Anaya Nolan
The Second Amendment of the US Constitution guarantees the right of US citizens to bear arms, except in certain circumstances. One of these circumstances is if you are a convicted felon. Under federal law, convicted felons lose their firearm rights, which stems from a law developed in 1934 and was amended in 1965. While some states have their own gun restoration laws, federal law establishes a baseline national standard regarding the criteria that make people ineligible to acquire and possess firearms.
| Characteristics | Values |
|---|---|
| Law | Second Amendment of the U.S. Constitution |
| Year of origin | 1930s |
| Year of modern form | 1960s |
| Basis | Civic virtue theory, dangerousness rationale |
| Applicability | People with felony convictions, people charged with a federal crime, people convicted of misdemeanor crimes of domestic violence, people with mental health issues, people with drug addiction, juveniles |
| Exceptions | State laws may differ, gun restoration laws vary state by state, governor's pardon, presidential pardon |
| Recent developments | Bipartisan Safer Communities Act (2022), Supreme Court rulings on assault-style weapons and high-capacity magazines (2025) |
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What You'll Learn
The civic virtue theory and dangerousness rationale
The Second Amendment of the US Constitution guarantees the right of all US citizens to bear arms except in certain circumstances. One such circumstance is if you are a convicted felon. Under federal law, convicted felons automatically lose the privilege of possessing firearms. However, this wasn't always the case.
The Civic Virtue Theory, one of two theories developed around whether those with felony convictions can be prohibited from gun possession, states that at the time of the Constitution's ratification, it was understood that those who did not possess civic virtue, or those who were lawbreakers, were not included within the class of "the people" who would have been entitled to possess a gun. Civic virtue describes the character of a good participant in a system of government—the personal qualities associated with the effective functioning of the civil and political order or the preservation of its values and principles. Benjamin Franklin laid out 13 virtues in his autobiography, which he recommended readers try to master one at a time in pursuit of becoming a better American. These virtues included temperance, silence, order, resolution, frugality, industry, sincerity, justice, moderation, cleanliness, tranquility, chastity, and humility.
The Civic Virtue Theory has been used in the past to uphold laws that bar felons from owning guns. According to this interpretation, those who break the law, including felons, have demonstrated a lack of civic responsibility and therefore do not qualify as part of "the people" who have the right to bear arms. This interpretation aligns with the belief that the Founders designed the American republic with certain virtues in mind and considered them essential to upholding it. Public figures must model the values of civic virtue in order for them to be revived among the public.
The other theory, based on a dangerousness rationale, says that the common understanding was that those who were dangerous or those who had committed dangerous felony offenses could be disarmed. This principle asserts that Second Amendment privileges can be curtailed for individuals who could potentially pose a threat to public safety. For example, there are laws that prohibit people who have been involuntarily committed to a mental institution from possessing firearms. This theory also has historical precedent. At the time of the ratification of the Second Amendment, a felony meant capital punishment. Therefore, it was reasoned that if you could be killed for committing a felony offense, then you could certainly have the lesser restraint of taking away your guns.
While there are federal laws restricting gun ownership for felons, state laws may differ. Gun restoration laws vary from state to state, offering convicted felons opportunities to regain their firearm rights. For example, in Indiana, a person can petition the courts to have their firearm rights restored, and in Kentucky, a convicted felon can apply for expungement after five years. Additionally, several states, such as California, Louisiana, New York, and Oklahoma, will restore a convicted felon's firearm rights if they receive a governor's pardon.
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The Second Amendment
There are two theories developed around whether those with felony convictions can be prohibited from gun possession. The Civic Virtue Theory states that at the time of the Constitution's ratification, those without civic virtue, or lawbreakers, were not included within "the people" and thus would not have been entitled to possess a gun. The other theory, based on a dangerousness rationale, suggests that those deemed dangerous could be excluded from gun possession.
The interpretation of the Second Amendment and who is included in "the people" has been heavily litigated. In United States v. Williams, the Sixth Circuit rejected the defense that Section 922(g)(1), the law that prohibits felons from possessing firearms, is unconstitutional. The court held that a person only loses their Second Amendment rights under this law by committing a crime that involves danger to others or the community.
In 2023, the United States Court of Appeals for the Third Circuit found that the US government cannot constitutionally ban those convicted of non-violent felonies from possessing guns. The court found that the government had not shown a longstanding history of depriving people of firearms rights for non-violent crimes. However, this decision is not binding across the US, and other districts have made conflicting decisions.
