The idea that society's vilest criminals should not only suffer punishment but also forfeit civil rights enjoys a long pedigree. In pre-1870 England, a declaration of civiliter mortuus, or civil death, meant exactly what it sounded like: Certain criminals -- including traitors, felons, exiles and outlaws -- were, in the eyes of the law, as good as dead [sources: Black's Law Dictionary; Encyclopaedia Britannica].
A version of civil death survives in American law as civil disabilities, through which offenders can be legally barred from such privileges as entering into certain agreements, holding public offices, obtaining some jobs and licenses, or profiting from insurance or pensions. Disabilities can also extend to civil rights, including the right to vote, to serve on a jury or to keep and bear arms [sources: Black's Law Dictionary; King].
As spelled out in Chapter 44 of Title 18 of the United States Code (U.S.C.), federal law bans convicted felons from possessing firearms or ammunition. (The U.S.C. is a compilation of congressional laws organized by topic and subtopic: Title 18 defines federal crimes and criminal procedure, and Chapter 44 (Sections 921-931) covers firearms.) It sounds straightforward enough, but when you unpack how that federal law works and factor in the complexities added by state laws and high court rulings, a much more complicated picture begins to emerge.
According to Section 922(g)(9), no one "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year" may own or possess a gun. This rule covers all felonies, but does not apply to state misdemeanors that carry less than a two-year sentence. It also exempts several kinds of felonious white-collar crime, as well as felony convictions handed down in foreign countries [sources: 18 U.S.C. § 921; 544 U.S. 385; Williams].
Lest you think Section 922(g) is too lenient, however, read on: It also bans guns for (among others) fugitives, illegal users of controlled substances, mental defectives, illegal aliens, dishonorably discharged soldiers, renounced citizens, subjects of certain court orders and persons convicted of misdemeanor domestic violence. Violating these statutes can net you 10 years of imprisonment and/or a $250,000 fine [source: Rhode Island Probation].
Title 18 also provides procedures for seeking gun rights restoration (we'll delve more deeply into this issue later), but don't hold your breath. As explained in Section 925(c), felons may petition the U.S. Attorney General's office, but the AG has since delegated this responsibility to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which has been forbidden by Congress since 1992 to fund the processing of such applications [sources: ATF].
Yeah ... good luck with that.
Clause and Effect
The awkwardly worded (and bafflingly punctuated) Second Amendment to the U.S. Constitution says the following: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
The interpretation of these 27 words ranks among the prickliest political issues in American history. Perhaps that explains why gun rights lingered in a legal fog for nearly 200 years before the U.S. Supreme Court affirmed the right to keep a gun in the home for self-defense [sources: 554 U.S. 570; Liptak; Myer ; The New York Times]. Before diving into that ruling, however, it is worth examining how Congress and the states have grappled with the issue.
States enjoy a wider authority than Congress to create laws, particularly laws related to exercising their policing power [source: Myer]. In the 1886 case Presser v. Illinois, the U.S. Supreme Court upheld states' latitude with respect to gun regulation, ruling that Second Amendment restrictions applied only to Congress and not to states [source: 116 U.S. 252].
Constitutionally speaking, Congress requires specific authority to act, and only defines criminal law with respect to federal property, crimes crossing state lines and matters of national concern such as interstate kidnapping. Consequently, many federal laws derive from its other powers. For example, the federal ban on felony gun possession flows from Congress's constitutional authority over interstate commerce under Article I, Section 8, which is why it is defined in such commercial terms [sources: GCA; Myer, 18 U.S.C. § 922]:
Although states can write their own gun laws, they cannot violate the federal ban, because it derives from Congress's constitutionally granted powers. If that sounds like a technicality, it is, but it's far from the first time Congress has relied on it -- or its power over taxation -- to regulate firearms. As far back as 1915 and 1927, Congress passed laws limiting mail-order guns to close a loophole that enabled people to circumvent state laws. This early legislation set important precedents by largely blocking private citizens from engaging in the interstate gun trade and by establishing a dealer category subject to its own regulations [source: Zimring].
Those models would pave the way for Congress to establish and regulate licensed dealers -- and set the stage for bans on felon gun ownership.
