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Gun Ownership by Pardoned Felons

Dave Hardy points to a story coming out of Tennessee on the topic here. Dave mentions it’s a separation of powers question, as to whether the legislature can interfere with the Governor’s powers to pardon. I notice in the article there’s out-of-state issues too:

The attorney general opinion said that Tennessee does not recognize the pardons from anywhere in the country, including with the state, as grounds for restoring gun rights.

I would imagine that could also implicate the Full Faith and Credit Clause of the Federal Constitution as well. There have been a few circuit court decisions on this, one of them in the fifth circuit, which is next door to the 6th, which Tennessee is in. There they ruled that full faith and credit is implicated in pardons, and that the state in which the pardon is issued is controlling:

Next we reach the question whether Louisiana may constitutionally refuse to give the same effect to a pardon granted by another jurisdiction that it would give to its own pardon under the Habitual Criminal Act. We are of the opinion that this would violate no constitutional principles. There is clearly no question here of a violation of the full faith and credit clause, since Louisiana has given the same effect to a Missouri pardon that a Missouri court would give it.

That implies there could be a FFAC issue, I think, but it would depend in the state in which he was pardoned, and whether they had a similar provision to Tennessee. The Circuit Court of Appeals implies in this case that no more credit need be given than is given in the pardoning state. In another neighboring Circuit, the 7th, they ruled differently. This case actually involves firearms law, but it’s a bit different, because it involves the federal consequences of a conviction versus a state pardon. Not state consequences of a conviction versus a pardon from another state:

In his complaint, plaintiff characterizes the refusal to license him as a failure to give full faith and credit to the Montana pardon. Article IV, 1 of the Constitution, concerning ‘public acts, records, and judicial proceedings,’ speaks only to the states. By statute federal courts must also accord full faith and credit to state legislative acts and judicial records and proceedings. 28 U.S.C. 1738. However, it is open to question whether the full faith and credit clause extends to requiring a state court to treat a sister state’s pardons as eradicating guilt for the purpose here involved, even if the issuing state gives them that effect.

This seems to me to be very much an open issue, and it would be interesting to see a case like this go forward. In the case of someone who was convicted and pardoned in Tennessee courts, that would be solely a state issue, but in the case of someone moving to Tennessee who was pardoned by the Governor of another state, you bring federal issues into play under FFAC.

UPDATE: Dave Hardy has more thoughts here.

4 Responses to “Gun Ownership by Pardoned Felons”

  1. Matthew Carberry says:

    I’m sorry Mr. Scott, but although you were duly freed by your former master in Georgia and can prove it, in Tennessee we don’t recognize such personal emancipations.

    =/

    Not sure how McDonald will impact but in the least I assume it will add another Federal hook beyond FFC. Federal gun rights lost due to a state conviction are currently restored by that state’s actions. For another state to refuse to acknowledge the Federal restoration, thus denying a fundamental right, I would think would raise some issues.

  2. slick says:

    It’s worth pointing out that Bill Clinton was a pardoned felon. Draft dodging, pardoned by Carter. So if the state of Tennessee is going to deny rights to pardoned felons, they damn well should have refused to put Clinton on the ballot.

  3. Eric says:

    Sebastian, you might find US vs Tait of interest — not sure if it applies to the case so much, but it shows an example of the feds being set back a notch due to a state restoration of rights, and it involves a restoration in one state vs federal charge in another.

    http://openjurist.org/202/f3d/1320/united-states-v-tait

    Tait had been convicted of three felonies in Michigan, served time, and upon release had full rights restored automatically according to Mich state law.

    He then moved to Alabama, got a concealed handgun permit, came to the attention of the feds when he was subsequently arrested for something that happened in a school zone (the case at the link does not go into this).

    The feds tried to argue that under federal law, he was still a felon, but the trial and appellate judges said no — the federal felon-in-possession law does not apply to those who have rights restored unless the gun rights are specifically restricted. Tait’s were not, Mich law restored all his rights.

    They also tried to gig him under the GFSZA by arguing that the Alabama gun permit did not qualify for the GFSZA permit exception in the GFSZA because Alabama law did not require a background check, and also because Alabama law does not allow permits for people convicted of — wait for it — felonies.

    Both courts tossed this as well since the GFSZA only requires that a person have a concealed carry permit issued by the state or it subdivisions, no matter how lenient the process, and Tait was no longer a felon since his rights had been restored.

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