Second Amendment: Domestic Violence Misdemeanants Suffer More than Convicted Felons

by Tim Baldwin

The Second Amendment of the United States Constitution protects the people’s right to keep and bear arms. The issue of firearm possession and use was not highly regulated and litigated prior to the 20th century. Since then, state and federal governments have passed many laws regarding the use of firearms. Over the decades, the judiciary has ruled on many issues and explained how the state and federal legislatures may restrict the use of firearms. The judiciary has developed rules of constitutional construction to determine whether laws regulating firearms are constitutional or not. One federal law that has been litigated frequently is 18 USC 922.

Under 18 USC 922, Congress made it unlawful for persons convicted of felonies and misdemeanor domestic violence to own, possess, transport, and ship firearms (see definition of “firearm,” 18 USC 921(a)(3)). However, Congress carved out exemptions to this prohibition in 18 USC 921; namely, where the person has his conviction pardoned, set aside, expunged or had his civil rights completely restored. If the State imposes any restrictions on his right to possess a firearm (e.g. cannot carry concealed), his rights are not fully restored (see discussion below regarding carry concealed permit).

This exemption clause raises a big question, particularly for people convicted of misdemeanor domestic violence (misdemeanants). That issue is this: what if the misdemeanor conviction for domestic violence does not divest or affect the rights of the person? In other words, what happens to the misdemeanant’s ability to “restore his civil rights” when his rights were never divested in the first place?

The misdemeanant can qualify for the exemption clause, but not on the basis that his rights were restored. Instead, he may qualify under the exemption clause only if he receives a pardon, expungement or setting aside of the conviction. These options pose a big problem for the misdemeanant, however, because it is more difficult to get a pardon than it is to restore a person’s rights, and sometimes, expungement and setting aside convictions are impossible.

In many states, a convicted felon’s civil rights are automatically restored once he completes his sentence. For example, Montana’s constitution and statute state that a person whose civil rights are disabled due to a felony conviction has his rights automatically restored once he successfully completes his sentence.

Thus, if a person is convicted of, say, felony theft and he completes his sentence, his rights are automatically restored, and he can apply for a concealed weapon permit or purchase a firearm because his rights are restored and thus, he qualifies for the exemption clause under 18 USC 921.

However, Montana residents need to be aware of this: if the charge for which the person was convicted has an element of committing or attempting to commit one of the following acts, then he cannot obtain a concealed carry weapon permit (CCW) under Section 45-8-321, MCA: intentional homicide, serious bodily harm, unlawful restraint, sexual abuse, or sexual intercourse or contact without consent. This CCW restriction means that such a person convicted of committing one of those acts cannot qualify to own or possess a firearm under federal law, because his firearm rights are restricted. This means his civil rights have not been fully restored, and thus he does not meet the exemption under 18 USC 921.

Going back to the misdemeanant convicted of domestic violence: he cannot have his rights automatically restored because he never lost his civil rights. So, to meet the exemption clause, he must alternatively have his conviction pardoned, expunged, or set aside.

This takes affirmative action to petition the executive branch of the state government to pardon his conviction, or the judiciary branch to expunge or set aside his conviction. This is easier said than done and much more difficult than having one’s rights restored automatically by operation of law.

First, to receive a pardon, the misdemeanant must file a petition with the executive branch (each state has its own process). The governor has discretion on whether to pardon the conviction or not. As one can imagine, pardons are not given arbitrarily. Next, for expungements, the judiciary can do this only if state law permits it. Many states do not permit expunging convictions except in limited circumstances. Finally, to set aside a conviction, there must be some constitutional or legal grounds to request this from the court; for example, the defendant did not enter his plea of guilty “freely, voluntarily and knowingly,” the sentence imposed was illegal or there was some fundamental unfairness. As one can imagine, proving these elements to set aside a conviction is very difficult.

This leaves the misdemeanant with the primary and perhaps only option of petitioning for a pardon. The chances of success with receiving a pardon are obviously lower than the convicted felon who has his rights automatically restored.

This disparity seems fundamentally unfair, but the Ninth Circuit Court of Appeals confirmed that it is constitutional. Here is what the court said in U.S. v. Chovan on the issue.

We rejected Brailey’s argument, concluding that his civil rights had never been “lost” because his misdemeanor conviction had not taken away his “core civil rights”: the right to vote, to sit as a juror, or to hold public office. Because Brailey’s civil rights had never been lost, we reasoned that they could not have been restored. We noted that most other circuits had also concluded that, “where civil rights are not divested for misdemeanor convictions, a person convicted of a misdemeanor crime of domestic violence cannot benefit from the federal restoration exception.” Thus, we concluded that Brailey failed to meet § 922(g)(9)’s civil rights restored exception

United States v. Chovan, 735 F.3d 1127, 2013 U.S. App. LEXIS 23199, 2013 WL 6050914 (9th Cir. Cal. 2013) (citations omitted). The Chovan court continued its analysis of this issue, stating,

Applying rational basis review, we rejected Hancock’s equal protection claim. First, we explained that when Congress enacted § 922(g)(9), it “was aware of the discrepancies in state procedures for revoking and restoring civil rights . . . . [D]isparate treatment of some offenders was the inevitable result of Congress’ decision to ‘look to state law to define the restoration exception.'”  Second, we noted that in addition to the civil rights restored exception, § 922(g)(9) provides “several adequate legal mechanisms” for which both misdemeanants and felons can qualify: “pardon, expungement, and setting aside of convictions.” Viewing the two exceptions together, we found that “Congress reasonably could conclude that felons who had been through a state‘s restoration process and had regained their civil rights . . . were more fit to own firearms than domesticviolence misdemeanants who had not had their convictions expunged or been pardoned.” Id. We therefore upheld the civil rights restored exception under rational basis review as at least “minimally rational.”

Here, we apply Brailey and conclude that Chovan’s 1996 misdemeanor domestic violence conviction did not divest him of civil rights because it did not divest him of the right to vote, the right to serve on a jury, or the right to hold public office. Because Chovan never lost these “core” civil rights, he cannot qualify for the civil rights restored exception to § 922(g)(9). Further, we reject Chovan’s argument that the civil rights restored exception violates the Equal Protection Clause for the same reasons we articulated in Hancock.

(citations omitted).

To recap, a convicted felon (in states were rights are automatically restored upon completion of his sentence) is in a better position to meet the exemption clause under 18 USC 921 than a misdemeanant convicted of domestic violence (in states where the conviction does not divest the misdemeanant of his civil rights). While the misdemeanant may still seek the other exemptions (pardon, expungement, setting aside conviction) if available under state law, the chances of success are less than the automatic restoration of civil rights allowed by some states (e.g. Montana).

For convicted felons who are denied a CCW or purchase of a firearm, the denial may be illegal or unconstitutional, depending on the circumstances. There are ways of challenging and appealing these denials, but they must be determined on a case by case basis.

If you need to consult with an attorney on your gun rights, call Tim Baldwin (406-248-7000) or email him at timbaldwin@outlook.com.