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Convicted felons have Second Amendment right to own guns, Louisville judge rules

The Truth News — Thu, 20 Jun 2024 08:42:17 +0000

Convicted felons have Second Amendment right to own guns, Louisville judge rules

LOUISVILLE, Ky. (WDRB) – In what appears to be a first-of-its-kind ruling in Louisville, a judge determined that a convicted felon can’t be prosecuted on a firearms charge because it violates his Second Amendment rights.

Jefferson Circuit Court Judge Melissa Logan Bellows ruled Wednesday that it is unconstitutional for prosecutors to move forward with their case against Jecory Lamont Frazier under a state law prohibiting felons from owning a gun because it doesn’t outweigh the Second Amendment right that belongs to “all Americans.”

The Jefferson Commonwealth’s Attorney’s office had argued before Bellows that the U.S. justice system has consistently disarmed people “who it deems to be unvirtuous, such as felons” and that the Kentucky Supreme Court has supported this argument.

But Bellows, who was elected in 2022, cited a 2008 U.S. Supreme Court ruling that there is a “strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”

“Therefore, the Court is reluctant to accept that the limits on the right protected by the Second Amendment are defined by a person’s virtue or good character,” Bellows ruled.

In a statement on Friday, the Commonwealth’s Attorney’s office said the ruling “deviates from well-established precedent, norm, and case law. We disagree with the ruling, and we are initiating steps to appeal it. Judges can make their own interpretations regarding the law, but they are subject to appellate scrutiny, which provides checks and balances on the judicial system.”

Bellows also ruled the prosecutors did not present evidence of a historical tradition of disarming felons after the Second Amendment was ratified in 1791.

Prosecutors, she said, failed to prove that state law “is consistent with this Nation’s historical tradition of firearm regulation.”

Frazier was arrested on November 6, 2021, after Louisville Metro Police were called to the 3900 block of Taylor Blvd., after a driver hit a pole.

Police claim Frazier attempted to hide something in his vehicle when police arrived and then pulled out a handgun and handed it to a co-defendant “to conceal from officers that he is a felon in possession of a handgun,” according to the arrest citation.

His previous convictions include drug trafficking, fraud, tampering which physical evidence and being a felon in possession of a handgun.

In October, his attorney, Rob Eggert, asked to dismiss the gun charge and cited a 2019 case in front of Judge Amy Coney Barrett, who is now a Supreme Court Justice, where she ruled that “founding-era legislators did not strip felons of the right to bear arms simply because of their status as felons.”

Eggert wrote that other appeals courts across the nation, including in Mississippi, are ruling that laws prohibiting felons from owning firearms are unconstitutional.

And he pointed out that in 2006, Kentucky Supreme Court Justice Will T. Scott wrote in a dissenting opinion that, historically, Kentucky did not prohibit anyone from owning a firearm, including convicted felons.

Assistant Commonwealth’s Attorney Jackson Rice argued in a motion in the case that the U.S. high court rulings cited by Eggert and Bellows did not state that felons should be allowed to own guns.

“While the defendant’s conduct – possessing a firearm – might be covered by the plain text of the Second Amendment, the historical tradition of firearm regulation plainly supports a ban on convicted felons being in possession of a firearm,” he wrote in a motion.

As far as the historical argument, Rice wrote that in colonial times, convicted felons could not own “property or chattels and, thereby, implicitly, could not possess a firearm.”

The statement from the Commonwealth’s Attorney’s office noted the the Kentucky Supreme Court has ruled that felon in possession of a firearm prohibitions did not violate the state constitution.

Brian Butler, who used to be a prosecutor and is now a defense attorney, said he believes the ruling “is an earth shattering opinion” that will prompt similar motions in other gun cases until the state Supreme Court rules on the issue.

Attorney General Coleman and Jefferson Commonwealth’s Attorney File Appeal to Continue Prosecuting Convicted Felon for Gun Possession

FRANKFORT, Ky. (March 22, 2024)— Attorney General Russell Coleman and Jefferson County Commonwealth’s Attorney Gerina D. Whethers announced today they are appealing a recent Jefferson Circuit Court ruling, which would allow a convicted drug trafficker to possess a firearm.

Last week, the Circuit Court ruled that a state law barring felons from possessing firearms was unconstitutional and that prosecutors could not move forward on a charge against Jecory Lamont Frazier, a convicted drug-trafficking felon. The Attorney General’s appeal will be heard by the Kentucky Court of Appeals.

“Violent crime and deadly drugs are Louisville’s most urgent challenges. The Attorney General’s Office is committed to protecting families in this community in collaboration with Commonwealth’s Attorney Whethers, LMPD and other law enforcement partners,” said Attorney General Coleman. “We are appealing this order because it defies good common sense and would give even the most violent felon a broad right to possess deadly weapons. The most ardent supporters of the Second Amendment—me included—recognize the constitutionality of laws prohibiting the possession of firearms by felons like the defendant here.”

Frazier has a prior felon-in-possession conviction, a felony drug-trafficking conviction and multiple convictions for fraudulent use of a credit card.

The landmark U.S. Supreme Court decision upholding the individual right to keep and bear arms, District of Columbia v. Heller, which was written by Justice Scalia, specifically noted “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”

“I come from a military family, and that, combined with my respect for the rule of law, is why I too am a continued supporter of the Second Amendment for law-abiding citizens,” said Commonwealth’s Attorney Gerina D. Whethers. “However, making it easier for those who have been previously convicted of felonies to access firearms puts the safety of our community at risk. Any order that runs contrary to our state laws already deemed constitutional under the Kentucky Constitution is a cause for concern.” source

Other Important 2nd Amendment Cases

felons can posses gun cases

Federal Judge Tosses Gun Possession Case Against Convicted Felon United States v. Bullock

Third Circuit Holds that a Nonviolent felon May Not Be Stripped of Second Amendment Rights.

Convicted felons have Second Amendment right to own guns, Louisville judge rules

Ninth Circuit Panel Concludes That Some Felons May Have Second Amendment Rights

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massachusetts vs dean f donnell

The Truth News — Tue, 22 Aug 2023 19:11:04 +0000

Jared sometimes gets over-enthusiastic but this appears to be 100% solid. Case is Commonwealth of Massachusetts v Dean F. Donnell, opinion is dated 8/3/23 by judge John F Coffey, listed in the last page as Associate Justice. Appears to come out of Middlesex MA. If anybody can find me a PDF of the final order and if possible, motions by the defense that led to this (or at least the defense attorney’s name) I’d be much obliged.

The winning argument appears to be based on Bruen. Reconstructing it as best I can from the judges order, defense argued that there is no text history or tradition of barring people from defensive arms in one state merely because they come from another state. I don’t see any evidence that my three other favorite arguments were used:

Making somebody get somewhere around 18 permits total to get national carry rights violates the bans on excessive fees and excessive delays in the access to carry rights found at Bruen footnote 9. It absolutely detonates those bans.
Saenz v Roe 1999 (US Supreme Court) bans states from discriminating against visiting residents of other states. (This would not be an issue in Massachusetts regardless because it is possible for somebody from New Hampshire or another state like mine in Alabama to obtain a Massachusetts carry permit.)
The MA permit processes still contain subjective elements such as letters of reference banned in Bruen footnote 9 via the citation to Shuttlesworth v Birmingham 1969. In other words, if this guy would have been forced to jump through banned subjective hoops to carry in MA, he was under no obligation to do that. The proof is in the Shuttlesworth case itself; the Reverend Fred Shuttlesworth was legally required to get a permit for a demonstration (a constitutional right) involving subjective standards; he didn’t get the permit, ran the protest anyway, was criminally charged and convicted in State Court and then the US Supreme Court cleared him of all charges because everything that happened to him was unconstitutional: subjective standards when accessing to a basic civil right are absolutely forbidden in that 1969 case.

Lowell (MA) District Court No. 2211CR2835 Middlesex VS Dean F. Donnell case from Guns and Gadgets says MA law allowing prosecution for NH carry permit holders for crossing into MA unconstitutional.

Another Court Strikes Cannabis Gun Control Law – United States v. Daniels

The Truth News — Thu, 17 Aug 2023 11:06:17 +0000

Another Court Strikes Cannabis Gun Control Law – United States v. Daniels

Facts of the case

In 1994, Earthy D. Daniels, Jr., was convicted of being a felon in possession of a firearm. Under the Armed Career Criminal Act of 1984 (ACCA), which imposes a mandatory minimum 15-year sentence on anyone convicted of being a felon in possession of a firearm and who has three previous convictions for a violent felony, Daniels’ sentence was enhanced. After an unsuccessful appeal, Daniels filed a motion to vacate, set aside, or correct his federal sentence. Daniels argued that his sentence violated the Constitution because it was based in part on two prior convictions that were themselves unconstitutional. The District Court denied the motion. The Court of Appeals affirmed.

The Fifth Circuit Court of Appeals is the most recent court to find that federal cannabis gun control legislation is unconstitutional. The case, United States v. Daniels, was published on August 9, 2023. The court joins a growing list of courts which have all found these restrictions unconstitutional.

Federal law prohibits cannabis users from buying or owning guns. A 2022 U.S. Supreme Court case, New York State Rifle & Pistol Association, Inc. v. Bruen, held that the test for determining whether a gun control law is constitutional is (1) whether the affected person has Second Amendment rights, and (2) whether the restriction is “consistent with the Nation’s historical tradition of firearm regulation.”

All or virtually all courts that have dealt with the federal cannabis gun control law agree that cannabis users have Second Amendment rights. And nearly all courts agree that the federal cannabis restriction is not “consistent with the Nation’s historical tradition of firearm regulation.” Now, we can add the Fifth Circuit to that list:

[O]ur history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage. Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users. As applied to Daniels, then, § 922(g)(3) violates the Second Amendment.

I’ll keep this post very brief and not analyze every aspect of the Daniels decision, since I’ve written about many of the other federal cannabis gun control cases (see below) and the analysis here is very similar. Three things are important to keep in mind following the Daniels decision:

The ruling is an “as applied” ruling, meaning that the law was found to be unconstitutional as applied to the defendant. So the ruling is narrower than it could have been. This is similar to what happened in the Third Circuit Court of Appeals decision in Range v. Attorney General of the United States of America, which was also as-applied. For what it’s worth, Range wasn’t a cannabis case – it was a case based on gun control restrictions due to a prior disqualifying misdemeanor conviction (which is one of the other many gun control restrictions).
Earlier this year, a federal court in Texas decided a case on very similar grounds, in United States v. Connelly. I wrote about that case here. The federal district courts in Texas are part of the Fifth Circuit, meaning that if Connelly is appealed, it will likely end up with the same or similar outcome to Daniels.
While this is the first Fifth Circuit case applying the Bruen test to federal cannabis gun control laws, it’s not the first case to apply the Bruen test to other federal gun control laws. Earlier this year, the Fifth Circuit decided United States v. Rahimi, holding unconstitutional (under Bruen) federal restrictions on gun possession by persons subject to civil domestic violence restraining orders. Rahimi was recently appealed to the U.S. Supreme Court, which agreed to hear the case in the upcoming term. Rahimi is not a cannabis case, but it is certainly possible that the U.S. Supreme Court’s ruling could affect the sea of cannabis gun control cases pending in federal court now.

In sum, Daniels is just one of many federal cases that are chipping away at gun control restrictions. This raises the chances, yet again, that people won’t have constitutional rights stripped away just because they consume cannabis to help with debilitating illnesses or even recreationally. source

Learn More on 2nd Amendment Cases for Weed and other things you may care about:

Federal Judge Rules Gun Ban for Weed Smokers Unconstitutional Feb 2023

Another Court Strikes Cannabis Gun Control Law – United States v. Daniels Aug 2023

Fifth Circuit Strikes Down Domestic-Violence Prohibitor in United States v. Rahimi June 2023

United States v. Daniels

Opinion

CAUSE NO. 1:22-cr-58-LG-RHWR-1

2022-07-08

UNITED STATES of America v. Patrick Darnell DANIELS, Jr.

Erica L. Rose, Assistant US Attorney, U.S. Attorney’s Office, Gulfport, MS, for United States of America. Leilani Leith Tynes, Public Defender, Federal Public Defender, Gulfport, MS, for Patrick Darnell Daniels, Jr.

LOUIS GUIROLA, JR., UNITED STATES DISTRICT JUDGE

Erica L. Rose, Assistant US Attorney, U.S. Attorney’s Office, Gulfport, MS, for United States of America.

Leilani Leith Tynes, Public Defender, Federal Public Defender, Gulfport, MS, for Patrick Darnell Daniels, Jr.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS

LOUIS GUIROLA, JR., UNITED STATES DISTRICT JUDGE

BEFORE THE COURT is the [24] Motion to Dismiss filed by Defendant, Patrick Darnell Daniels, Jr. The Government filed a [27] Response, to which Defendant [28] replied. This Defendant is under indictment for knowingly possessing a firearm while an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3). Defendant has filed the instant [24] Motion to Dismiss the indictment, arguing that 18 U.S.C. § 922(g)(3), is unconstitutional under the Second Amendment and pursuant to the Supreme Court’s recent decision in New York State Rifle & Pistol Assoc., Inc. v. Bruen , ––– U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). The Court has conducted a hearing on the matter and after due consideration of the arguments of counsel, the record, and the applicable law, finds that the Motion should be denied.

DISCUSSION

I. Second Amendment Framework

Defendant argues that this case must be dismissed because section 922(g)(3) is unconstitutional under the Second Amendment to the United States Constitution. Therefore, to rule of this Motion, the Court must analyze and apply Second Amendment jurisprudence as articulated by the Supreme Court.

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. In District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court concluded, after thorough textual and historical analysis, that the Second Amendment confers “an individual right to keep and bear arms.” Id. at 595, 128 S.Ct. 2783. The Court was quick to note that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id. at 626, 128 S.Ct. 2783. Relevant here, the Court stated that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Id. In a footnote, the Supreme Court classified these traditional restrictions on firearm possession as a non-exhaustive list of “presumptively lawful regulatory measures.” Id. at 627 n. 26, 128 S.Ct. 2783. The Supreme Court went on to strike down a law in the District of Columbia which “totally bans handgun possession in the home.” Id. at 628, 128 S.Ct. 2783. In doing so, the Supreme Court conducted a historical analysis of handgun restrictions in the United States and found the D.C. restriction to be novel in its severity, targeting “the quintessential self-defense weapon.” Id. at 629, 128 S.Ct. 2783.

