": "217 N.C. App. 20" } ], "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": "363 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151316 ], "opinion_index": -1, "case_paths": [ "/nc/363/0546-01" ] }, { "cite": "687 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "525" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(a)(2)(b)" }, { "page": "(d)(2)" }, { "page": "(a)(2)(b)" }, { "page": "(d)(2)" } ], "opinion_index": 0 }, { "cite": "2 L. Ed. 60", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 12121622 ], "year": 1803, "pin_cites": [ { "page": "73", "parenthetical": "stating that \"[i]t is emphatically the province and duty of the judicial department to say what the law is\"" } ], "opinion_index": 0, "case_paths": [ "/us/5/0137-01" ] }, { "cite": "707 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "657" } ], "opinion_index": 0 }, { "cite": "700 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152904 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0404-01" ] }, { "cite": "689 S.E.2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "404", "parenthetical": "quoting Britt, 363 N.C. at 550, 681 S.E.2d at 323" }, { "page": "404" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 190", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4173172 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "205", "parenthetical": "quoting Britt, 363 N.C. at 550, 681 S.E.2d at 323" }, { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0190-01" ] }, { "cite": "681 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2009, "pin_cites": [ { "page": "322" }, { "page": "323" }, { "page": "323" }, { "page": "323" }, { "page": "323" }, { "page": "323" }, { "page": "323" }, { "page": "322" } ], "opinion_index": 0 }, { "cite": "1 Ga. 243", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1373812 ], "year": 1846, "opinion_index": 0, "case_paths": [ "/ga/1/0243-01" ] }, { "cite": "159 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "10", "parenthetical": "citing Nunn v. State, 1 Ga. 243 (1846)" } ], "opinion_index": 0 }, { "cite": "272 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574015 ], "year": 1968, "pin_cites": [ { "page": "546", "parenthetical": "citing Nunn v. State, 1 Ga. 243 (1846)" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0535-01" ] }, { "cite": "714 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "855" } ], "opinion_index": 0 }, { "cite": "568 S.E.2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511429, 1511366, 1511589, 1511262, 1511167 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0159-03", "/nc/356/0159-01", "/nc/356/0159-05", "/nc/356/0159-02", "/nc/356/0159-04" ] }, { "cite": "558 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "507" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9365903 ], "year": 2002, "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0356-01" ] }, { "cite": "684 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "894", "parenthetical": "quoting Adams v. Jefferson-Pilot Life Ins. Co., 148 N.C. App. 356, 359, 558 S.E.2d 504, 507, disc. review denied, 356 N.C. 159, 568 S.E.2d 186 (2002)" } ], "opinion_index": 0 }, { "cite": "200 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4171791 ], "year": 2009, "pin_cites": [ { "page": "381", "parenthetical": "quoting Adams v. Jefferson-Pilot Life Ins. Co., 148 N.C. App. 356, 359, 558 S.E.2d 504, 507, disc. review denied, 356 N.C. 159, 568 S.E.2d 186 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/200/0379-01" ] }, { "cite": "576 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "319" } ], "opinion_index": 0 }, { "cite": "356 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511442 ], "year": 2003, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0642-01" ] }, { "cite": "678 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "354", "parenthetical": "quoting In re Appeal of The Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)" } ], "opinion_index": 0 }, { "cite": "363 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151090 ], "year": 2009, "pin_cites": [ { "page": "342", "parenthetical": "quoting In re Appeal of The Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0334-01" ] }, { "cite": "595 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "781" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8897331 ], "year": 2004, "pin_cites": [ { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0349-01" ] }, { "cite": "458 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790083, 790182, 790069, 790070, 790172 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0359-05", "/nc/340/0359-02", "/nc/340/0359-01", "/nc/340/0359-03", "/nc/340/0359-04" ] }, { "cite": "454 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "828" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917278 ], "year": 1995, "pin_cites": [ { "page": "180-81" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0178-01" ] }, { "cite": "684 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "46", "parenthetical": "quoting James v. Clark, 118 N.C. App. 178, 180-81, 454 S.E.2d 826, 828, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995)" } ], "opinion_index": 0 }, { "cite": "200 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4172024 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "166", "parenthetical": "quoting James v. Clark, 118 N.C. App. 178, 180-81, 454 S.E.2d 826, 828, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995)" }, { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc-app/200/0162-01" ] }, { "cite": "18 U.S.C. \u00a7 925", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 10, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "363 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151316 ], "weight": 6, "pin_cites": [ { "page": "549" }, { "page": "550" }, { "page": "550" }, { "page": "550" }, { "page": "550" }, { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0546-01" ] }, { "cite": "649 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639188 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "407" }, { "page": "407" } ], "opinion_index": 1, "case_paths": [ "/se2d/649/0402-01" ] }, { "cite": "650 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639308 ], "year": 2007, "pin_cites": [ { "page": "4", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/se2d/650/0001-01" ] }, { "cite": "623 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634713 ], "year": 2006, "pin_cites": [ { "page": "604", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 1, "case_paths": [ "/se2d/623/0600-01" ] }, { "cite": "318 U.S. 44", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 364172 ], "weight": 2, "year": 1943, "pin_cites": [ { "page": "46" }, { "page": "604" } ], "opinion_index": 1, "case_paths": [ "/us/318/0044-01" ] }, { "cite": "178 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "385", "parenthetical": "stating that the Equal Protection Clause of the XIV amendment has been expressly incorporated into Art. I, \u00a7 19 of our State Constitution" } ], "opinion_index": 1 }, { "cite": "277 N.C. 654", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567186 ], "year": 1971, "pin_cites": [ { "page": "660", "parenthetical": "stating that the Equal Protection Clause of the XIV amendment has been expressly incorporated into Art. I, \u00a7 19 of our State Constitution" } ], "opinion_index": 1, "case_paths": [ "/nc/277/0654-01" ] }, { "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": 1 }, { "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": 1, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "328 U.S. 303", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 377323 ], "weight": 2, "year": 1946, "pin_cites": [ { "page": "315", "parenthetical": "citation omitted" }, { "page": "1259", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/us/328/0303-01" ] }, { "cite": "497 U.S. 37", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6212725 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "42" }, { "page": "38-39" } ], "opinion_index": 1, "case_paths": [ "/us/497/0037-01" ] }, { "cite": "565 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "45", "parenthetical": "quoting Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 38-39 (1990)" } ], "opinion_index": 1 }, { "cite": "355 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220016 ], "year": 2002, "pin_cites": [ { "page": "625", "parenthetical": "quoting Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 38-39 (1990)" } ], "opinion_index": 1, "case_paths": [ "/nc/355/0592-01" ] }, { "cite": "185 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8211750 ], "year": 2007, "opinion_index": 1, "case_paths": [ "/nc-app/185/0610-01" ] }, { "cite": "681 S.E.2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "280" } ], "opinion_index": 1 }, { "cite": "363 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151702 ], "year": 2009, "pin_cites": [ { "page": "502" } ], "opinion_index": 1, "case_paths": [ "/nc/363/0500-01" ] }, { "cite": "95 L. Ed. 2d 697", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6222105, 1148012 ], "year": 1987, "pin_cites": [ { "page": "707" } ], "opinion_index": 1, "case_paths": [ "/us/481/0739-01", "/us/341/0001-01" ] }, { "cite": "481 U.S. 739", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6222105 ], "year": 1987, "pin_cites": [ { "page": "745" } ], "opinion_index": 1, "case_paths": [ "/us/481/0739-01" ] }, { "cite": "508 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "282", "parenthetical": "quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707 (1987)" } ], "opinion_index": 1 }, { "cite": "349 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571662 ], "year": 1998, "pin_cites": [ { "page": "491", "parenthetical": "quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707 (1987)" } ], "opinion_index": 1, "case_paths": [ "/nc/349/0483-01" ] }, { "cite": "185 N.C. App. 450", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8210269 ], "year": 2007, "pin_cites": [ { "page": "454", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/185/0450-01" ] }, { "cite": "175 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351769 ], "year": 2006, "pin_cites": [ { "page": "254-55", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/175/0250-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-288.8", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(c)(3)", "parenthetical": "defining a sawed off shotgun as a \"weapon of mass death and destruction\"" } ], "opinion_index": 1 }, { "cite": "366 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "698" } ], "opinion_index": 1 }, { "cite": "322 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515293 ], "year": 1988, "pin_cites": [ { "page": "63" } ], "opinion_index": 1, "case_paths": [ "/nc/322/0061-01" ] }, { "cite": "399 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "314-15" } ], "opinion_index": 1 }, { "cite": "328 N.C. 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545728 ], "year": 1991, "pin_cites": [ { "page": "29" } ], "opinion_index": 1, "case_paths": [ "/nc/328/0024-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 1 }, { "cite": "700 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "219" } ], "opinion_index": 1 }, { "cite": "364 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152904 ], "year": 2010, "pin_cites": [ { "page": "410" } ], "opinion_index": 1, "case_paths": [ "/nc/364/0404-01" ] }, { "cite": "689 S.E.2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "399", "parenthetical": "citations omitted" }, { "page": "403" } ], "opinion_index": 1 }, { "cite": "201 N.C. App. 190", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4173172 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "198", "parenthetical": "citations omitted" }, { "page": "202-03" } ], "opinion_index": 1, "case_paths": [ "/nc-app/201/0190-01" ] }, { "cite": "681 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "323" } ], "opinion_index": 1 }, { "cite": "159 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "10", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "272 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574015 ], "year": 1968, "pin_cites": [ { "page": "547", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/272/0535-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "363 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151316 ], "weight": 4, "pin_cites": [ { "page": "550" }, { "page": "550" } ], "opinion_index": 1, "case_paths": [ "/nc/363/0546-01" ] } ], "analysis": { "cardinality": 1374, "char_count": 39656, "ocr_confidence": 0.73, "pagerank": { "raw": 1.0326393611922346e-07, "percentile": 0.5485750327528748 }, "sha256": "84aaf4cfb8c71ebd836e8ca2ada7931ad5a75c7e0e503f3656c7866d1380f0a1", "simhash": "1:1d8070762e2b0ed3", "word_count": 6500 }, "last_updated": "2023-07-14T22:07:22.966851+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS concurs.", "Judge BEASLEY dissents by separate opinion." ], "parties": [ "WALTER SUTTON BAYSDEN v. THE STATE OF NORTH CAROLINA" ], "opinions": [ { "text": "ERVIN, Judge.