National Firearm Law Seminar, Panel 5

Panel 4 was the ethics part of the seminar. I had to skip coverage to get caught up on a few things. But I’m back with Panel 5. First up is Derek DeBrosse on Firearms Rights Restoration by the Numbers. There have been a few seminars about this over the years, and it’s a complex topic. I’ll do my best to sum up the important points. He notes that this is really a state centric area of law, and he will be speaking in regard to Ohio law, since that is where he practices. Starts with the common disabilities:

• Felony conviction.
• Mental health adjudications.
• Misdemeanor Crime of Domestic Violence conviction.

And the tools used to restore rights:

• Expungements (favored)
• Set Asides
• Pardon (rare in OH)
• Restorations
• Voluntary Appeals File
• Lawsuits

Character witnesses can be important in restoration cases. I’m always amazed what a complicated area of law this is. It’s hard to write and keep up with all the facts. There are a number of circuit splits that have impact on rights restoration, depending on what circuit your state is in. Types of restoration:

• Automatic (rights fully restored upon release)
• By Petition
• By Expungement

There are a lot of cases where there are concealed carry restrictions which can trigger prohibitions. The feds demand that all your rights are restored. If any restrictions remain, you’re still prohibited. There are also some cases where states have expungement, but it’s not really expungement for federal purposes.

Mental health restorations seem to be more difficult than criminal restorations. There are cases where people who are admitted voluntarily were listed as being involuntary. Records are important.

I’ve also always found it interesting that it can be harder to lift a misdemeanor prohibition (MCDV) than it is a felony, but it is.

Next up is Jonathan Goldstein, who is a local (to me) gun rights attorney, speaking on Firearms Preemption being the next frontier in firearms regulation. The talk begins with a review of just how far we’ve come. So what’s a frustrated anti to do?

• Work at the state and local level
• Land use restrictions (lead issues, noise issues, etc)
• Carry, use, and purchase restrictions (“Heart strings locations” – Parks, Schools, Religious institutions, “Sensible Locations” – Bars, Government Buildings, Government Gatherings, Signage, Scary Looking Guns)
• Localization of penalties (e.g. Lost & Stolen in Pennsylvania)
• Public health vector (“gun violence” as a disease & lead issues)

He’s making a lot of the same point I’ve made in regards to the motivations of the antis, in terms of fatiguing people out of exercising their rights. This is very entertaining. He’s probably great before a jury.

Jonathan’s prescription for this is preemption; the process of ensuring that laws are uniform. Lessons from Pennsylvania:

• Explicit grants of standing matter.
• Findings matter.
• Pre-ambulatory language matters.
• Look towards standing jurisprudence in your state’s law and make sure the relief you can obtain under your new law incorporates that.
• Be careful about ambiguity. (e.g. the school gun ban in Pennsylvania)
• Watch out for executive agencies.
• Don’t give the courts wiggle room (He contrasts Florida’s strong preemption language with Pennsylvania’s weak language)

He goes over the history of our preemption drama in Pennsylvania, which you’re all well aware of. Roadmap to Preemption Success:

• Start early and demand action. Don’t let the legislature stall you.
• Watch the technical requirements – single subject and original purpose.
• Look for allies. Most regulated industries also demand uniformity.
• Get help with drafting! NRA has a lot of useful resources.
• Analogize – drugs, cars, firearms are just another consumer product.
• Hold local government accountable.
• Read preliminary rules from agencies.
• Watch appointments to appellate courts.

Very good presentation, and definitely the right guy to put between attendees and the booze. Not only did he make the time fly, but kept people awake. Sometimes if you get a snoozer presenter late in the day it can be brutal.