New Legislation Regarding the Restoration of Felons’ Gun Rights

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I’ve blogged previously about the Britt and Whitaker cases. Britt held that a particular convicted felon retained his right to bear arms under the state constitution, and that G.S. 14-415.1 — which purports to prohibit all felons from possessing firearms — was unconstitutional as applied to him. Whitaker rejected a similar claim made by another convicted felon and made clear that Britt was an exceptional result, driven by the fact that  the plaintiff in Britt had committed a single, non-violent felony many years earlier, and had since remained completely out of trouble.

Rather than wait for the courts to accumulate case law about which felons are entitled to possess guns and which are not, the General Assembly jumped into the issue during the just-concluded session. It enacted S.L. 2010-108, which attempts to clarify and limit the circumstances under which felons may retain or regain their gun rights. The statute appears to be consistent with the thrust of Britt and Whitaker, although I am sure that it will be challenged by someone who falls outside its scope.

My colleague John Rubin has drafted the following excellent summary of the legislation, for those interested in a bit more detail. I grateful for his willingness to share it:

[The law] [a]mends various statutes, described below, to allow people convicted of certain felonies to apply for restoration of the right to possess firearms and to create an exception from the firearm restrictions for certain white collar criminal convictions. Provides that changes become effective February 1, 2011, and apply to offenses committed on or after that date. Also directs North Carolina Attorney General, effective July 20, 2010, to request the U.S. Department of Justice and other federal agencies to review these changes and determine whether a person who qualifies under them may purchase and possess a firearm under federal firearms restrictions.

New G.S. 14-415.4 contains the new restoration procedures. The new statute gives the responsibility for hearing restoration petitions to the district court in the district where the person resides. New G.S. 14-415.4(i) states that restoration does not constitute an expunction or pardon, and G.S. 14-415.4(l) states that the knowing and willful submission of false information is a Class 1 misdemeanor and permanently bars restoration of firearm rights.

The initial prerequisite for restoration is that the person must have no more than one conviction for a “nonviolent felony,” which does not include any Class A, B1, or B2 felony or any Class C through I felony that involves an assault as an essential element, possession or use of a firearm or deadly weapon as an essential or nonessential element, or other specified circumstances. Multiple nonviolent felony convictions arising out of the same event and consolidated for sentencing count as one felony. A person is ineligible for restoration for various reasons listed in the statute, including having been adjudicated guilty of or having received a prayer for judgment continued or a suspended sentence for one or more misdemeanor crimes of violence or other listed misdemeanors. To obtain restoration, the person must have had their civil rights restored for at least 20 years, which typically occurs automatically under G.S. 13-1 following a person’s completion of all incidents of his or her sentence. The new statute also states that a person who was convicted of a nonviolent felony in another jurisdiction is eligible for restoration if his or her civil rights, including the right to possess a firearm, have been restored for at least 20 years in the other jurisdiction; this provision may inadvertently make the waiting period for restoration of firearm rights in North Carolina considerably longer for people with convictions from other jurisdictions because they may not be able to obtain restoration of their firearm rights in the other jurisdiction for some time after their citizenship rights have been restored there. New G.S. 14-415.4 establishes other criteria a person must satisfy to obtain restoration of firearm rights, such as a one-year period of residency in North Carolina.

The act amends G.S. 14-415.1 (possession of firearm by a felon) to provide that a convicted felon whose firearm rights have been restored is not subject to the prohibition in that statute; similarly, the act amends G.S. 14-404(c) (handgun permits) and G.S. 14-415.12(b) (concealed handgun permits) to provide that people whose firearms rights have been restored are eligible to obtain the indicated permits if they meet the other criteria for issuance. The act also amends the above statutes to exempt from the firearms restrictions felony convictions pertaining to antitrust violations, unfair trade practices, or restraints of trade. People convicted of these felonies do not need to apply for restoration of their firearms rights (unless convicted of other nonviolent felonies); the changes exempt them from the firearms restrictions.

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446 comments on “New Legislation Regarding the Restoration of Felons’ Gun Rights”

  1. I was convicted of possession of marijuana for sales I was sentenced for 6 month 18 years ago now that I live in Texas can I purchase a handgun..

