For the first time in more than three decades, Americans prohibited from possessing firearms under federal law are set to have a functioning process through which they can seek restoration of their federal firearm rights.
The U.S. Department of Justice has finalized a regulation establishing a new system for considering applications from eligible individuals seeking relief from federal firearm disabilities. The move revives a process that federal law has technically authorized for decades but that has effectively been unavailable since the early 1990s.
Under 18 U.S.C. § 925(c), the Attorney General can grant relief when an applicant demonstrates that he or she is unlikely to act in a manner dangerous to public safety and that restoring firearm rights would not be contrary to the public interest.
Historically, the Bureau of Alcohol, Tobacco, Firearms and Explosives administered that process. Beginning in 1992, however, Congress used appropriations restrictions to prevent federal funds from being spent on processing most applications. The result was a restoration mechanism that existed in federal law but was largely inaccessible in practice.
The new DOJ rule changes that.
A New Application Process
Rather than returning responsibility to ATF, the new program will be administered through the Justice Department’s Office of the Pardon Attorney. The Attorney General will retain ultimate authority over whether an applicant receives relief.
The program is expected to open in stages after the rule is formally published in the Federal Register.
According to the rollout described by DOJ, the department will begin inviting candidates to apply 30 days after publication. After 75 days, applications will open more broadly, initially to 5,000 applicants. At 120 days, another 500 applications will be accepted and DOJ will begin collecting an application fee.
That fee is expected to be $30, although applicants will be able to request a reduction or waiver in certain circumstances, including economic hardship.
Not Everyone Will Qualify
Restoration will not be automatic.
The rule establishes presumptions against granting relief to people with certain criminal convictions or prohibited statuses. Serious violent felonies—including offenses such as homicide, kidnapping and certain other crimes of violence—can result in presumptive permanent disqualification.
Other convictions may carry waiting periods. The rule establishes a minimum 10-year period following completion of a sentence for certain drug-trafficking convictions and misdemeanor domestic-violence offenses. Other felony convictions generally carry a minimum five-year period.
People who remain fugitives from justice, are subject to qualifying domestic-violence restraining orders, or fall within certain immigration-related prohibited categories can also be presumptively ineligible.
These are presumptions within the restoration process rather than a guarantee that every applicant outside those categories will receive relief. Ultimately, the Attorney General retains substantial discretion.
Marijuana Gets Different Treatment
One particularly notable provision concerns marijuana.
The final rule excludes marijuana from the definition of “controlled substance” used for the rule’s drug-related presumption. Consequently, marijuana use or addiction by itself does not trigger the same presumptive barrier to restoration that applies to unlawful users or addicts of other controlled substances.
The change follows the Supreme Court’s decision in United States v. Hemani, which, as described in the source article, rejected applying the federal drug-user firearm prohibition to Hemani solely on evidence of regular marijuana use under the circumstances presented in that case.
That does not mean marijuana use automatically restores someone’s firearm rights, nor does the new regulation erase the underlying federal statute. DOJ can still examine marijuana use as part of an applicant’s individual circumstances when deciding whether restoring rights would be compatible with public safety and the public interest.
Applicants Will Face an Extensive Review
Anyone seeking restoration should expect a substantial background review.
Required documentation may include fingerprints, court records, charging documents, judgments, plea agreements, presentence reports and proof that all terms of a sentence have been completed.
Applicants may also have to provide criminal-history records from jurisdictions where they have lived or been arrested, relevant military or other records, three qualified character references and authorization allowing DOJ to obtain additional background information.
The Justice Department will also notify the appropriate local chief law-enforcement officer, giving that agency an opportunity to provide information either supporting or opposing an application.
DOJ can consider considerably more than the conviction that originally resulted in the firearm prohibition. The Attorney General may examine an applicant’s overall criminal history, conduct while incarcerated or under supervision, rehabilitation, time since completion of the sentence, threats or restraining orders, drug use, mental health, character references and information provided by local law enforcement.
The rule also permits consideration of whether continuing to deny firearm rights under an applicant’s individual circumstances would infringe that person’s Second Amendment rights.
Federal Restoration Has Limits
A successful application will not necessarily eliminate every legal restriction on firearm possession.
Relief applies to the federal firearm disability addressed in the application. Independent state or tribal firearm prohibitions can remain in effect, and a person can become prohibited again because of later conduct.
Applicants who are denied relief will have another potential avenue available: they may petition the appropriate U.S. District Court for judicial review.
A Major Change After Decades of Inaction
Whatever one’s position on firearm policy, reopening the federal restoration process represents a significant administrative change.
For more than 30 years, federal law contained a mechanism allowing prohibited individuals to demonstrate that they no longer posed a danger and should regain their firearm rights, while congressional funding restrictions made that mechanism largely unusable.
The new DOJ rule attempts to turn that dormant provision into an operating system built around individualized review, documentation, public-safety considerations and ultimately the Attorney General’s discretion.
The most important question now is how that system functions in practice. With applications being introduced gradually and thousands of potential applicants expected to seek relief, the first rounds of decisions should provide a clearer picture of how difficult federal firearm-rights restoration will actually be—and who will ultimately qualify.
Disclaimer: This information is not legal advice and you should conduct your own research to verify validity and sources.