Thoughts on United States v. Warner and Restoration of Rights

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

A recent Tenth Circuit decision, United States v. Warner, highlights the problems with one of the two avenues the Gun Control Act provided for some convicted felons to have their gun rights restored: obtaining expungement and full rights restoration at the state level.  Courts since 2022 have begun to entertain “as applied” challenges to the felon gun ban on Second Amendment grounds, and some have ruled in favor of some nonviolent felons. Courts are increasingly using constitutional rulings to fill the gap left by other defunct routes that would otherwise have been a much more appropriate vehicle for redress in these exceptional cases. 

Neither of the Gun Control Act’s statutory recovery avenues works very well. One avenue—not the one at issue in Warner—is in 18 U.S. Code § 925(c), which the Code calls “relief from disabilities,” and which provides for an administrative exception by the Attorney General, based on “the circumstances regarding the disability [that is, the predicate felony conviction], 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.”  While this remains good law, Congress has defunded the processing of applications by an appropriations rider every year since 1992, and the Supreme Court said in United States v. Bean that there is no judicial redress for the ATF’s failure to decide submitted applications. The “relief from disabilities” avenue may soon return, though, because a new Interim Final Rule by the Attorney General on March 20, 2025, purports to revive the program by rescinding the AG’s delegation to ATF, which would make Congress’ appropriations rider inapplicable and potentially allow the DOJ to create and implement a federal restoration program.

The Warner case involves the other statutory avenue for restoration of gun rights, which is found in in 18 U.S.C. § 921(a)(33)(B)(ii), part of the definition section of the Gun Control Act. This section provides that § 922(g) does not apply to a felon “if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) . . . .” Thus, felons whose past convictions have been set aside or expunged may no longer be prohibited from owning firearms or even from obtaining a gun dealer’s license, and they can petition the FBI to have their names removed from the NICS background check database. The problem is that many state statutes that provide for a way to have old convictions set aside limit the application of the change and restore only a subset of civil rights, so the prior conviction may still be relevant for purposes of the Gun Control Act. This was the case in Warner.

Charles Warner had two felony convictions in South Carolina, one in 1996 and another in 2002. Both convictions were for a nonviolent crime: “breach of trust with fraudulent intent” under S.C. Code § 16-13-230(B)(2), which is punishable by more than one year in prison. Warner received only probation. At some point, he relocated to New Mexico, and he became significantly involved in a business that made custom firearms. His business partners left his name off documents they filed with ATF to obtain a gun dealer’s license. While reviewing the application for a dealer’s license, ATF learned that Warner might be significantly involved in the business, so ATF agents visited the place of business and encountered Warner working there. The agents warned him that he was not allowed to handle, possess, or otherwise have access to firearms, and Warner agreed. ATF subsequently issued written warnings to the business, which Warner and his partners ignored. Over the next several years, ATF would discover that Warner remained intimately involved in the gun business, and ATF would issue another warning. Finally, in 2019, ATF received a tip that Warner was still running the business. When someone at the Bureau checked the business’ Facebook page, the phone number listed was Warner’s home. The government obtained a search warrant for business records, which confirmed ATF’s concerns, and set up a sting operation in which an undercover agent arranged to buy a gun from Warner.  While searching Warner’s home, the agents found many guns, ammunition, and equipment for making firearms. Warner was prosecuted, and convicted, of being a felon in possession of guns and ammunition in violation of 18 U.S.C. § 922(g)(1). 

Warner challenged his felon-in-possession charge and argued, among other things, that he was not a person prohibited from possessing a firearm under 18 U.S.C. § 922(g)(1). Warner argued that he was not a prohibited person because he had a substantial number of his civil rights restored by South Carolina and thus regained his right to possess a firearm under South Carolina law. This is important because § 921(a)(20)(B) provides an exception to § 922(g)(1) for “any conviction . . . for which a person . . . has had civil rights restored.”

The Tenth Circuit rejected Warner’s argument. For civil rights to be considered “restored” under the statute, Tenth Circuit precedent requires that “the rights to vote, serve on a jury, and hold public office, as well as the right to possess firearms, must all be restored under § 921(a)(20) before a prior conviction may be excluded on the basis of civil rights.”  In other words, it is not enough that an individual’s right to possess a firearm has been restored under state law. The state must restore other civil rights for that individual to be allowed to lawfully possess a firearm under federal law.

The court noted that Warner conceded before the district court and in his brief to the Tenth Circuit that he had not had his right to serve on a jury in South Carolina restored, because that right could only be restored by a pardon from the state’s Probation, Parole, and Pardon Board. The court concluded that, because of this, Warner had not had his civil rights restored and thus remained a prohibited person under § 922(g)(1).

Warner is an example of how this statutory avenue for felons to seek restoration of their gun rights is often unavailable in practice. Even if a state’s law restores some civil rights, most federal courts require that all civil rights be restored. On one level, this situation is frustrating because it seems to thwart Congress’ intent to mitigate some of the severity of the lifetime felon ban, at least for felons who meet the conditions for having their convictions set aside, expunged, pardoned, or their civil rights restored. At the same time, Warner is not a sympathetic character like Bryan Range, whose decades-old conviction for a single instance of food stamp fraud was mild enough to prompt the Third Circuit to grant his as-applied Second Amendment challenge to the federal law banning him from owning a gun. Warner had two felony convictions and repeatedly ignored ATF warnings to stop participating in the gun business.