Under federal law, firearm rights are restricted for various reasons including convictions for felonies and for misdemeanor or felony domestic violence under State law. However, federal firearm rights can be restored if:
The conviction is “expunged or set aside” orThe person “has been pardoned” orThe person has had their “civil rights restored”
If any of these apply, then a “conviction” is not considered a “conviction” for purposes of the federal firearms ban. However, in general, it is difficult to have felony convictions set aside or expunged and pardons are rarely granted. Thus, for purposes of restoring federal firearm rights, often, the “best” option is seeking to demonstrate that civil rights have been restored.
The problem that this creates for restoring federal firearm rights is that, in some states, these core civil rights are not lost for certain convictions like misdemeanor domestic violence charges or where the person is not actually incarcerated. Because of this, some courts have held that, if civil rights are not “lost,” then they are not “restored” for purposes of obtaining relief from the federal firearms ban. See Logan v. United States, 552 U.S. 23 (2007) (“… we hold that the words `civil rights restored’ do not cover the case of an offender who lost no civil rights.”); United States v. Brailey, 408 F.3d 609, 613 (9th Cir.2005) (“Because Brailey’s misdemeanor conviction did not remove Brailey’s core civil rights of voting, serving as a juror, or holding public office, his civil rights have not been restored within the meaning of federal law by Utah’s 2000 amendment permitting him to possess a firearm”).
However, at least two State Supreme Courts have issued decisions directly aimed at correcting this deficiency by adding “firearm rights” as a fourth “core” civil right. In doing so, the courts have added a civil right that is “lost” so that the civil right can be “restored” which, in turn, accomplishes restoration of federal firearm rights.
The first case is Johnson v. Department of State Police, 161 NE 3d 161 (Ill. Supreme Court 2020). In that case, the person seeking restoration of her firearm rights was Shawna Johnson. Her Illinois firearm permit was revoked after her conviction for a misdemeanor crime involving domestic violence. The permit was revoked because Illinois law prohibits granting a firearm license/permit if a person cannot own or possess a firearm under federal law. A conviction for misdemeanor domestic violence results in a federal firearm ban. Johnson appealed and won at the trial level. The State then appealed to the Illinois Supreme Court.
This issue was whether Johnson’s “civil rights” had been restored. The State argued that, since Johnson’s conviction was for a misdemeanor and she was never incarcerated, she never lost her “civil rights” and, as such, she did not have her civil rights restored. In Illinois, a misdemeanor conviction does not result in loss of the right to hold office or serve on a jury and ONLY results in loss of the right to vote if the person is sentenced to a term of confinement. According to the State, since Johnson’s civil rights were never restored and Johnson was still subject to the federal firearm ban. As such, Johson could not be granted a firearm permit under Illinois law.
The Illinois Supreme Court disagreed. The court held that the term “civil rights” included the right to bear arms. As such, Johnson DID have her civil rights restored and her rights were “fully” restored since she still had the right to vote, serve on a jury and hold public office. Since Johnson’s civil rights were fully restored, she was NOT subject to the federal firearms ban and could be granted a firearm license under Illinois law.
The second case coming to the same conclusion was decided by the Supreme Court of New Hampshire in DuPont v. Nashua Police Department, 113 A.3d 239 (N.H. 2015). In that case, the person seeking to restore his firearm rights – Gary DuPont – was convicted in Massachusetts of operating a motor vehicle under the influence of alcohol in 1998. In 1998, under Massachusetts law, that conviction was deemed a misdemeanor, but carried a potential maximum prison sentence of two and a half years. Because of this, for federal firearm rights, the conviction was considered a felony prohibiting DuPont from possessing or carrying a firearm under federal law. In 2007, DuPont was issued a firearm license, but that was revoked in 2010 when the Nashua County Police Department discovered the Massachusetts conviction. Eventually, DuPont sued in state court to have his firearm rights restored.
The trial court affirmed the decision of the Police Department to deny DuPont a license, in part, because DuPont was barred from possessing a firearm under federal law. The trial court reasoned that DuPont’s conviction had not been “set aside” or “expunged” and his civil rights had not been “restored.” The 1998 conviction did not deprive DuPont of any of his “core” civil rights. The trial court issued this ruling despite the fact that DuPont had satisfied all the other requirements for having his firearm rights restored. It was specifically found that DuPont was “a suitable person to possess a license to carry firearms.”
DuPont appealed to the New Hampshire Supreme Court, making several arguments for reversal of the trial court. With respect to the civil rights issue, the Supreme Court ultimately decided that the right to bear arms was included in the definition of “civil rights.” The court stated: “We conclude that the “civil rights” contemplated by [the federal Gun Control Act] are not limited to the three “core” civil rights and that the Second Amendment right to keep and bear arms is a civil right within the statute’s ambit.” From there, the court addressed the “ultimate question” of whether the loss and restoration of one civil right – the right to keep and bear arms – was sufficient to bring DuPont within the “civil rights restored” method of restoring federal firearms rights. The court answered “yes.” Since DuPont’s civil rights were fully restored, he was NOT subject to the federal firearms ban and could be granted a firearm license under New Hampshire law.
As can be seen, these cases are significant victories providing new legal precedents for those seeking to restore their federal firearm rights.
