Second Amendment Roundup: Removal of Firearm Disabilities

Comments to the NPR are due by October 20, 2025.

The Attorney General has proposed regulations for procedures for persons to apply for removal of federal firearm disabilities.  Most disabilities are found in 18 U.S.C. § 922(g).  Under § 925(c), a person prohibited from firearm possession may petition for relief from federal disabilities by applying to the Attorney General, who "may grant such relief if it is established to his satisfaction 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."

In my view, overall the proposed regulations are fair and reasonably implement the above statutory provision.  However, there are two items that should be eliminated or modified.  Both provide that applications will be denied, absent extraordinary circumstances, if the applicant has been convicted of two types of offenses.  Those convictions should be considered on a case-by-case basis instead of being subject to presumptive denial.

Common-law assault convictions

Proposed § 107.1(a) provides in part: "Applications will therefore be denied, absent extraordinary circumstances, if the applicant: (1) Has been convicted under state or federal law of any offense punishable by a term exceeding one year (as defined in 18 U.S.C. 92l(a)(20)) that involves the following conduct, excluding jurisdictional requirements: … (iii) Assault or battery…."

That may be reasonable as applied to such convictions that are truly felonious and aggravated.  However, it creates the presumptive denial of relief where the person was convicted of the common-law state misdemeanor of assault and battery, which is punishable by imprisonment for over two years because there is no upper limit on the punishment.  That situation exists in Maryland and maybe other states.  United States v. Coleman, 158 F.3d 199, 203 (4th Cir. 1998) (en banc), held about Maryland law:

A "crime punishable by imprisonment for a term exceeding one year" is defined in pertinent part so as to exclude "any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." … While a Maryland conviction for common-law assault is classified as a misdemeanor, the offense carries no maximum punishment; the only limits on punishment are the Cruel and Unusual Punishment Clauses of the Maryland and United States Constitutions. See United States v. Hassan El, 5 F.3d 726, 733 (4th Cir.1993). As such, a Maryland common-law assault "clearly is punishable by more than two years imprisonment" and is not excluded from the definition of a "crime punishable by imprisonment for a term exceeding one year" by the misdemeanor exclusion. Id.

There are plenty of convictions of this type based on minor incidents, such as a fight in a bar when one is young, that may result in two days in jail, if that.  In United States v. Schultheis, 486 F.2d 1331, 1332 (4th Cir. 1973), "The 'felony' conviction upon which the indictment was based was appellant's 1966 conviction of simple assault, a common law crime in Maryland, which grew out of appellant's involvement in a fist fight. For this crime appellant was given a suspended 90-day sentence, fined $25.00 and placed on unsupervised probation for two years."

Accordingly, common-law assault and battery convictions should not be subject to presumptive denial.

Knowing importation of a firearm or ammunition

Proposed § 107.1(a) also provides in part: "Applications will therefore be denied, absent extraordinary circumstances, if the applicant: … (2) Has been convicted under state or federal law of any felony offense involving conduct prohibited under 18 U.S.C. 922 … (1).  Section 922(l) makes it "unlawful for any person knowingly to import or bring into the United States … any firearm or ammunition…."  Exceptions exist for licensed importers, certain other licensees, and members of the Armed Forces.

Knowing import of a single firearm or a single round of ammunition, absent a wrongful purpose, is a mala prohibita offense that should not presumptively be cause for denial of relief.

In the Gun Control Act, "the term 'knowingly' does not necessarily have any reference to a culpable state of mind or to knowledge of the law."  Bryan v. United States, 524 U.S. 184, 192 (1998).  Since it is not "necessary to prove that the defendant knew that his [act] was unlawful," the term 'knowingly' merely requires proof of knowledge of the facts that constitute the offense."  Id. at 193.  By contrast, "with respect to the conduct … that is only criminal when done 'willfully,'" "[t]he jury must find that the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful."  Id. at 193.

There are numerous gun shows in Europe where an American collector might buy a gun and bring it back without going through a licensed importer. There are shooting matches worldwide in which a participant might bring back a few rounds of unused ammo.  The same occurs when a hunter brings back a rifle that had to be replaced or some unused ammo from a foreign country.  Such persons may not know that the import must be through a licensed importer, and in such cases the importation would have been granted if done through a licensee.

Such innocent acts contrast sharply with traffickers bringing in guns or ammo for nefarious purposes.  Instead of presumptive denial, these should be fact-based decisions.

Readers may spot other provisions that warrant revision.  Written comments on the notice of proposed rulemaking must be postmarked and electronic comments must be submitted on or before October 20, 2025.

