State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (emphasis omitted) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). Defendant argues that his counsel's performance was deficient because, in State v. Whitaker, 364 N.C. 404, 411, 700 S.E.2d 215, 220 (2010), our Supreme Court held that the statute prohibiting possession of a firearm by a felon is a “civil regulatory measure” rather than a criminal offense, and, according to defendant, it is inherently improper to try a criminal offense together with a civil regulatory matter. Defendant asserts that his trial counsel should have been aware of Whitaker, a “well-known” case decided roughly two years before defendant's trial, since “Second Amendment litigation has been the topic of much discussion in the last several years and Whitaker was relevant to that discussion.”
The [c]ourt having considered the arguments of counsel, having reviewed the authorities cited by counsel together with the pleadings filed in this action, and the [c]ourt having considered the [S]tate's argument of statute, [ section] 90–95(d1)(1)(c) is analogous to North Carolina['s] possession of firearm by felon statute found in [section] 14–415.1. And the [c]ourt noting that the possession of firearm by felon statute has been upheld by North Carolina courts as constitutional in the cases of [ ] State [v.] Tanner, 39 N.C.App. 668 [251 S.E.2d 705 (1979) ]; State [v.] Cooper, 364 N.C. 404 ; and State [v.] Coltrane, 188 N.C.App. 498 , among other cases.Further, the Court having reviewed [section] 90–95(d1)(1)(c), in the exercise of its discretion, denies [sic] to declare N.C. Gen.Stat. [§ ] 90–95(d1)(1)(c) unconstitutional.
Second, the State must demonstrate a reasonable fit between the Act and the objective of ensuring the public safety. The State argues that our Supreme Court upheld the Act against an ex post facto challenge in State v. Whitaker, 364 N.C. 404, 409, 700 S.E.2d 215, 218 (2010). However, Whitaker does not control the issue of whether the Act violates plaintiff's substantive due process rights under the United States Constitution.
In considering an “as-applied” challenge to the application of the Felony Firearms Act to a specific individual, our analysis must “focus[ ] on five factors ...: (1) the type of felony convictions, particularly whether they ‘involved violence or the threat of violence,’ (2) the remoteness in time of the felony convictions[,] (3) the felon's history of ‘law-abiding conduct since [the] crime,’ (4) the felon's history of ‘responsible, lawful firearm possession’ during a time period when possession of firearms was not prohibited, and (5) the felon's ‘assiduous and proactive compliance with the 2004 amendment.’ ” 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'd 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's claim, State v. Buddington, ––– N.C.App. ––––, ––––, 707 S.E.2d 655, 657 (2011) (stating that, “[i]n order for [a party] to prevail [based upon] an as-applied constitutional challenge to N.C. Gen.Stat. § 14–415.
In 2010, the SCNC explicitly rejected a claim that the 2004 amendment to the NCFFA was an unconstitutional ex post facto law. State v. Whitaker, 700 S.E.2d 215, 220 (N.C. 2010). Specifically, the court concluded that the ban was not punitive in nature since its intent was to protect the public from future violent actions of those considered dangerous or who had demonstrated a heightened disregard for the law.
Whether this statute constitutes a bill of attainder has never been addressed in Idaho, although other states have analyzed their own similar felon in unlawful possession of firearm statutes and have held that such statutes do not constitute bills of attainder. See, e.g., State v. Swartz, 601 N.W.2d 348, 351-52 (Iowa 1999); State v. Myrick, 436 A.2d 379, 383-84 (Me. 1981); State v. Whitaker, 364 N.C. 404, 700 S.E.2d 215, 220(2010).The first indicator of a bill of attainder is the specificity of the persons who are affected by the legislation.
As recently as 2010, "[t]his Court has articulated that ‘both the federal and state constitutional ex post facto provisions are evaluated under the same definition.’ " State v. Whitaker , 364 N.C. 404, 406, 700 S.E.2d 215, 217 (2010) (quoting State v. Wiley , 355 N.C. 592, 625, 565 S.E.2d 22, 45 (2002), cert. denied , 537 U.S. 1117, 123 S. Ct. 882, 154 L.Ed.2d 795 (2003) ). The term ex post facto
As defendant raises a constitutional issue, we will review the matter de novo . State v. Whitaker , 201 N.C.App. 190, 192, 689 S.E.2d 395, 396 (2009) ("The standard of review for questions concerning constitutional rights is de novo." (citation and quotation marks omitted)), aff'd , 364 N.C. 404, 700 S.E.2d 215 (2010).Analysis
This Court reviews the asserted unconstitutionality of a statute de novo. State v. Whitaker, 201 N.C.App. 190, 192, 689 S.E.2d 395, 396 (2009), aff'd, 364 N.C. 404, 700 S.E.2d 215 (2010).B. Analysis
"The standard of review for questions concerning constitutional rights is de novo. " State v. Whitaker, 201 N.C.App. 190, 192, 689 S.E.2d 395, 396 (2009), aff'd, 364 N.C. 404, 700 S.E.2d 215 (2010). However, it is well-established that "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."