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The Second Amendment and Right to Possess Firearms and Ammunition

A criminal conviction can carry with it a number of indirect or collateral consequences. Some common collateral consequences are the loss of the right to vote or to hold office while incarcerated, immigration consequences, possible civil commitment or prohibition on entering school grounds. It might include the loss of the ability to obtain federal financial aid, the loss of the ability to claim certain government benefits, the forfeiture of property, or the requirement to register as an offender against children or as a sexual offender. There are literally hundreds of collateral consequences out there for those charged with a crime. There are simply too many to list here. Often, collateral consequences are just as serious—if not more so—than the direct consequences imposed in a criminal case.

In light of North Dakota’s strong hunting tradition, one of the most important collateral consequences that we are asked about is the potential loss of a person’s ability to possess or use a firearm or ammunition. While the Second Amendment guarantees the right to bear arms, it does not guarantee that a person’s firearms rights cannot be restricted or prohibited under certain circumstances.

Under current North Dakota law, a person’s right to possess firearms can be restricted for a number of reasons. Any person convicted of a felony offense involving violence or intimidation is prohibited from owning or possessing a firearm for ten years following the date of the person’s conviction or release from jail, parole or probation, whichever is latest. For other felony level offenses—even nonviolent, nonthreatening offenses—the person is prohibited from owning or possessing a firearm for five years from the latest event listed above. A person convicted of a class A misdemeanor offense involving violence or intimidation that was committed while using or possessing a firearm, dangerous weapon, or explosive loses his or her rights to possess firearms for five years following the latest event listed above. People who have ever been diagnosed with a mental illness and confined or committed to a mental hospital, or someone who has been determined to be “mentally deficient” is prohibited from possessing a firearm, unless the person has not “suffered from the disability for the previous three years or has petitioned” for restoration of the person’s firearms rights. A juvenile is prohibited from possessing a handgun unless the juvenile is under the direct supervision of an adult. Even under direct supervision, the handgun can only be possessed for safety training, target shooting, or hunting.

Under current federal law, a person can be prohibited from possessing a firearm or ammunition for additional reasons. Under federal law, a person is prohibited from possessing firearms or ammunition if the person has been convicted of an offense punishable by more than one year (felony in most states); the person is a fugitive from justice; the person is an “unlawful user” pf a controlled substance (note a drug conviction is not required here); a person who has been adjudicated as a mental defective or who has been committed to a mental institution; an illegal alien or a person admitted to the United States on a nonimmigrant visa; a person who has been discharged from the Armed Forces under dishonorable conditions; a person who has renounced their United States citizenship; a person subject to a protection order prohibiting the person from harassing, stalking or threatening an intimate partner (domestic violence protection order; disorderly conduct restraining order, and some pre- and post-dispositional orders prohibiting contact); and a person convicted of a misdemeanor crime involving domestic violence.

As you can see, a person’s right to possess firearms can be restricted under a complex web of state and federal laws. The good news, however, is that there is relief available to some people whose rights have been restricted. In 2011, the Legislature enacted a statute in North Dakota to allow a person to petition the court to restore the person’s rights to possess firearms and ammunition. This is important because under some of the federal law provisions, a person can have his or her rights restored if the State restores the right to possess firearms. Before 2011, there was no judicial mechanism to allow persons to “restore” their right to possess firearms. Now, a relatively simple motion and affidavit can be filed, establishing that the person has paid all fines, served all imprisonment required by the judgment, successfully completed any probation imposed in the judgment, and “the individual’s record and reputation are such that the individual is not likely to act in a manner dangerous to the safety of others.” Under this new law, if the person can establish those factors by clear and convincing evidence, the district court may restore the person’s right to possess firearms.

If you are prohibited from possessing firearms as a result of a criminal conviction and you are interested in restoring your rights, please give attorney Nick Thornton of the Fremstad Law Firm a call at (701) 478-7620.