 

 

 

 

Comments

[Dr. Ed 2]

I once bought (through a dealer) a used car that had six live .38 handgun rounds under the driver's seat -- they were in a Los Vegas Casino ashtray, wrapped with a handkerchief. I forget why I happened to be looking under the driver's seat but I'd owned the car for nearly a year before I found them.

Of course the other disability removals are the Brady Act mental health ones. A kid is having a hard time in college at 18 and attempts suicide -- the middle aged woman at 45 is a whole different person, often in a responsible job where she may need to own a gun.

[TwelveInchPianist]

A nitpick, but why the plural? Or is malum feeling feminine?

[Stupid Government Tricks]

You got me curious. I googled both "mala prohibita" and "malum prohibitum" and the plural seems more common, but not hugely. Maybe he used the plural because he gave two examples? He uses the singular verb, but the mala prohibita is not the subject. Maybe the two terms have become too commonly interchanged that the singular/plural aspect has faded. The several search results I found didn't seem to care about tense either. Its use here is just as an adjective, and adjective single/plural doesn't affect anything. "It violates many laws." "A calico cat is a many-colored cat."

Knowing import of a single firearm or a single round of ammunition, absent a wrongful purpose, is a mala prohibita offense that should not presumptively be cause for denial of relief.

[John F. Carr]

The regulations should be based on actual sentence rather than maximum sentence. Somebody who was sentenced to a year and a day to serve was considered more dangerous than somebody who got probation for a crime with a 20 year statutory maximum.

The law should also be based on time served. The Attorney General can't fix the law. She can fix the regulations.

But the practical impact of all this is hard to see. The proposal I read were too vague to allow for meaningful judicial review. Relief is in the discretion of the hearing officer.

[Michael P]

I agree with using the actual sentence rather than the maximum sentence, but why should the law be based on time served rather than the sentence?

[John F. Carr]

It is common to give a long sentence with most or all suspended on condition of good behavior. A sentence of "two years, all but 60 days suspended for three years" should be treated as a 60 day sentence, not a two year sentence.

[Michael P]

Fair enough, but if the sentence is (say) 15 months but the person is released after one year because of credit for good behavior (or overcrowding or compassionate relief or whatever else), I think the secondary restrictions should still attach.

[Poxigah146]

And the Lautenberg portion should be removed. The fact remains, in 90% of instances where men are convicted of domestic assault, the woman was lying, and in 9% of the remaining 10%, the woman deserved it and it should be legally justified. That leaves only 1% of those convictions where someone should be disqualified from gun ownership.

[wvattorney13]

I can't see how that is principled. Let's say I commit mopery in PA where it is a misdemeanor and a $10 fine. MD, however, thinks mopery is very serious, and makes it a felony punishable by a 5 year mandatory minimum sentence.

Sitting and looking at whether convicted mopers should be permitted to own/carry guns, why would the feds want to disarm the MD moper but not the PA one? They both committed the same act and have the same propensity for violence.

This is not to say that the states cannot themselves consider the same crime to be of different seriousness but why would the feds make that distinction?

[Poxigah146]

I don't necessarily disagree with your overarching principle, but this isn't the only instance where federal law depends on state law. For example, Special Immigrant Juvenile Status allows children here illegally to be legalized if they have experience abuse or neglect. Whether or not they've experienced abuse or neglect is a determination to be made by state courts pursuant to state law.

So, if the standards for what constitutes abuse or neglect differ, it's possible for an illegal alien to get federal legal status if he's living in California, but not in Nevada.

[John F. Carr]

When Congress wrote laws trying to classify state law prior offenses based on elements the result was hard to apply. You had judges wrestling with questions like "is manslaughter a crime of violence?" or "is second degree murder a crime of violence?" A burglary conviction in Massachusetts doesn't count as as a burglary conviction under federal law because it might be burglary of a car instead of real burglary. A Massachusetts conviction for having a gun with an altered or defaced serial number doesn't count as a prior gun conviction under federal law because it is possible that the firearm was manufactured before 1899. (State law prohibits altering serial numbers of antique guns. Federal law does not.)

A facts-based instead of elements-based law is also hard to administer. A Maine man pleaded domestic assault down to simple assault so he could keep his guns. Surprise! Didn't work. He was convicted on federal charges because the prosecutor argued that the conviction should have been for domestic violence. The way background checks now if you have any assault conviction you have to prove it was not factually domestic violence. If you hit a girl you have to prove she wasn't your girlfriend at the time.

How long the state kept you in jail says a lot about how serious the state thought the crime was.

[Stephen Lathrop]

The feds would make that distinction if they followed actual history and tradition. That left states free to regulate guns variously, according to states' various and mutually conflicting interpretations of what gun regulations worked best in each of them. See, for instance, the various gun protections in state constitutions at the time the Federal constitution was ratified.