    • I have a class 2 felony from 1980 related to drug charges. I live in TX now. Tried to have it expunged online like a lawyer told me to but it says I don’t qualify. What do I have to do to get my gun rights back?

      • Hi I’m in the same boat, with a non-violent felony conviction 15 years ago, & you could hire an attorney to file a “post conviction writ of Habeas Corpus” IF you were convicted within 7 years (or so, according to the atty I talked with yesterday specializing in these writs), and also if there’s a reason to challenge the conviction, such as an unreasonable search & seizure etc. Your other option that I know of is to apply for clemancy, through a governor pardon, BUT I believe all of this needs to be done in the county of your conviction. https://www.tdcj.state.tx.us/bpp/forms/FP%20App.pdf

      • Meant to say to please let me know if you find any other way to eliminate your felony

        • Yes in some states for 3500 to $6,000 you can have your records sealed and closed

          • my records have been sealed and closed in north dakota does that give me the right to bear arms

      • Its been years of what happened to me but at this day and age our world is faling apart and all i want is for me and my family is to be safe iman x Marine and never in my lif ever bought or owned any kind ovf weapon. I was convicted of 1 felony bavk in 1974 and was sentenced to 5 years at T.D.C. it’s been 40 years and im been clean sense. Please let me know if im eligible to buy a hand gun to protect my home and family. Thank you

        • Depends on what state I’m a convicted felon I own fire arms they are blackpowder they are just as good

        • under Texas law 5 years after your completely clear you can own a weapon for home protection. but not according to federal law. but you can own a black powder revolver if its a replica of a 1889 model or older

    • I have had 2 felony charges with meth and I got my gun rights restored on my own. I went to the court house and filed a paper and it went through a board and I got them. As long as it’s been at least 5 years since your conviction.

      • How much did that cost you? And what state was that in?

      • What forms did you have to fill out and what state was it in?

      • What state were u in. I presently live in tn. But charge is from 96 in North ga. Moved to fla for years then back to tn. Been here almost 10 years with no new charges of any kind. Where can I really apply for my gun rights. I just want to be able to buy a deer hunting rifles legally and possess a carry permit. My charge was a possession charge and possession of an empty Derringer firarm

      • Yeah what state?? How much?? My non-violent felony was in 1979. Been a law abiding citizen since. Just wanna protect my family. Craziness is everywhere now.

  2. my conviction was in California 18 years agoI had no guns knives just a young kid selling marijuana

  3. I was convicted of selling a small amount of marijuana 40 years ago. I’ve been legally voting since the election of Jimmy Carter. I live in Missouri, and the case was in Missouri. Where do I stand in regard to gun ownership? Thank you.

    • If you live in MO it is up for debate as of 2015 going into 2016.
      Currently the answer is NO you can’t however hopefully that will change so ling as it is not a violent felony (depending on what they deem violent).
      Federal law however prohibits for life.

      • Certain felons can own black powder fire arms it’s your constitutional rights to bare arms and no one can take that from you

  4. How long do you have to wait to get rights back to own or buy a firearm is it 20 years I heard 10 years if some one knows about north carolina please email me back thanks.

    • Hey did you get a response to your question? I am wondering the same thing.

  5. I was charged under the convictiom felon laws for having a 1905 shot gun witch is a very old gun my wife father had I was rabbet hunting with it my crime happen in 1994 when I got out of prison the offer told me I could hunt with this gun and now I,m charge with this crime afther 7 years it is not right to keep pucthing me I,m 58 years old I do not have 20 years left I have not been no trought at all I work whrn I can find a job that will hire felons please help .

    • Pull up all your records and showing is telling after words file expungment anywhere from 250 to 2,500 it has to be worded right and filed right follow up on the courts, capital of your state records and your states state troopers

  6. I think California needs to address persons with violent intention or acted crimes when they remove ones right to hold a firearm. California only wants to increase their conviction rate by making non-violent persons guilty for accusations punishable by imprisonment. That’s one of the little ways California justifies paying prison guards top $$$$’s for “watching dangerous criminals”. California can take that criminal offense and shove it where the guards keep there spouses (in the closet). I will keep my knives, spears and long range string propelled devices right next to my 7mm b-action sniper rfl! you come for my gun and I’ll see and stop you from getting within 800 yards.

