Category: Administrative law

Restoration of firearm rights after conviction: Findings and recommendations

We are pleased to publish an updated version of our report on state laws governing loss and restoration of firearm rights after a criminal conviction: Restoration of Firearm Rights After Conviction: A National Survey and Recommendations for Reform. This report, a version of which was originally published in June of 2025, finds that felony dispossession laws in most states extend well beyond what is necessary to advance public safety objectives, and that the process for regaining lost rights tends to be difficult to navigate if accessible at all. Our report argues that broad categorical dispossession laws are more vulnerable to constitutional challenge under the Second Amendment where a state does not provide an easily accessible process for restoring rights based on an individualized assessment of public safety risk. It makes a number of recommendations to this end, which are summarized at the end of this post.   Since our report was first published six months ago, there have been some changes in state laws warranting an update. More significant, however, in July 2025 the U.S. Department of Justice (DOJ) proposed to revive a long-dormant program under 18 U.S.C. § 925(c) for restoring rights lost under the federal dispossession statute. Originally administered by ATF, the revived program will be administered by DOJ’s Office of the Pardon Attorney. We decided that this development was important to cover in what is otherwise a report on state law, because of the close relationship between state and federal dispossession laws. In a related development, DOJ seems to agree with our report’s argument that the existence of an accessible restoration mechanism may cure constitutional deficiency in a dispossession statute. Thus, the U.S. Solicitor General relied upon the renewed availability of administrative relief from federal restrictions under § 925(c) in arguing that the Supreme Court should decline to grant review in the case of a Utah woman federally dispossessed because of a dated conviction for food stamp fraud. See Brief for the Respondent in Opposition, Vincent v. Bondi, No. 24-1155, at 9 (Aug.11, 2025). For a review of Second Amendment cases on the radar of the Supreme Court this Term, see Kelsey Dallas, Second Amendment in the spotlight, SCOTUSblog (Nov. 13, 2025). The government’s position in the Vincent case noted above suggests that the ease or difficulty of restoring lost firearm rights may assume a greater role in Second Amendment jurisprudence going forward.  This gives the final recommendation in our report added currency: “States should use the occasion of the revival of a federal administrative firearm relief program to reconsider analogous provisions of their own restoration laws and policies.” In other words, states should ensure that individuals who have been dispossessed because of their criminal record, but who pose no public safety risk, are able to regain their rights through a reasonably accessible individualized process.     For ease of reference, here are the revised findings and recommendations of our report on Restoration of Firearm Rights after Conviction:  FINDINGS: Felony dispossession laws in most states extend well beyond what is necessary to advance public safety objectives. In more than two-thirds of the states, firearm rights are lost upon conviction for any felony, regardless of whether the conduct resulting in dispossession involved a risk to public safety, and loss of rights is indefinite. Only 13 states limit dispossession to violent crimes.  The process for regaining lost firearm rights is complex and difficult to navigate in many states. Each state operates under its own complex legal framework with overlapping federal requirements that create further legal jeopardy for inadvertent violations. Broad categorical dispossession laws are more vulnerable to constitutional challenge under the Second Amendment where a state does not provide an easily accessible process for restoring rights based on individualized assessment of public safety risk.   Regaining firearm rights is particularly challenging for state residents with out-of-state or federal convictions. Mechanisms for regaining firearm rights in a majority of jurisdictions are linked to the criminal case that resulted in dispossession, via pardon, expungement, or reduction of offense level. Those who do not live in the state where they were convicted may have no clear path to restoration, since many states do not give effect to extraterritorial relief. Dedicated judicial or administrative firearm restoration mechanisms operating in a minority of states are available to all residents and appear to best serve the public interest. Decoupling firearm relief from the state criminal case gives those with out-of-state and federal convictions a chance to regain rights where they reside. The prospective revival of a firearm relief program by the U.S. Department of Justice should encourage a close look at analogous state laws that will survive federal restoration of rights. Even if federal restrictions are lifted under this federal program, state restrictions may prevent individuals from fully regaining their firearm rights, especially if they no longer live in the state where they were convicted. In turn, expanded federal relief will encourage states to look carefully at their own laws, to determine whether state firearm restrictions based on criminal conviction should outlive federal ones.   