William & Mary Bill of Rights Journal
Abstract
Most states afford felons the opportunity to have their political disabilities removed or “rights restored” after they are released from incarceration. In every state within the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit, save Virginia, a felon’s rights are partially restored automatically upon the completion of his sentence, parole, and probation. Absent a pardon, Virginia requires the felon to petition the Governor in writing through the Office of the Secretary of the Commonwealth in order to obtain a partial restoration of rights. One such right that may or may not be restored upon a state-convicted felon’s return to society is the right to ship, transport, possess, or receive firearms. While it is generally presumed to be illegal for felons to engage in any of those four activities in the states within the jurisdiction of the Fourth Circuit and nationwide, whether that is accurate in any specific case depends on a variety of factors including the scope of the rights restored by the state, the length of time the felon has conducted himself in a law-abiding manner, and any affirmative steps taken by the felon to remove any outstanding collateral firearms disabilities. Frequently, felons must take affirmative steps to secure a restoration of their firearm rights because most state restorations of political rights do not include the restoration of firearm rights, and even when a state restores some firearm rights, like the ability to use shotguns or rifles exclusively for hunting, the felon may still be subject to a federal firearm disability.
This Article discusses the restoration of firearm rights for felons and specifically addresses the methods by which individuals convicted of felonies under state law may be relieved of collateral federal firearms disabilities in the Fourth Circuit, with a particular emphasis on the practice in Virginia.
This Article calls on the Fourth Circuit to make clear in an appropriate case that a defendant’s “civil rights” have been restored under state law for purposes of 18 U.S.C. § 921(a)(20) if the state has also restored the defendant’s right to possess firearms. Due to the Supreme Court of Virginia’s interpretation of the Virginia Constitution in Gallagher v. Commonwealth, which concluded that the governor lacked the authority to restore firearm rights and that only the state trial court could do so, the Fourth Circuit’s failure to construe 18 U.S.C. § 921(a)(20) as suggested will have the unintended and disparate effect of failing to relieve all state-convicted felons in Virginia from their collateral federal firearm disabilities. To read 18 U.S.C. § 921(a)(20) as not removing a federal firearms disability when the felon has received the unrestricted restoration of his firearm rights by a Virginia trial court would yield a perverse result because the purpose of this statute was to redirect the restoration process to the states. The longer this circuit proceeds without closing the door on this question, the longer attorneys unfamiliar with the nuances of federalism—but who have had their clients’ firearm rights restored pursuant to the state judicial proceeding afforded under Virginia Code § 18.2-308.2(C)—may inadvertently risk subjecting their clients to the “terrifying force of the criminal justice system” once again.