Blair Holt's Firearm Licensing and Record of Sale Act of 2009

[Big_Saw]

Where a person is under indictment for a felony - even before they are convicted - it is unlawful to acquire firearms.(1) This little-known provision must be impressed on all clients lest they run afoul of serious criminal sanctions for purchasing a shotgun to go duck hunting.

Once the person has been convicted then it may be unlawful to possess firearms depending on whether the crime is a felony or a misdemeanor. Generally it is permissible to possess weapons following a misdemeanor conviction except during the term of the sentence when firearm prohibitions are universally in effect as a condition of probation. Another exception is where the misdemeanor conviction is for domestic assault. Here, federal law imposes a permanent ban on firearms. (2)

For a felony conviction the rules are superficially simple. Federal law prohibits firearm possession following ANY state or federal felony conviction even if the sentence was suspended.(3) State law is less restrictive to some degree but the distinctions are immaterial at this point since the federal criminal sanctions apply across the board.

The difficulty arises when the person has finished the term of imprisonment or probation or parole. How do you get your "gun rights" back? First, remember that there is no such thing as "gun rights," the Second Amendment notwithstanding. Rather, think of it as firearm disabilities and the removal of same.

A synthesis of a series of federal precedents establishes the following points which must be addressed to determine if a client is in violation of the federal statute prohibiting convicted felons from possessing firearms.

1. Federal law generally makes it a felony for a person to be in possession of a firearm if the person has any prior felony conviction.

2. Federal law contains an explicit statutory exception which provides that the federal criminal offense of firearms possession is inapplicable to persons who have had their civil rights restored on the predicate state felony conviction.(4)

3. Whether a person has had his or her civil rights restored for a state conviction is determined by state and NOT federal law.

4. However, (this "however" is the first of two elusive parts of the analysis) federal law requires that for federal law to recognize the state restoration of rights, the state restoration must include the right to vote, the right to seek and hold public office, and the right to serve on a jury. (5)

5. If the state restoration of rights includes the three aforementioned rights the federal law contains an additional federal "unless" clause which looks to state law to see if the state imposes any restriction on the right of the convicted felon to possess a weapon (e.g., some states such as North Carolina prohibit the subsequent possession of a handgun but would allow the individual to possess a rifle or shotgun).

6. If there is some added firearms restriction under state law then (and here is the second elusive part of the analysis) the federal "unless" clause is triggered to make the possession of any firearms unlawful under federal law notwithstanding the state's restoration of civil rights. Thus, if the state says that a restored-rights felon may possess a shotgun but not a pistol, the state has allowed the felon to possess the shotgun under state law BUT, because the state has created some firearm restriction for a convicted felon, this means that the federal prohibition applies with full force notwithstanding a state restoration of rights. Thus, in the shotgun-pistol example, that person could be convicted under federal law for possession of the shotgun even though it would be perfectly lawful under state law.(6)

Tennessee law contains certain firearm restrictions for convicted felons and thus - consistent with federal law - even restoration of rights will not allow possession of handguns for those convicted of certain violent felonies or felony drug convictions. See, State v. Johnson, 79 S.W.3d 522 (Tenn. 2002) ("The plain language of [Tenn. Code Ann. § 39-17-1307(b)(1)] makes clear the legislative intent to prohibit one who has been convicted of a violent felony [or a drug offense] from possessing a handgun. Since this statute is not ambiguous, we rely on the plain statutory language to conclude that [notwithstanding a restoration of rights] a person who has been convicted of a violent felony may be charged with a crime when later found to be in possession of a handgun."). Given the Tennessee restriction on handgun possession for those convicted of certain felonies - those same persons may not possess any firearms according to federal law, notwithstanding restoration of rights under state law. (7)

As to the restoration of civil rights, Tennessee law contains a complex series of statutes which govern the process depending on the date of the felony conviction. There have been several formal and informal opinions issued by the Attorney General on the subject the most recent of which was rendered on October 24, 2002. The reader is urged to consult those opinions in detail.

Lastly, what does one do with a federal conviction? Here the options are limited. Federal law allows the Bureau of Alcohol, Tobacco and Firearms to remove firearm disabilities. However this statute has not been funded by Congress for over a decade and has thus been unavailable to anyone as a means to avoid firearm disabilities.(8) Thus, short of a presidential pardon a federal felony conviction is a permanent bar to possession of firearms.

In summary, attorneys are urged to consult with their clients about firearm disabilities whenever the client is subject to criminal charges. Following a conviction the client may regain "firearm rights" in some limited circumstances.

END

1. 18 U.S.C. §922(n). This does not reach possession of currently owned firearms, only receipt of new ones. United States v. Craven, 478 F.2d 1329 (6th Cir. 1973).

2. 18 U.S.C. §922 (g)(9), "who has been convicted in any court of a misdemeanor crime of domestic violence."

3. 8 U.S.C. §922(g)(1) provides that it is unlawful for any person "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to possess . . . any firearm or ammunition."

4. 18 U.S.C. §921(a)(20) 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, 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 this chapter, unless such pardon, expungement, or restoration of civil rights expressly [or implicitly as a matter of state law] provides that the person may not ship, transport, possess, or receive firearms.

