Written by attorney Derek Michael Smith

Firearms Law In Washington for Pre-1996 felony convictions

Does the State have the right to strip away the fundamental right to possess a firearm under the 2nd Amendment to the U.S. Constitution and Art. 1, § 24 of the Washington Constitution from a person because of a felony conviction when at the time of the conviction he did not lose his right to possess firearms, after conviction all his civil rights were restored, he had been told by the state he could lawfully carry firearms, and when the state took the right away without specific notice to him, he could have had the right restored automatically and immediately?

legal argument

RCW 9.41.040 –Felony Possession of a Firearm, A SHORT HISTORY

RCW 9.41.040 is the law that disenfranchises felons from their constitutional right. Its history and the law of felon firearm disenfranchisement is relevant here.

Historically under common law, a felon did not lose the right to possess firearms. See Why Can’t Martha Stewart Own a Gun, Kevin C. Marshall, Harvard Journal of Law and Policy, Spring 2009,\_final.pdf. The article describes that at common law in England, felons were either put to death (thus “losing" their right to possess firearms) or had their property stripped from them at conviction. Id. at 714-15. However, they were not banned from the future owning of firearms. Id.

In Washington, under common law, no prohibition on possession of a firearm existed when the State incorporated. See State v. Radan: Upsetting the balance of public safety and the right to bear arms. Matthew R. Kite, 37 Gonz.L.Rev. 201, 205-06 (2003). In 1935, the State enacted 9.41.040 which only prohibited those who committed a crime of violence from possessing a pistol. Id. In 1983, the law was changed so that any pistol or short firearm was prohibited, but only by those convicted of a crime of violence or where a short firearm or pistol was displayed. Id. at 206. In 1994, the legislature changed it to any firearm and the disqualifying crimes as a serious offense, a domestic violence offense, harassment, or a crime where a firearm was used or displayed, three convictions for DUI, or a felony drug offense. Id. In 1995 the law was changed to add residential burglary and reckless endangerment in the first degree to the disqualifying felonies. Id. at 207. Then in 1996, the law was changed to substantially read as it does today, any felony conviction. Id.

In 1996 the law changed when RCW 9.41.040(2)(a) was changed to read (in pertinent part):

(2)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, if the person does not qualify under subsection (1) of this section for the crime of unlawful possession of a firearm in the first degree and the person owns, has in his or her possession, or has in his or her control any firearm: (i) After having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any felony not specifically listed as prohibiting firearm possession under subsection (1) of this section[.]

RCWA 9.41.040.

This is how RCW 9.41.040(b)(i) reads today, although RCW 9.41.040 has been amended several times since 1996. As it reads now, yes, the law does allow this. Contact an attorney experienced in firearms law who can help you with your case because there are good arguments about how to defeat this situation.

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