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State Relief from Federal Firearms Laws

Posted by attorney John Kaman

I have long taken the position that certain persons disqualified from owning or possessing firearms under federal law cannot have their gun rights restored under state law. The list of such persons is set forth at 18 USC 922g and it seems unequivocal in its terms.

Some states, not California, do allow for a restoration of firearms rights, even to violent felons. They are able to do so because of a loophole in federal law I only recently was made aware of. 18 USC 921 provides that "What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."

This is a loophole one could drive a truck through and many states do indeed lawful provide for restoration of firearm rights. Again CA is not among them with one exception and that is where a felony is reduced to a misdemeanor under PC 17(b).

There are still dangers involved where disqualified persons regain firearmrights in state A and move to state B which does not allow such restoration. Such persons are in violation of their new states law and federal law and subject to prosecution under both. Caution is therefore the word in this regard.

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