Second Amendment

The Second Amendment (Amendment II) to the United States Constitution protects the right of the people to keep and bear arms and was adopted on December 15, 1791, as part of the first ten amendments contained in the Bill of Rights. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  The Supreme Court of the United States has ruled that the right belongs to individuals, while also ruling that the right is not unlimited and does not prohibit all regulation of either firearms or similar devices.  State and local governments are limited to the same extent as the federal government from infringing this right per the incorporation of the Bill of Rights.

Part 1, Article 2-a of the New Hampshire Constitution, adopted in 1982, provides that “[a]ll persons have the right to keep and bear arms in defense of themselves, their families, their property, and the state.”

Here are some important things to remember (in no particular order) about firearms and possession of firearms:

1. No guns for felons. Most of us are familiar with the rule that a convicted felon cannot possess a gun. The federal rule is found in one of the main firearm statutes, 18 U.S.C. § 922(g)(1). It says that anyone “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” is barred from possessing a gun. The only felonies that are not covered by the federal gun ban are 1) those “pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices,” per 18 U.S.C. § 921(a)(20)(A); and 2) felony convictions from foreign countries, per Small v. United States, — U.S. —, 2005 WL 946620 (April 26, 2005).

What about misdemeanor convictions – are they subject to the federal gun ban? No, because a separate federal statute, 18 U.S.C. § 921(a)(20)(B), says that a “crime punishable by imprisonment for a term exceeding one year” does not include “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less

There are some exceptions, however – some state misdemeanor convictions that implicate the federal gun ban. Read on.

2. No guns after misdemeanor criminal domestic violence convictions and no guns during the time that a DVPO is in effect. Under federal law, anyone who has a criminal domestic violence conviction is barred from possessing a gun. Forever. As 18 U.S.C. § 922(g)(9) says, “[i]t shall be unlawful for any person . . . who has been convicted in any court of a misdemeanor crime of domestic violence . . . to possess in or affecting commerce any firearm or ammunition.”

Under 18 U.S.C. § 921(a)(33), a “misdemeanor crime of domestic violence” is any misdemeanor that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”

What does that mean? If someone has a state court conviction for simple assault, assault on a domestic partner, or any other misdemeanor assault, and if the victim is the client’s spouse, live-in partner, child, or anyone else “similarly situated,” then the client is forever barred by federal law from possessing a gun. The same applies to convictions for communicating threats, when the client threatens to use a deadly weapon against one of the victims named above.

Domestic violence protective orders (DVPO’s) also fall within the federal firearms ban, but only for the length of time that the DVPO is in effect in state court. Anyone who “is subject” to a DVPO is barred from possessing a firearm, per 18 U.S.C. § 922(g)(8). Once the DVPO expires in state court (usually after one year, but it can be extended), the federal firearms ban goes away, because the person no longer “is subject” to the DVPO.

3. The federal gun ban includes some people who are only under indictment! Anyone who is “under indictment for a crime punishable by imprisonment for a term exceeding one year” is not allowed “to ship or transport . . . any firearm or ammunition or receive any such firearm or ammunition.” 18 U.S.C. § 922(n).

The meaning of this statute is a bit unclear. At the very least, it bars anyone under indictment from “receiving,” or acquiring, a gun that they did not own before being indicted. But what about guns that someone owned before they were indicted? Are they required to get rid of them after the indictment is handed down?

The express terms of the statute mention only shipping, transporting, and receiving a gun, not possessing one. In comparison, the federal statute that applies the gun ban to convicted felons and to those with misdemeanor domestic violence convictions expressly bans possession, as well as shipping, transporting, and receiving. You can make a strong argument based on the wording of the statute that someone under indictment is allowed to possess a gun he owned before being indicted, even if he is not allowed to ship, transport, or receive it.

4. No guns for drug users. Federal law also says that any person “who is an unlawful user of or addicted to any controlled substance” is barred from possessing guns. 18 U.S.C. § 922(g)(3). What does that mean? Good question. “[T]he exact reach of the statute is not easy to define,” to say the least! United States v. Jackson, 280 F.3d 403, 406 (4th Cir.), cert. denied, 536 U.S. 911 (2002).

