On July 22, the U.S. Department of Justice (DOJ) issued a proposed rule in response to the Trump administration’s intention to revive a statutory process for the restoration of Second Amendment rights lost under federal law as result of convictions or other circumstances. We have been reporting on this initiative favorably for several months now, and we are pleased to see the project progressing. NRA-ILA looks forward to submitting its own comments on the proposal, and we urge other pro-gun, pro-freedom Americans to do so as well. There are number of areas where we believe this initial proposal could be improved, and thoughtful comments can help steer the process in a positive direction.
Background on the rulemaking can be found in our article at this link. NRA-ILA supports the process of firearm rights restoration. In partnership with the Second Amendment Foundation, we had commented favorably on DOJ’s prior interim final rule to revoke the attorney general’s delegation of authority to consider relief applications from ATF, whose ability to administer the program has been blocked by funding riders since 1992. Yet because the funding rider’s language applies only to ATF, while statutory authority to administer the program is vested in the attorney general, the attorney general can redelegate authority to administer the program to a different DOJ component.
The current proposal would vest that authority in the Office of the Pardon Attorney and seeks to provide more detail about the application process. It also explains factors that would guide DOJ’s exercise of authority in deciding whether to grant relief.
To understand NRA-ILA’s concerns with the proposal, it is important to be familiar with the language of the statute authorizing relief from disabilities and with the prior rule enacted to guide ATF’s participation in the process. The statutory discretion given to the AG in granting relief is notably broad. That is, “the Attorney General may grant such relief if it is established to his [or her] 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.” The prior rule basically mirrored the statutory language and established very few prerequisites, relying instead on case-by-case determinations based on a detailed investigation of the circumstances.
One thing that is immediately apparent is that the new proposal is much more detailed and prescriptive than either the statute or the prior rule. The rulemaking’s preamble justifies this prescriptiveness by arguing that it “ensures that government resources are focused primarily on persons who could plausibly make [the] necessary showings for relief.”
In particular, the new proposal establishes a long list of circumstances that will presumptively result in a denial of rights restoration. Some of these presumptions apply permanently. Others apply for periods of 10 or five years from various triggering events. The rulemaking’s preamble claims these circumstances represent bases of disability (mostly types of disqualifying criminal convictions) “closely associated with dangerousness” or even, in some cases, “lack of respect for the law.” It further specifies:
An applicant with one of these characteristics may seek to rebut that presumption, but the Department anticipates that the statutory criteria required for the Department to grant relief could only be satisfied if such an applicant could make a showing of extraordinary circumstances.
Yet the proposal does not limit its presumptions strictly to categories of convictions. It also states: “the Attorney General may also go beyond the elements [of the offense of conviction] and consider all the facts underlying the applicant's prior offense to determine whether that offense involved conduct that, as a practical matter, qualifies as one of the listed offenses.” In other words, the reviewing official could determine that uncharged, unproven conduct could also be used to establish a presumption of denial.
While NRA-ILA agrees that transparency is beneficial, we are concerned that the rulemaking may, in fact, be too prescriptive. A certain degree of flexibility is meant to be part of the process, given the broad range of circumstances that can lead to federal firearm prohibitions, and the statute’s language reflects this.
Moreover, while NRA-ILA agrees that an established propensity for violent conduct should count against the granting of relief, we also think the offenses the rulemaking considers “closely associated with dangerousness” are overly broad. They include, for example, a long list of non-violent, possessory firearm offenses under the Gun Control Act or even broader state analogs; property crimes; controlled substance offenses; misdemeanors punishable by more than two years in prison; crimes in which the perpetrator and victim are not even physically in the same place; and even crimes against animals that have no human victims whatsoever.
We are not suggesting the circumstances of the underlying offense should not be closely scrutinized. But the presumptive bases of denial often contain a broad range of conduct that can vary widely in illustrating a person’s propensity for violence. Under the category of “burglary,” for example, a home invasion of an occupied dwelling by an armed assailant in the wee hours of the morning would be of much greater concern than someone who breaks into a tool shed and steals some landscaping equipment. But both fall under the same permanent presumption of denial.
On top of the presumptive disqualifiers in the rule, there is also a long list of new administrative requirements for filing an application, some that seem redundant or designed to make applying more expensive, time-consuming, and difficult. For example, all applicants must submit fingerprints and consent to a detailed investigation by DOJ of their social, employment, medical, and criminal history. But they are also required to provide a “copy of the individual's criminal record check for … [e]ach state, or locality if a state-wide report unavailable, in which the applicant has resided since turning 18 or for the last 25 years, whichever is shorter; and … [e]ach state, or locality if a state-wide report unavailable, in which the individual has been arrested since turning 18.” The applicant, in other words, must duplicate DOJ’s own efforts at a criminal history check.
A new application filing fee is added, as well, subject to ongoing re-evaluation, even though there is no express authorization for one in the restoration statute itself. It is not difficult to imagine how this provision could be abused by a future anti-gun administration. Likewise, a new provision (also unauthorized in the restoration statute) would allow the attorney general to revoke restoration at any time after it was granted.
Disappointingly (to say the least), the asserted bases for the strictness of the rulemaking are the same “study” by the Violence Policy Center (VPC) and “analysis” by VPC executive director, Josh Sugarmann, that led to the original funding rider. We deconstructed these efforts in our prior reporting on this issue, but the point here is these are propaganda pieces by firearm prohibition advocates, produced specifically to support the defunding effort, not serious criminology or social science research by unbiased experts.
The rulemaking also approvingly cites a committee report that elsewhere stated: “[T]hose who commit serious crimes forfeit many rights and those who commit felonies should not be allowed to have their right to own a firearm restored. … There is no reason to spend the Governments' time or taxpayer's money to restore a convicted felon's right to own a firearm.” Of course, this is the exact policy the Trump administration meant to reject, not reinforce.
NRA-ILA acknowledges that most applicants for relief will have been convicted of felonies and will have to make a strong showing that they have turned the page to a peaceful, law-abiding life. We do not take issue with that.
Yet the statute itself, in granting relief authority to the attorney general, did not impose any thresholds or cutoffs, as in this rulemaking. It contemplates that, whoever a person is, and whatever led to that individual’s firearm-related disabilities, he or she could at least make his or her case to the government for relief. Likely, the granting of relief would vary from administration to administration, with those who support the Second Amendment taking the process more seriously and administering relief more liberally.
This rulemaking, however, would codify a very restrictive paradigm that would limit the discretion of future DOJ officials in taking a more wholistic approach. And future anti-gun administrations could revoke, under the rule’s terms, relief granted by prior pro-gun administrations.
The easiest way to comment on the rule, entitled Application for Relief From Disabilities Imposed by Federal Laws With Respect to the Acquisition, Receipt, Transfer, Shipment, Transportation, or Possession of Firearms, is through the government’s official eRulemaking Portal here. Be sure to include the rulemaking’s docket number, OAG191, with any submission.
Comments should respectfully offer feedback on the rule’s terms and language. Supporting data, information, legal authority, and personal experiences are especially helpful in illustrating problems with the rule or when suggesting changes. DOJ “specifically requests comments regarding the felony offenses that should be presumptively disqualifying; the felony offenses that should be presumptively disqualifying until a specific length of time; and the appropriate length of time after which the former offenses should not be presumptively disqualifying.” Submitted comments may appear online in the rulemaking docket.
The Trump Administration has signaled its desire to revive restoration of Second Amendment rights under the Gun Control Act of 1968. It will take pro-gun America’s input to ensure the project is successful and operates as intended. Make your voice heard and comment as soon as possible!
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