In New York State Rifle & Pistol Assoc., Inc. v. Bruen , ––– U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), the Supreme Court again considered the contours of the Second Amendment right to bear arms. The Court characterized its earlier decisions as “recogniz[ing] … the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.” Id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *5. The Court was called upon to assess the constitutionality of a New York licensing scheme which allowed authorities to deny concealed-carry permits even where an applicant met certain threshold criteria. Id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *5-*6. In doing so, the Court clarified and explained the methodology to be used in addressing Second Amendment claims. The Court rejected “a ‘two-step’ framework” involving “means-end scrutiny” in use by various appellate courts and instead clarified that the appropriate methodology centers “on constitutional text and history.” Id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *7-10. Hence, to answer Second Amendment questions, courts must “assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.” Id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *12. In other words:

In keeping with Heller , we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

Id. (quoting Konigsberg v. State Bar of Cal. , 366 U.S. 36, 50, n. 10, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961) ).

On the second prong of the Bruen test, the Court said: ” ‘historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.’ ” Id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *12 (quoting McDonald v. City of Chicago , 561 U.S. 742, 803-04, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (Scalia, J., concurring)). This analysis will often require the use of “historical analogies,” whether because of “unprecedented societal concerns or dramatic technological changes.” Bruen , 2022 WL 2251305, at 12, ––– U.S. at ––––, 142 S.Ct. 2111. Thus, “[w]hen confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy.” Id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *13. “[E]ven if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Id.

The opinion gives an example of analogical reasoning in the case of location-based firearm restrictions. Because there are historical analogues to modern “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” Heller , 554 U.S. at 626, 128 S.Ct. 2783, even though such analogues may have protected relatively few “sensitive places,” still, “courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” Bruen , 2022 WL 2251305, at *14, ––– U.S. at ––––, 142 S.Ct. 2111.

II. Application to Section 922(g)(3)

The Court now applies the Second Amendment framework outlined in Bruen to the criminal statute at issue. Section 922(g)(3) provides that “[i]t shall be unlawful for any person … (3) who is an unlawful user of or addicted to any controlled substance … [to] possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(3).

1. Textual Analysis

The Court begins with the textual coverage of the Second Amendment. On this subject the Supreme Court has read “the Amendment’s operative clause,” that ” ‘the right of the people to keep and bear Arms shall not be infringed,’ ” to mean that ” ‘guarantees the individual right to possess and carry weapons in case of confrontation’ that does not depend on service in the militia.” Bruen , 2022 WL 2251305, at *9, ––– U.S. at ––––, 142 S.Ct. 2111 (quoting Heller , 554 U.S. at 592, 128 S.Ct. 2783 ). Because section 922(g)(3) restricts the “possess[ion]” of “any firearm or ammunition,” the Court concludes that section 922(g)(3) regulates conduct which is facially covered by the plain text of the Second Amendment. See 18 U.S.C. § 922(g)(3).

The Court notes for the purpose of comprehensiveness that Bruen describes “ordinary, law-abiding, adult citizens” as indisputably “part of ‘the people’ whom the Second Amendment protects.” Id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *14 ; see also id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *12 (“The Second Amendment … ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.”) (quoting Heller , 554 U.S. at 635, 128 S.Ct. 2783 ). In fact, the Court specifically limited its decision to “may-issue” licensing regimes; it did not “suggest the unconstitutionality” of the “shall-issue” licensing regimes in use by 43 states, which “are designed to ensure only that those bearing arms in the jurisdiction are, in fact ‘law-abiding, responsible citizens.’ ” Bruen , 2022 WL 2251305, at *18 n. 9, ––– U.S. at –––– n.9, 142 S.Ct. 2111. Because it is concerned with “unlawful” drug users and addicts, there is some doubt that section 922(g)(3) is textually covered by the Second Amendment, insofar as it has been interpreted to guarantee the right to keep and bear arms to ordinary, law-abiding, responsible citizens concerned with self-defense. See Roberge v. United States , No. 1:04CR70, 2013 WL 4052926, at *17 (E.D. Tenn. Aug. 12, 2013) (“Persons like Roberge, who unlawfully use controlled substances, are not law abiding, responsible citizens. Roberge can be lawfully prohibited from possessing firearms while he is engaging in criminal conduct by using methamphetamine.”); see also United States v. Campbell , No. 4:18CR23, 2020 WL 699821, at *4 (E.D. Tenn. Feb. 11, 2020).

2. Historical Analysis

To be certain, the Court will review historical research into statutes in the American legal tradition which are analogous to § 922(g)(3). Heller explicitly cautioned readers not to “doubt … longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Heller , 554 U.S. at 626, 128 S.Ct. 2783. Such regulatory measures are “presumptively lawful.” See id. at 627 n. 26, 128 S.Ct. 2783. The Supreme Court echoed this in McDonald v. Chicago , 561 U.S. 742, 786, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (“We repeat those assurances here,” namely, “that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill.’ “) (quoting Heller , 554 U.S. at 626, 128 S.Ct. 2783 ). “In addition, Heller demonstrates that a regulation can be deemed ‘longstanding’ even if it cannot boast a precise founding-era analogue.” Nat’l Rifle Ass’n of Am. v. Bureau of Alcohol, Tobacco, Firearms & Explosives , 700 F.3d 185, 196 (5th Cir. 2012) (citing United States v. Skoien , 614 F.3d 638, 640 (7th Cir. 2010) ).

In a pre- Heller case, the Fifth Circuit characterized § 922(g)(3) as a ” ‘limited, narrowly tailored specific exception’ ” to the Second Amendment right which is “not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.” United States v. Patterson , 431 F.3d 832, 835-36 (5th Cir. 2005) (quoting United States v. Emerson , 270 F.3d 203, 261 (5th Cir. 2001) ). The Fifth Circuit tethered its holding to the high-risk nature of drug abusers—”Congress may prohibit those who pose a risk to society, like felons, from exercising the right to bear arms,” and “unlawful users of controlled substances pose a risk to society if permitted to bear arms.” Patterson , 431 F.3d at 835-836. In an earlier decision, the Fifth Circuit had drawn upon numerous law review articles and other secondary sources to establish that § 922(g)‘s restriction on possession of firearms by felons—another high-risk class—has a long and established history in English and American common law. Emerson , 270 F.3d at 226 n. 21. The Fifth Circuit reaffirmed this holding in a post- Heller decision in 2013. See United States v. May , 538 F. App’x 465, 466 (5th Cir. 2013) (citing Patterson , 431 F.3d at 836 ); see also United States v. Moreno , 811 F. App’x 219, 223 (5th Cir. 2020) (upholding Sentencing Guideline § 2D1.1(b)(1), which “increases a base offense level by two levels ‘if a dangerous weapon (including a firearm) was possessed ’ in the course of an offense involving drugs,” because “drug traffickers pose a risk to society that is enhanced by their possession firearms” and the enhancement “harmonizes with historical traditions regarding the Second Amendment”) (emphasis in original). District courts in the Fifth Circuit have also upheld the constitutionality of § 922(g)(3) since Heller.

See also United States v. Roach , 201 F. App’x 969, 974 (5th Cir. 2006) (repeating this holding).

See also Nat’l Rifle Ass’n , 700 F.3d at 200-04 (discussing the historical foundations of modern firearm restrictions and noting “revolutionary and founding-era gun regulations … that targeted particular groups for public safety reasons”).

See, e.g., Piscitello v. Bragg , No. EP-08-CA-266-KC, 2009 WL 536898, at *3 (W.D. Tex. Feb. 18, 2009).

Other circuit courts have likewise upheld the constitutionality of § 922(g)(3) under Heller ‘s standards of history and tradition. For instance, the Eighth Circuit collected various cases which found that § 922(g)(3) fell within Heller ‘s presumptively lawful category of historically attested firearm restrictions. See United States v. Seay , 620 F.3d 919, 924-25 (8th Cir. 2010) (holding that ” § 922(g)(3) has the same historical pedigree as other portions of § 922(g) which are repeatedly upheld by numerous courts since Heller “); see also United States v. Dugan , 657 F.3d 998, 999 (9th Cir. 2011) (adopting the reasoning of Seay and Yancey , discussed infra , that § 922(g)(3) “embodies a long-standing prohibition of conduct similar to the examples listed in Heller “); United States v. Richard , 350 F. App’x 252, 260 (10th Cir. 2009) (upholding § 922(g)(3) as one of the ” ‘presumptively lawful regulatory measures’ ” mentioned in Heller ).

Perhaps the most robust discussion of the historicity of § 922(g)(3) is contained in United States v. Yancey , 621 F.3d 681 (7th Cir. 2010). In that case, the Seventh Circuit began by noting that “[i]t was not until 1968 that Congress barred the mentally ill from possessing guns, and it was in that same legislation that habitual drug users were prohibited from having guns.” Id. at 683 (citing Gun Control Act of 1968, Pub. L. 90-618, § 102, 82 Stat. 1213, 1220). However, Congress’s disarmament of drug abusers did not occur in a vacuum; rather, “many states” had theretofore “restricted the right of habitual drug abusers or alcoholics to possess or carry firearms.” Yancey , 621 F.3d at 684. “These statutes demonstrate that Congress was not alone in concluding that habitual drug abusers are unfit to possess firearms.” Id. And these prohibitions “are merely the latest incarnation of the states’ unbroken history of regulating the possession and use of firearms dating back to the time of the amendment’s ratification.” Id.

The Seventh Circuit analogized disarmament of drug abusers to disarmament of felons, though it noted a debate in legal scholarship as to the extent to which felons were disarmed in American legal tradition. Id. at 684. The Court cited cases from the nineteenth century upholding statutes which disarmed “tramps,” see State v. Hogan , 63 Ohio St. 202, 58 N.E. 572 (1900), and “intoxicated persons,” see State v. Shelby , 90 Mo. 302, 2 S.W. 468 (1886). The Seventh Circuit ultimately concluded: “Whatever the pedigree of the rule against even nonviolent felons possessing weapons … most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm ‘unvirtuous citizens.’ ” Id. at 684-85 (citing United States v. Vongxay , 594 F.3d 1111, 1118 (9th Cir. 2010) ). With the historical conclusion that dangerous or unvirtuous citizens could be disarmed, the Seventh Circuit produced sources corroborating Congress’s finding that drug abusers are more likely to engage in gun violence and more likely to exhibit a dangerous lack of self-control. Id. , the Court found § 922(g)(3) constitutional.

See also Nat’l Rifle Ass’n , 700 F.3d at 201, where, while summarizing the historical evidence relating to disarmament of dangerous persons, the Fifth Circuit said: “[t]hese categorical restrictions may have been animated by a classical republican notion that only those with adequate civic ‘virtue’ could claim the right to arms.” Id. “Scholars have proposed that at the time of the founding, ‘the right to arms was inextricably and multifariously linked to that of civic virtu[e] (i.e., the virtuous citizenry),’ and that ‘one implication of this emphasis on the virtuous citizen is that the right to arms does not preclude laws disarming the unvirtuous citizens (i.e., criminals) or those who, like children or the mentally imbalanced, are deemed incapable of virtue.” Id. (citing Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and Criminological Considerations , 60 Hastings L. J. 1339, 1359 (2009) ). This observation comports with the Supreme Court’s statements that the Second Amendment, as a threshold matter, covers only ordinary and responsible law-abiding citizens.

CONCLUSION

The Court finds that the analysis in Yancey demonstrates the historical attestation demanded by the Bruen framework. The appellate courts observe that “Congress enacted the exclusions in § 922(g) to keep guns out of the hands of presumptively risky people,” Yancey , 621 F.3d at 683, and enumerated unlawful drug users and addicts amongst other similar classes. The Court need not repeat the Seventh Circuit’s historical analysis in Yancey ; it suffices to show that analogous statutes which purport to disarm persons considered a risk to society—whether felons or alcoholics—were known to the American legal tradition. See, e.g., United States v. Carter , 669 F.3d 411, 415 (4th Cir. 2012) (“Placed in the wrong hands, firearms present a grave threat to public safety, and for this reason, the Anglo-American right to bear arms has always recognized and accommodated limitations for persons perceived to be dangerous.”). The Court therefore finds that 18 U.S.C. § 922(g)(3) passes constitutional muster under the legal framework articulated in Heller and Bruen .

IT IS THEREFORE ORDERED AND ADJUDGED that the [24] Motion to Dismiss filed by Defendant, Patrick Darnell Daniels, Jr. is DENIED.

SO ORDERED AND ADJUDGED this the 8^th day of July, 2022.

source

US v. Jessie Bullock – Gun Possession & Convicted Felons

The Truth News — Mon, 03 Jul 2023 17:44:11 +0000

US, v. Jessie Bullock – Federal Judge Tosses Gun Possession Case Against Convicted Felon

UNITED STATES OF AMERICA, v. JESSIE BULLOCK

Supreme Court of Mississippi.

Jesse Roland BULLOCK, Jr. v. STATE of Mississippi.

No. 1999-CP-01667-SCT.

Decided: September 14, 2000

BEFORE BANKS, P.J., WALLER AND DIAZ, JJ. Jesse Roland Bullock, Appellant, pro se. Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

¶ 1. This matter is before the Court on appeal from the judgment of the Circuit Court of Marion County dismissing Jesse Roland Bullock, Jr.’s Petition for Post Conviction Relief. Because Bullock’s petition is time barred, we affirm.

¶ 2. Jesse Roland Bullock, Jr. pled guilty in October of 1991 to manslaughter and aggravated assault. On November 1, 1991 he was sentenced to twenty years for manslaughter and twenty years for aggravated assault, with ten years of the aggravated assault to run concurrently with the sentence for manslaughter and ten years to run consecutively.