RECOMMENDATIONS:  States should narrow the scope of their felony dispossession laws to correspond more closely to public safety risks raised by a person’s criminal conduct. It would be useful in this regard to study the experience of the states that dispossess only those convicted of serious violent crime, or that restore rights automatically to certain categories of those dispossessed.   States should provide a procedure for regaining firearm rights that incorporates an individualized public safety determination and that is easily accessible to all residents. Every state should make procedures for restoring firearm rights broadly available and easily accessible to all state residents consistent with public safety concerns, regardless of where their residents were convicted. The dedicated judicial relief provisions adopted by Oregon and Virginia appear to offer the broadest, fairest, and most accountable opportunities for relief from state firearm restrictions. The judicial relief provisions of the Model Penal Code: Sentencing and the Uniform Collateral Consequences of Conviction Act, which authorize the sentencing court to relieve mandatory collateral consequences, also offer good models. The federal government should make relief from federal felony dispossession under 18 U.S.C. § 925(c) broadly available to those who pose no present public safety risk. The Department of Justice (DOJ) should adopt regulations for its § 925(c) relief program that facilitate restoration of rights. As proposed, the regulations would exclude many people with minor convictions that are decades old, and impose burdensome procedural requirements even for those who are eligible.  States should use the occasion of the revival of a federal administrative firearm relief program to reconsider analogous provisions of their own restoration laws and policies. Depending on the standards and policies adopted by the federal government, a state may decide to incorporate federal relief into its own laws, as a number of states have already done, or it may decide that an independent regulatory scheme best serves the public interest.  Read more

Update on federal firearms restoration program

Last spring, the Department of Justice (DOJ) announced its intention to revive a long-dormant program to remove federal restrictions on firearm possession, including for those with a criminal record.  In July DOJ published for comment a proposed rule that would, when finalized, accomplish this for people who are determined to pose no public safety risk. See 18 U.S.C. § 925(c). See Trump’s Justice Department aims to restore gun rights for nonviolent offenders. The comment period closed on October 20, and it is therefore possible that a final rule will be published at any time to launch the revived program. This will open the door, for the first time in more than 30 years, to many individuals who have been unable to regain their firearm rights because of their criminal record. It is anticipated that thousands of people will want to apply for this relief, which will be administered by the Justice Department’s Office of the Pardon Attorney. We have some concerns about whether the demanding § 925(c) application process described in the proposed rule will deliver on its promise. For example, the document production requirements may be challenging for many people, especially those with dated minor convictions. See proposed 28 CFR § 107.1(d).  Hopefully, the final rule will facilitate application rather than discourage it for those unable to hire counsel. At a minimum, the revived § 925(c) process will provide an alternative to presidential pardon for people dispossessed because of a federal conviction. But relief under § 925(c) affects only restrictions on firearm possession arising under federal law, and will not affect analogous restrictions in the laws of most states. As a result, individuals who benefit from the federal restoration program will need to determine what their rights are under state law.  In all likelihood, states will also want to determine whether restrictions in their own laws should conform to or outlive federal ones. While the new federal restoration program may be good news for people who can successfully navigate it, the not-so-good news is that many of these same people (including those with federal convictions) will remain frustrated by restrictive state laws that permanently prohibit their possession of any firearm without regard to public safety risk. In June of 2025, CCRC published a report on state law firearm restrictions that will inform these determinations. CCRC’s report, Restoration of Firearm Rights After Conviction: A National Survey and Suggestions for Reform, offers a comprehensive picture of the differing ways states restrict and restore the right to possess a firearm