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  • Nathaniel Whitesel

Gun Rights and the Convicted: A Steady Spread

Convicted felons face many codified prejudices as a result of the American criminal justice system. Under 18 U.S.C § 992 (g), and under similar state statutes throughout the country, the ability of a convicted felon to own or use a firearm is eliminated. Particularly in light of the decisions in District of Columbia v. Heller and McDonald v. Chicago, the denial of firearm ownership to convicted felons amounts to a deprivation of rights on par with the removal of political rights that felons also suffer. Indeed, the possession of a firearm by a felon is itself commonly a felony, punishable in the District of Columbia, for example, with imprisonment up to fifteen years. Recent discourse in the United States over gun rights, spurred by recent mass shootings and debates over efforts to control the spread of firearms, necessarily has effected the perception of this right, but not necessarily in the anticipated manner.

Besides the right to possess a firearm, convicted felons often lose their political rights to vote, serve on a jury, or obtain elected office. The states often have practices in place that will allow convicted felons the ability to earn back these political rights. In Virginia, the process to restore civil rights is fairly straightforward: applicants have to be free of supervise probation or parole for several years and you cannot have gotten any new felony convictions or pending charges. Violent felons have similar requirements, but must complete a full Application for Restoration of Rights.

Virginia similarly permits the restoration of gun rights under Va. Code Ann. § 18.2-308.2. Under Virginia’s rules, once a felon’s political rights have been restored, a granted petition to the circuit court of the county or city will suffice to fully restore the right to possess a firearm. Virginia even provides a form for petitioners seeking this relief, though often eligible felons will seek the assistance of legal counsel in filing for restoration. Virginia is not the only state to both provide and expand these pathways. Georgia requires only an in-person interview and a decision by the Restoration Board. Even the U.S. House of Representatives has seen recent efforts to expand gun rights restoration.

But recent efforts have not been met without controversy. When Virginia passed House Bill 2286 this year, the expansion of the restoration program was met with opposition by anti-gun groups. Georgia’s initiatives are similarly met with skepticism. Indeed, there are concerns across the country that the process for violent felons in particular to gain back their gun rights is becoming too simple. In February 2005, a small Washington town was shocked when it had its first homicide in thirty years at the hands of a convicted felon that had his rights restored just two months prior. Under a hearing similar to those provided by the Virginia path, the Washington court hand its hands tied in granting this individual’s restoration, despite a history of mental illness and dangerous tendencies, in addition to his criminal record. Vague standards and a general lack of public awareness of these expanding processes have spurred greater legislation.

However, some states have yet to follow the trend seen in Washington, Georgia, and Virginia. Some states, like California, require a pardon from the governor’s office for most felony convicts or some other standard much stricter than a granted petition at the local courthouse. States that fall in between the two sides of the spectrum typically require pardons as well, but with more availability than in stricter states that only grant one or two each year.

Whether loose or strict, the pathways to provide convicted felons with a restoration of their right to possess a firearm exist and are generally expanding. Despite the current dynamic situation that firearm rights find in the current American discourse, this expansion shows no signs of stopping its steady spread. Perhaps encouraged by the continual increases in firearm rights granted by the Supreme Court, which was most recently seen in Henderson v. United States, the legal community will remain dotted with initiatives to ensure those convicted of serious crimes gain the opportunity for redemption, though that may mean a decrease in the perception of safety that created the bar in the first place.


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