Firearms and the law -- by Joe Forbes

A few weeks ago, a gentleman came into the office concerning a firearms matter.  He disclosed that he had previously been convicted of Assault on a Female against his former wife, but that he still possessed firearms, and planned to buy more.  He was floored when I told him that he was legally ineligible to own a firearm now or in the future.  This month's article is presented as a warning to others in a similar situation. It is not the purpose of this article to judge the fairness or reasonableness of the law, but to simply inform the reader of its existence.

It is common knowledge that the law prohibits felons, drug addicts, illegal aliens, and those adjudicated mentally defective from having guns.  But 18 USC 922 also prohibits the possession, transporting or receiving of any firearm or ammunition by anyone who has EVER been convicted of a "misdemeanor crime of domestic violence".

According to the Bureau of Alcohol Tobacco and Firearms website, that term is defined as :
     (1) is a misdemeanor under Federal, State, or Tribal law;
     (2) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; and
     (3) was committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
However, a person is not considered to have been convicted of a misdemeanor crime of domestic violence unless:
     (1) the person was represented by counsel in the case, or knowingly and intelligently waived the right of counsel in the case; and
     (2) in the case of a prosecution for which a person was entitled to a jurycase was tried, either –
          (a) the case was tried by a jury, or
          (b) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
In addition, a conviction would not be disabling if it 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 jurisdiction in which the proceedings were held provides for the loss of civil rights upon conviction for such an offense) unless the pardon, expunction, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms, and the person is not otherwise prohibited by the law of the jurisdiction in which the proceedings were held from receiving or possessing firearms.

(Definition copied directly from the ATF website).

North Carolina does not provide for the loss of rights for conviction of a misdemeanor, so the exemption described in the last paragraph does not apply.  ATF specifically says that the rights must have been first lost, then restored for that exemption to apply.

The bottom line is that if you have EVER been convicted of a crime of domestic violence as described above, federal law prohibits you from even possessing a firearm FOREVER.  This is the sort of obscure, seldom enforced law that suddenly gets trotted out when law-enforcement wants to "nail" someone for something that may or may not have anything to do with firearms.  (Do not confuse this with being subject to a civil domestic violence restraining order, where the law bans possession only while the order is in effect.)

The ONLY way to have your rights restored for an NC conviction of anything involving assault is to be granted a pardon from the Governor.  The NC expunction statute (GS 15A-145 et. seq.) specifically excludes assaults.  The ATF office that processed applications for restoration of rights was defunded by the 1992 Clinton budget, and no president since has restored the funding.  ATF has since removed the application for restoration from their website.
Firearms and the law -- by Joe Forbes Firearms and the law -- by Joe Forbes Reviewed by kensunm on 7:00:00 PM Rating: 5

No comments:

Copyright AlbemarleTradewinds. Theme images by merrymoonmary. Powered by Blogger.