for those dispossessed because of a criminal record, including relevant sections of statutory text to facilitate analysis and comparison. CCRC’s report concluded that most states restrict firearm rights too broadly and make restoration difficult, in potential violation of the Second Amendment. Our report found that only 13 states limit dispossession to violent crimes, and 34 states offer no route to firearm relief to residents convicted in another state or in federal court. Sixteen (16) states make pardon the exclusive way to regain state firearm rights, and not all of those states offer pardon as a reliable remedy. Even in those states where pardoning is frequent and regular, those with out of state or federal convictions may be out of luck (unless the state gives effect to pardons issued by other jurisdictions). Our research revealed that only 16 states provide a way to regain lost rights that is easily accessible to all state residents wherever they were convicted, usually from an administrative agency or a court in the county of their residence. That is the kind of relief system we recommend.  We are in the process of updating our report on state firearms dispossession laws to reflect new enactments in a dozen states since June, and we expect to republish it before Thanksgiving.  NOTE: One interesting additional development since June is that the Supreme Court has agreed to hear a case that could add to our understanding of how the Second Amendment applies to federal firearm restrictions. The case, United States v. Hemani, involves the federal prosecution of a Texas man for violating the prohibition on gun possession by anyone who is “an unlawful user of” any controlled substance. 18 U.S.C. § 922(g)(3). The district court found § 922(g)(3) unconstitutional as applied to Mr. Hemani, and the court of appeals agreed. The Justice Department has urged the Supreme Court to find § 922(g)(3) constitutional as analogous to Founding Era gun laws applicable to “habitual drunkards,” despite the absence of any record facts to support such a finding in Mr. Hemani’s case.  It has also argued that the impending revival of the § 925(c) relief program obviates any constitutional problem with this provision, which the proposed regulation explains applies only to those currently using drugs in violation of the law.  The Court’s willingness to hear the case suggests an openness to curbing aggressive federal firearm prosecution policies in cases implicating the Second Amendment.     Read more

Justice moves toward relieving record-based gun restrictions

On March 20th the U.S. Department of Justice published a rule it described as “a first step” toward reviving a long-dormant program for relieving federal firearms restrictions based on criminal record.  This rule could lead to a dramatic increase in opportunities to regain firearms rights by people convicted of felonies and misdemeanor domestic violence under state and federal law, and a reduction in collateral consequences that have long been criticized as having little or no public safety purpose. The interim final rule entitled “Withdrawing the Attorney General’s Delegation of Authority” begins implementation of President Trump’s Executive Order 14206 of February 6, 2025 (“Protecting Second Amendment Rights”), which directed the Attorney General to study ways that the federal government could better reduce burdens on individuals’ Second Amendment. (The executive order did not mention firearms dispossession laws as among those burdens.) According to the rule commentary, the Justice Department proposes to study how to help people with criminal records avoid the restrictions in federal firearms laws. It begins this process by withdrawing the Attorney General’s delegation to ATF to administer the restoration program under 18 U.S.C. 925(c), as well as “the moribund regulations governing individual applications to ATF.”  The rule commentary describes how ATF has been barred by Congress since 1992 from using any agency funds to administer the 925(c) restoration program. Without this statutory form of relief, people with federal convictions have had no way to regain their firearms rights except to obtain a presidential pardon, an elusive and unreliable form of relief in the best of times. At the same time, the rule commentary promises to revive the 925(c) program, since the Attorney General has concluded that it “reflects an appropriate avenue to restore firearm rights to certain individuals who no longer warrant such disability based on a combination of the nature of their past criminal activity and their subsequent and current law-abiding behavior while screening out others for whom full restoration of firearm rights would not be appropriate.” Withdrawing the delegation to ATF, as well as its dated implementing procedures, gives the Justice Department a clean slate on which to build a new approach to implementing 18 U.S.C. 925(c) without the baggage of no-longer-necessary procedures— e.g., a requirement to file an application “in triplicate,” 27 CFR 478.144(b). With such a clean slate, the Department anticipates future actions, including rulemaking consistent with applicable law, to give