How will recent federal actions affect NC gun laws?
A School of Government expert explains the impact of a June 23 Supreme Court decision on concealed handguns and new gun control measures that became law June 25.
On the same day, June 23, two separate branches of the federal government took gun law in two different directions. In the morning, the U.S. Supreme Court struck down a century-old New York law restricting the carrying of guns in public places when it ruled in the case of New York State Rifle & Pistol Association Inc., et al., Petitioners v. Kevin P. Bruen.
That evening, the Senate passed a bipartisan bill that expanded background checks for gun buyers under 21, closed the “boyfriend loophole” in domestic violence cases and provided funding to enforce state “red flag laws” to take guns away from dangerous people. President Joseph Biden signed the bill into law on June 25.
The Well asked gun law expert Jeffrey B. Welty, professor of public law and government at the School of Government, to help clarify what these actions at the federal level will mean for gun laws in North Carolina.
Jeffrey B. Welty
What impact will the Supreme Court ruling on concealed handguns have on gun laws?
NYSRPA v. Bruen generally confirms the constitutionality of North Carolina’s main gun laws. To dig a little deeper, NYSRPA v. Bruen was about the legality of New York’s “may issue” process for issuing handgun permits, which required applicants to show some special need for self-defense, above and beyond the safety concerns that everyone has. And the issuing official had significant discretion in whether to grant a permit or not. The court found that process inconsistent with the historical understanding of the right to bear arms and struck it down. The court was clear that a “shall issue” permitting process would be lawful if based on objective criteria. North Carolina’s pistol purchase permit and concealed handgun permit processes are “shall issue” processes based on objective criteria, so I think they’re consistent with NYSRPA v. Bruen.
At a more general level, NYSRPA v. Bruen said that the right to keep and bear arms extends outside the home. In North Carolina, our state constitution had already been interpreted to protect public carry to some extent. There might be some debate about various state and local laws regarding where handguns may be carried, but mostly those debates will be about what counts as a “sensitive place” where guns can be prohibited. That phrase was coined in an earlier case (District of Columbia v. Heller in 2008) and merely reaffirmed in NYSRPA v. Bruen. All in all, NYSRPA v. Bruen will have a big impact in the handful of states that are — or were — “may issue” states, but its direct impact here will probably be small.
How will the bipartisan gun safety law affect current gun laws?
It has some potential implications here. It allows certain federal funds to be used to implement extreme risk protection order programs or “red flag laws,” provided they meet criteria set out in the law. North Carolina doesn’t have a law or program like that currently, but this could lead the General Assembly to consider whether to enact one.
The federal bill also focuses on expanding the definition of a “crime of domestic violence” and that won’t have much impact here. In a nutshell, federal law prohibits a person from having a gun if the person has been convicted of an assault involving domestic violence. Historically that has only included assaults against spouses and live-in partners, but not assaults against dating partners. This bill changes the definition to include assaults against dating partners and, therefore, closes what some have called the “boyfriend loophole.” The reason that won’t matter much here is that, for technical reasons related to how an “assault” is defined under state law, none of North Carolina’s assault statutes count as crimes of domestic violence, no matter who the victim is. The legislature could potentially address that by tweaking the way state law defines an “assault,” so we’ll have to see if it takes the matter up in the long session in 2023.
What gun law issues are on the horizon?
One issue that neither District of Columbia v. Heller nor NYSRPA v. Bruen addresses comprehensively is what counts as a sensitive place where guns may be banned? North Carolina law allows at least some limitation on guns in parks, recreational facilities and public buildings, and generally prohibits guns on school grounds. Are all of those limitations OK? Heller specifically mentioned schools and government buildings as sensitive places, but does that extend to every planning and zoning office or state-owned warehouse? Future courts would need to look at those issues through the lens that the NYSRPA v. Bruen court provided, which is mostly historical. Courts are supposed to ask whether a challenged regulation is consistent with how guns were regulated at the time the Second and Fourteenth Amendments were ratified. I’m not a historian, but I imagine that type of inquiry could be difficult to perform objectively.
