Pam Bondi Aims To Revive a Moribund Legal Process for Restoring Gun Rights
A new Justice Department rule could help "prohibited persons" who pose no threat to public safety.
Although President Donald Trump has been entrusted with control of the nation's vast military might, including its nuclear weapons, he is not allowed to own a gun. He lost that right as a result of 34 state felony convictions involving falsification of business records. Whatever you think of the legally dubious case underlying those convictions, this situation makes no sense as a matter of public safety. It epitomizes the absurdly broad criteria that bar Americans from possessing firearms under federal law.
Attorney General Pam Bondi recently took an important step toward addressing the unjust, constitutionally dubious burdens imposed by that policy. An interim final rule that took effect last week aims to revive the moribund legal process for restoring the Second Amendment rights of "prohibited persons" who pose no threat to public safety. The rule rescinds the delegation of that process to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which Congress has long prohibited from accepting applications for relief.
"For decades, law-abiding Americans who have had their gun rights unfairly restricted have been left in legal limbo—creating an unconstitutional de facto lifetime gun ban," says Erich Pratt, senior vice president of Gun Owners of America. "This bureaucratic failure has denied thousands of individuals their lawful opportunity to restore their rights. The [Justice Department's] decision to finally withdraw ATF's authority in this matter is an encouraging sign that this administration is serious about protecting the Second Amendment for all Americans."
Under 18 USC 922(g), prohibited persons include anyone who has been convicted of a crime punishable by more than a year of incarceration, regardless of the sentence that was actually imposed, whether or not the offense involved violence, and no matter how long ago it happened. This is the provision that forced Trump to give up his guns, even though his offenses were nonviolent and did not result in any formal punishment. The law also prohibits gun possession by anyone who has ever been subjected to involuntary psychiatric treatment, even if he was never deemed a threat to others.
Anyone who defies these bans is committing a federal felony punishable by up to 15 years in prison. He could face additional penalties for lying on the federal form that must be completed to buy a gun from a federally licensed dealer, which can be construed as two distinct felonies under 18 USC 922(a)(6) and 18 USC 924 (a)(1)(A), and for "trafficking in firearms," which Congress has counterintuitively defined to include prohibited persons who obtain guns. All told, a prohibited person who dares to exercise his Second Amendment rights could face combined maximum sentences of nearly half a century.
Under 18 USC 925(c), someone who loses his gun rights can ask the attorney general to restore them. 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 historically has been delegated to the ATF, which Congress has barred from considering such applications.
Why did Congress do that? "In the early 1990s," Bondi's interim final rule says, "Congress became concerned about the number of resources that ATF was using to adjudicate requests to relieve individual Americans from disabilities on their ownership of firearms." Legislators worried that "judging whether applicants posed 'a danger to public safety' was 'a very difficult and subjective task.'" They also averred that "too many felons…whose gun ownership rights were restored went on to commit crimes with firearms." They thought the ATF should focus on "its core function of investigating violations of federal firearms laws."
The upshot was a 1992 spending rider, renewed every year since then, that says "none of the funds appropriated" for the ATF "shall be available to investigate or act upon applications for relief from Federal firearms disabilities" under Section 935(c). Because of that rider, prohibited persons had no recourse unless they managed to obtain a pardon that restored their gun rights. Congress purported to offer a remedy but then made it impossible to obtain.
"This confusing state of affairs has taken on greater significance given developments in Second Amendment jurisprudence since 1992," Bondi's rule notes. To start over with "a clean slate," her rule rescinds the delegation of Section 935(c) authority to the ATF and withdraws "the moribund regulations governing individual applications" to that agency. Bondi says reasserting the attorney general's authority to implement Section 935(c) is consistent with Trump's February 6 executive order "protecting Second Amendment rights," which instructed her to "examine all orders, regulations, guidance, plans, international agreements, and other actions of executive departments and agencies" to "assess any ongoing infringements of the Second Amendment rights of our citizens."
The Justice Department "recognizes that no constitutional right is limitless," the rule says, and "supports existing laws" aimed at ensuring that "violent and dangerous persons remain disabled from lawfully acquiring firearms." But "regardless of whether the Second Amendment requires an individualized restoration process" for prohibited persons, it adds, Section 935(c) provides "an appropriate avenue to restore firearm rights to certain individuals who no longer warrant such disability based on a combination of the nature of their past criminal activity and their subsequent and current law-abiding behavior while screening out others for whom full restoration of firearm rights would not be appropriate."
Clearing that avenue may require new legislation. The Justice Department "respects congressional appropriations prerogatives," the rule says, and "expects its forthcoming plan under [Trump's executive order] to include legislative proposals to modify or rescind the rider." The department is "also undertaking a broader examination of how to address the drain on resources that caused Congress to impose the rider in the first instance, including by addressing any potential inefficiencies in the regulatory process." It "anticipates future actions, including rulemaking consistent with applicable law, to give full effect to 18 U.S.C. 925(c) while simultaneously ensuring that violent or dangerous individuals remain disabled from lawfully acquiring firearms."
Many people who have lost their gun rights under Section 922(g) are not "violent or dangerous," as the public comments on the rule reflect. "If a felon doesn't have a serious criminal charge," says one, "there's no reason to enforce [the gun ban]. My son has been struggling with this with no relief."
Another person says he was convicted of nonviolent theft nearly three decades ago—"nothing before, nothing after"—and would "love to go rabbit and squirrel hunting with my sons." But he lives in Iowa, he says, and "my understanding is that the governor will never give me back my right to own a firearm under any circumstances."
It makes sense to disarm "violent dangerous individuals" such as murderers and rapists, another comment says. But "if a person has paid their debt to society and [is] now free to walk the streets," the commenter adds, he generally "should be free to exercise [his] 2nd amendment right to protect one's self and family."
Many of the comments seem to have been generated in response to an appeal by Gun Owners of America. They feature identical or very similar language. "If the Trump Administration is serious about wanting to rein in unelected bureaucrats who have abused their power and waged war on individuals' rights and freedom, then this rule must go into effect," Don Davidson writes in a representative example. "Unelected ATF bureaucrats should not have the power to permanently deny certain Americans from ever exercising a constitutionally protected right to keep and bear arms."
Davidson notes that "thousands of would-be gun owners have contacted Gun Owners of America, asking for their constitutionally protected rights to be restored." He says "it is unjust to strip those Americans of a constitutional right—for life—especially a right that provides personal safety and security, and a right that is explicitly prohibited from being 'infringed' upon."
Although Davidson is right about that, blaming "unelected ATF bureaucrats" seems misplaced, since it was Congress that prevented the ATF from accepting applications under Section 935(c). It was also Congress that defined prohibited persons so broadly that they include millions of Americans with no history of violence. Instead of allowing case-by-case exceptions to an indiscriminate general rule, Congress should have been more judicious in stripping people of their Second Amendment rights. Constitutional challenges to those restrictions, which have been successful in several cases involving people convicted of nonviolent crimes, may ultimately force Congress to take a narrower approach.