Tell It to the Judge
Congress can pass whatever laws it construes as consistent with its powers, but the U.S. Supreme Court has the final say in interpreting constitutionality.
In 2008, the court's decision in District of Columbia v. Heller upheld a citizen's right to keep a handgun in his or her home for self-defense. However, as Justice Scalia noted in his majority opinion, the right to arms is not unlimited, but leaves room for "longstanding prohibitions" on possession by felons or the mentally ill, or on carrying firearms in schools or government buildings, or even on "dangerous and unusual weapons" [source: 554 U.S. 570].
The scope of Heller was limited to federal jurisdictions, but the following year, in McDonald v. Chicago, the Supreme Court extended its interpretation to encompass state and local laws [sources: 554 U.S. 570; 561 US 3025; Liptak; The New York Times].
The highest court in the land left it to the lower courts to reconcile these broad rulings with existing laws, and in 2012 the 7th U.S. Circuit Court of Appeals -- which covers Illinois, Indiana and Wisconsin -- rose to the occasion with Moore v. Madigan. In interpreting Illinois' law banning gun possession in public, the court ruled that the right to self-defense upheld in Heller and McDonald extended beyond the home to public places where, according to the Circuit Judge Posner, threats were more likely to occur [source: 7th Cir. 2012].
Although it remains too early in the game to predict the ultimate impact of Heller, McDonald and Moore, the decisions have kindled hope in some offenders, particularly the nonviolent variety, of one day regaining their gun rights [source: Luo].
Before these rulings, a few key pieces of legislation established the limitations on gun ownership. The federal ban on felon gun possession was solidified by the Gun Control Act of 1968, spurred to passage by the assassinations of both Sen. Robert F. Kennedy and Martin Luther King Jr. that year [sources: Finney; ATF].
The Federal Firearms Act of 1938 (FFA) -- pushed for in response to post-Prohibition gangster violence by, among others, the National Rifle Association -- attempted an earlier felon ban but was so riddled with loopholes that it was virtually impossible to prosecute anyone under its statutes [sources: Kakutani; Zimring].
Before the FFA, the National Firearms Act of 1934 (NFA) established gun registration and dealer licensing as part of an effort to curtail weapons favored by gangsters. However, because it required registration of even illegal firearms, it violated the Fifth Amendment protection against self-incrimination, according to the Supreme Court decision Haynes v. United States. Congress overhauled the law in 1968 and, to this day, certain weapons, such as short-barreled rifles and grenades, are classified as Title II or GCA weapons [sources: 390 U.S. 85; Kakutani; Lacey-Bordeaux; NFA; Zimring].
The State of the States
According to the National Rifle Association's lobbying arm, the Institute for Legislative Action, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Illinois, Kansas, Michigan, Nebraska, Nevada, New Hampshire, New Mexico, Oklahoma and Washington ban felons from possessing firearms. Florida and Idaho bar felons from guns unless their rights are restored. Oregon and New York do, too, but Oregon exempts certain offenses, whereas New York adds others to the list [source: NRA-ILA].
Mississippi also requires rights restoration -- unless an appropriate court issues a certificate of rehabilitation. Indiana's law bans selling or giving a gun to a known or suspected felon. Arizona's limited ban mostly deals with felons convicted of crimes involving a deadly weapon or dangerous instrument; West Virginia's and Ohio's concern "felonies of violence," to which Ohio adds those involving a "drug of abuse" [source: NRA-ILA].
Maryland's and Iowa's state constitutions do not include a right to bear arms, and the two states do not grant felons permits. Alaska and Missouri merely ban felons from carrying concealable firearms, and Missouri's restrictions only apply for "five years after conviction or confinement." Montana does not appear to bar felons from gun possession, but allows its local governments to do so [source: NRA-ILA].
Regarding gun rights reinstatement, Minnesota, Montana and Ohio automatically do so for nonviolent offenders following time served and allow violent offenders to petition for restoration. In North Dakota, reinstatement for felons automatically kicks in 10 years after time served, even for criminals who employed violence or intimidation [source: Luo].
On the other end of the spectrum are states that require a pardon prior to reinstatement, such as California, Georgia and Nebraska. Washington state law compels judges to return gun rights to felons who live conviction-free for five years [source: Luo].
