The Trump administration wants to give folks who've lost their right to keep and bear arms a way to have those rights restored, and a public comment period on the proposed rule governing that process is underway.
As of mid-day Tuesday, the Federal Register only lists 175 comments on the docket, though it may update later today with comments received over the weekend. I hope that number will grow much higher in the days to come, because every Second Amendment supporter needs to weigh in with an informed opinion.
While I'm strongly in agreement with the DOJ re-establishing a formal process for rights restoration, I've also already outlined my biggest concerns. One of the most glaring issues is a lack of any fixed deadline for DOJ to approve or deny a fully completed application under the proposed rule, which would allow DOJ to sit on those applications without taking any action whatsoever. That may not be likely under a pro-Second Amendment administration, but it would almost certainly be the case the next time an anti-gun politician like Joe Biden occupied the White House.
The National Rifle Association's Institute for Legislative Action is raising its own concerns about other issues with the proposed rule, starting with the broad leeway given to the Attorney General to grant or deny relief to applicants.
In particular, the new proposal establishes a long list of circumstances that will presumptively result in a denial of rights restoration. Some of these presumptions apply permanently. Others apply for periods of 10 or five years from various triggering events. The rulemaking’s preamble claims these circumstances represent bases of disability (mostly types of disqualifying criminal convictions) “closely associated with dangerousness” or even, in some cases, “lack of respect for the law.” It further specifies:
An applicant with one of these characteristics may seek to rebut that presumption, but the Department anticipates that the statutory criteria required for the Department to grant relief could only be satisfied if such an applicant could make a showing of extraordinary circumstances.
Yet the proposal does not limit its presumptions strictly to categories of convictions. It also states: “the Attorney General may also go beyond the elements [of the offense of conviction] and consider all the facts underlying the applicant's prior offense to determine whether that offense involved conduct that, as a practical matter, qualifies as one of the listed offenses.” In other words, the reviewing official could determine that uncharged, unproven conduct could also be used to establish a presumption of denial.
While NRA-ILA agrees that transparency is beneficial, we are concerned that the rulemaking may, in fact, be too prescriptive. A certain degree of flexibility is meant to be part of the process, given the broad range of circumstances that can lead to federal firearm prohibitions, and the statute’s language reflects this.
Moreover, while NRA-ILA agrees that an established propensity for violent conduct should count against the granting of relief, we also think the offenses the rulemaking considers “closely associated with dangerousness” are overly broad. They include, for example, a long list of non-violent, possessory firearm offenses under the Gun Control Act or even broader state analogs; property crimes; controlled substance offenses; misdemeanors punishable by more than two years in prison; crimes in which the perpetrator and victim are not even physically in the same place; and even crimes against animals that have no human victims whatsoever.
We are not suggesting the circumstances of the underlying offense should not be closely scrutinized. But the presumptive bases of denial often contain a broad range of conduct that can vary widely in illustrating a person’s propensity for violence. Under the category of “burglary,” for example, a home invasion of an occupied dwelling by an armed assailant in the wee hours of the morning would be of much greater concern than someone who breaks into a tool shed and steals some landscaping equipment. But both fall under the same permanent presumption of denial.
And trafficking heroin is much different than getting prosecuted for possessing personal amounts of marijuana while also possessing a firearm, but that too is considered a presumptively disqualifying act of dangerousness under the DOJ's proposed rule. As Marijuana Moment reports:
Cannabis is legal for medical and/or recreational use in 40 states and the District of Columbia, and the DOJ itself turns a blind eye to those state-level efforts while still prosecuting pot smokers who own one or more firearms under Section 922(g)(3). The Trump administration has the opportunity to take a truly common sense position and recognize that while cannabis may be unlawful under federal statute, it's also widely legal at the state level and there are millions of Americans who partake of the drug on an occasional or regular basis without being a danger to themselves or others. Instead, as MM notes, the proposed rule threatens to leave those convicted of federal felonies for merely possessing a firearm as an admitted marijuana users unable to regain their Second Amendment rights.
NRA-ILA also takes issue with "long list of new administrative requirements for filing an application," which they say seems designed to make applying for relief more "expensive, time consuming, and difficult."
For example, all applicants must submit fingerprints and consent to a detailed investigation by DOJ of their social, employment, medical, and criminal history. But they are also required to provide a “copy of the individual's criminal record check for … [e]ach state, or locality if a state-wide report unavailable, in which the applicant has resided since turning 18 or for the last 25 years, whichever is shorter; and … [e]ach state, or locality if a state-wide report unavailable, in which the individual has been arrested since turning 18.” The applicant, in other words, must duplicate DOJ’s own efforts at a criminal history check.
A new application filing fee is added, as well, subject to ongoing re-evaluation, even though there is no express authorization for one in the restoration statute itself. It is not difficult to imagine how this provision could be abused by a future anti-gun administration. Likewise, a new provision (also unauthorized in the restoration statute) would allow the attorney general to revoke restoration at any time after it was granted.
The group acknowledges that most of those applying for relief will be convicted felons who "will have to make a strong showing that they have turned the page to a peaceful, law-abiding life" in order to regain their Second Amendment rights. But it also contends that the rule is more restrictive than the statute that empowers the DOJ to provide this relief by including a laundry list of presumptively disqualifying crimes and behaviors.
It contemplates that, whoever a person is, and whatever led to that individual’s firearm-related disabilities, he or she could at least make his or her case to the government for relief. Likely, the granting of relief would vary from administration to administration, with those who support the Second Amendment taking the process more seriously and administering relief more liberally.
This rulemaking, however, would codify a very restrictive paradigm that would limit the discretion of future DOJ officials in taking a more wholistic approach. And future anti-gun administrations could revoke, under the rule’s terms, relief granted by prior pro-gun administrations.
That last bit is hugely concerning as well. It's not hard to imagine an anti-gun administration deciding that everyone who regained their Second Amendment rights under Donald Trump are once again prohibited from possessing a firearm, but that's what the rule allows for. Once these rights are restored they shouldn't be able to be lost unless another disqualifying event has taken place; another felony conviction, for example, or an adjudication of mental defectiveness. Any authority for future (or the present) administrations to retroactively cancel the rights restoration is a fundamental flaw that places these individuals under the threat of prosecution just because an anti-gunner decides they don't have the right to keep and bear arms after all.
I greatly appreciate the Trump administration for moving forward with a process that will allow some folks to regain their Second Amendment rights. We're likely only going to get shot at this, though, so it needs to be as strong as possible in terms of respecting that right to keep and bear arms. The proposed rule is a good start, but there are numerous defects that need to be corrected before it becomes final and enforceable.
That's what the public comment period is for; to give us the chance to weigh in with our concerns. We don't need to kill the proposal. We just need to make it better.
You can submit your own public comment here, and you can even do so anonymously. Make sure, though, that you include the proposed rule's docket number, OAG191, in order for your submission to be accepted.
