"When can I get my gun rights back now that I have finished serving my time?" Hopefully the client has the sense to even ask the question because some individuals rush out to get their weapons the moment their sentence has expired.
The better practice is for attorneys to be sure that clients who are subject to criminal prosecution are aware of firearm limitations. The limitations come in two flavors: state and federal and, as it says in the song, "if the left one don't getcha, then the right one will."
Where a person is under indictment for a felony - even before they are convicted - it is unlawful to acquire firearms.(1) This little-known provision must be impressed on all clients lest they run afoul of serious criminal sanctions for purchasing a shotgun to go duck hunting.
Once the person has been convicted then it may be unlawful to possess firearms depending on whether the crime is a felony or a misdemeanor. Generally it is permissible to possess weapons following a misdemeanor conviction except during the term of the sentence when firearm prohibitions are universally in effect as a condition of probation. Another exception is where the misdemeanor conviction is for domestic assault. Here, federal law imposes a permanent ban on firearms. (2)
For a felony conviction the rules are superficially simple. Federal law prohibits firearm possession following ANY state or federal felony conviction even if the sentence was suspended.(3) State law is less restrictive to some degree but the distinctions are immaterial at this point since the federal criminal sanctions apply across the board.
The difficulty arises when the person has finished the term of imprisonment or probation or parole. How do you get your "gun rights" back? First, remember that there is no such thing as "gun rights," the Second Amendment notwithstanding. Rather, think of it as firearm disabilities and the removal of same.
A synthesis of a series of federal precedents establishes the following points which must be addressed to determine if a client is in violation of the federal statute prohibiting convicted felons from possessing firearms.
1. Federal law generally makes it a felony for a person to be in possession of a firearm if the person has any prior felony conviction.
2. Federal law contains an explicit statutory exception which provides that the federal criminal offense of firearms possession is inapplicable to persons who have had their civil rights restored on the predicate state felony conviction.(4)
3. Whether a person has had his or her civil rights restored for a state conviction is determined by state and NOT federal law.
4. However, (this "however" is the first of two elusive parts of the analysis) federal law requires that for federal law to recognize the state restoration of rights, the state restoration must include the right to vote, the right to seek and hold public office, and the right to serve on a jury. (5)
5. If the state restoration of rights includes the three aforementioned rights the federal law contains an additional federal "unless" clause which looks to state law to see if the state imposes any restriction on the right of the convicted felon to possess a weapon (e.g., some states such as North Carolina prohibit the subsequent possession of a handgun but would allow the individual to possess a rifle or shotgun).
6. If there is some added firearms restriction under state law then (and here is the second elusive part of the analysis) the federal "unless" clause is triggered to make the possession of any firearms unlawful under federal law notwithstanding the state's restoration of civil rights. Thus, if the state says that a restored-rights felon may possess a shotgun but not a pistol, the state has allowed the felon to possess the shotgun under state law BUT, because the state has created some firearm restriction for a convicted felon, this means that the federal prohibition applies with full force notwithstanding a state restoration of rights. Thus, in the shotgun-pistol example, that person could be convicted under federal law for possession of the shotgun even though it would be perfectly lawful under state law.(6)
Tennessee law contains certain firearm restrictions for convicted felons and thus - consistent with federal law - even restoration of rights will not allow possession of handguns for those convicted of certain violent felonies or felony drug convictions. See, State v. Johnson, 79 S.W.3d 522 (Tenn. 2002) ("The plain language of [Tenn. Code Ann. § 39-17-1307(b)(1)] makes clear the legislative intent to prohibit one who has been convicted of a violent felony [or a drug offense] from possessing a handgun. Since this statute is not ambiguous, we rely on the plain statutory language to conclude that [notwithstanding a restoration of rights] a person who has been convicted of a violent felony may be charged with a crime when later found to be in possession of a handgun."). Given the Tennessee restriction on handgun possession for those convicted of certain felonies - those same persons may not possess any firearms according to federal law, notwithstanding restoration of rights under state law. (7)
As to the restoration of civil rights, Tennessee law contains a complex series of statutes which govern the process depending on the date of the felony conviction. There have been several formal and informal opinions issued by the Attorney General on the subject the most recent of which was rendered on October 24, 2002. The reader is urged to consult those opinions in detail.
Lastly, what does one do with a federal conviction? Here the options are limited. Federal law allows the Bureau of Alcohol, Tobacco and Firearms to remove firearm disabilities. However this statute has not been funded by Congress for over a decade and has thus been unavailable to anyone as a means to avoid firearm disabilities.(8) Thus, short of a presidential pardon a federal felony conviction is a permanent bar to possession of firearms.
In summary, attorneys are urged to consult with their clients about firearm disabilities whenever the client is subject to criminal charges. Following a conviction the client may regain "firearm rights" in some limited circumstances.
1. 18 U.S.C. §922(n). This does not reach possession of currently owned firearms, only receipt of new ones. United Statesv. Craven, 478 F.2d 1329 (6th Cir. 1973).
2. 18 U.S.C. §922 (g)(9), "who has been convicted in any court of a misdemeanor crime of domestic violence."
3. 8 U.S.C. §922(g)(1) provides that it is unlawful for any person "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to possess . . . any firearm or ammunition."
4. 18 U.S.C. §921(a)(20) provides:
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly [or implicitly as a matter of state law] provides that the person may not ship, transport, possess, or receive firearms.
5. See the extensive discussion of this concept in Hampton v. United States, 191 F.3d 695 (6th Cir. 1999).
6. This example is derived from Caron v. United States, 524 U.S. 308, 118 S.Ct. 2007 (1998).
7. "In sum, [although Massachusetts state law allows petitioner to have rifles] Massachusetts treats petitioner as too dangerous to trust with handguns, though it accords this right to law-abiding citizens. Federal law uses this state finding of dangerousness in forbidding petitioner to have any guns." Caron v. United States ,supra, at 524 U.S. 308, 317, 118 S.Ct. 2007, 2012
8. See, Mullis v. United States, 230 F.3d 215 (6th Cir. 2000). The United States Supreme Court has recently affirmed this position in a rare, unanimous opinion. United States v. Bean, 123 S.Ct. 584 (Dec.10. 2002) ("Accordingly, ATF, upon receipt of [Bean's] petition, returned it, explaining that '[s]ince October 1992, ATF's annual appropriation has prohibited the expending of any funds to investigate or act upon applications for relief from Federal firearms disabilities.' ").
This article was originally published in the March 2003 issue of the Tennessee Bar Journal, and is reprinted with permission of the author, attorney David L. Raybin, a member of the Nashville-based law firm of Hollins, Wagster, Weatherly & Raybin, P.C.
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