Range and State-Level Gun Rights Restoration

A petition for Supreme Court review is currently pending in Garland v. Range, the blockbuster Third Circuit en banc decision holding that the federal felon possession ban is unconstitutional as applied to those convicted of certain non-violent felonies because there is no supporting historical tradition of disarming such individuals. (For our coverage of the Range decision, see this prior post.)  The facts in Range are perhaps the best imaginable for gun-rights restoration.  Bryan Range pleaded guilty to the state-law offense of “making a false statement to obtain food stamps” in 1995—which qualified him for the federal felon ban in 18 U.S.C. § 922(g)(1) because it was punishable by up to 5 years in prison.[1]  Range’s application understated his income by about $2,000.  His wife prepared the application and he was unsure whether he had seen it before it was submitted, but Range took responsibility for the incident anyway.  He has no subsequent criminal history and would like to purchase a gun to use for hunting. 

The Range decision implicates major questions about how Bruen’s history and tradition test applies when historical laws did not universally bar the specific group at issue (here, convicted felons) from possessing guns.  The judges in the majority and dissent sparred over the historical evidence and, perhaps more importantly, the consequences of allowing some convicted felons like Range to challenge their gun disqualification in federal court under the Second Amendment.  Multiple dissenting judges on the Third Circuit identified § 921(a)(20) and the fact that the federal felon ban does provide avenues for gun rights to be recovered—specifically, when a state conviction has “been expunged, or set aside or [the individual] has had civil rights restored” in a way that does not continue to bar them from gun possession at the state level.  This possibility, however, didn’t receive any detailed analysis in the 100+ pages of opinions in Range, perhaps because of quirks in Pennsylvania’s relatively narrow rights-restoration law and case law regarding what it means to have “civil rights restored” for purposes of Section 922.    

Under Pennsylvania law, an individual convicted of a disqualifying offense “may make application to the court of common pleas of the county where the principal residence of the applicant is situated for relief from the disability.”  But the court is only empowered to restore gun rights when (1) the conviction has been vacated, (2) the applicant has received a pardon from the Governor, or (3) the U.S. Secretary of the Treasury has waived the applicant’s federal disability and at least 10 years have elapsed since the applicant’s most recent felony conviction.  That’s essentially an impossible bar, given that only about 300-400 pardons are issued annually in Pennsylvania and Congress has failed to fund the federal gun right-restoration pathway in 18 U.S.C. § 925 (rendering #3 a practical nullity).  

Pennsylvania has a separate provision that sets forth a different restoration procedure “for offenses under prior laws of th[e] Commonwealth.”  This provision applies only where the underlying conviction was “substantially similar to either an offense currently graded as a crime punishable by a term of imprisonment for not more than two years or conduct which no longer constitutes a violation of law” or involved a violation of the state’s old penal or motor vehicle codes.  It appears to be more lenient, in that state courts can restore gun rights without a pardon or federal determination. But Pennsylvania courts have held that the prior-law-offenses provision applies only to convictions for crimes that are no longer punishable by more than two years’ imprisonment due to subsequent changes in the law.  Thus, only the narrower framework seems to be available to Range, who was convicted under a provision in the state’s current penal code and whose underlying statute of conviction remains on the books and continues to be punishable by more than two years in prison.

States differ in their restoration processes, and Pennsylvania is something of an outlier.  For example, we recently covered an Arkansas Supreme Court decision dealing with gun-rights restoration for felons and the mentally ill.  Arkansas law allows the Governor to restore gun rights through a simpler process that doesn’t involve a full pardon, upon the recommendation of the highest-ranking law enforcement officer in the relevant jurisdiction for certain crimes after eight years have elapsed, and Arkansas state legislators have recently introduced legislation to further streamline that process and allow felons to petition directly to have their gun rights restored.  New York law similarly provides a pathway for those convicted of a single felony to pursue a Certificate of Relief from Disabilities.  North Carolina law contemplates a petition and hearing for those convicted of nonviolent felonies once other civil rights have been restored for at least 20 years.  Washington state allows recovery of rights through a petition process after a specified time period has passed with no further criminal conduct, with the length of time tied to the nature of the underlying offense. Texas automatically restores the ability to possess a firearm in one’s home to convicted felons five years after they are released from prison or mandatory supervision, and South Dakota automatically restores gun rights for all felons after completion of the sentence except those convicted of certain violent or other serious felonies (for whom restoration occurs 15 years after completion).[2]  The broader point is that there’s a great deal of variation in state approaches[3] and Range almost certainly would be able to recover his gun rights under state law (either automatically or through a petition process) in many other states.

