Mel Gibson Controversy Highlights a Bigger Scandal: Many Americans Lose Their Gun Rights for No Good Reason
Millions of people are barred from owning firearms even though they have no history of violence, and they have essentially no recourse under current law.
Elizabeth Oyer, a former public defender who was appointed as the Justice Department's pardon attorney in April 2022, says she was fired last Friday because she refused to sign off on a recommendation to restore Mel Gibson's gun rights. The movie star and director, who supported Donald Trump in the 2024 presidential election and was recently designated as one of the administration's three "ambassadors" to Hollywood along with Jon Voight and Sylvester Stallone, lost the right to own firearms because of a misdemeanor domestic violence conviction.
Oyer presents the episode as a conflict between public safety and political favoritism, and The New York Times framed the story the same way. But the incident also illustrates how difficult it is for people who have lost their Second Amendment rights as a result of criminal convictions—a category that includes the president himself—to regain those rights, even when there are no grounds to think they pose a threat to public safety.
In March 2011, Gibson pleaded no contest to a misdemeanor battery charge involving his girlfriend, and Los Angeles County Superior Court Judge Stephanie Sautner sentenced him to 36 months of probation. Although Gibson's deal with prosecutors allowed him to avoid jail time, his plea triggered an ancillary penalty under 18 USC 922(g)(9), which makes it a felony for anyone who "has been convicted in any court of a misdemeanor crime of domestic violence" to receive or possess a firearm. Another provision of the same law, Section 922(g)(1), sweeps more broadly, imposing the same lifelong disability on anyone who has been convicted of a crime punishable by more than a year of incarceration, no matter how long ago it was committed and whether or not it involved violence.
As Supreme Court Justice Amy Coney Barrett noted in an opinion she wrote as an appeals court judge, the constitutionality of the latter prohibition is doubtful. Barrett dissented from a 2019 decision in which the U.S. Court of Appeals for the 7th Circuit upheld the application of Section 922(g)(1) to a manufacturer of therapeutic shoes and footwear inserts who had pleaded guilty to mail fraud. History "demonstrates that legislatures have the power to prohibit dangerous people from possessing guns," she wrote. "But that power extends only to people who are dangerous."
The Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen added heft to that argument by clarifying that gun control laws must be "consistent with this Nation's historical tradition of firearm regulation" when they impinge on conduct covered by the "plain text" of the Second Amendment. In 2023, the U.S. Court of Appeals for the 3rd Circuit ruled that Section 922(g)(1) failed that test as applied to Bryan Range, a Pennsylvania man who had pleaded guilty to food stamp fraud, a state misdemeanor that was notionally punishable by up to five years in prison. Based on similar reasoning, the U.S. Court of Appeals for the 9th Circuit last year overturned the Section 992(g)(1) conviction of Steven Duarte, a California man who had lost his gun rights because of a nonviolent criminal record.
Without such judicial intervention, "prohibited persons" like Range and Duarte have little recourse. Under 18 USC 925(c), they theoretically can ask the attorney general to restore their Second Amendment rights. The attorney general has the discretion to do that based on a determination that "the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." But that responsibility has been delegated to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which Congress has barred from considering such applications.
"Although federal law provides a means for the relief of firearms disabilities," the agency explains, "ATF's annual appropriation since October 1992 has prohibited the expending of any funds to investigate or act upon applications for relief from federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, ATF cannot act upon applications for relief from federal firearms disabilities submitted by individuals."
If the ATF cannot act on such applications, can people with disqualifying criminal records seek relief in federal court? No, the U.S. Supreme Court unanimously ruled in the 2002 case United States v. Bean.
That case involved a firearms dealer, Thomas Bean, who in March 1998 drove to Nuevo Laredo, Mexico, for dinner with three associates after visiting a gun show in Laredo, Texas. Before crossing the border, Bean asked his assistants to remove the guns and ammunition he had in his SUV, but they overlooked a box containing 200 rounds. Bean said he did not realize that the ammunition was in the car or that driving into Mexico with it was a crime. He nevertheless was convicted of illegally importing ammunition into Mexico and sentenced to five years in prison.
