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Criminal Defense Representation

The Second Amendment And Criminal Charges

Gun rights are a contentious issue. If you face any criminal charges, you should have counsel from an experienced criminal defense attorney to protect your Second Amendment rights. Our attorneys at Goulden Law Offices, PLLC, are well-versed in the intersection of criminal prosecution and the Second Amendment, and we can provide knowledgeable guidance on these issues in New Hampshire.

The 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 10 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.” 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.”

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.

Things To Keep In Mind About Firearm And Criminal Charges:

  • You cannot have a gun if you have been convicted of a felony. This federal law excepts some “business” crimes, such as antitrust, unfair trade practices or other business practices. While a felony is generally any crime that carries more than one year of punishment, for purposes of the gun ban, even an actual sentence of less than one year still triggers the ban, as long as the upper limit of potential sentences is longer than one year.
  • Misdemeanor convictions involving domestic violence are included in the federal firearm ban. And this is forever. If you do possess a gun, you risk federal criminal prosecution and time in a federal penitentiary.
  • In some cases, a mere indictment is enough to trigger the ban.
  • Use of illegal controlled substances also is covered, and the statute is somewhat unclear, which means you may fall under the definition and not realize it until you are prosecuted.
  • Long guns and ammunition are also encompassed by the ban, and there is no exception because you have the gun in your home.
  • Additionally, ignorance of the law won’t help. If you know you are a convicted felon and possess a gun, the prosecution’s case is finished and you will most likely be convicted.
  • If, after a conviction, you had your civil rights restored, it could be possible to regain the right to own a gun. Federal law directs a court to look at the jurisdiction “entire body of law.”
  • This means that if a client has a New Hampshire felony conviction, the federal courts will look to New Hampshire law to determine if their civil rights have been restored. If they have been restored under New Hampshire law, then the federal authorities will not be able to prosecute them for being a felon in possession of a gun.

How Can Firearm Rights Be Restored In New Hampshire?

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.

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. It will simply return it with an explanation that it 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).

Contact Us Today

If you are facing any criminal charge, there is potential for it to lead to a loss of your right to possess a gun. Call our Nashua offices at 603-237-1105 or use our online contact form to make an appointment to speak with our attorneys.