Litigation Highlight: How State Gun-Rights Restoration May Complicate 925(c)

The Department of Justice (DOJ) has now published a proposed rule explaining how it intends to re-open the application process for federal prohibited gun possessors to apply for their firearm rights to be restored.  The proposed rule is a centerpiece of President Trump’s gun policy in his second administration, and the federal government has emphasized the new restoration process in filings with the Supreme Court suggesting that as-applied Second Amendment challenges should be rejected and instead channeled through 925(c) restoration.  However, the potential new federal restoration process has no impact on state-level disqualifications from gun possession which can, in some cases, be especially strict.  A recent Eighth Circuit Court of Appeals decision involving Iowa’s state gun-rights restoration framework shows that, regardless of how the new federal restoration process takes shape, many individuals may still remain subject to state disqualifications and thus be unable to exercise firearm rights. 

In Browne v. Reynolds, an Eighth Circuit panel rejected an Iowa resident’s Second Amendment challenge to the state’s lifetime ban on gun possession for those convicted of “forcible” felonies.  Anthony Browne was convicted of violent felony offenses in 1991, including causing serious injury and criminal gang participation.  After serving several years in state prison, Browne was released and turned his life around—he earned a college degree, obtained a job, and has since been a law-abiding citizen.  Browne wishes to obtain a firearm to keep at home for self-defense and to use for hunting and target shooting.  In addition to being prohibited from possessing a gun under federal law,[1] Browne is also subject to Iowa’s state prohibition, which generally bars convicted felons from possessing firearms and obtaining gun licenses. 

Iowa law contemplates that most felons can apply to the governor’s office for restoration of gun rights.[2]  Iowa Governor Kim Reynolds has implemented a policy of generally granting such requests, but only after five years have passed “from the date a person discharges their sentence.”  However, Iowa law also limits restoration to certain categories of felons; individuals who have been convicted of violent crimes, including “forcible felonies,” are ineligible and can never have their firearm rights restored within the state. Specifically, the statute provides that,

[n]otwithstanding any other provision of this chapter, a person who has been convicted of a forcible felony, a felony violation of chapter 124 involving a firearm, or a felony violation of chapter 724 shall not have the person’s rights of citizenship restored to the extent of allowing the person to receive, transport, or possess firearms.

Browne, whose past felony convictions constitute “forcible felonies” because they involved an element of violence or use of force against another person, is thus ineligible to have his gun rights restored.  Browne sued the governor and his county sheriff, alleging that the policy of barring him from restoration entirely violates his Second Amendment rights and seeking orders preventing the state from using the statutory exclusion for forcible felonies to prevent him from obtaining a gun and permit.  The district court dismissed for failure to state a claim, and Browne appealed.

The panel first found that Browne had standing to challenge the state’s forcible-felony exclusion—even though he hadn’t actually applied for a permit, the county sheriff would be bound to follow state law could not grant a permit if Browne did apply.  Thus, Browne was harmed by the statute and his requested relief would alleviate that harm.

On the merits, the panel affirmed the dismissal of Browne’s Second Amendment challenge.  The panel relied on its earlier decision in United States v. Jackson, which determined that the federal ban on felon gun possession in 18 U.S.C. § 922(g)(1) was constitutional in all applications and that “that there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).”  Jackson, the panel said, firmly rejected the possibility “of an individualized determination of dangerousness as to each person in the class of prohibited persons,” which would be required to vindicate Browne’s challenge.  (Browne argued that he was “entitled to issuance of a handgun permit unless the sheriff conclude[d] after an individualized determination that [he] is ‘currently dangerous.’”)  In addition to attempting an “end-run” around Jackson, the panel said, Browne’s argument was not supported by history because “[e]arly-American legislatures ordered disarmament and authorized punishment of death for forcible felonies and even for some non-violent offenses.”  Thus, the panel held, the lesser penalty of even lifetime disarmament is permissible.

Browne also argued that Iowa law was problematic in that the exclusion for forcible felonies limited even the governor’s pardon power.  The panel, however, said that this argument “misconstrue[d] Iowa law” because the governor’s pardon power does not depend on any act by the state legislature.  Rather, the governor retains the ability to issue pardons even for those convicted of forcible felonies.  In sum, the panel found that Iowa’s system of “a lifetime restriction on the right of forcible felons to possess firearms, subject to a gubernatorial pardon, is consistent with the Nation’s historical tradition of firearms regulation.”

I’d like to focus here on the interaction between state-level restoration frameworks like Iowa’s and the new proposed federal restoration program under 925(c).  State restoration can bear on federal gun rights because the prefatory, definitional section of 922 states that “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter.”  But this isn’t generally true in the reverse direction—in other words, someone whose rights are restored federally isn’t automatically removed from the scope of a state-level disqualification, absent additional action by the state itself. 

DOJ’s proposal to re-start the federal 925(c) restoration process specifically acknowledges this limitation: “[925(c)] does not restore the right to possess a firearm under state law if the applicant is independently subject to any such state-law prohibition.”  The proposed federal rule emphasizes that it is designed to screen out dangerous, violent offenders—going so far as to criticize prior iterations of 925(c) as being too lenient in their approach to violent offenders.  Thus, any person “convicted under state or federal law of any [] felony offense where the defendant committed or threatened acts of violence” is presumptively ineligible for federal relief under 925(c) absent “extraordinary circumstances.”[3]  But the rule also states that there will be “no categorical approach”; that is, the Attorney General “is not limited to a ‘categorical approach’ that looks only at the elements of the applicant's underlying offenses and compares them to a ‘generic’ version of the listed offenses,” but rather must evaluate each case holistically based on facts specific to the individual applicant. 

This all means that Browne might get a closer review at the federal level, were he to apply under the revamped 925(c) process, but it’s still likely he will be found ineligible for restoration because his convictions involve or closely relate to physical violence.  That said, the Eighth Circuit’s decision also illustrates how variety in state restoration processes might frustrate the operation of the new 925(c) process. Some states are more liberal than Iowa in restoring gun rights and, assuming such restoration is accompanied by restoring other civil rights as well, this would take potentially even violent offenders out of the federal category of prohibited felons, without any federal action.  Presumably, this could threaten DOJ’s emphasis on preventing violent, dangerous individuals from accessing restoration.  And, conversely, states with restrictive pardon-only regimes can frustrate the 925(c) pathway because individuals who are granted restoration at the federal level will remain barred under state law from possessing guns.