Initial Public Comments on Federal Gun Rights Restoration Miss the Mark
This guest post does not necessarily represent the views of the Duke Center for Firearms Law. This commentary is cross-posted on the Wyoming Firearms Research Center Forum.
On March 20, 2025, the Attorney General published an Interim Final Rule titled Withdrawing the Attorney General’s Delegation of Authority. This pertains to the “relief from disabilities” provision in 18 U.S.C. § 925(c), which created a pathway for those prohibited from possessing firearms under § 922(g) to petition the federal government for restoration of their gun rights. This pathway has been inoperable since 1992, due to recurring riders in the annual Congressional appropriations bills that expressly defunded it. Now, the executive branch is seeking to reopen it.
Andrew Willinger previously covered the new Interim Final Rule on the Second Thoughts blog. In a nutshell, the disappropriation rider forbids ATF from using funds to evaluate applications for relief: “… none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c)…” The new Interim Final Rule, as the title suggests, withdraws DOJ’s delegation of authority to run the restoration program from ATF and brings the process back into the Office of the Attorney General. While the Rule suggests that Congressional action may follow, perhaps dropping this defunding rider entirely, in the meantime the workaround is that the Attorney General, who is not covered by the rider, will process the petitions, which comports with the current language of §925(c). Note that the Supreme Court rejected a previous attempt to use the judiciary to circumvent the defunding rider in its 2002 decision in United States v. Bean.
The Rule promised there would be more to come: “With such a clean slate, the Department anticipates future actions, including rulemaking consistent with applicable law, to give full effect to 18 U.S.C. 925(c) while simultaneously ensuring that violent or dangerous individuals remain disabled from lawfully acquiring firearms.” The Rule also rescinded previous regulations about how the petitions were to be processed, and promised that new ones are soon to come:
The Department respects congressional appropriations prerogatives, and it expects its forthcoming plan under Executive Order 14206 to include legislative proposals to modify or rescind the rider. It is also undertaking a broader examination of how to address the drain on resources that caused Congress to impose the rider in the first instance, including by addressing any potential inefficiencies in the regulatory process created by 26 CFR 178.144. Although the specific contours of any new approach to the implementation of 18 U.S.C. 925(c) may be refined through future rulemaking, the Attorney General has determined, in an exercise of her discretion under the HSA and 28 U.S.C. 509-510, that the appropriate first step is to withdraw the delegation to ATF to administer section 925(c) and withdraw the moribund regulations governing individual applications to ATF for 18 U.S.C. 925(c) relief. Consistent with that rider, the process described under 27 CFR 178.144 will not be transferred to any other agency or Department.
Recent headlines announced that actor Mel Gibson had his gun rights restored, along with nine other individuals. A Federal Register announcement officially announced the restoration of gun rights for Mel Gibson and nine other named individuals, with the same boilerplate justification that ATF used pre-1992. The other nine individuals were all convicted of nonviolent felonies many years ago, and they apparently went through a vetting process (unlike Mel Gibson). According to USA Today, Mel Gibson may have been the main impetus for the Attorney General’s new Rule:
His attorney drafted a letter to DOJ leaders during the Trump presidential transition appealing for a restoration of rights. The letter argued for the attorney general to reassert authority it had delegated to the Bureau of Alcohol, Tobacco and Firearms and Explosives that had gone unused since 1992.
Whether Mel Gibson and his lawyer deserve credit for this is a matter of speculation. This very maneuver—having the Attorney General taking over the program instead of ATF as a way to circumvent the Congressional appropriations rider—had been proposed by others previously. Law professors Ian Ayers and Fred Vars wrote in a 2025 article:
Finally, it might be possible for the Attorney General to act unilaterally to reinitiate processing and making 925(c) determinations. The appropriation limitations only apply to the ATF . . . . In contrast, the text of section 925 refers to the Attorney General as the person empowered to make the determination. This creates the potential for the Attorney General to designate non-ATF members of the Justice Department to investigate 925(c) applications and make relief recommendations to the Attorney General.
A similar suggestion was made in 2017 by the Congressional Research Service.
