Prohibited

Should nonviolent felons be able to possess firearms?

by
posted on September 24, 2023
Prohibited graphic
Art: Brad Walker

You likely know it is a federal crime for a person convicted of a felony to possess a firearm. But what you may not know (and indeed, I did not know until last year) is that a conviction for any crime that could lead to a sentence longer than two years in prison is often being treated as if it has the same disqualifying effect for peoples’ Second Amendment rights.

This ever-expansive use of the law to take away the rights of as many citizens as possible even includes many people who’ve been convicted or have pleaded guilty to nonviolent crimes. If you’re wondering why nonviolent felonies should also disqualify someone from their Second Amendment rights for life, then you’re asking the same question a court just asked.

The Third Circuit Court of Appeals recently decided that a person disqualified for a 1995 conviction of a misdemeanor had been unconstitutionally deprived of his Second Amendment rights. The defendant, Bryan David Range, pleaded guilty in the Court of Common Pleas of Lancaster County to one count of making a false statement to obtain food stamps in violation of Pennsylvania law. In 1995, Range was earning between $9 and $9.50 an hour as he and his wife struggled to raise three young children on $300 per week. Range’s wife prepared an application for food stamps that understated Range’s income, which she and Range signed. Though he did not recall reviewing the application, Range accepted full responsibility for the misrepresentation.

It is hard to read those facts and not feel a little sympathy for Range’s position. In a nation where the government provides subsidies to billionaires and billion-dollar corporations, a guy trying to raise a family on $300 per week who lied to obtain food stamps is hardly a ferocious criminal who should be stripped of a constitutional right for life. His most serious previous crime was fishing without a license.

At the time, his conviction was classified as a Pennsylvania misdemeanor punishable by up to five years in prison. So, he was forever prohibited from firearms ownership by federal law. He could not get this right back until or unless Pennsylvania restored his Second Amendment rights. The thing is, Pennsylvania is a difficult state in which to have one’s gun rights restored. To do so, a person must receive a judicial expungement, which can only be obtained after a gubernatorial pardon, which may only be granted after a favorable recommendation from the state’s Board of Pardons.

Not knowing any of this, Range later attempted to buy a gun, but the National Instant Criminal Background Check System (NICS) rejected his purchase. His wife then bought him a deer rifle. Meanwhile, believing his first rejection was an error, Range again attempted to purchase a firearm. Again, he was rejected by the background-check system. Several years after this rejection, Range “researched the matter” and learned that he was barred from purchasing and possessing firearms because of his welfare fraud conviction.

Range now knew the government prohibited him from possessing a gun. Instead of just keeping the rifle, he sold it and sued for permission to buy a gun. At trial, Range lost. On appeal to a three-judge panel of the Court of Appeals, Range lost. He then appealed to what is called an “en banc” panel of judges. If a majority of judges in an appellate circuit agree that it is an important case, several judges are picked at random to re-hear the appeal.

The en banc panel ruled 11-3 in Range’s favor. They explained:

That Founding-era governments punished some nonviolent crimes with death does not suggest that the particular (and distinct) punishment at issue—lifetime disarmament—is rooted in our Nation’s history and tradition. The greater does not necessarily include the lesser: founding-era governments’ execution of some individuals convicted of certain offenses does not mean the State, then or now, could constitutionally strip a felon of his right to possess arms if he was not executed. As one of our dissenting colleagues notes, a felon could “repurchase arms” after successfully completing his sentence and reintegrating into society. That aptly describes Range’s situation. So the Government’s attempt to disarm Range is not “relevantly similar” to earlier statutes allowing for execution and forfeiture.

This seems clear enough. Felons were not necessarily permanently prohibited from keeping a gun in the colonial period. Meanwhile, the Bruen (2022) decision from the U.S. Supreme Court ruled that the standard for determining if a right is protected by the Second Amendment is the time when this right was passed, as you have to look at what the intention was at the time. In that period, you could be executed for a felony, and many were. Those not executed could obtain the right to keep arms after completing their sentence, even for a violent felony.

Range was convicted of a nonviolent crime, one for which most people would hold some sympathy for him—feeding your family is about as important a sign of responsible fatherhood as most of us can imagine. Range had no significant criminal record, before or after. Range did not go to prison.

The Heritage Foundation called this ruling the “most-significant Second Amendment victory since the Supreme Court’s landmark decision last year, where it held that Americans have a constitutional right to carry handguns in public for self-defense.” But one circuit court doesn’t set the law for another circuit court’s jurisdiction—only the U.S. Supreme Court can do that. For this and other reasons, this issue is hardly resolved.

What’s the History of This Expansion of Denials?
So, when did a felony conviction become a lifetime firearms disqualifier? The answer is: surprisingly recently.

The Federal Firearms Act (1938), not to be confused with the National Firearms Act (1934), prohibited convicted felons from purchasing firearms. The Gun Control Act (1968) later carried over this provision and added the provision that any conviction that could lead to a year in prison or more was also a disqualifier. So, for well over a century in America, a felony conviction did not result in a lifetime loss of this constitutional right.