\nPlaintiff Walter Sutton Baysden appeals from an order rejecting his challenge to the constitutionality of the Felony Firearms Act, N.C. Gen. Stat. \u00a7 14-415.1 et seq., both facially and as applied to the facts surrounding his personal situation. More specifically, Plaintiff argues that the Felony Firearms Act violates his right to bear arms as guaranteed by the Second Amendment to the United States Constitution as made applicable to the States by the due process clause of the Fourteenth Amendment to the United States Constitution and Article I, Sections 19 and 30 of the North Carolina Constitution; the prohibition against the enactment of ex post facto laws and bills of attainder set out in Article I, Section 10 of the United States Constitution and Article I, Section 16 of the North Carolina Constitution; and the equal protection guarantees afforded by the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution. After careful consideration of Plaintiffs challenges to the trial court\u2019s judgment in light of the record and the applicable law, we conclude that the trial court\u2019s judgment should be reversed and that this case should be remanded to the Wake County Superior Court for the entry of summary judgment in favor of Plaintiff.\nI. Factual Background\nA. Substantive Facts\nOn 8 November 1972, Plaintiff was convicted in Virginia Beach, Virginia, for the felonious possession of an unlawful weapon (a sawed-off shotgun). At that time, Plaintiff was 22 years old. Plaintiff had discovered the shotgun, which was \u201crusted up and inoperable,\u201d under a house on the beach. Plaintiff never engaged in any violent conduct while in possession of the sawed-off shotgun.\nOn 26 April 1977, Plaintiff was convicted for the felonious sale of marijuana in Norfolk, Virginia. Although Plaintiff admitted having experimented with marijuana when he was young, he denied having ever sold marijuana or having used or possessed illegal drugs since 1977.\nIn 1982, the Governor of Virginia restored the firearms-related rights that Plaintiff had forfeited as a result of these two convictions. A year later, the Bureau of Alcohol, Tobacco, and Firearms of the United States Department of the Treasury granted Plaintiffs application for relief from federal firearms disabilities pursuant to 18 U.S.C. \u00a7 925(c).\nPlaintiff has resided in a house that he owns with his wife of 32 years in Onslow County since 1995. Since his conviction for selling marijuana in 1977, Plaintiff has not been charged with or convicted of any criminal offense other than minor traffic violations. In addition, Plaintiff has never been accused of engaging in acts of domestic violence or been the subject of either a protective order issued pursuant to Chapter 50B of the General Statutes or a no-contact order issued pursuant to Chapter 50C of the General Statutes.\nPlaintiff was employed by the United States Department of Defense from 1981 until his retirement in 2007. During the course of his employment by the Department of Defense, Plaintiff maintained aircraft for the United States Navy. While employed by the Department of Defense, Plaintiff passed the background checks required for him to obtain necessary government security clearances and was decorated for exemplary service during a tour of duty in Iraq.\nAfter the restoration of his right to use and possess firearms, Plaintiff owned firearms, which he used for self-defense purposes. In addition, Plaintiff collected guns and frequently participated in shooting matches. Plaintiff\u2019s possession and use of firearms after the restoration of his gun-related rights in 1983 never resulted in a complaint of any nature.\nUpon moving to North Carolina in 1995, Plaintiff limited his possession of firearms to his home and business premises, consistent with North Carolina law as it existed at that time. After the enactment of the 2004 amendments to the Felony Firearms Act, which precluded convicted felons from possessing firearms at any location and under any set of circumstances, Plaintiff \u201cdispossessed himself of all firearms.\u201d Plaintiff has never been charged with violating North Carolina\u2019s firearms statutes.\nB. Procedural History\nOn 6 May 2010, Plaintiff filed a complaint seeking a declaration that the Felony Firearms Act is unconstitutional, both facially and as applied to him. On 1 June 2010, the State filed an answer denying the material allegations of Plaintiff\u2019s complaint. On 23 August 2010, after obtaining leave of court to do so, Plaintiff filed an amended complaint which reflected the 2010 amendments to the Felony Firearms Act enacted by the General Assembly and reiterated his request for a declaration that the Felony Firearms Act, as amended, violated his federal and state constitutional rights, both facially and as applied. On 13 September 2010, the State filed an amended answer denying the material allegations of Plaintiff\u2019s amended complaint.\nOn the same date, the State filed a motion seeking, alternatively, the dismissal of Plaintiff\u2019s complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rules 12(b)(1), 12(b)(2), 12(b)(3), and 12(b)(6), or the entry of summary judgment in the State\u2019s favor pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 56. On 13 October 2010, Plaintiff filed a motion seeking the entry of summary judgment in his favor. After providing the parties with an opportunity to be heard at the 5 January 2011 civil session of the Wake County Superior Court, the trial court entered an order denying the State\u2019s dismissal motion and Plaintiff\u2019s summary judgment motion and granting the State\u2019s summary judgment motion on 11 February 2011. Defendant noted an appeal to this Court from the trial court\u2019s order.\nII. Legal Analysis\nA. Standard of Review\nA motion for summary judgment is properly granted \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c). \u201cA defendant may show entitlement to summary judgment by: \u2018(1) proving that an essential element of the plaintiffs case is nonexistent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense which would bar the claim.