It appears that the DOJ is indeed moving ahead. The Office of the Attorney General opened a period for public comment on the Interim Final Rule, probably in hopes of gathering suggestions for how the program should be revived. Many costs of operating the program, which were a major factor in Congress defunding it in 1992, were artifacts of a world before the Internet, and before many relevant local government records were digitized (arrest records, employment records, property titles, and so on). ATF staff thus had to invest a lot of time contacting local police and sheriff departments, courts, and others requesting (typically printed) extensive records about each petitioner to determine whether the person posed a current threat to the community. Today, most of these records are available in digital format and can be shared quickly, if they are not already available for download by law enforcement agencies.
I poked around on the ATF website and found some odd items. On the one hand, ATF has not updated its website page that says relief from disabilities is no longer available. On the other hand, there is an updated form available to the public for applying for relief from firearm disabilities, ATF Form 3210.1, but it has a file name that indicates it was updated and posted in July 2023, while Biden was in office. And a confusing Justification Memorandum sent to the OMB in July 2020 explaining the updated form. I read this justification letter, and the fact that some personnel at ATF were working on updated forms, as an indication that some folks inside the Bureau anticipated that § 925(c) would soon be revived, either through Congressional action (dropping the appropriations rider) or through the Attorney General withdrawing the delegation. The latter makes less sense, however, because it is clearly still an “ATF form,” and presumably the new process will cut ATF out entirely. On the other hand, ATF Form 3210.1 may give an idea of the type of inquiry the Attorney General’s Office would pursue to decide which individuals are good candidates for having their gun rights restored.
I read several of the comments that have been submitted so far, and they were uniformly disappointing. Some were short rants about how Second Amendment rights are absolute and so forth, and some seemed to think the proposal was about repealing the felon-in-possession statute itself. Many copied and pasted, basically verbatim, the recommended comment verbiage in a Gun Owners of America (GOA) website post by GOA Senior Vice President Erich Pratt:
I strongly support the Department of Justice’s proposed rule to allow for federal restoration of gun rights pursuant to 18 U.S.C. 925(c). If the Trump Administration is serious about wanting to rein in unelected bureaucrats who have abused their power and waged war on individuals’ rights and freedom, then this rule must go into effect. Unelected ATF bureaucrats should not have the power to permanently deny certain Americans from ever exercising a constitutionally-protected right to keep and bear arms. Since the “Schumer Amendment” went into effect in 1992, thousands of would-be gun owners have contacted Gun Owners of America, asking for their constitutionally-protected rights to be restored. It is unjust to strip those Americans of a constitutional right – for life – especially a right that provides personal safety and security, and a right that is explicitly prohibited from being “infringed” upon. I urge the Department of Justice to move forward and fully implement this proposed rule.
But this comment is misleading. It suggests that ATF officials have the power to restore gun rights, but are not exercising that power. But the whole point of the new Interim Final Rule is that, because of the appropriations rider, ATF has not had the power to do anything about this since 1992. A recent op-ed in Reason noted this mistake with the GOA comments as well. For years, ATF has been sending notes to petitioners explaining that it is not allowed to even look at the petitions. Indeed, the Rule directs unelected officials to review restoration petitions and render decisions.
Based on the tone of the Rule and ATF’s pre-1992 practice, as well as the large number of failed as-applied Second Amendment challenges even in circuits that have allowed such constitutional challenges, I expect about two-thirds of the petitions to be denied. I believe that flooding the DOJ’s public comment docket with homogenized talking points is not helpful and misses the mark.
I also take issue with Pratt repeatedly calling the defunding rider the “Schumer Amendment.” The Congressional Record from the time gives no indication that Charles Schumer (then serving in the House) was involved with the defunding rider. Ian Ayres and Fred Vars recount in a recent paper that the appropriations rider came from this bill introduced by Representative Larry Smith (D-FL), Representative Ed Feighan (D-OH), Senator Paul Simon (D-IL), and Senator Frank Lautenberg (D-NJ) (see also here for Senator Simon’s related bill to repeal §925).Attributing the name of the Amendment to a more well-known politician, who is disliked in the gun community, fuels emotion and distracts from the larger conversation.
On the other hand, I should mention that the Violence Policy Center, which played a key role in the original defunding rider, has published its preliminary reaction to the Interim Final Rule. The center provides links to its two famous studies criticizing the policy of restoring gun rights in the first place.