The Gun Control Act (GCA) prohibits persons with certain legal disabilities from possession of firearms. It also provides a procedure to petition to remove those disabilities on a finding that the person will not be likely to act in a manner dangerous to public safety. Since 1992, appropriations riders have been enacted to prohibit the Bureau of Alcohol, Tobacco, Firearms and Explosives from considering such petitions. Attorney General Pam Bondi has announced an interim final rule that will allow her office to process the petitions directly.
Persons with felony convictions and other legal disabilities are prohibited from having guns by 18 U.S.C. § 922(g). However, § 925(c) provides that such persons may apply to the Attorney General for relief from such disabilities if the circumstances and the person'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." A denial may be reviewed by a federal court.
Annual appropriations riders since 1992 have prohibited ATF from using funds to consider petitions to remove disabilities. The Attorney General had previously delegated authority to ATF to exercise its powers under 18 U.S.C. chapter "44 (related to firearms)," which is the GCA. 28 C.F.R. § 0.130(a)(1). The interim final rule changes that to refer to chapter "44 (related to firearms), except for 18 U.S.C. 925(c)." The Attorney General thus resumes administration of the disability removal function.
The rule also removes 27 C.F.R. § 478.144, which was the long moribund ATF regulation about processing disability removal petitions. That regulation reflected its origin in 1968 by requiring that applications be submitted "in triplicate."
The regulation had one provision that the Attorney General should not replicate in how her office administers the program: "Relief will not be granted to an applicant who is prohibited from possessing all types of firearms by the law of the State where such applicant resides." That is improper because § 925(c) is designed to remove the federal disability and shield one from federal prosecution. Further, depending on state law, a state court or other entity that removes state disabilities may be unlikely to do so as long as the federal disability stands.
As reasons for the interim final rule, General Bondi explains that the issue "has taken on greater significance given developments in Second Amendment jurisprudence since 1992." President Trump's Executive Order of February 7 directed the Attorney General to examine all regulations "to assess any ongoing infringements of the Second Amendment rights of our citizens." The commentary to the interim final rule explains: "Consistent with this Order and with the Department's own strong support for all constitutional rights, including 'the right of the people to keep and bear arms' enshrined in the Second Amendment, the Department has begun that review process in earnest…." Accordingly:
From the Department's perspective, regardless of whether the Second Amendment requires an individualized restoration process for persons subject to 18 U.S.C. 922(g), 18 U.S.C. 925(c) reflects an appropriate avenue to restore firearm rights to certain individuals who no longer warrant such disability based on a combination of the nature of their past criminal activity and their subsequent and current law-abiding behavior while screening out others for whom full restoration of firearm rights would not be appropriate.
However, it continues, the Department "also supports existing laws that ensure, for example, that violent and dangerous persons remain disabled from lawfully acquiring firearms." That's exactly the direction in which some courts have been moving when they decide that, under the Second Amendment, categorical bans cannot be applied to persons who are not violent or dangerous. Other courts have upheld categorical bans and rejected as-applied challenges. As explained in my recent post, there is a clear circuit conflict on the issue that warrants resolution by the Supreme Court.
But maybe the interim final rule, depending on the nature of the case, will get the Supreme Court off the hook. If persons with legal disabilities may now apply to the Attorney General for relief, the issue may become moot in many cases, as it did in BATF v. Galioto (1986), in which the Court ruled that an equal protection challenge to § 925(c) became moot when the Firearm Owners' Protection Act of 1986 extended the statute to include all § 922(g) disabilities, including mental commitments.
However, there are some circumstances where an administrative process may not necessarily moot a Second Amendment claim. In Range v. Attorney General (3rd Cir. 2024), which I previously discussed here, Bryan Range should never have been disarmed in the first place. As the court explained, "today, felonies include a wide swath of crimes, some of which seem minor." For instance, "returning out-of-state bottles or cans" in Michigan is a felony, as is uttering "profane language by means of radio communication" under federal law. Unqualified deference "gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label." While the Supreme Court's Rahimi holding "did bless disarming (at least temporarily) physically dangerous people," the government had no evidence that Range "poses a physical danger to others or that food-stamp fraud is closely associated with physical danger."
By ruling in a case like Range, the Supreme Court will give general guidance regarding the types of convictions that should or should not result in disarming a person. The line will undoubtedly be drawn in terms of whether the type of crime would pose a threat of danger and violence to others. Guidance from the Court will also assist the Attorney General in deciding which applicants deserve to have disabilities removed and which do not. It should also encourage legislatures to be more cautious in labeling offenses that don't deserve the appellation as felonies.
The interim final rule will lessen the burden of district courts having to decide as-applied challenges to the undoubtedly large numbers of plaintiffs who will otherwise mount challenges. Challengers who obtain relief administratively will not need to file Second Amendment claims. The rule regenerates an administrative procedure that will be far less expensive for applicants and simultaneously checks abuse of discretion by allowing review by the district courts.
As the commentary explains, the rule is exempt from the usual APA requirements of notice and comment and a 30-day delay in effective date because it relates to a matter of agency organization, procedure, or practice. However, comments are welcome by June 18, 2025, before a final rule is issued.
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The ATF website shows that its leadership now includes Kash Patel as the new Acting Director while Marvin Richardson continues as the Deputy Director. Scroll down and you'll see Robert Leider as Assistant Director/Chief Counsel. An Associate Professor of Law from George Mason University, Robert is a well-respected scholar on both the Second Amendment and firearm law issues. You can hear an interview here on Robert's plans to reform ATF. Congratulations to Chief Counsel Leider.
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