Category: Constitutional Law

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.  

 

New information about revived federal firearm restoration process

On March 20 of this year, the Justice Department announced its intention to revive the long-dormant administrative process for restoring federal firearm rights lost because of a criminal conviction. It did not explain how it intended to do this.

We have now learned more about how the revived federal firearm restoration process will work.

The DOJ budget for FY 2026 published on June 13 confirms that, while a number of departmental components will be reduced or phased out entirely, the Office of the Pardon Attorney has an entirely new responsibility and additional funding for “leading the Department’s initiative on creating and establishing a process for restoring firearm rights to citizens.”

The budget document explains (at p. 96) that the office now headed by Pardon Attorney Ed Martin “is developing a process to allow individuals with prior felony convictions and other disqualifiers to petition the Department for restoration of federal firearm rights pursuant to 18 U.S.C. § 925(c).” The § 925(c) process was administered by ATF until Congress defunded it in 1992, leaving those with federal convictions and many others without a readily available way of regaining their rights. (We explored these issues in a report on restoration of firearm rights published earlier this month.)

DOJ estimates that “[t]he population of potentially eligible applicants is estimated to be over 25 million and, given the length of time since a working process has been in place, it is anticipated that there will be significant interest from the public in pursuing this remedy.” An additional $448,000 allotted to the Pardon Attorney’s budget “will allow the office to accomplish its clemency mission and firearm rights restoration efforts for the Department.” As explained in the DOJ budget document, the Pardon Attorney has been working to develop “an IT case management system to implement an application intake, review, and management process for citizens applying for the restoration of firearms rights.” The document adds that Justice “is committed to establishing a process to review and evaluate these claims at minimal cost.”

Working in conjunction with the Criminal Justice Information Services Team at the Federal Bureau of Investigation, the Office of the Pardon Attorney is developing an easy-to-use web portal for the acceptance of applications. The new process will leverage technological advancements and system integrations to maximize efficiencies and minimize the manual review of applications for restoration.

This surge in applications will likely require significant outreach efforts to ensure eligible individuals are aware of the new process and requirements. Clear guidance and support resources will be essential to help applicants navigate the procedure efficiently and avoid unnecessary delays.

We understand that the Pardon Attorney will publish implementing regulations for public comment shortly after June 18, the date the comment period for the March 20 regulation concludes.  It will be interesting to see the specifics of a case management system that can at once handle the claims of 25 million people while faithfully complying (“at minimal cost”) with the § 925(c) standard for relief (“the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest”). It will also be interesting to see how broad the category of “other disqualifiers” mentioned in the budget document may be, including whether it extends to categories of citizens dispossessed under federal law for reasons other than a criminal conviction, such as drug addiction, dishonorable military discharge, and “mental defect.” See 18 U.S. C. § 922(g). 

In any event, dispensing with federal restrictions will not be sufficient to fully restore the firearm rights of many presently dispossessed by virtue of a criminal conviction, since most states impose firearm restrictions based on criminal conviction that are entirely independent of federal law, as CCRC’s report documents. It may be that, with the revival of a § 925(c) process that is essentially automatic, state law will become the primary regulator of firearm rights for those dispossessed by virtue of a criminal conviction.

 

New report: Most states restrict firearm rights too broadly and make restoration difficult

Most states restrict firearm rights too broadly and make restoration difficult, in potential violation of the Second Amendment, according to new report

 

 

 

 

FOR IMMEDIATE RELEASE

June 5, 2025

Media Contact: Margaret Love

Margaretlove@pardonlaw.com

Loss of firearm rights after a felony conviction extends well beyond what is necessary to advance public safety objectives, according to a study released today by the Collateral Consequences Resource Center. The loss of rights is permanent in most states, and under federal law.

The study shows that each state operates under its own complex legal framework with overlapping federal requirements that create the possibility of further criminal jeopardy for inadvertent violations.  Only 13 states limit dispossession to violent crimes, and more than two-thirds of the states offer no route to firearm relief to residents convicted in another state or in federal court. Only 16 states provide a way to regain lost rights that is easily accessible to all state residents.

