Gun Rights for Convicted Felons? – Part 2

Published by the LearnAboutGuns.com Author on November 23, 2012 at 5:00 am
LearnAboutGuns.com > Pro Gun Rights Articles > Gun Rights for Convicted Felons? – Part 2

Back in 2008, I wrote a brief article entitled “Gun Rights for Convicted Felons?”  In that article, I noted that a US Federal law (and various state laws) prohibit anyone convicted of a felony from possessing firearms*, and stated that such a blanket ban on firearm ownership seems illogical and unreasonable.

To recap

I reached that conclusion primarily because many  felonies are not crimes of violence, and the fact that a person is convicted of any felony is not a good predictor that the person is forever a danger if armed.  For example, a felony conviction for tax evasion would seem to have little if any value when evaluating whether a particular person is likely to commit a crime of violence with a gun.  A drug possession felony conviction from 1960 doesn’t seem to suggest that the person will commit a crime of violence with a gun in 2012.  It would even seem difficult to say that a person convicted of a felony battery for a fist fight in a bar when they were 21 years old would pose a danger of committing a crime with a gun when they are 85 years old.

In other articles, I’ve discussed the fact that even if such total bans on firearm ownership by anyone convicted of a felony were reasonably related to the goal of disarming violent individuals, such laws don’t work.  Instead, the person who is bent on committing a violent crime will be just as willing to break a gun control law as they are willing to break the law against murder, rape or robbery.

Taking the matter from one of hypothetical discussion to the real world, I have written about multiple cases in which convicted felons have used guns in self defense, only to be charged for possessing the gun.   Some of those individuals have had a happy outcome to their court cases, while others have not.  Given the hundreds of comments (exactly 641 as I write this article) that have been posted in the original “Gun Rights for Convicted Felons?” article, it appears that this is an issue that has real-world implications for many people.

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My thoughts in 2012

As I write this article, I have spent several years working as an attorney, and have had occasion to handle hundreds of felony cases.  I have also had occasion to represent clients who have a previous felony conviction that is completely unrelated to their current legal matter (e.g. a felony conviction from 8 years ago, as I represent them in a divorce case now).  Based upon those experiences, I have reached a couple of additional conclusions that I thought might be worth sharing:

Some people plead guilty to felony charges, even when innocent, to avoid the risk of trial.  As an example, I had a client who was charged with a very serious felony for his very proper self defense actions, who seriously considered pleading guilty to a plea offer for a lesser felony, to avoid the possible worst-case outcome at trial.  That client was found not guilty, and was happy with his decision to go to trial in the end – but it took courage on his part and extensive counseling on my part to get him to proceed to trial, rather than to plead to the lesser felony charge that the prosecution offered.  I have heard of many people who made the opposite choice (sadly sometimes at the urging of an attorney who just wants to wrap up the case).

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Some people plead guilty to felony charges to get out of jail. As an example, one client of mine was charged with a felony and was in jail awaiting trial.  The prosecution made an offer that would have him released from jail that very day, on credit for time served.  While I believed he had a good chance of prevailing at trial, and also an excellent chance of receiving a better offer that would not result in a felony conviction, he elected to take the prosecutor’s offer that day – despite my counsel to the contrary.  His decision was based primarily on the desire to be out of jail and present for the birth of his child that would occur in a matter of days, while trial was at least a couple months away.

There are also some people who are factually innocent and who were wrongfully convicted despite putting forth best-effort to defend themselves against the charges.  Sometimes that conviction is the result of the judge or jury simply reaching the wrong result after a trial.  Other convictions are the result of perjury or misconduct on the part of a witness or prosecutor. In still other cases, the wrongful conviction could be the result of the person’s attorney not properly handling the case.  Regardless, not every conviction is factually proper. While I generally have confidence in our legal system and am proud to be an attorney, the simple fact is that our legal system is not perfect.

On the flip side of things, there are plenty of people who have factually committed a felony, who are charged with a felony, but who do not get convicted of a felony.  In a great many cases, a deal is reached to reduce the charge to a misdemeanor.  Or, sometimes the person is able to avoid conviction when the victim retracts their story or requests that the prosecution dismiss the case.  There are also cases in which the victim or witnesses move, become defendants themselves, or otherwise cause the prosecution’s case to collapse.  In other cases, the attorney is able to get evidence suppressed due to misconduct on the part of the police in obtaining the evidence.  Regardless of the reason, a large percentage of felony cases in which a person is factually guilty do not result in a felony conviction.  Indeed, while there are not and will likely never be statistics on this issue, I would make the educated guess that for most of the less-serious felony charges, the odds of a felony conviction are much more correlated with who the defendant has for an attorney than whether the defendant is factually guilty or innocent.

