Unclear on the concept
A reader emails that someone he knows was denied a transfer of a firearm due to a decades old arrest that he didn’t think was a felony. An appeal was made to the Tennessee Bureau of Investigation. He sent me a copy of the denial of the appeal, which contained the following:
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| From Stuff |
Having rights restored doesn’t include all rights? Odd.
February 4th, 2011 at 10:25 am
His what is prevented from possessing a handgun?
February 4th, 2011 at 10:29 am
More info on the law.
Disclaimer: I am a lawyer, but I am not the lawyer who wrote the contents at the link. This is not my legal advice.
February 4th, 2011 at 10:54 am
The unfortunate end condition of bad fundamental thinking when it comes to rights. Marko posted on this issue a while ago.
Now this citizen pays the price. How I long for a system where the representatives and executives that foist this kind of stuff on us to pay up instead.
February 4th, 2011 at 10:57 am
Sometimes this is a result of convoluted laws. Ohio had a situation where restoration of gun rights did not include restoration of rights to NFA weapons. The feds will only accept full restoration of rights–so the partial restoration wound up being a non-restoration
February 4th, 2011 at 10:58 am
The whole ‘misdemeanor punishable by more than one year” is nonsense too. That’s, like, every misdemeanor these days.
February 4th, 2011 at 11:26 am
“You keep using that word. I do not think it means what you think it means.”
February 4th, 2011 at 11:29 am
I spoke with an appellate judge who ruled in favor of the defendant in a case involving these facts.
I believe, but I am not certain, that his opinion was a dissent.
February 4th, 2011 at 1:20 pm
“The whole ‘misdemeanor punishable by more than one year” is nonsense too. That’s, like, every misdemeanor these days.”
Um, no. If it’s more than a year, it’s a felony. Heck, in Tennessee you apparently can’t get even twelves months for a misdemeanor.
That said, the letter may have a weird understanding of “probation.” You’re correct that most serious misdemeanors (including petty theft) can be punished with a “good behavior” requirement that can be over a year. I seriously doubt that this is what the TN and USA laws contemplate, but it’s possible that the statutes need clarification.
February 4th, 2011 at 1:23 pm
Is this how you spell “ex post facto?”
.
.
February 4th, 2011 at 3:02 pm
Stencil: No. This isn’t an ex post facto law, since it does not criminalize past actions that were legal at the time.
February 4th, 2011 at 3:16 pm
I dont see any mention of which state this is referring to? It would be nice to know which state laws need to be looked at to see if this is BS or not.
February 4th, 2011 at 4:21 pm
Actually, it depends on state law. IIRC, Massachusetts (for example) has several crimes with a maximum jail sentence of over a year that it still classifies as misdemeanors. I think there are others. Even though the state classifies them as misdemeanors, they are disqualifying under federal law despite not being felonies.
That being said, I believe most states have gone to the de facto standard of “misdemeanors = up to one year and felonies = one year or more”.
The statutes don’t need clarification, they need repeal. If we don’t trust someone with a gun, we shouldn’t be trusting them out of prison, either.
February 4th, 2011 at 5:42 pm
“…decades old arrest that he didn’t think was a felony”
Wait, just an arrest, or was it a conviction? What was the violation? Him not thinking it was a felony doesn’t carry any weight with “the man”. We’d have to know these things.
February 4th, 2011 at 7:37 pm
Federal law is what controls this.
It doesn’t matter whether or not the state calls the crime a felony, a misdemeanor, or high mis-juju. If the penalty can be more than a year, then to the feds, it is defined as a felony.
As for rights restoration, the feds require a complete expungment … if you get flagged in a NICS check, no firearm for you.
February 4th, 2011 at 8:48 pm
Someone needs to tell TN that state-level misdemeanors that carry a maximum sentence of less than two years are not federally disqualifying (unless they’re domestic violence). It’s right there at 18 USC 921(a)(20)(b), and in the instructions on the 4473.
Of course, if the state says they’re disqualifying, that’s a state-level issue, but they’re citing both so they’re at least half wrong.