CCRC’s report, Restoration of Firearm Rights After Conviction: A National Survey and Suggestions for Reform, offers a comprehensive and up-to-date picture of the differing ways states restrict and restore the right to possess a firearm, including relevant sections of statutory text to facilitate analysis and comparison.  This detailed information on state laws has not been made previously available, and is timely in light of impending changes to federal firearm restoration.

In almost every state, the process for regaining firearm rights is complex and difficult to navigate. Restoration of federal rights currently depends on restoration under state law, which means that restoration is effectively unavailable to many people, notably including those convicted in federal court whose only remedy is a presidential pardon. It also means that federal firearms restrictions are unevenly applied across the country.

Broad categorical dispossession laws like those in most states are more vulnerable to constitutional challenge under the Second Amendment when there is no individualized assessment of public safety risk, according to Margaret Love, one of the co-authors of the report. “There is no empirical research that would support restricting firearm rights for those convicted of non-violent offenses.”

Love said that “A close look at how firearm rights are restored in states across the country is important because of prospective changes to federal restoration procedures announced in March by the Department of Justice.” She pointed out that “The revival of an alternate way of avoiding federal restrictions means that federal rights will no longer depend on how states restore rights. At the same time, it will leave applicable state restrictions in place, and challenge states to consider whether any analogous state restrictions should remain after federal rights have been restored.”   

The change in federal firearm restoration procedures under consideration by the Department of Justice should encourage states to look carefully at restoration provisions in their own laws to determine whether more restrictive state provisions should outlive federal ones. States will also have to consider whether to offer opportunities for restoration of rights to all state residents rather than restricting them to people convicted in their own state courts.

Beth Johnson, the other co-author of the report, said that facilitating relief from felony dispossession has not been a focus of organizations seeking to remove criminal record restrictions on basic needs such as housing, employment, and access to social supports. It has also not been a familiar part of the advocacy program of organizations dedicated to challenging other types of restrictions on firearm possession.

“Gun violence has been too volatile an issue on the national scene to make support for restoring firearm rights to ‘convicted felons’ anything but a political third rail,” Johnson said. “Lost in the debate is what should be common ground: treating people fairly and supporting their reintegration includes restoring, with appropriate safeguards, their full access to housing, jobs, credit, and yes, also firearm rights.”

The report recommends that the federal government should make relief from federal felony dispossession under the proposed new restoration program broadly available to those who present no public safety risk.  It also recommends that states should narrow the scope of their felony dispossession laws, and provide a procedure for regaining firearm rights that incorporates a public safety determination and is easily accessible to all residents.

Both of the report’s authors have each spent decades representing people seeking to regain their firearm rights, Love in the Federal system through the presidential pardon process, and Johnson in the State of Illinois through the various relief mechanisms that state provides. “We are convinced that the time is right for a serious and open-minded effort to reform the law applicable to a collateral consequence of conviction that is in many ways unreasonable and unfair,” they said. “We are optimistic that the proposed changes to federal restoration will encourage states to reform their unduly restrictive laws.”

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ABOUT CCRC

The Collateral Consequences Resource Center is a non-profit organization that researches laws and policies relating to restoration of rights and criminal record relief throughout the country, whose work makes it possible to see national patterns and emerging trends in efforts to mitigate the adverse impact of a criminal record. For more information visit https://ccresourcecenter.org/.  

 

New report: Most states restrict firearm rights too broadly and make restoration difficult

Most states restrict firearm rights too broadly and make restoration difficult, in potential violation of the Second Amendment, according to new report

 

 

 

 

FOR IMMEDIATE RELEASE

June 5, 2025

Media Contact: Margaret Love

Margaretlove@pardonlaw.com

Loss of firearm rights after a felony conviction extends well beyond what is necessary to advance public safety objectives, according to a study released today by the Collateral Consequences Resource Center. The loss of rights is permanent in most states, and under federal law.

The study shows that each state operates under its own complex legal framework with overlapping federal requirements that create the possibility of further criminal jeopardy for inadvertent violations.  Only 13 states limit dispossession to violent crimes, and more than two-thirds of the states offer no route to firearm relief to residents convicted in another state or in federal court. Only 16 states provide a way to regain lost rights that is easily accessible to all state residents.