¶ 3. In August of 1999, Bullock filed a Motion for Post-Conviction Relief. The circuit court dismissed the motion as procedurally barred. Bullock filed a timely notice of appeal.

II.

WHETHER THE LOWER COURT ERRED BY RULING THAT THE APPELLANT’S MOTION FOR POST-CONVICTION COLLATERAL RELIEF IN TRIAL COURT WAS BARRED UNDER MISS. CODE ANN. § 99-39-5(2)?

¶ 4. Bullock’s motion for post-conviction relief was barred by Miss.Code Ann. § 99-39-5(2) (1994). Pursuant to § 99-39-5(2) a defendant has three years after being sentenced to bring an action. Miss.Code Ann. § 99-39-5(2). The statute also establishes three exceptions to the three-year time bar. Luckett v. State, 582 So.2d 428, 430 (Miss.1991). However, Bullock does not fit under any of the exceptions.

III.

WHETHER THE COURT ERRED IN RULING THAT THERE WAS NO EVIDENCE TO SUPPORT THE APPELLANT’S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 5. Were we to reach the merits of Bullock’s claim of ineffective assistance of counsel, we would conclude that there was not enough evidence in the record to support this claim. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

IV.

¶ 6. Accordingly, the circuit court’s judgment is affirmed.

¶ 7. DISMISSAL OF POST CONVICTION RELIEF AFFIRMED.

BANKS, Presiding Justice, for the Court:

PRATHER, C.J., PITTMAN, P.J., McRAE, SMITH, MILLS, WALLER, COBB AND DIAZ, JJ., CONCUR. source

US, v. Jessie Bullock – Gun Possession & Convicted Felons

Being convicted of a felony–even a violent one–is not enough to deprive someone of their Second Amendment rights for life, a federal judge has ruled.

U.S. District Judge Carlton Reeves, an Obama appointee, dismissed a felon-in-possession of a firearm prosecution against Jesse Bullock, a Mississippi man, on Wednesday. Judge Reeves ruled that the federal government failed to meet its burden of showing that the historical tradition of firearms regulation supported permanently disarming Bullock for his past crimes, as required under the Supreme Court’s latest precedent.

“The government’s arguments for permanently disarming Mr. Bullock, however, rest upon the mirage of dicta, buttressed by a cloud of law review articles that do not support disarming him,” Judge Reeves wrote in United States v. Bullock. “In Bruen, the State of New York presented 700 years of history to try and defend its early 1900s‐era gun licensing law. That was not enough. Bruen requires no less skepticism here, where the challenged law is even younger.”

The ruling marks the first U.S. District Court to strike down the federal prohibition on convicted felons possessing firearms—18 U.S.C. § 922(g)(1). Though its opinion only extends to the defendant Bullock, it will undoubtedly add fuel to the growing legal fire over who can be prohibited from purchasing or possessing firearms following the Supreme Court’s decision in 2022’s New York State Rifle and Pistol Association v Bruen. It could also help motivate the Supreme Court to step in and further expound on where the limits of Second Amendment protections lie.

To date, federal courts have been split over whether the Second Amendment protects non-violent felons, unlawful drug users, persons under felony indictment, and those subject to a domestic violence restraining order.

Judge Reeves made headlines in November of last year when he was first assigned to hear Bullock’s case and consider whether or not he could be disarmed. He publicly chastised the Supreme Court for its legal test outlined in the Bruen decision and its emphasis on history in reaching outcomes.

“This Court is not a trained historian. The Justices of the Supreme Court, distinguished as they may be, are not trained historians,” he wrote in an opinion ordering the Department of Justice to brief him on whether he needed to appoint a historian to decide the case. “We are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.”

He was no less forceful in his criticism of the High Court and its Bruen decision in his 77-page dismissal opinion on Wednesday.

“In Second Amendment cases, though, the pyramid is turned on its head,” Reeves wrote. “The trial record can be nonexistent. None of the history is ‘tested in an adversarial proceeding,’ and there may be no factual findings that ordinarily would receive some form of deference. The appellate courts do the best with the briefs they have, but all that matters is the Supreme Court’s historical review, conducted de novo as a legal rather than a factual question, with dozens of amicus briefs never before seen by another court. Is this the best way of doing justice?”

Nevertheless, under the test spelled out by the Bruen decision, Reeves found that the government failed to demonstrate a historical tradition of permanently disarming felons. Instead, he noted that the government simply pointed to Supreme Court dicta or the “more than 120 U.S. District Court decisions” that have upheld the felon-in-possession ban since Bruen to show that it is presumptively constitutional, which he said was insufficient.

“The government’s citation to the mere volume of cases is not enough,” Reeves wrote. “The federal felon‐in‐possession ban was enacted in 1938, not 1791 or 1868—the years the Second and Fourteenth Amendments were ratified. The government’s brief in this case does not identify a ‘well‐established and representative historical analogue’ from either era supporting the categorical disarmament of tens of millions of Americans who seek to keep firearms in their home for self‐defense.”

The case centered around Jessie Bullock, who, in 1992, was convicted of aggravated assault and manslaughter for a “deadly bar fight.” He served 15 years in prison. He also was convicted of fleeing law enforcement and attempted aggravated assault of a law enforcement officer in 2015 and received a five-year suspended sentence. In 2018, he was indicted for knowingly possessing a firearm as a convicted felon, but he was not arrested until 2020. After a series of pandemic-related delays, Bullock was finally set to go to trial over the gun charge in August 2022 before he filed a motion to have his charge dismissed in light of Bruen.

Judge Reeves conducted his own review of the reasoning and laws cited in dozens of other post-Bruen cases challenging prohibited person restrictions but found there was no clear analog for the punishment Bullock received. And he said the government, who had the burden to prove the law was consistent with American tradition, didn’t provide enough evidence to change his analysis.

“[T]he plain text of the Second Amendment covers Mr. Bullock’s conduct—possession of ordinary firearms in the home—and therefore presumptively protects him,” Reeves wrote.

While much of the opinion was spent criticizing the Supreme Court’s view of the Second Amendment and its new test for applying it, Judge Reeves ultimately said the high standard might be justified.

“Maybe the Supreme Court is correct that in this country, to ‘secure the Blessings of Liberty to ourselves and our Posterity,’ the government should have the burden of justifying itself when it deprives people of their constitutional rights,” he wrote. “Perhaps the Court is also correct that constitutional rights should be defined expansively.”

However, he also said the Court has not consistently protected other constitutionally-guaranteed rights to the same degree. He argued that the right to a speedy trial, the right to a writ of habeas corpus, and the right to vote have all been whittled down while gun rights have been restored.

“In breathing new life into the Second Amendment, though, the Court has unintentionally revealed how it has suffocated other fundamental Constitutional rights,” Reeves wrote. “Americans are waiting for Heller and Bruen’s reasoning to reach the rest of the Constitution.”

The Department of Justice declined to comment on the ruling or its plans for an appeal. source

https://youtu.be/1wlxWI0rL6w

Another Judge Chips Away at Laws Barring Felons From Owning Guns

Now both a violent and nonviolent felon have been found by lower courts to have a Second Amendment right to own weapons. The Supreme Court will likely consider the issue in the near future.

The law barring felons from owning firearms suffered another significant judicial blow in a decision yesterday in U.S. v. Bullock. Generally knows as the “felon in possession law,” U.S. Code 922(g)(1) prohibits firearm ownership for those found guilty of a crime punishable by imprisonment for a term exceeding one year. Jessie Bullock filed a motion in August 2022 to have such charges against him dismissed, and Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi granted that motion yesterday.

Bullock had served about 15 years in state prison for manslaughter and aggravated assault after killing someone in a 1992 bar fight. The government indicted him in 2018, when he was 57 years old, for possessing a firearm despite his felon status, and wanted to give him another 10 years.

As Reeves sums up the history of Bullock’s felon-in-possession case, a magistrate judge thought it was “‘downright silly’ to claim that Mr. Bullock ‘poses a danger to his wife, contrary to her own sworn testimony, contrary to the time that he’s been out on bond from this very incident’….Mr. Bullock has remained on bond ever since, without incident.”

Bullock’s claim, as Reeves put it, is that since he “finished serving his sentence long ago, and the available evidence indicates that the firearm the government complains of was kept in the sanctity of his home,” the charge against him violated his Second Amendment right to keep and bear arms.

Reeves explicitly says that his decision involves an “as applied” challenge to 922(g)(1). He states outright that despite dismissing the case against Bullock, “the federal government may continue to prosecute other persons for violating § 922(g)(1).”

Still, the arguments he presents make a strong case for saying the law is unconstitutional in its entirety as written.

Reeves’ reasoning is based on the 2022 Bruen decision, which overturned some New York restrictions on the public carrying of weapons. That case declared that to stand up under Second Amendment scrutiny, a law must be “consistent with this Nation’s historical tradition of firearm regulation.” (Reeves makes it clear with near-sarcasm throughout the decision that he wishes the Supreme Court had not set the precedent requiring him to dismiss the case against Bullock; he has done this kind of “you idiots in the Supreme Court made me do this ridiculous thing” decision making in an earlier case upholding qualified immunity for a police officer, as Billy Binion reported here at Reason in 2020.)

Reeves cannot help (though he clearly would like to) but notice that the 120 previous U.S. district court cases the federal government relied on to prove that such laws are totally constitutional do not adequately demonstrate the required post-Bruen “historical tradition” to prop up the law. “In none of those cases did the court possess an amicus brief from a historian. And in none of those cases did the court itself appoint an independent expert to help sift through the historical record,” Reeves notes.

Reeves also spells out later in his decision that the Justice Department has itself admitted in filings in other cases that the felon-in-possession law is, as stated in particular in an appellee brief in U.S. v. Pettengill, “firmly rooted in the twentieth century and likely bears little resemblance to laws in effect at the time the Second Amendment was ratified.”

The facts that lead Reeves to toss the case against Bullock are surprisingly simple: “The federal felon‐in‐possession ban was enacted in 1938, not 1791 or 1868—the years the Second and Fourteenth Amendments were ratified. The government’s brief in this case does not identify a ‘well‐established and representative historical analogue’ from either era supporting the categorical disarmament of tens of millions of Americans who seek to keep firearms in their home for self‐defense.”

That bald statement does imply to this layman that the law should not be able to stand any constitutional scrutiny, though Reeves insists he’s not saying that. His granting an actual violent felon, Bullock, the right not to be prosecuted for owning a gun follows on a June en banc decision from the 3rd Circuit in the case of Range v. Attorney General. That decision found the law unconstitutional as applied to a particular nonviolent felon who had merely lied on a food stamp application and never actually spent a day in jail—though he could have been sent up for more than a year, per 922(g)(1).

Reeves says there might be room for states to do things the federal government should not, or to legitimately keep certain felons from owning guns, even after Bruen; he posits that “American history might support state‐level felon disarmament laws; that at least would align with principles of federalism. It might support disarmament of persons adjudicated to be dangerous….And it likely does support disarmament of persons convicted of death‐eligible offenses. The power to take someone’s life necessarily includes the lesser power to disarm them.”

Reeves made news in this case last November by passive-aggressively complaining that he might need to appoint a historian to assist him in understanding the case, since the Bruen decision requires him to “play historian in the name of constitutional adjudication.” Neither party in the case agreed that this was necessary; Bullock’s team asserted that it was the government’s burden to prove the historical validity of the felon possession laws, and the government just insisted that “the prohibition against felons possessing firearms is so thoroughly established as to not require detailed exploration of the historical record.”

Reeves did not agree.

To preview how the Supreme Court might ultimately consider the issue Reeves’ decision has brought to renewed prominence, he quotes extensively from a pre–Supreme Court dissent from now-Justice Amy Coney Barrett in the 2019 7th Circuit decision Kanter v. Barr, in which she agrees that sweeping prohibitions on all felons, though possibly not demonstrably dangerous ones, should not stand under the Second Amendment. (Rickey Kanter got a Trump pardon.) Elsewhere in Reeves’ decision in Bullock, the judge quotes Bruen concurrences from Justices Samuel Alito and Brett Kavanaugh in which they both say out loud that Bruen in and of itself did not cast doubt on existing laws prohibiting felons from owning guns. Reeves thinks references by Justice Antonin Scalia in the 2008 Heller decision (which first established that the Second Amendment meant individual citizens had a right to keep commonly owned weapons for self-defense in the home; Bruen extended that to public carrying) to “law abiding, responsible citizens” are mere dicta with no power to prevent a decision like his.

Reeves goes on to somewhat slyly speculate about how the Supreme Court might look upon what he’s done, while concluding that “this Court will refrain from counting the Justices’ votes today.”

But Reeves does explain that “another common method of denying these motions”—that is, previous motions such as Bullock’s that did not succeed—”is to tally the felon‐in‐possession votes implied by Bruen‘s concurrences and dissent. Recall that in these separate opinions, six Justices endorsed felon disarmament. Five of those Justices are still on the Court. As a result, some district courts have assumed that as a simple matter of realpolitik, there is no chance the Supreme Court will find § 922(g)(1) unconstitutional in a future case….It certainly is tempting for busy trial judges to try and resolve complicated issues via this kind of calculation. But this Court cannot honor an advisory opinion on an issue that was not before the Supreme Court.”

Some facts about felon-in-possession laws from FY 2021 from the U.S. Sentencing Commission (USSC): 7,454 such convictions came before the USSC, and the number from 2017 through 2021 was always over 6,000 a year.

Over 97 percent of such violators were men, 56 percent were black, 95 percent were U.S. citizens, and their average age was 34. Over 96 percent of such offenders were sentenced to prison, with an average sentence of 60 months.

Through a complicated point system, the USSC divides offenders’ “criminal history category” into six categories; of those sentences under 922(g)(1), 39 percent were in one of the three lower categories.

While the figures cannot be known for certain, one analysis surmises up to 100,000 convicted felons in the U.S. still own guns, despite the fact that the federal government insists (and most courts agree) that it is categorically illegal to do so—although this Bullock decision and the 3rd Circuit’s Range decision are chipping away at that certainty. source

Judge doesn’t need historian to review gun law, say prosecutors, defense counsel

U.S. District Judge Carlton Reeves appears before the U.S. Senate Judiciary Committee in Washington, D.C., on June 8, 2022. U.S. Senate/Handout via

Prosecutors and defense lawyers are in rare agreement that a federal judge in Mississippi should not take the unusual step of appointing a historian to help him decide whether a federal firearms law complies with the U.S. Supreme Court’s landmark ruling in June expanding gun rights.

