The United States Supreme Court today, June 8, 2015 rejects to hear an appeal filed by gun owners and the National Rifle Association (NRA). The Court left intact a March 2014 ruling by the San Francisco based 9th U.S. Circuit Court of Appeals that upheld the regulation that requires gun owners to keep their weapons locked up or disabled when stored at home.
The regulation, issued in 2007, required that guns at home must be stored in a locked container or disable it with a trigger lock. The U.S. Supreme Court has not agreed to hear a major gun case since 2010. Two of the nine justices (Scalia and Thomas), stated they would have taken the case. Thomas wrote, “that the Supreme Court has outlined to lower courts how to approach Second Amendment cases but the courts that oversaw the San Francisco case have failed to protect it.”
“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.” This is the heavily debated Second Amendment of the U.S. Constitution. Due to recent anti-gun laws, many more individuals are now classified as “prohibited person.” This means individuals whose possession of a firearm is considered a criminal offense.
If you own guns and you suspect that you are a “prohibited person”, you should immediately consult a qualified criminal defense attorney. This allows you to avoid criminal prosecution and to determine your legal options.
DENIALS BASED ON CRIMINAL CONVICTIONS: For example, before 1991 in California, only convicted felons and a small number of misdemeanor convicts were prohibited from owning handguns. On 1/1/91, thousands on California gun owners with certain misdemeanor convictions became subject to felony prosecution.
Expungement does not restore firearm rights. Depending upon the conviction and eligibility, a felony conviction could be reduced to a misdemeanor. In most states a felony conviction are either “straight felonies” or “wobblers”. Wobblers are crimes in which the prosecution may either file the case either as a misdemeanor or a felony. Straight felonies must always be filed as a felony.
If your conviction is a straight felony charge, your attorney will need to assist you in obtaining a full pardon from the Governor to legally possess firearms. If the nature of your felony conviction makes you eligible, seeking a pardon is a lengthy and a very complicated procedure but there are certain factors that the Governor’s office will note. How you have led your life post-conviction and sentence will be critical. I always prepare a comprehensive package about my clients involving things such as a description of their family, work, community or charity work. The goal is to “humanize” my client.
For those charges that are wobblers, the attorney must file a motion to reduce the charge from a felony to a misdemeanor. Filing a motion with a hearing thereafter is required. As such, it is to your advantage to choose your attorney wisely. Again, it is crucial that your attorney convinces both the judge and the prosecutor that you are a viable candidate to have your felony conviction reduced to a misdemeanor.
For example, in California, if you are successful in having your conviction reduced, your gun rights are restored automatically after 10 years, subject to 2 major exceptions. First, convictions of certain firearm misdemeanors such as brandishing or discharge offenses are lifetime prohibition. In California a domestic violence conviction under current federal law results in denial for life.
DENIALS BASED ON PENDING FELONY CHARGES: If you are currently charged of a felony offense(s), you may not purchase or receive firearms. Unless, the court orders you not to possess guns as a condition of release on bail or on your own recognizance, guns you already lawfully possess may be retained.
DENIALS BASED ON RESTRAINING ORDERS: Many if not most restraining orders, especially in the domestic violence scenario, requires that “if you own any firearms, those firearms must be surrendered to a law enforcement agency within a certain number of hours—usually 24 hours.” If this occurs to you, again immediately hire an attorney who will seek to have the order vacated (i.e. terminated) or modified. Delay may result in the loss of your gun right for up to five years.
A conviction denies you the right to possess/own a gun. But what is clear is that there are certain circumstances that may enable you to challenge this restriction with the assistance of a qualified and a convincing criminal defense attorney.