Duke Center for Firearms Law
Duke Law logo

What Convictions Serve as Disqualifiers for Firearm Possession?

By on August 6, 2021 Categories: , ,

Under 18 U.S.C. § 922(g)(1), most individuals with a criminal conviction that carries a potential term of imprisonment of more than one year are barred from possessing firearms. But there are two fairly large caveats (and a few smaller ones I’ll ignore in this post), one constitutional and one statutory. First, many courts are now entertaining as-applied Second Amendment challenges to these laws, and such challenges will continue to be a mechanism for those with old or nonviolent past convictions to seek an exemption from the federal prohibition. Second, federal law provides that “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter.” This second route is a much more robust one, as many states are moving to make their rights restoration (also known as relief-from-disabilities) programs broader and easier to access.

But that does not always provide the promise it appears to. Consider a new decision from the Idaho Supreme Court, responding to a certified question from the Ninth Circuit in United States v. Gutierrez. In 2000, Antonio Gutierrez was convicted of two felony burglary counts in Idaho state court. Several years later, a state court reduced his convictions to misdemeanors under a state law that allows such relief for those who have stayed out of trouble. That order stated that Gutierrez should no longer “be considered a convicted felon because he has successfully complied with the terms and conditions of probation and paid all restitution/reimbursement and fines in full.”

The answer to the Ninth Circuit’s question was not that simple, however. Idaho law generally provides that “upon final discharge, a person convicted of any Idaho felony shall be restored the full rights of citizenship.” But it carves out as an exception to that broad rule certain felony offenses, including Gutierrez’s original burglary offenses. As the court said, “[f]or those individuals, [state law] provides a separate mechanism for firearm restoration: five years after final discharge of their sentence, a person convicted of an enumerated felony ‘may make application to the commission of pardons and parole to restore the civil right to ship, transport, possess or receive a firearm.’” The Idaho Supreme Court held that even though Gutierrez’s original conviction was reduced, he still fell into the category of individuals whose (original) convictions made them ineligible for automatic restoration. As such, he was required to go through the separate restoration process and until then he was still barred from possessing firearms. The court made clear its limited holding (and also, underscored the uniqueness of guns):

Our decision today is narrowly tailored to the question regarding the automatic restoration of firearm rights, which is specifically governed by statute. This opinion does not support the inference that a defendant who has had his conviction amended to a misdemeanor would still carry the trappings of a felony conviction in any area other than firearm rights. As an example, such an individual would be fully eligible to vote, to serve on a jury, or to hold public office.

Although the case settled the matter of technical illegality, that may not be enough for the government to sustain a conviction of Gutierrez in federal court for unlawful possession. In Rehaif, the Supreme Court held that to sustain a conviction under § 922(g)(1), the government must prove that the defendant knew the status that made him ineligible to possess firearms. That does not mean that a person must know he was legally barred from possessing firearms, but it does require knowledge of one’s status. It seems reasonable to suggest that Gutierrez may have an argument that he did not have knowledge of his disqualifying status, though I have not looked at the underlying record to see if Gutierrez raised a Rehaif issue or not.

The Idaho Supreme Court case is also noteworthy because of the group of amici arguing in Gutierrez’s favor – The Idaho Association of Criminal Defense Lawyers, Firearms Policy Coalition, Second Amendment Foundation, Idaho Second Amendment Alliance, Federal Defender Services of Idaho, and the Federal Defenders of Eastern Washington and Idaho. In Bruen, a group of public defenders also filed an amicus brief in common cause with gun rights groups that argued New York’s concealed carry licensing scheme is unconstitutional.