The Federal Gun Laws: the Gun Control Act of 1968, the Firearm Owners’ Protection Act of 1986, the “Brady Bill,” and the “Lautenberg Amendment”
The United States Congress passed the first pervasive prohibition on felons carrying guns in the Gun Control Act of 1968, which basically made it illegal under federal law-and regardless of individual states’ laws-for felons to possess a gun (or ammunition) under any circumstances. At the time, however, there was no mechanism in place to vet the background of people purchasing firearms, so, although it might have been illegal (under federal law) for someone to purchase or possess a firearm, there was no point-of-sale background check system to prevent a firearms dealer from selling a firearm to a felon, and the legality of the sale was essentially made on the “honor system”-the purchasers simply had to sign a statement that they had not been convicted of a felony offense.
The Firearm Owners’ Protection Act of 1986 reinforced the ban on felons possessing guns, and it also expanded the definition of “felon” to include anyone convicted of a crime punishable by more than one year of imprisonment, regardless of whether the actual crime was classified a felony or misdemeanor under the individual states’ laws.
The Brady Handgun Violence Prevention Act, often referred to as the Brady Bill, passed in 1993 and was designed to close the “honor system” loophole in the ban on felons purchasing firearms by mandating federal background checks on firearm purchasers and imposing a waiting period on purchases, until the National Instant Criminal Background Check System came online. The Federal Bureau of Investigation maintains this database and reports that over 90% of “Brady background checks” through NICS are completed while the FBI is still on the phone with the gun dealer. In the remaining cases, a potential gun purchaser may have to wait for up to three business days if the NICS system fails to approve or deny his application to purchase a firearm, though as a concession to the Second Amendment, if a denial is not issued within those three days, the transfer may be completed at that time. This system remains controversial because some lawful purchasers who should not be subject to hindrances are routinely delayed or denied for processing.
Three years later, in 1996, Congress again expanded federal gun control laws by passing what is commonly known as the Lautenberg Amendment (which is not actually in the traditional federal gun laws, but, rather, attached to an appropriations bill), which prohibits people subject to protective or restraining orders from domestic violence, or who have been convicted of misdemeanor crimes involving domestic violence, from possessing firearms.
Confusingly, at least for many potential purchasers, these long-standing federal prohibitions on felons possessing guns are at odds with Louisiana law which allows many felons to possess a firearm immediately, once their sentences are complete and further allows most remaining felons to carry a gun if a certain amount of time (ten years) has passed since completion of sentence. Thus, there are many variations in the exact details of the laws that restrict felons from carrying guns from state to state, and jurisdiction to jurisdiction, but, despite the nature of the state law at issue, the bottom line is that federal law always prohibits felons from possessing guns.
What Can You Do to Get Federal “Permission” to Buy or Possess a Firearm if You Have a Louisiana Felony?
Bottom Line Up Front: Unfortunately, nothing is guaranteed, and your options are limited.
“Restoration” of Civil Rights
Theoretically, federal law allows people who have had their rights “restored” to purchase and possess firearms, but, under the federal interpretation of the Louisiana expungement laws, that may prove practically difficult. 18 U.S.C. §§ 921(a)(20) and (a)(33)(B)(ii) say that “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of ” the federal gun ban.
To determine whether someone’s civil right to own a gun has been restored, federal courts “look to the law of the jurisdiction of conviction… and consider the jurisdiction’s entire body of law.” United States v. O’Neal, 180 F.3d 115, 119 (4th Cir.), cert. denied, 528 U.S. 980 (1999). This means that if a person has a Louisiana felony conviction, the federal courts will look to Louisiana law to determine if his civil rights have been restored. If they have been restored under Louisiana law, then the federal authorities will not be able to prosecute him for being a felon in possession of a gun, and he will pass a “Brady check” when he attempts to purchase a firearm.
