If a North Carolina felon's firearm rights were restored under the old rule (five years after release), can the State or the federal government still prosecute him for possessing a firearm after the 1995 NC amendment tightened the rules?

Plain-English summary

ATF attorney Michael Martin asked NC AG how the State's 1995 amendment to the Felony Firearms Act, N.C.G.S. § 14-415.1, interacted with felons whose firearm rights had already been restored under the prior version of the statute. Before December 1, 1995, the statute let ex-felons possess firearms again once five years had passed since the later of conviction or release from probation, parole, or incarceration. The 1995 amendment scrapped that five-year window, broadly prohibited any prior felon from possessing handguns or specified firearms (except at home or place of business), and explicitly reached "any felony conviction" occurring "before, on, or after December 1, 1995."

Chief Deputy AG Andrew A. Vanore, Jr. and Assistant AG John J. Aldridge, III concluded that prosecution would be appropriate. The retroactive sweep of the 1995 amendment matters in two layers. As a matter of NC law, the statute's text is unambiguous: pre-1995 convictions are predicate convictions for purposes of the current felon-in-possession ban. As a matter of federal law, 18 U.S.C. § 922(g)(1) treats a person as having been "convicted" of a disqualifying felony unless the conviction has been expunged, set aside, pardoned, or had civil rights restored without limitation on firearms. The Fourth Circuit's United States v. McLean, 904 F.2d 216 (1990), held that NC's general civil-rights restoration under Chapter 13 stops short of automatically restoring firearm rights. Read with the post-1995 prohibition, NC's restoration of civil rights now expressly excludes firearm rights for the entire ex-felon population.

The AG distinguished United States v. Haynes, 961 F.2d 50 (4th Cir. 1992), where West Virginia's later-enacted statute did not apply retroactively, and aligned with the Seventh Circuit's reasoning in United States v. Melvin, 78 F.3d 327 (7th Cir. 1996), where Illinois reached convictions before, on, or after its 1984 felon-in-possession statute.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The NC Felony Firearms Act has been amended several times since 1995, and federal felon-in-possession law has continued to evolve with court decisions interpreting § 922(g) and the recent Supreme Court Second Amendment jurisprudence in Bruen (2022) and Rahimi (2024). Anyone considering whether a particular ex-felon may possess a firearm in NC today should look at the current statute and the most recent case law, not the rule as stated in this 1997 opinion.

Background and statutory framework

NC's Felony Firearms Act has gone through three major regimes:

• Pre-1995 (five-year lapse rule): ex-felons could possess firearms again five years after conviction or release from probation/parole/incarceration, whichever came later. The five-year lapse was effectively an automatic restoration of firearm rights.
• December 1, 1995 amendment: the General Assembly removed the lapse rule and prohibited possession of handguns and certain firearms by any person previously convicted of a felony, except at home or place of business. Critical to this opinion, the amendment applied to convictions "before, on, or after" December 1, 1995, sweeping in everyone whose conviction predated the amendment.
• Subsequent amendments: the statute has been amended several times since 1997, including changes to the categories of firearms covered and the home/business exception.

Federally, 18 U.S.C. § 922(g)(1) makes it a federal crime for anyone convicted of a crime punishable by more than one year of imprisonment to possess any firearm in or affecting interstate commerce. The definition of "convicted" in 18 U.S.C. § 921(a)(20) excludes convictions for which civil rights have been restored unless the restoration expressly bars firearms. McLean and the so-called "unless" clause cases turn on what a state actually restores. Because NC's general Chapter 13 restoration didn't reach firearm rights, NC felons remained federal predicate offenders even when their citizenship rights generally were restored.

The 1995 NC amendment then added a second layer: the State's own current law expressly forbids firearm possession by ex-felons, so the "unless" clause of § 921(a)(20) is triggered for everyone whose rights were generally restored before the amendment.

Common questions

Does this opinion still control today?

The opinion's framework, that federal courts look to state law for the scope of restoration and that NC's 1995 amendment retroactively withdraws firearm rights, has held up. But subsequent litigation under § 922(g)(1) and recent Second Amendment cases have introduced new questions about as-applied challenges to felon-in-possession statutes. Anyone facing prosecution today should consult current case law.

What about the "home or place of business" exception?

The 1995 NC statute allowed possession at home or place of business. Subsequent amendments have tightened that exception. The opinion's holding is about whether prior felons are covered at all, not the scope of the home/business carve-out.

Could a NC felon get firearm rights individually restored?

Yes, in some circumstances, through a separate court-based or pardon procedure. The opinion's analysis assumed automatic restoration under the prior five-year lapse rule, not individualized post-conviction restoration. A felon whose rights were affirmatively and individually restored without firearm limitation might have a stronger argument under § 921(a)(20)'s "unless" clause, though that is fact-specific and outside this opinion's scope.

How did Melvin affect this analysis?

Melvin was the closest analog. Illinois enacted a felon-in-possession statute in 1984 that explicitly reached pre-1984 convictions. The Seventh Circuit held that even though the defendant could legally possess firearms during the brief window between his five-year-lapse restoration in 1982 and the 1984 statute, the 1984 statute's retroactive sweep made his pre-1984 convictions predicate offenses for the federal armed career criminal statute. The NC AG transposed that reasoning onto NC's 1995 amendment.

