Common sense tells us that a person convicted of a felony is probably more dangerous, and probably more likely to re-offend, than a person convicted of a misdemeanor. However, in Arizona a person convicted of multiple serious felonies can eventually restore his or her gun rights after being released from prison or probation,[1] whereas a person convicted of just one misdemeanor will forever lose his or her right to possess a gun—if that misdemeanor involves domestic violence.
Sound odd or unfair? It gets worse.
Here is how it happens. Under federal law, a person convicted of a “misdemeanor crime of domestic violence” forever loses his right to posses a firearm, unless he gets a pardon, gets his conviction expunged or set aside, or gets his civil rights (including his gun rights) restored.[2] This law was added to the United States Code in 1996 as an amendment (the “Lautenberg Amendment”) to the Gun Control Act of 1968.[3] It was Congress’ response to “the growing national recognition of the importance of deterring domestic violence.”[4]
Adding to the unfairness of the Lautenberg Amendment was the fact that it was applied retroactively. So all those people who took a plea bargain and accepted an agreed upon sentence suddenly had a large penalty added to their bargain— they lost their Second Amendment rights. Opponents of the Lautenberg Amendment have filed a Supreme Court challenge to the retroactive application as grounds that the ban is punitive and therefore violates the Constitution’s prohibition on ex post facto laws. The Supreme Court is yet to rule on the case.
It gets even worse.
Many states, like Arizona, have procedures to set aside a conviction, which are referenced in the Lautenberg Amendment. However, the United States Justice Department (DOJ), the federal agency that provides firearm eligibility reports, ignored the plain language of the Lautenberg Amendment and applied its own definition “set aside.” Under that definition, Arizona’s setting aside law is not sufficient because it does not expressly restore a person’s firearm rights.
All those convicted of a felony in Arizona lose their Second Amendment rights. However, Arizona law provides a way for convicted felons to restore their gun rights. Once a felon meets a waiting period, they can petition the court that convicted them to restore their rights.[5] The District Attorney is given an opportunity to object and the judge has discretion whether or not to restore the rights. However, the law specifies that the court only has authority to restore rights in felony cases. So, Arizona residents who have a conviction for a “misdemeanor crime of domestic violence” have no way of removing the federal prohibition.
There is a fathomable reason for this paradox in Arizona. Under Arizona law, a person convicted of a misdemeanor, whatever it may be, does not lose any civil rights, including the right to possess a gun. However, a person convicted of a felony does. Therefore, the Arizona legislature understandably never felt the need to provide a way for misdemeanants to restore their civil rights/gun rights (because you can’t restore something that was never lost in the first place).
Unfortunately, the Arizona legislature apparently did not anticipate the Lautenberg Amendment or the DOJ’s narrow interpretation of setting aside. To date the legislature has not responded.
Without the ability to restore their gun rights under Arizona law, Arizonians who have a conviction for a “misdemeanor crime of domestic violence” are forever barred from possessing a firearm because of the federal prohibition. It is time for the Arizona legislature to fix this problem. It does not make any sense to allow a person with multiple serious felonies gets to restore his gun rights in Arizona (and thereby be immune from federal prosecution) whereas a person who may only pushed a spouse during an argument loses their Second Amendment rights for life.
The permanent loss of Second Amendment rights means more than just the loss of the opportunity to hunt or protect a person’s life and home. Many jobs that are common career paths for people who may have once had trouble with the law require the ability to carry a firearm. Security guard, law enforcement and the armed forces are just a few entry-level jobs that require the ability of an applicant to carry a firearm.
Arizona lawmakers can fix this problem by simply expanding the court’s current authority to restore a felon’s Second Amendment rights to those who commit misdemeanor offenses for domestic violence.[6] This is necessary in order for these deserving people to be immune from federal prosecution and thereby have their gun rights truly restored. Such a move is good public policy and it will fix the many injustices associated with this federal law that is being applied unfairly and retroactively.[7]
CURRENT AND PROPOSED CHANGES TO A.R.S. §§ 13-906 BELOW:
___
Current A.R.S. §§ 13-906
C. If the person was convicted of a dangerous offense under section 13-604, the person may not file for the restoration of his right to possess or carry a gun or firearm. If the person was convicted of a serious offense as defined in section 13-604 the person may not file for the restoration of his right to possess or carry a gun or firearm for ten years from the date of his discharge from probation. If the person was convicted of any other felony offense, the person may not file for the restoration of his right to possess or carry a gun or firearm for two years from the date of his discharge from probation.
