Constitutional Carry: Felons' Rights And Restrictions

The term “constitutional carry” refers to the legal public carrying of a handgun, either openly or concealed, without a license or permit. The phrase reflects the idea that the Second Amendment to the U.S. Constitution does not allow restrictions on gun rights, including the right to carry or bear arms. However, the Second Amendment does not extend to convicted felons, who are prohibited from possessing firearms under federal law. While some states may allow felons to possess handguns after a certain amount of time has passed since their conviction or if they have been pardoned, the specific laws and requirements vary from state to state.

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Felons' firearm rights

In the United States, the Second Amendment guarantees the right of all citizens to bear arms, except in certain circumstances. One of these circumstances is if you are a convicted felon.

Under federal law, convicted felons lose their firearm rights. This law was developed in 1934, initially prohibiting people convicted of felonies involving violence from owning firearms. Since the Gun Control Act was passed in 1968, anyone convicted of a felony loses their firearm rights, regardless of whether the crime was violent or not.

However, some states will allow convicted felons a second chance to own a gun. In some states, such as Indiana, felons can petition the courts to have their firearm rights restored. In Kentucky, a felon can apply for expungement, but not until five years after their sentence has been completed. In California, Louisiana, New Jersey, New York, and Oklahoma, a convicted felon's firearm rights will be restored if they receive a governor's pardon.

In North Carolina, a person with a nonviolent felony conviction may petition for the restoration of their firearm rights if they meet the statutory criteria. In Mississippi, constitutional carry allows residents and non-residents over the age of 18 to carry a firearm without a license or permit, although some forms of concealed carrying would still require a permit.

In Florida, Governor Ron DeSantis has announced that constitutional carry will be law, meaning that state law will not prohibit residents from possessing and openly carrying a firearm without a permit. However, DeSantis has not clarified whether this will apply to felons, and it seems unlikely based on his voting record and past remarks.

State-level differences

In the United States, the Second Amendment guarantees citizens the right to bear arms, except in certain circumstances. One of these circumstances is if you are a convicted felon. Under federal law, convicted felons lose their firearm rights.

However, the specific application of this law varies at the state level. For example, in Indiana, a person can petition the courts to have their firearm rights restored, and in Kentucky, a convicted felon can apply for expungement after completing their sentence. Some states, such as California, Louisiana, New Jersey, New York, and Oklahoma, will restore a convicted felon's firearm rights if they receive a governor's pardon. Oregon allows individuals found guilty of a felony by reason of insanity to apply for a gun license, while North Carolina permits pardoned felons to obtain a gun permit as long as it does not violate the terms of their pardon. Vermont has no statutory requirements governing the acquisition or possession of handguns, including by felons.

The movement to allow constitutional carry, or permitless carry, is relatively new. It follows the lobbying campaign to pass "shall-issue" concealed carry laws, which require local authorities to issue permits as long as basic requirements are met, such as a minimum age and no felony convictions. As of March 2024, 48 states, including D.C. and Puerto Rico, were shall-issue jurisdictions, some of which are also constitutional carry states.

The scope and applicability of constitutional carry vary by state. While some states have no restrictions on the open carry of handguns, others require a permit for concealed carry. For example, in Tennessee, individuals aged 18 to 20 were previously prohibited from carrying a concealed firearm in public or obtaining a permit, but these restrictions were lifted in 2023. In Mississippi, constitutional carry is allowed for residents and non-residents aged 18 and over, but some forms of concealed carry, such as Mexican carry or an ankle holster, still require a permit.

Pardons and expungement

In the United States, the Second Amendment guarantees the right of citizens to bear arms, except in certain circumstances. One of these circumstances is if you are a convicted felon. Felons with a criminal record will find it difficult to have applications for firearm rights accepted, especially if they were convicted of violent crimes. Under federal law, convicted felons lose their firearm rights.

However, some states will allow convicted felons a second chance. A pardon is an expression of the President's forgiveness and can be granted if the applicant has accepted responsibility for the crime and demonstrated good conduct for a significant period after conviction or the completion of their sentence. A pardon does not signify innocence but can remove civil disabilities, such as restrictions on the right to vote, hold office, or sit on a jury, imposed due to the conviction. It may also be helpful in obtaining licenses, bonding, or employment. A gubernatorial pardon is the only way to restore gun rights after a felony conviction.

