Many of the people seeking to clear their records have asked me the same thing–“So if I get this done, can I get a gun? Can I get a carry concealed permit?” And the answer to that question is the one that lawyers always give: maybe. So, I’m putting this post up to talk a little bit about the intersection of the Second Amendment, the Federal Domestic Violence Offender Gun Ban, KRS 436.076, 436.078, and the new House Bill 40. If you or a loved one has had any of their rights restricted as a result of a criminal proceeding in Kentucky, visit Unconvicted and get a free evaluation to see if you can have those rights restored.
So what are some ways I can lose my Second Amendment right to possess a firearm?
There are three common ways Kentuckians can lose their right to posses a gun:
- any conviction for a felony after 1994;
- a conviction for a misdemeanor crime of domestic violence; or
- being subject to certain types of restraining orders.
Most people are aware of the first type of firearm restriction. The law is a bit more nuanced though. If you were convicted of a felony prior to 1975, state law does not prevent you from owning a weapon, though a felony conviction will interfere with your ability to get a concealed weapon license. If you were convicted of a felony between 1975 and 1994, you will be eligible to possess a long rifle, but not a hand gun. If you have questions about the distinctions and which firearms are eligible, contact me for more information. If you were convicted of any Kentucky felony AFTER 1994, you will be banned from possessing a firearm, for life, until the conviction is either pardoned by the Governor or President, OR you receive an expungement under House Bill 40. Even if Kentucky law does allow for felons of a certain age to possess a firearm, federal law still prohibits possession of a firearm.
OK, so what happens if I expunge my Class D felony under House Bill 40?
If you are granted an expungement under House Bill 40 for your felony conviction, your state and federal firearms rights are restored. Your state rights are restored because House Bill 40 doesn’t just expunge the conviction, it vacates it, then expunges it. As such, you will no longer have been convicted of a felony for the purposes of KRS 527.040, or any other purpose for that matter. Your federal firearm rights will be restored for this reason, and also because the Gun Control Act of 1968 (18 U.S.C. 921 (a)(33)(B)) specifically tells us:
(ii) 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.
Short version: expunge a felony, get your firearm rights back.
What if I Void My Felony Drug Possession Conviction Under KRS 218A.275?
Unlike all other felonies, Felony Possession of certain drugs has been eligible to be “voided” since 1992. There are some scenarios in which a person may be able to void a conviction, but not able to expunge it. There have been a lot of questions about what effect a voided conviction actually has. Most notably, you cannot expunge a voided conviction. Com. v. Jones (Ky. 2013). Jones is really the only Kentucky case to discuss the implications of voiding a possession conviction. It Jones, the Supreme Court of Kentucky held that a voided felony possession is not the equivalent of the charge being dismissed with prejudice. Jones is a confusing case, but it is our best source on this issue. In it, the Court cites to Black’s Law Dictionary’s definition for void: “ ”
So does a conviction that has no legal force prevent you from possessing a firearm in state court or federally? I don’t believe it does. The issue of state court is easily resolved by KRS 218A.275(10):
After the sealing of the record, the proceedings in the matter shall not be used against the defendant except for the purposes of determining the person’s eligibility to have his or her conviction voided under subsection (8) of this section. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record has been sealed shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.
If the proceedings cannot be used against the defendant except for the purpose of determining his eligibility to void a conviction, they shouldn’t be used in a proceeding to convict the defendant of a crime for possessing a firearm.
But what about federally? Would this procedure satisfy the Gun Control Act of 1968’s requirement that an offense be “expunged or set aside”? We know that voiding an offense is different than expungement because the Supreme Court of Kentucky ruled that it was in Jones. Is a conviction with “no legal force or binding effect” the same as one that is set aside? I would say yes, but would a federal court rule the same way? There is no (good) way to find out.
Because of this, if you would like to possess firearms, I would highly recommend expunging rather than voiding a Possession conviction. I believe there is a strong argument that a person with a voided conviction should be able to possess a firearm under federal law, but until there is more caselaw on the subject, there is certainly a risk.
What about misdemeanor crimes of domestic violence?
Under the Domestic Violence Offender Gun Ban (18 U.S.C. § 922(g)(9)), persons who have been convicted of a state crime of domestic violence are federally banned from possessing firearms. This law was recently interpreted by the Supreme Court of the United States in United States v. Castleman. In Castleman, a unanimous court ruled that any misdemeanor offense of domestic violence that involves the use of physical force does lead to a permanent federal firearms ban. Clearly Assault 4th Degree – Domestic Violence (KRS 508.032) is a crime that would qualify for this ban. Other misdemeanors may qualify.
Similarly to the Gun Control Act of 1968, the Domestic Violence Offender Gun Ban has an exception for expunged offenses. So, in short, if you previously were unable to possess a gun because of a misdemeanor domestic violence conviction, a state court expungement will restore your federal firearm rights.
If you have any questions about possessing a firearm after having been convicted of a crime, do not hesitate to contact me. The penalties for unlawfully possessing a gun can be very steep. Find out if you are banned, and if so, how to go about restoring your rights with Unconvicted.