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Old November 14, 2011, 10:27 AM   #1
Baba Louie
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Felons gun rights restored?

http://www.nytimes.com/2011/11/14/us...un-rights.html
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Under federal law, people with felony convictions forfeit their right to bear arms. Yet every year, thousands of felons across the country have those rights reinstated, often with little or no review.
Yet if I understand things correctly, the ATF states they have no funding to review restoration of this right and so it remains... untouched by that agency.

Does this only affect purchase from FFLs?

The NYT article makes it appear to be a common everyday occurance, depending on State law.

Wondering what your thoughts are on the article (slanted or no? ), your State's POV or legal status and if anyone could educate me as to the Fed/ATFs position, I'd appreciate learning more. I've always thought once your time has been done as a former convicted felon, some rights were lost, some retained. Much to learn as I get older.
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Old November 14, 2011, 10:39 AM   #2
American Made
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Be careful about any info published by any anti-2nd Amendment rag.

If you're charged with any "State" crime, then you must follow that set of laws. Some have ways for felons to expunge their records, some don't. Some even have ways to "reduce" the charge to something lesser.


People v. Gilbreth (2007)156 Cal.App.4th 53 , -- Cal.Rptr.3d --

"Defendant argues the evidence was insufficient to support his conviction for possession of a firearm by a convicted felon, because the prior felony conviction that qualified defendant for that charge was reduced to a misdemeanor upon his successful completion of probation. We agree that reduction of this earlier offense to a misdemeanor precluded using it as the predicate offense to the charge that defendant was a felon in possession of a firearm."

Gebremicael v. California Com. on Teacher Credentialing (2004) [156 Cal.App.4th 58] 118 Cal.App.4th 1477, 1483 (Gebremicael).)

"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."
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Old November 14, 2011, 11:14 AM   #3
Aguila Blanca
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I am not a lawyer, so fiddletown will no doubt come by soon and correct me. But ... I have read a bit about this.

First off, there are two levels of restoration of rights: state, and Federal. The Federal restoration process is on the books but our Congress has explicitly denied funding for the process for many years, so it might as well not exist. So, someone who is a felon due to a conviction in Federal court is out of luck unless he/she can score a presidential pardon.

On the state level, it gets murkier. We have 50 states, so there are 50 different sets of laws that apply to restoration of rights. Technically, if a felon convicted in a state court has his/her rights restored according to that state's process -- that should be the end of it and he/she should be good to go. However, although I don't recall specifics, there have been cases in which the good ole BATFE has unilaterally decided that they didn't agree with a state's procedure for restoring rights, so they declined to recognize the person's rights as having been restored and persecuted prosecuted him as a felon in possession of firearms, notwithstanding the state restoration of rights. IIRC (which I probably don't), it had something to do with "expungement" -- like maybe whether or not expunging the record of a conviction is or isn't the equivalent of restoring the felon's rights.

Bottom line -- it does not apply only to purchases through an FFL. A convicted felon who has not had his/her rights restored cannot own, "possess," or even touch a firearm. They can be arrested and charged if they even live in a house with someone who is not a prohibited person and the gun(s) are not locked up to prevent the felon from potentially being able to access it/them.

If your question is asked because of a specific person and case -- I would advise you to advise the person to ask a good attorney.
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Old November 14, 2011, 11:24 AM   #4
Baba Louie
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So... it depends totally on State Law with Fed law taking a/the backseat... and since States Laws vary, there is no one size fits all solutions. i.e., SCOTUS saying the discrepancies between states in this regard is fine and well and business as usual?

Again, pardon my ignorance. I suppose if one commits a felonious act that violates Federal Law where State law says things are fine (medical Pot for instance or domestic violence conviction or restraining order by ex-spouse) then ones goose is cooked forever and always, 2nd amendment wise?

It's a pandoras box to me, and I assume lawmakers, lawyers, judges and LEOs, all of whom work within the legal system, each know their portion of the equation... (I admit I'm so stupid I don't even know how to phrase a proper question)
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Old November 14, 2011, 11:25 AM   #5
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The New York Times says that it's easy - I suspect that it is not so easy, but perseverance pays off.

I read the article and what I took away from it was that in most of the cases cited, the judges and/or prosecutors did not do their jobs very well. There wasn't any reference to states like mine (Idaho) that task the parole and pardons board with the responsibility of hearing gun rights restoration petitions, probably for good reason - that bar isn't "easy".

The authors have an agenda, of course. They've cherry-picked the worst-case scenarios from whatever data they've accumulated. They've avoided directly drawing a conclusion, but cast certain organizations as something approaching villains.
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Old November 14, 2011, 11:28 AM   #6
Baba Louie
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Quote:
If your question is asked because of a specific person and case -- I would advise you to advise the person to ask a good attorney.
No specific person or case or what-have-yous, just an article I ran upon this a.m.

I would think should I ever run into this situation a good attorney would be mandatory, but do my best to avoid breakin' any laws or runnin afoul of felonious behavior.
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Old November 14, 2011, 11:30 AM   #7
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Baba Louie, rights denied under state law are appropriately restored under state law. Rights denied under federal law are beyond the reach of state law.

If somebody commits a federal felony, the only path to restoration of civil rights, as far as I know, is a pardon by the president or, perhaps, a bill by Congress.
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Old November 14, 2011, 11:44 AM   #8
Baba Louie
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Hardcase, excellent. That's what I thought.
Quote:
...rights denied under state law are appropriately restored under state law. Rights denied under federal law are beyond the reach of state law.