That said, even in more permissive states an additional hurdle remains before 921(a)(20) kicks in at the federal level.  Courts have generally held that 922 (and, specifically, the definition of a felony-level offense in 921(a)(20)) requires that all civil rights—not only gun rights—be restored at the state level before the conviction is removed from the scope of the federal ban.  For example, in 1990 the Sixth Circuit explained in United States v. Cassidy that the legislative history of the Firearm Owners Protection Act of 1986 “indicates that Congress intended to encompass those rights accorded to an individual by virtue of his citizenship in a particular state [ . . . :] the right to vote, the right to seek and hold public office and the right to serve on a jury.”  Other federal appellate courts similarly held in the immediate aftermath of FOPA that 921(a)(20)’s reference to state-level rights restoration requires proof that all three “core” rights (the rights to vote, hold public office, and serve on a jury) have been restored and that convicted felons in states without any process for restoring all of those core rights were simply out of luck for federal gun-rights restoration purposes.

Momentum behind rights-restoration in other areas, such as voting, might well clash with gun-rights restoration issues in the future.  For example, in August 2023 a Fifth Circuit panel struck down Mississippi’s lifetime disenfranchisement of certain convicted felons[4] under the Eighth Amendment and noted in the process that, “[i]n the last fifty years, a national consensus has emerged among the state legislatures against permanently disenfranchising those who have satisfied their judicially imposed sentences and thus repaid their debts to society.”  In dissent, Judge Edith Jones cited firearm dispossession as support for the proposition that “[t]he consequences of committing a felony rarely end at the prison walls.”  The en banc Fifth Circuit re-heard Hopkins in January 2024 and is set to issue a decision soon.  According to one report from oral argument, gun rights surfaced again with Judge James Ho asking the state whether it might also be “cruel and unusual” to deprive felons of other rights such as the right to have guns.[5]

If states move further toward an approach that restores other “core” civil rights directly (or soon after) a sentence is complete, that will necessarily bring more convicted felons within the 921(a)(20) carveout for those whose rights have been fully restored at the state level.[6]  This could scramble judicial ideological priors to at least some degree.  Judge Jones, for example, is a Republican appointee who joined the majority decision in Rahimi striking down the federal domestic-violence restraining order gun ban in 922(g)(8).  It’s somewhat difficult to square the view that the federal government cannot restrict the gun rights of those subject to DV protective orders with the view that Mississippi can broadly ban felons convicted of crimes of “moral turpitude” from voting for life (or, at least, one wonders how much weight the procedural protections of the criminal process can rightly bear in such comparisons).

It’s also worth noting that the body of federal case law holding that all “core” civil rights must be restored at the state level in order for an individual to be outside the scope of the federal felon gun ban is from the early 1990s and pre-dates Heller.  In fact, an interesting footnote in the Sixth Circuit’s 1990 decision in Cassidy rejected the government’s argument in that case that state gun-rights restoration was a “core” restoration required for federal purposes because “there is no individual right to possess a firearm.”  It is fascinating to consider whether and how Heller and the Supreme Court’s embrace of the individual rights view impacts this body of law.  At the very least, state gun restoration processes probably should factor into the 921(a)(20) inquiry more than they did in those cases—even if the wide variety of state approaches continue to support a multi-right examination.