As is well known, under Federal law a convicted felon loses their Second Amendment rights upon either indictment or conviction of a felony punishable by more than one year in prison. The question is whether or not those rights are regained when the convicted individual has served his sentence.
The Federal ATF Form 4473 gun buyers must fill out before a dealer may complete the transaction asks these questions; which a buyer must answer truthfully under penalty of Federal law for a false answer:
Question b.) Are you under indictment in any court for any FELONY for which which the Judge could imprison you for more than one year.
Question c.) Have you been convicted in any court of any felony, or any other crime, for which the Judge could have imprisoned you for more than one year, even if you received a shorter sentence including probation?
Now, there is nothing there about “serving your time,” “completing your sentence,” pardons, commutations, or anything else. If you have been convicted of any felony for which you could be sentenced to a year or more, and you answer yes to questions b or c the dealer cannot sell you a gun. And if you lie, you could be sent back to prison.
Here is a direct quote from the Gun Control Act of 1968, Section 922 Section D, as amended:
It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person –
(1) is under indictment for, or has been convicted in any court
of law, a crime punishable by imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled
substance (as defined in section 102 of the Controlled Substances
Act (21 U.S.C. 802));
(4) has been adjudicated as a mental defective or has been
committed to any mental institution;
(5) who, being an alien –
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been
admitted to the United States under a nonimmigrant visa (as
that term is defined in section 101(a)(26) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(26)));
(6) who (!2) has been discharged from the Armed Forces under
(7) who, having been a citizen of the United States, has
renounced his citizenship;
(8) is subject to a court order that restrains such person from
harassing, stalking, or threatening an intimate partner of such
person or child of such intimate partner or person, or engaging
in other conduct that would place an intimate partner in
reasonable fear of bodily injury to the partner or child, except
that this paragraph shall only apply to a court order that –
(A) was issued after a hearing of which such person received
actual notice, and at which such person had the opportunity to
(B)(i) includes a finding that such person represents a
credible threat to the physical safety of such intimate partner
or child; or
(ii) by its terms explicitly prohibits the use, attempted
use, or threatened use of physical force against such intimate
partner or child that would reasonably be expected to cause
bodily injury; or
(9) has been convicted in any court of a misdemeanor crime of
But if you answer no to either of those questions, you have just put yourself in line for another felony rap. Of course, there is an “exception in the law” for those who have been convicted and then pardoned. Again quoting from the Gun Control Act of 1968, DEFINITIONS GCA Sec.921 section B, as amended:
A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person
has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or
restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Now, what does that mean in practice? Well, if Jimmy X Conn was sentenced for driving a getaway car, proven innocent, and then pardoned, it means he can have his gun rights restored. From those who were proven innocent and went that route, I hear it is an expensive hassle. Even though they never committed a crime in the first place. But if your conviction has been expunged or set aside, you can get your civil rights back.
You can also get your civil rights restored under state law at the end of your sentence, provided your state does that. Which comparatively few states do. But even if your state restores your gun rights, you MUST fill out the Form 4473 and pass the background check, just like everyone else does – UNLESS your State’s CCW permits are “ATF Approved,” and you obtain a CCW first. In that case, the background check has been completed, and no further check will be necessary. But unless you jump through the hoops, you will fail the background check. And that is where the problem lies.
The best thing would be for the loss of gun rights after most non-violent felonies to lapse after a pardon, or a certain period of time. If Jimmy X Conn has been convicted of lifting a hot pie off a windowsill and is sentenced to two years, he should have his Federal gun rights restored at the end of his sentence or within a reasonable time thereafter.
On the other hand, if Jimmy X Conn has stuck up a service station and traded shots with pursuing police, he would not be a good candidate for immediate restoration of gun rights.