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July 27, 2008

New federal bill seeking to restore some felons' gun rights

Because I expect continued litigation and uncertainty about felon gun rights in the wake of Heller, I am very pleased to discover this new press release indicating that at least one member of Congress is eager to address these matters head-on through new legislation (with the backing of the National Rifle Association).  The press release comes from the office of US Congressman Bart Stupak from Michigan, and here are excerpts:

U.S. Congressman Bart Stupak (D-Menominee) has introduced legislation to restore the gun rights of individuals convicted of minor, non-violent crimes.  H.R. 6622, the Second Amendment Restoration Act, ensures states have the discretion to restore individuals’ gun rights after conviction of minor crimes.  The National Rifle Association (NRA) endorsed the legislation this week.

“The Second Amendment provides for the right to bear arms and individuals should not forfeit that right due to convictions for minor crimes,” Stupak said.  “I appreciate the support of the NRA as I attempt to clarify that individuals convicted of minor crimes decades ago should not be subject to lifetime bans on gun ownership.”...

The issue was brought to Stupak’s attention by a constituent who, now in his mid-50s, was convicted in 1971 of entering a non-occupied building.  He was 18 at the time and the building was a deer camp.  He completed his probation in 1972.  In 2003, he applied to the county gun board to have his right to own a firearm restored.  But because the 1971 crime he was convicted of was a minor, non-violent crime, he is still denied the right to own a handgun under Michigan law and therefore no gun rights can be afforded to him. 

The NRA's letter of support for the Second Amendment Restoration Act is available at this link.  The NRA letter includes these notable sentences:  "To be absolutely clear, the NRA believes it is both constitutional and appropriate to disarm convicted felons.  However, we also believe that no person should lose the right to arms due to convictions for minor, non-violent crimes, especially those that occurred many years in the past."

This effort to restore some felon gun rights and the endorsement of the NRA strikes me as quite notable and important.  Moreover, because these matters will be subject to lots of constitutional litigation in the wake of Heller, Congressman Stupak should be lauded for trying to get out in front of these issues through legislation.  I hope other members of Congress will see the good sense of a bill like this in the wake of Heller.

Some related post-Heller posts:

July 27, 2008 at 11:44 AM | Permalink

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Comments

It's a start

Posted by: beth curtis | Jul 27, 2008 2:05:57 PM

Who cares? This is all about promoting the NRA myth that more guns leads to more safety. The point is that the felon/nonfelon distinction is flawed - not just in the context of gun rights. More guns on the street - only in this land is that a good thing. How about ensuring a process for restoring voting rights - at least federal voting rights - to felons?

Posted by: John | Jul 27, 2008 3:19:21 PM

Two points. First, I did not understand the part of the press release excerpted here to say that the proposed legislation would restore gun rights to any felon. Of course we'd have to see the test of the draft legislation to know for sure what is included and what isn't.

Second, the fact that this is addressed by new legislation suggests, although it does not prove, that it will be up to Congress to get it done. That is probably correct. Although there will be lots of Heller-related litigation, I think the Heller dictum about the decision's not affecting felon-in-possession laws is for practical purposes fatal to the prospects for these suits.

Posted by: Bill Otis | Jul 27, 2008 4:12:59 PM

I applaud Congressman Stupak for introducing this legislation. If it has been years since your non violent felony and you have paid your debt you should be afforded the opportunity to excercise your second amendment rights. It will be interesting to see what types of crimes will be included/excluded. Isn't this very similiar to what the ATF use to do at the federal level and now if successful will be done at the state level?

Posted by: BS | Jul 27, 2008 7:15:41 PM

This is good news for citizens with non-violent antiquated convicitons. I hope it passes. I especially like the part that would restore gun rights to misdemeanor offenders who never lost any civil rights and have no releive under 18 U.S.C. 921 (a) (20) as a result. It's rediculous that a felon can have civil rights restored but a misdemeanor offender can't.