Expungement, on the other hand, is a judicial remedy rarely granted by the court and cannot be obtained from the Department of Justice or the President. While a full expungement allows an individual to legally claim that they have never been convicted of a crime, it does not restore gun rights. It does, however, clear the individual's criminal record, preventing the case from appearing in public databases.

The process of restoring firearm rights may vary depending on whether the felony was a state or federal offense. Some states have procedures in place to restore certain civil rights to their citizens, even with a felony conviction. For example, in Indiana, individuals can petition the courts to have their firearm rights restored, while in Kentucky, a convicted felon can apply for expungement five years after completing their sentence.

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Second Amendment interpretation

The Second Amendment of the U.S. Constitution guarantees the right of all U.S. citizens to bear arms, except in certain circumstances. One of these circumstances is if you are a convicted felon. The interpretation of the Second Amendment and its applicability to felons has been a matter of debate and has evolved over time.

Historically, the Second Amendment was interpreted to allow states to regulate weapons as they deemed fit. For example, during the Founding Era, blacks were often prohibited from possessing firearms, and militia weapons were frequently registered with the government. However, the Privileges or Immunities Clause of the Fourteenth Amendment, adopted later, was intended to protect individuals' right to keep and bear arms from infringement by the states. Despite this, the Supreme Court rejected this interpretation in United States v. Cruikshank (1876).

The landmark case District of Columbia v. Heller in 2008 was a turning point in the interpretation of the Second Amendment. The Court found that self-defence was a "central component" of the Second Amendment and invalidated Washington D.C.'s handgun ban. The Heller decision suggested that certain regulations were ''presumptively lawful," including bans on firearm possession by felons and the mentally ill, bans on carrying firearms in sensitive places like schools, and restrictions on the commercial sale of arms. The Court affirmed that some state and local gun controls were permissible.

The interpretation of the Second Amendment continued to evolve with the Supreme Court's decision in McDonald v. Chicago in 2010. The Court held that the Second and Fourteenth Amendments were "fully incorporated," meaning that the right to "keep and bear arms applies to the states and not 'in a watered-down version' but 'fully applicable'." This decision limited the ability of state and local governments to enact laws that restrict the right to keep and bear arms for self-defence.

In recent years, federal courts have upheld most gun control laws challenged under the Second Amendment. Bans on assault weapons, restrictions on high-capacity magazines, and prohibitions on guns in specific locations have been consistently upheld. These rulings indicate that lawmakers have significant discretion to restrict guns to promote public safety while preserving the basic right of law-abiding citizens to possess firearms for self-defence.

While the Second Amendment interpretation generally prohibits felons from possessing firearms, there are pathways for convicted felons to have their firearm rights restored. These pathways vary by state and include expungement, gubernatorial or presidential pardons, and petitions to courts or relevant agencies. Ultimately, the interpretation of the Second Amendment regarding felons' rights to bear arms is a complex and evolving issue, with public safety and individual rights at the centre of the debate.

Public safety concerns

One of the key concerns regarding constitutional carry is that it could negatively impact public safety. State Representative Anna Eskamani, for instance, views constitutional carry as a threat to public safety. She and others argue that unrestricted access to firearms means that individuals who would normally be denied a gun license may now be able to purchase and openly carry a firearm. This could potentially lead to an increase in gun violence, which is already a significant issue in the United States.

The concern is that without proper vetting and background checks, individuals with a history of violence or mental health issues could gain access to firearms. This could potentially lead to more gun-related crimes, including mass shootings. Additionally, the lack of a permit or license requirement could make it more difficult for law enforcement to track and regulate firearm ownership, hindering their ability to prevent and respond to gun-related incidents effectively.

Furthermore, there is a worry that constitutional carry laws could lead to an increase in gun trafficking and the illegal sale of firearms. Without proper regulations and restrictions, it may become easier for criminals and prohibited individuals to obtain guns, thereby exacerbating the issue of gun violence and posing a significant threat to public safety.

While supporters of constitutional carry argue that it upholds the Second Amendment and removes bureaucratic barriers, opponents raise valid concerns about public safety. The debate surrounding constitutional carry laws highlights the delicate balance between upholding constitutional rights and ensuring the safety and well-being of the general public.

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