The problem is that Louisiana law does not ever expressly “restore” the civil right to own a gun to a felon. The Louisiana felon-in-possession-of-a-firearm statute (LSA-R.S. 14:95.1) simply bars prosecution for possession if ten years have passed from the completion of sentence. It, arguably, does not actually reinstate the right to possess the firearm. Further, the Louisiana expungement statute specifically does not restore the right to possess a weapon beyond the scope of whatever is allowed in LSA-R.S. 14:95.1. Under federal law, a conviction is only considered expunged (and no longer disqualifying) if it is “removed from the individual’s criminal history record, and there are no legal disabilities or restrictions” other than the fact that it can still be used for sentencing purposes for subsequent convictions, so it is unclear if federal authorities agree that Louisiana’s expungement law technically complies with the federal definition of “expungement.” This issue has not yet been litigated to conclusion in the federal courts, so the usefulness of a Louisiana expungement to restore federal gun rights remains unclear at this time.
Request a “Waiver of Disability” from ATF
An alternative to expungement, at least in theory, is to make application to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) under 18 U.S.C. § 925(c) to request restoration of your gun rights. The federal gun law banning felons from possessing a firearm was written with special “escape clause” language that could allow deserving individuals who have prior felony convictions to apply to regain their federal rights to own a gun. Under this federal rule, the application is supposed to be granted if “it is established… that the circumstances… 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.”
This seems an immanently reasonable approach to allowing reformed offenders to regain their federal gun rights, especially in cases such as those in Louisiana where the state law would allow gun possession for an ex-offender after a period of time. The practical problem with this provision, however, is that, since 1992, Congress has legislatively prohibited ATF from allocating any money from its budget to handle these applications. Accordingly, when anyone submits these applications, ATF cannot act on, review, or grant them. They must simply return the application with an explanation that they cannot process it, due to a lack of available funds. While this seems unfair, it has been litigated to conclusion in the federal courts, and the Supreme Court, in United States v. Bean, 537 U.S. 71 (2002), ruled that an applicant could not force the agency to process the application if Congress has expressly used is “power of the purse strings” to prevent the agency from funding the process.
The only sure method currently available in Louisiana for a restoration of federal gun rights is, ironically, a state “governor’s pardon.” This special type of pardon expressly restores all rights and returns the individual to the position he held, as if he had never been convicted. Governor’s pardons are different from “first-offenders’ pardons,” which occur automatically after completion of sentence.
Traditionally, only a few dozen governor’s pardons are awarded each year. Information on applying for one may be found at the Louisiana Board of Pardons and Parole.
The Muzzleloader Alternative
There is a healthy debate about whether the federal gun ban for felons applies to “black powder” guns or muzzleloaders, and that is because the federal gun control laws only apply to “firearms and ammunition.” If a muzzleloader is not considered a firearm, then the federal ban may not apply, and, hence, convicted felons could potentially be able to legally purchase a muzzle loader under federal law.
Whether a muzzleloader is considered a firearm depends on the gun itself. Some are “firearms,” and some are not. Using a muzzleloader that is not a firearm is entirely legal for convicted felons in Louisiana, under federal law.
In general, the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) exempts certain “antique firearms” from federal gun control laws. These antique firearms typically include any firearm manufactured on or before 1898, or a replica of such a firearm. In addition, muzzle loading rifles, muzzle loading shotguns, and muzzle loading pistols are also considered antique firearms, provided that they use black powder, or a black powder substitute, as opposed to fixed ammunition (cartridges and shells).
However, federal law specifically excludes certain muzzleloaders from being considered antique firearms. This includes firearms which can be converted into a muzzle loading weapon, or a muzzle loading weapon which can be readily converted to fire fixed ammunition.
So what does that mean for those wishing to purchase a muzzle loader? Basically, as long as the weapon is like one produced before 1898, or it is truly a muzzleloader, then it likely is not considered a “firearm” under federal law. Keep in mind, though, that states may have specific laws covering muzzle loaders which provide even greater restrictions, such as limitations regarding flintlocks, barrel lengths, projectile diameters, and even who may own them.
The ATF has published its own explanation of the muzzleloader exception which follows:
The Gun Control Act of 1968 (GCA) prohibits felons and certain other persons from possessing or receiving firearms and ammunition (“prohibited persons”). These categories can be found at 18 U.S.C. § 922(g) and (n). However, federal law does not prohibit these persons from possessing or receiving an antique firearm. The term “antique firearm” means any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898. The definition includes any replica of an antique firearm if it is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or uses rimfire or conventional centerfire ammunition which is no longer manufactured in the United States, and which is not readily available in ordinary channels of commercial trade.