But wait: How does a state returning felon gun rights affect the federal ban?
Here is where things get a little strange. If a state restores a convicted felon's civil rights -- including the right to vote, serve on juries and hold public office -- then the federal ban no longer holds [sources: Luo; 18 USC § 921(a)(33)(B)(ii)]. However, if a state restores a felon's gun rights, but not the other listed rights, then possessing a gun remains a federal crime, and the feds can arrest that person and charge him or her with possession [source: Luo].
As of January 2013, how rulings such as Heller and McDonald will ultimately affect these issues remains an open question. Meanwhile, as ATF Program Manager-Industry Operations Investigator George Semonick plainly puts it, "ATF enforces laws as they are written."
Author's Note: Can a felon own a gun in the United States?
Two weeks ago, I completed an article on whether countries with stricter gun laws really have less crime or fewer homicides. While writing that article and this one, the news continued to deliver reports of shooting after shooting -- some large, some small, all appalling.
Most recently, Hadiya Pendleton, a 15-year-old girl who attended high school a mile from President Obama's house and performed with her high school band at his inaugural weekend, was shot and killed when a gunman opened fire on a group of teenagers at a Chicago park. No side of the gun debate was slow in using the event to champion its point of view.
I don't claim to know the answer to gun violence, but I do suspect that there's little we can meaningfully say about guns, or the effectiveness of gun policies, while so many loopholes gape in the statutes, while regulations go unenforced, and while state and local laws remain such a hodgepodge.
- 6 U.S.C. § 531. "Bureau of Alcohol, Tobacco, Firearms, and Explosives." http://www.gpo.gov/fdsys/pkg/USCODE-2011-title6/html/USCODE-2011-title6-chap1-subchapXI-partB-sec531.htm
- 7th U.S. Circuit Court of Appeals. "Michael Moore, et al., and Mary e. Shepard, et al., v. Lisa Madigan, Attorney General of Illinois, et al." Nos. 12-1269, 12-1788. 2012. http://law.justia.com/cases/federal/appellate-courts/ca7/12-1269/12-1269-2012-12-11.html18 USC § 921. "Definitions." http://www.law.cornell.edu/uscode/text/18/921
- 18 U.S.C. § 922. "Unlawful Acts." http://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partI-chap44-sec922.pdf
- 18 U.S.C. § 925. "Exceptions: Relief from Disabilities." http://www.law.cornell.edu/uscode/text/18/925
- 28 CFR 1. "Executive Clemency." http://www.law.cornell.edu/cfr/text/28/1
- Black's Law Dictionary. "Civil Death." West. 1983.
- Black's Law Dictionary. "Civil Disabilities." West. 1983.
- Black's Law Dictionary. "Constructive Possession." West. 1983.
- Bureau of Alcohol, Tobacco, Firearms and Explosives. "General Questions." http://www.atf.gov/firearms/faq/general.html#firearms-relief-alternates
- Bureau of Alcohol, Tobacco, Firearms and Explosives. "State Laws and Published Ordinances --Firearms." 31st Ed. 2010 - 2011. http://www.atf.gov/publications/download/p/atf-p-5300-5-31st-editiion/2010-2011-atf-book-final.pdf
- Encyclopaedia Britannica. "Civil Death." 20th Century Edition. Vol. 26. 1902.