The consensus seems to be that the statute does not apply to “infrequent” drug users or to those who used drugs in the “distant past.” Instead, it is aimed at those whose drug use is “sufficiently consistent, ‘prolonged,’ and close in time to [their] gun possession to put [them] on notice that [they] qualified as an unlawful user of drugs under the statute.” United States v. Edwards, 38 Fed. Appx. 134, 138 (4th Cir. 2002), cert. denied, — U.S. —, 123 S.Ct. 1764 (2003).

5. Is there an exception for guns that someone keeps in their own home or business? Never under federal law. If someone was barred by federal law from possessing a gun (because they were a convicted felon, a drug addict, etc.), they were not allowed to possess a gun even in their own home or business as a matter of federal law.

6. What about long guns?

A felon’s possession of a long gun has always been prohibited by federal law.

7. It’s not just a ban on guns – it also includes ammunition. The federal gun laws prohibit possession of “any firearm or ammunition.” 18 U.S.C. § 922(g). “Ammunition” is defined as “cartridge cases, primers, bullets, or propellant powder designed for use in any firearm.” 18 U.S.C. § 921(a)(17)(A

8. Ignorance of the law is no excuse. It does not matter if someone is unaware of the federal firearms ban. In United States v. Mitchell, 209 F.3d 319, 322-23 (4th Cir.), cert. denied, 531 U.S. 849 (2000) the Fourth Circuit said that the Government is not required to show that a defendant knew that federal law prohibited him from possessing a gun. If the defendant knew that he possessed the gun and knew that he was a convicted felon (or knew that he was a person with a conviction for a misdemeanor crime of domestic violence, a drug addict, etc.), that is enough for him to be prosecuted in federal court. It does not matter whether he was aware that federal law prohibited him from possessing a gun. ” ‘The only knowledge the government was required to prove . . . was knowledge of the possession.’ ” Id. (citations omitted).

9. Can a felon ever regain the right to own a gun by having his civil rights restored? Theoretically yes, 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 client has a New Hampshire felony conviction, the federal courts will look to New Hampshire law to determine if his civil rights have been restored. If they have been restored under New Hampshire law, then the federal authorities will not be able to prosecute him for being a felon in possession of a gun.

In New Hampshire A person convicted of a “felony against the person or property of another” or a felony drug offense may not own or possess any firearm.  N.H. Rev. Stat. Ann. § 159:3.  This restriction may be relieved by pardon or, for nonviolent offenses, by judicial annulment pursuant to N.H. Rev. Stat. Ann. §§ 4:23, 651:5, discussed infra.

Judicial sealing or Annulment in New Hampshire


N.H. Rev. Stat. Ann. § 651:5(I):

[T]he record of arrest, conviction and sentence of any person may be annulled by the sentencing court at any time in response to a petition for annulment which is timely brought in accordance with the provisions of this section if in the opinion of the court, the annulment will assist in the petitioner’s rehabilitation and will be consistent with the public welfare.  The court may grant or deny an annulment without a hearing, unless a hearing is requested by the petitioner.1

In a 2012 opinion, the Supreme Court of New Hampshire ruled that, in exercising discretion to grant an annulment, the court

may consider such factors as the number and circumstances of the convictions at issue, the defendant’s age at the time of each conviction, the time span of the convictions, and the particular manner in which annulment would aid the defendant’s rehabilitation—for example, by allowing him to obtain a professional license or to pursue a calling otherwise prohibited to those convicted of a crime.

Is there any other way to regain the right to own a gun? In theory, you can 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 application is supposedly 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.”

The problem is that since October 1992, Congress has prohibited ATF from spending any money to handle such applications. If you submit the application, ATF will not act on it. They will simply return it with an explanation that they cannot process it, due to a lack of available funds. Someone who went through this procedure sued in federal court, arguing that the court should bypass Congress in order to make available a procedure to restore the right to own a gun. The Supreme Court rejected the argument in United States v. Bean, 537 U.S. 71 (2002).