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Gun Rights

Posted by Bryan Underwood | Feb 25, 2022 | 0 Comments

A frequently asked question is whether an expungement of a felony restores the right to keep and bear arms.  Although no Kentucky case has addressed the issue, the most probable answer is no.  

Federal law is clear on this point of law.  Under Title 18 of the United States Code, section 921(a)(20), what constitutes a conviction of such a crime, i.e. possession of a firearm by a convicted felon, 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 provides that the person may not ship, transport, possess, or receive firearms.  U.S. v. Morgan, 216 F.3d 557 (6th Cir. 1999).  On the other hand, under Kentucky law, KRS 527.040, a person remains a convicted felon unless he or she has been granted a full pardon or granted specific relief by the United States Secretary of Treasury under the Federal Gun Control Act of 1968.  Although federal law provides a means for the relief of firearms disabilities, ATF's annual appropriation since October 1992 has prohibited the expending of any funds to investigate or act upon applications for relief from federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, ATF cannot act upon applications for relief from federal firearms disabilities submitted by individuals.  [18 U.S.C. 925(c); 27 CFR 478.144].  So, that presently only leaves a Presidential pardon or pardon of the Governor as a means for restoring gun rights in the Commonwealth of Kentucky.

Kentucky's expungement statute, KRS 431.079, is silent with respect to this question.  Section 4(c), however, provides that an order of expungement shall not preclude a prosecutor's office from retaining a nonpublic record for law enforcement purposes, i.e. the record of conviction they will introduce at your trial for possession of a firearm by a convicted felon.  Arguably, a person is not a "convicted felon" if the felony judgment has been vacated and expunged.  It would be a brave soul, however, that took a chance on this defense to a criminal charge.  A better approach would be to seek a declaratory judgment to resolve the issue.  A person with an expunged felony wanting to possess or purchase a firearm would have standing to take the issue to court for a definitive determination.        

About the Author

Bryan Underwood

Bryan Keith Underwood, Attorney At Law   I enjoy being able to live and practice law in my hometown of Maysville, Kentucky, named one of the most charming towns in America by Country Living magazine.  Our residents, however, deal with the same serious legal issues.  Since 1999, I have successfu...


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