- Federal Register. "Alcohol, Tobacco, Firearms and Explosives Bureau." https://www.federalregister.gov/agencies/alcohol-tobacco-firearms-and-explosives-bureau
- Finney, John W. "Gun Control Bill Blocked in House." The New York Times. June 12, 1968. http://query.nytimes.com/mem/archive/pdf?res=F20D15FD3E5D137A93C0A8178DD85F4C8685F9
- The Gale Group. "Model Penal Code." West's Encyclopedia of American Law. 2008. http://legal-dictionary.thefreedictionary.com/Model+Penal+Code
- "The Gun Control Act of 1968: Title 18, United State Code, Chapter 44." Federal Firearms Regulations Reference Guide. U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives. 2005. http://www.atf.gov/publications/download/p/atf-p-5300-4.pdf
- Higbee & Associates. "Restoration of Gun Rights." http://www.recordgone.com/restoration_gun_rights.htm
- Kakutani, Michiko. "Gun Control and Gun Rights Stay Fighting Words." The New York Times. Oct. 9, 2011. http://www.nytimes.com/2011/10/10/books/in-gunfight-adam-winkler-traces-the-gun-control-battle.html?pagewanted=all&_r=0
- King, Ryan. "Expanding the Vote: State Felony Disenfranchisement Reform, 1997-2008." The Sentencing Project. September 2008. http://www.sentencingproject.org/doc/publications/fd_statedisenfranchisement.pdf
- Lacey-Bordeaux, Emma. "Loophole Allows for Easier Purchase of High-Powered Weapons." CNN Radio. May 25, 2011. http://www.cnn.com/2011/US/05/25/exploring.gun.loophole/index.html
- Liptak, Adam. "Justices Extend Firearm Rights in 5-to-4 Ruling." The New York Times. June 28, 2010. http://www.nytimes.com/2010/06/29/us/29scotus.html
- Luo, Michael. "Answers on Felons and Gun Rights." The New York Times. Nov. 15, 2011. http://thelede.blogs.nytimes.com/2011/11/15/answers-on-felons-and-gun-rights/
- Myer, Kevin R. Senior associate, Renaud Cook Drury Mesaros, PA. Personal correspondence.
- "National Firearms Act of 1934: Title 26, United State Code, Chapter 53." Federal Firearms Regulations Reference Guide. U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives. 2005. http://www.atf.gov/publications/download/p/atf-p-5300-4.pdf
- National Rifle Association Institute for Legislative Action. "State Laws." http://www.nraila.org/gun-laws/state-laws.aspx
- The New York Times. "Bureau of Alcohol, Tobacco and Firearms." Dec. 26, 2012. http://topics.nytimes.com/topics/reference/timestopics/organizations/b/bureau_of_alcohol_tobacco_and_firearms/index.html
- The New York Times. "Gun Control." Dec. 21, 2012. http://topics.nytimes.com/top/reference/timestopics/subjects/g/gun_control/index.html
- Robinson, Paul and Markus Dubber. "An Introduction to the Model Penal Code." University of Pennsylvania Law School. https://www.law.upenn.edu/fac/phrobins/intromodpencode.pdf
- Schmidt, Michael S. Obama Tells Senate That It's Time to Confirm A.T.F. Director. The New York Times. Jan. 16, 2013. http://www.nytimes.com/2013/01/17/us/politics/obama-urges-senate-to-confirm-todd-jones-as-atf-director.html?_r=0
- Semonick, George. "U.S. Department of Justice Office of Public Affairs." Personal correspondence. Jan. 28, 2013.
- U.S. Department of Justice. "Office of the Pardon Attorney." http://www.justice.gov/pardon/
- U.S. Probation and Pretrial Services Office for the District of Rhode Island. "Firearm Possession Prohibition." http://www.rip.uscourts.gov/rip/supervision/firearmpossession/FirearmPossessionProhibition.pdf
- U.S. Supreme Court. "District of Columbia et al. v. Heller, Illinois, et al." 554 U.S. 570. 2008. http://www.law.cornell.edu/supct/html/07-290.ZS.html
- U.S. Supreme Court. "Haynes v. United States." 390 U.S. 85. 1968. http://supreme.justia.com/cases/federal/us/390/85/
- U.S. Supreme Court. "McDonald v. City of Chicago." 561 US 3025. 2009. http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf
- U.S. Supreme Court. "Presser v. Illinois." 116 U.S. 252. 1886. http://supreme.justia.com/cases/federal/us/116/252/case.html
- U.S. Supreme Court. "Small v. United States." 544 U.S. 385. 2005. http://www.law.cornell.edu/supct/html/03-750.ZS.html
- Williams, Keith. "The Top 10 Things You Need to Know About Federal Gun Law." North Carolina Lawyer's Weekly. May 17, 2004. http://www.williamslawonline.com/Press-Room/Top-10-Things-Know-About-Federal-Gun-Law.shtml
- Zimring, Franklin. "Firearms and Federal Law: The Gun Control Act of 1968." Journal of Legal Studies. Vol. 4. Page 133. 1975. http://scholarship.law.berkeley.edu/facpubs/1114