i myself have 2 DUI's on my record from about 7 years ago, they were classified as a M1 in the state of PA. under PA state law i am still legally eligible to own a firearm, but federal law says i cannot. now i heard federal law always trumps state law and even if your state says your not banned your still banned on the federal level. doing some research online i came across this http://www.nytimes.com/2011/11/14/us/felons-finding-it-easy-to-regain-gun-rights.html?_r=0 there seems to be many cases of people who were convicted of much more serious crimes, and had the "state" restore their gun rights, if the state restored their gun rights, why werent these people still banned on the federal level? can someone please inform me to how this is possible? why didnt theytriggerTHEfederalBAN
I've already responded to your inquiry posted to Criminal Defense, yesterday if my memory serves me. I will respond again here under the Civil Rights practice area. Let me set forth the pertinent portions of question No. 32 on the Application/Record of Sale (PSP Form SP 4-113) one of two forms you would be required to complete in connection with an attempt to purchase a firearm in Pennsylvania. "Are you now charged with, or have you ever been convicted of a crime punishable by imprisonment for a term exceeding one year? This is the maximum sentence that you 'could have receiver,' not the actual sentence you did receive. . . ." The federal form you would be required to complete, ATF Form 4473 in question 11(c) seeks an answer to essentially the same question. For both forms you are given two choices as possible answers, "No" or "Yes". If you were to answer both questions accurately and truthfully in the affirmative, your application would be denied. If you chose to respond untruthfully to either, your application would still be denied; that's what the system was created to accomplish. If you choose course number two, you can anticipate being charged with Felony 3 under §6111(g)(4) for making a false application for the purchase of a firearm and two counts of Unsworn Falsification to Authorities, §4904 (a)(1), Misdemeanors of the second degree. The first carries a maximum sentence of seven years, the two M2's have two-year maximums. You can get together with an attorney conversant with the laws in this area before making application or you can wait until you catch the charges I described. If your real interest here is to engage people in a debate about gun laws and the Second Amendment, I can assure you I'm not in the least interested in that academic exercise, especially with someone who is neither trained in or otherwise knowledgeable about the subject matter. Please let this be your last post to this website. There are others out there that you can attempt to engage. You received appropriate guidance yesterday, and I've chosen to indulge you one more time. Good night.
There are several issues here:
1) The DUI statutes state precisely how long you may be sentenced. The majority of the sentences do not trigger the federal prohibition. This is not to tell you that you can go ahead and fill out the forms indicating that you have not been convicted, but to alert you to a possibility. You should consult an attorney to determine whether you are actually prohibited.
2) In Pennsylvania, the state may restore your firearms rights under state law. Pennsylvania utilizes the Pennsylvania Instant Check System (PICS) for background checks for firearm purchases. Some states utilize the National Instant Check System (NICS). Under the NICS Improvement Act, states who implement NICS may restore their citizens' firearms rights and that restoration is recognized by NICS. States who do not implement NICS, however, are not entitled to that recognition. At least one federal court has found this discrimination unconstitutional - however, at present, that case does not apply to Pennsylvania.
3. In general, you are correct about federal law preemption. If you are prohibited on the federal level, you may not own or possess firearms, regardless of whether your state allows you to. Likewise, even if federal law allows you to possess firearms, if your state prohibits you, you will run afoul of state law.
No attorney-client privilege exists as a result of this answer and any information given is strictly for informational purposes and does not constitute legal advice. If you seek legal advice or representation, contact an attorney directly.
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