Source

• Landing page: https://ncdoj.gov/opinions/felony-firearms-act/

Citations

• N.C. Gen. Stat. § 14-415.1
• N.C. Gen. Stat. § 13-1 et seq.
• 18 U.S.C. § 922(g)(1)
• 18 U.S.C. § 921(a)(20)
• 18 U.S.C. § 924(e)
• United States v. McLean, 904 F.2d 216 (4th Cir. 1990)
• United States v. Haynes, 961 F.2d 50 (4th Cir. 1992)
• United States v. Melvin, 78 F.3d 327 (7th Cir.), cert. denied, 117 S. Ct. 384 (1996)

Original opinion text

August 21, 1997

Michael P. Martin
Assistant Chief Counsel
Department of the Treasury Bureau of Alcohol, Tobacco, and Firearms
2600 Century Parkway, NE
Atlanta, Georgia 30345-3104

Re: Advisory Opinion: Felony Firearms Act; N.C.G.S. § 14-415.1

Dear Mr. Martin:

Thank you for your letter to the North Carolina Attorney General's Office. You request our opinion on the retroactive application of North Carolina's Felony Firearms Act, N.C.G.S. § 14-415.1, as amended in 1995. We are happy to respond.

Prior to its amendment in 1995, the North Carolina Felony Firearms Act allowed ex-felons to possess firearms after the lapse of five years from the date of their conviction or release from probation, parole or incarceration, whichever was later. The question then posed in your letter is whether a person whose firearms rights were restored under the former N.C. Felony Firearms Act could be prosecuted for a violation of current North Carolina and federal law if he were found in possession of a firearm today. For the reasons which follow we believe such a prosecution would be appropriate.

As set forth in your letter, the federal firearms law prohibits a person convicted of a crime punishable by imprisonment for a term exceeding one year from shipping, transporting, possessing, or receiving any firearm or ammunition in or affecting interstate or foreign commerce. See 18 U.S.C. § 922(g)(1). The provision defining a crime punishable "by imprisonment for a term exceeding one year" states:

What constitutes a conviction of such crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. 18 U.S.C. § 921(a)(20).

The issue is to what extent North Carolina restores the citizenship rights of ex-felons. Pursuant to N.C.G.S. § 13-1, et. seq., a person's citizenship rights are restored upon their release from probation, parole or incarceration. Whether this includes rights concerning firearms is determined by examining the entire state law and not simply the certificate granting the restoration of civil rights. U.S. v. McLean, 904 F.2d 216 (1990). The McLean court found North Carolina clearly intended to restore to ex-convicts their general citizenship rights but limit their firearms privileges. We find this opinion applicable to an analysis of current N.C.G.S. § 14-415.1, even though McLean was decided before the 1995 revision to § 14-415.1. We conclude that a person's rights to purchase, own, possess or have in his custody, care or control a firearm are not automatically restored. U.S. v. McLean, 904 F.2d 216 (1990).

North Carolina's Felony Firearms Act as amended effective December 1, 1995 prohibits any person previously convicted of a felony from purchasing, owning, possessing, or having in his custody, care, or control any handgun or certain other firearms except at his home or place of business. N.C.G.S. § 14-415.1(a)(1996). The statute specifically includes any felony conviction in North Carolina that occurred before, on, or after December 1, 1995. N.C.G.S. § 14-415.1(b)(1996).

The Fourth Circuit Court of Appeals has not addressed the issue you raise. Its opinion in U.S. v. Haynes, 961 F.2d 50 (4th Cir. 1992), analyzing West Virginia law is inapplicable because the West Virginia statute at issue did not apply retroactively. In that case, the defendant's rights were restored on January 9, 1986. In 1989, West Virginia made it a misdemeanor for a felon to possess a firearm. The defendant in this case was charged with the unlawful possession of a firearm on November 11, 1990. The court held that his prior felony conviction could not serve as a predicate offense under 18 U.S.C. § 922(g)(1) because his restoration did not include any language limiting the restoration of his firearm rights and because there was no law in West Virginia at the time of the restoration to prohibit him from possessing a firearm.

More analogous to the analysis of North Carolina law is the Seventh Circuit's consideration of the issue in U.S. v. Melvin, 78 F.3d 327 (7th Cir.), cert. denied, 117 S. Ct. 384 (1996). In Melvin, the defendant was convicted of offenses in November 1974, November 1975 and December 1975. He was released from prison on May 27, 1977 and his firearm rights were restored as of May 27, 1982, under Illinois law. In 1984, Illinois made it illegal for felons to possess weapons regardless of their date of conviction. In other words, the statute applied to convictions before, on, or after 1984, the date of the enactment of the current Illinois statute. The court held the defendant's three prior convictions were predicate offenses under Illinois' felon in possession law. The court reasoned that even though the defendant could have legally possessed firearms between May 27, 1982 (five years from prison release) and July 1, 1984 (the date of the enactment of the current Illinois statute), the Illinois law as modified did not permanently exclude his three Illinois convictions as predicate offenses for purposes of 18 U.S.C. § 924(e).

As in Melvin, even though a former felon could have possibly possessed firearms before the 1995 amendment to the North Carolina Felony Firearms Act, North Carolina would still consider an ex-felon "convicted" within the meaning of 18 U.S.C. § 921(a)(20) since his restoration of rights, when read in conjunction with current N.C.G.S. § 14-415.1, expressly prohibits the possession of firearms regardless of the date of felony conviction. Even though an ex-felon may have been able to possess firearms lawfully prior to current N.C.G.S. § 14-415.1, the North Carolina General Assembly clearly intended its application to be retroactive by its clear language that prohibiting convictions are those convictions occurring before, on, or after December 1, 1995.

In summary, it is our opinion a felon found in possession of a firearm today could be prosecuted under our Felony Firearms Act, even though he may have lawfully possessed it prior to the December 1, 1995 modification. We hope you find this opinion responsive to your letter. If you have any further questions please do not hesitate to write.

Andrew A. Vanore, Jr.
Chief Deputy Attorney General

John J. Aldridge, III
Assistant Attorney General
Law Enforcement Liaison Section