Anyone who has been convicted of a felony is banned by federal law from ever possessing “any firearm or ammunition." Specifically a person "convicted in any court of a crime punishable by imprisonment for a term exceeding one year" cannot possess any firearm in any location. 18 U.S.C. 922(g) is the federal law that prohibits anyone ever convicted of any felony to ever possess any firearm either inside or outside of his home. The federal punishment for felon gun possession is up to 10 years in prison.
There are many other federal gun ownership restrictions. For example, a conviction for a misdemeanor domestic battery results in a loss of gun rights. A person who is the subject of an order of protection may not possess a weapon. In light of the 2008 case of District of Colombia v. Heller, such restrictions may now have Second Amendment implications. A good summary is available from the Bureau of Alcohol Tobacco, Firearms and Explosives.
The Statutory Exception
The rule prohibiting felon gun ownership has some exceptions. There is specific statutory language providing that the federal criminal firearms possession does not apply to individuals who have had their civil rights restored by the state in which they where convicted of the felony.
18 U.S.C. 921(a)(20) provides:
"Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly [or implicitly as a matter of state law] provides that the person may not ship, transport, possess, or receive firearms."
State Law Restoration of Rights
State law determines the restoration of civil rights for a state conviction, not federal law. The civil rights restoration must incorporate the right to serve on a jury, the right to seek and hold public office, and the right to vote. Absent restoration of these rights federal recognition of the state restoration of rights exception will not apply.
Federal law contains another passage to be considered. If the restoring state includes the three rights above, then one must determine if state law in any way restricts the convicted felon’s rights to possess a weapon. If there is any state restriction on the felon’s right to have a weapon then the possession of any firearms by the convicted felon is federally illegal. This is true even if all other civil rights are restored.
In the end, federal restrictions on the possession of firearms by convicted felons are entirely dependent upon the restrictions imposed by the various states. If there is a state restriction on an individual’s gun possession as the result of a criminal conviction, then possession is a violation of federal law.
The Process for Restoring Rights
Every state has its own process for felons to petition the government to restore their civil rights. Rights can be affected by the expunging or sealing of records which are judicial actions or pardons from the governor, which are executive actions. The level of restoration may be affected by the crime itself, whether it is a violent crime a drug crime or a crime of dishonesty. State laws vary greatly. For an example of the process, see Illinois Criminal Expungement Law.
David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.
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