Posted by: Paul | Jul 28, 2008 9:03:58 AM

If this issue gets litigated instead of changed by legislation, it could be an interested mini case study of stare decisis. I would like to see how the "liberal" justices would handle such a case. Would they acknowledge Heller but limit it as Bill suggests? Would they acknowledge Heller and go further to expand Second Amendment rights to some convicts? Would they simply continue to deny Heller?

Posted by: Nathan | Jul 28, 2008 9:30:45 AM

I read the bill and this is what it says:

SEC. 2. LIMITED RESTORATION OF FIREARMS RIGHTS UNDER STATE LAW.

(a) In General- Section 921(a)(20) of title 18, United States Code, is amended to read as follows:

`(20) The term `crime punishable by imprisonment for a term exceeding one year' does not include--

`(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices; or

`(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of 2 years or less, or by an indeterminate sentence.

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged or set aside, or for which a person has been pardoned, has had civil rights restored, or has not lost civil rights, shall not be considered a conviction for purposes of this chapter, except to the extent that the pardon, expungement, or restoration of civil rights, or State or Federal law, expressly provides that the person may not ship, transport, possess, or receive any firearm.'.

(b) Applicability- The amendment made by subsection (a) shall apply to proceedings brought or pending before, on, or after the date of the enactment of this Act.


It doesn't do anything for non-violent felons with old convictions in which the state has restored gun rights but has not restored civil rights essentially. I was hoping it would restore their right to have a gun in cases where the state only restores gun rights but nothing else. I mean if a state restores a right to have a gun doesn't that say the person is trustworthy enough?

Posted by: Paul | Jul 28, 2008 9:56:16 AM

Nathan:

I doubt the liberal justices are going to give felons any help here -- they have bigger fish to fry. They didn't like the result to begin with, and they do like gun control. The justices in the majority aren't going to change either. How are they going to reverse course on dictum they already signed onto? And my guess is that it wasn't just loose talk, either. I suspect it was put in as an extra inducement to get Kennedy's vote.

If there is to be any change in the felon-in-possession laws, it's going to have to come via legislation. That is also going to be a tough sell, but not as tough as trying to do this through the courts.

The basic problem is that loosening the restrictions on the felon-in-possession rule has only a very narrow constituency. The liberals might like to go with it as a "civil rights" issue, but after years of insisting that gun ownership is not a civil right FOR ANYONE, they're going to have some trouble keeping a straight face. The conservatives will be happy enough enjoying gun ownership rights for the 99% or the population who are not convicted felons. So I think the most likely outcome is no change in the status quo.

Posted by: Bill Otis | Jul 28, 2008 10:06:46 AM

The rights of the accused and ex-convicts absolutely must be addressed and changed. In some states, the certain ex-convicts are denied the right to vote, which is a basic Constitutional right. While people have varying opinions on who should own a gun, a non-violent offender shouldn't be denied the same rights as other citizens. Should someone in jail for computer fraud be denied the rights given to other citizens?

Posted by: Joe | Jul 28, 2008 11:07:25 AM

Bill's point is well-taken, and I suspect that the felon-in-possession issue will play out this way when and if it reaches the Supreme Court.

That said, it's not clear me why this should be the case. I find it very difficult to reconcile broad-based felon-in-possession laws with the reasoning in Heller. The presence of the dicta is not a very strong argument, given that:

(1) The dicta does not pretend to decide the issue (it only states that Heller, by itself, does not compel the result).

(2) In any case, the felon-in-possession issue was not argued, and the dictum is not supported any citation or real argument (BTW, isn't that what Scalia criticized Miller for doing?)
and

(3) Justices "reverse course" on their dicta all the time.

Posted by: rn | Jul 28, 2008 1:35:41 PM

i believe non-violent criminals as long as in police report nothing was said that the convicted criminal had a gun if you had a gun its no telling if you would of used it but you had no gun it was for protection w-o /a gun you werer convicted of a low glass felony then i say yes you should own a gun after all your rights for civil and constitutional even voteing rights were restored then yes you should be ableb to own a gun its not even considered a violent crime by any nature and lawyers the d.a. the judge said i see no repeatment you ment well. then i believe you should be able to own a gun

Posted by: | Jul 28, 2008 9:10:07 PM

I read the proposed bill that Paul posted to also overturn the Lautenburg amendment.