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For all of those reasons, and others, I am now even more firmly of the opinion that a felony conviction by itself is just not a sufficient justification to forever bar an individual from possessing firearms.

* As an Attorney, I would like to reiterate that nothing I write on this website constitutes legal advice, no attorney-client relationship is formed between readers of this website and myself, and readers are cautioned not to heed “legal advice” offered online by non-lawyers.  Those who are seeking an attorney to attempt a gun rights restoration in Illinois or Iowa can see this page of my law firm’s website.

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  • Vadim

    I have read both Part1 and Part2 of your article and completely agree with you.

    I myself am a nonviolent felon (embezzlement) convicted in 1999 for 8 months in county jail, since then have I re-paid my financial restitution in full. I have always worked and paid taxes before the incident and every day after. I have a wife and child of 15 years old and consider myself to be good husband, father and citizen minus my one stupid mistake back in 1999.
    Now in my mid forty’s age I would love to go small game hunting with my family but unfortunately that will never happen for me. It is amusing that a life time felon can and will acquire a firearm to continue to commit crimes against society but a person like me is not allowed to acquire a firearm for self-defense and hunting, in some cases others may even need hunting to provide food for their family. It just seems really unfair, how long must I pay for my one and only nonviolent mistake? Seems like this is a life time sentence.

  • Stanley Stovall

    I feel the same! In 1971 I was convicted in Texas for possession of marajuana,That revocated my earlier probation of "theft over $50.00",I was 16 years old,and I admit, out of control at the time.And although Marajuana possession was illegal I did smoke it,was turned in,I confesed my crime again and spent my 20th and 21st birthdays in the Texas Dept. of Corrections.Fourteen months and twenty-four days I served there.Haven`t I served my time?I use to enjoy going rabitt hunting as a boy.Why as an older gentelman of 59 can I not take my grand children out hunting,owning my firearm,to use (Responsibly) asI have shown all (Concerned) I am now an adult-responsible-and of no threat to the public safty?

    • Robert S. Bartosh

      I’m filling out paperwork to regain my rights to bear arms from the Texas Pardons and Paroles. By the 2nd amendment, I shouldn’t have to ask. I have to have a full pardon from Mr. Greg Abbott before they will let me have my rights back. 5 hrs of paperwork and I’m not even done. Paperwork and more paperwork for a right that is inhearted by our founding fathers. Yes, 1997 I made a dumb choice as a kid and now I’m paying for it. But wait. What’s really weird is the law that are made stating I can have a weapon without even a pardon.

      For example, a convicted felon may possess a firearm in the residence in which he lives once five years have elapsed from his release from prison or parole, whichever is later.

      Read this part.

      Under Texas Penal Code §§ 12.33, 46.04, the unlawful possession of a firearm is a third degree felony with a punishment range of two to ten years for a defendant with one prior felony conviction and fine up to $10,000.

      Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM. (a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
      (1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
      (2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.

      I have not committed any offense since my release.

      PLEASE.

      Amendment II

      A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

      What part do they not understand about infringed?

      I’m filling out my paperwork.

      I have a petition for the right to bear arms for convicted felons. If you disagree with what the law states please sign my petition to congress. Thanks for your time.

      http://www.petition2congress.com/…/2nd-amendment-ref

  • stanley Stovall

    I do not believe we should permitt the sale,purchise,or manufacturing (for public use) any military or paramilitary weapon.I.E.hand granades,Fully automatic weapons or any that can easly be converted from a semi-auto to a full automatic.Americans as a whole aren`t cold killers,or war mongers.But we all need to feel safe in our own homes.We don`t need to stave off a Muntant-Alien-or-a-Zombie attack.Just the home invader,burgler,or killer in front of us.But as a human being,a husband,father,grandfather,I will protect those who can not or will not protect themselves. EVEN WITHOUT A GUN ! But an even chance would be preferable.

    • clint

      seems you guys are missing the fact that this right was given to us to protect ourselves from tyranny in government , does this mean that felons have to stand aside and be slaughtered while a tyranical government goes on a killing spree?
      you are allowed to hunt still bow and muzzelloader and even antiqque firearms {made before 1918} and the ammunition cannot be readily purchased thrue retail means also you are not allowed to own conventional black powder you can only use the black powder meant for muzzloading and you cannot possess it you have to have it loaded this applys for fixed and flint lock cap lock etc pre 1918 and has to have rare if not reloaded ammo.

  • matt

    To all who posted on this site. 31 years ago I became a non violent felon. Never had an issue after that.I spoke with an attorney about getting my rights back. Depending on the state you can have records sealed or apply for a pardon. I am in the middle of the pardon application. I spoke with the dept of parole and probation in CT and they were very helpful and encouraging. I believe I will win my request for pardon. My attorney told me to try to fill the application out myself and he would help if I needed it. I did not require any help.

