Topic:
COURT PROCEDURE; CRIME; FIREARMS; GUN CONTROL;
Location:
WEAPONS - GUN CONTROL;

OLR Research Report


November 10, 2008

 

2008-R-0617

RESTORATION OF RIGHT TO CARRY FIREARMS
UNDER FEDERAL LAW

By: Veronica Rose, Principal Analyst

You asked for information on a federal law that allows convicted felons to petition for relief from federal firearm disabilities. Your constituent has been informed about a lack of funding to process his petition.

SUMMARY

Under federal law, convicted felons and certain other people cannot possess or distribute firearms. But they may apply to the Bureau of Alcohol, Tobacco and Firearms (BATF) for relief from the disabilities imposed by federal law. BATF may restore an applicant's gun privileges if (1) it does not deem the applicant “dangerous to public safety” and (2) restoration is not “contrary to the public interest.”

Under the law, an applicant whose request is denied may seek judicial review in federal court. But since 1992, Congress, in its annual appropriations, has explicitly barred BATF from expending funds to investigate or act on applications by individuals. Consequently, BATF has not been processing applications. In Bean, the U.S. Supreme Court sided with BATF, holding that the bureau's inaction on applications does not constitute a “denial” under the law, in light of the congressional ban on expenditures. Thus, applicants cannot go to federal court to seek judicial review to regain their firearm privileges.

For purposes of the Gun Control Act, a person is not considered convicted in certain instances (e.g., if he or she has been pardoned or had his or her civil rights restored). As an alternative to the above BATF process, a person convicted of a federal offense may apply for a presidential pardon. A person convicted of a state offense may apply to appropriate state officials for a pardon or civil rights restoration.

FEDERAL LAW AND GUN RESTORATION RIGHTS

The 1968 Gun Control Act prohibits convicted felons and certain other persons from possessing or receiving firearms (18 USC 922(g) and 922(n)). But they may petition BATF for relief from these disabilities. BATF may grant the relief if it determines that (1) the applicant is not likely to endanger public safety and (2) granting relief would not be contrary to the public interest. Anyone whose application is denied may seek judicial review in federal court (18 USC 925(c)).

Since October 1992, Congress, in its annual appropriations, has prohibited BATF from using appropriated funds to investigate or act upon applications for relief submitted by individuals. BATF claims that as long as this ban remains in place, it cannot process such applications.

THE THOMAS BEAN CASE

Thomas Bean, a convicted felon, applied for reinstatement of his firearm privileges. BATF returned the application unprocessed, explaining that a provision in its annual appropriations barred it from expending funds to process applications. Bean sought relief in federal district court, on the grounds that the bureau's inaction constituted a denial within the meaning of the law and was thus subject to judicial review. BATF contended that the court lacked subject matter jurisdiction because an actual decision by BATF was a prerequisite for judicial review and the bureau had not denied Bean's application. The district court sided with Bean and the appeals court affirmed the decision (Bean v. BATF, 253 F.3d 234 (5th Cir. Tex. 2001)).

In a unanimous decision, the U.S. Supreme Court reversed the lower courts' rulings, finding that an actual BATF decision on an application was a prerequisite for judicial review, and inaction did not amount to a denial within the meaning of the law (U.S. v. Bean, 537 U.S. 71, (2002)). According to Justice Thomas, who wrote the opinion, “mere inaction by ATF does not invest a district court with independent jurisdiction to act on an application” (Id., at 76).

ALTERNATIVE WAYS TO GET RELIEF FROM DISABILITIES

For purposes of the Gun Control Act, a person is not considered convicted if he or she (1) has been pardoned, (2) had his or her civil rights restored or set aside, or (3) had his or her conviction expunged or set aside, unless the pardon, restoration, or expungement expressly bars shipping, transporting, possessing, or receiving firearms (18 USC 921(a)(20) and (a)(33)).

Anyone convicted of a federal offense may apply for a presidential pardon. Federal regulations (28 CFR 1.1-1.10) specify the rules governing petitions for obtaining such pardons (copy attached). Your constituent, who appears to have been convicted of a federal offense, may contact the Pardon Attorney's Office to inquire about the procedures for obtaining such a pardon. The address is:

Pardon Attorney's Office

U.S. Department of Justice

500 First St. N.W.

Washington DC 20530

In Connecticut, the Board of Pardons is authorized to grant pardons for state offenses. The address is:

Rowland State Government Ctr.

55 West Main St.

Suite 520

Waterbury 06702

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