Justice who wrote gun decision is a gun dealer

Some cry foul; ex-chief justices see no conflict

Staff WriterOctober 10, 2009 

  • THE QUESTION: Does a 2004 state law banning convicted felons from owning any firearm violate Britt's constitutional right to own a gun?

    THE DECISION: Yes, because any regulation of gun ownership must be "reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety." In Britt's case, the N.C. Supreme Court ruled it was unreasonable because he had demonstrated that he was not a threat to public safety through: no history of violence, 30 years of law-abiding conduct since his 1979 drug conviction, his firearms rights being previously restored, 17 years of responsible and lawful gun ownership, and proactive compliance with the 2004 law by giving up his guns.

    ON THE WEB: Read the decision at http:// www .aoc .state .nc .us/ www/ public/ sc/ opinions/ 2009/ pdf/ 488 -07 -1 .pdf .

— The N.C. Supreme Court attracted national attention a few weeks ago as the first court in the nation to rule that a convicted felon has a right to own a gun.

What drew little notice is that Edward Thomas Brady, the justice who wrote the 5-2 decision in August, is a federally licensed gun dealer and gun manufacturer who has collected more than $5,000 a year from gun sales since 2007.

Legal experts split over whether Brady was properly bringing his perspective to the case or should have recused himself from the decision.

"I don't think gun dealers should be deciding the constitutionality of gun laws," said Dennis Henigan, vice president for law and policy at the pro-gun control Brady Center to Prevent Gun Violence in Washington.

Gene Nichol, a law professor at UNC-Chapel Hill, described the ruling by the justices as "the most aggressive gun rights decision" in the country. "Then you read that the highly-activist opinion is written by a gun dealer and manufacturer," he said. "It sure smells."

Other legal scholars, however, countered that the decision was narrowly written to resolve that particular case and likely wouldn't apply to many others.

Two former state chief justices, one a Republican and the other a Democrat, said they saw no need for Brady to recuse himself.

"It seems to me that there's no conflict nor even arguably the appearance of a conflict," said Burley Mitchell, a Democrat and chief justice from 1995 to 1999. "I've got a driver's license, but I regularly ruled on cases involving automobiles and driver's rights. If a judge starts recusing over connections that remote, you'll have a judiciary that can dodge every difficult case."

Mitchell said he would make the same argument regarding a judge who is an automobile dealer. He said conflicts arise when a judge has a financial interest or personal connection to a case. No such connection existed with Brady and the gun case, he said.

Republican Beverly Lake, chief justice from 2001 to 2006, echoed Mitchell. Brady "doesn't have a personal interest in it," Lake said.

Brady declined three requests for an interview for this story. A decorated Vietnam veteran, he was elected in 2002, as a Republican, to an eight-year term. State judicial races now are nonpartisan.

The N.C. Code of Judicial Contact does not lay out specific standards for recusing from cases. The code states, "A judge should avoid impropriety in all the judge's activities. A judge should respect and comply with the law and should conduct himself/herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

The decision Brady wrote did not open the gates for felons to start buying guns, according to Mitchell, Lake and legal experts. It was narrowly written to apply to the man who filed the lawsuit, Barney Britt of Raleigh, who was convicted in 1979 of selling Quaalude pills.

Before 2004, convicted felons' rights to gun ownership were restored, though limited, five years after the completion of their sentence, which was 1987 for Britt. They could keep any firearm at their home or business, and could possess rifles and shotguns elsewhere, but not handguns.

A 2004 state law that conformed state firearms law to federal law made it illegal for a convicted felon to own any firearm in any location.

Mitchell said the court's recent decision would apply only to plaintiffs who had their rights restored and then taken away by the 2004 law.

An 'avid' shooter

Brady, a Fayetteville lawyer when elected to the court, has been a life member of the National Rifle Association since 1966 and "an avid participant in shooting sports," according to his biography on the Supreme Court Web site.

He has held his gun dealer and gun manufacturer licenses since at least 2007, according to federal records. His financial disclosure forms show that, during that time, he has earned income from firearms manufacturing and sales, though the forms do not require listing an amount -- only that it was greater than $5,000.

A company called the N.C. Arsenal is included on at least two Web sites that list gun dealers in the Fayetteville area. The address is the same as Brady's law firm, where his wife still practices.

The gun rights decision would create more of an issue if it cleared the way for other felons to buy guns, said Kathryn Webb Bradley, director of legal ethics at Duke University Law School.

"You could say, 'Look, he's creating a market for himself,'" Bradley said. "But I think that's a stretch in terms of what's going to happen. This isn't an opinion that directly rules in favor of gun dealers."

Brady didn't violate any rules, she said, but it's fair to ask questions about his role in the case. His experience as a gun dealer likely brings a perspective and life experience different from those of other judges, just as any judge brings his or her particular experiences to a case, Bradley said.

"It's possible that colored his sense of the issue," she said, "but that wouldn't violate the code of judicial conduct any more than a judge opposed to gun ownership ruling on it."

mjohnson@charlotteobserver.com or 919-829-4774

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