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Felons and Gun Possession? A Question of Rights

We need to tackle tough topics sometimes, and the question of convicted felons possessing firearms is one such topic.

felon possession handgun

Should Felons Possess Firearms:

I think there are two different ways to look at the topic.

For lack of a better description, the first is a moral (I just feel) opinion. In other words, if no law prohibits it, should felons be able to possess a firearm?

The second is a legal (what does the law say) argument. Here, we take a general look at the complicated state and federal laws that impact the felon and their possession of a firearm.

The Morality Opinion:

We all have biases. Some we are aware of, and others maybe not. So be honest with yourself and truthfully answer the question:

If no laws were prohibiting it, should felons be allowed to possess firearms?

Some likely responded simply with a “yes” or “no answer. But for many, their answer requires some more explanation.

LBBS book

Convicted Felons Should Not Possess Firearms:

Those on this side don't necessarily make a legal argument. But, essentially, the view is that people who commit felonies have shown a lack of self-control and willingness to follow the law.

They have violated the civic agreement to follow the rules (law) willingly. And because firearms have the potential for misuse for evil purposes, felons can't be trusted with them.

Convicted Felons Should Possess Firearms:

felon in possession of firearm

If self-defense is really a God-given right, then anyone can possess a firearm for self-defense. Right? They argue, why just remove a convicted felon's 2nd Amendment rights; what about stripping their right to free speech or due process under the law, or any other right?

Additionally, sometimes people violate the law unknowingly. These folks are morally no different from those who unknowingly violate a law but don't get caught.

What Does The Law Say About the Matter?

First, it is essential to understand that both federal and state laws have a bearing on gun rights for convicted felons.

The federal law that bans convicted felons from possessing firearms is the Gun Control Act of 1968.

The relevant section is U.S.C. 922 (g).

gun control act 1968

We can see that in addition to convicted felons, the law strips other groups of their right to possess a firearm. Some include:

  • who, having been a citizen of the United States has renounced his citizenship
  • who has been discharged from the Armed Forces under dishonorable conditions
  • an illegal alien
  • who has been convicted in any court of a misdemeanor crime of domestic violence

There is no one hard and fast rule when it comes to how states address the issue.

Some states have laws that mirror the federal law exactly. On the other side, some do not have laws that prohibit a felon from possessing a firearm.

Many take the approach of identifying only particular felony (and misdemeanor domestic violence) convictions as the ones that impact gun rights. Other felony convictions (usually non-violent crimes) are not defacto 2A killers.

Are the Laws and Penalties Just?

The goal of any law should be to benefit/protect the citizens while imposing the very lightest restriction on an individual's freedom. A quote attributed to Thomas Jefferson captures this view:

I prefer dangerous freedom over peaceful slavery

Jefferson was part of the government, so it doesn't make sense to see Jefferson calling for the total abolition of the U.S. Government. But instead that there is a certain point where the laws enacted to protect are essentially imprisoning us and stripping our very freedoms.

felon gun rights

It is Injustice:

Folks in this camp argue the law is overreaching and includes people who pose no danger to their fellow countrymen. Furthermore, because federal law doesn't distinguish between violent and non-violent felony crimes, a lifetime gun prohibition for a felony theft charge is excessive.

Another point is the broad definition of “possession”. Legally speaking, someone can be in possession of a firearm, without ever touching it.

For example: a felon lives with a person who is not a felon and is not prohibited from possessing a firearm. If the felon knows there is a gun in the home and has access to it, that satisfies the requirement called constructive possession.

In the same way, if a felon has a firearm under the driver's seat, he is constructive possession of the gun.

It is Just:

The old adage, don't do the crime if you can't do the time comes up when looking at the question through this lens. A ruling in the 3rd Circut Federal Court of Appeals in Binderup v. A.G. of United States tied the right to bear arms to the concept of a “virtuous citizenry” and that, accordingly, the government could disarm “unvirtuous citizens.”

Some agree with the law's reach but think the Second Amendment right should automatically return when the person has “paid their debt to society.”

And, some contend, if convicted felons really want their Second Amendment rights restored, there is a legal process to do that.

In some states, the law allows a felon to possess a firearm only while inside their home. This compromise, for some, is a good balance.

However, others argue it is an acknowledgment that self-defense is fundamental while prohibiting the person from fully exercising the right.

concealed carry reciprocity app

Reinstating Gun Rights for Convicted Felons:

Convicted felons have a legal route to restore their Second Amendment rights on both federal and state levels.

Federally:

On the federal side, it is nearly impossible. The process does not go through a federal court but rather is an application to the Federal Bureau of Alcohol, Tobacco, and Firearms (ATF). If ATF denies the request, the person can seek judicial review in a federal courthouse.

