Pardons and NICS background checks


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sinebar
April 8, 2008, 08:17 PM
Before I ask my question let me first try to prevent any needless misinformation with a few facts.

1. 18 U.S.C. 922 (g) (1) makes it unlawful for any person who has been convicted in any (US court) of a crime which carries a sentence of more than one year, to possess a firearm. Some misdemeanors are considered felonies under federal law if they carry a sentence of more than one year. This is a federal law.

2. 18 U.S.C. 921 (a) (20) defines which convictions are exempt from prosecution under 18 U.S.C. 922 (g) (1). It provides: What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, set a side or for which a person has been pardoned or had civil rights restored is not a conviction for the purpose of 18 U.S.C. 922 (g) (1) unless such expungement, set a side, pardon or civil rights restored expressly provides that you may not possess firearms. This is a federal law.

What all this basically means is that some felons with STATE convictions can legally own guns under federal law as long as the state they obtained the conviction doesn't prohibit them from possessing firearms.

FYI, civil rights restored refers to the right to vote, hold public office and sit on a jury. A felon with only civil rights restored must have all three of these rights restored to be exempt under 18 U.S.C. 921 (a) (20). A generalized restoration of civil rights also counts. An example would be the Louisiana constitution Article 1, Section, 20 which provides: "full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense". See United States v. Dupaquier, 74 F.3d 615, 617 (5th Cir. 1996).

Ok now for my question. A felon with a state conviction for which he has been pardoned and is not prohibited by the state of conviction from possessing a firearm wants to buy a gun. He goes to FFL, fills out the ATF form and they do the background check. Since the felon was pardoned does the background check show no record at all or does the felons criminal record show but indicates the felon was pardoned or had civil rights restored? And if the record shows a pardon is there an emediate proceed at that point or must the NICS agent do an investigation before issuing a proceed?

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Cosmoline
April 8, 2008, 08:19 PM
The pardon does not erase existing records. Nothing does. So it's possible to have an improper denial by someone who didn't read far enough into the file. That's what the NICS appeals process is for.

rcnixon
April 8, 2008, 11:33 PM
I don't know about a pardon, but a "plea for relief from disabilities", also known as an expungement (at least in NJ) carries a court order to destroy all records of the conviction. Copies of the order are dispatched to the township, county, state and federal agencies and, as are all court orders expected to be obeyed under pain of contempt. The person I know who had this done has passed two "position of public trust" security clearances and several national agency checks with fingerprints, the first being done just a little over a year after the order was signed. She has purchased several firearms and the NICS check came back approved every time.

Russ

eb72826
April 30, 2008, 04:55 PM
I am in the appeals process now for First-Offender felony conviction. All rights reinstated, still was denied. :banghead:

riggs0008
May 3, 2008, 09:04 PM
I am in a similar situation I went to purchase a gun i have been paying on for 8 months now and i was denied i had a misdemeanor B charge for disorderly conduct. Nothing involving any violence and not a domestic charge either I am going to start the appeal process, but I am wondering do I need to be careful? Because I currently own guns and I was never told that i can not have them and don't want to loose them.

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