\u2019 \u201d Carcano v. JBSS, LLC, 200 N.C. App. 162, 166, 684 S.E.2d 41, 46 (2009) (quoting James v. Clark, 118 N.C. App. 178, 180-81, 454 S.E.2d 826, 828, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995)). As a result, \u201c[a]n appeal from an order granting summary judgment solely raises issues of whether on the face of the record there is any genuine issue of material fact, and whether the prevailing party is entitled to judgment as a matter of law.\u201d Carcano, 200 N.C. App. at 166, 684 S.E.2d at 46 (citing Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 352, 595 S.E.2d 778, 781 (2004)). A trial court\u2019s order granting or denying summary judgment is reviewed by this Court on a de novo basis, so that we \u201c \u2018consider[] the matter anew and freely substitute[our] own judgment\u2019 for that of the lower tribunal.\u201d Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 342, 678 S.E.2d 351, 354 (2009) (quoting In re Appeal of The Greens of Pine Glen Ltd. P\u2019ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). As a result of the fact that, while \u201cthe parties disagree on the legal significance of the established facts, the facts themselves are not in dispute[,]\u201d Musi v. Town of Shallotte, 200 N.C. App. 379, 381, 684 S.E.2d 892, 894 (2009) (quoting Adams v. Jefferson-Pilot Life Ins. Co., 148 N.C. App. 356, 359, 558 S.E.2d 504, 507, disc. review denied, 356 N.C. 159, 568 S.E.2d 186 (2002)), \u201cthe only issue that we need to address is the extent, if any, to which the trial court erred,\u201d Smith v. County of Durham, _ N.C. App. __, _, 714 S.E.2d 849, 855 (2011), by concluding that the Felony Firearms Act did not violate any of Plaintiff\u2019s state or federal constitutional rights, either facially or as applied to a person in Plaintiff\u2019s position.\nB. Substantive Legal Analysis\nAccording to Article I, Section 30 of the North Carolina Constitution:\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.\nAs a result of the fact that \u201cNorth Carolina decisions have interpreted our Constitution as guaranteeing the right to bear arms to the people in [both] a collective sense . . . and also to individuals\u201d and that \u201cthe right of individuals to bear arms is not absolute, but is subject to regulation,\u201d State v. Dawson, 272 N.C. 535, 546, 159 S.E.2d 1, 10 (1968) (citing Nunn v. State, 1 Ga. 243 (1846)), we are required to \u201cdetermine whether, as applied to [P]laintiff, N.C. [Gen. Stat.] \u00a7 14-415.1 is a reasonable regulation.\u201d Britt v. State, 363 N.C. 546, 549, 681 S.E.2d 320, 322 (2009).\nThe legal principles governing \u201cas-applied\u201d constitutional challenges to the Felony Firearms Act have been enunciated in recent decisions of the Supreme Court and this Court. \u201cBased on the facts of plaintiffs crime, his long post-conviction 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. [Gen. Stat.] \u00a7 14-[415].l is an unreasonable regulation, not fairly related to the preservation of public peace and safety.\u201d Britt, 363 N.C. at 550, 681 S.E.2d at 323. Put another way, \u201cit 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.\u201d Id. In considering an \u201cas-applied\u201d challenge to the application of the Felony Firearms Act to a specific individual, our analysis must \u201cfocus [] on five factors . . . : (1) the type of felony convictions, particularly whether they \u2018involved violence or the threat of violence,\u2019 (2) the remoteness in time of the felony convictions[,] (3) the felon\u2019s history of \u2018law-abiding conduct since [the] crime,\u2019 (4) the felon\u2019s history of \u2018responsible, lawful firearm possession\u2019 during a time period when possession of firearms was not prohibited, and (5) the felon\u2019s \u2018assiduous and proactive compliance with the 2004 amendment.\u2019 \u201d State v. Whitaker, 201 N.C. App. 190, 205, 689 S.E.2d 395, 404 (2009) (quoting Britt, 363 N.C. at 550, 681 S.E.2d at 323), aff\u2019d on other grounds, 364 N.C. 404, 700 S.E.2d 215 (2010). As a result of the fact that the trial court entered a detailed order spelling out the information disclosed by the undisputed record evidence, we clearly have a sufficient evidentiary record upon which to evaluate the validity of Plaintiff\u2019s claim, State v. Buddington, _ N.C. App. _, _, 707 S.E.2d 655, 657 (2011) (stating that, \u201c[i]n order for [a party] to prevail [based upon] an as-applied constitutional challenge to N.C. Gen. Stat. \u00a7 14-415.1, he must present evidence which would allow the trial court to make findings of fact\u201d relating to the factors enunciated in the Supreme Court\u2019s decision in Britt and this Court\u2019s decision in Whitaker), and will proceed to address Plaintiff\u2019s claim on the merits.\nThe analysis outlined in Britt and Whitaker is relatively straightforward. Nothing in either Britt or Whitaker indicates that any one of the five factors listed above is determinative. Instead, each of the five factors is a consideration that must be taken into account in making the required constitutional determination. As a result, the \u201cfive factor\u201d analysis set out in Britt and Whitaker is not a hard and fast set of rules; instead, the five factors constitute a set of criteria that must be considered in determining the validity of a litigant\u2019s \u201cas-applied\u201d challenge to the constitutionality of the Felony Firearms Act.\nAfter carefully examining the undisputed evidentiary materials in the record, we believe that Plaintiff is in essentially the same position as Mr. Britt. As the record clearly reflects, Plaintiff was convicted of two felony offenses, neither of which involved any sort of violent conduct, between three and four decades ago. Since that time, Plaintiff has been a law-abiding citizen. After having had his firearms-related rights restored, Plaintiff used such weapons in a safe and lawful manner from the date of restoration until he became subject to the prohibition worked by the 2004 amendment to the Felony Firearms Act on 1 December 2004. At that point, Plaintiff took action to ensure that he did not unlawfully possess any firearms and has \u201cassiduously and proactively\u201d complied with N.C. Gen. Stat. \u00a7 14-415.1 since that time. Instead of being criminally charged with having violated N.C. Gen. Stat. \u00a7 14-415.1, like Mr. Whitaker and Mr. Buddington, Plaintiff, like Mr. Britt, initiated the present declaratory judgment action for the purpose of obtaining a legal determination of the validity of his claim to have the constitutional right to possess firearms despite his prior felony convictions. As a result, we are unable to see any material distinction between the facts at issue in the Supreme Court\u2019s decision in Britt and the facts at issue here.