[Brett Bellmore]

Looking back at the Lautenberg amendment that made prior 'domestic violence' convictions disqualifying, a lot of the people swept up in that had pled guilty without a trial many years prior, because at the time they were charged, as a misdemeanor the only penalty was a fine, which was likely to be cheaper than retaining counsel, or even missing work for the trial.

Then, after the fact, the law changed, and they lost a civil right!

IIRC, the Supreme court permitted that because they refused to treat revocation of a 'privilege' as a "punishment", and therefore would not invoke the ex post facto clause.

The Court has since given up on the idea that 2nd amendment rights are just 'privileges', but even if they don't feel like revisiting that travesty, the AG's regulation should take it into account, and presumptively restore rights for people swept up by the Lautenberg amendment due to prior convictions that had not involved actual trials.

[Poxigah146]

I mean, yes, in theory, they've given up on the idea that the 2nd Amendment confers privileges, but they haven't done anything to stop the lower courts that effectively relegating those rights to privileges.

[Michael Ejercito]

Why does the 2nd Amendment seem to be more disfavored by judges than the other amendments?

[Brett Bellmore]

It was kind of a fad in the legal academies to oppose it, in the middle to latter 20th century. And, of course, the elite legal schools are dominated by the left, which opposes widespread gun ownership because they know that in power they're going to be pissing off a lot of people.

[Stephen Lathrop]

Once again, Bellmore going out of his way to suggest approval of constitutionally unprotected gun use.

[wvattorney13]

What is the founding era historical analogue that justifies a lifetime gun ban based on a prior assault or battery conviction? Even the Trump Administration does not want to apply Bruen faithfully.

[Brett Bellmore]

It's "The greater includes the lesser" reasoning: Since in the founding era you could literally get the death penalty for assault and battery, (Pretty much ANY felony!) loss of a civil liberty being lesser is permitted.

But there is apparently at least SOME historical basis for losing the right to keep and bear arms after conviction for an actual violent crime. But not permanently, and it had to be a serious crime of violence.

A lot of the problem has been 'felony inflation', ironically partly driven by the desire to disqualify from gun ownership as many people as possible.

[wvattorney13]

"It's "The greater includes the lesser" reasoning: Since in the founding era you could literally get the death penalty for assault and battery, (Pretty much ANY felony!) loss of a civil liberty being lesser is permitted."

That is too simple. By that logic, a person could have his eyes gouged out for assault and battery given that at the founding we could have killed him, surely we can do the lesser punishment of blinding him.

In any event, Bruen calls for relevantly analogous *firearm* regulations, not inferences built from a theory of lesser punishment.

As far as your link, I know it is popular for originalists to try to retcon these things (like Brown) to push off the mob, but there is no historical tradition of a permanent disarmament for the commission of any crime.

[Brett Bellmore]

I said there's SOME basis. The basis they found was in English law, and they did note that in the US by the founding we'd rejected a lot of English law, and that permanently losing this right wasn't really a thing in American law at the time. So, yeah, there's no American historical basis for it.

So it's really resting on two pillars:

1. The greater includes the lesser, while ignoring felony inflation, so that permanent loss of a right isn't really "lesser" for "felonies" that don't carry at least life in prison as a potential penalty.

2. Almost everybody on the Court not really much liking the 2nd amendment to begin with.

The majority on the court hardly consists of strict textualists or originalists, maybe you could describe Thomas that way.

Three of the justices would crawl over broken glass to rule against the 2nd amendment.

So even if the rest are inclined in a particular case to vote to uphold the 2nd amendment, there's no fire in their bellies to TAKE the cases, and the ones who would uphold it have to factor in the risk that it only takes two defections on any given case to get an anti-gun ruling.

While the anti-gun justices worry about setting more pro-gun precedents!

So they're only going to take cases where the result is dead obvious even to a justice who doesn't LIKE the obvious outcome, and where they can't avoid taking the case.

And they've got lots of ways to avoid taking cases.

[jimc5499]

How about the removal of the right to own a firearm because of the accusation of Domestic Violence? I went to college with a guy who used to be a cop. His ex-wife accused him of threatening her with his service weapon. It was later determined that he wasn't even in the State on the day that she said it happened. The charges against him were dismissed, but, the accusation still prevents him from owning a firearm according to the State. He had to resign from his job. The District Attorney refused to do anything to the Ex stating that it may hinder an actual victim from coming forward. His Union wanted no part of helping him because they didn't want to be accused of supporting domestic violence.

[Poxigah146]

This all leaves aside the fact that the federal government has absolutely no constitutional authority, not under the Commerce Clause, and not anywhere else, to regulate firearm possession, with federal property, national parks, commercial aircraft, and so forth.