CCRC’s report, Restoration of Firearm Rights After Conviction: A National Survey and Suggestions for Reform, offers a comprehensive and up-to-date picture of the differing ways states restrict and restore the right to possess a firearm, including relevant sections of statutory text to facilitate analysis and comparison.  This detailed information on state laws has not been made previously available and is particularly timely in light of impending changes to federal firearm restoration.

In almost every state, the process for regaining firearm rights is complex and difficult to navigate. Restoration of federal rights currently depends on restoration under state law, which means that restoration is effectively unavailable to many people, notably including those convicted in federal court whose only remedy is a presidential pardon.

Broad categorical dispossession laws like those in most states are more vulnerable to constitutional challenge under the Second Amendment when there is no individualized assessment of public safety risk, according to Margaret Love, one of the co-authors of the report. “There is no empirical research that would support restricting firearm rights in the case of non-violent offenses.”

Love said that “A close look at how firearm rights are restored in states across the country is important because of prospective changes to federal restoration procedures announced in March by the Department of Justice.” She pointed out that “The revival of an alternate way of avoiding federal restrictions means that federal rights will no longer depend on how states restore rights. At the same time, it will leave applicable state restrictions in place, and challenge states to consider whether any analogous state restrictions should remain after federal rights have been restored.”   

The change in federal firearm restoration procedures under consideration by the Department of Justice should encourage states to look carefully at restoration provisions in their own laws to determine whether more restrictive state provisions should outlive federal ones. States will also have to consider whether to offer opportunities for restoration of rights to all state residents rather than restricting them to people convicted in their own state courts.

Beth Johnson, the other co-author of the report, said that facilitating relief from felony dispossession has not been a focus of organizations seeking to remove criminal record restrictions on basic needs such as housing, employment, and access to social supports. It has also not been a familiar part of the advocacy program of organizations dedicated to challenging other types of restrictions on firearm possession.

“Gun violence has been too volatile an issue on the national scene to make support for restoring firearm rights to ‘convicted felons’ anything but a political third rail,” Johnson said. “Lost in the debate is what should be common ground: treating people fairly and supporting their reintegration includes restoring, with appropriate safeguards, their full access to housing, jobs, credit, and yes, also firearm rights.”

The report recommends that the federal government should make relief from federal felony dispossession under the proposed new restoration program broadly available to those who present no public safety risk.  It also recommends that states should narrow the scope of their felony dispossession laws, and provide a procedure for regaining firearm rights that incorporates a public safety determination and is easily accessible to all residents.

Both of the report’s authors have each spent decades representing people seeking to regain their firearm rights, Love in the Federal system through the presidential pardon process, and Johnson in the State of Illinois through the various relief mechanisms that state provides. “We are convinced that the time is right for a serious and open-minded effort to reform the law applicable to a collateral consequence of conviction that is in many ways unreasonable and unfair,” they said. “We are optimistic that the proposed changes to federal restoration will encourage states to reform their unduly restrictive laws.”

###

ABOUT CCRC

The Collateral Consequences Resource Center is a non-profit organization that researches laws and policies relating to restoration of rights and criminal record relief throughout the country, whose work makes it possible to see national patterns and emerging trends in efforts to mitigate the adverse impact of a criminal record. For more information visit https://ccresourcecenter.org/.  

 

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.

Tony Evers revives pardoning in Wisconsin

In October 2021, Wisconsin Governor Tony Evers issued 15 pardons, adding to the 71 grants he made over the summer, bringing the total number of pardons since he took office in 2019 to an impressive 278.

To contextualize this number, the Wisconsin Pardon Database, which extends back to 1977, contains a total of 986 pardons. In just 30 months, Governor Evers has accounted for more than a quarter of all pardons granted in Wisconsin over the last half century.  This is particularly significant because pardon is the only way that a person with an adult Wisconsin conviction can regain rights and status lost as a result of conviction.

Equally notably, Governor Evers has reinvigorated a dormant pardon process after years of neglect. Scott Walker, who served two terms as governor before Evers, did not grant a single pardon. But the Pardon Advisory Board (PAB) is appointed by the governor to oversee applications and hearings, and to make recommendations for or against pardon. Perhaps the board simply neglected its job?