  7. i was convicted of several felonys in state or oregon for unlawful use of motor vechicle its been 12 years how long or what do i have to do to own a firearm

    • 10 years you only get one chance reach out too a lawyer to find out if you qualify for a true expungment

    • I HAD OREGON CONVICTION & ATF SENT ME A RELEASE TO OWN FIREARMS AFTER 5 YEARS OF BEING RELEASED FROM PRISON WILL I HAVE A PROBLEM WHEN I GO HUNTING?

  8. I had a 2nd degree felony in 1985 in Iowa I now live in florida have been here for 6 months,how or can I get my rights to carry a firearm in the state of florida,if so how dose one go about doing so. any body know? it was a none violent crime.

    • Terry

      I live in Florida also and I was told by the state that I had to apply for the right to own a gun in the state I was convicted in, but Fla. gave me all my other rights back except the one I really want.

  9. I was convicted of a class I felony Non violent in 2000 i remember the judge giving me back my guns ,then telling me N.C. doesn’t take away civil Rights. I know the law change in 2010 but can’t find anything for year 2000 can you help clear this up.

  10. My husband was convicted of poss of marijuana and thift by receiving one in Missouri and the other in Arkansas the last one was in 2005 what if any step can he take to get his civil rights back.

  11. How do I get my gun ownership rights back after giving up my medical marijuana license up?

  12. i am just concerned about having to take away a gun from a lawful owner to protect another from it,if i physically take one to save another am i still liable to be charged, not keeping it of course

  13. Had owi 3rd in iowa back in 1991 it was a felony I now live in wis where that offense is not classified as felony. Trying to figure out how to get my rights back

  14. I Plead NO Contest to a felony charge in Florida for a worthless check. I made restitution before trial and the Judge withheld adjudication. This was in 1995. I would like to get my 2A rights back.

    I live in Raleigh area.

    Thanks,

  15. lost gun rights, can I go shooting range ?

  16. I have a felony of aggravated assault and my probation is finished as of Feb 27,2015.I was accepted to vote on 07-22-2015.So,with that being said ,can I. Have my gun rights back?This is in Georgia.

  17. I was convicted of possession of cocaine only $20 worth and broke a too both were in 05 or 06 I grew up hunting with my father I have sons now and eld like to teach them to hunt and gun safety I eld also Luke right to bare arms to protect my family cld anyone give me advice

  18. I was convicted of sale of 5 grams of pot lawyer quit during my case and i was not even told about prayer for judgment i filled out all paper work and had my finger prints done for the sbi and fbi then was call by the concealed instructor saying a fed. Officer called wanted to know why i filled this out so she called my home once i told her our sheriff got me started on this process she asked if i had hired an attorney i said no because i was told after i payed my 38.00 for finger printing and 200.00 court costs i was just to apear in front of the judge to ask fir my gun rights back her answer was since i hadnt hired an attorney not to worry about the feds i have yet to pay the court cost seems hopeless i have a spotless record after all these years can you help in any way sure would like to feel free to hunt and on my firearms again thank you.

  19. I fogot to say my conviction was 23 years ago i apologize.

  20. I was sentenced in Oct 2009 for 1 count mail fraud and aiding and abetting charges in 2004. Federal court. Can I get my gun rights back now that I have served my time and probation is complete?

  21. Hi I am 49 now and back when I was 24 I got 5 DUI which made me a felon.And then 2 years later I was caught with a firearm by a felon. Now 23 years later can I buy a small handgun to protect my family with and get a carrying permit? Thank you

  22. I live in Georgia if that helps

  23. I was convicted of possession with intent to distribute marijuana in Ohio.This was back in 1985.This was a non violent crime and I haven’t had as much as a ticket since.I reside in Tennessee and Florida now so what do I have to do to get my right to bear arms back.Thank you very much Don

  24. Indiana has a two time conviction law on marijuana which gave me a D felony 14 years ago can I legally own a gun and get a carry permit to protect my family

  25. Does it matter what the felony is or no? In the state of Virginia a 2 bad checks over $100 in a three day period is a felony…that should not keep you from owning a gun when you live in NC, should it?