The first problem with this method is bureaucrats appointed by presidents run the ATF, making it an inherently political assignment, no matter how objective someone says they are. Take, for example, the David Chipman fiasco.

Secondly, hiring an attorney to help with the process is too much of a financial burden for most.

Thirdly, and probably the most damaging is since 1992, congress prohibits the ATF from spending money to review gun rights restoration applications. The U.S. Supreme Court ruled essentially that no ATF response to these requests does not equal a denial. Meaning there is no trigger to allow the person to apply for the judicial review: the only option, a presidential pardon.

Guess who is and who isn't going to get one of those?

States:

Individual states handle the restoration of convicted felons' gun rights differently.

Some automatically restore all rights suspended while the person was serving their punishment, including, in some states, any civil and legal fines owed to victims.

Others provide a straightforward path to restore their right to possess a firearm legally.

Unfortunately, any legal route is expensive and takes time.

An important note is that outstanding legal issues, including fines in other states, must be satisfied before states can restore gun rights.

A Point on Military Veterans and Discharges:

As a veteran, I wanted to mention the implications for veterans with dishonorable discharges or convictions under the Uniform Code of Military Justice (UCMJ). Federal law recognizes criminal convictions that are felonies under the UCMJ as the same as any other criminal felony conviction. So that means the veteran loses his gun rights.

Consider the thousands of military members who are now receiving dishonorable discharges from the military for refusing the jab. Many of whom have served honorably in combat; these folks are not allowed to possess a firearm anymore. It's the law.

Regardless of where you stand on the shot issue, is this serving the public in any way? Is the law doing what it is intended to do?

Wrapping Up:

I am not an attorney and am not giving legal advice. However, I will advise that you find an attorney who has expertise in this specific field if you need your gun rights restored. I tend to think this is a blind spot in gun owners fight against restrictive control legislation.

Feel free to leave a comment on this important issue. Think about it from all points of view and see if your opinion has changed over the years.

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16 Responses to Felons and Gun Possession? A Question of Rights

  1. Mike Schuttler November 3, 2021 at 5:30 pm #

    Too bad you didn’t set up a poll to see what people think. YES. NO.

  2. BOB MANNING November 3, 2021 at 6:13 pm #

    A person background is a good start, IF they are a repeat A FENDER, NO THEY should no have a gun period!! Have owned since 10yr.old never had a problem
    BUT I think democrat agenda harms AMERICA rights and allows criminals to go unchecked and judges do the same as Democrats agenda . they allow crime to prevail
    just look at the democrat run states there crime way out of control, Look at FBI crime
    agenda shows dem. states are bad OREGON,WASHINGTON, AND EASTERN RUN STATES BUY DEMS THEY DO NOT CARE,THEY CAN GET GUN CONTROL FOR ALL RED FLAG LAW PASSED!! SO THIS HAS TO CHANGE AND TURN TO RED STATE TO BE ABLE TO STOP CRIME, AND PUNISH FELONS !!! Also judges to punish crime and not just slap on the hand!! then allowed back into the public, to start over and over!!!!!

  3. TK Miller November 3, 2021 at 6:45 pm #

    I am an Honorable Discharge Veteran from the Army and Navy. I was convicted of a misdemeanor domestic violence charge in 2000 and was informed by the judge that after ten years my gun rights would be automatically reinstated and I could purchase and possess a firearm. Although here it is 2021 and I am still unable to get my 2nd amendment rights back.
    I tried to get a Governor’s pardon as was informed that the Governor doesn’t pardon misdemeanors.

    My question is how the heck do I get my rights back

    Not right that a Felon has the ability to get theirs yet I have no way to get mine because I can’t afford to pay thousands of dollars to a lawyer and risk still getting turned down.

    What if anything can I do?

  4. Arthur November 3, 2021 at 6:47 pm #

    He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.

    The truth is, one who seeks to achieve freedom by petitioning those in power to give it to him has already failed, regardless of the response.
    To beg for the blessing of “authority” is to accept that the choice is the master’s alone to make, which means that the person is already, by definition, a slave.

    • Caleb954 November 7, 2021 at 5:44 am #

      Perfectly stated

  5. I. Cepeda November 3, 2021 at 7:43 pm #

    I believe if the person paid his or her debt. Plus successfully completing parole or probation. An addition to that, stays out of trouble with the law for an additional 5years. Then they should have the right to bare arms and also do armed security work. People do learn from their mistakes. Especially knowing there is no 3rd chance allowed.

  6. Edwin T Lee November 3, 2021 at 7:49 pm #

    Convicted felon and dishonorable discharge began as proxies for Black Americans as both categories affect a higher percentage of Black Americans. Neither, as applied to non-violent offenses, can rationally be a significant help to public safety. All of the prohibited person categories are fantasies and serve only as additional punishment–endangering lives by depriving people of self and public defense, although everyone knows that active criminals can buy firearms through drug dealers.