\nThe State, the trial court, and our dissenting colleague appear to conclude that Plaintiff\u2019s \u201cas-applied\u201d challenge should fail because (1) the 2010 amendments to the Felony Firearms Act expressly exclude Plaintiff from the class of individuals eligible to seek the restoration of their right to possess a firearm, (2) Plaintiff committed a \u201cviolent crime,\u201d and (3) Plaintiff has two, rather than one, prior felony convictions. We do not find this logic persuasive.\nThe fact that the Felony Firearms Act has been amended to allow \u201cexception or possible relief from the statute\u2019s operation,\u201d Britt, 363 N.C. at 550, 681 S.E.2d at 323, since Brill is not particularly relevant to the required constitutional analysis. As was the case with respect to Mr. Britt at the time of the Supreme Court\u2019s decision, there is no statutory mechanism which Plaintiff can use to seek relief from the operation of N.C. Gen. Stat. \u00a7 14-415.1 given the facts surrounding his own peculiar situation. The enactment of an exception to the prohibition worked by N.C. Gen. Stat. \u00a7 14-415.1 that permits a certain group of persons to obtain restoration of the right to possess a firearm for which Plaintiff does not qualify is not one of the five factors specified in Brill and Whitaker. Although the Supreme Court mentioned \u201cthe lack of any exception or possible relief from the statute\u2019s operation\u201d in Britt, 363 N.C. at 550, 681 S.E.2d at 323, it appears to have done so for the purpose of justifying its decision to address Mr. Britt\u2019s \u201cas-applied\u201d constitutional challenge to N.C. Gen. Stat. \u00a7 14-415.1 on the merits rather than for the purpose of sending a signal to the General Assembly that the enactment of an amendment to the Felony Firearms Act allowing a person with a single non-violent felony conviction to seek the restoration of his or her state constitutional right to possess a firearm would insulate the relevant statutory provisions from subsequent \u201cas-applied\u201d constitutional challenges. At bottom, a decision to reject Plaintiff\u2019s claim based on the enactment of the 2010 amendment to the Felony Firearms Act would be inconsistent with the judiciary\u2019s obligation to make constitutional determinations. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60, 73 (1803) (stating that \u201c[i]t is emphatically the province and duty of the judicial department to say what the law is\u201d). As a result, the fact that there is no statutory mechanism which Plaintiff can utilize to seek relief from the prohibition on firearm possession worked by N.C. Gen. Stat. \u00a7 14-415.1 is, in actuality, a reason for considering Plaintiff\u2019s \u201cas-applied\u201d constitutional challenge to the Felony Firearms Act on the merits rather than a reason for upholding the existing statute as applied to Plaintiff.\nSecondly, neither of Plaintiffs convictions involved the commission of a \u201cviolent\u201d crime as that expression is used in Brill and Whitaker. According to the undisputed record evidence, Plaintiff was convicted for possessing an illegal sawed-off shotgun in 1972 and for selling marijuana in 1977. As the trial court noted, Defendant \u201coffered no evidence disputing Plaintiffs\u201d contention that the sawed-off shotgun in question was \u201cfound under a house on the beach, \u2018rusted up and inoperable,\u2019 with a firing pin that \u2018wouldn\u2019t move.\u2019 \u201d In determining that one of Plaintiff\u2019s prior felony convictions involved a \u201cviolent crime,\u201d the trial court noted that the 2010 amendment to the Felony Firearms Act excludes any \u201coffense that includes the possession ... of a'firearm or other deadly weapon as an essential or nonessential element,\u201d N.C. Gen. Stat. \u00a7 14-415.4(a)(2)(b), from the definition of a \u201cnonviolent felony.\u201d We do not believe that these statutory definitions control our determination of whether Plaintiff\u2019s prior conviction for possessing a sawed-off shotgun constituted a \u201cviolent\u201d felony conviction for purposes of the constitutional analysis required by Britt and Whitaker. Instead, we are of the opinion that the Supreme Court\u2019s references to Mr. Britt\u2019s \u201cuncontested lifelong nonviolence towards other citizens,\u201d Britt, 363 N.C. at 550, 681 S.E.2d at 323, and the reiteration of similar language in Whitaker require us to focus on the litigant\u2019s actual conduct rather than upon the manner in which the General Assembly has categorized or defined certain offenses. As we have already noted, statutory definitions adopted by the General Assembly are simply not controlling for constitutional purposes. In light of the undisputed evidence that the sawed-off shotgun that Plaintiff possessed in 1972 was inoperable and the absence of any indication that Plaintiff did anything other than possess that inoperable object, we are unable to conclude that Plaintiff\u2019s prior convictions include \u201cviolent\u201d crimes for purposes of the constitutional analysis required by Britt and Whitaker.\nFinally, we do not believe that the fact that Plaintiff has two, rather than one, prior felony convictions demonstrates the appropriateness of a finding in the State\u2019s favor. Nothing in Britt suggests the existence of such a limitation on a litigant\u2019s ability to bring a successful \u201cas-applied\u201d challenge to the constitutionality of the Felony Firearms Act. On the contrary, the reference to \u201cfelony convictions\u201d in Whitaker, 201 N.C. App. at 205, 689 S.E.2d at 404, clearly indicates that no \u201csingle-conviction\u201d limitation can be found in existing North Carolina jurisprudence relating to such \u201cas-applied\u201d constitutional challenges. Instead, Britt and Whitaker suggest that the appropriate inquiry requires an analysis of the number, age, and severity of the offenses for which the litigant has been convicted. In view of the fact that Plaintiff\u2019s convictions are both older than the single conviction at issue in Britt and the fact that both Plaintiff and Mr. Britt have had lengthy post-conviction histories of law-abiding conduct, the fact that Plaintiff has two, rather than one, prior felony convictions, while relevant, is not dispositive. As a result, the fact that the undisputed evidence relating to \u201cthe facts of [Plaintiff\u2019s crime[s], his long post-conviction history of respect for the law, the absence of any evidence of violence by the [P]laintiff, and the lack of any exception or possible relief from the statute\u2019s operation,\u201d Britt, 363 N.C. at 550, 681 S.E.2d at 323, require us to sustain Plaintiff\u2019s \u201cas-applied\u201d challenge to the Felony Firearms Act despite the fact that he has two, rather than one, prior felony convictions.