BRADY, Justice.
This case requires us to determine whether the 2004 amendment to N.C.G.S. § 14-415.1, which prohibits convicted felons from possessing any firearm in any location, violates state and federal constitutional protections against ex post facto laws or is an unconstitutional bill of attainder. We hold that the amended statute is not an impermissible ex post facto law or bill of attainder. Accordingly, we affirm the decision of the Court of Appeals.
Defendant Douglas Dwayne Whitaker, a convicted felon with an extensive criminal record, was informed by Detective Sergeant George K. Dennis of the Moore County Sheriff's Office in June of 2005 that he could no longer possess the firearms currently in his residence because of a recent change in the law that bans felons from possessing any firearm. Defendant was also advised on 11 April 2006 by his probation and parole officer, Connie Burns, that according to the rules and regulations of his probation, he could not possess firearms. Despite these warnings, defendant failed to divest himself of his firearms, and on 27 April 2006, a search of defendant's bedroom revealed four rifles and seven shotguns, a total of eleven firearms. Defendant was not arrested and charged at that time, but voluntarily surrendered to authorities on 8 May 2006, when he was charged with eleven counts of possession of a firearm by a felon in violation of N.C.G.S. § 14-415.1.
Following the presentation of evidence and instruction by the trial court, the jury returned verdicts of guilty on all eleven charges. The trial court entered judgment on one count, sentencing defendant, who had a prior record level of V, to 18 to 22 months of imprisonment. The trial court arrested judgment on the other ten counts. Defendant appealed to the Court of Appeals, which in a divided decision reversed the ten convictions on which judgment had been arrested, but found no error in defendant's conviction upon which he was sentenced. State v. Whitaker, ___ N.C.App. ___, ___, 689 S.E.2d 395, 406 (2009). The Court of Appeals held, inter alia, that the amended N.C.G.S. § 14-415.1 is not an ex post facto law or bill of attainder. Id. at ___, 689 S.E.2d at 405. An opinion concurring in part and dissenting in part would have held that the amended statute is an unconstitutional ex post facto law and an impermissible bill of attainder. Id. at ___, 689 S.E.2d at 407-08 (Elmore, J., concurring in part and dissenting in part). Defendant appealed as of right to this Court based on the dissenting opinion below.
The United States and North Carolina Constitutions preserve the right of the
Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 216 (1925).
Defendant asserts that the 2004 amendment to N.C.G.S. § 14-415.1 is an unconstitutional ex post facto law. In 1975 our General Statutes prohibited
Britt v. State, 363 N.C. 546, 547-48, 681 S.E.2d 320, 321 (2009).
Defendant does not assert, and we do not hold, that the General Assembly's express or implied intent was to impose further punishment upon convicted felons by prohibiting them from possessing firearms. See Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (stating that an ex post facto analysis begins by considering whether "the intention of the legislature was to impose punishment" (citing Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997))). Thus, we move to the second phase of ex post facto analysis, which requires us to determine whether the 2004 amendment to N.C.G.S. § 14-415.1 is "so punitive either in purpose or effect as to negate" the legislature's civil intent. Id. at 92, 123 S.Ct. 1140 (quoting Hendricks, 521 U.S. at 361, 117 S.Ct. 2072) (internal quotation marks omitted). The Supreme Court of the United States has laid out several factors that are instructive but not exhaustive.
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) (footnotes omitted). Of these factors, defendant argues that the statute is not rationally related to the legislature's nonpunitive intent and that the scope of the 2004 amendment is excessive when compared with the purpose of protecting public safety. We disagree.
It is clear that the General Assembly's nonpunitive intent is to protect the public from future violent actions of those it has deemed by its classification of offenses to be either most dangerous or to have demonstrated a heightened disregard for the law. Thus, the question is whether prohibiting convicted felons from possessing firearms that do not fall under the definition of antique firearms is rationally connected to the purpose of public safety. The Supreme Court of the United States asserted that a legislature's "judgment that a convicted felon... is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness is rational." Lewis v. United States, 445 U.S. 55, 67, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (discussing the federal ban on possession of firearms by convicted felons in the context of the equal protection clause). Moreover, the Court emphasized that questioning the legislature's judgment on this issue "seems plainly inconsistent with the deference that a reviewing court should give to a legislative determination that, in essence, predicts a potential for future criminal behavior." Id. at n. 9. Moreover, the Supreme Court of the United States has described bans on possession of firearms by felons as regulatory action. See District of Columbia v. Heller, 554 U.S. ___, ___, 128 S.Ct. 2783, 2817 n. 26, 171 L.Ed.2d 637, 678 n. 26 (2008) (characterizing long-standing prohibitions such as the ban on possession of
Defendant asserts that the statute is not rationally connected to the nonpunitive purpose of the General Assembly because certain crimes that, in defendant's opinion, are more indicative of dangerousness are classified as misdemeanors rather than felonies. However, it is not the duty of, or within the province of, this Court to make criminal offense classifications. Our sole determination is whether there is a rational connection, not whether there is a "perfect fit," between the legislative goal and the means used to accomplish it. Smith v. Doe, 538 U.S. at 103, 123 S.Ct. 1140 (stating that "[a] statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance"). Here the General Assembly determined that the best way to protect the public is to prohibit possession of firearms by those who have shown a heightened disregard for our laws and who often have a propensity for violence. "The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences." Id. at 103-04, 123 S.Ct. 1140.