5. See the extensive discussion of this concept in Hampton v. United States, 191 F.3d 695 (6th Cir. 1999).

6. This example is derived from Caron v. United States, 524 U.S. 308, 118 S.Ct. 2007 (1998).

7. "In sum, [although Massachusetts state law allows petitioner to have rifles] Massachusetts treats petitioner as too dangerous to trust with handguns, though it accords this right to law-abiding citizens. Federal law uses this state finding of dangerousness in forbidding petitioner to have any guns." Caron v. United States ,supra, at 524 U.S. 308, 317, 118 S.Ct. 2007, 2012

8. See, Mullis v. United States, 230 F.3d 215 (6th Cir. 2000). The United States Supreme Court has recently affirmed this position in a rare, unanimous opinion. United States v. Bean, 123 S.Ct. 584 (Dec.10. 2002) ("Accordingly, ATF, upon receipt of [Bean's] petition, returned it, explaining that '[s]ince October 1992, ATF's annual appropriation has prohibited the expending of any funds to investigate or act upon applications for relief from Federal firearms disabilities.' ").

[Visinedrops]

Anything that even impedes a lawful citizen from possessing and BEARING a firearm is inherently unconstitutional.....I find myself alone many times in my following opinion.....even convicted felons, if they are still considered United States citizens, should not have their right to bear arms infringed upon. The 2nd amendment does not call for it, and the Bill of Rights is supposed to be un-detractable, even by further amendment.

It wasn't until I read, and reread blair holt's firearm nonsense that it made sense to me that the rights of felons have been denied. Whereby making it illegal to own a gun by a felon, Blair Holt's thing will allow our government to impose felonies on people who deny this law, causing prison time, and upon release, unable to acquire any firearm due to felon status.

I'm wracking my brain, but I can't seem to find the law that mandates felons as being unable to acquire a firearm. Any suggestion?

[Big_Saw]

This process will allow a legality issue regulating both the sale of, and posession of firearms. It will infringe on this nations 2nd ammendment right to keep and bear arms, and allow even more government control over the whereabouts of each "threat" - a gun-toting, tax paying, pissed off citizen.

Actually the very first time any law was written involving firearms besides the 2nd was an infringement on the same....note:

in·fringe (n-frnj)
v. in·fringed, in·fring·ing, in·fring·es
v.tr.
1. To transgress or exceed the limits of; violate: infringe a contract; infringe a patent.
2. Obsolete To defeat; invalidate.
v.intr.
To encroach on someone or something; engage in trespassing: an increased workload that infringed on his personal life.

Anything that even impedes a lawful citizen from possessing and BEARING a firearm is inherently unconstitutional.....I find myself alone many times in my following opinion.....even convicted felons, if they are still considered United States citizens, should not have their right to bear arms infringed upon. The 2nd amendment does not call for it, and the Bill of Rights is supposed to be un-detractable, even by further amendment.

[Visinedrops]

This process will allow a legality issue regulating both the sale of, and posession of firearms. It will infringe on this nations 2nd ammendment right to keep and bear arms, and allow even more government control over the whereabouts of each "threat" - a gun-toting, tax paying, pissed off citizen.

[Big_Saw]

it's not going to pass

Supreme court ruled it's unlawful to pass something like this


they are just going to tax the heck out of or ban ammo not firearms

Ditto......they'll make ammo too expensive to plink...they can't ban it without being accused of defacto banning firearms...because the absence of a part makes the sum of it's parts effectively zero. Or they'll start registering ammo somehow...already alot of plans for that, and it'd fall on the ammo mfgs...causing the prices to go up even more.....pretty soon people will give up on the guns and start suing the ammo makers into submission, 'cause we all know that people don't shoot people...guns and bullets do it all on their own....

[Diesel]

it's not going to pass

Supreme court ruled it's unlawful to pass something like this


they are just going to tax the heck out of or ban ammo not firearms

[Lazarus Long]

H.R.45
Blair Holt's Firearm Licensing and Record of Sale Act of 2009 (Introduced in House)

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SEC. 101. LICENSING REQUIREMENT.

Section 922 of title 18, United States Code, is amended by adding at the end the following:

`(aa) Firearm Licensing Requirement-

`(1) IN GENERAL- It shall be unlawful for any person other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to possess a qualifying firearm on or after the applicable date, unless that person has been issued a firearm license--

`(A) under title I of Blair Holt's Firearm Licensing and Record of Sale Act of 2009 , which license has not been invalidated or revoked under that title; or

`(B) pursuant to a State firearm licensing and record of sale system certified under section 602 of Blair Holt's Firearm Licensing and Record of Sale Act of 2009 , which license has not been invalidated or revoked under State law.

`(2) APPLICABLE DATE- In this subsection, the term `applicable date' means--

`(A) with respect to a qualifying firearm that is acquired by the person before the date of the enactment of Blair Holt's Firearm Licensing and Record of Sale Act of 2009 , 2 years after such date of enactment; and

`(B) with respect to a qualifying firearm that is acquired by the person on or after the date of the enactment of Blair Holt's Firearm Licensing and Record of Sale Act of 2009 , 1 year after such date of enactment.'.

