“Gun Rights Restoration: The Nuts & Bolts and Present Day Military Issues”
As I continue my homeward travels from the NRA Annual Meeting–yesterday was seven hours of riding in hard rain from wester North Carolina to northern Virginia, and I’m still drying out–here’s another post looking back at the Annual Firearms Law Seminar.
A particularly interesting Seminar talk was entitled “Gun Rights Restoration: The Nuts & Bolts and Present Day Military Issues,” presented by Attorney Derek A. DeBrosse, who specializes in this area.
We all agree, of course, that to the extent it’s feasible to do so society should deny bad people access to firearms. (As a practical matter, of course, the feasibility of enforcing such constraints is zero, at least against any bad actor who seriously wishes to obtain possession of a gun, but that’s fodder for another day.)
In the United States there are certain classes of individuals who the law requires be stripped of their gun rights for some period of time, and sometimes for the remainder of their lives.
These prohibitions can be leveled under state law in the majority of states that provide for gun rights prohibition as a consequence of violations of certain state laws (e.g., being convicted of a felony at the state level). Interestingly, some states, such as Vermont, lack such prohibition provisions (e.g., VT has no state-level “felon-in-possession” law).
Alternatively, these prohibitions can also be leveled under federal law. Federal prohibitions can be triggered either as a consequence of violating certain federal laws (e.g., being convicted of a felony at the federal level) or by violating certain state laws (e.g., being convicted of a felony at the state level).
The most common offenses that trigger a federal prohibition on gun rights under 18 USC 921, whether those offenses are in violation of either a state or federal law, are:
- commission of a felony
- mental defects indicating danger to self or others
- protective orders
- misdemeanor crimes of domestic violence (MCDV)
In some cases the loss of gun rights seems manifestly unjust, and to address such cases there has been created a means for restoration of gun rights under appropriate circumstances.
For example, a person convicted of a felony (most felonies, at least) is generally banned for life from possessing a firearm (usually under state law, always under federal law). But what if the felony was non-violent, committed decades ago, and that person has been a law-abiding, productive citizen ever since? In such cases it may be possible for the individual to have their rights restored.
A person whose gun prohibition is based on a violation of state law needs to attempt to have their rights restored under state law–if successful, this process will also remove any federal prohibition that was based on that that state law violation.
A person whose gun prohibition is based on a violation of federal law needs to attempt to have their rights restored using the federal gun rights restoration process–and good luck with that. Although there exists an explicit federal procedure for the restoration of gun rights, Congress has passed a law denying the use of any appropriated funds for that purpose. Thus the ATF department that would execute gun rights restoration simply can’t function. The only means currently existing for restoring ones gun rights that have been lost as a result of a violation of a federal law, then, is a Presidential pardon.
Often a lawyer will encounter a client who is uncertain whether he is a prohibited person for purposes of gun purchase and possession. One way to test this, of course, would be to attempt to purchase a firearm and subject oneself to the required background check under the National Instant Criminal Background System (NICS) run by the FBI. However, the mere attempt by a prohibited person to purchase a firearm is itself a crime, so this approach is not encouraged.
Instead, a person can submit to the FBI a Voluntary Appeals File (VAF). This essentially asks the FBI for a determination of whether the client would be denied should they attempt to purchase a firearm. In general one of three responses can be expected:
(1) A determination that there is nothing in the FBI’s records to indicate the client is a prohibited person.
(2) A determination that the person is, in fact, a prohibited person. Even this outcome can be useful, as the “harm” it evidences to the client can be useful in establishing the legal standing necessary to pursue rights restoration at the state level.
(3) A finding that there is information in the NICS system that would inappropriately trigger a denial of a gun purchase for that client. For example, perhaps the client who is not prohibited has the same name and birthdate as does some other person who is prohibited . In this last case the FBI would then assign the non-prohibited client a unique personal identification number (UPIN) that the client would use when purchasing the firearm to avoid being denied.
At the state level, the process for rights restoration varies enormously state-by-state, so a detailed description is beyond the scope of a blog post. Some interesting general observations can be noted, however.
First, any rights restoration process will require that the client be thoroughly law abiding since the date of the offense at issue. This means more than merely not having incurred additional criminal violations, it means law abiding in all facets of his or her life. Failure to pay taxes, failure to pay child support, accumulations of traffic tickets–even if none of these rise to the level of an actual criminal violation, they will generally block the restoration of gun rights.
Second, things can get very complicated in the context of certain misdemeanor violations that result in the loss of gun rights, as there exists a kind of loophole in this context.
For example, a federal prohibition of gun rights is triggered by a state-level misdemeanor crime of domestic violence. Normally, the solution for a federal prohibition triggered by a state-level violation would be to pursue the restoration of gun rights at the state level–if the state restoration is successful then the federal prohibition is also lifted.
That works fine when the state violation is for a felony, because most states have a gun rights restoration process that can be applied to felony violations. They have this process precisely because the state felony triggers the loss of gun rights under state law, and thus a state restoration process was put in place for felonies.
Unlike the federal government, however, most states do not trigger gun prohibitions for violations of mere misdemeanors. As a result, although they have a gun rights restoration process for felons, they do not have any gun rights restoration process for misdemeanants.
This means that a person who is convicted (or pleads guilty to) a misdemeanor crime of domestic violence, for example, does lose his gun rights under federal law, but has not triggered the loss of gun rights under state law.
Federal law is supreme, of course, so the effect is the loss of his gun rights. Because he has not lost his gun rights under state law, however, he cannot restore his state-level gun rights (one cannot restore what was never lost), and thus cannot lift the federal prohibition through state restoration of his gun rights.
At the same time, as already mentioned there exists no practical means of restoring rights under federal law.
This creates the odd situation where the client who lost their gun rights as a result of a felony conviction has clear legal path towards having his gun rights restored, whereas the client who has lost their gun rights as a result of a misdemeanor conviction does not.
This is a particular problem in the context of misdemeanor crimes of domestic violence (MCDV), because the federal law prohibiting gun rights for MCDV convictions is applied retroactively.
Prior to the federal adoption of the MCDV prohibition many people were encouraged to plead out to a MCDV rather than go to trial because the plea would avoid any risk of jail time and did not impose a burden on a Constitutional right. Then the federal prohibition based on MCDV was adopted and applied retroactively, and suddenly a large number of people found that they had been stripped of their gun rights as a result.
For these people, there is no clear path to rights restoration. One can only imagine that had they known accepting a MCDV plea would have jeopardized a fundamental Constitutional right they would have seriously considered other options.
OK, folks, 1,400+ words is enough for one blog post. More to come on the NRA Annual Firearms Law Seminar in later posts.
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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.DONATE
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