  7. Jim November 3, 2021 at 8:26 pm #

    “It depends” is my answer to the question. The case of military service members being dishonorably discharged for rejecting the Covid jab, turning them into instant felons, is emblematic of one-size-fits-all laws. Life in our fallen world is full of gray areas; forcing every human law to be black and white denotes laziness. Some work that way for everyone while others destroy lives by their inflexibility.

  8. Darcy November 3, 2021 at 10:40 pm #

    No one’s rights should EVER be removed, for any reason. Nothing in the constitution allows or suggests that certain classes of citizens should have their rights removed. The administering of programs is done by people. Whenever people are involved, mistakes and biases are destined to occur.

    Want to make retention of rights fair? Punish those that violate laws and abuse these rights severely. There is still an opportunity to get it wrong, but at least it allows for individual application of the punishment. There is no one size fits all solution.

  9. Mike November 4, 2021 at 1:41 am #

    Rights are too important to take lightly. All other “God given” rights, like 1st, (Freedom of speech) 4th (freedom from unreasonable searches) due process, right to vote, etc are restored after conviction, sentence, probation and parole. So also should gun rights. And they were prior to the gun control act of 1968. The National Firearms Act of 1934, the Gun Control Act of 1968 (and others) should have been struck down by the US Supreme Court. We no longer have some of the important freedoms that Americans in the past have enjoyed. Americans shouldn’t take the loss of their rights lightly and the US Constitution wasn’t designed so that you only accept, support and follow the rights you agree with. They were designed to be a protection of THE PEOPLE from abuses by our government. Too many people don’t have the most basic understanding of our rights and just how precious they really are. America is in real trouble and so many haven’t a clue. These ignorant people may not even be worthy of them for they don’t seem to value them, but they have been gifted them and paid for by and with the blood of our forefathers. It is truly sad.

  10. Dar November 4, 2021 at 9:59 am #

    If they are a convicted felon and had prison time they should not be able to purchase a weapon. Also we need to come up with a way to get mental patients into the system that would prevent they from having any weapons!

  11. Paul November 4, 2021 at 10:52 am #

    Convicted of a Felony non violent drug offence in 1983..was on probation until I paid the fine. paid if off in 1995 and as a condition of release from probation I had all my right restored except for owning a gun. But it stated that if I am in no trouble for 10 years after being released from probation 100% of my right were restored..I have a CCW and own multiple pistols and rifles Legally. Just had to wait and be patient.

  12. Theodore A Perry November 4, 2021 at 12:53 pm #

    Just as above, the law took his fire arms and the law restored his right…We are a country of laws…Without law we are in serious trouble…A black man dies at the hands of law enforcement and justice was served…At the same time business was looted and burned to the ground…Those are broken laws….Where is that justice…Seattle drug stores forced to close because of high amounts of theft…Where are those laws…? It’s all about the fair distribution and enactment of the law…

  13. B.Zerker November 4, 2021 at 4:25 pm #

    I believe the law (federal and states’) should go back to 120 of so years ago. If one committed a truly heinous crime (murder, rape, treason, horse [car nowadays] theft, etc.), the gallows is where he/she ended up. Back then the punishment fit the crime – and there was surely NO recidivism by that particular perp. A gallows in every county seat’s town square across this republic would also be a deterrent. We’ve all seen the westerns where the bad guy convicted of a felony gets out of prison for a felony and the warden hands him back his Army Colt and rig at the gate – all rights restored after completing his punishment. That’s the way it should be now with no-violent criminals because they’ve paid for their crime(s).

  14. Chuck S. January 5, 2022 at 7:43 am #

    I have one violent felony conviction in 1970. Since then I have served in both the army (1/6th Infantry reg) and the reserves. I held a DoD security clearance for thirty years except for a period of 7 months after the Smith Amendment denied all security clearances for felons. I appealed the decision instead of taking early retirement and was granted an exemption by the Secretary of the Navy. After that period my career pretty much stagnated and I retired with 30 in. And, of course I can’t own a firearm legally, though after a background check I was approved for a state black powder muzzle loading only permit. At no time have I been unable to obtain a firearm, and as both an ex-employee of a company that manufactured M-60s and parts for M-16s and 20MM as well as my second MOS of supply clerk/armorer I could always cobble up something if I so desired..
    My point is that, aside from producing a lot of resentment, I can see no benifit to the long-term federal ban for the general public.

  15. Chuck S. January 5, 2022 at 7:49 am #

    Addit – It does serve to give a few those who have not been denied a way to identify those who have and emphasize their moral superiority to their fellows.

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