Gun Rights and Disqualifying Convictions “Set Aside” Under State Law

This guest post does not necessarily represent the views of the Duke Center for Firearms Law.

Federal law has long prohibited convicted felons from possessing firearms or ammunition.  The U.S. Sentencing Commission reports that there are more than 7,000 convictions per year for violations of this law—almost all men, and disproportionately black and Hispanic men. The prior felony convictions that made them ineligible to possess guns range from murder, violent assaults, and armed robberies to drug possession or various types of fraud or embezzlement. Federal law also imposes a lifetime ban on firearms possession for anyone who has been convicted of a misdemeanor crime of domestic violence, set forth in 18 U.S.C. § 922(g)(9). 

Even though gun rights are a controversial and highly politicized topic, less controversial is the idea of disarming those who have committed violent crimes in the recent past. The hard cases are those where the prior conviction was for a less serious or nonviolent crime, occurred in the distant past, or both; in some cases, the individual appears to pose no more threat to the community than those without convictions. Similarly, individuals who have had their prior convictions set aside, or some civil rights restored, argue that the federal gun ban should not apply to them. 

The legal system has struggled to address these hard cases. Two remedial statutory measures have proved mostly ineffectual, discussed more below. In the last three years, due to shifting Second Amendment jurisprudence, courts have begun to entertain “as applied” constitutional challenges to those with older convictions for nonviolent felonies, and a circuit split has emerged over how to approach these cases.

The Third Circuit pioneered this recent trend in United States v. Range, a leading case bemoaning the inoperability of the existing statutory remedies, and suggesting that the as-applied Second Amendment route—a fact-intensive, individualized inquiry that seems to run counter to traditional judicial canons of constitutional avoidance—is necessary to fill in the gap left by the failed legislative redress.

The Sixth Circuit, which is relevant for the recent case discussed below, crafted a three-category standard for analyzing as-applied Second Amendment challenges to the felon-in-possession law last year in United States v. Williams (discussed in detail here). Prior convictions for “crimes against the person,” such as murder, rape, assault, and robbery are obviously dangerous, so perpetrators of such crimes may be legitimately disqualified from gun possession under the statute. A second tier or category includes other crimes that “pose a significant threat of danger,” like drug trafficking and burglary, which the Williams court says are also typically dangerous. The third tier or category of prior convictions, however, is for the least violent felonies, such as mail fraud. The Williams court resists assigning presumption levels to these categories, but instead the opinion instructs courts to weigh these classifications as part of a factual inquiry that looks at the individual’s entire criminal history, though I expect most courts will treat the first category as a per se rule of dangerousness. And while individuals with convictions only in the third category might seem presumptively not dangerous, the 2024 Netflix miniseries Ripley provides an example of garden-variety mail fraud that slides almost seamlessly into homicide.

One of the statutory means for restoration of gun rights is found in 18 U.S.C. § 925(c). ATF’s implementation of this “relief from disabilities” provision has been moribund since 1992, when Congress started defunding it in perennial appropriation riders. Concurring opinions in Range discussed this problem and suggested it left no other option than to resort to constitutional redress on an ad-hoc basis. As Andrew Willinger discussed here, there are new efforts underway to revive this “relief from disabilities” avenue, as the Attorney General announced in an Interim Final Rule in March. If implemented, the new rule would avoid Congress’ appropriations restriction by rescinding the AG’s delegation to ATF, which would technically (facially) make the ATF budget rider inapplicable, as the DOJ would handle restoration petitions separately from ATF. 

The other statutory avenue for restoration of gun rights is 18 U.S.C. § 921(a)(33)(B)(ii), part of a statutory definition section, which provides that § 922(g) does not apply to someone whose conviction has been “expunged” or “set aside.” A recent Tenth Circuit case, United States v. Warner, which I discussed here, involved an unsuccessful attempt to apply this provision to a felon facing gun possession charges. Under ATF interpretations and in many federal courts, If a state restores an individual’s right to have firearms, but does not restore all other rights forfeited due to a conviction, the individual is still a prohibited person under § 922(g). Thus, if someone has their gun rights restored under state law (perhaps along with some other civil rights), but they are still ineligible to vote or to hold public office, that person could still face charges under federal law for unlawful possession of firearms (see, e.g., this Tenth Circuit case). Similarly, if someone’s state misdemeanor conviction disqualifies them from possessing firearms under § 922(g), but the state itself imposes no forfeiture of rights, the person’s rights cannot “be restored” (see here). The court in the recent Warner case followed this rule. 

A few days before the Tenth Circuit published its decision in Warner, another case in the Eastern District of Michigan, Wilburn v. Bureau of Alcohol, Tabacco, Firearms, and Explosives, addressed the same provision, albeit a different clause in that subsection. Wilburn provides a more detailed discussion of how courts handle claims under  § 921(a). In addition, the facts of the case involve some unusual twists and turns that are eye-opening regarding bureaucratic processes within the Department of Justice. Note that Michigan is in the Sixth Circuit, but the court in Wilburn did not apply the Williams case discussed above, apparently because Williams applied to § 922(g)(1) rather than § 922(g)(9). Wilburn mentions Williams only in a footnote.

Jeremy Wilburn was convicted in 2008 of a misdemeanor crime of domestic violence. As mentioned above, this meant he was legally ineligible to possess firearms under federal law, and, in his case, under Michigan state law as well. Nevertheless, in 2022 a Michigan state court set aside this conviction under Mich. Comp. Laws § 780.621. According to a subsequent section of this state law, once a conviction is set aside, “the applicant, for purposes of the law, is considered not to have been previously convicted, except as provided in this section and section 3.”