SEC. 102. APPLICATION REQUIREMENTS.

(a) In General- In order to be issued a firearm license under this title, an individual shall submit to the Attorney General (in accordance with the regulations promulgated under subsection (b)) an application, which shall include--

(1) a current, passport-sized photograph of the applicant that provides a clear, accurate likeness of the applicant;

(2) the name, address, and date and place of birth of the applicant;

(3) any other name that the applicant has ever used or by which the applicant has ever been known;

(4) a clear thumb print of the applicant, which shall be made when, and in the presence of the entity to whom, the application is submitted;

(5) with respect to each category of person prohibited by Federal law, or by the law of the State of residence of the applicant, from obtaining a firearm , a statement that the individual is not a person prohibited from obtaining a firearm ;

(6) a certification by the applicant that the applicant will keep any firearm owned by the applicant safely stored and out of the possession of persons who have not attained 18 years of age;

(7) a certificate attesting to the completion at the time of application of a written firearms examination, which shall test the knowledge and ability of the applicant regarding--

(A) the safe storage of firearms, particularly in the vicinity of persons who have not attained 18 years of age;

(B) the safe handling of firearms;

(C) the use of firearms in the home and the risks associated with such use;

(D) the legal responsibilities of firearms owners, including Federal, State, and local laws relating to requirements for the possession and storage of firearms, and relating to reporting requirements with respect to firearms; and

(E) any other subjects, as the Attorney General determines to be appropriate;

(8) an authorization by the applicant to release to the Attorney General or an authorized representative of the Attorney General any mental health records pertaining to the applicant;

(9) the date on which the application was submitted; and

(10) the signature of the applicant.

(b) Regulations Governing Submission- The Attorney General shall promulgate regulations specifying procedures for the submission of applications to the Attorney General under this section, which regulations shall--

(1) provide for submission of the application through a licensed dealer or an office or agency of the Federal Government designated by the Attorney General;

(2) require the applicant to provide a valid identification document (as defined in section 1028(d)(2) of title 18, United States Code) of the applicant, containing a photograph of the applicant, to the licensed dealer or to the office or agency of the Federal Government, as applicable, at the time of submission of the application to that dealer, office, or agency; and

(3) require that a completed application be forwarded to the Attorney General not later than 48 hours after the application is submitted to the licensed dealer or office or agency of the Federal Government, as applicable.

(c) Fees-

(1) IN GENERAL- The Attorney General shall charge and collect from each applicant for a license under this title a fee in an amount determined in accordance with paragraph (2).

(2) FEE AMOUNT- The amount of the fee collected under this subsection shall be not less than the amount determined by the Attorney General to be necessary to ensure that the total amount of all fees collected under this subsection during a fiscal year is sufficient to cover the costs of carrying out this title during that fiscal year, except that such amount shall not exceed $25.

SEC. 103. ISSUANCE OF LICENSE.

(a) In General- The Attorney General shall issue a firearm license to an applicant who has submitted an application that meets the requirements of section 102 of this Act , if the Attorney General ascertains that the individual is not prohibited by subsection (g) or (n) of section 922 of title 18, United States Code, from receiving a firearm .

(b) Effect of Issuance to Prohibited Person- A firearm license issued under this section shall be null and void if issued to a person who is prohibited by subsection (g) or (n) of section 922 of title 18, United States Code, from receiving a firearm .

(c) Form of License- A firearm license issued under this section shall be in the form of a tamper-resistant card, and shall include--

(1) the photograph of the licensed individual submitted with the application;

(2) the address of the licensed individual;

(3) the date of birth of the licensed individual;

(4) a license number, unique to each licensed individual;

(5) the expiration date of the license, which shall be the date that is 5 years after the initial anniversary of the date of birth of the licensed individual following the date on which the license is issued (or in the case of a license renewal, following the date on which the license is renewed under section 104);

(6) the signature of the licensed individual provided on the application, or a facsimile of the application; and

(7) centered at the top of the license, capitalized, and in boldface type, the following:

`FIREARM LICENSE--NOT VALID FOR ANY OTHER PURPOSE'.

SEC. 104. RENEWAL OF LICENSE.

(a) Application for Renewal-

(1) IN GENERAL- In order to renew a firearm license issued under this title, not later than 30 days before the expiration date of the license, the licensed individual shall submit to the Attorney General (in accordance with the regulations promulgated under paragraph (3)), in a form approved by the Attorney General, an application for renewal of the license.

(2) CONTENTS- An application submitted under paragraph (1) shall include--

(A) a current, passport-sized photograph of the applicant that provides a clear, accurate likeness of the applicant;

(B) current proof of identity of the licensed individual; and

(C) the address of the licensed individual.

(3) REGULATIONS GOVERNING SUBMISSION- The Attorney General shall promulgate regulations specifying procedures for the submission of applications under this subsection.

(b) Issuance of Renewed License- Upon approval of an application submitted under subsection (a) of this section, the Attorney General shall issue a renewed license, which shall meet the requirements of section 103(c), exc
TRUNCATED



Here's the link : http://www.washingtonwatch.com/bills...111_HR_45.html