Loss of Right to Possess Firearms

Part of the Bill of Rights, the Second Amendment to the U.S. Constitution grants to individual citizens the fundamental right to keep and bear arms. The extent of the right to keep and bear arms has been the subject of heated debate in the United States. It was not until the U.S. Supreme Court decided two cases, District of Columbia v. Heller (2008) and MacDonald v. City of Chicago (2010), that the right was formally recognized as an individual fundamental right applicable to the federal government and all of the states. This acknowledgment is extremely important, as only fundamental rights are given the highest protection against intrusion by the government.

Usually, whenever a person is convicted of a crime, he or she is fined and/or sentenced to jail or prison for a term of months or years as punishment. Fines are usually imposed for misdemeanors; imprisonment is much more frequently imposed when the crime committed is a felony. As a general matter, a misdemeanor is a crime that is punishable by a year or less in jail, and a felony is a crime that is punishable by more than a year in prison. This distinction is important when it comes to the right to keep and bear arms.

Under U.S. law, it is generally known that it is a crime for a person who has been convicted of a felony to keep and bear arms, despite the Second Amendment. However, the law is a bit more complex: Under Title 18 of the U.S. Code, Section 924(g), it is unlawful for a person to possess a firearm that has been shipped through interstate or foreign commerce if the recipient (1) has a conviction of a crime punishable by more than a year in prison, (2) is a fugitive from justice, (3) is an unlawful user or addicted to controlled substances, (4) has been adjudicated as mentally defective or committed to a mental institution, (5) is an illegal alien or is not a lawful immigrant, (6) has been dishonorably discharged from the armed forces, (7) is a U.S. citizen who has renounced his or her citizenship, (8) is subject to a restraining order involving domestic relations that finds that the person is a credible threat, or (9) has been convicted of a misdemeanor involving domestic violence.

The issue of what constitutes a felony can raise problems. Under ancient English common law, a person convicted of a felony was considered a heinous person and of unsavory character. Indeed, the punishment for most felonies under English common law was death. Felons were considered to be the most dangerous persons in society. Once a person was branded as a felon, the only route to survival open to that person was a life of crime. This ancient common-law rule was the basic reason that felons were prohibited from possessing firearms. The foundations of the U.S. legal system lie in English common law. Thus, U.S. laws prohibiting felons from possessing firearms have a historical basis.

Most states classify felonies as crimes punishable by a year or more in prison. Some states define felonies differently. For example, in Massachusetts, crimes [Page 242]punishable by less than two and a half years in prison are considered misdemeanors. Thus, what might be a felony in another state is only a misdemeanor in Massachusetts. The issue is complicated by Title 18, Section 921(a)(20) of the U.S. Code, which defines a crime punishable by less than a year—as defined in Section 924(g)—as any state offense classified by that state as a misdemeanor and punishable by two years or less. Thus, in rare circumstances it might not be clear when a person might be prohibited from possessing a firearm. Section 921(a)(20) also exempts from the prohibitions of Section 924(g) those persons who have been convicted of a felony concerning certain white-collar financial crimes. It also exempts those persons who have received a pardon for their crimes or whose criminal records have been expunged and civil rights restored.

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