Ohio Restoration of Second Amendment Rights following Conviction
This guide seeks to explain the basic process and potential pitfalls of seeking to have Second Amendment, or Firearms Rights restored following a criminal conviction.
Loss of Second Amendment Rights: Terminology NoteWhen a person loses his or her Second Amendment rights due to the commission of a criminal offense, he or she is deemed legally "disabled" from the possession of firearms and/or ammunition. The offense he or she commits, if he or she possesses a firearm or ammunition after become so disabled is known as "having weapons under disability." This is the offense most of you know as Felon in Possession of a Firearm. Firearm too, is a defined term in the law. Some things you may think of as guns won't meet that definition. Additionally, though most of us know this offense as involving the possession of a gun, it can be committed by possessing ammunition even in the absence of a gun to put it in.
Firearms Disabilities: Ohio vs. FederalUnder the laws of the State of Ohio, any person convicted of a felony offense of violence, or a felony drug offense, is legally disabled from the possession of firearms and ammunition. O.R.C. 2923.13. Under Federal Law, any person convicted of an offense punishable by more than one year, or a misdemeanor domestic violence offense, is legally disabled from the possession of firearms and ammunition. 18 U.S.C. 922(g).
Many offenses trigger both disabilities, and would thus require relief effective against both. A handful of offense trigger only one. But, these too can lead to confusion. For example, Ohio's lowest level felony offenses, felonies of the fifth degree, are punishable by up to one year, not more than one year. These convictions should not trigger the federal disability. But, many people seeking to purchase a firearm with such a conviction are turned down. That's fine, if it is a violent or drug related offense because such offenses do trigger the Ohio disability though not the Federal disability. But what about a fifth degree felony theft? Bad checks? Misuse of Credit Cards? Etc. These non-violent fifth degree felonies should not trigger either disability.
Similarly, some offenses only trigger the federal disability. Ohio's standard domestic violence offense, for example, is a first degree misdemeanor. It does not trigger an Ohio disability. It triggers a Federal disability. And, Federal offenses, which are felonies involving drugs and/or violence, trigger the Ohio disability as well as the Federal disability. These distinctions are important, as we will see below.
Process for Seeking RestorationOhio law provides for an application for the restoration of firearms rights to be made in the Common Pleas Court covering the jurisdiction in which a person resides. O.R.C. 2923.14. Federal law provides for application to the ATF. Unfortunately, Congress has never funded the application process. You can apply. But, there is no one there to read read it.
If the disability is a purely Ohio disability, such as a fifth degree felony drug possession charge, one can seek relief from that disability in Common Pleas Court. Upon hearing on the application, the court may grant relief, if all of the following apply: (1) if the disability is due to indictment, conviction, or adjudication, the applicant has been fully discharged from imprisonment, community control, post-release control, and parole; or, if the disability is due to a factor other than indictment, that factor is no longer applicable to the applicant; (2) the applicant has led an otherwise law abiding life, and appears likely to continue leading a law abiding life; (3) the applicant is not otherwise disabled from acquiring, having, or using firearms. R.C. 2923.14(D). Relief granted under R.C. 2923.14 restores to the applicant all civil firearms rights to the full extent enjoyed by any citizen. R.C. 2923.14(F).
If the disability is purely Federal, such as the disability triggered by a first degree misdemeanor domestic violence conviction or by a federal crime involving neither drugs nor violence but punishable by more than one year, one can file an application with the ATF. But again, there is no one to process those, so nothing will happen and the disability will remain in place. Unfortunately, an Ohio court cannot grant relief from a purely Federal law disability.
Ohio Relief can be Effective against a Federal DisabilityUnited States v. Zellars (6th Circuit Court of Appeals 2009) held that Ohio relief granted for a disability triggered by an Ohio crime, which crime also triggered a Federal firearms disability, was effective against both disabilities. This means that if the source of the disability is a state law crime the state courts have the power to grant relief from that disability thereby circumventing the need to wait forever for Congress to fund the ATF application process.