If somebody commits a federal felony, the only path to restoration of civil rights, as far as I know, is a pardon by the president or, perhaps, a bill by Congress.
So it pays to be a heavy contributor to whoever is sitting in the W.H.
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Old November 14, 2011, 11:48 AM   #9
American Made
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If the State court said, " Your rights are restored" and they CAN'T be used against you from this point on. Then, of course, this is considered a FULL expundement under federal law.

Where one finds trouble is when their State DOESN'T fully expundge the charge, leaving the charge floating around for future use. If, however, your State make your first charge/conviction a lesser crime - it will always be the lesser crime. The federal government cannot step in ( after the Court of law has found you guilty of the lesser crime ) and say, "not so fast, we like the first conviction better." This would step all over the police powers of the State and the 10th Amendment in general.

It all falls on whether the States law is considered a full expundgement or not. Each State has control over it's own law, and if they don't meet federal standards, that State can make it where it does.

But...... This guy would like his OWN opinion on record. Nowhere in the Constitution does it say that the commerce clause supercedes the Bill of Rights!! Sadly, these modern day Courts don't see it that way. What was once "inalienable" has been turned on it's head, twisted into whatever may be deemed as "reasonable."

Last edited by American Made; November 14, 2011 at 12:11 PM.
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Old December 31, 2011, 08:46 PM   #10
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Quote:
If the State court said, " Your rights are restored" and they CAN'T be used against you from this point on. Then, of course, this is considered a FULL expundement under federal law.
Then there's Arkansas. Where I had an expundgment in 1976 of a minor felony and was good to go UNTIL 1995 when they passed a law that said they can now hold this against me again. So now after 36 years later, I can't buy or own a gun, again. The law was not intended to be retroactive, but they do anyway.
How do you fight the State without going broke? Last 37 years with nothing more than a speeding ticket and an expunged record and I can't buy a gun. Go figure.
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Old December 31, 2011, 09:40 PM   #11
Al Norris
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Baba Louie, you might want to take a look at Enos, et al v. Holder, et al. This is a CA case that is pretty much on point with your query.

The Internet Archive has the docket and the relevant case filings. We also have an ongoing thread about this case, here.

Here, the plaintiffs were all (but one) convicted of misdemeanor domestic violence. However, under CA law, their firearms rights were restored by action of the law itself or by action of the plaintiff. Yet the BATF says they are all prohibited persons. Not just because of the MCDV (Lautenberg Act), but also because they never lost any rights, therefore no rights were restored.

The BATF is not counting the loss of the RKBA as a right. They are using a pre-Heller definition of rights.
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Old December 31, 2011, 09:49 PM   #12
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If it's in the New York Times and has anything to do with firearms, I assume it's a lie. Does that seem a trifle harsh? Maybe so, but if you go by the historical record, that's the only reasonable assumption.
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Old January 2, 2012, 08:59 AM   #13
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I suspect the simple truth is it depends on how long it has been since the conviction, how 'clean' you have been since then and how much you can afford for a lawyer... some states do have a special system for expunging young adult convictions....

interesting.... I have a 'friend' who was convicted in 1978 of a felony and later that became a misdemeanor according to state law and so according to the state police who issue concealed weapons permits he is no longer a felon.
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Old January 3, 2012, 06:03 AM   #14
Baba Louie
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Al, interesting read.

NASCAR, that's... sad.

My assumption was that the ATF purposely has that portion of their budget set at $ZERO by Congress in order to avoid restoring said rights, so even if the State or Uncle Sam say you're good to go, the one Dept that has official authority can say, "Huh? Guns for You? Nope. No budget, sorry sux to be you."
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Old January 7, 2012, 03:30 PM   #15
Paul B.
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I can only speak of my next door neighbor's experience. He was convicted of Agravated Assualy (5 counts) for stopping a bunch of punks from stealing his neighbor's Mercedes. Turns out one of the investigating sheriff's deputie was the Uncle of one of the perps. They wee hispanic. The prosecutor was Hispanic as was the judge and finer railroad job I've never seen.
Anyway, he was convicted but didn't go to prison, just serious probation and at the end of his term, he petitioned the court for restoration of his civil rights which was granted.
He was wondering what he had to do when filing out the 4473 form when purchasing a firearm so we called the BATFE off and were told that if the rights had been restored, to answer NO where it asked about a conviction.
Arizona even allows convicted felons who have had their right restored or their crime expunged to get a CCW permit. He just got his about three months ago. Dunno how many other states would do this.
I doubt they would be this lenient on something like this for say a repeat offender but for someone on a first offense? I think it's only fair.
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Old January 7, 2012, 11:18 PM   #16
Tom Servo
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Al, I can't remember if we'd discussed this previously, but we had something of a win on this matter in Johnson v. State in North Carolina:

Quote:
It should be clear that the Court is not hereby holding that the State cannot constitutionally regulate firearms possessions by felons. It may. But the Court has, and is, ruling that a felony conviction by itself does not divest felons of their fundamental constitutional rights. In order to constitutionally regulate this fundamental right under a civil regulatory scheme, the State must provide procedural due process both before the deprivation of the right and at substantially related times post-deprivation, so as to allow a review of the determination that the citizen suffering the deprivation is within the class of citizens who pose the threat addressed by the felon firearm prohibition. The citizen subject to such a deprivation must have an opportunity to be heard and to present evidence on the issue of whether he should be divested of, or continue to be divested of, that fundamental liberty interest. The present Felony Firearm Act, N.C. Gen. Stat. § 14-415.1 does not do this. Every citizen, regardless of prior convictions, is entitled to such due process of law. No citizen should ever be deprived of a fundamental constitutional right on any rationale without having an opportunity to be heard on that issue.
After we make some progress getting the courts to acknowledge a right to bear arms outside the home, I wonder if this should be our next challenge.
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