The truth is unfortunately far more disappointing. Walker not only never granted a single pardon, but he also never even appointed the PAB during his nine years in office. Instead, he announced a principled opposition to pardoning anyone, declaring that “these decisions are best left up to the courts.”  But, as noted, Wisconsin has no general statutory mechanism for obtaining criminal record relief in the courts, and Governor Scott appears never to have sought one. It seems he did not consider the use of the pardon power other than to reduce a prison sentence.

The recent neglect of Wisconsin’s pardon system makes Governor Evers’s commitment to executive clemency more impressive. Upon entering office, Governor Evers immediately reinstated the PAB and started the upward trend of grants.

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CCRC’s First Newsletter

Dear Subscribers,

We write with an update on our continued work to promote public discussion of restoration of rights and opportunities for people with a record. Highlights from this year’s work are summarized below, including roundups of new legislation, case studies on barriers to expungement, policy recommendations, and a new “fair chance lending” project to reduce criminal history barriers to government-supported loans to small businesses. We thank you for your interest and invite your comments as our work progresses. Read more

“The Future of the President’s Pardon Power”

A blue textured circle overlaps a red circle with white and red text overlay that reads The Future of the President's Pardon Power, 2021 Clemency Panel Series

The Collateral Consequences Resource Center is pleased to announce a series of online panels on successive Tuesdays in September, starting on September 14, that will explore in depth the use of the pardon power by President Donald Trump, and how it both reflects recent trends in pardoning and is likely to influence pardoning in the future.

The first panel, on September 14, will discuss Trump’s abandonment of the bureaucratic tradition in pardoning and what this reveals both about his concept of office and about the nature of the constitutional power.  The second panel, on September 21, will consider whether Trump’s pardons may prompt much-needed reforms in sentencing law and practice.  The third panel, on September 28, will consider possible changes in how the pardon power is administered resulting from its idiosyncratic use by President Trump, and whether the Justice Department should remain responsible for advising the president in pardon matters.

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“After Trump: The Future of the President’s Pardon Power”

M_fsr.2021.33.5.coverThis is the title of the new issue of the Federal Sentencing Reporter, which is now available online. As explained by the FSR editors in the issue’s introduction, FSR is continuing its tradition of exploring each president’s pardoning practices at the end of their term:

This Issue of the Federal Sentencing Reporter shines a light on the state of clemency today, with an emphasis on the federal system and events of the Trump administration.  This Issue thus continues an FSR tradition of exploring federal clemency practices under each president, starting in 2001 after President Bill Clinton created controversies with final-day pardons.  Over the last twenty years, an array of commentators have analyzed the actions (and inactions) of four presidents, each of whom embraced quite different goals, perspectives, and strategies.  In addition to bringing thoughtful new perspectives to recent events, the articles assembled today by guest editor Margaret Love, the indefatigable advocate, scholar, and former Pardon Attorney, offer a roadmap to, in her words, “restore legitimacy to the pardon power and its usefulness to the presidency.”  The editors of FSR are — once again — deeply grateful for Ms. Love’s efforts and expertise.

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Study reveals potential for racial bias in presidential pardon process

Last week the RAND Corporation published its long-awaited Statistical Analysis of Presidential Pardons, commissioned in 2012 by the Bureau of Justice Statistics to determine whether the Justice Department process for deciding who to recommend for a presidential pardon is tainted with “systematic” racial bias. The RAND study appears to have been a direct response to an investigative report published jointly in December 2011 by ProPublica and the Washington Post, which concluded based on an examination of pardon cases granted and denied during the administration of George W. Bush, that race was “one of the strongest predictors of a pardon.”

Specifically, the ProPublica study concluded that “White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities” while “Blacks have had the poorest chance” of receiving a pardon.

In a 224-page statistical analysis of how pardon petitions were evaluated by the Office of the Pardon Attorney (OPA) between 2001 and 2012, the RAND researchers “[did] not find statistically significant evidence that there are racial differences in the rates at which black and white petitioners receive [favorable] pardon recommendations.” (Note that sentence commutations were not a part of the RAND study.)  At the same time, there was also “no question that non-Hispanic white petitioners as a group were more likely to receive a pardon than did black petitioners.”

The apparent contradiction between these two statements can be explained by the fact that white applicants were statistically more likely to satisfy the formal standards that apply to OPA decisions about which cases to recommend for pardon, suggesting that either the formal standards need revision or the pool of applicants needs to be expanded, or both.

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