\nThus, for the reasons set forth above, we conclude that Plaintiff\u2019s \u201cas-applied\u201d challenge to N.C. Gen. Stat. \u00a7 14-415.1 has merit and that the trial court erred by granting the State\u2019s summary judgment motion and denying the summary judgment motion filed by Plaintiff. Having concluded that Plaintiff has a right under Article I, Section 30 of the North Carolina Constitution to possess a firearm despite the prohibition set out in N.C. Gen. Stat. \u00a7 14-415.1, we need not address Plaintiff\u2019s other challenges to the trial court\u2019s order. Britt, 363 N.C. at 549, 681 S.E.2d at 322 (stating that, \u201c[b]ecause we agree with plaintiff that the application of N.C. [Gen. Stat.] \u00a7 14-415.1 to him violates Article I, Section 30 of the North Carolina Constitution, it is unnecessary for us to address any of plaintiff\u2019s remaining arguments, and we express no opinion on their merit\u201d). As a result, the trial court\u2019s order is reversed and this case is remanded to the Wake County Superior Court for the entry of summary judgment in favor of Plaintiff based upon his \u201cas-applied\u201d challenge to the constitutionality of the Felony Firearms Act.\nREVERSED AND REMANDED.\nJudges STEPHENS concurs.\nJudge BEASLEY dissents by separate opinion.\n. Plaintiff is not eligible to seek the restoration of his right to possess a firearm pursuant to newly enacted N.C. Gen. Stat. \u00a7 14-415.4 because he has more than one prior felony conviction, N.C. Gen. Stat. \u00a7 14-415.4(d)(2), and because one of his prior convictions involved \u201cthe possession ... of a firearm or other deadly weapon as an essential or nonessential element of the offense,\u201d N.C. Gen. Stat. \u00a7 14-415.4(a)(2)(b), a fact which precludes him from establishing that his prior conviction was for a nonviolent felony as that term is used in the relevant statutory language. N.C. Gen. Stat. \u00a7 14-415.4(d)(2).\n. We need not address the extent to which Plaintiffs conviction for selling marijuana constituted the commission of a violent offense in any detail given that the fact that Mr. Britt had been convicted of possession of methaqualone with the intent to sell or deliver did not preclude the Supreme Court from ruling in his favor.\n. Our dissenting colleague contends that, by focusing on the facts revealed by the record developed in the trial court, we are impermissibly forcing the State \u201cto retry the case against Plaintiff\u2019 and analogizes the inquiry that should be made in evaluating the merits of an \u201cas-applied\u201d challenge to the Felony Firearms Act to that which must be conducted in determining the number of prior record points that should be awarded for out-of-state convictions pursuant to N.C. Gen. Stat. \u00a7 15A-1340.14(e). Aside from our conclusion that the approach outlined in the text is required by Britt and Whitaker, we do not believe that the comparison of the elements of specific out-of-state offenses with the elements of specific North Carolina offenses required for purposes of resolving the legal issue of \u201csubstantial similarity,\u201d State v. Fortney, _ N.C. App. _, _, 687 S.E.2d 518, 525 (2010), is in any way comparable to the determination of whether, as a matter of fact, a litigant committed a violent crime for purposes of the inquiry required by Article I, Section 30 of the North Carolina Constitution. In addition, the fact that the State is entitled to investigate and conduct discovery before seeking or responding to a request for summary judgment provides ample opportunity for the development of a record concerning the extent, if any, to which the felony for which a litigant was previously convicted constituted a \u201cviolent crime.\u201d", "type": "majority", "author": "ERVIN, Judge." }, { "text": "BEASLEY, Judge,\ndissenting.\nAfter review of the record and the applicable law, I believe that the North Carolina Felony Firearms Act, N.C. Gen. Stat. \u00a7 14-415.1 (2009), constitutionally applies to Plaintiff, and I would therefore affirm the trial court\u2019s order granting summary judgment to the State on that issue. Accordingly, I would review Plaintiff\u2019s other claims on their merits, and would affirm the trial court\u2019s order with regard to those claims as well. Thus, I respectfully dissent.\nI.\nI first address Plaintiff\u2019s contention that the North Carolina Felony Firearms Act (the Act) is unconstitutional as applied to him, as that is the sole issue decided by the majority.\nOur Supreme Court has recognized that\n[t]he 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.\nState v. Dawson, 272 N.C. 535, 547, 159 S.E.2d 1, 10 (1968)(citation omitted).\nBecause Plaintiff brings an as applied challenge to the Act, the question before this Court is whether the Act is a reasonable regulation when applied to him. In support of his argument that the Act is unreasonable when applied to him, Plaintiff, and subsequently the majority of this court, rely heavily on our Supreme Court\u2019s opinion in Britt v. State (Britt II), 363 N.C. 546, 681 S.E.2d 320 (2009). In Britt II, the Supreme Court found that the Act, prior to the 2010 amendments, was unconstitutional as applied to the plaintiff Barney Britt. In stating its rationale for this holding, the Supreme Court reasoned that\n[b]ased on the facts of plaintiff\u2019s crime, his long post-conviction 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 14-415.1 is an unreasonable regulation ... .\nBritt II, 363 N.C. at 550, 681 S.E.2d at 323.