Gun Rights

Every person has the right to keep and bear arms. This is a fundamental right protected by the second amendment of the United States Constitution. This right, however, can be revoked or otherwise curtailed depending on constitutional laws that restrict that right. One such notable way of losing that right is being convicted of a felony under state law. In Montana, the constitution provides that your right to own and possess and firearm is restored when you successfully complete your sentence. However, under federal law, restoring your right to possess a firearm is not absolute and conditional.

Under 18 USC § 922, a person who is convicted of a crime punishable by imprisonment for a term exceeding one year loses his right to possess a firearm. There are other ways to lose the right to possess a firearm, such as,

  • being adjudicated as a mental defective;
  • discharged from the Armed Forces under dishonorable conditions;
  • having renounced citizenship;
  • being subject to an order restraining that person from stalking, harassing or threatening a partner or child where a hearing was held and the person received actual notice and opportunity to participate in the hearing;
  • being convicted of a crime of domestic violence.

However, even if a person is “convicted” of a crime punishable exceeding one year, there is a way to have your firearm rights restored. 18 USC § 921(33)(A)(ii) provides,

A person shall not be considered to have been convicted of such an offense for purposes of this chapter [18 USCS §§ 921 et seq.] if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

One federal court restated the law in this manner

Restoration of felon’s rights to vote, sit on jury and hold office, upon pardon or completion of sentence, is sufficient to reinstate felon’s civil rights for purposes of 18 USCS § 921(a)(20), regarding qualifying felony convictions for purposes of prosecution under 18 USCS § 922(g)(1) for possession of firearm by convicted felon. United States v Petersen (2003, DC Colo) 277 F Supp 2d 1089.

To be considered as having your rights restored under state law, a person would need an order from state court declaring your rights restored. See United States v Essig (1993, CA3 Pa) 10 F3d 968 and United States v Chenowith (2006, CA5 Tex) 459 F3d 635. The civil rights must be substantial (see Presley v United States (1988, CA8 Mo) 851 F2d 1052), including two or more (see United States v Thompson (2012, CA11 Ala) 702 F3d 604, 23 FLW Fed C 1711)) of the following rights: right to vote, serve on jury and hold public office (see United States v Cassidy (1990, CA6 Ohio) 899 F2d 543 [criticized by other federal decisions]).

Read this recent Van Der Hule (Ninth Circuit Court of Appeal) decision to get a better understanding of how federal courts interpret the federal law regarding federal firearm rights relative to state laws.

If you need an order from a state court in Montana declaring that your civil rights are restored, contact Tim Baldwin at Billings Legal, PLLC at (406)248-7000.