  26. I was incarcerated for a crime I did not do for18 years and 7 month’s and I can’t fine a lawyer to help me a person with nothing so I to can enjoy my rights can anyone help I’m in North Carolina

  27. Am I misunderstand the 2nd amendment right to the US constitution, it says the right to a well formed militia, the right of the people to keep and bear arms ,SHALL NOT BE INFRINGED UPON.

    • The problem is that the US Supreme Court, which is made up of political appointees , gets to decide what the wording of the Constitution and Bill of Rights really means . For example, the 10th amendment says that any issue or area not covered in the Constitution is a matter for the states and not the Federal government . Since nothing concerning drugs or medicine ( and many other items ) were not mentioned at all, one might think that there should be no DEA or federal drug laws .

      They get around the plain reading of the documents by ruling that since drugs can theoretically cross a state line , even if that never happens , it affects ” Interstate Commerce ” which is a category the Congress can regulate . One Justice ( Thomas ) said that the founding fathers were ” rolling over in their graves ” at the thought that a product wholly produced within a state and never crossing a state line could somehow affect interstate commerce . It is ludicrous .

      As long as politicians have agendas their appointed judges will have agendas . It is all politics .

  28. My felony was a non violent felony or its been 10 years since it happened I wonder if I can get my gun rights back here in Minnesota please let me know

  29. I had a second degree theft charge which was a deferred sentence in 1990 and was just recently denied a gun purchase. The return appeal letter said that my deferred judgement had not been satisfied. Is a governors clemency the only way to reinstate gun rights?

  30. My husband was convicted in Mississippi of Grand larceny, uttering forgery, two counts of burglary, conspiracy of burglary, 20 years ago and hasn’t even had a traffic ticket since, aside from a no seat belt. How would he go about getting his rights back?

  31. As a young man i had an car accident the left me a felon some years. after i thought i was doing the right thing by callinf someone who i thought was a friend to pick me uo because i was drunk he had other o objectives for picking me up. long story short i ended uo with a conspiracy. to)terrorism. i had the same prosecutorHe knew i didnt know anything about the law. he offered me)terrorism. as opposed. to instead of. discharging a firearm. Before my accident i was accepted to)school

    to become an accountant! i have a family know and cant defend them ! My elderly neighbots house was shot uo last week i think becsuse she calls the police when things get out of hand i felt helps because i could defend my falmily if those bullets had come threw my windows nor her for that matter . My family was asleep)at the time but there was a phone

    found in my yard. When i found out what had taken place i was shaken . Yes i am a ex felon am i or have i every been a danger to socity no . The circumstances surrounding my terriorism were anything but n attempt to hurt anyone. and had everything to)do)with a young man trying to)impress a young girl and ne er having seen a gun let a lone a plastic one And olled)friend !

  32. Can a person that pled no contest to CSC 2nd degree to get full custody of his son back. Which I did get him back. This happened back in94. And before or since have never had any other trouble in Mi. I now have lived in NM. for 5yrs. Can I get them back?

  33. I have a felony for attempted drug trafficking from 1995 an it’s now 2015. How can I get a gun permit to protect my family now? I live in ohio

  34. well thirty years ago in Orlando Fl i was charged with a felony defrauding a innkeeper, yes i know sounds crazy,.Florida with held adjudification, but that only restored most of my rights, but only in florida, but now living in massachuesetts,. for decades they allowed non violent felons the right to own and purchase firearms,. recently they changed the law sadly, but now i,m worried about having my firearms confiscated,or being charged with a serious felony

  35. I was convicted for felonious larceny in 1979 does does the state of North Carolina have a law reinstating your right to buy and possess a hand gun after 35 years.. If not is it possible to get my 2nd amendment rights reinstated??oh by the way way this was a non violent crime

  36. I was convicted on assault with GBI when I was 11 and I’m 31 now. I’ve had a couple nonviolent charges since then and have been off probation for a decade. Is it possible to get my rights restored?