full effect to 18 U.S.C. 925(c) while simultaneously ensuring that violent or dangerous individuals remain disabled from lawfully acquiring firearms. The Justice Department’s intention to revive the 925(c) program was foreshadowed several weeks ago in connection with its interest in restoring firearm rights to Mel Gibson, an interest that may have played a part in the dismissal of the official in charge of the pardon program in Justice. Reviving the 925(c) program could give people with federal convictions a statutory mechanism for regaining their firearms rights for the first time in 30 years, thus lightening the burdens placed on the president’s pardon power. Of course, unlike a pardon, statutory relief from federal firearms restrictions would not necessarily avoid state law restrictions independently placed on those with a criminal record. However, at least a dozen states have incorporated the 925(c) process into their restoration laws, so that a revived 925(c) program could help people with both state and federal convictions regain their firearms rights under both sets of laws. The March 20 rule took immediate effect, but DOJ will accept comments on the measure until June 18. (The level of intense public interest is evidenced by the fact that, after less than a week, 4544 comments had already been posted at the Federal Register website, most of them favorable to the Justice Department’s plans to expand firearms relief.) We look forward to seeing what next steps the Justice Department may take over the next months to implement a new 925(c) process, and otherwise implement the goals of the president’s executive order. A redelegation to ATF is suggested as a possibility, except that Congress would have to be persuaded to withdraw its restrictions on use of ATF funds. Delegating to some other part of the Justice Department is also a possibility, although in either case steps would have to be taken to manage the likely overwhelming volume of business, including from the thousands of federal offenders who have been waiting years to obtain a presidential pardon so they could once again go hunting. One possibility is simply to restore rights automatically to anyone convicted of nonviolent crimes after a suitable waiting period, and to consider those convicted of violent offenses on a case by case basis under specific objective standards. Meanwhile, CCRC expects to publish next month a comprehensive analytical inventory and report on state firearms restrictions based on criminal history. We hope that this report will provide important legal and policy guideposts, both for the states and for the federal government, as they consider what additional steps might appropriately be taken to reduce record-based firearm consequences that are neither fair nor efficient. Read more

SBA modifies criminal history restrictions in its loan programs

We have written at length about the broad criminal history restrictions imposed by the U.S. Small Business Administration in its business loan and disaster assistance programs. These restrictions, which first came to the public’s attention during the pandemic, have limited the availability of federally guaranteed bank loans to small businesses in developing communities, and stymied efforts to close the racial wealth gap through minority entrepreneurship. The SBA’s restrictive lending policies have never been justified by empirical evidence linking criminal history and creditworthiness, and may raise issues under the federal Equal Credit Opportunity Act.  It now appears that those policies are under review within the agency. Several weeks ago we reported on the SBA’s proposal to amend its rules on lending criteria to eliminate language that the agency has relied on for many years to support policies restricting federally guaranteed loans based on a business owner’s criminal history. In commenting on the proposed rule, we expressed the hope that this rule change would augur and end to the SBA’s consideration of  criminal history as an independent basis for denying credit. The SBA’s proposed amendment became final on April 10. While we remain guardedly optimistic that the new rule will have the hoped-for effect where the SBA’s own policy and practice is concerned, at the same time the agency’s comments accompanying the final rule seem to signal an expectation that banks will still consider a loan applicant’s criminal history in deciding whether to make a loan even if the agency does not. It appears that we will have to wait for the agency to issue implementing procedures and revised application forms before the full effect of this rule change can be assessed. [See the note at the end of this comment for subsequent SBA changes in its operating procedures.] The final SBA rule covers a variety of subjects related to its guaranteed loan programs — notably expanding the range of financial institutions that will be authorized to make SBA loans.  But its key provision from CCRC’s perspective is its omission of the words “character” and “reputation” from the lending criteria specified in 13 CFR 120.150(a). It is this language that has been relied on in SBA operating policies to limit eligibility for both business loans and disaster assistance to business owners who have a criminal history.  