DOJ’s Proposed Gun Restoration Program Raises Automation Questions while Mirroring Felon-in-Possession Standard

On March 20, the Department of Justice issued an interim final rule that “amends [DOJ] regulations relating to the Bureau of Alcohol, Tobacco, Firearms, and Explosives by withdrawing effectively moribund regulations regarding how ATF will adjudicate applications for relief from the disabilities imposed by certain firearms laws and withdrawing a related delegation.”  The rule is designed to transfer authority for implementing statutory language contemplating that prohibited gun possessors can apply for relief from that disability at the federal level from ATF back to DOJ.[1]  This transfer will, in the rule’s language, “provide[] the Department a clean slate on which to build a new approach to implementing [a federal restoration program] without the baggage of no-longer-necessary procedures.”  The rule raises perhaps more questions than it answers, both about how the new program might utilize automated methods to process applications and how it will interact with Second Amendment litigation seeking to recover federal gun rights.

When it passed the Gun Control Act of 1968, Congress not only expanded the categories of individuals who are prohibited from possessing guns and ammunition but also provided that a prohibited person:

may make application to the Attorney General for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.

However, as the new rule describes, “[i]n the early 1990s, Congress became concerned about the number of resources that ATF was using to adjudicate requests to relieve individual Americans from disabilities on their ownership of firearms” and that those whose rights were restored might go on to commit firearms offenses.  Thus, in 1992, Congress stopped funding the ATF restoration program—effectively cutting off the ability for a prohibited person to recover his or her federal gun rights.  As ATF itself notes, “[a]s long as this provision is included in current ATF appropriations, ATF cannot act upon applications for relief from federal firearms disabilities submitted by individuals.”  After evolution in the Supreme Court’s jurisprudence starting in 2008 provided an opening to argue that status-based possession bans violate the Second Amendment in certain instances, those who might otherwise have used the federal restoration process have instead increasingly argued in court that their guns rights should be restored as a constitutional matter.

The DOJ’s new rule, which is likely an outgrowth of President Trump’s earlier executive order directing the AG to investigate any ongoing infringements of the Second Amendment or gun-rights violations, raises at least two major questions.  First, what will the new program that DOJ intends to develop actually look like?  And, second, how might an operable federal restoration program impact Second Amendment litigation?

As of now, there are few signs about what the administration has in mind for the new program.  The rule itself deals almost exclusively with transferring authority from ATF back to DOJ by withdrawing the relevant delegation—thus removing the current funding constraints and creating “a clean slate on which to build a new approach.”  But the rule says little about what the new approach will look like, noting only that it will “give full effect to 18 U.S.C. 925(c) while simultaneously ensuring that violent or dangerous individuals remain disabled from lawfully acquiring firearms.” 

In early March, it was reported that Elizabeth Oyer (the DOJ’s lead pardon attorney) was let go after she opposed restoring actor Mel Gibson’s gun rights; Oyer also published her own account here.  Gibson pleaded no-contest to a battery charge in 2011 involving his ex-girlfriend and thus lost his gun rights because 922(g) covers misdemeanors that involve domestic violence.[2]  Oyer informed reporters that she was part of “a working group tasked with assembling a list of candidates who could have their gun rights restored” and that, when she expressed reservations about Gibson given his past domestic violence conviction, she was fired from the department.  Some press surrounding Oyer’s termination suggests that the working group discussions she joined were perhaps the first step toward creating the broader restoration framework referenced in the March 20 rule.  And Oyer described some details of these conversations:

She was very alarmed, she said, that officials kept insisting that the process for restoring such rights should be “automated,” rather than based on a review of the facts of the cases. Within the working group, the government lawyers seemed to generally agree that a significant period of time since a conviction should have passed for someone to be eligible for such relief, perhaps 10 or 15 years, and that it should not be extended to convicted murderers and armed robbers. But the issue of domestic violence proved to be a sticking point, particularly when it came to Mr. Gibson.

This account is noteworthy, both for the reference to a largely automated process and for the apparent consensus that those convicted of indisputably dangerous offenses should not be rearmed, no matter the passage of time since the offense(s) of conviction.  While it’s possible that automation could make the new process less resource-intensive than the pre-1992 version, thus addressing one of Congress’ purported concerns, it is hard to imagine allowing a convicted felon or domestic violence misdemeanant to obtain guns without an individualized assessment of the facts in each case by an actual human. 

Automation can only go so far and—even if it would allow DOJ to process applications without obtaining additional funding from Congress—it creates serious accountability and transparency concerns.  One might well expect that the potential for major ramifications if a convicted felon is allowed to obtain guns and goes on to commit a violent crime would exert a positive influence on human decisionmakers to proceed cautiously.  Not so with an automated system, which itself has no reason to consider future public backlash.  The issue evokes debate over the use of algorithms and artificial intelligence in criminal sentencing.  In a much-publicized decision in 2016, the Wisconsin Supreme Court rejected a due process challenge by a criminal defendant to the use of an algorithmic risk assessment tool in his sentencing.  Scholars, however, have typically sounded a more cautious note, especially for judicial reliance on so-called “black box” AIs.  The issue actually might be a more serious problem in the gun-rights restoration context than in criminal sentencing because the potential risk to the public is more direct.  If an algorithm is used to sentence a convicted criminal to a shorter sentence than might otherwise be imposed, any public risk necessarily occurs only after the sentence is complete.  But, with gun-rights restoration, the risk is immediate.

Second, how might this new process interact with litigation in which prohibited persons seek to recover their rights under the Second Amendment?  The new rule indicates a desire to “ensur[e] that violent or dangerous individuals remain disabled.”  That tracks the underlying statutory language in 925(c), but it’s also largely the same standard that courts allowing as-applied Second Amendment challenges to the felon ban under Bruen have embraced—most notably the Sixth Circuit in United States v. Williams.[3]  And, like the courts, initial discussions suggest the DOJ program will focus primarily on criminal history rather than other possible indications of dangerousness such as post-offense conduct, employment, and so on.  It may well be that the courts have given the DOJ some cover to settle on this standard, because it’s then possible to say that the government is only allowing restoration to the extent already required under the Constitution. 

If the tests do converge, however, that doesn’t make the DOJ rule any less consequential.  Most Second Amendment challenges now are brought in the context of active criminal proceedings, as opposed to prospective rights-recovery actions seeking a declaratory judgment that someone is not subject to the federal ban.  That’s because, absent pro bono assistance, the legal fees associated with such a case will be prohibitive for most Americans.  A potential federal restoration program would open the door wider and allow many with long-ago convictions to apply to have their rights restored—but the devil is always in the details, and debates over how to evaluate applications may still scuttle the program or limit its effectiveness.