Proposed A.R.S. §§ 13-906
C. If the person was convicted of a dangerous offense under section 13-604, the person may not file for the restoration of his right to possess or carry a gun or firearm. If the person was convicted of a serious offense as defined in section 13-604 the person may not file for the restoration of his right to possess or carry a gun or firearm for ten years from the date of his discharge from probation. If the person was convicted of any other felony offense or a misdemeanor of domestic violence or any misdemeanor offense that carries a state or federal prohibition on possession or carrying a firearm, the person may not file for the restoration of his right to possess or carry a gun or firearm for two years from the date of his discharge from probation.
Sound odd or unfair? It gets worse.
Here is how it happens. Under federal law, a person convicted of a “misdemeanor crime of domestic violence” forever loses his right to posses a firearm, unless he gets a pardon, gets his conviction expunged or set aside, or gets his civil rights (including his gun rights) restored.[2] This law was added to the United States Code in 1996 as an amendment (the “Lautenberg Amendment”) to the Gun Control Act of 1968.[3] It was Congress’ response to “the growing national recognition of the importance of deterring domestic violence.”[4]
Adding to the unfairness of the Lautenberg Amendment was the fact that it was applied retroactively. So all those people who took a plea bargain and accepted an agreed upon sentence suddenly had a large penalty added to their bargain— they lost their Second Amendment rights. Opponents of the Lautenberg Amendment have filed a Supreme Court challenge to the retroactive application as grounds that the ban is punitive and therefore violates the Constitution’s prohibition on ex post facto laws. The Supreme Court is yet to rule on the case.
It gets even worse.
Many states, like Arizona, have procedures to set aside a conviction, which are referenced in the Lautenberg Amendment. However, the United States Justice Department (DOJ), the federal agency that provides firearm eligibility reports, ignored the plain language of the Lautenberg Amendment and applied its own definition “set aside.” Under that definition, Arizona’s setting aside law is not sufficient because it does not expressly restore a person’s firearm rights.
All those convicted of a felony in Arizona lose their Second Amendment rights. However, Arizona law provides a way for convicted felons to restore their gun rights. Once a felon meets a waiting period, they can petition the court that convicted them to restore their rights.[5] The District Attorney is given an opportunity to object and the judge has discretion whether or not to restore the rights. However, the law specifies that the court only has authority to restore rights in felony cases. So, Arizona residents who have a conviction for a “misdemeanor crime of domestic violence” have no way of removing the federal prohibition.
There is a fathomable reason for this paradox in Arizona. Under Arizona law, a person convicted of a misdemeanor, whatever it may be, does not lose any civil rights, including the right to possess a gun. However, a person convicted of a felony does. Therefore, the Arizona legislature understandably never felt the need to provide a way for misdemeanants to restore their civil rights/gun rights (because you can’t restore something that was never lost in the first place).
Unfortunately, the Arizona legislature apparently did not anticipate the Lautenberg Amendment or the DOJ’s narrow interpretation of setting aside. To date the legislature has not responded.
Without the ability to restore their gun rights under Arizona law, Arizonians who have a conviction for a “misdemeanor crime of domestic violence” are forever barred from possessing a firearm because of the federal prohibition. It is time for the Arizona legislature to fix this problem. It does not make any sense to allow a person with multiple serious felonies gets to restore his gun rights in Arizona (and thereby be immune from federal prosecution) whereas a person who may only pushed a spouse during an argument loses their Second Amendment rights for life.
The permanent loss of Second Amendment rights means more than just the loss of the opportunity to hunt or protect a person’s life and home. Many jobs that are common career paths for people who may have once had trouble with the law require the ability to carry a firearm. Security guard, law enforcement and the armed forces are just a few entry-level jobs that require the ability of an applicant to carry a firearm.
Arizona lawmakers can fix this problem by simply expanding the court’s current authority to restore a felon’s Second Amendment rights to those who commit misdemeanor offenses for domestic violence.[6] This is necessary in order for these deserving people to be immune from federal prosecution and thereby have their gun rights truly restored. Such a move is good public policy and it will fix the many injustices associated with this federal law that is being applied unfairly and retroactively.[7]
CURRENT AND PROPOSED CHANGES TO A.R.S. §§ 13-906 BELOW:
___
Current A.R.S. §§ 13-906
C. If the person was convicted of a dangerous offense under section 13-604, the person may not file for the restoration of his right to possess or carry a gun or firearm. If the person was convicted of a serious offense as defined in section 13-604 the person may not file for the restoration of his right to possess or carry a gun or firearm for ten years from the date of his discharge from probation. If the person was convicted of any other felony offense, the person may not file for the restoration of his right to possess or carry a gun or firearm for two years from the date of his discharge from probation.