  37. These politicians and legislators have broken the law not any of you, any general statue placed on the 2nd Amendment is an infringement. The right to protect yourself is inalienable, not from man, but from your creator, any hindrance placed on the 2nd is therefore illegal, these statutes are illegal and unconstitutional, the right to bear arms is right, not a privilege, you would need 38 states to ratify and repeal the 2nd to place any statue or law that hinders your right to keep and bear arms. Any person who tries to enforce these laws is breaking the very oath they swore to uphold!! I just don’t think it’s ever been challenged correctly!! But I’m about to!

  38. I been waitng 35 yrs to hunt with a gun again

  39. I have had my felony vacated and firearms rights restored in courts in state of Washington. I now live in Alaska and am unable to buy firearms here in Alaska, but can in Washington. Can I apply for a CCW permit in Alaska or am I going to run in to problems?

    • You pretty much answer your own question if you can’t buy guns in Alaska why would you think you could then get CCW permit? Pretty simple apply to have rights restored in Alaska. It’s a federal law so getting rights restored varies state by state. Meaning some states allow you to get restored particularly if non violent felony. However it’s still not restored on feds eyes. If you were to ever be on federal land and get popped you would be screwed. Or if dea atf any of those 3 letter agencies can prosecute you

  40. Victevis James Harvey i live in Indiana I was Convicted of Dealing meth what can I do to get my rights back to carry firearms my convicted was in 2002…

    M

    l

  41. Back in 1969 i was arrested for a butchers knife in my back pocket. Non violent just carrying it. It was called ccw. That was in wyoming mich. I am 64 now then i had just turned 18. I have been told by the batf that i can buy and own black powder as long as they take number 11 caps or flint lock. These guns are very fun and are great. But like anything else the price is very high. You could buy a kit for 79 dollars but now its like 200 dollars. But i can at least have one.

  42. I was convicted in 2000 of cashing a check that was paid to me for cleaning a house and come to find out it was stolen I was charged with forgery( which I still don’t see how) and uttering (BC I put it into circulation) I’ve never been in trouble since how much and how do I find out about getting a gun permit

  43. Can I get any of my right back was convicted of a nonviolent federal felony

  44. According to the Constitution of the US we all have the right to bear arms- no-one especially bunch of politicians and lairs for hire should be able to create laws state or Federal to change a mans right to protect himself, his family and his home.

  45. I am a life long Missouri resident and have a class D felony, persident offender dwi’s. It has been 17 years. Can I get my gun rights back.

  46. 20+ years ago I did 2 B&E I was bum 2 year pb pay all back. I like to hunt is there any hope?

  47. I have pled guilty to two counts of conspiracy back in 1990 it is now 2016 I got a 3,860.00 fine and three years probation I paid off the probation and got off two days later and since this happened I have moved to ga Houston county and have never been in trouble with the law since I have been living a free life of crime since and never been in trouble with the law involving any kind of weapon can I get my gun rights restored since I have not been in trouble with the law for over 20 something years now

  48. Sorry this happened in Monmouth county New jersey

  49. This has been posted around the internet.
    “I stand behind you in line at the store with a smile on my face… and a gun under my shirt and you are none the wiser, yet your are safer for having me next to you. I won’t shoot you. My gun won’t pull it’s own trigger. It’s securely holstered with the trigger covered. However, rest assured that is a lunatic walks into the store and pulls a gun… I will draw my pistol and protect myself and my family and therefore be protecting you. I may get shot but, I won’t die helplessly. I won’t be a victim. If you are not comfortable carrying a gun then don’t but there is evil in the world and if evil has a gun I want one too.”
    It really sums up the fact that criminals are not scared of the police. They will intentionally seek out somewhere they are not especially no carry zones but, if they think a bystander has a gun… they will go somewhere else. No matter what restrictions the government puts on firearms a criminal will always find a way to get his hands on a gun. I want one too.

  50. I was convicted of bad checks in 95 and 96 and a forgery in 04 all white nonviolent can I do anything to get my rights back this was in Missouri