This is because the SBA’s operating procedures have in past years required loan applicants to have “good character,” defined exclusively in terms of an applicant’s criminal history.  (The SBA imposes similar criminal history restrictions in its federal contract preference program, where they are similarly justified in terms of an applicant’s necessary “good character.”) In comments describing the new rule, the SBA explains why it relies on a “good character” standard: “For SBA, ‘character’ is used to determine whether an individual may have past criminal history or activities that may pose a risk to repayment ability.” 88 Fed. Reg. 21077. This is not the first time that the SBA has proposed that “past criminal history” may present an independent credit risk. See Defy Ventures v. U.S. Small Bus. Admin., 469 F. Supp. 3d 459, 476 (D. Md. 2020)(“The SBA explained that the criminal history exclusions were based on ability to repay . . . and potential for misuse of funds.”). While the SBA’s comments express a preference for “objective measures” in assessing credit risk that result in “less variability” than criteria like character and reputation that are “subject to individual interpretation,” at the same time they propose that “SBA Lenders may continue to make their own credit decisions based on the criminal background of an applicant and its associates.” 88 Fed. Reg. 21077. Stepping back to assess the effect of the new rule, the good news is that it appears the SBA will no longer bar banks from making loans to otherwise qualified applicants based on their criminal history. The less good news is that the agency seems to expect banks and other lending institutions to step into the void and apply their own restrictions on loans based on an applicant’s criminal history. We do not know whether, left to their own devices, private lenders would disqualify loan applicants based on criminal history alone, or what standards lenders will apply without the guidance and protection afforded by the SBA “good character” policies.  There does not appear to be any industry-wide standard to guide banks and other financial institutions in their business lending policies, though we hope they are beginning to consider these issues. The SBA also took the opportunity in these comments seemingly to reaffirm its existing rule making a business ineligible for a federally guaranteed loan if any 20% owner is on probation or parole, in prison, or has unresolved criminal charges.  Id., citing 13 C.F.R. 120.110(n). It remains to be seen if the SBA will take further actions to facilitate borrowing by justice-affected entrepreneurs, notably what guidance will offer to its approved lenders in their “credit decisions based on the criminal background of an applicant.”  At present, the SBA’s operating procedures now include broad inquiries about loan applicants’ past criminal history and mandatory FBI background investigations, but no formal standards for its “good character” determinations. Until we see whether and how the SBA plans to amend the administrative mechanisms through which it has historically enforced its own criminal history restrictions, we cannot determine the full implications of its elimination of “character” as a formally applicable loan criterion, including what standards banks will be encouraged to apply in considering criminal history as an independent measure of creditworthiness. NOTE, 7/25/23: Since this analysis was published in April, the SBA issued revised operating procedures (SOPs) governing its 7(a) and 504 loan programs that omit the “character determination” that has in the past acted to winnow out many otherwise qualified loan applicants. This new SOP is to be effective August 1, 2023. In addition, shortly after the “affiliation” file became final, the SBA indicated an intention to propose yet another rule governing its small business loans, to eliminate most inquiries about criminal history on the application form, instead asking “a straightforward question on incarceration and verifying the response using a third-party database check.” The SBA described this change in policy as “continu[ing] to allow SBA lenders to follow their own policies on criminal background checks.” As of July 25, 2023, the SBA had not issued this proposed additional rule, and the application forms for 7(a) loans containing extensive inquiries about criminal history had not been amended. On May 16, 2023, the chairs and ranking members of small business committees in the House and Senate wrote to the Administrator of the SBA asking her to “pause” the new rule until a new head of the SBA’s office responsible for implementing the new rule could be appointed. We understand that as of July 25 no response to this letter had been received. Read more

Pending federal reforms promise support for justice-affected entrepreneurs

