A Moore County man is taking his case over his constitutional right to bear arms to the state's highest court after a split opinion by the N.C. Court of Appeals last week.

A Moore County jury convicted Douglas Dwayne Whitaker on 11 counts of possession of a firearm by a felon after a sheriff's deputy saw some guns at his house and a subsequent search found "11 rifles and shotguns in the gun cabinet in the defendant's bedroom," according to court documents.

Whitaker had been warned the year before that a 2004 change in the law made his possession of guns illegal, since he had been convicted of a felony in 1988 for possessing cocaine.

Until that change in the law, convicted felons could keep rifles and shotguns inside their residences. The deputy told him about the change and warned him to have the guns removed.

After the search, Whitaker was indicted on the multiple counts and convicted in June 2008. He was sentenced to 18 to 22 months in prison on one count, with arrested judgment on the other 10.

Southern Pines attorney Bruce Cunningham appealed Whitaker's case. Last week, the N.C. Court of Appeals threw out 10 convictions but affirmed the one, as well as the prison sentence. The appeals court voided Whitaker's conviction on 10 of the 11 counts, because it found he "should have been charged with only one violation," according to the court's opinion.

"One thing they said was he didn't commit 11 crimes," Cun-ningham said. "They were all in the same place, a gun cabinet in his bedroom. There was unanimity on that issue."

However, one of the appeals court judges dissented, giving the case automatic right of appeal to the state Supreme Court. Judge Rick Elmore said changing the law after a conviction shouldn't be allowed to change the punishment.

"Elmore is saying you are adding new punishment to the old offense," Cunningham said. "The majority said it wasn't a punishment, just a regulation. Elmore is saying it is a punishment."

An earlier N.C. case (Britt vs State) said judges should make decisions on losing or regaining Second Amendment rights on a case-by-case basis, Cunningham said.

"Britt avoided the big question that Elmore is raising," he said. "When it came down, Britt said judges have the power to decide whether the right to bear arms can be regained by good behavior. The big perspective is (Whitaker) will present the North Carolina Supreme Court an opportunity -- on the merits -- to address questions Britt left open."

In his dissent, Elmore said the 2004 change denied previously convicted felons of their right to bear arms without due process, because it was an outright ban and "operated as a punishment, rather than a regulation."

Judges have to inform defendants of the maximum punishment faced if convicted or if pleading guilty, and decisions to plead or go to trial must weigh those risks, according to Cun-ningham.

He argues that the legislature cannot constitutionally alter them after the fact.

"Because I believe that (the 2004 change in the law) operates as a punishment, rather than as a regulation," Elmore said, "I would also find the statute to be an unconstitutional bill of attainder."

A bill of attainder is a legislative act that makes someone guilty of a crime without a trial. Elmore is saying that the new law makes people previously convicted of felonies who had legally obtained guns automatically guilty of illegal possession.

"It probably has greatest interest to hunters who might have been convicted 20 years ago of some minor offense like growing marijuana," Cunningham said. "People with very old nonviolent felonies have now been deprived -- without trial -- of the right to hunt, the right to keep a weapon for self defense in their home."

Contact John Chappell at (910) 783-5841 or by e-mail at jchappell@thepilot.com.