The opposing sides in briefs filed on Monday laid out their views after U.S. District Judge Carlton Reeves in a blistering opinion in October criticized the Supreme Court’s ruling, which changed the framework courts must use to evaluate gun regulations.

That decision, New York State Rifle & Pistol Association v. Bruen, declared for the first time that the U.S. Constitution’s 2nd Amendment protects an individual’s right to carry a handgun in public for self-defense. The 6-3 ruling powered by the court’s conservative majority instructed courts going forward to undertake a review of history to determine if gun restrictions are “consistent with the Nation’s historical tradition of firearm regulation.”

The ruling has led to a series of lower-court decisions declaring various gun restrictions unconstitutional and provided the grounds for a criminal defendant before Reeves in Jackson, Mississippi, Jesse Bullock, to challenge the federal ban on felons possessing firearms.

In an Oct. 27 opinion, Reeves, an appointee of former Democratic President Barack Obama, faulted the Supreme Court’s history requirement, saying he and other judges were not “trained historians.”

“And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791,” Reeves, who is Black, wrote. “Yet we are now expected to play historian in the name of constitutional adjudication.”

Reeves then asked the parties whether he should appoint a historian as a consultant to help him “identify and sift through authoritative sources on founding‐era firearms restrictions” as he weighed tossing the criminal case against Bullock.

But in filings late Monday, both sides said a historian was “unnecessary,” with prosecutors saying the judge should look to the parties themselves to provide support for their positions on whether the statute is constitutional.

Bullock’s lawyer, Assistant Federal Public Defender Michael Scott, said appointing a historian would wrongly relieve the government of its burden to establish the law was constitutional.

Prosecutors in the U.S. Department of Justice also raised a prospect they did not desire: Other judges following Reeves’ lead.

“The prospect of judges in all 94 federal judicial districts retaining a historian would be an expensive proposition and a departure from the typical reliance on the parties to provide support for their legal positions,” prosecutors wrote.

The case is United States v. Bullock, U.S. District Court for the Southern District of Mississippi, No. 3:18-cr-00165.

For the United States: Gaines Cleveland and Jessica Terrill of the U.S. Attorney’s Office for the Southern District of Mississippi

For Bullock: Michael Scott of the Office of the Public Defender

source

The Reeves Process

A federal judge in Mississippi takes up the Supreme Court’s challenge to ‘play historian.’

What a constitutional contest is opened by the remarks of Judge Carlton Reeves of the United States District Court at Jackson, Mississippi. His Honor is complaining that the justices of the Supreme Court want the lower courts to “play historian.” This arises because of Justice Clarence Thomas’s remarks about the Second Amendment, and now Judge Reeves is talking about hiring a historian to fight — so to speak — fire with fire.

In New York State Rifle & Pistol Association v. Bruen, Justice Thomas signaled that only restrictions “consistent with this Nation’s historical tradition of firearm regulation” pass constitutional muster. The justice offered his own historical precis as ballast to the majority’s holding that the Empire State’s permitting regulations on concealed carry were unconstitutionally arduous. We look, the justice instructed, to “history and tradition.”

It fell to Judge Reeves to parse what this ruling issued from the constitutional mountaintop signified for the case he was adjudicating in the statutory valley. It was a case that concerned the ability of convicted felons to bear arms. He lamented that the Nine conscripted him to “play historian in the name of constitutional adjudication” and, in a seeming swipe, suggested that the “justices of the Supreme Court, as distinguished as they may be, are not trained historians.” source

Learn more about your gun rights:

Fifth Circuit Strikes Down Domestic-Violence Prohibitor in United States v. Rahimi

US, v. Jessie Bullock – Federal Judge Tosses Gun Possession Case Against Convicted Felon

New York State Rifle and Pistol Association v. Bruen

Can a Convicted Felon Own a Gun in CA?

The Truth News — Fri, 09 Jun 2023 07:28:55 +0000

Can a Convicted Felon Own a Gun in CA?

How Long Before a Convicted Felon Can Own a Gun in California?

Restoring gun rights in California is not easy, and often it is not even possible. Theoretically, if you are convicted of any felony, then you are subject to a lifetime ban.

Conviction of certain misdemeanors also results in a lifetime ban, while conviction of other misdemeanors results in a ban of only ten years.

Nevertheless, there are two loopholes that will allow you to recover your gun rights under certain very limited circumstances.

Loophole #1: Converting A “Wobbler” Offense To A Misdemeanor After The Fact

A “wobbler” offense is an offense that can be charged as either a misdemeanor or as a felony, depending on the circumstances.

The receipt of stolen property is an example of an offense that is considered a “wobbler” offense in California, depending on the value of the stolen property that you received.

One way to regain your gun rights in California is to convert a “wobbler” offense from a felony to a misdemeanor. Under certain circumstances it is possible to do this after you have already been convicted of a felony, so you will no longer be a convicted felon.

If you do this, the extent of your loss of gun rights will depend on the penalties for that particular misdemeanor. In other words, you might become eligible to own a gun again.

Loophole #2: Seek A Pardon From The Governor Of California

A pardon relieves you from any further penalty for a crime. If you are in prison, for example, you can walk free with a pardon. A pardon does not exonerate you from the crime.

It only relieves you of its consequences. Remember, the Governor of California can only pardon you for a state law offense, not for a federal offense. Likewise, only the governor is qualified to pardon you for a state law offense.

The governor enjoys nearly 100 percent discretion in the decision of whether to issue you a pardon. In most cases, you must have lived in California for at least seven years.

You must also have been free of involvement in any criminal activity for at least 10 years. The governor can deny your pardon request for almost any reason, or for no reason at all.

If you live in California: Petition the Superior Court for a pardon

If you live in California, you must undergo a two-step process:

Submit a petition to a California Superior Court for a California certificate of rehabilitation. This is not a pardon, but you can use it to qualify for a pardon.
If the Superior Court grants your petition, your California certificate of rehabilitation will become a petition for a pardon from the governor.

If you live outside of California: Apply directly to the Governor for a pardon

If you live outside of California, you cannot seek a pardon by petitioning a Superior Court for a California certificate of rehabilitation. Instead, you must apply directly to the Governor’s Office.

When You Cannot Recover Your Gun Rights

No legal loophole can restore your right to own a gun in California if you committed a felony involving:

Domestic violence, or
The use of a “dangerous weapon” (not necessarily a gun).

Check the laws of other states to see whether you can possess a gun outside of California. source

How Can A Convicted Felon Receive Firearm Rights?

The Second Amendment of the U.S. Constitution guarantees the right of all U.S. citizens to bear arms except in certain circumstances. One of these circumstances is if you are a convicted felon. Felons often find it difficult to have applications for firearm rights accepted, especially if they were convicted of violent crimes. For felons with a criminal record, it is harder but not impossible to legally own a gun. They just need to go through the necessary bureaucratic and legislative processes. So, how can a convicted felon receive firearm rights?

State vs. Federal Gun Restoration Laws

Under federal law, convicted felons lose their firearm rights, which is a decision that stemmed from a law developed in 1934. At that time, the federal government mandated that no person convicted of a felony involving violence would be able to have his or her firearm rights restores. Since the Gun Control Act was passed in 1968, anyone convicted of a felony – whether or not it involved violence – loses his or her firearm rights.

However, state laws may differ from those at the federal level. Varying state by state, gun restoration laws offer convicted felons opportunities to regain their firearm rights, and in some places, it is easier than others.

For instance, in Indiana, a person can petition to the courts to have their firearm rights restored, and in Kentucky, a convicted felon can apply for expungement – but not until five years after his or her sentence has been completed.

All in all, if you are looking to have your firearms rights restored, be sure to look into your state’s laws to ensure you are proceeding legally, with the correct information.

Step One: Figure Out Who Charged You With The Crime

Depending on whether the felony was a state or federal offense, a convicted felon’s process of getting the rights to bear arms will vary. This is known as adjudication and will involve contacting the Department of Justice in the state or one of several federal agencies.

Ways to getting Firearm Rights Restored

Many states and agencies have an existing form for felons to apply to have their civil rights restored. Generally speaking, these forms will only be accepted if the person can prove that their life has changed and that they are reformed. The person may be required to show proof such as a steady job and ties to the community, and they may need to wait a significant amount of time before being allowed to apply. The process involves finding this form and filing it with the appropriate authorities.

1. Felony Expungement

As previously stated, some states will allow convicted felons a second chance. Apply for felony expungement means the felon’s criminal records will be erased (as though the crime never happened), thus restoring his or her rights to purchase and carry a firearm (if applicable in his or her state of residence).

Check your state’s website to determine what makes someone eligible for expungement, and discuss further with an attorney that is able to analyze your particular situation. If you are eligible for expungement in your state, you must first file a petition with the courthouse.

After the proceedings, your record may be expunged, in which case you may be able to restore your firearm rights.

2. Petition for Restoration of Firearm Rights

Lastly, in some states, you may be eligible for a Petition of Restoration of Firearm Rights. Typically, the state will only consider you if you were charged with a crime unrelated to violence.

3. Governor’s Pardon

Several states like California, Louisiana, New Jersey, New York, and Oklahoma will restore a convicted felon’s firearm rights if he or she receives a governor’s pardon. To receive a Governor’s Pardon, you must apply through your state of residence – but only if you are eligible.

Here’s how to apply for a Governor’s Pardon.

4. Federal Pardon

The only other federal recourse is to petition for a presidential pardon. This process requires the assistance of a lawyer and can restore a variety of civil rights including the right to hold public office in addition to the right to bear arms.

Potential Pitfalls

It is easier to get civil rights restored if a felony conviction was given by a state court rather than a federal court. However, a problem arises when state laws conflict with federal laws, which are often stricter and may take precedence even if the conviction was ruled by state authorities.

If this is the case or if a felon had his conviction given by a federal agency, they will have to file with the:

U.S. Attorney General’s office
The Bureau of Alcohol, Tobacco, and Firearms

The agency will then review an application to restore the rights to bear arms. The problem then becomes that this agency is notorious for simply failing to review the documents, leaving former convicts in a sort of legal limbo while waiting for their firearm rights to be restored. This is the case even if felons were not guilty of violent crime convictions. source

How to Restore Your Gun Rights After a Criminal Conviction

California’s firearms laws are strict and federal laws are even stricter. If you are convicted of a felony or certain misdemeanors, you will lose your right to possess a gun in California.

You also may not own or possess a gun if you are:

addicted to narcotics drugs,
mentally ill,
involuntarily committed on a psychiatric hold twice in one year,
under the age of 18,
prohibited from possessing a gun by court order or as a condition of probation, or
prohibited by federal law from possessing a gun.

Conviction of a felony results in a lifetime ban on gun possession.

Conviction on most misdemeanor charges does not prohibit you from having a gun. But a few weapons-related misdemeanor convictions do subject you to a lifetime ban. Two convictions for brandishing a firearm… or just one conviction for assault with a firearm conviction…will cost you your gun rights for life.

In addition, approximately 40 misdemeanors carry a 10-year firearms ban. These include:

assault,
battery,
brandishing a weapon, and
making criminal threats.

Restoring your Second Amendment right to bear arms can be difficult and complicated. We urge you to read the full article, below, for complete information.

In general, however, it may be possible for your gun rights to be restored following a conviction as long as it was not for:

a felony involving a dangerous weapon, or
a crime of domestic violence.

There are two basic ways to have gun rights restored after an eligible conviction:

by having a “wobbler” felony reduced to a misdemeanor, or
by receiving a pardon from the California governor.

A “wobbler” is an offense that can be charged as either a felony or a misdemeanor. If you were convicted of a wobbler as a felony, you can petition the court to have it reduced to a misdemeanor. Once your felony is reduced you will be subject only to the restriction — if any — that the crime carries as a misdemeanor.

The second way to have your Second Amendment right to bear arms restored after a California conviction is through a pardon by the governor.

You must apply directly to the governor for a pardon if:

you live outside California, or
you were convicted of certain misdemeanor sex offenses.

Otherwise, obtaining a pardon is a two-step process:

Petition the superior court for a California Certificate of Rehabilitation.
If the petition is granted, it automatically becomes a petition for a pardon from the California Governor.

California’s governor has complete discretion to grant or deny pardon requests. Generally, applicants must have resided for a minimum of seven years in California. They must also have had no criminal involvement for at least 10 years.

We are a criminal defense firm with offices throughout California and Nevada. As former cops and prosecutors, we have first-hand knowledge of California’s gun laws. And we know what it takes to restore your right to bear arms.

1. California Firearms Restrictions

Before we discuss how to restore your gun rights, let’s review what can make you lose them in the first place.

California law does not require most adults to obtain a license to purchase, receive, own, or possess a gun.

Five categories of individuals, however, are banned from exercising gun rights in California:

felons (that is, anyone convicted of any felony offense in any jurisdiction);
persons convicted of certain misdemeanor offenses (see below);
narcotics addicts;
persons who suffer from mental illness; and
minors (anyone under 18).

Let’s take a closer look at each of these categories.

1.1. Lifetime ban — felonies and weapons-related misdemeanors

Penal Code 29800 PC is California’s “felon with a firearm” law. It imposes a lifetime firearms ban on anyone who has been convicted of a felony offense in any state or country.

This lifetime ban also applies to people with certain misdemeanor convictions:

people with two or more misdemeanor convictions for Penal Code 417(a)(2) PC, California’s “brandishing a firearm” law; and
people with just one misdemeanor conviction for:
- California Penal Code 245(a)(2), assault with a firearm;
- California Penal Code 245(a)(3), assault with a machine gun or assault weapon;
- California Penal Code 245(d) assault with a firearm against a peace officer;
- California Penal Code 246 PC, shooting at an inhabited dwelling or car; or
- California Penal Code 417(c), “brandishing a firearm” at a peace officer.

