Posted by: Jay | March 6, 2008

The Insanity Of It All

Let’s get right to the point. I am a convicted felon.

Scary isn’t it? We hear the term “convicted felon” and we immediately get a thought in our heads of some tattooed gangbanger that has served time for a violent crime of some sort. Well that’s not me. What was my crime? Well, back in 1993 I was stupid enough to be involved in a scheme with a guy I worked with to take a couple of blank checks from our office, create some kind of bogus company and get them cashed. To make a long story short, I wound up pleading guilty to the crime of theft by deception in the third degree in the state of New Jersey in November of 1994. I was given 5 years of probation and had to make restitution. In March of 2000, I successfully completed my probation. Since that time (in fact, since the time I entered my guilty plea), I have not received so much as a parking ticket.

I was married in 1995 to the woman who knew what I had done and chose to stay with me regardless. In February of 1997, we were blessed with the birth of our son, Michael. In the summer that year, I had an opportunity to take a job in Florida. My parents lived there as did my in laws and some other family members, so it wasn’t a situation where we were leaving everything behind. In April of 1998, we welcomed my daughter Alicia into our family. The company I came to work for fired the guy who hired me. He started a new company and I went with him, helping to build the company from the ground up. We started with 40 people in 2000 square feet of a former doctors office. We now have close to 200 employees, occupy 15,000 square feet of office space, and have offices in three other cities around the country as well as offices in Hong Kong, Singapore, and Paris. I’ve risen to the title of IT Director at our corporate headquarters. I became a born-again Christian not long after my troubles and after moving to Florida, we couldn’t find a church we really liked, so we weren’t involved that much, which was actually more a detriment to our kids than anything. In the fall of 2004, we found our church home. I play drums in our church praise band and have met so many good friends, none of whom have passed judgment on me for what I have done. In August of 2006, I became a homeowner for the first time.

Don’t get me wrong. I make no excuses for what I did. It was wrong. I deserved the punishment I received. What I don’t deserve is a scarlet letter that prevents me from being able to defend myself or my family. Despite paying my debt to society, and living the life of the average law abiding citizen since that time, I cannot possess or purchase a firearm (at least I think so. Read on and you’ll see it isn’t a slam dunk that I cannot). I found out this harsh reality when I was considering the purchase of a handgun very recently for target practice and self defense. Because I was never sentenced to a jail term, I figured I was in the clear. But that’s not the case. Generally, Title 18 U.S.C. 922 prohibits the shipment, transportation, receipt, or possession in or affecting interstate commerce of a firearm by one who has been convicted of a felonym or any other crime, punishable by imprisonment for a term exceeding one year. There are others, but that’s the one I fell under.

It didn’t matter that I only got probation. Entering a guilty plea is the equivalent of a guilty verdict and conviction. The problem with the law is that it is never cut and dried. There are exceptions to the process. How this all comes about is that in order to purchase a handgun from a federally licensed firearms (FFL) dealer, you have to fill out form 4473 which is the BATF Firearms Transaction Record. In it, you are asked the following question:

Have you ever been convicted in any court of a felony, or any crime, for which the judge could have imprisoned you for more than one year, even if you received a shorter sentence including probation?

Now, simply put it means I have have to answer yes, correct? Not necessarily. There are those exceptions. The problem is, the laws are so convoluted that even lawyers with expertise in these areas disagree. As do the courts. For instance, one of the exceptions on the 4473 form says:

A person who has been convicted of a felony, or any other crime, for which the judge could have imprisoned the person for more than one year, or who has been convicted of a misdemeanor crime of domestic violence, is not prohibited from purchasing, receiving, or possessing a firearm if: (1) under the law where the conviction occurred, the person has been pardoned, the conviction has been expunged or set aside, or the person has had civil rights (the right to vote, sit on a jury, and hold public office) restored

Seems simple enough. Nope. What constitutes civil rights being restored? Is it the right to vote? Sit on a jury? Hold public office? All three? The Sixth Circuit Court of Appeals says all three:

The Sixth Circuit concluded that the restoration of citizenship rights under state law must include three specific rights – the “right to vote, right to seek and hold public office and the right to serve on a jury” – in order to satisfy the requirements of the Gun Control Act.