Although defendant cites this Court's recent holding in Britt v. State as support for the alleged irrationality of N.C.G.S. § 14-415.1, the analysis in Britt focused on the plaintiff's right to keep and bear arms as preserved by the North Carolina Constitution. See Britt, 363 N.C. at 549, 681 S.E.2d at 322. In Britt, the plaintiff had pleaded guilty to a single nonviolent felony decades earlier. Id. In the case sub judice the Court of Appeals unanimously determined that defendant, who has multiple convictions over a lengthy period of time, is not entitled to relief under the North Carolina Constitution's right to keep and bear arms. ___ N.C.App. at ___, 689 S.E.2d at 398-405 (majority); Id. at ___, 689 S.E.2d at 406-07 (Elmore, J., concurring in part and dissenting in part). This Court's decision in Britt is inapplicable to this case.
Defendant argues that the 2006 amendment exempting antique firearms as defined by N.C.G.S. § 14-409.11 from the provisions of N.C.G.S. § 14-415.1 demonstrates the General Assembly's irrationality in crafting the statute at issue. However, the General Assembly's decision to exempt antique firearms does not make an otherwise rational connection irrational. The exemption of antique firearms from the ban demonstrates that the General Assembly has determined that antique firearms would be less likely to be used in a crime. For example, the General Assembly could have rationally determined that the length of time it takes to load and reload a muzzle loader type of firearm lessens the danger that such a firearm would be used in the commission of a crime and thus, it provided an exception for those weapons in N.C.G.S. § 14-409.11(a)(3). Section 14-415.1 is rationally connected to the nonpunitive purpose of public safety.
Defendant also argues that N.C.G.S. § 14-415.1 is excessive in light of its purpose to protect public safety. We disagree.
Defendant first argues that N.C.G.S. § 14-415.1 is excessive because it does not provide an exemption for the possession of a firearm in the home or business. To the contrary, the General Assembly could have rationally concluded that protection of the public should extend to individuals in a convicted felon's home or business. Domestic violence often occurs in the home, as do controlled substance transactions. It is not excessive for the General Assembly to attempt to accomplish its purpose of protecting the public by also attempting to protect those who reside, work, or do business with convicted felons.
Defendant also asserts that when applied to his case in particular, the law is excessive because the arms in his possession were not easily concealable and were located in his home, and defendant's prior convictions are for nonviolent crimes. Nonetheless, the record indicates that defendant has a lengthy and diverse criminal record. From 1984 to 2008, defendant has two convictions for possession of drug paraphernalia, two convictions of driving while impaired, two convictions for possession of cocaine, a conviction for selling or delivering cocaine, a
Because the General Assembly's purpose in enacting the 2004 amendment to N.C.G.S. § 14-415.1 was to establish a civil regulatory measure, and because the amended statute's effect does not render it punitive in nature, the amended N.C.G.S. § 14-415.1 is not an unconstitutional ex post facto law.
Defendant asserts that the 2004 amendment to N.C.G.S. § 14-415.1 also operates as an impermissible bill of attainder. Bills of attainder are prohibited by the United States Constitution: "No State shall ... pass any bill of attainder." U.S. Const. art. I § 10, cl. 1. A bill of attainder is "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977) (citations omitted). "In forbidding bills of attainder, the draftsmen of the Constitution sought to prohibit the ancient practice of the Parliament in England of punishing without trial `specifically designated persons or groups.'" Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 847, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984) (quoting United States v. Brown, 381 U.S. 437, 447, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965)).
As we have already determined that the statute's prohibition of possession of firearms by felons does not operate as punishment, N.C.G.S. § 14-415.1 cannot be a bill of attainder. Any punishment defendant received pursuant to N.C.G.S. § 14-415.1 followed a judicial trial in which a jury determined defendant was a convicted felon and possessed a firearm in violation of the law. Moreover, the statute does not inflict punishment on those who have committed prior acts, but on those who commit the future act of possessing a firearm after having been convicted of a felony. Even if the N.C.G.S. § 14-415.1 prohibition on possession of firearms by felons did operate as a punishment, it is unlikely that felons would be considered a group protected under the Bill of Attainder Clause, as "[I]aws regulating the conduct of convicted felons have long been upheld as valid exercises of the legislative function." United States v. Donofrio, 450 F.2d 1054, 1055-56 (5th Cir. 1971), reversed and remanded on other grounds, 450 F.2d 1054, 1056 (5th Cir.1972) (per curiam). Because N.C.G.S. § 14-415.1 does not impose punishment on a selected group of persons without a judicial trial, it is not a bill of attainder.
Because the 2004 amendment to N.C.G.S. § 14-415.1 neither operates as an ex post facto law nor is a bill of attainder, we affirm the decision of the Court of Appeals. The remaining issues addressed by the Court of Appeals are not before this Court and its decision as to these matters remains undisturbed.
AFFIRMED.
Additionally, the General Assembly passed a new statute in 2010 to allow certain convicted felons to have their right to bear arms restored. Act of July 6, 2010, ch. 108, sec. 1, 2010 N.C. Sess. Laws ___, ___ (codified at N.C.G.S. § 14-415.4).