The exceptions, however, are significant. The court in Wilburn noted that, under Michigan law, even a conviction that has been set aside still counts for purposes of 1) the state sex offender registry; 2) a charging another crime as a second offense (the set-aside conviction is still a prior offense); and 3) the obligation to pay court-ordered restitution to victims. 

Moreover, Michigan law requires the state police to keep a nonpublic record of set-aside convictions, to be used as a consideration in the following official decisions: 

• licensing by the judicial branch (i.e., licensing to practice law);
• future applications to set aside other convictions;
• sentencing for other convictions;
• governor’s pardon for other convictions;
• applications for law enforcement or security guard positions;
• prosecutorial decisions whether to press charges or make plea offers for future offenses.

The court ended up giving significant weight to these limitations, as explained below.

Wilburn’s storyline has some strange twists. A month after Wilburn’s 2008 conviction was set aside, he received a certificate from the FBI that stated he was eligible to buy firearms, and he bought at least six guns, passing a background check each time. In a footnote, the court observed that Wilburn’s pleading in the case has few details about this certificate, but in this case the government explained that the March 2022 certificate related to another crime—Wilburn’s 2016 conviction for “theft by false pretenses,” which the FBI had decided did not disqualify him from gun ownership. 

Nevertheless, a year later, Wilburn tried to buy a gun and the FBI’s NICS service issued a “delayed” response. “Delayed” responses to a background check trigger a short statutory waiting period, after which a dealer can complete the sale. Later the same day, NICS changed the “delayed” response to “denied,” based on his 2008 conviction, but by then Wilburn had left the store with his newly purchased gun. Three months later, in November 2023, the FBI/NICS referred the case to ATF, and ATF apparently informed Wilburn that he was in fact ineligible to own firearms due to his 2008 set-aside conviction. 

What happened next is a window into how the federal government handles a mix-up like this. Instead of charging Wilburn with unlawful possession of seven firearms, ATF helped Wilburn transfer his seven guns to his mother, and considered the problem resolved. Wilburn then sued ATF, challenging its determination that his 2008 conviction, now set aside, still made him ineligible to own a gun. His complaint included a Second Amendment challenge to his disarmament, as well as a demand for return of his guns plus monetary damages equal to three times the value of the guns.

As mentioned above, § 921(a)(33)(B)(ii) provides that § 922(g) does not apply to someone whose conviction has been “expunged” or “set aside.”  This would apply to § 922(g)(1), those with felony convictions, as well as § 922(g)(9), those with misdemeanor convictions for domestic violence. If such individuals have their convictions set aside or expunged, they can again lawfully own firearms, and they can petition the FBI to have their names removed from the NICS background check database. Many state statutes, however, provide for a way to have old convictions set aside that limit the application of the change, as in Michigan. 

The court in Wilburn noted that 18 U.S.C. § 921, though being a definition section, does not define some of its own terms, including “expunge” and “set aside.”  The government argued from an assortment of dictionary definitions that these terms should mean completely vacated or eliminated.  Even though the Sixth Circuit had no binding precedent defining these terms (the district court sits in the Sixth Circuit), the court looked to precedent from the Tenth Circuit, which has a longstanding rule that for purposes of the Gun Control Act, a conviction being set aside requires “that the state procedure completely remove all effects of the conviction at issue.”  

Thus, it was not enough that Wilburn had his conviction set aside under Michigan law because his conviction, though set aside, was preserved in state records and could still be used in all the scenarios mentioned above. The court contrasted Wilburn’s case with the facts in United States v. Laskie, a 2001 Ninth Circuit case where the defendant’s conviction was found to be sufficiently set aside under both state and federal law. Laskie pleaded guilty to a felony, but he later received an “honorable discharge” under Nevada law which, among other things, released him “from all penalties and disabilities resulting from the crime of which he has been convicted.” Given the “unequivocal” language in the discharge order, the Ninth Circuit held that the discharged conviction could not count as a conviction for purposes of the state or federal felon-in-possession statutes. In contrast, Wilburn’s conviction could still furnish the basis for some official consequences under Michigan law, so § 921(a)(33)(B)(ii) did not apply, which means Wilburn is still a prohibited person under § 922(g)(9).

Wilburn’s case highlights the complex interplay between state and federal statutes for purposes of federal firearms prohibitions, as well as the difficulty in using § 921 as a path to have gun rights restored, even for those who appear to pose no ongoing threat to public safety or security.  Of course, at some point Congress could amend § 921 to help resolve these difficulties, perhaps by adding a definition of “expunge” and “set aside” that would still cover circumstances like those in Wilburn. The Supreme Court could also weigh in on the definition of the terms and the applicability of § 921 in a way that achieves the same result.

This is not to say, however, that I would necessarily advocate such a change. I have defended the current regime of felon-in-possession laws here, based on a variety of policy considerations and historical arguments. Allowing more individuals with disqualifying prior convictions (like Wilburn) to have guns, in the aggregate, can accelerate civilian arms proliferation, and accelerating civilian arms proliferation normally raises the incidence of chaotic gun violence—interpersonal conflicts that turn violent, revenge or retaliation killings, gun suicides, and sporadic political violence. At the same time, I think that the recent trend of courts embracing “as applied” Second Amendment challenges to § 922(g) lifetime gun bans is a clumsy attempt to address a perceived unfairness or disproportionality in our laws that would be more appropriate for the legislature to remedy. Arguably, Congress intended to do that when it enacted the Gun Control Act in the first place with § 921(a)(33) and § 925(c), though neither mechanism has achieved that purpose.