The lifetime ban also applies to minors who were convicted of any of the above offenses when tried as adults.

1.2. 10-year ban – specified misdemeanors

Generally speaking, a misdemeanor conviction does not trigger a gun restriction. However, under California Penal Code 29805 PC, there are about 40 specific misdemeanor convictions that carry a ten-year firearms ban.

They are:

1.2.1. Assault

Penal Code 240 and 241 PC – assault.
Penal Code 244.5 — assault with a stun gun or less-lethal weapon (as defined in Penal Code 16780).
Penal Code 245 — assault with a deadly weapon or firearm.
Penal Code 245.5 — assault with a deadly weapon or firearm against a school employee.

1.2.2. Battery

Penal Code 242 PC — battery.
Penal Code 243 – spousal battery.
Penal Code 243.4 PC — sexual battery.
Penal Code 273.5 PC – infliction of corporal injury on a spouse / mate.

1.2.3. Domestic violence

Penal Code 646.9 PC — stalking.
Penal Code 273.6 — violation of a protective order.

1.2.4. Peace officers

Penal Code 148(d) — taking a firearm from a peace officer.
Penal Code 830.95 — wearing a peace officer uniform while engaged in picketing.

1.2.5. Threats and intimidation

Penal Code 422 PC — criminal threats.
Penal Code 71 and Penal Code 76 – threats to public officials and/or their families.
Penal Code 136.1 — intimidation of witnesses and victims.
Penal Code 136.5 — possession of a deadly weapon with intent to use it to intimidate witnesses.
Penal Code 140 — threats of force against witnesses, victims or informants.

1.2.6. Weapons / ammunition offenses

1.2.6.1. Brandishing a weapon:

Penal Code 417 — brandishing a deadly weapon.
Penal Code 417.6 — brandishing a deadly weapon with the intent to inflict serious bodily injury.

1.2.6.2. Discharging a firearm

Penal Code 246.3 — negligent discharge of a firearm or BB gun.
Penal Code 247(a) — willful discharge of a firearm at an unoccupied aircraft.
Penal Code 247(b) — discharge of a firearm at an unoccupied motor vehicle, building or dwelling house.
Penal Code 26100(b) and (d) — discharging or permitting another to discharge a firearm from a motor vehicle.

1.2.6.3. Possession of weapons

Penal Code 171b — possession of weapons in public buildings or meetings.
Penal Code 171c(a)(1) — possession of a loaded firearm within the state capitol or legislative offices.
Penal Code 171d — possession of a loaded firearm within the governor’s mansion or the residence of state officials.
Penal Code 626.9 — possession of a firearm in a school zone.
Penal Code 17500 — possession of a deadly weapon with the intent to commit assault.
Penal Code 17510 — possession of a deadly weapon or firearm while picketing.
Penal Code 25300 — criminal possession of a firearm (possession of a firearm in a public place while masked).
Penal Code 25800 — armed criminal action (possession of a firearm with the intent to commit a felony).
Penal Code 30315 — possession of metal-piercing or armor-piercing ammunition.
Penal Code 32625 — possession of a machine gun.
Welfare and Institutions Code 8100 — possession of a firearm or deadly weapon by certain persons with mental disorders.
Welfare and Institutions Code 8103 — possession of a firearm or deadly weapon by mentally disordered sex offenders or persons adjudged to be a danger to others.

1.2.6.4. Sale or transfer of weapons

Penal Code 186.28 — sale or transfer of a firearm to a gang member for use in a felony.
Former Penal Code 12100(a) — sale of concealable firearms to juveniles.
Penal Code 27510 — sale or transfer of a firearm to a person under 18.
Welfare and Institutions Code 8101 — sale or transfer of a firearm or deadly weapon to certain persons with mental disorders.
Welfare and Institutions Code 871.5 and 1001.5 — bringing or sending a firearm into a juvenile hall or camp or a Youth Authority institution.
Penal Code 27590(c) — illegal sale or transfer of a firearm.

You may petition the court to have gun rights restored before the 10-year period is up if:

you were convicted of one of the above misdemeanors prior to its being added to Penal Code 29805 PC, and
you do not have a previous conviction under Section 29805, no matter when the prior conviction occurred.

You may petition for this relief on a one-time basis only. The court may grant it if it finds that you are likely to use a firearm in a “safe and lawful manner.”

1.3. Narcotics addicts

People who are addicted to a narcotic drug are prohibited from possessing firearms.

Federal law imposes a ban on this category of persons as well (see below).

If you are “addicted” to a narcotic drug, it means that you are both emotionally and physically dependent on the drug and have an increased tolerance to its effects.

1.4. People suffering from mental illness

People with a mental illness are banned from possessing firearms as follows:

during any period in which they are receiving voluntary in-patient treatment for being a danger to themselves or others;
while under a conservatorship because gravely disabled as a result of a mental disorder or impairment by chronic alcoholism;
for 6 months following a serious threat of physical violence against a reasonably identifiable victim or victims;
for a period of five years following release from an involuntary commitment to a mental hospital for being a danger to oneself or others;
for life after two involuntary commitments in a year; or
for an indefinite period of time if they fall into one of the categories set forth below.

People banned for an indefinite period may not have a gun until they receive a certificate stating that they are no longer a threat to society. After receiving their certificate, such people may petition to have their gun rights restored.

The people subject to this requirement are:

those adjudicated by a court of any state to be a danger to others because of a mental disorder or mental illness,
those adjudicated by a court of any state to be a mentally disordered sex offender;
people declared incompetent to stand trial; and
those who have pleaded not guilty to a non-violent crime by reason of insanity.

People who have pleaded not guilty to certain violent crimes by reason of insanity are subject to a lifetime ban on firearm possession.

Such crimes include (but are not limited to):

murder,
mayhem,
rape,
residential burglary,
arson of an inhabited dwelling, and
other felonies involving death or great bodily injury.

Note that federal law imposes its own restrictions on this class of individuals as well.

Thus certain people subject only to a five-year restriction in California may face a lifetime ban under federal law.

Please see Section 2, below, for a more complete discussion of federal law. Also, see California Assembly Bill 1968 (2018).

1.5. Minors

Minors are prohibited from owning, possessing, purchasing, or receiving guns. Unless subject to another firearm restriction, people may first possess guns as follows:

rifles and shotguns: once they reach the age of 18, and
handguns: once they reach the age of 21.

Minors who have been convicted of certain offenses and are adjudged a ward of the juvenile court as a result of their conviction may not possess a firearm until the age of 30.

Such offenses include (but are not limited to):

designated California drug offenses,
specific crimes of violence, and
certain firearms offenses (including California Penal Code 25400 PC — carrying a concealed weapon and California Penal Code 25850 PC — carrying a loaded firearm.)

1.6. Those under court-imposed restrictions

California courts have the right to impose additional firearms restrictions under two scenarios.

The first is when a judge revokes your gun rights as a specific condition of California probation. The second is when you are the subject of a court-issued protective order.

While you are subject to such restrictions, you are prohibited from owning, possessing, purchasing, or receiving a firearm.

1.7. Personal firearms eligibility check

It is possible to check your firearms eligibility status with the California Department of Justice.

You do not need to disclose your possession of any firearm in order to do so.

The cost for such an eligibility check is $20. The Personal Firearms Eligibility Check Application form is available on the DOJ’s website.

2. Federal Gun Restrictions

2.1. People prohibited from owning a gun under federal law

Federal law imposes its own set of firearms restrictions on certain classes of people.

You are prohibited under federal law from possessing a gun if:

you are under indictment for, or have been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

you are a fugitive from justice;
you are an unlawful user of or addicted to any controlled substance;
you have been adjudicated as a mental defective or have been committed to any mental institution;
you are unlawfully in the United States;
you have been discharged from the Armed Forces under dishonorable conditions;
you have renounced your U.S. citizenship;
you are subject to a protective order for stalking or representing a threat to an intimate partner or child; or
you have been convicted in any court of a misdemeanor crime of domestic violence.

2.2. The conflict between federal and California law

Many of these federal firearms restrictions are identical to those imposed by California law. However, when federal and California gun laws conflict, the federal laws prevail. In such a case, California gun laws may as well not even exist.

2.2.1. Misdemeanor crimes of domestic violence

One area in which differences arise is after a conviction for a misdemeanor crime of domestic violence (“MCDV”).

State law restores California gun rights to an individual convicted of MCDV once a 10-year restriction expires. However, federal law imposes a lifetime firearms ban after such a conviction.

At present, the only way to remove a federal firearms ban is by Presidential pardon. However, presidential pardons are rarely granted.

As a practical matter, therefore, if you are convicted of MCDV in any court, you will never be able to possess a gun legally in California. The only way to avoid the federal lifetime ban is to avoid a domestic violence conviction in the first place.

For a more complete discussion, visit our page on domestic violence convictions & California gun rights.

2.2.2. Mental illness

California and federal law also conflict in their treatment of mental illness.

California law imposes a five-year firearms ban following involuntary commitment for being a danger to oneself or others.

But federal law provides a lifetime ban on gun ownership by anyone adjudicated a mental defective or committed to a mental institution. As a result, once you have been admitted to a mental institution, it is not possible for you to possess a gun legally in California or anywhere else.

If you have been convicted of a California felony involving a dangerous weapon, there is no way to restore your firearms rights.

3. How to restore your California gun rights

If you have been convicted of a California felony involving a dangerous weapon, there is no way to restore your firearms rights. California law defines “dangerous weapon” as any weapon, instrument, or object capable of being used to inflict great bodily injury or death.

And, as noted, federal law prevents California from restoring your gun rights under certain circumstances, including (without limitation):

you have been convicted of a crime of domestic violence,
you have been adjudicated a mental defective or confined to an institution, or you are an abuser or unlawful user of a controlled substance.

Otherwise, depending on the type of conviction, there are two ways to restore your California gun rights:

by reducing a felony “wobbler” conviction to a misdemeanor, or
by obtaining a California gubernatorial pardon.

3.1. Reducing a felony “wobbler” to a misdemeanor

A “wobbler” offense is a crime that can be charged as either a felony or a misdemeanor, in the prosecutor’s discretion.

If you were convicted of a qualifying felony wobbler, you can regain your gun rights by reducing your California felony to a misdemeanor.

For the most part, qualifying wobblers are those for which you were sentenced to county jail and/or probation.

The following are not qualifying offenses:

“straight” felonies… that is, crimes that may only be charged as a felony;
felonies involving the use of a dangerous weapon;
felonies for which you were sentenced to California prison;
misdemeanors that subject you to a 10-year gun restriction;
domestic violence convictions; and
drug offenses that classify you as a “narcotics addict.”

Eligible felony wobbler charges can be reduced at any time. Thus you can file a petition if:

you were convicted of a wobbler felony and are still on probation (although you will first need to file a petition to have your probation terminated);
you were convicted of a felony and are done with probation and/or county jail time; or
you were convicted of a felony and were never given any probation at all but were sentenced to county jail.

If the court reduces your felony to a misdemeanor, your right to possess a firearm will generally be restored. However, if the misdemeanor is one that subjects you to a ten-year gun restriction, you will need to wait out the ten years before you may possess a gun.

3.2. California Certificate of Rehabilitation / Governor’s pardon

The second way to restore your California gun rights is by a pardon from California’s governor.

Not all pardons restore gun rights. The pardon must specifically be “full and unconditional,” or provide you are entitled to exercise the right to possess a gun.

A pardon is not the same as an expungement. A pardon will not seal or erase your criminal record or the record of your conviction. It can, however, restore to you certain rights, including (without limitation) the right to possess a gun.

3.2.1. Who is eligible to apply for a California gubernatorial pardon?

If you were convicted of a California felony that is ineligible for reduction to a misdemeanor, you may be able to receive a gubernatorial pardon. People convicted of misdemeanor sex crimes are also eligible.

The main requirement for a gubernatorial pardon is exemplary behavior for a long period of time. Generally, an application for a pardon will not be considered unless you have been discharged from probation or parole for at least 10 years without further criminal activity during that period.

Only California crimes may be pardoned by California’s governor.

If you were convicted in another state, you must apply for a pardon in that state. If convicted of a felony under federal law, you must apply for a Presidential pardon.

3.2.2. California Certificate of Rehabilitation

A Certificate of Rehabilitation (“COR”) is a court order that declares you rehabilitated of your crime. If you meet the following criteria, you must apply for a COR before seeking a pardon:

you were convicted of a California felony, and
you currently reside in California.

A Certificate of Rehabilitation does not, by itself, restore California gun rights. You must still receive a gubernatorial pardon. If you are granted a COR, it automatically becomes an application for a California governor’s pardon. You do not need to do anything more.

Application for a Certificate of Rehabilitation is made to the superior court in the county where you live. To apply, you must have resided in California for at least five (5) years after the earliest of:

discharge from custody due to completion of your sentence, or
your release on parole or probation…

plus…

an additional period of two (2) to five (5) years, depending on the underlying offense.

You are not eligible for a California Certificate of Rehabilitation if:

you are serving mandatory life parole,
you were committed under a death sentence, or
you committed certain sex acts with a child.

3.2.3. Application for a direct pardon

If you are ineligible for a Certificate of Rehabilitation, you may apply for a direct pardon.

This procedure is used primarily by people who:

were convicted of a crime in California and now reside outside the state, or
people who have been convicted of specified misdemeanor sex offenses.

An application for a direct pardon will not normally be considered unless you have been discharged from probation or parole for at least 10 years. You must also not have had any further criminal activity during that period.

Upon demonstration of truly exceptional circumstances… such as actual innocence… the 10-year rule may be waived.

Applications for a direct pardon are available at the California Governor’s website. You may also request an application by writing to:

Governor’s Office

State Capitol

Attention: Legal Affairs

Sacramento, CA 95814

After you have completed the application, you must send the Notice of Intent to Apply for Executive Clemency to the district attorney of each county in which you were convicted. This is a legally-required notice.

The District Attorney will return the notice to the Governor’s Office and send you an acknowledgment. Once you receive it, you can return the completed application to the Governor’s Office at the address listed above.