\nSince Britt II was decided, the Act has been amended to allow for the restoration of firearms rights to felons who meet certain requirements. The General Assembly has ensured that the Act will no longer operate as a regulation towards those situated similarly to the plaintiff in Britt II. Plaintiff is expressly excluded from the class of felons who can apply to have their rights restored because one of his crimes was a Class F felony that includes possession of a firearm as an essential element of the offense, and because he has more than one conviction. See N.C. Gen. Stat. \u00a7 14-415.4(a)(2); \u00a7 14-415.4(d)(2) (20 ll). Thus, Plaintiff falls into the class of felons that our legislature intended to prohibit from owning firearms.\nIt is well settled that \u201ca statute enacted by the General Assembly is presumed to be constitutional.\u201d Wayne County Citizens Assn. for Better Tax Control v. Wayne County Bd. of Commrs., 328 N.C. 24, 29, 399 S.E.2d 311, 314-15 (1991). \u201cA statute will not be declared unconstitutional unless this conclusion is so clear that no reasonable doubt can arise, or the statute cannot be upheld on any reasonable ground.\u201d Id. (citing Poor Richard\u2019s, Inc. v. Stone, 322 N.C. 61, 63, 366 S.E.2d 697, 698 (1988)).\n' Aside from the 2010 amendments to the Act, the fact that Plaintiff committed a violent crime makes this case distinguishable from Britt II. See N.C. Gen. Stat. \u00a7 14-288.8(c)(3) (2009) (defining a sawed off shotgun as a \u201cweapon of mass death and destruction\u201d). It is certainly reasonable for the General Assembly to decide that those felons who have not committed more than one crime, and have not committed any violent crimes, should be afforded an opportunity to have their rights to own firearms restored while repeat felons and those convicted of possession of dangerous firearms should not.\nIn concluding that Plaintiff has not committed any violent crimes, the majority focuses on Plaintiffs assertion that the sawed off shotgun in his possession was inoperable, and comments that the State failed to produce evidence that disputed this assertion. This argument is unavailing. It is not the State\u2019s duty to re-try the cases against Plaintiff. In the analogous context of sentencing an offender with convictions from other jurisdictions pursuant to the Structured Sentencing Act, if the State shows by a preponderance of the evidence that an offense classified as a felony in another jurisdiction is classified as a Class I felony or higher in North Carolina, the conviction from the other jurisdiction is treated as that class of felony for assigning prior record points. N.C. Gen. Stat. \u00a7 15A-1340.14(e) (2009). Our courts do not re-weigh the evidence in the other jurisdiction\u2019s cases; we simply compare the statutory definitions. As this Court has previously stated, \u201c[t]he comparison of the elements of an out-of-state criminal offense to those of a North Carolina criminal offense does not require the resolution of disputed facts. Rather, it involves statutory interpretation, which is a question of law.\u201d State v. Hanton, 175 N.C. App. 250, 254-55, 623 S.E.2d 600, 604 (2006)(internal quotations and citations omitted). The same rationale should be applied here. Thus, I would overrule this argument.\nII.\nPlaintiff also argues that the Act is unconstitutional on its face, as it violates Article I, Section 30 of our state constitution, which provides \u201cthe right of the people to keep and bear arms shall not be infringed . . . .\u201d N.C. Const, art. I, \u00a7 30. \u201cThe standard of review for questions concerning constitutional rights is de novo.\u201d Row v. Row (Deese), 185 N.C. App. 450, 454, 650 S.E.2d 1, 4 (2007) (citation omitted). Plaintiff carries the burden of proving that the Act is facially unconstitutional, and to do so he \u201cmust establish that no set of circumstances exists under which the [a]ct would be valid. The fact that a statute might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.\u201d State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998) (quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707 (1987)) (internal quotation marks omitted). Facial challenges are rarely upheld \u201cbecause it is the role of the legislature, rather than this Court, to balance disparate interests and find a workable compromise among them.\u201d Beaufort Cty. Bd. of Educ. v. Beaufort Cty. Bd. of Comm\u2019rs, 363 N.C. 500, 502, 681 S.E.2d 278, 280 (2009).\nAt the outset, I note that although Plaintiff argues for a stronger standard of review for his constitutional challenges, \u201c[t]he 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.\u201d State v. Whitaker (Whitaker I), 201 N.C. App. 190, 198, 689 S.E.2d 395, 399 (2009) (citations omitted). Further, this Court has already considered, and rejected, facial challenges to the Act prior to the 2010 amendments. See Britt v. State (Britt I), 185 N.C. App. 610, 649 S.E.2d 402 (2007), rev\u2019d on other grounds, 363 N.C. 546, 681 S.E.2d 320 (2009); Whitaker I, 201 N.C. App at 202-03, 689 S.E.2d at 403. The Act was amended subsequent to those decisions, but the 2010 amendments do not impose any additional restriction of felons\u2019 rights to possess firearms. In fact, those amendments provide a process of restoration of rights for certain classes of felons. I decline to hold that this amendment makes an otherwise rational statute irrational, in the same way that our Supreme Court declined to find that the exception in the Act for antique firearms made the otherwise rational statute irrational. See State v. Whitaker (Whitaker II), 364 N.C. 404, 410, 700 S.E.2d 215, 219 (2010). Plaintiff does not meet his heavy burden of showing that the Act is facially unconstitutional.\nIII.\nPlaintiff next asserts that the Act is an ex post facto law, a bill of attainder, or both. As a basis for this argument, Plaintiff contends that when the General Assembly amended the Act in 2004 and 2010, it effectively increased the punishment for his past crimes without the benefit of a judicial hearing, because he was stripped of the right to bear arms.\nEx post facto laws are expressly prohibited by the United States Constitution and the North Carolina State Constitution. See U.S. Const, art. I, \u00a7 10; N.C. Const, art. I, \u00a7 16. The constitutional prohibition on ex post facto laws implicates four types of laws:\n1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that' alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.\nState v. Wiley, 355 N.C. 592, 625, 565 S.E.2d 22, 45 (2002) (quoting Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 38-39 (1990)) (citations omitted)). Article I, Section 10 of the U.S. Constitution also prohibits the passing of a bill of attainder, which \u201cis a legislative act which inflicts punishment without a judicial trial.