The North Carolina Court of Appeals entered the Bruen Second Amendment debate this week with its decision in State v. Radomski.
First, a bit of background: In its landmark New York State Rifle & Pistol Ass’n, Inc. v. Bruen decision in 2022, the U.S. Supreme Court reaffirmed its originalist, historical approach to assessing the constitutionality of laws implicating the Second Amendment. State and federal courts across the country been applying Bruen to various laws ever since, striking many down. And the U.S. Supreme Court itself will likely issue another major Bruen decision within the month in Rahimi—deciding whether the Second Amendment overrides 18 U.S.C. § 922(g)(8), which prohibits possession of a firearm while a person is subject to a domestic violence protective order.
On to Radomski: following a jury trial, the defendant was convicted of a violation of N.C. Gen. Stat. § 14-269.2(b), which prohibits possession of a firearm on educational property. Here, the defendant, Mr. Radomski, was living in a car with no license plate. He drove to UNC Hospital in Chapel Hill for medical treatment related to an ongoing health issue. Campus police responded to a suspicious-vehicle report, which led them to Radomski. They questioned Radomski, who stated that he did not know he was on campus property and, after questioning, admitted there were guns in the car. A search of the car revealed several semi-automatic rifles, a shotgun, and some ammunition. The police charged him under Section 14-269.2(b).
Appellate Rules alert: Radomski did not raise a Bruen challenge in the trial court. Normally, that would constitute an incurable failure to preserve the issue, under Appellate Rule 10. Here, though, Rule 2 came to the rescue. That’s the rule that allows our appellate courts to suspend or vary the ordinary rules of appellate procedure to prevent a manifest injustice or to expedite a decision in the public interest. The Court of Appeals invoked Rule 2 so it could reach the merits. After all, the panel explained, Bruen was released only 76 days before the jury verdict in this case, so it was understandable for Radomski to have missed it. Besides, Bruen challenges are a “newly percolating and widely occurring issue,” so the panel might as well address it here.
Statute found unconstitutional, as applied to Radomski: The Court of Appeals held that the statute is unconstitutional as applied to Radomski, due to the non-sensitive nature of the parking lot. The central thrust of Bruen, the Court reasoned, was whether the regulation is consistent with the Nation’s historical tradition of firearm regulation. Here, Radomski parked in an “open-air parking lot situated between the emergency room entrance, a football arena, and another healthcare building.” That area of campus is not truly educational in nature, but instead provides access to public health care facilities in the area. Thus, it is not a “historically sensitive place” traditionally subject to firearm restrictions. It would be unconstitutional to restrict the defendant’s Second Amendment right to possess firearms while there.
What about mens rea? Radomski prevailed for another reason, too: the State failed to present evidence that he had personal knowledge he was on educational property. Sure, there were posted signs that might tip someone off that they were on campus. But mens rea requires proof of subjective intent. Because the Court of Appeals found that the State had not presented sufficient evidence of Radomski’s own knowledge that he was on educational property, it reversed his conviction.
Practice tips: Defense attorneys should consider raising Bruen early and often. But even if Bruen wasn’t raised below, don’t forget Appellate Rule 2!
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