3.2.4. Governor’s discretion re: the issuance of pardons

The governor has complete discretion in deciding whether to grant a pardon. This is true for both direct pardons and pardons after issuance of a Certificate of Rehabilitation.

An exception is if you have two (2) or more felony convictions. In such a case, the Governor of California may not grant you a pardon… unless… a majority of justices of the California Supreme Court recommend one. The Governor has no obligation, however, to seek such a recommendation from the court.

As noted, not all pardons restore gun rights. The pardon must specifically provide you are entitled to exercise the right to possess a gun.

3.3. Expungement of a California criminal record

Expungement of a criminal record in California does not remove the ban on owning or possessing firearms.

Expungement refers to the process of:

withdrawing a plea of guilty or no contest, and
having the case dismissed, after successful completion of probation … or, if applicable… jail and parole.

The main benefit of expungement is that you do not have to disclose an expunged conviction on most job applications. But, as noted, expungement does not restore gun rights. If you wish to possess a gun following expungement of a criminal record, you must still follow the steps set forth above.

In addition, not all offenses can be expunged. If you were sent to California state prison, or you are guilty of a serious sex offense, you do not qualify for expungement. source

Legal References:

Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
California Penal Code 25605 (b) — No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Chapter 2 (commencing with Section29800) or Chapter 3 (commencing with Penal Code Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and InstitutionsCode, to purchase, own, possess, keep, or carry, either openly or concealed, a handgun within the citizen’s or legal resident’s place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.
But see California Penal Code 29800(c) — Subdivision (a) shall not apply to a person who has been convicted of a felony under the laws of the United States unless either of the following criteria is satisfied:
(1) Conviction of a like offense under California law can only result in imposition of felony punishment.
(2) The defendant was sentenced to a federal correctional facility for more than 30 days, or received a fine of more than one thousand dollars ($1,000), or received both punishments.
California Penal Code 29800 PC(a) –
(1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Penal Code 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
(2) Any person who has two or more convictions for violating paragraph (2) of subdivision (a) of Section 417 and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
California Penal Code 29800(b) — Notwithstanding subdivision (a), any person who has been convicted of a felony or of an offense enumerated in Section 23515, when that conviction results from certification by the juvenile court for prosecution as an adult in an adult court under Section 707 of the Welfare and Institutions Code, and who owns or has in possession or under custody or control any firearm is guilty of a felony.
California Penal Code 29805 PC. Except as provided in Section 29855 or subdivision (a) ofSection 29800, any person who has been convicted of a misdemeanorviolation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) ofSection 148, Section 171b, paragraph (1) of subdivision (a) ofSection 171c, 171d, 186.28, 240, 241, 242, 243, 243.4, 244.5, 245,245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422, 626.9, 646.9, or830.95, subdivision (a) of former Section 12100, as that section readat any time from when it was enacted by Section 3 of Chapter 1386 ofthe Statutes of 1988 to when it was repealed by Section 18 ofChapter 23 of the Statutes of 1994, Section 17500, 17510, 25300,25800, 30315, or 32625, subdivision (b) or (d) of Section 26100, orSection 27510, or Section 8100, 8101, or 8103 of the Welfare andInstitutions Code, any firearm-related offense pursuant to Sections871.5 and 1001.5 of the Welfare and Institutions Code, or of theconduct punished in subdivision (c) of Section 27590, and who, within10 years of the conviction, owns, purchases, receives, or has inpossession or under custody or control, any firearm is guilty of apublic offense, which shall be punishable by imprisonment in a countyjail not exceeding one year or in the state prison, by a fine notexceeding one thousand dollars ($1,000), or by both that imprisonmentand fine. The court, on forms prescribed by the Department ofJustice, shall notify the department of persons subject to this section. However, the prohibition in this section may be reduced, eliminated, or conditioned as provided in Section 29855 or 29860.
See same.
California Penal Code 29860 PC.
Same.
Same.
California Penal Code 29800(a)(1), endnote 4, above.
18 United States Code 922(d) — It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person…(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).
People v. O’Neil (1965) 62 Cal.2d 748, 750. (“…we must reverse the judgment and remand the cause for a determination of whether the defendant is ‘addicted’ to the use of narcotics as we have defined that term in People v. Victor (1965) 62 A.C. 290, 312-315, 42 Cal.Rptr. 199, 398 P.2d 391; i. e., whether he exhibits the three characteristics of the addiction process: (1) ‘emotional dependence’ on the drug, (2) an increased ‘tolerance’ to its effects, and (3) ‘physical dependence’ manifested by withdrawal symptoms upon sudden termination of drug intake.”)
California Welfare and Institutions Code 8100(a).
California Welfare and Institutions Code 8103(e)(1).
California Welfare and Institutions Code 8100(b)(1).
California Welfare and Institutions Code 8103(f)(1).
See also California Welfare and Institutions Code 5150 regarding involuntary commitment.
California Welfare and Institutions Code 8103(a)(1).
Same.
California Welfare and Institutions Code 8103(d)(1).
California Welfare and Institutions Code 8103(c)(1).
California Welfare and Institutions Code 8103(b)(1).
The full list of crimes under California Welfare and Institutions Code 8103(b)(1) is: murder, mayhem, kidnapping (if the victim suffers intentionally inflicted great bodily injury), carjacking or robbery (if the victim suffers great bodily injury), arson of an inhabited dwelling or trailer coach, rape, first degree (residential) burglary, assault with intent to commit murder, assault with intent to commit mayhem or sex crimes (if the victim suffers great bodily injury), reckless or willful possession or explosion of an explosive device, and any felony involving death or great bodily injury, or an act which poses a serious threat of bodily harm to another person.
18 United States Code 922 (d) — It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person…(4) has been adjudicated as a mental defective or has been committed to any mental institution.
Any person taken into custody as a danger to self or others, assessed, and admitted to a mental health facility under Welfare and Institutions Code sections 5150, 5151, 5152; or certified under Welfare and Institutions Code sections 5250, 5260, 5270.17; or certified under Welfare and Institutions Code sections 5250, 5260, or 5270.17, may be subject to a lifetime prohibition pursuant to federal law. See California Department of Justice, Bureau of Firearms, Firearms Prohibiting Categories.
California Attorney General’s Firearms Website, Frequently Asked Questions — Sales and Transfers of Firearms. “Although there are exceptions, generally all firearms purchasers must be at least 18 years of age to purchase a long gun (rifle or shotgun) and 21 years of age to purchase a handgun (pistol or revolver).”
California Penal Code 29820 PC.
California Penal Code 29815 PC.
California Penal Code 29825 PC. See also California Penal Code 1203.1 (j) — The court may impose…other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer…See also People v. Lent (1975) 15 Cal.3d 481, 486. (“The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et seq.) A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality…’” [citation omitted.])
California Penal Code 30105 PC.
See same.
Note that the federal gun ban applies to anyone who has been convicted of a crime that carries more than a year in prison whether or not that person actually served more than a year in prison. See California Penal Code 29800(c)(2).
18 United States Code 922(d).
See Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Firearms – Frequently Asked Questions; Office of Legislative Research, Research Report 2008-R-0617, Restoration of Right to Carry Firearms Under Federal Law, November 10, 2008.
See endnote 17, above.
18 USC 922(d).
California Penal Code 4854 PC. In the granting of a pardon to a person, the Governor may provide that the person is entitled to exercise the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 17800 and 23510 and Chapter 2 (commencing withSection 29800) of Division 9 of Title 4 of Part 6 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.
See e.g., Judicial Council of California criminal Jury Instructions (2012) CALCRIM 511 and 3145:
[A dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.]
[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
18 USC 922(d).
See People v. Gilbreth (2007) 156 Cal.App.4th 53. (” ‘[O]nce a court has reduced a wobbler to a misdemeanor pursuant to . . . section 17, the crime is thereafter regarded as a misdemeanor ‘for all purposes.’ This unambiguous language means what it says, and unless the Legislature states otherwise, a person such as [defendant] stands convicted of a misdemeanor, not a felony, for all purposes upon the court so declaring.’ (Gebremicael v. California Com. on Teacher Credentialing (2004) [156 Cal.App.4th 58] 118 Cal.App.4th 1477, 1483 (Gebremicael).) Accordingly, defendant’s possession of a firearm by a convicted felon must be reversed.”).
See State of California, Office of the Governor, How to Apply for a Pardon.
California Penal Code 1203.3.
California Penal Code 1203.4.
California Penal Code 1203.4a.
California Penal Code 4854, endnote 37, above.
See How to Apply for a Pardon, endnote 41, above.
The Supremacy Clause of the United States constitution, Article VI, provides:This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
See the United States Department of Justice, Office of the Pardon Attorney, Pardon Information and Instructions.
See California Penal Code 4852.01-4852.21.
See also, How to Apply for a Pardon, endnote 41, above.
People discharged or released on parole prior to May 13, 1943 and not incarcerated in a state penal institution since, have a three (3) year residency requirement. See California Penal Code 4852.01 PC (a).
California Penal Code 4852.03.
(a) The period of rehabilitation shall begin to run upon the discharge of the petitioner from custody due to his or her completion of the term to which he or she was sentenced or upon his or her release on parole or probation, whichever is sooner. For purposes of this chapter, the period of rehabilitation shall constitute five years’ residence in this state, plus a period of time determined by the following rules:
(1) To the five years there shall be added four years in the case of any person convicted of violating Section 187, 209, 219, 4500, or18755 of this code, or subdivision (a) of Section 1672 of the military and Veterans Code, or of committing any other offense which carries a life sentence.
(2) To the five years there shall be added five years in the case of any person convicted of committing any offense or attempted offense for which sex offender registration is required pursuant to section 290, except for convictions for violations of subdivision(b), (c), or (d) of Section 311.2, or of Section 311.3, 311.10, or314. For those convictions, two years shall be added to the five years imposed by this section.
(3) To the five years there shall be added two years in the case of any person convicted of committing any offense that is not listed in paragraph (1) or paragraph (2) and that does not carry a life sentence.
(4) The trial court hearing the application for the certificate of rehabilitation may, if the defendant was ordered to serve consecutive sentences, order that his or her statutory period of rehabilitation be extended for an additional period of time which when combined with the time already served will not exceed the period prescribed by statute for the sum of the maximum penalties for all the crimes.
(5) Any person who was discharged after completion of his or her term or was released on parole before May 13, 1943, is not subject to the periods of rehabilitation set forth in these rules.
(b) Unless and until the period of rehabilitation, as stipulated in this section, has passed, the petitioner shall be ineligible to file his or her petition for a certificate of rehabilitation with the court. Any certificate of rehabilitation that is issued and under which the petitioner has not fulfilled the requirements of this chapter shall be void.
(c) A change of residence within this state does not interrupt the period of rehabilitation prescribed by this section.
California Penal Code 4852.01(d) — This chapter shall not apply to persons serving a mandatory life parole, persons committed under death sentences, persons convicted of a violation of subdivision (c) of Section 286, Section288, subdivision (c) of Section 287, Section 288.5, or subdivision(j) of Section 289, or persons in the military service.
California Penal Code 4852.01(e) Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.
See also How to Apply for a Pardon, endnote 41, above.
See California Penal Code 4852.01(d), endnote 52, above.
See also California Penal Code 290, the “Sex Offender Registration Act,” which sets forth the sex crimes subject to PC 4852.01(d).
Same.
Same.
See also California Penal Code 4852.01(e).
See, How to Apply for a Pardon, endnote 41, above.
See same.
Penal Code 4852.16 — The certified copy of a certificate of rehabilitation transmitted to the Governor shall constitute an application for a full pardon upon receipt of which the Governor may, without any further investigation, issue a pardon to the person named therein, except that, pursuant to Section 8 of Article V of the Constitution,the Governor shall not grant a pardon to any person twice convicted of felony, except upon the written recommendation of a majority of the judges of the Supreme Court.
People v. Ansell (2001) 25 Cal.4th 868, 891. (“However, regardless of which statutory application procedure is used, and notwithstanding any recommendation by the superior court, the pardon decision is discretionary, and rests ultimately with the Governor.”)
See also California Penal Code 4800 PC — Constitutional authority. (“The general authority to grant reprieves, pardons and commutations of sentence is conferred upon the Governor by Section 8 of Article V of the Constitution of the State of California.”)
See also California Constitution, Article V, Section 8(a) — Subject to application procedures provided by statute, the Governor, on conditions the Governor deems proper, may grant a reprieve, [California Governor’s] pardon, and commutation, after sentence, except in case of impeachment. The Governor shall report to the Legislature each reprieve, pardon, and commutation granted, stating the pertinent facts and the reasons for granting it. The Governor may not grant a pardon or commutation to a person twice convicted of a felony except on the recommendation of the Supreme Court, 4 judges concurring.
See also California Penal Code 4802 PC — In the case of a person twice convicted of felony, the application for pardon or commutation of sentence shall be made directly to the Governor, who shall transmit all papers and documents relied upon in support of and in opposition to the application to the Board of Prison Terms.
See also California Penal Code 4813 PC — In the case of applications of persons twice convicted of a felony, the Board of Prison Terms, after investigation, shall transmit its written recommendation upon such application to the Governor, together with all papers filed in connection with the application.
See also How to Apply for a Pardon, endnote 41, above.
California Penal Code 4854 PC, endnote 37, above.
California Penal Code 1203.4(a)(2) [felony convictions] and 1203.4a(c)(2) [misdemeanor convictions] both provide that: “Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of title 4 of Part 6 [California’s felon with a firearm law].”)
California Penal Code 1203.4(a).
Same.
Same.
For more information, please see our article on the Consequences of a Felony Conviction.
California Penal Code 1203.4(b) — subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of Vehicle Code 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287, Section 288.5, or subdivision (j) of Section 289, any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.
Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada’s firearm laws and restoring your Nevada gun rights. Their Nevada law offices are located in Reno and Las Vegas.

RESTORE YOUR CALIFORNIA GUN RIGHTS

Being convicted of a crime under California State law can impact your Second Amendment right to keep and bear arms under both California and federal law. In general, a conviction for any felony offense will result in a lifetime ban on your ability to possess or own a gun.

