Under current federal and state laws, a conviction for domestic violence – either felony OR misdemeanor – will result in firearm rights restrictions. Restoring those rights is very difficult. Both federal and state laws are highly relevant. Under federal law – 18 U.S.C. § 922(g)(9) – if a person is convicted of domestic violence in either federal or state court, this will result in a ban on the person’s right to own and possess firearms under federal law. Likewise, under all state laws, a person convicted of domestic violence will have their state-based firearm rights restricted.
In this article, we will discuss how FEDERAL firearm rights can be restored when those rights have been restricted based on a domestic violence conviction in state court. As noted, one can be convicted of domestic violence in federal court. However, for the past 25 years or so, Congress has refused to give the federal Bureau of Alcohol, Tobacco, and Firearms (“ATF”) funding to engage in the process of restoring weapons rights for convictions under federal law. Effectively, this prevents federal firearm rights from being restored if those rights were restricted based on a domestic violence conviction in federal court.
Domestic violence and federal law firearm rights restrictions –
As indicated, a domestic violence conviction in state court will result in an automatic restriction of your federal firearm rights. This restriction became law in 1996 after passage of the Domestic Violence Offender Gun Ban. This statute is commonly referred to as the “Lautenberg Amendment” (named after its legislative sponsor, US Sen. Frank Lautenberg (D. NJ). As explained in this ATF fact sheet, the domestic violence gun ban applies to –
- Domestic violence convictions under federal and state law
- Domestic violence convictions that are felonies OR misdemeanors (as defined by federal, state and tribal laws) and
- ANY person including federal, state, and local governmental employees in both their official and private capacities
While state laws will vary, generally, the crime of domestic violence is one where physical force is used or attempted or where a deadly weapon is used or threatened and the victim is
- A current or former spouse, parent, or guardian of the victim
- A person with whom the victim shared a child in common
- A person who was cohabiting with or had cohabited with the victim as a spouse, parent, or guardian or
- A person who was or had been similarly situated to a spouse, parent, or guardian of the victim
Note that the US Supreme Court has held that the Lautenberg Amendment applies to any domestic violence conviction – felony or misdemeanor – where the elements of the crime include the knowing OR reckless use of physical force. See Voisine v. US, 136 S. Ct. 2272 (US Supreme Court 2016).
The federal firearm ban for those convicted of domestic violence includes a ban on possessing any firearm or ammunition and a ban on affecting commerce of any firearm or ammunition.
Note that the term “conviction” includes not only convictions after trial, but also pleas of no contest.
Restoring federal rights restricted by domestic violence convictions in state court
Because the Lautenberg Amendment restricts federal firearm rights based on a conviction in state court, in legal terms, the state court conviction is what is known as a “predicate.” A predicate is something that MUST necessarily exist and come first before something else can exist. In this discussion, the predicate is a state court conviction for misdemeanor or felony domestic violence which must exist and come first before a person’s federal gun rights can be restricted. Importantly, the two things are linked in sequence. Therefore, if the first thing – the predicate – is removed, then the second thing ceases to exist. Thus, to restore a person’s federal gun rights based on a state court conviction, legal action must be taken at the state level to remove the predicate.
Indeed, pursuant to this logic, the federal government and courts recognize that to restore federal firearm rights based on a state court domestic violence conviction, one of the following must occur:
- The domestic violence conviction must be set aside, vacated or expunged or
- The person convicted must receive a pardon or
- The person’s civil rights – the right to vote, sit on a jury and hold elected office – must be fully restored
If a person is successful in having a state conviction set aside, vacated, expunged or in obtaining a pardon, then the person’s federal firearm rights are restored even with no action taken by the ATF. The reason is that, if a federal prosecutor charges a person with violation of the federal firearm ban, the criminal defense team can defend by arguing that no state court conviction predicate exists..
In some states – like Colorado – the only option is to obtain a pardon from the Governor.
In most states – other than places like Colorado – there are procedures for having convictions expunged and/or having juvenile convictions sealed. In most circumstances, having a conviction expunged will re-establish a person’s firearm rights and, in some circumstances, having a juvenile record sealed can re-establish a person’s firearm rights.
In many states, there are petitions that can be filed requesting that state-based firearm rights be restored. Such petitions, however, do not generally expunge or vacate or set aside convictions and, thus, do not restore federal gun rights.
The issue of having “civil rights restored” is complicated and depends heavily on where you live. But the recent case of United States v. Warner, Case No. 1:19-cr-04275-WJ (US Dist. Court, D. New Mexico 2021) provides an illustrative example. In that case, the defendant Charles Warner was indicted and convicted in 2012 of being a felon in possession of a firearm in violation of 18 U.S.C. § 922. The predicate state court conviction was a 2002 non-violent felony conviction in South Carolina. Warner appealed and argued that his 2012 firearm conviction should be overturned because his civil rights were automatically restored under South Carolina law and, thus, the 2002 conviction was not a valid predicate for his alleged violation of 18 U.S.C. § 922 in 2012.
The Federal Court of Appeals disagreed with Warner’s arguments and refused to overturn his conviction. The court stated that, for restoring the right to lawfully possess a firearm, three “core civil” rights must be restored:
(1) The right to vote
(2) The right to serve on a jury and
(3) The right to hold public office
Under South Carolina law, only the first and third civil rights are automatically restored after the passage of time. As such, the court held that Warner’s civil rights had NOT been fully restored and that, consequently, the 2002 South Carolina conviction remained a valid predicate for his 2012 conviction for unlawful possession of a firearm.
With respect to convictions for domestic violence, the problem with using “my-civil-rights-were-restored” as a method of restoring federal firearm rights is that often, convictions for domestic violence do not result in loss of civil rights (particularly if the conviction was for misdemeanor domestic violence). Thus, since there are no “lost” civil rights to restore, this method/argument cannot be used to restore federal firearm rights.
As can be seen, attempting to restore federal firearm rights is a legally complex and complicated endeavor. For this reason, any person seeking to restore federal firearm rights must retain local firearm rights legal representation that has the experience and knowledge to satisfy both federal and state standards and procedures for restoration.
Find A Firearm Rights Attorney Today
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