Word is getting around about pending reforms that would make federal support for small businesses more widely available to entrepreneurs with a criminal history. Notably, the U.S. Small Business Administration has recently taken steps to reduce or remove entirely criminal record-related restrictions in its loan and contracting programs.  These are steps that CCRC has been urging ever since the SBA’s restrictive policies first came to public attention during the pandemic. An article by Michael Friedrich published today by Arnold Ventures (AV) describes a number of reforms recently proposed or adopted by the SBA that will eliminate arbitrary program barriers based on criminal history that are unrelated to any established risk. These reforms should encourage more justice-affected business owners to seek SBA support for their entrepreneurial ventures in the form of federally guaranteed loans or federal contract set-asides for “socially and economically disadvantaged” businesses. The AV article points out that the near-exclusion from these programs based on criminal history “frustrate[s] federal efforts to contribute to economic development in disadvantaged communities, often the same low-income communities of color that have suffered the most during the era of mass incarceration and tough-on-crime policies.”     The AV article showcases the situation of Sekwan Merritt, whose electrical contracting company has become established in Baltimore since his release from prison five years ago, through small loans from a local community development organization, but which now needs the more substantial financial support provided by SBA loans to expand. “Entrepreneurs like Merritt, who have previously been involved with the justice system, often start small businesses as a response to discrimination and exclusion by traditional employers; around 4% of all small businesses have an owner with a criminal conviction. But they face dire challenges when trying to access capital through the SBA, the federal agency that connects small businesses with lenders to help them launch and develop. Merritt describes coming home from prison with a desire to start his own business and   “make things easier for people who have been through the same thing I have” by hiring others reentering the community after a prison term. His business, Lightning Electric, has grown steadily since that time, surpassing $600,000 in revenue last year. But when Merritt tries to take out small business loans, he hits a brick wall because of his criminal record. The Small Business Administration (SBA) and other institutional lenders have routinely denied him, making it difficult to hire and take on larger contracts.” Merritt believes that a change in the SBA’s policy “would create a seismic shift for his business, and for many others, making it possible to grow larger, take on more business, and contribute to their communities.”  Carson Whitelemons, director of criminal justice at AV, points out that “t]he SBA guaranteed more than $44.7 billion in loans in 2021 and serves as a particularly important lender for disadvantaged communities.”  CCRC’s Margaret Love notes that the capital controlled by the SBA “is critically important to helping people with a criminal record establish themselves in the community and to closing the racial wealth gap.”  Shawn Bushway, who has done extensive research on criminal records and employment, argues that ​“Places that have high crime, poverty, and other issues have fewer businesses than they could, and one reason may be that the people who want to develop businesses can’t get a loan.” Awesta Sarkash of the Small Business Majority adds that “entrepreneurship is a proven pathway to decrease recidivism,” and justice-affected business owners “should not be further marginalized or perceived as a credit risk simply because of their past.”  Research is underway that promises to support and encourage the reforms contemplated by the SBA, reforms that in turn should influence the policies of banks and other lending institutions. A group of researchers at the University of Michigan Law School is currently studying the effects of SBA laws, rules, and regulations on access to capital and entrepreneurship more broadly. They are particularly interested in the willingness of people with criminal records to apply for loans. J.J. Prescott, Henry King Ransom professor of law at the university, notes that such rules are likely to deter people with criminal records from starting businesses and submitting loan applications in the first place. The rules also sway other institutional lenders to employ similar restrictions. “The SBA influences the norms of the industry and gives the broader private market a justification for also looking at criminal records as a way to judge creditworthiness,” Prescott says. ​“Once you have a policy like this in place, there is a bit of a domino effect.” Prescott further notes that people’s criminal records have no clear impact on whether they repay loans, according to research. We will report in this space on further developments in the various SBA reforms proposed or foreshadowed. We hope that the spirit of reform that is seemingly moving the SBA in connection with its 7(a) loan program will in time be extended to its 8(a) business development and disaster assistance programs, which contain essentially the same criminal history-related restrictions.   Read more