"When can I get my gun rights back now that I have finished serving my time?" This is one of the most common questions asked. Failure to answer it correctly can lead to felony weapon charges.
Of course, an experienced Phoenix Criminal Defense Attorney would make sure that you were made aware of firearms limitations when you were originally convicted. The limitations come in two flavors: state and federal. And, as Tennessee Ernie Ford sang in "Sixteen Tons", with "one fist of iron and the other of steel, 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 under federal law 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 rifle to go deer 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) This is often referred to as the "Lautenberg Amendment", after the senator who pushed for its enactment. Opportunities for relief from this ban are quite limited and will be discussed in another blog post.
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, and take precedent over state law.
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; Tennessee has an opposite rule for certain drug offenders; Massachussetts has a similar bifurcated system).
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)
Arizona law does not have any limitation on restored gun rights; if Arizona restores your gun rights (a big if, but that is another blog post), they will all be restored. Once that happens, federal law allows you to possess firearms. However, many Arizonans moved here from other states. If you have an old felony conviction in another state, only that state can restore your gun rights. Until that happens, it will be both a federal crime and an Arizona crime to possess a firearm.
And this cannot be emphasized strongly enough: THERE IS NO AUTOMATIC RESTORATION OF RIGHTS! No matter how old your conviction is, you cannot possess a gun--or vote, sit on a jury, or hold public office--until your right to do so is restored.
But, what does one do with a federal conviction? Here the options are limited. Federal law allows the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) to remove firearm disabilities. However this statute has not been funded by Congress for many years and has thus been unavailable to anyone as a means to avoid firearm disabilities.(7) Thus, short of a presidential pardon (and you can imagine how hard that is to obtain), a federal felony conviction is a permanent bar to possession of firearms.
Of course, some weapons are prohibited to everyone, absent special permission from BATFE: fully automatic weapons (machine guns), grenades, and so forth.
1. 18 U.S.C. §922(n). This does not reach possession of currently owned firearms, only receipt of new ones. United States v. 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. 18 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).
"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
7. 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.' ").