    Good luck.

  • hicusdicus

    In 1974 I was arrested and charged with felony possession of marijuana. It was changed to misdemeanor possession and a 250.00 dollar fine and that was that. For many years I bought guns and acquired a CCW . Then about 10 years ago I went to buy a gun and was turned down. I found out I was now a convicted felon. I discovered that when the Brady law was enacted they swept all the old court house records and if it said felony any where in the transcript the person was considered a convicted felon. WOW! After 7 months a bunch of money and conversations with the FBI and state of Texas I found a very decent person in the Texas dept of public safety who volunteered to go to the basement of the court house and go thru the micro fish records and and write a letter to the FBI and correct the situation. There are a lot of good decent bureaucrats who I give many thanks to. I hope all of you can find the same kind of people to help you out

  • wade stegal

    in 1988 i took a deal. and was told that i could eventually get it expunged… now 25 years later i finally have a intrest in getting my record taken care of and find out its not sealable in ohio. im not or never have been proud of what i done 25 years ago. but im not the dumb 19 year old kid anymore either….

  • Carl

    In 2006, I was charged with a felony of intent to distribute narcotics. I live in Texas and I completed my probation. Can I apply for a chl in my area.

    • Robert S. Bartosh

      I’m filling out paperwork to regain my rights to bear arms from the Texas Pardons and Paroles. By the 2nd amendment, I shouldn’t have to ask. I have to have a full pardon from Mr. Greg Abbott before they will let me have my rights back. 5 hrs of paperwork and I’m not even done. Paperwork and more paperwork for a right that is inhearted by our founding fathers. Yes, 1997 I made a dumb choice as a kid and now I’m paying for it. But wait. What’s really weird is the law that are made stating I can have a weapon without even a pardon.

      For example, a convicted felon may possess a firearm in the residence in which he lives once five years have elapsed from his release from prison or parole, whichever is later.

      Read this part.

      Under Texas Penal Code §§ 12.33, 46.04, the unlawful possession of a firearm is a third degree felony with a punishment range of two to ten years for a defendant with one prior felony conviction and fine up to $10,000.

      Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM. (a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
      (1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
      (2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.

      I have not committed any offense since my release.

      PLEASE.

      Amendment II

      A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

      What part do they not understand about infringed?

      I have a petition for the right to bear arms for convicted felons. If you disagree with what the law states please sign my petition to congress. Thanks for your time.

      http://www.petition2congress.com/…/2nd-amendment-ref

  • Dorina Hart

    In 1996 I plea bargained on felony credit card abuse, in dec 2013, I did purchase a handgun, and checked into getting my chl here in Texas, but it seems I can’t, because of the non violent felony on my record, it makes No sense to me how a “felon” can purchase a handgun, but can’t get a CHL…….

    • Robert S. Bartosh

      I’m filling out paperwork to regain my rights to bear arms from the Texas Pardons and Paroles. By the 2nd amendment, I shouldn’t have to ask. I have to have a full pardon from Mr. Greg Abbott before they will let me have my rights back. 5 hrs of paperwork and I’m not even done. Paperwork and more paperwork for a right that is inhearted by our founding fathers. Yes, 1997 I made a dumb choice as a kid and now I’m paying for it. But wait. What’s really weird is the law that are made stating I can have a weapon without even a pardon.

      For example, a convicted felon may possess a firearm in the residence in which he lives once five years have elapsed from his release from prison or parole, whichever is later.

      Read this part.

      Under Texas Penal Code §§ 12.33, 46.04, the unlawful possession of a firearm is a third degree felony with a punishment range of two to ten years for a defendant with one prior felony conviction and fine up to $10,000.

      Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM. (a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
      (1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
      (2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.

      I have not committed any offense since my release.

      PLEASE.

      Amendment II

      A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

      What part do they not understand about infringed?

      I’m filling out my paperwork.

      I have a petition for the right to bear arms for convicted felons. If you disagree with what the law states please sign my petition to congress. Thanks for your time.

      http://www.petition2congress.com/…/2nd-amendment-ref

  • Rich

    I am a man in his sixties never convicted of a violent crime. I served my country in Vietnam had a top secret clearance, came home got mess up on drugs due to the fact I got hook on in Nam. I got caught one day selling a quarter gram of coke to an undercover officer. Was sentence to 9 to 23 months in work release. Never been in trouble since it is a shame you serve your country in the military your sent to another country to kill people, come home messed up from the war commit a non violent crime and CAN NOT OWN A GUN what a sin and what a way to treat our vet. Isn’t America great????????

    • Richard

      That’s so unfair . You should without question be allowed to own firearms !!!!!!

    • Richard

      That’s so unfair . You should without question be allowed to own firearms !!!!!!