\u201d United States v. Lovett, 328 U.S. 303, 315, 90 L. Ed. 1252, 1259 (1946) (citation omitted).\nThe question of whether the Act is an impermissible ex post facto law or bill of attainder has already been considered by, and rejected by, our Supreme Court in Whitaker II. However, Plaintiff argues that his case is distinguishable from the plaintiff in Whitaker II because the plaintiff in Whitaker II had violated the Act whereas here, Plaintiff has complied with the Act at all times, and therefore should not be subjected to what he considers additional punishment. Plaintiff overlooks that this Court has already rejected the argument that the Act is an ex post facto law or a bill of attainder when applied to a plaintiff who had not violated the Act. In Britt I, we held:\n[b]ecause the intent of the legislature was to create a non-punitive, regulatory scheme by amending N.C.G.S. \u00a7 14-415.1, and because the result of the amended statute is not so punitive in nature and effect as to override the legislative intent, N.C.G.S. \u00a7 14-415.1 is a non-punitive, regulatory scheme that does not violate the ex post facto clause under either the North Carolina Constitution or the United States Constitution.\n185 N.C. App. at 616, 649 S.E.2d at 407. Because we found that the Act was not a form of punishment, we also found that it could not be an impermissible bill of attainder that imposes \u201cpunishment\u201d without a judicial trial. See id. at 617, 649 S.E.2d at 407. Our decision in Britt I was overruled only in regard to our analysis of the as applied challenge. See Britt II, 363 N.C. at 550, 681 S.E.2d at 323 (\u201c[W]e reverse the decision of the Court of Appeals to the extent that court determined N.C.G.S. \u00a7 14-415.1 can be constitutionally applied to plaintiff.\u201d) Thus, we remain bound by the former decision of this Court. See In the Matter of Appeal from 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)). The 2010 amendments to the Act have no bearing on the ex post facto and bill of attainder claims. Accordingly, this issue has already been decided.\nIV.\nPlaintiffs final argument is that the Act violates the Equal Protection Clause of both the U.S. and North Carolina Constitutions, which guarantee equal protection of the law for all citizens. See Kresge Co. v. Davis, 277 N.C. 654, 660, 178 S.E.2d 382, 385 (1971) (stating that the Equal Protection Clause of the XIV amendment has been expressly incorporated into Art. I, \u00a7 19 of our State Constitution). Plaintiff argues that the Act is overbroad in prohibiting any felons from owning a firearm, and thus violates his right of equal protection under the law.\nPlaintiff insists that this issue should be reviewed under the standard of strict scrutiny, as he repeatedly refers to \u201ca compelling state interest.\u201d If this Court were to assume, arguendo, that Plaintiff is correct, his argument would be without merit. Although Plaintiff bases his argument on the 2004 amendments to the Act, his argument cannot be decided without considering the Act with the 2010 amendments included. The Act no longer prohibits all felons from owning firearms interminably; nonviolent felons can apply to have their rights to possess firearms restored. Thus, the distinction the General Assembly made was not only between felons and nonfelons, as Plaintiff asserts, but between felons with convictions of violent crimes and nonviolent felons. The trial court properly asserted that the distinction between felons whose crimes involved firearms and those whose crimes did not involve firearms is necessary to serve the compelling state interest in public safety.\nPlaintiff also attempts to assert an Equal Protection claim on behalf of the family members of those felons who have lost their right to possess firearms. I would decline to address this issue, because Plaintiff does not have standing to assert this claim. These families, including Plaintiff\u2019s wife, are not parties to this proceeding, and there is no basis on which we find that Plaintiff has standing to assert a claim on behalf of these families\u2019 right to bear arms when they do not assert that claim on their own behalf. See Tileston v. Ullman, State\u2019s Attorney, et al., 318 U.S. 44, 46, 87 L. Ed. 603, 604 (1943).\n. N.C. Gen. Stat \u00a7 14-415.4 Was an amendment to the Act which allows certain felons to petition for restoration of their rights to own firearms. It was made effective 1 February 2011 by 2010 N.C. Sess. Laws ch. 108, \u00a7 7.", "type": "dissent", "author": "BEASLEY, Judge," } ], "attorneys": [ "Dan L. Hardway Law Office, by Dan L. Hardway, for Plaintiff-Appellant.", "Attorney General Roy Cooper, by Special Deputy Attorney General John J. Aldridge, III, for the State." ], "corrections": "", "head_matter": "WALTER SUTTON BAYSDEN v. THE STATE OF NORTH CAROLINA\nNo. COA11-395\n(Filed 15 November 2011)\nConstitutional Law \u2014 Second Amendment \u2014 Felony Firearms Act \u2014 unconstitutional as applied\nThe trial court erred by granting summary judgment for the State and denying plaintiff\u2019s \u201cas applied\u201d constitutional challenge to N.C.G.S. \u00a7 14-415.1, the Felony Firearms Act (Act). Although plaintiff had been convicted in Virginia in the 1970s of possessing a sawed-off shotgun and of the felonious sale of marijuana, the circumstances of neither involved any sort of violent conduct and plaintiff has been a law abiding citizen ever since; he was in essentially the same position as the plaintiff in Britt v. State, 363 N.C. 546. The fact that the Act has been amended since Britt to allow exception or possible relief was not particularly relevant to the constitutional analysis because there was-no statutory mechanism which plaintiff could use to seek relief given his particular situation. The fact that plaintiff had two rather than one prior felony conviction did not demonstrate the appropriateness of a finding for the State.\nJudge BEASLEY dissenting.\nAppeal by plaintiff from order entered 11 February 2011 by Judge Lucy N. Inman in Wake County Superior Court. Heard in the Court of Appeals 28 September 2011.\nDan L. Hardway Law Office, by Dan L. Hardway, for Plaintiff-Appellant.\nAttorney General Roy Cooper, by Special Deputy Attorney General John J. Aldridge, III, for the State." }, "file_name": "0020-01", "first_page_order": 30, "last_page_order": 45 }