Pardon me?
The Tennessee AG has released an opinion which says that pardoned drug offenders can own rifles and shotguns but not handguns. The opinion is here but the page seems down so I haven’t been able to read it yet. But Tom Humphrey notes:
Cooper writes in the opinion released Wednesday that Tennessee’s firearms ban for felons has exceptions for those who have been pardoned, had their convictions expunged or have had their civil rights restored.
But Cooper says the law doesn’t provide those exceptions for handgun ownership by people convicted of certain violent crimes and drug felonies.
I’m not aware of the laws he’s referring to. So it should be an interesting read once the site comes back up. After all, I thought being pardoned and having your rights restored meant that you were actually, err, pardoned and had your rights restored.
Update: Looks like there are two laws at issue. And that a pardon does not erase a crime. Seems the logic is sound but I could see a case being made the other way.
October 22nd, 2009 at 9:49 am
didn’t one of the states out west (Idaho? Montana?) get in a tiff with the BATF recently, with the feds saying their procedure for rights-restoration and records-expunging didn’t restore and expunge quite thoroughly enough for for the BATF to count it as such under their federal standards? something about the state in question still wanting to keep (some) old convictions on the records for non-firearms related purposes, i believe.
October 22nd, 2009 at 9:58 am
I think it was wyoming. But yes, I remember that.
ETA: Yup, Wyoming.
October 22nd, 2009 at 10:03 am
i thought i remembered as much. hmm, seems to me that “we’ll expunge your records so long as you don’t try to buy a pistol” might be even more likely to fall foul of this principle…
October 22nd, 2009 at 10:43 am
In any case, since it is not a complete restoration of firerm rights, I am sure the feds will not accept it.
October 22nd, 2009 at 10:55 am
From what I understand (and I freely admit I may be wrong), a state-level pardon and restoration of firearms rights is only effective on a state level (in other words, pretty much useless). In order to actually legally possess any firearm, you also have to petition in Federal court for your rights to be restored under the Federal law. Otherwise, your state can say all it wants that your rights are restored, and the state can’t prosecute if you’re caught with a gun, but the Feds can still throw you in jail on charges of “felon in possession”.
It’s a ridiculous double disability. The Federal-level restoration should be automatic with the state-level restoration.
October 22nd, 2009 at 1:44 pm
I don’t think that is correct Jake. If you violate a state law which the made you a felon, the state can pardon you of the crime they created.
If you were charged and convicted of a federal law, then the feds are the ones to pardon you.
As for the Wyoming case, that was about expungment of a conviction, not a pardon. Basically Wyoming was saying that they would remove the conviction from your record, but if you do the same crime again then we will treat it as a 2nd offense. The feds said that if the expunged offense can later be used against the person, then it was not really expunged.
So for a pardon to “count” for the feds, the pardon must make all possible disabilities, that are or could be imposed by the state for whatever reason, no longer valid. If you get a pardon in TN and there is still a prohibition on owning a firearm, then to the Feds you were not fully pardoned and so are still prohibited from ownership.
October 22nd, 2009 at 2:19 pm
I think what the AG is saying is Unconstitutional as a violation of TN Constitution’s Separation of Powers.
For the legislature to say, we don’t care if the governor pardons someone, we are going to make it so that they stay punished, means the legislature is taking power away from the Governor that the TN Constitution gives him.
There may be some TN caselaw that says otherwise, I don’t know. However on the face of it, it seems like a violation to me.
In Georgia we had a somewhat similar issue with firearm license denials and an AG opinion on pardons. The opinion said a pardon did not affect the law that said you could not get a license even if pardoned. However since then several local courts have ruled otherwise citing the GA Constitution as giving power to the Board of Pardons and Paroles and that the law would be unconstitutional if interpreted the way the AG did.