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: “no legal force or binding effect.”
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.
What about violating a protection order VIA phone call… No use of force there. Would I lose my gun right forever? I have been to Superior Court and had my rights restored but now I’m thinking the Federal Government may not allow me to Purchase a gun based a my violation of a No Contact Order.. Even though it was through a phone call and not an Assault.. I thought there had to be USE OF FORCE OR ATTEMPTED USE OF FORCE? Further more it was a girlfriend that I did not live with as a spouse. I called her and argued over the telephone.
Please let me know what you think about these circumstances..
Brad Clark says
It sounds like your case may be in a state other than Kentucky. I am only licensed to practice law in Kentucky, and wouldn’t feel comfortable giving you information about the law in your state. The Domestic Violence Offender Gun Ban has been interpreted to require a use of force by the federal courts. You should contact a local criminal defense attorney, because it sounds like you have a legitimate issue. If you send me an email, I’ll be happy to locate a list of NACDL (National Association of Criminal Defense Lawyer) members who could answer your question in detail.
PAULA WRIGHT says
I think your website is awesome. I am 65 years old. I was convicted of a felony for Child Support. I think your site will give me exactly what I need. Thanks for starting it.
PAULA WRIGHT says
My felony was over 20 years ago
Id like to know if you recently moved to kentucky but had a non violent cds felony in another state 20 years prior could you still be eligble for expunge ment even though the charge was in another state but you now live in kentucky .thanks.
I live in Ky but have a felony from 1990 in ohio can I can I still get my charged exponged?
Brad Clark says
Unfortunately, our service currently only works with Kentucky state court convictions. I do know that Ohio has a provision that allows for the expungement of some felonies. Give us a call, I’d love to be able to refer you to a competent attorney in Ohio to help take care of this case.
tim williams says
I’ve lived in Kentucky for 14 years had two felonies in Arkansas in 1983 can I still get my record expunged
Brad Clark says
Our service currently only covers Kentucky convictions. You will have to speak to an attorney in Arkansas to determine whether you are eligible for an expungement there.
I recently had my Class D felony expunged. I’m wondering if I go to a store and put on the FBI NCIS background check that I haven’t been convicted of a felony, and it hasn’t been cleared off my record, can I get in trouble legally?
Jason Gabbard says
I have a charge that was amended from 4th degree assault to Harassment (Physical contact) no injury do I have gun rights. If I do not if I get the charged expunged since it has been 8 years will I get the right back.
dana waddell says
I recently had my Class D felony expunged. If I go to a gun store and get a FBI NICS background check and my felony shows, would i get in trouble for lying on the application?
DOUG BOWLING says
I had my felony expunged and vacated so I’m now able to own a gun again?
Had 2 felonies expunged in Ohio I live in Ky now .do I now have my gun rights back science I had my felonies expunged in Ohio please answer thanks .
Is there any effort or possibility of expanding the Kentucky felony expungement law to include other class D felonies? ( i.e. DUI 4th).
James McKay says
I was convicted of a felon in possesion of a firearm on the federal level, now I am close to the five year Mark without a conviction. If I have my record exponged on a state level, is it also able to expunge my federal conviction by fruit of the poisonous tree or something like it?
Brad Clark says
Wow, that’s an incredibly complex question James. I would have to do considerable research before I felt comfortable giving my opinion on whether you would have any right to relief. If you would like to explore it in detail, give us a call.
Id like to thank you an your team for gettinf a 4th degree domestic assualt expunged off my record it was well worth the money i spent on it an was glad yall worked with me on the payment an carolyn did a wonderful job keeping me up to date on thing
Is there any movement to expand HB40 to possibly include additional class D felonies for expungement? (Including additional types of class D felonies eligible for expungement is what I am meaning)