How Can a Convicted Felon Receive Firearm Rights?
Reviewed by: Melissa McCall, J.D., M.S.
By: Patrick Gleeson, Ph. D.,
The Civil Rights of Felons in California
••• Image Courtesy of TrekEarth (Copyright S.Morris, 2000.)
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When convicted of a felony, felons usually lose their gun rights. Certain felony crimes are exempted, however, and there are several ways a felon's right to own guns can be restored.
The National Firearms Act
In 1934, Congress passed the National Firearms Act. One of the act's provisions made it illegal for felons – persons convicted of a felony crime – to own or operate firearms. A 1965 amendment to that act reinforced some sections but also offered new relief in others.
Applications to the ATF
Felons can apply to have their gun rights restored by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The application must convince the bureau that the nature of the crime – a financial fraud conviction, for example – indicates that the applicant poses no public safety risk. If the bureau chooses, it can restore the applicant's gun rights.
Between 1982 and 1992, the ATF restored the gun rights of about 7,000 felons. Since 1992, however, Congress hasn't appropriated the funds needed to process these applications. In response, the ATF stopped processing them.
When the ATF turns down an application, under current law the felon has a right to a court appeal. However, since applications to the ATF after 1992 haven't been processed, they haven't been denied. One case involving this particular Catch-22 went all the way to the Supreme Court, which turned down the plaintiff's request for restoration of gun rights that the ATF had failed to consider. At this writing, only an act of Congress or a congressional renewal of ATF funding for processing these applications would make it possible for felons to have gun rights restored by applying to the ATF.
Exemptions for Sentences of One Year or Less
Under the Act, felons lose their gun rights only when the punishment for the felony includes imprisonment for more than a year.
Restoration By Expungement
A felon's gun rights may be restored when the felony record is sealed or expunged. A sealed criminal record still exists, but it can only be viewed after a motion to reopen it. This happens rarely. An expunged record has been destroyed. While expungements do not primarily concern gun rights, after an expungement, the right can be restored.
How this happens varies widely by state. In Florida, expungements can be delayed for as long as 10 years following the determination of guilt. In California, the process can happen almost any time after the felony conviction. In instances in California where a person has been charged with a crime but not convicted, the expungement process that erases all records of the charge can occur immediately after determination of innocence.
Automatic Reinstatements, Statutory Exemptions and Pardons
In other states still, expungement isn't necessary. In Minnesota, for example, felons have the right to own guns immediately after completing their sentence.
The 1965 amendment to the National Gun Act exempts certain felony crimes. Felons convicted of antitrust law violations, violations in restraint of trade or violations related to unfair trade practices do not lose their gun rights.
Gun rights may also be restored when a felon receives a presidential or gubernatorial pardon. Presidential pardons occur, but infrequently, usually only at the conclusion of a president's term of office. State pardons also occur infrequently. Governors in some states, such as in Florida and Texas, almost never issue felony pardons.
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I am a retired Registered Investment Advisor with 12 years experience as head of an investment management firm. I also have a Ph.D. in English and have written more than 4,000 articles for regional and national publications.