Ask Bob: Gun rights to felons–a rocky road ahead

Nothing gets headlines like guns, and few things get a reaction like laws giving gun rights to felons. Put the two together and you get, well, explosive coverage. That may well have been the intent of Republican Colorado Rep. Ken Buck, whose bill to give felons the opportunity to restore their Second Amendment rights passed in a voice vote. 

Buck’s legislation seeks to amend the FY16 Commerce, Justice, Science, and Related Agencies Appropriations Act (H.R. 2578). Buck assured that violent felons would never be allowed to own guns again. The bill as drafted now would allow non-violent felons to petition the Justice Dept. for the right to own a gun. 

“America is a land of second chances. One mistake should not define your future. A law-abiding, 45-year-old dad who made one mistake at 18 should have the choice of how best to protect his family or to take his kids hunting. He should have the chance to make a petition to restore his constitutional right to bear arms. This solution is long overdue.” Buck said in a press release after approval of his amendment. 

Approval in the Republican-controlled house garnered headlines and loud applause from the National Rifle Association and gun-rights advocates. But it doesn’t put guns back into the hands of any re-entering citizens just yet. To become law a companion bill in the Senate needs to be approved. To date no such bill has been authorized.

In short, felons aren’t getting guns back any time soon. Such is the complicated nature of government in the gridlocked U.S. Congress. In fact, did you know that a law currently exists, in theory, to allow gun rights to felons?

In 1965, there was an amendment to the Federal Firearms Act of 1938. This amendment allowed convicted felons to apply to the Bureau of Alcohol, Tobacco, Firearms, and Explosives to have gun rights re-instated. From 1982 to 1992, more than 22,000 felons applied and an estimated one-third were approved, according to the Violence Policy Center. 

While the program remains in place, legislation by Sen. Charles Schumer of New York blocked funding to the ATF and stalled its ability to process applications.

At this stage, we do not know what the procedure will be to regain gun possession rights if the bill the House passed gets through the Senate and is signed into law by the President. We do know that passage of a Federal law is not enough to get gun rights to felons restored. With no restoration of rights under state law, federal law alone is not enough for felons to regain their right to own a gun. To determine whether someone’s civil right to own a gun has been restored, federal courts “look to the law of the jurisdiction of conviction . . . and consider the jurisdiction’s entire body of law.” United States v. O’Neal, 180 F.3d 115, 119 (4th Cir.), cert. denied, 528 U.S. 980 (1999).

Here’s an actual example. Let’s assume the proposed federal law restoring gun rights to non-violent felons passes. Let’s also assume you live in North Carolina and you are picked up for being a felon in possession of a firearm. The federal courts will look to North Carolina law to see if they if they ever passed a law restoring your civil rights, which would include your right to bear arms. If they have been restored under North Carolina law, then the federal authorities will not be able to prosecute him for being a felon in possession of a gun.

The problem is that North Carolina law does not ever restore the civil right to own a gun to a felon. As of December 1, 1995, N.C. Gen. Stat. § 14-415.1 provides that anyone convicted of a felony forever loses the right to own a firearm, and North Carolina makes no provision for restoration of a felon’s right to own a gun. 

It remains to be seen if anything will come of these efforts to restore gun rights to non-violent felons, or if they will be “shot down” like most initiatives to restore rights to us felons. We intend to follow developments, and keep you informed. 

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