To restore or not to restore: Appeals court addresses law on firearm right restoration for persons convicted of federal felony

The Court of Appeals of Virginia, analyzing both state law and federal law, recently addressed the issue of firearm right restoration for persons convicted of a federal felony.

In the published opinion Focke v. Commonwealth, 77 Va. App. 366 (2023), the court wrote:

“Federal law is clear that State courts cannot remove the federal disability to possess a firearm that results from a federal felony conviction. See Beecham v. United States, 511 U.S. 368, 374, 114 S.Ct. 1669, 1672, 128 L.Ed.2d 383 (1994) (holding that persons convicted of federal felonies may have their firearm rights restored ‘only if they have had their civil rights restored under federal law’). Thus, federal law would render ineffective a State court’s attempt to restore a federal felon’s federal firearm rights. Id. at 373. Focke also recounted how the federal avenue for restoration under 18 U.S.C. § 925(c) “has long been closed because Congress has consistently prohibited using federal funds to investigate or process applications to restore firearm rights.” Id. at 370.

The Focke decision is consistent with existing U.S. Supreme Court jurisprudence. The Supreme Court opined in Beecham that for the purposes of § 922(g) and § 921(a)(20), “[a]sking whether a person has had civil rights restored is … just one step in determining whether something should ‘be considered a conviction.’ By the terms of the choice-of-law clause [of § 921(a)(20)], this determination is governed by the law of the convicting jurisdiction.”

Furthermore, the Supreme Court expressly rejected the Ninth Circuit’s argument that, since a federal felon cannot have his rights restored under federal law, Congress must have been referring to a state restoration procedure. Id. at 372-73 (observing that “[u]nder our reading of the statute, a person convicted in federal court is no worse off than a person convicted in a court of a State that does not restore civil rights.”).

In evaluating the Ninth Circuit’s argument, the Supreme Court “express[ed] no opinion on whether a federal felon cannot have his civil rights restored under federal law” but commented that it was a “complicated question.” Id. at 373 n. *.

Eight years after the Beecham case, the Supreme Court ruled more directly on the federal firearm restoration process in United States v. Bean, 537 U.S. 71 (2002). Under federal law, § 925(c) appears to allow someone convicted of a federal felony to petition for firearm right restoration. However, this method delineated in § 925(c) was defunded in 1992, preventing the Bureau of Alcohol, Tobacco, and Firearms (ATF) from acting upon any such applications. Id. at 74-75. Bean, a convicted felon, had applied via the method set forth in § 925(c) to have his firearm rights restored. However, “ATF returned the application unprocessed, explaining that its annual appropriations law forbade it from expending any funds to investigate or act upon applications such as [Bean]’s.” Id. at 73. Bean argued this inaction by ATF qualified as a “denial” and argued that the “denial” should be subject to judicial review. Id. at 75-76.

The Supreme Court rejected Bean’s argument, holding that: “[i]naction by ATF does not amount to a ‘denial’ within the meaning of § 925(c). The text of § 925(c) and the procedure it lays out for seeking relief make clear that an actual decision by ATF on an application is a prerequisite for judicial review, and that mere inaction by ATF does not invest a district court with independent jurisdiction to act on an application.” Id.

Thus, attempting to use the method described in § 925(c) will lead to a dead end not subject to judicial review.

Furthermore, current ATF regulations are substantially the same on this issue as they were when Bean was decided. § 925(c) still contains the same provision noting that someone convicted of a federal firearm offense may petition for relief, and, further, the person appointed the power to grant such relief (formerly the Secretary of the Treasury, now the Attorney General) has still delegated to ATF. (See Granting of Relief; Federal Firearm Privileges, 84 Fed. Reg. 1491 (Feb. 4, 2019) (“The Attorney General is responsible for enforcing the provisions of the Gun Control Act of 1968 … He has delegated that responsibility to the Director of ATF, subject to the direction of the Attorney General and the Deputy Attorney General.”). And, as the official ATF website currently states: “Although federal law provides a means for the relief of firearms disabilities, ATF’s annual appropriation since October 1992 has prohibited the expending of any funds to investigate or act upon applications for relief from federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, ATF cannot act upon applications for relief from federal firearms disabilities submitted by individuals.” (See Firearms Q&As, Bureau of Alcohol, Tobacco, Firearm, and Explosives website (last updated Aug. 21, 2019).)

Therefore, there is currently no practical method for someone convicted of a federal felony to get his firearm rights restored through a judicial process.

The only way for someone to have his firearm rights restored after a federal felony conviction is to receive a presidential pardon. The Department of Justice website explains the same: “At present, a presidential pardon is the only means by which a person convicted of a federal felony offense may obtain relief from federal firearms disabilities. Under Supreme Court case law interpreting federal firearms laws, a state restoration of civil rights does not remove the federal firearm disability that arises from a federal felony conviction. That relief can only be provided through action under federal law.” (See Frequently Asked Questions, The United States Department of Justice website (last updated May 15, 2023).)

In conclusion — short of a pardon from the president of the United States himself — a person convicted of a federal felony cannot have his firearm rights restored.

Joselyn Markas is a judicial law clerk for the Newport News Circuit Court. She is a graduate of William & Mary Law School. She completed her undergraduate education at University of Maryland, College Park, where she majored in Criminology/Criminal Justice.