Restoring Firearm Rights

Restoration of Firearm Rights

There is a common misconception that a non-violent felony will not affect your firearm rights or that an older criminal charge will go unnoticed.  Those assumptions, however, are incorrect.  Under federal law, most felony convictions will strip you of your Second Amendment right to possess a firearm and those old charges do not magically disappear.  In fact, in many cases, we come across individuals who have been wrongfully denied their firearm rights due to juvenile charges that continue to show up on a background check.  Keep in mind that a criminal or mental health record will follow you from state to state. Moving from one jurisdiction to another will not cure the prohibition on your firearm rights. To restore your firearm rights, you must take the proper steps toward requesting the specific authority to possess, own, and use firearms and ammunition from the proper jurisdiction.

Restoring Your Firearm Rights After a Disqualifying Criminal Conviction

If you lost your firearm rights as a result of a felony conviction or a misdemeanor conviction for domestic violence, you will need to restore your firearm rights in the state in which the conviction took place.  In Florida, this process requires a request for Clemency.  Unlike voting rights, the right to possess a firearm is not automatically restored upon completion of a court sentence. Rather, you must wait 8 years after all terms of the sentence have been completed before you can be eligible to request the restoration of your firearm rights.  Clemency is a lengthy process that requires a properly filed application, court records, and supporting documentation.  The Clemency Board can take many years to issue a decision. In Florida, a criminal conviction cannot be expunged.  Therefore, Clemency is often the only option for anyone who has been convicted of a disqualifying criminal offense to restore their firearm rights.

Restoring Your Firearm Rights After a Risk Protection Order

A law enforcement agency may file a petition for Risk Protection Order (RPO) (Read Florida RPO Law click here.) when an individual poses a significant danger of causing personal injury to oneself or others by having a firearm or ammunition in their custody or control. If the Petition is granted, the respondent will lose their firearm rights for up to 1 year.  A law enforcement agency may then request to extend the Order, which could result in a loss of firearm rights for an extended period of time. In this case, you could simply wait for the RPO to expire, or you could request a hearing to vacate the Risk Protection Order.  An RPO hearing often involves testimony from a law enforcement officer, witnesses, or the presentation of any other relevant evidence. If the judge grants the request to vacate the RPO, your firearm rights would automatically be restored. (Read our article on RPOs, click here.)

Restoring Your Firearm Rights After a Mental Health Disability

If you were committed to a mental health facility, committed for substance abuse, or adjudicated mentally incompetent, then you likely lost your firearm rights. In this case, restoration of firearm rights is accomplished by requesting that a judge, in the county in which you were adjudicated or committed, grant you relief from the firearm disability.  This will require filing a petition, requesting a hearing in court, and notifying the state attorney’s office.  You will then have to show evidence in support of the fact that you are not a danger to yourself or others. The state attorney is also given the opportunity to object or present evidence to the contrary. Therefore, before presenting your case, you should be adequately represented by legal counsel. If your request is granted by a judge, you will regain your rights and your firearm disability will be removed from the automated database of persons who are prohibited from purchasing a firearm based on court records of adjudications of mental defectiveness or commitments to mental institutions.

Restoring Your Firearm Rights After an Injunction or Restraining Order

An injunction entered against you restraining you from harassing, stalking, threatening or committing violence against another, will strip you of your firearm rights.  In Florida, an injunction can last a lifetime.  To regain your rights, you will need to have the injunction dissolved or terminated by the court that entered the order.  This process typically requires a hearing before a judge for which the Petitioner, or the person the injunction was meant to protect, must be notified.  However, if the injunction or restraining order was temporary, and included a termination date, then your firearm rights would automatically be reinstated upon the expiration of such order.

Restoring Your Firearm Rights After a Federal Conviction

Perhaps the most unfortunate circumstance would be that of a federal felony conviction.  Federal courts do not provide a means to restore your firearm rights.  Rather, you must request the restoration of your right to own and possess a firearm from the Bureau of Alcohol, Tobacco & Firearms (ATF).  The issue here is that the ATF has not received funding to grant such requests since the early 1990’s.  Therefore, the ATF takes no action on such requests.  The only other option, at this time, would be a Presidential Pardon.

This area of law is frequently litigated and ever-changing.  If you are interested in restoring your second amendment rights do not hesitate to call our office.

Christine Vazquez

Christine B. Vazquez is an associate attorney at Katz & Phillips, P.A. who focuses on the defense of individual firearm rights, criminal and self-defense law, as well as immigrant rights and advocacy.  As a bilingual attorney, Ms. Vazquez welcomes cultural diversity...
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