The Firearm Owners' Protection Act and the Restoration of Felons' Rights to Possess Firearms: Congressional Intent Versus Notice
Daniel Brenner | 2008 U. Ill. L. Rev. 1045
Many federal and state statutes affect individuals’ right to “keep and bear arms” as guaranteed by the Second Amendment of the United States Constitution. In particular, the Firearm Owners Protection Act (“FOPA”) prohibits felons from possessing, receiving, shipping, or transporting firearms or ammunition in interstate or foreign commerce. FOPA does not apply, however, to individuals who have received par-dons or a restoration of their civil rights. It also exempts felons whose convictions have been expunged or set aside. These exceptions apply as long as such pardon, expungement, or restoration of civil rights fails to expressly provide that the individual may not ship, possess, or receive firearms or ammunition.
Although commentators do not significantly dispute FOPA’s broad re-striction on felons’ Second Amendment right to “keep and bear arms,” FOPA’s other provisions have given rise to a federal circuit court split regarding whether a pardon, expungement, or restoration reinstates the entirety of a former felon’s civil rights when an applicable state law pro-vides that felons may not possess firearms or ammunition. The author begins by outlining the background of the Second Amendment, FOPA’s statutory precursors, and FOPA’s basic framework for restoring a former felon’s firearm privileges. Next, the author uses these concepts to ana-lyze two inconsistencies in circuit courts’ application of FOPA: (1) the effect of a state’s reinstatement of a former felon’s civil rights by certificate or other document when the state otherwise forbids the felon from possessing firearms (the “active restoration” split), and (2) the implications of a state’s provision for automatic reinstatement of a former felon’s civil rights when the state also prohibits felons from possessing firearms (the “passive restoration” split). The author then scrutinizes whether and at what point courts should invoke the rule of lenity used in statutory construction to resolve these issues. After concluding that a singular emphasis on either due process notice concerns or legislative intent would prove an inadequate mechanism for protecting state autonomy and felons’ due process rights, the author recommends that states be required to proactively inform felons of their rights before releasing them into society. Specifically, the author suggests that states conduct informational meetings in which law enforcement officials inform probationers of gun possession laws and how prosecutors charge felons who possess firearms. This solution would fulfill the dual objectives of providing felons with notice of their rights and permitting states to determine whether a felon is fit to possess firearms.