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Felons and Firearms: A Look at the State and Federal Implications

Posted on Nov 14, 2013 in Local Issues, National Issues

[caption id="attachment_4065" align="aligncenter"] Photo courtesy of npr.org[/caption] Many clients who have been convicted of felonies express their concern for their civil right to own a firearm. The right to bear and keep arms is commemorated in the Second Amendment of the United States Constitution, however these rights are not absolute. Certain restrictions have been imposed through State and Federal law, which regulate the classes of people who have the right to bear arms The regulation of firearms began with the Gun Control Act of 1968, which was passed as a consequence of a number of highly publicized and violent gun crimes, including the assassinations of President Kennedy and Dr. Martin Luther King. As such, President Johnson called upon Congress to adopt stricter gun control laws and thus the Gun Control Act of 1968 was passed. The Act sought to regulate a wide array of issues concerning firearms, including the possession, receipt, shipment and transportation of firearms by persons convicted of felonies. Yet, the provisions of the Gun Control Act of 1968 were flawed, and conflicting which lead to many abuses in its enforcement. In 1986, Congress attempted to resolve these imperfections by enacting the Firearms Owners’ Protection Act (FOPA). Still, the FOPA is not without its own shortcomings, especially in regards to a felon’s rights to possess and bear arms and many federal circuits are split on interpretations of the FOPA. When determining whether a felon can possess a firearm, one must look both to the State and Federal Law. The Federal law under FOPA provides a black and white prohibition against a person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year from owing a firearm. However, certain classes of felons may fall within an exception. These include felonies related to regulatory business practices; they may legally possess a firearm once they have completed the terms of their sentence or probation. The Federal law further allows for felons with expungements, pardons or other civil rights restoration to own firearms, unless such a pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. Thus, one must look to the State law to determine if expungements, pardons or a restoration of one’s civil rights is available. Essentially, the outcome under Federal Law depends on the type of crime for which the person was committed, whether they have completed their sentence, whether that person’s civil rights have been restored under some sort of pardon or expungement or statute and whether or not other State laws exist which might forbid them from possessing the firearm. In Louisiana, La. R.S. 14:95.1 is the main legal restriction on gun rights. This statute makes it illegal for persons convicted of specified felonies to legally own firearms. As such, the first step in determining whether a felon may possess a firearm is to determine whether the crime for which they were convicted is incorporated in the statute. A felon convicted of one of the enumerated crimes in the statute could seek a Governor’s pardon, which would restore the felon’s right to possess a firearm. However, this pardon is rarely received or bestowed. The law in Louisiana does provide other exceptions including when 10 felony-free years have passed after the completion of the felon’s state or federal supervision, or probation, after which they could regain the right to possess a firearm. The right of a felon to possess a firearm is still under great scrutiny in Louisiana. In November of 2012, almost 75% of Louisiana voters approved an amendment to the State Constitution, which provides that "The right of individuals to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes, is fundamental and shall not be denied or infringed, and any restriction on this right must be subjected to strict scrutiny." Under this amendment, a felon would have the fundamental right to own a firearm. The ripple effect of enacting this amendment lead to a recent Criminal District Court ruling by the Honorable Darryl Derbigny, wherein he tossed out the felon with a firearm charge prosecutors had filed against a defendant. As such, the constitutionality of this amendment was set to be heard by the Louisiana Supreme Court in October of 2013. Clearly, there is still much debate on this issue. Bloom Legal, LLC intends this blog post merely as an educational look at a felon’s right to bear firearms. Please bare in mind that any violation of State or Federal firearms law is likely to carry a lengthy prison sentence and any attempt to utilize the exceptions referred to herein should be carefully researched by you or your attorney.

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