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The Gun Control Act of 1968
The Act also includes provisions that redefine firearms within the United States and provide more rules for weapons manufacturers and licensed sellers on interstate commerce of ammunition and other firearm accessories. The GCA prohibits firearm sales to anyone who:
- Is under indictment or has been convicted of a crime punishable by imprisonment for over a year
- Is a fugitive from justice
- Is an unlawful user of or addicted to drugs
The GCA was amended in 1993 by the Brady Handgun Violence Prevention Act, which introduced background checks for prospective gun purchasers and created categories of prohibited purchasers. While the GCA and subsequent amendments provide federal-level regulations, individual states may have differing laws regarding gun ownership and restoration of firearm rights for felons. For example, states like Indiana allow felons to petition the courts for the restoration of firearm rights, while Kentucky allows felons to apply for expungement after a certain period. In some states, a governor's pardon can restore firearm rights, and in other cases, a presidential pardon may be required.
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State gun restoration laws
Under federal law, convicted felons automatically lose the privilege of possessing firearms. However, state gun restoration laws vary across the United States, and some states offer convicted felons opportunities to regain their firearm rights.
In some states, such as Indiana, a person can petition the courts to have their firearm rights restored, while in Kentucky, a convicted felon can apply for expungement after five years following the completion of their sentence. In California, Louisiana, New Jersey, New York, and Oklahoma, a convicted felon's firearm rights will be restored if they receive a governor's pardon. This typically requires an application through the state of residence, and only if the individual is eligible.
It is important to note that even if firearm rights are restored at the state level, federal restrictions may still apply. For example, an individual with restored state gun rights may not pass a federal background check or be eligible for a concealed pistol license.
Additionally, certain felonies, such as those involving firearms or violent crimes, may result in a more challenging path to restoring firearm rights. In some cases, a pardon may be required to restore these rights.
The restoration of firearm rights for convicted felons is a complex and evolving legal area. Seeking legal advice or consulting with a gun restoration lawyer is advisable to understand the specific laws and processes applicable to an individual's circumstances.
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Pardons and restoration of rights
A person convicted of a felony loses their right to possess a firearm, which includes any concealable weapon such as a handgun. This right is typically restored automatically upon completion of the sentence, including any period of parole or probation. However, in the case of a felony conviction for a violent crime, the right to possess a firearm may be permanently revoked.
To regain their firearm rights, a convicted felon can apply for a pardon, which is an act of official forgiveness. The pardon power is typically vested in the governor of the state, who is advised by an executive clemency advisory committee. The process involves submitting an application to the parole board, which determines eligibility based on unstated criteria. If deemed eligible, the parole board conducts an investigation and prepares a confidential recommendation for the governor. Obtaining a pardon is extremely rare, and it may be granted only in exceptional cases.
The process of restoring firearm rights varies from state to state. Some states, such as Indiana, allow individuals to petition the courts for the restoration of their firearm rights. Other states, like Kentucky, require a waiting period after the completion of the sentence before allowing applications for expungement. In North Carolina, individuals seeking restoration of their gun rights must meet specific criteria, including a 20-year period since their conviction, residency in the state for one year, and only one nonviolent felony on their record.
It is important to note that even with a pardon or restoration of rights, a convicted felon's criminal history record will reflect the pardon or restoration. Additionally, the restoration of civil and political rights does not automatically include the right to possess a firearm; it must be specifically granted by the governing board.
While the restoration of gun rights for convicted felons can be a complex and challenging process, it is not impossible. Seeking legal advice from gun restoration lawyers can provide individuals with expert guidance on navigating the bureaucratic and legislative processes involved in restoring their firearm rights.
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Frequently asked questions
The Second Amendment of the U.S. Constitution guarantees the right of all U.S. citizens to bear arms, except in certain circumstances, one of which is if you are a convicted felon. Under federal law, convicted felons automatically lose the privilege of possessing firearms.
Gun restoration laws vary from state to state, and some states offer convicted felons opportunities to regain their firearm rights. For example, in Indiana, a person can petition the courts to have their firearm rights restored, and in Kentucky, a convicted felon can apply for expungement after five years. Several states, including California, Louisiana, New York, and Oklahoma, will restore a convicted felon's firearm rights if they receive a governor's pardon.
The law was developed in 1934, and in the 1930s, we saw laws prohibiting some people with felony convictions from possessing guns. In 1965, a law was passed that allowed convicted felons to apply for "relief" from the "disability" of not being able to possess a gun. In 1968, the Gun Control Act prohibited anyone convicted of a felony from possessing a firearm.
Yes, there have been legal challenges to the law. Some argue that at the time of the ratification of the Second Amendment, a felony meant capital punishment, so taking away the right to bear arms would be a lesser restraint. There are also varying rulings on whether those under felony indictment (charged but not yet convicted) can acquire new guns.
Other gun control laws in the US include bans on assault-style weapons and high-capacity magazines, restrictions on gun access for those with mental health issues or drug addiction, and prohibiting gun sales to juveniles.