This all presents us with a lot of questions. If the U.S. Supreme Court refuses to hear the government’s appeal on this case, what will happen? How many Americans are currently on the FBI’s firearms disqualifier list who are in a position like Range’s? If someone has been convicted of a nonviolent crime potentially punishable by two or more years in prison, with no prior or subsequent serious convictions, will they still lose this right forever? Does the FBI even have enough information about individuals on its disqualifier list to make these distinctions?

Clearly, as a constitutionally protected right hangs in the balance for many Americans, we need more answers. There, after all, is a procedure for getting your right to possess firearms restored. According to the Federal Register, “The information requested on the Application for Restoration of Firearms Privileges—ATF Form 3210.1, fulfills the requirements of 18 U.S.C. Chapter 44. Specifically, individuals prohibited from purchasing, possessing, receiving, or transporting firearms, are permitted to apply for the restoration of their firearms privileges, using ATF Form 3210.1.”

There is a serious problem, however; currently, Congress has not appropriated funds for individuals contesting their prohibition on owning a gun for some time now. That’s right—Congress has long-since defunded the ability of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to even consider restoring rights to citizens who aren’t likely to be a threat to anyone.

So why won’t Congress appropriate funds to potentially restore the rights of nonviolent people? The reason can be found in the fact that anti-gun groups have pointed to a few instances of felons who used this procedure to get their rights restored and later committed serious crimes. Still, our justice system is designed to try individuals, so why can’t an individual have the ability to sue for his or her rights back and then, conceivably, get a hearing before a judge and jury of his or her peers? The reason that Congress has defunded this pathway since 1993 is that it is easy for the anti-Second Amendment groups and politicians to claim that so and so wants to arm felons.

Imagine if a Rep. Smith is running for re-election. Sam Jones is running against him. Imagine the ad Jones could run (perhaps a few days before the election) if Smith were for funding this part of the ATF: “Rep. Smith wants to vote to arm felons in your neighborhood!” Given that spin, would Rep. Smith vote to fund the Restoration of Rights panel for individuals? Would he try to explain this slightly complex legal situation to voters? I think it could be done in about 200 words. Would voters read and understand this? Voters are easily swayed by emotional appeals. Often, they do not read campaign ads very carefully and the mainstream media is not likely to help by clearly and fairly explaining the issue. So, it is easy to see why it is difficult to convince members of Congress to get behind restoring even nonviolent offenders’ rights.

Therefore, perhaps the best hope for people like Range is that the courts will find some way to impose a duty on the ATF to make this happen. I would not hold my breath. The U.S. Supreme Court could conceivably strike down the current law in full (both for nonviolent criminals and violent felons), hoping to force Congress to revise the law more narrowly with respect to nonviolent felons and misdemeanants. But, though overturning this law in full would restore rights to many like Range, it could also restore gun rights to many who are dangerous. The Court would be understandably loath to do that. So, without an honest public debate on this issue, it’s unlikely that Congress will take a fair and nuanced approach to get this law right.

Amy Swearer, a legal fellow with The Heritage Foundation, wrote in a 2018 Heritage Legal Memorandum,  “the Supreme Court’s decisions in D.C. v. Heller (2008) and McDonald v. City of Chicago (2010) should have called into serious question laws that strip Americans of their right to keep and bear arms merely because they were convicted of nonviolent felonies. However, in the years following those cases, lower courts nonetheless routinely used inappropriate interest-balancing tests to continue upholding lifetime gun bans for people who never presented a risk of violence (like Martha Stewart, for example).”

Though interest-balancing tests were called into question by Bruen, this ruling still needs to be applied to this facet of Second Amendment law. As this happens, gun-control proponents are sure to point out that the U.S. Supreme Court’s Heller decision said that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Still, Second Amendment supporters will make the clear point that federal law did not disqualify nonviolent offenders, such as people like Range, until 1968, more than 170 years after the Second Amendment was ratified. Therefore, however you look at this issue, this revocation of rights can’t be called a longstanding prohibition by constitutional standards.

As you can see, the fight for freedom is ongoing. The anti-gun side is only rational in the sense that they want to take this right away from as many people as possible. They see disarming even nonviolent people who just want to defend themselves, to shoot for sport or to go hunting as a good thing.


U.S. supreme Court

The High Court Takes a Case
Last June, the U.S. supreme Court opted to take a case asking whether people subject to domestic-violence protective orders have a Second Amendment right to be armed. This case will give the Court the opportunity to say more about the scope of the Second Amendment. The court will hear the cases in this term that begins in October of 2023. This case is the result of a Biden administration appeal after a lower court threw out the conviction of an Arlington, Texas, man who possessed firearms while under a domestic-violence restraining order. Over the past year, lower courts, as they’ve applied the U.S . Supreme Court’s 2022 decision, New York State Rifle & Pistol Association v. Bruen, have issued conflicting rulings on whether the 1994 law is constitutional.

Last February, for example, a three-judge panel of the Fifth U.S. Circuit Court of Appeals ruled that the domestic-abuser law violated the Second Amendment. The defendant, “while hardly a model citizen, is nonetheless among ‘the people’ entitled to the Second Amendment’s guarantees,” wrote Judge Cory T. Wilson.

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