Proposed A.R.S. §§ 13-906
C. If the person was convicted of a dangerous offense under section 13-604, the person may not file for the restoration of his right to possess or carry a gun or firearm. If the person was convicted of a serious offense as defined in section 13-604 the person may not file for the restoration of his right to possess or carry a gun or firearm for ten years from the date of his discharge from probation. If the person was convicted of any other felony offense or a misdemeanor of domestic violence or any misdemeanor offense that carries a state or federal prohibition on possession or carrying a firearm, the person may not file for the restoration of his right to possess or carry a gun or firearm for two years from the date of his discharge from probation.
- By Mathew K. Higbee, Attorney at Law
[1] See Arizona Revised Statutes §§ 13-905 and 13-906.
[2] See 18 U.S.C. §§ 921(a)(33) & 922(g)(9). The United States Tenth Circuit Court of Appeals recently ruled in Wyoming ex rel. Crank v. United States, 2008 WL 3906587 (10th Cir., Aug. 26, 2008), that for a crime to be “expunged” or “set aside” under 18 U.S.C. § 921(a)(33), the state procedure must “completely remove all effects of the conviction at issue.” The Court held that Wyoming’s “expungment” statute, which only partially removed the effects of a conviction and allowed an “expunged” conviction to be used in any in subsequent prosecution, did not go far enough. Arizona’s civil rights restoration statutes (A.R.S §§ 13-905 and 13-906) probably satisfy the Tenth Circuit’s holding. They are not “expungment” or “set aside” statutes (these two mean the same thing, according to the Tenth Circuit) but they are “civil rights restoration” statutes which specifically provide for the restoration of gun rights. Arizona has a separate “set aside” statute (A.R.S. § 13-907) but that statute would not satisfy the Tenth Circuit’s holding.
[3] Pub.L.No. 104-208, § 658, 110 Stat. 3009, 3009-371 to -372 (1996)(codified at 18 U.S.C. §§§ 921, 922, & 925).
[4] United States v. Frechette, 456 F.3d 1 (1st Cir. 1996).
[5] See Arizona Revised Statutes §§ 13-905 & 13-906.
[6] See Arizona Revised Statutes §§ 13-906.
[7] In drafting legislation, the Arizona legislature should work closely with the ATF (US Bureau of Alcohol, Tobacco, Firearms, & Explosives) in order to avoid the problems Wyoming faced in Wyoming ex rel. Crank v. United States.
[1] See Arizona Revised Statutes §§ 13-905 and 13-906.
[2] See 18 U.S.C. §§ 921(a)(33) & 922(g)(9). The United States Tenth Circuit Court of Appeals recently ruled in Wyoming ex rel. Crank v. United States, 2008 WL 3906587 (10th Cir., Aug. 26, 2008), that for a crime to be “expunged” or “set aside” under 18 U.S.C. § 921(a)(33), the state procedure must “completely remove all effects of the conviction at issue.” The Court held that Wyoming’s “expungment” statute, which only partially removed the effects of a conviction and allowed an “expunged” conviction to be used in any in subsequent prosecution, did not go far enough. Arizona’s civil rights restoration statutes (A.R.S §§ 13-905 and 13-906) probably satisfy the Tenth Circuit’s holding. They are not “expungment” or “set aside” statutes (these two mean the same thing, according to the Tenth Circuit) but they are “civil rights restoration” statutes which specifically provide for the restoration of gun rights. Arizona has a separate “set aside” statute (A.R.S. § 13-907) but that statute would not satisfy the Tenth Circuit’s holding.
[3] Pub.L.No. 104-208, § 658, 110 Stat. 3009, 3009-371 to -372 (1996)(codified at 18 U.S.C. §§§ 921, 922, & 925).
[4] United States v. Frechette, 456 F.3d 1 (1st Cir. 1996).
[5] See Arizona Revised Statutes §§ 13-905 & 13-906.
[6] See Arizona Revised Statutes §§ 13-906.
[7] In drafting legislation, the Arizona legislature should work closely with the ATF (US Bureau of Alcohol, Tobacco, Firearms, & Explosives) in order to avoid the problems Wyoming faced in Wyoming ex rel. Crank v. United States.
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