Certain misdemeanors, such as those involving domestic violence or even drug offenses, may also result in temporary or lifetime bans depending on the conduct which gave rise to the conviction. In addition, you can’t legally own or possess a gun if you are addicted to drugs, under 18 years old, suffering from mentally illness, prohibited by court order as a condition of probation.

The California and federal laws concerning gun restrictions is complex, and require fact-specific analysis on a case-by-case basis to determine if any apply. Below you will find an overview of some of the options to restore your gun rights after they have been restricted due to California criminal conviction.

In general, there are two basic options to have your gun rights restored after a conviction. They include having your felony case reduced to a misdemeanor and receiving a pardon from the Governor of California.

It should be noted that while a reduction of your offense to a misdemeanor may provide relief under California state law, federal law does not recognize the effects of either post-conviction reductions of the level of offense or expungements pursuant to Penal Code Section 1203.4.

As almost all gun purchases occur through federally-licensed firearms dealers, the practical reality is that a federal ban on ownership will prohibit any ownership, even if gun rights are restored under California state law. Based on our experience, only a pardon from the governor of California is effective at restoring your pardon under federal law as a pardon renders the conviction a legal nullity.

It should also be noted our law firm does not handle this type of work, but this is the law in the area of restoring gun rights. We refer people to the Los Angeles County Bar Association and the San Fernando Valley Bar for further information and any work on the matter.

CALIFORNIA STATE LAW

Under California law, a Penal Code 17(b) reduction of a felony charge to a misdemeanor is usually the quickest and easiest to obtain option for restoring your gun rights under California law. Note that, as discussed below, these reductions will likely not impact the federal gun restrictions which may apply to your case.

Penal Code 17(b) reductions result in the prior felony conviction being treated as a misdemeanor for all purposes, including the prohibition against felons possessing firearms. Once a court has reduced a wobbler to a misdemeanor pursuant to section 17, the crime is thereafter regarded as a misdemeanor for all purposes.

This unambiguous language means what it says, and unless the Legislature states otherwise, a defendant stands convicted of a misdemeanor, not a felony case.

FEDERAL LAW

Federal law often overlaps with California law with respect to those individuals whose gun rights are restricted or removed completely due to prior convictions. The most common restriction which gives rise to federal prosecutions is felon in possession.

Federal law prohibits the possession or ownership of a firearm by felons, which it defines as anyone convicted in any court of an offense punishable by more than one year. Notice the two possibly counterintuitive points about this rule:

Your conviction may have come from any court. You do not need to be convicted of a federal felony to lose your gun rights under federal law; and
The crime need only be punishable by more than a year.

If you were granted probation or sentenced to only a few days in jail, but the statute under which you were convicted can possibly result in 366 days or more of confinement, you may lose your gun rights for life under federal law.

There is an exception to this rule for State crimes classified as misdemeanors which are punishable by less than two years in jail. Contact a Los Angeles criminal defense attorney from our office for more information.

Unfortunately, federal courts have held that Section 17(b) reductions, as discussed above, do not restore federal gun rights. In general, the courts will look to the original charge of conviction and, if it is even possible to be sentenced to greater than one year, the gun ban will apply.

This affects many California defendants who have been convicted of “wobblers.” In California, a wobbler is a crime which may be charged as either a misdemeanor or a felony. Section 17(b) is often used after the fact to reduce a felony conviction to the misdemeanor version of the same crime. While these reductions still provide substantial benefits to the defendant under California law, restoration of federal gun rights is not one of them.

The federal firearm restriction does contain an exception for convictions which have been expunged, but specifies that the exception does not apply if the State law expungement procedure does not restore gun rights.

Once again, California residents are unlucky as Penal Code 1203.4, the expungement provision, explicitly states that it does not restore gun rights to those whose cases are dismissed pursuant to its provisions. Therefore, the federal exception for expunged convictions does not apply.

PARDON FROM CALIFORNIA GOVERNOR

There is only one relatively certain way to restore your federal gun rights: obtain a pardon. Pardons can be obtained from either the Governor of California or the President of the United States. In both cases, discretion over whether to grant a pardon rests entirely with the chief executive.

Who is eligible for a California gubernatorial pardon? Defendants who have been convicted of a California felony that are ineligible for reduction to a misdemeanor may be able to receive a gubernatorial pardon. Individuals convicted of misdemeanor sex crimes are also eligible.

Typically, the main requirement for a California gubernatorial pardon is exemplary behavior over a long period of time. An application for a pardon will not normally be considered unless you have been discharged from probation or parole for at least 10 years without any criminal activity during that time frame. If convicted of a felony under federal law, you must apply for a Presidential pardon. source

How Do I Restore My Firearm Rights Under Federal Law?

A felony conviction or a domestic violence conviction results in a state and federal firearm ban. To buy a gun, you have to pass a state and federal background check.

Therefore, to fully restore your gun rights, you have to restore your firearm rights under both state and federal law.

Do I lose my federal gun rights if I was convicted of a felony in Washington state court?

Yes.

Under the federal Gun Control Act of 1968, you cannot possess a firearm under federal law if you have been convicted of a crime “in any court” that carries a maximum punishment in any court that carries a maximum possible punishment of more than one (1) year in prison (18 U.S.C. 922(g)(1)).

In practice, this means that anyone convicted of a felony in state or federal court cannot own a possess a firearm under federal law.

Can I restore my federal gun rights in federal court?

No.

You can restore your state gun rights in state court, so you might naturally assume that you can restore your federal gun rights in federal court. But the answer is no. Why?

Under 18 U.S.C. 925(c), you can apply to the Bureau of Alcohol, Tobacco & Firearms to restore your gun rights. And if your application is denied, then you can seek judicial review in federal court.

But since 1992, Congress barred ATF from spending money to review and investigate a felon’s application to restore gun rights. Then, later, the U.S. Supreme Court ruled that “no action” does not equal a “denial.” In other words, no denial equals no right to go to federal court.

How do I restore my federal gun rights if I have a federal conviction?

Because you can’t go to federal court (see above), a presidential pardon is essentially the only way to restore your federal firearm rights if you’ve been convicted of a federal felony.

In practice, therefore, you have very little chance of ever fully restoring your gun rights with a federal felony.

Can I restore my federal gun rights in Washington state court?

Yes.

Under 18 U.S.C. 921(a)(20), a felony conviction does not prevent you from possessing a firearm if your civil rights have been restored or your conviction has ben vacated. To restore your civil rights, however, you don’t go to federal court. You go to state court.

A felony conviction three important rights: (1) the right to vote; (2) the right to serve on a jury; and (3) the right to hold public office.

In Washington, felons regain their civil rights after completing their sentence. This typically requires serving all jail time and paying all court costs. Once this happens, the court issues a Certificate of Discharge.

Example: You are convicted of felony drug trafficking in King County Superior Court. You complete your sentence, and the Court issues you a Certificate of Discharge. You cannot be federally prosecuted for possessing a firearm.

Keep in mind, however, that under Washington state law, a Certificate of Discharge does not restore your right to possess firearms. You have to file a separate motion to restore your state gun rights in superior court.

If I restore my gun rights in Washington, are my federal gun rights automatically restored?

Not necessarily.

In Washington, you can restore your gun rights without having to fully restore your other civil rights. In that case, you would be eligible to possess a gun under state law but could still be prosecuted under federal law.

Example: You are convicted of a felony in Vancouver. In 2019, you restore your state gun rights in Clark County Superior Court, although you still owe fines for the felony. Because you still owe money, you have not completed your felony sentence, which means you are not entitled to a Certificate of Discharge, which means you have not restored your civil rights in Washington, which means that you can still be prosecuted under federal law.

Additionally, if you have felony convictions in multiple states, you may have to restore your gun rights in different states to restore your federal gun rights.

Can I restore my firearm rights if I’ve been committed to a mental health facility?

No.

Under 18 U.S.C. 922(g)(4), you cannot own or possess a firearm if you have been “adjudicated as a mental defective” or has “been committed to a mental institution.”

Under Washington State law (RCW 9.41.047), you also lose your firearm rights

You can, however, restore your firearm rights under Washington State law (RCW 9.41.047) for the exact same reason.

So what does mean in practice? It means you can possess a firearm under state law (i.e. you cannot be prosecuted under state law for possessing a firearm). But because you are not eligible under federal law, you will not be able to pass a federal background check or be eligible for concealed pistol license (CPL).

The Ninth Circuit Court of Appeals made this clear in a recent case in March 2020.

In Mai v. United States, the Court compared the two applicable statutes–RCW 9.41.047 and 18 U.S.C. 1922(g)(4)–and ruled that the federal law is more strict than the state law.

For example: Washington law requires a a judge to find that a person “no longer presents a substantial danger” to others whereas federal law requires a judge to determination that a person “will not be likely to act in a manner dangerous to public safety.”

In other words, you could be a danger and be ineligible to possess firearms under federal law but not be a substantial danger and therefore be eligible to possess firearms under Washington law.

But that’s not all. There’s no way for a Washington resident to overcome the federal legal barrier under 1922(g)(4). Here’s why.

In some states, you can petition the local government to sign an order stating that you have overcome the federal legal barrier. But the federal government won’t recognize the state order unless the state order complies with federal law, and as the Ninth Circuit ruled, Washington’s state program doesn’t.

Is a courts martial conviction considered a federal conviction?

Yes.

In the military, courts-martial are trials that try members of the U.S. military for crimes under the Uniform Code of Military Justice (UCMJ). The UCMJ is federal law, enacted by Congress, and lists all criminal offenses under military law. Think of the UCMJ as the equivalent of all the RCWs in Washington State.

For this reason, a courts-martial conviction is effectively a federal conviction, not a state conviction. A conviction at a general court-martial, for example, is equivalent to a felony conviction in a U.S. federal district court. source

Anti-gun lobbyist David Chipman unsuited to run the ATF

The Truth News — Thu, 02 Feb 2023 08:32:52 +0000

Anti-gun lobbyist David Chipman unsuited to run the ATF

Imagine if a Republican president named an NRA lobbyist to the Top PO$T

Imagine the uproar if Donald Trump or George W. Bush had appointed an NRA lobbyist to head the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Liberals, Democrats, and the media would have gone nuts. Former New York Mayor Michel Bloomberg would have thrown a fit, and the nominee would have been excoriated in the media, pilloried during the confirmation process, and accused of every conceivable sin. He would never have been confirmed.

During the uproar, presidential advisors and friendly members of Congress would have advised the White House that appointing a committed activist had been a mistake. They would claim the Bureau entrusted with regulating the firearms industry and private gun-owners cannot be a sworn enemy or a loyal friend, but only an honest enforcer of existing laws and regulations regardless of the swirling and never-ending debates over whether those laws and regulations are too lax or too strict.

Knowing this, Second Amendment advocates would not have presumed to advise a friendly President to turn the ATF over to one of their own.

The anti-gun forces have no such qualms. No one apparently offered any such advice to President Joe Biden, who threw prudence and good judgment to the winds. Shortly after moving into the Oval Office, Mr. Biden appointed David Chipman, a paid lobbyist for a leading anti-Second Amendment group and a public advocate of firearms restrictions that would never pass Congress or stand up to Constitutional scrutiny. Mr. Chipman is the dream nominee of the gun control crowd allowing them to “go after” gun dealers, owners, and manufacturers, regardless of the letter or spirit of existing law or the prudent judgment one ordinarily seeks in regulatory appointees.

Mr. Chipman worked at ATF for some years before signing on as an anti-gun lobbyist but was even then more a gun control activist than an objective law enforcement official. After Mr. Biden named Mr. Chipman, one long-time colleague told reporters that in all his years at ATF, he knew of only two employees hostile to the very idea that Americans should have the right “to keep and bear arms” as guaranteed by the Second Amendment. One of them was Mr. Chipman. Other former colleagues describe him as “a bully,” and there have been suggestions that he disparaged Blacks; just the sort who should never be trusted with power.

Naming Mr. Chipman unleashed a torrent of opposition in the Senate and beyond. It took more than a month to get his nomination out of the Senate Judiciary Committee on a straight party-line vote. Senator Dick Durbin, the Democratic Whip, acknowledged recently that Democrats do not have the votes to confirm him. One uncomfortably undecided Democratic Senator, John Tester of Montana, suggested to reporters that the nomination might well be withdrawn. That may have been wishful thinking because if forced to vote Mr. Tester and other Democrats caught between their party’s leaders and voters back home will find themselves between the proverbial rock and hard place.

By David Keene – source

NRA challenges Illinois semiautomatic gun ban in court: ‘Blatant violation’ of Second Amendment rights

The Truth News — Wed, 11 Jan 2023 07:52:24 +0000

NRA challenges Illinois semiautomatic gun ban in court: ‘Blatant violation’ of Second Amendment rights

NRA says it will not ‘stand by while activist politicians pass unconstitutional laws’

By Emma Colton | Fox News

EXCLUSIVE — The National Rifle Association (NRA) filed a lawsuit Tuesday against the state of Illinois over its recent gun control law that the group says is “unconstitutional” and a “blatant violation” of constitutional rights.

“The NRA will not stand by while activist politicians pass unconstitutional laws that do nothing to promote public safety. We sued the state of Illinois because this new law is a blatant violation of Americans’ Second Amendment rights,” Jason Ouimet, executive director of the NRA Institute for Legislative Action (NRA-ILA), told Fox News Digital.

The Illinois Senate passed its version of the Protect Illinois Communities Act earlier this month, banning so-called assault weapons and high-capacity magazines from being manufactured or sold in the state.

Gov. J.B. Pritzker then signed the bill into law, prohibiting the manufacture and sale of semiautomatic rifles and pistols, .50-caliber guns, as well as attachments that can increase a gun’s fire rate. The law also requires residents to register their banned firearms.

“The Supreme Court has repeatedly ruled that the Second Amendment protects firearms that are in common use,” Ouimet continued in his comment to Fox News Digital. “AR-15s are the most popular rifle in America with millions being lawfully used every day. In fact, in 2020, more than three times as many AR-15s were sold as Ford F150s. Further, less than 2 percent of all gun crime is committed with these types of rifles. The governor signed this bill to advance a political agenda, not to protect his constituents.”