The Ninth Circuit Court of Appeals disagrees:

There need not be a “full” restoration of rights. Cassidy, 899 F.2d at 549; Presley v. United States, 851 F.2d 1052, 1053 (8th Cir.1988). “If Congress had intended a requirement of a complete restoration of all rights and privileges forfeited upon conviction, it could easily have so stated.” Cassidy, 899 F.2d at 549. Congress chose not to impose such a requirement.

In New Jersey, your right to vote is automatically restored upon release from incarceration or when you’re no longer on probation or parole. The right to seek public office is tied to the right to vote in NJ unless otherwise specified. However, you’re prohibited from serving on a jury (prior to 1997 you could, but the law was changed as some state Senator remarked that people shouldn’t have report for jury duty and be “forced to sit next to criminals” (once again raising the specter of the violent drug lord that actually reports for jury duty).

The other part of the exception on form 4473 states:

AND (2) the person is not prohibited by the law where the conviction occurred from receiving or possessing firearms.

Now this is where it once again gets tricky. I’m not a lawyer so it’s even harder for me to figure out. New Jersey has very strict gun control laws. Stupid strict in fact. I would go so far as to say that New Jersey basically has a full firearms ban and that they’ve opened up small little windows for people to acquire firearms. I’m not going to go into the byzantine process of obtaining a firearm in NJ, but let me just say that it’s so stupid in NJ that you actually need a handgun permit to purchase a BB gun. That’s right. Little Ralphie Parker and his Red Rider BB gun (and his parents) would be subject to criminal prosecution in the Republic state of New Jersey. But anyway, here’s what it says about purchasing firearms in NJ:

No person of good character and good repute who is not subject to any of the disabilities can be denied a permit to purchase a handgun or a firearms purchaser identification card. No Permit to Purchase or FID will be issued to any:

Person who has been convicted of a crime.

Game over, right? Maybe not. While I might not be able to purchase a firearm in NJ, I may still be allowed to possess a firearm in NJ. The statute regarding possession states:

No person may possess, control, own, or purchase any firearm if he has:

Been convicted of aggravated assault, arson, burglary, escape, extortion, homicide, kidnapping, robbery, sexual assault; bias intimidation or endangering the welfare of a child; or any weapons offense; or any domestic violence offense including crime such as harassment, stalking or criminal restraint.

While the NJ statute also says that somebody needs a permit to purchase in order to receive a handgun, the federal exception says “receive or possess”, not both.

Why is all of this important? If these two exceptions are valid, then I can answer ‘No’ on the 4473 form. Even if there is a Brady denial, I can then appeal it or at least have some standing in case the BATF decided to come after me claiming I perjured myself on the form.

There are people who have been kind enough to look into these issues and see what my options are. I choose not to thank them by name, but if they’re reading this, they know who they are.

What’s really important here though is the absurd laws we have in this country regarding the possession of firearms, especially with regard to the types of crimes people are convicted for. For instance, the term, “crime punishable by imprisonment for a term exceeding one year” in the federal statute “does not include any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business.” What that means is, somebody like Jeff Skilling from the Enron scandal, who was sentenced to 24 years in prison for fraud, conspiracy and insider trading once released from prison, can acquire a handgun without a problem.

If you have a federal conviction and it doesn’t fall under those exceptions, you can basically kiss your rights to ever own a firearm legally goodbye. Almost all states have processes allowing people to restore certain rights, including those to own a firearm. So does the federal government. However, in 1992 Congress stopped providing funds to the BATF in helping to assist people in restoring those rights. Your only outlet now in the federal arena is a Presidential pardon or offering to cover the costs of the restoration yourself.

Because of our government and their sometimes absurd, “tough on crime” political posturing, along with confusing laws and an ever increasing list of ‘restrictions’ is helping to create a class of (mostly) men who will not be allowed to possess firearms. It never ceases to amaze me that the same people who will yell and scream bloody murder at any encroachment against first, fourth and fifth amendment rights, will happily sit back and give up rights under the second amendment. Organizations like The Brady Campaign as well as The Violence Policy Center are happy to lead the way along with politicians like Frank Lautenberg.

It needs to change. My support for strong protections of 2nd amendment rights is nothing new. But before, I never had — let me correct that — I never thought I had a personal stake in all of this. Even if I wasn’t in the situation I am in, I still had a personal stake in all of this. I don’t expect that this blog will change things much, but I have started it to provide as much information as I possibly can to people and offer my opinion on the subject. I will try to acquire as much information as I can. Part of that will come from my becoming a member of the National Rifle Association despite not being a gun owner at this point and time. More of that information will come from other bloggers that I have read and conversed with over the last several years that I’ve been blogging.