Bean was transferred to a Texas prison that September and released the following month. Although he ended up serving just seven months of his sentence, the conviction meant he was no longer allowed to possess firearms, a disability that was especially burdensome in light of his occupation and especially unfair given the nature of his offense. But when Bean asked the ATF about restoring his gun rights, he was told the agency was not allowed to consider his application. And since there was no agency decision to challenge, the Supreme Court concluded, Bean could not ask a judge to restore his rights either.
Given that situation, people with disqualifying criminal records have little recourse. Generally speaking, the only way they can regain their gun rights is by obtaining a state or federal pardon, and the odds against that are long. Which brings us back to Mel Gibson.
A couple of weeks ago, Oyer told the Times, she was assigned to a working group charged with identifying people who deserved to have their Second Amendment rights restored despite criminal records that made it illegal for them to own guns. "It was an unusual assignment for the office of the pardon attorney, which typically handles requests for clemency" and recommends candidates for pardons or commutations, the Times notes. By way of explanation, it says the project "has been championed by some on the right who maintain that not all people with criminal convictions are dangerous or deserving of such a ban."
Contrary to the implication of that gloss, critics of this policy are not limited to right-wing gun nuts. In Duarte's case, for example, the American Civil Liberties Union (ACLU) noted that Section 922(g)(1) is "an extraordinarily broad statute that does not target dangerousness or propensity to commit violence." The ACLU said the government had failed to show that the provision's "categorical application to people convicted of nonviolent offenses" is "consistent with our history and tradition." It added that the law is "a major contributor to mass incarceration and disproportionately impacts people of color."
Even a left-leaning organization that is not known for defending the Second Amendment, in other words, can see there is something screwy with permanently taking away people's gun rights when they have no history of violence, based on crimes (such as growing marijuana or selling drugs) that may not even involve an identifiable victim, let alone the use or threat of force. Oyer herself evidently sympathizes with that critique. The Times reports that she came up with a list of "95 people she considered worthy of consideration, made up principally of people whose convictions were decades old, who had asked for the restriction to be lifted and for whom Ms. Oyer's office thought the risk of recidivism was low."
Deputy Attorney General Todd Blanche's office "whittled the 95 candidates down to just nine," the Times says. Blanche's underlings also suggested an addition.
"They sent it back to me saying, 'We would like you to add Mel Gibson to this memo,'" Oyer told the Times. To Oyer, the Times says, that request was "worrisome on multiple fronts." While "the other candidates had all undergone a significant amount of background investigation to measure their likelihood of committing another crime," that was not true of Gibson. "Giving guns back to domestic abusers is a serious matter," Oyer said, and "is not something that I could recommend lightly, because there are real consequences that flow from people who have a history of domestic violence being in possession of firearms."
Oyer also "was vaguely aware of a highly publicized episode in 2006 when Mr. Gibson was caught being verbally abusive and antisemitic to a police officer who had stopped him on suspicion of driving under the influence and recorded at least some of the exchange." She ultimately decided that she could not in good conscience recommend restoring Gibson's gun rights, a position she says resulted in her dismissal.
Like Oyer, I have no idea whether Gibson still poses a threat that justifies barring him from owning guns, and the way his case was treated is unseemly, to say the least. But it is certainly true that millions of Americans—probably including the 86 candidates whom Blanche's office nixed, all of whom Oyer thought posed no such threat—have lost their gun rights for no good reason. And that injustice is compounded by a congressional dictate that effectively nullifies the promise of potential relief for people deemed unlikely to "act in a manner dangerous to public safety."
Trump's own disqualification from gun ownership underlines the irrationality of this policy. He lost his Second Amendment rights based on 34 felony convictions that involved falsification of business records. Although he received no formal penalty at all for those offenses, they still triggered Section 922(g)(1) because they were theoretically punishable by more than a year in prison. The upshot is that a man entrusted with control of the nation's vast military might, including its nuclear weapons, is not allowed to own a gun, which makes no sense no matter what you think about the legally dubious case that resulted in those convictions.
While the loss of that right might not matter much to someone with armed, taxpayer-funded protection, the same cannot be said of ordinary people who are legally barred from possessing firearms even though they have never done anything to suggest they are inclined to violence. The scandal of Gibson's special treatment pales by comparison with that travesty.
