Originally Posted by
DrTodd
The problem is the ATF letter that I have provided at the end of this post. The case that you cited was decided without benefit of this letter. See letter below. The ATF is, IMHO, hostile to the 2nd Amendment. However, they are given almost complete control interpreting federal law regarding firearms. Absent a federal court decision specifically reversing this understanding, my opinion is that this would hold.
An open Letter To the Michigan State Police
1155 Brewery Park Boulevard, Suite 300
Detroit, Michigan 48207-2602
March 20, 2000
This is to apprise you of the recent decision by the United States Sixth Circuit Court of Appeals in Hampton v. United States, 191 F. 3d 695 (6th Cir.
1999). This decision affects whether certain Michigan felons are prohibited from receiving or possessing firearms under Federal law.
The Gun Control Act of 1968 (“GCA”) makes it unlawful for any person who has been convicted of a crime punishable by imprisonment for a term
exceeding one year to ship, transport, possess or receive a firearm. 18 U.S.C. § 922(g)(1). What constitutes a “conviction” for such a crime must
be determined in accordance with the law of the jurisdiction in which the proceedings were held. 18 U.S.C. § 921(a)(20). Any conviction for which
a person has received a pardon, expungement, or restoration of civil rights shall not be considered a conviction for GCA purposes, unless the
pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. Id.
A State restores a felon’s civil rights for purposes of the GCA only if it allows him or her to vote, to hold public office, and to serve on a jury. Under Michigan
law, a convicted felon is entitled to vote and hold public office once he or she is released from custody. Prior to the Hampton decision, the Sixth Circuit
held in several cases that Michigan law did not restore the right to sit on a jury to Michigan felons upon completion of sentence. This line of cases was
overturned by the Hampton decision, which held that Michigan law restores a felon’s right to sit on a jury upon completion of his or her sentence.
Based on the Hampton decision, an individual who has been convicted of a felony in Michigan has his or her civil rights substantially restored upon
completion of sentence. In determining whether the convicted felon still has Federal firearms disabilities, however, it is necessary to examine
Michigan law to determine whether the felon is still subject to any restrictions on his or her firearms rights. In Caron v. United States, 524 U.S. 308;
118 S. Ct. 2007, 2012 (1998), the Supreme Court held that Federal law prohibited convicted felons whose civil rights had been restored from
receiving or possessing firearms if State law imposed even a partial restriction on their firearms rights.
Michigan law places a convicted felon under two types of state firearms restrictions. The first restriction is under Mich. Comp. Laws Ann. § 750.224f,
which prohibits a convicted felon from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving or distributing firearms.
This restriction separates convicted felons into two categories; those convicted of specified felonies and those who are not. If the felony conviction is
categorized as a “specified felony”, the felon is subject to this restriction for a period of five (5) years after he/she has met all conditions of sentence,
i.e. released from prison, paid all fines, and completed all terms of probation and parole. Further, after this five (5) year period has expired the
“specified felon” must also apply for and receive a restoration of his or her state firearms rights from the local concealed weapons licensing board
(gun board). Mich. Comp. Laws Ann. § 750.224f(2)(b). A specified felony is defined under Mich. Comp. Laws Ann. § 750.224f(6) and includes
crimes of violence against a person or property, burglaries (and breaking and entering) of occupied dwellings; drug offenses; offenses involving the
possession or distribution of a firearm; offenses where there was the unlawful use of an explosive; and arson.
Mich. Comp. Laws Ann. § 750.224f creates a different restriction for felons convicted of “non-specified” felonies. A ‘non-specified” felon is subject to the
same restrictions as those convicted of “specified felonies” but only for a period of three (3) years after completion of all conditions of sentence. Further,
there is no requirement for a felon convicted of a “non-specified” felony to obtain a restoration of his or her state firearms right from the local gun board.
The second state law firearms restriction is imposed under Mich. Comp. Laws Ann. § 28.426(b) which provides that an application for a concealed
weapons license cannot be approved if the applicant was convicted of a felony or confined for a felony in this state or elsewhere during the eight (8)
years immediately preceding the date of his application. It is important to note that this restriction applies to all convicted felons across the board and
does not categorize them based upon the type of felony conviction.
An individual who has been convicted of a felony in Michigan is still subject to Federal firearms disabilities after completion of his or her sentence if
Michigan law places any restrictions on that felon’s state firearms rights. Unless the convicted felon’s firearms rights have been completely restored
under State law he/she is subject to the Federal prohibition on receipt or possession of a firearm. Accordingly, if a convicted felon is subject to either
of the firearms restrictions under Mich. Comp. Laws Ann. §§ 750.224f or 28.426 he or she is still subject to firearms disabilities under Federal law.
If you have any further questions, please contact our Office of Division Counsel at (313) 393-6000.
Sincerely yours,
Michael W. Morrissey
Division Director
Detroit Field Division
Bureau of Alcohol, Tobacco and Firearms
Department of Treasury
Reply With Quote
Posting Permissions