And it will also come from the many gun owners I know. The public perception of people with guns is that they’re all Rambo wannabes that are compensating for a lack of penis size by buying guns. I’m sure there are some here and there. The same way there are some liberals here and there that truly do hate America. The gun owners I know are pretty much like everybody else and I proud to know them.

UPDATE: Actually, I read something wrong. The Ninth Circuit didn’t ‘disagree’, they were merely repeating what the Sixth Circuit said which has me really confused because they’re saying Congress would have said “full restoration” if that’s what they had meant, so how did the Sixth conclude that it HAS to be voting, public office holding and jury duty? Why all three and those specifically?

UPDATE II: Just to clarify for some people, I no longer live in New Jersey. I am now a resident of Florida and have been since 1997. The reason why the conviction in NJ is relevant is because the exception questions on the 4473 form specifically talk about where the conviction occurred. Somebody else mentioned expungement. I can get the offense expunged. But I cannot even submit the paperwork until March of 2010 because I have to wait 10 years after the completion of the probation. If I can find that I am legal to get a firearm now, why wait?

Remember, the relevant questions here are:

A. Were my rights restored in NJ? (IE, does it have to be voting, hold public office and sit on a jury or can it be two of the three)

B. With rights restored, am I prohibited from possessing a firearm in NJ? Not purchasing, but possessing.

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Responses

  1. […] Jay has started a blog to document the process. His first post details the particulars. And, no, we still don’t have an […]

  2. […] should read this account of a person who’s questioning why he’s lost his right to bear arms after a non-violent […]

  3. Have you tried contacting the NRA or SAF legal departments?

    http://www.nradefensefund.org/requesting_help.aspx

    http://www.saf.org/default.asp?p=contact

  4. Hi, there are people with 2nd amendment legal experience looking into things for me, so we’ll see what happens. Thanks.

  5. I remember reading a few months back about a guy that had been driving through a fairly remote part of some state out in the Midwest when his car broke down some 30+ miles from the nearest town… after walking for a couple of miles, he came across a train track… not wanting to walk 30+ miles to a phone, he waited on the next train and hopped on one of the flatbed cars, hitching a ride to the next stop on the trains route… apparently he got seen getting off the train by a town police officer and was issued a ticket for hopping the rails… he didn’t think much of it, paid it and went on about his life… some decades later, he tries to purchase a gun and finds out that the ticket was actually a felony and by paying it, he was basically pleading no contest… since the rails are federally regulated, it was federal and his only recourse was to petition for a presidential pardon…

    so, i wish you well in your struggle, i myself almost got denied when the NCIS check for my purchase permits in NC came back showing that i had been charged with a felony that was dropped to a misdemeanor… in fact the charge that i went to court on was “accessory to criminal mischief” which is about a serious as accessory to jaywalking… thankfully the person here that issues permits took the time to call FL and find out what the real story was…

    keep up the good fight

  6. I am in a similar bind as you. I was convicted of drug posession 2 years ago and sentenced to 364 days probation. i served 5 months and was released. i would like my right to own a firearm restored. Can you point me in the right direction to look for assistance

  7. Don’t know if you still look at this or if this will help you or not but; I live in FL also and am married to a felon who did something stupid and nonviolent 17 years ago when he was a young know-it-all. I am in the process of getting his gun rights back now but as far as the law goes,,,,, I can own a gun even if we reside in the same home. Although if someone breaks in I better be the one with gun powder residue on my hands not him.

  8. to chicagoirish:

    Don’t think that because you own the firearm your spouse is immune to federal prosecution.
    If that firearm is not locked up with only you having access to the key (and all unambiguously provable), then your beau is guilty of constructive possession (i.e. Dominion and Control), and is right now facing a 5 year stint in federal prison.

    Something new in legal theory – the Heller decision affirms firearm bearing as a fundamental right. Since there is no due process method to obtain a federal conviction restoration of rights, there may be a constitutional violation going on there, notwithstanding Scalia’s dicta.

  9. I am in the same situtatio you are in I was convicted of a crime in 2001 in New Jersey. I have since gone to law school and I am trying to take the bar New Jersey as some of the worst laws in the country they are very unforgiving unfortunately the congress and the states wipe their rear ends with the constitution and felons have no rights in this country they are trying to make a perminent underclass


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