AR-15-style rifles are on display at Freddie Bear Sports in Tinley Park, Illinois, on Aug. 8, 2019. (Zbigniew Bzdak / Chicago Tribune / Tribune News Service via Getty Images)

Ouimet was citing a federal judge in California who ruled in 2021 that California’s ban on so-called assault weapons was unconstitutional and that F-150 pickup trucks were wildly popular in 2018, with 909,330 vehicles sold, but that “twice as many modern rifles were sold the same year.”

Ouimet added in a comment to Fox News Digital, which comes two weeks after the Illinois legislation was signed into law, that the “NRA has worked diligently to put together the strongest lawsuit possible.”

“While some rush to file litigation first out of the gate, we work to file the strongest legal challenge, one that will withstand the lengthy litigation process,” he said. “We filed Bruen (New York State Rifle & Pistol Association Inc. v. Bruen) in February 2018, and the Supreme Court did not issue its ruling on that case until June 2022. We know firsthand that filing the right suit is paramount to making sure that we have the best chance at the best outcome for our members and gun owners.”

The NRA and other Second Amendment advocates have argued that the ban targets commonly owned and purchased firearms and magazines, thus violating the Constitution.

More than six dozen sheriffs have also come out against the law, vowing to defy the bans they have also characterized as unconstitutional.

National Rifle Association Executive Vice President Wayne LaPierre speaks during the NRA-ILA meeting at the George R. Brown Convention Center, May 27, 2022, in Houston. (AP Photo / Michael Wyke)

“Part of my duties that I accepted upon being sworn into office was to protect the rights provided to all of us, in the Constitution,” Edwards County Sheriff Darby Boewe said in a recent Facebook post.

“One of those rights enumerated is the right of the people to KEEP and BEAR ARMS provided under the 2nd Amendment. The right to keep and bear arms for defense of life, liberty and property is regarded as an inalienable right by the people.”

Illinois Gov. J.B. Pritzker (AP Photo / Charles Rex Arbogast / File)

The sheriff of DuPage County, Jim Mendrick,added in his own statement this month: “Neither myself nor my office will be checking to ensure that lawful gun owners register their weapons with the State, nor will we be arresting or housing law-abiding individuals that have been arrested solely with non-compliance of this Act.”

He is now coming under fire from lawmakers who say he doesn’t have the authority to override laws.

Mendrick fired back, saying that “there is absolutely nothing that we are doing or not doing that would make a mass shooting more accessible in DuPage County.”

“In fact, I have asked on multiple occasions to increase penalties on all existing gun crimes, but it does not appear that they want to have that conversation. They seem more concerned with lawful gun owners than people illegally possessing guns,” the sheriff added.

Pritzker’s office slammed the sheriffs for vowing to not enforce the law in a comment to Fox News Digital last week, calling their statements “political grandstanding at its worst.”

“The assault weapons ban is the law of Illinois,” Pritzker’s office told Fox News Digital on Monday. “The General Assembly passed the bill and the governor signed it into law to protect children in schools, worshippers at church and families at parades from the fear of sudden mass murder.”

“Sheriffs have a constitutional duty to uphold the laws of the state, not pick and choose which laws they support and when. We’re confident that this law will hold up to any future legal challenges, but again, it is the current law of our state. Anyone who advocates for law, order, and public safety and then refuses to follow the law is in violation of their oath of office,” the governor’s office said.

Dozens of Illinois sheriffs vow to defy governor’s assault weapons ban

Gov. Pritzker signed gun-control legislation into law earlier this month

By Emma Colton | Fox News

More than six dozen Illinois sheriffs have vowed to defy a gun-control law signed by Democratic Gov. J.B. Pritzker that bans semiautomatic rifles.

“Part of my duties that I accepted upon being sworn into office was to protect the rights provided to all of us, in the Constitution,” Edwards County Sheriff Darby Boewe said in a Facebook post.

Boewe is one of at least 74 sheriff offices that have posted statements in opposition of the law, according to ABC News.

The Illinois Senate passed its version of the “Protect Illinois Communities Act” last Monday. The bill bans assault weapons and high-capacity magazines from being manufactured or sold in the state. Pritzker signed the bill into law last Tuesday, banning the manufacturing and sale of types of semiautomatic rifles and pistols, .50-caliber guns, as well as attachments that can increase a gun’s fire rate.

AR-15-style rifles are on display at Freddie Bear Sports gun shop in Tinley Park, Illinois, on Aug. 8, 2019. (Zbigniew Bzdak/Chicago Tribune/Tribune News Service via Getty Images)

The Illinois Sheriff’s Association said in a statement that it opposed the bill since its inception.

“We, as a representative of chief law enforcement officials throughout Illinois, are very concerned and disturbed by the ongoing and escalating violence throughout our State and Country,” the statement, released Wednesday, said.

“We are always supportive of new tools, techniques and laws that assist us in preventing and holding accountable those that wage efforts of harm and violence on others. However, this new law does not do that.”

Illinois Gov. J.B. Pritzker (AP Photo/Charles Rex Arbogast/File)

Richland County Sheriff Andrew R. Hires said in a Facebook post that “The right to keep and bear arms for defense of life, liberty and property is regarded as an inalienable right by the people.”

“I, among many others, believe that HB 5471 is a clear violation of the 2nd Amendment to the US Constitution,” Hires said.

There are at least 102 sheriff’s offices in Illinois. The 74 offices vowing to defy the new law will affect roughly 30% of residents in the state, according to ABC News.

The Illinois State Capitol (Armando L. Sanchez/Chicago Tribune/Tribune News Service via Getty Images/File)

Cook County, the state’s most populous county that is home to about 40% of the Illinois population, has not spoken out against the law.

Pritzker said during an interview on MSNBC last week that sheriffs opposing the law are taking part in “political grandstanding.”

“It’s our state police and law enforcement across the state that will, in fact, enforce this law, and these outlier sheriffs will comply or, frankly, they’ll have to answer to the voters,” Pritzker said.

His office added in comment to Fox News Digital on Monday that “sheriffs have a constitutional duty to uphold the laws of the state.”

“This is political grandstanding at its worst. The assault weapons ban is the law of Illinois. The General Assembly passed the bill and the Governor signed it into law to protect children in schools, worshippers at church, and families at parades from the fear of sudden mass murder,” a Pritzker spokesperson said.

Fox News’ Greg Wehner contributed to this report.

Semiautomatic weapons ban becomes Illinois law

Opponents vow to challenge the IL legislature’s sweeping gun ban in court

Illinois banned the sale or possession of semiautomatic weapons Tuesday when Gov. J.B. Pritzker signed legislation driven largely by the killing of seven people at a 4th of July parade last year in the Chicago suburb of Highland Park.

Pritzker acted without hesitation after the House voted 68-41 to make Illinois the ninth state, as well as Washington, D.C., to prohibit the sale or possession of semiautomatic weapons. The vote concurred with a plan the Senate OK’d Monday night.

Pritzker, who was sworn into his second term on Monday, celebrated the culmination of what he described as a four-year struggle against “the powerful forces” of gun advocacy groups.

“We will keep fighting — bill by bill, vote by vote, and protest by protest — to ensure that future generations only hear about massacres like Highland Park, Sandy Hook, and Uvalde in their textbooks,” Pritzker said in a statement.

In his inaugural address Monday, the Democrat abhorred not only the Highland Park mass shooting that also left 30 injured, but frequent gun violence in Chicago, notably the gun play that killed two 16-year-olds and injured two others last month at Benito Juarez High School on Chicago’s west side.

Critics warn the governor’s signature will trigger court challenges, which will ultimately overturn the law as a violation of the 2nd Amendment.

Ed Sullivan, a lobbyist for the Illinois State Rifle Association, said legal action will be swift. Senate President Don Harmon closed debate on Senate action Monday night by boldly declaring to critics, “See you in court.” The ISRA responded, “Challenge accepted.”

State Republicans, whose 45 seats dropped by five with a new General Assembly taking over on Wednesday, were left snarling during debate. Rep. Blaine Wilhour of Beecher City, 97 miles northeast of St. Louis, snidely complained that Democrats “despise our Founders.”

“A government willing to defy our Constitution is a government that is completely out of control. So you can sit here and dictate whatever you want today,” Wilhour said. “But I can tell you that we will not comply and you’re not going to do a darn thing about it because the law, the Constitution and the founding principles are on our side.”

The legislation bans dozens of specific brands or types of rifles and handguns, .50-caliber guns, attachments and rapid-firing devices. No rifle will be allowed to accommodate more than 10 rounds, with a 15-round limit for handguns.

Those who already own such guns will have to register them, including serial numbers, with the Illinois State Police. The new law enables merchants to sell or return current stock and Illinois-based manufacturers can sell their wares outside Illinois or to law enforcement.

A semiautomatic weapons ban passed by the Illinois legislature was signed into law by Gov. J.B. Pritzker on Tuesday. (Fox News)

Speaker Emanuel “Chris” Welch introduced his mother, Willie Mae Welch, who was with him on the House floor. Welch told how, as a teenager in 1985, his mother’s sister was fatally shot while sitting in a car outside her church. Welch’s aunt had three young girls. His parents, despite having three boys of their own, took them in. No assailant was ever apprehended.

“It’s time that we protect Illinois communities,” Welch said. “It’s time that we protect Illinois families. Let’s end families having to change overnight. Let’s not lose any more brothers and sisters, children to gun violence.”

Welch, a Democrat from the Chicago suburb of Hillside, took the lead on the measure from the original sponsor, Rep. Bob Morgan, a Democrat from suburban Deerfield who was participating in the Highland Park parade when the shooting began.

Eight states and the District of Columbia currently have bans on semiautomatic weapons, according to Tanya Schardt, working in favor of the legislation for the Brady Campaign. They differ in their definitions of semiautomatic weapons, but generally they ban 10-round clips for long guns and handguns. The bans have survived constitutional challenges in scores of courts, she said.

Five states — California, Connecticut, Hawaii, New Jersey and New York — require registration of guns purchased previous to the law, Schardt said. The other three states with bans are Delaware, Maryland and Massachusetts.

Registration often angers current owners but most tolerate the collection of information, Schardt said.

The legislation also provides protection. If police stop a car driven by a semiautomatic gun owner, for example, they can instantly check to ensure it’s legally owned. And it allows law enforcement to trace a gun that, for example, is stolen and used in a crime.

The Senate changed Morgan’s initial proposal, but compromised on changes the House could accept. For example, Morgan proposed raising the age to 21 for obtaining a Firearm Owners Identification card, but the current version allows those younger to get one with parental permission.

source

Second Amendment groups warn of Illinois gun control bill heading to governor’s desk

Gun Owners of America said Illinois lawmakers are ‘bending and ignoring the constitution’

Gun rights groups are promising to fight a proposed semiautomatic weapons ban in Illinois after the state Senate advanced gun control legislation championed by Democrats.

The Illinois Senate on Monday passed its version of the “Protect Illinois Communities Act,” which would ban so-called assault weapons and high-capacity magazines from being manufactured or sold in the state. The bill also makes devices intended to increase the rate-of-fire of semiautomatic weapons illegal, and increases the duration of a firearm restraining order from six months up to one year under the state’s red flag law.

“Gun violence is an epidemic that is plaguing every corner of this state and the people of Illinois are demanding substantive action,” said Democratic Senate President Don Harmon. “With this legislation we are delivering on the promises Democrats have made and, together, we are making Illinois’ gun laws a model for the nation.”

The legislation would ban the manufacture or possession of dozens of brands and types of rapid-fire rifles and pistols, .50-caliber guns and attachments that enhance a weapon’s firepower. Those who currently own such guns would not be required to surrender them but would have to register them with the Illinois State Police — including serial numbers, a provision initially removed by the Senate but restored after House proponents’ objections.

Gov. J.B. Pritzker speaks after being sworn in for a second term Monday, Jan. 9, 2023, during the inauguration ceremony at the Bank of Springfield Center in Springfield, Illinois. (Brian Cassella/Chicago Tribune/Tribune News Service via Getty Images)

Merchants, who are federally licensed to sell such weapons, would be able to dispose of their current inventory by returning them to manufacturers or selling them.

In total, the bill would ban the future sale of nearly 100 different kinds of semi-automatic pistols, shotguns and rifles, which the legislation defines as “assault weapons.”

The National Rifle Association and other Second Amendment advocates say the legislation bans many commonly-owned rifles and goes beyond previous attempts to outlaw certain firearms.

“Not only does this tyrannical proposition infringe on the rights of all Illinois citizens, but it is also extremely dangerous,” Gun Owners of America said in a call to action opposing the bill.

The Illinois State Capitol on Jan. 6, 2022, in Springfield, Illinois. (Armando L. Sanchez/Chicago Tribune/Tribune News Service via Getty Images)

“These commonly owned semi-automatic firearms are used countless times every year to save lives and deter crime. Banning them will only prevent law-abiding citizens from purchasing the best firearm to defend themselves. Not to mention, the requirement to register currently owned firearms is vehemently unconstitutional,” the group argued.

The Illinois State Rifle Association said a more apt title for the bill would be, “bending and ignoring the constitution in an effort to take away your Second Amendment rights to bear arms in Illinois.” The group has said it will take legal action if the bill becomes law.

An empty chairs and bicycles remain near the scene of the shooting in Highland Park, Illinois, on July 5, 2022. (Photo by Jacek Boczarski/Anadolu Agency via Getty Images)

A ban on semiautomatic weapons was a campaign priority for Illinois Gov. J.B. Pritzker, particularly after a gunman killed seven people and injured 30 others in a July 4th parade shooting in the Chicago suburb of Highland Park.

Republican lawmakers were opposed to the bill, but were overwhelmingly outnumbered in the 34-20 vote Monday. State Sen. Darren Bailey, a former GOP candidate for governor, predicted the Illinois Supreme Court would find the measure unconstitutional and said he and “millions of other gun owners in this state will not comply.”

Harmon welcomed challenges to the law in remarks on the state Senate floor Monday.

The Protect Illinois Communities Act must go back to the state House for reconciliation before it is sent to Gov. Pritzker’s desk.

The Associated Press contributed to this report.

By Chris Pandolfo | Fox News