Second Amendment Roundup: Removal of Firearm Disabilities

The Attorney General has proposed regulations for procedures for persons to apply for removal of federal firearm disabilities.  Most disabilities are found in 18 U.S.C. § 922(g).  Under § 925(c), a person prohibited from firearm possession may petition for relief from federal disabilities by applying to the Attorney General, who “may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, 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.”

In my view, overall the proposed regulations are fair and reasonably implement the above statutory provision.  However, there are two items that should be eliminated or modified.  Both provide that applications will be denied, absent extraordinary circumstances, if the applicant has been convicted of two types of offenses.  Those convictions should be considered on a case-by-case basis instead of being subject to presumptive denial.

Common-law assault convictions

Proposed § 107.1(a) provides in part: “Applications will therefore be denied, absent extraordinary circumstances, if the applicant: (1) Has been convicted under state or federal law of any offense punishable by a term exceeding one year (as defined in 18 U.S.C. 92l(a)(20)) that involves the following conduct, excluding jurisdictional requirements: … (iii) Assault or battery….”

That may be reasonable as applied to such convictions that are truly felonious and aggravated.  However, it creates the presumptive denial of relief where the person was convicted of the common-law state misdemeanor of assault and battery, which is punishable by imprisonment for over two years because there is no upper limit on the punishment.  That situation exists in Maryland and maybe other states.  United States v. Coleman, 158 F.3d 199, 203 (4th Cir. 1998) (en banc), held about Maryland law:

A “crime punishable by imprisonment for a term exceeding one year” is defined in pertinent part so as to exclude “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” … While a Maryland conviction for common-law assault is classified as a misdemeanor, the offense carries no maximum punishment; the only limits on punishment are the Cruel and Unusual Punishment Clauses of the Maryland and United States Constitutions. See United States v. Hassan El, 5 F.3d 726, 733 (4th Cir.1993). As such, a Maryland common-law assault “clearly is punishable by more than two years imprisonment” and is not excluded from the definition of a “crime punishable by imprisonment for a term exceeding one year” by the misdemeanor exclusion. Id.

There are plenty of convictions of this type based on minor incidents, such as a fight in a bar when one is young, that may result in two days in jail, if that.  In United States v. Schultheis, 486 F.2d 1331, 1332 (4th Cir. 1973), “The ‘felony’ conviction upon which the indictment was based was appellant’s 1966 conviction of simple assault, a common law crime in Maryland, which grew out of appellant’s involvement in a fist fight. For this crime appellant was given a suspended 90-day sentence, fined $25.00 and placed on unsupervised probation for two years.”

Accordingly, common-law assault and battery convictions should not be subject to presumptive denial.

Knowing importation of a firearm or ammunition

Proposed § 107.1(a) also provides in part: “Applications will therefore be denied, absent extraordinary circumstances, if the applicant: … (2) Has been convicted under state or federal law of any felony offense involving conduct prohibited under 18 U.S.C. 922 … (1).  Section 922(l) makes it “unlawful for any person knowingly to import or bring into the United States … any firearm or ammunition….”  Exceptions exist for licensed importers, certain other licensees, and members of the Armed Forces.

Knowing import of a single firearm or a single round of ammunition, absent a wrongful purpose, is a mala prohibita offense that should not presumptively be cause for denial of relief.

In the Gun Control Act, “the term ‘knowingly’ does not necessarily have any reference to a culpable state of mind or to knowledge of the law.”  Bryan v. United States, 524 U.S. 184, 192 (1998).  Since it is not “necessary to prove that the defendant knew that his [act] was unlawful,” the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.”  Id. at 193.  By contrast, “with respect to the conduct … that is only criminal when done ‘willfully,’” “[t]he jury must find that the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful.”  Id. at 193.

There are numerous gun shows in Europe where an American collector might buy a gun and bring it back without going through a licensed importer. There are shooting matches worldwide in which a participant might bring back a few rounds of unused ammo.  The same occurs when a hunter brings back a rifle that had to be replaced or some unused ammo from a foreign country.  Such persons may not know that the import must be through a licensed importer, and in such cases the importation would have been granted if done through a licensee.

Such innocent acts contrast sharply with traffickers bringing in guns or ammo for nefarious purposes.  Instead of presumptive denial, these should be fact-based decisions.

Readers may spot other provisions that warrant revision.  Written comments on the notice of proposed rulemaking must be postmarked and electronic comments must be submitted on or before October 20, 2025.

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Source: https://reason.com/volokh/2025/10/01/second-amendment-roundup-removal-of-firearm-disabilities/