[Brett Bellmore]

Yes, but the Court has removed from the commerce clause everything after "to regulate;" so they don't care.

[Poxigah146]

Pretty much. And the American people expect all of this.

[Poxigah146]

Sorry, that should have been "with the exception of with federal property, national parks..."

[Brett Bellmore]

That was so obvious I didn't notice...

Worth adding that unless the property was purchased with the consent of a state legislature, the federal government only has the rights on it of an ordinary property holder. Article 1, Section 8, Clause 17:

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;"

Another clause of the Constitution that's largely ignored, of course.

[JoeFromtheBronx]

Those convictions should be considered on a case-by-case basis instead of being subject to presumptive denial.

Quite a sensible suggestion.

Not as sensible: requiring, per the command ultimately of five justices of SCOTUS, the test being trying to find some "founding era historical analogue" from a very different reality. The bare text of the Second Amendment does not tell us otherwise.

The government in 1791 (or 1868) was governing based on the knowledge and understanding of its age. A lot of things have changed since then. Suitable gun regulations need to be based on the current reality. A sensible respect for rights includes not cosplaying as if we are LARP-ing a Civil War reenactment.

Obviously, the rules in place now is that we are bound by Supreme Court precedent until it is changed. The precedent leaves something to be desired.

[JohnSmith97]

Is it the assumption that they will always be in control that endlessly drives leftists to want to disarm civilians?

[Stephen Lathrop]

JohnSmith97 — No. It is the assumption that if civilians plan to use guns to achieve political outcomes, then those are guns being used in constitutionally unprotected ways.

[Brett Bellmore]

Yes, like in 1776.

[Stephen Lathrop]

Not like in 1776. Whether as targets or tyrants, We the People are unlike George III.

[Poxigah146]

The Democrat Party is very much like George III.

[JohnSmith97]

SL - so the left wants to ban all civilian firearm ownership because something _might_ happen. Gotcha.

What other parts of the constitution is the left willing to sacrifice to create this utopia? Because you will have to go door-to-door tearing apart every house to find some percentage of them.

[Stephen Lathrop]

Pretense of Constitutional loyalty disappeared quick. You are the one brandishing the guns, and spewing the threats.

[JohnSmith97]

I am? Do you have a cite, or is this just more sarc-style vibes?

[JoeFromtheBronx]

Is it the assumption that they will always be in control that endlessly drives leftists to want to disarm civilians?

I welcomed a case-by-case test to protect against inappropriate disarmament. The Trump Administration did not.

I will leave so-called "leftists" to explain themselves. I myself do not support some sort of complete "disarmament."

I have expressed a belief that there is a constitutional right to own firearms if using somewhat different analysis than current law does. For instance, personal ownership as compared to ownership to further the militia function would be a sort of privacy right.

The issue here is the appropriate test to protect rights. I do not think that the "founding era historical analogue" rule is an ideal one to do so. This applies to rights in general, including First Amendment rights.

It's obvious "leftists" won't always be in control. The last time a Democratic (not the same as "leftist") appointed majority of the Supreme Court was in place, for instance, was over 50 years ago. Republicans had a trifecta at the national level more than once since then. Republicans control many state governments.

[Poxigah146]

Yeah, except that many Republican appointees end up being "surprises," while Democrat presidents never have any issue appointing doctrinaire justices. As an example, do you ever think any judge appointed by a Democrat would hold that a man doesn't have a constitutional right to penetrate another man's anus without protection?

[Sisu]

The topic is clearly stated: "The Attorney General has proposed regulations for procedures for persons to apply for removal of federal firearm disabilities."

Has the AG properly framed the "primary" issue to be addressed ? ... Or, by "dancing" around existing unconstitutional statutes, further legitimized denial of the "infringement" on a Constitutionally protect "God given" right ?

Does the Constitution effectively "limit" the Powers of the Federal Government ? ... Or, has the "monster" become determined to destroy its "creators'" freedom ?

Has the preamble to the Second Amendment been properly interpreted ?

Or, as recently rediscovered, does the preamble merely, explicitly state (the more obvious, consistent with the other nine of ten "initial" amendments (aka the "Bill of Rights")) the rationale for a restriction on the new centralized federal government, i.e., the "militia" is controlled by the "state" and thus a "necessary evil" which needs to be held in check; thus requiring that the People retain the "right of self-defense", which is manifest in the God-given right to "keep and bear arms", which right "shall not be infringed" by the government which has received certain limited Powers from the People directly and through their states ?

18 U.S.C. 922, is a poor substitute for an Article. V. amendment; “political negation" aka eroding of the absolute restriction on the "government" formed by the "People"; i.e., the delegate/delegee usurps the principals' role.