Posted by: Mike | Jul 29, 2008 9:00:54 AM

Non attorney, ex federal felon 18. 922 G8: Now that Congress has invaded family court I am sure there could be more than 300, thousand new federal felons each year if all protective orders were enforced. The unpleasant fact that many persons, mostly fathers do not know once they agree to a protective order, so they can see their children that have lost their rights to firearms. A person who is subjected to a federal prosecution per a predicate state court order cannot attack that order on constitutional grounds

Posted by: larry | Aug 14, 2008 3:59:27 PM

help for the Blind lwc95661@comcase. net

In closing It is no longer nor was it ever good law to issue protective order that took Campbell’ constitutional rights away to firearms to protect himself based on a state court process that did not require any proof of Harm per Heller
The second amendment has the some protection as any other part of the bill of rights,

Heller is not a new rule; Heller has affirmed the long history of this country to ensure the people the right to protect themselves in their Homes
Verification per Campbell blindness, 20/ 400 Campbell has read the above to the best of his abilities as a person who is blind and declares the above is true and correct and does so
under penalty of Perjury

Set this Matter for hearing in a court Campbell has physical access to the programs and services that will provide a meaningful opportunity to be heard on this Matter

Larry W. Campbell 8/15/08

Posted by: larry | Aug 15, 2008 3:27:31 PM

Lewis v. U.S. (1980)
Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 forbids the possession of firearms by a convicted felon. Lewis, the petitioner, was convicted of a felony in a 1961 state court "for breaking and entering with intent to commit a misdemeanor". In 1977, in Virginia, Lewis was charged with receiving and possessing a firearm in violation of the above act. Lewis, claimed his latest conviction violated the Fifth and Sixth Amendments because he had no counsel present during his 1961 trial.
The court upheld Lewis' conviction, holding:
(a)...the fact that there are remedies available to a convicted felon - removal of the firearm disability by a qualifying pardon or the Secretary of the Treasury's consent, as specified in the Act, or a challenge to the prior conviction in an appropriate court proceeding - suggests that Congress intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress' purpose to keep firearms away from persons classified as potentially irresponsible and dangerous.
(b) The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment, since Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm. And use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by criminal sanction, is not inconsistent with Burgett v. Texas, 389 U.S. 109; United States v. Tucker, 404 U.S. 443; and Loper v. Beto, 405 U.S. 473.
In a footnote the court stated:

Posted by: bad news | Aug 20, 2008 9:35:15 PM

I want to get a pardon with my gun rights restored, I was convicted in 1978 of Possession of a Controlled Substance in virginia, when I was 18 30 years ago, I need help and I dont think I should pay for this the rest of my life. if anyone can help my email is... [email protected]

Posted by: gary hilll | Sep 3, 2008 4:09:38 PM

how difficult, if at all possible, would it be for me to have my gun rights restored in illinois? i have a felony conviction there thats 8 years old and am now living in arizona but when i recently tried to purchace a gun i didnt pass the nics check. any ideas?

Posted by: casey vogel | Mar 4, 2009 3:35:13 PM

I have been convicted of a few non violent crimes, felonies, I have been handicaped since 1997 and have old crimes. I'm a father of three girls that love the nature and hunting, I have assisted the two oldest in hunters safety. They love to shoot clay pigons and plink with the 22's. I would love to have some good memories of us on some great hunts. I go and do so and hope and pray that all go's well with the long arm, I buy licences and do teach them the rules and laws of the hunts and guns, the right and wrongs of firearms. I think it is a much safer place since I have tought them firearm safety and think it is better to be smart and aware of firearms and look forward to pass it on to them, mabye for there safety one day. I live in Mich and would like to know if there is anything or what steps to take to get my rights back, or if I have a snow balls chance in doing so. Thank You, Robert, Terri, Tara, Emma.

Posted by: Robert Walker | Jan 16, 2012 3:23:26 AM

to respond contact me at.... [email protected] Thanks again.

Posted by: Robert Walker | Jan 16, 2012 3:26:01 AM

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