Further, any muzzle loading rifle, shotgun, or pistol which is designed to use black powder or black powder substitute, and which cannot use fixed ammunition, is an “antique firearm” unless it (1) incorporates a firearm frame or receiver; (2) is a firearm which is converted into a muzzle loading weapon; or (3) is a muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof. See 18 U.S.C. § 921(a)(3), (a)(16).
Thus, a muzzle loading weapon that meets the definition of an “antique firearm” is not a firearm and may lawfully be received and possessed by a prohibited person under the GCA. In addition, the GCA defines the term “ammunition” to mean “ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm.” Because an “antique firearm” is not a “firearm,” it is lawful for a prohibited person to receive or possess black powder designed for use in an “antique firearm.” Also, the Federal explosives laws do not make it unlawful for a prohibited person to acquire and possess black powder in quantities not exceeding fifty pounds if it is intended to be used solely for sporting, recreational, or cultural purposes in “antique firearms.” See 18 U.S.C. § 845(a)(5)
By contrast, a prohibited person may not receive or possess black powder firearms that can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof. ATF has classified certain muzzle loading models as firearms. All of these models incorporate the frame or receiver of a firearm that is capable of accepting barrels designed to fire conventional rimfire or centerfire fixed ammunition. These muzzle loading models do not meet the definition of “antique firearm” as that term is defined in 18 U.S.C. § 921(a)(16), and are “firearms” as defined in 18 U.S.C. § 921(a)(3). Furthermore, as firearms, these and similar models, regardless of the barrel installed on the firearm or provided with the firearm, are subject to all provisions of the GCA. Persons who purchase these firearms from licensed dealers are required to fill out a Firearms Transaction Record, ATF Form 4473, and are subject to a National Instant Criminal Background Check System (NICS) check. Felons and other prohibited persons may not lawfully receive or possess these firearms or ammunition.
The following is a list of weapons that load from the muzzle and are classified as firearms, not antiques, under the GCA, because they incorporate the frame or receiver of a firearm:
Savage Model 10ML (early, 1st version), Mossberg 500 shotgun with muzzle loading barrel, Remington 870 shotgun with muzzle loading barrel, Mauser 98 rifle with muzzle loading barrel, SKS rifle with muzzle loading barrel, PB sM10 pistol with muzzle loading barrel, H&R/New England Firearm Huntsman, Thompson Center Encore/Contender, and Rossi.50 muzzle loading rifle
This list is not complete and frequently changes. There may be other muzzle loaders also classified as firearms. As noted, any muzzle loading weapon that is built on a firearm frame or receiver falls within the definition of a firearm provided in 18 U.S.C. § 921(a)(3).
Finally, even though a prohibited person may lawfully possess an antique firearm under federal law, state or local law may classify such weapons as “firearms” subject to regulation. Any person considering acquiring a black powder weapon should contact his or her state Attorney General’s Office to inquire about the laws and possible state or local restrictions. A list of state Attorney General contact numbers may be found at www.naag.org.
A Louisiana felony will prevent you from buying or possessing a firearm under federal law, even if you can legally possess the firearm under Louisiana law. There is no absolute way to cure this problem except a governor’s pardon, which is extremely rare.
Traditionally, the federal authorities rarely prosecute felons who attempt to purchase a firearm or who possess a firearm, if the felon is otherwise permitted to possess the firearm under state law, but the federal authorities can and do prosecute some cases. Beware of this.
An expungement may ultimately cure the disability, but the law is unsettled on this issue currently, and you cannot rely on a Louisiana expungement to accomplish this goal. Extensive information about obtaining a Louisiana expungement and related gun rights can be found through the Louisiana Expungement Assistance & Advocacy Center (LEAAC).
If you have a Louisiana felony conviction, and do not have a governor’s pardon, the only guns that you may possess without running afoul of federal laws are true muzzleloaders.
The Louisiana Expungement Assistance & Advocacy Center is committed to helping individuals put their past mistakes behind them. From our centrally-located offices in Alexandria, Louisiana, we represent clients seeking criminal expungements throughout Louisiana, in virtually every parish and court.