Does Expungement Restore Gun Rights in California?
In California, having a criminal record can be a significant obstacle to achieving certain legal rights, including the right to own or possess a firearm. While expungement can erase a criminal conviction from one’s public record, it is not a guarantee that the individual’s gun rights will be automatically restored. In this article, we will explore the complex relationship between expungement and gun rights in California, including the different types of expungements, the conditions for gun rights restoration, and the legal process for obtaining gun rights.
Contents
What is Expungement?
In California, expungement is a legal process that allows an individual to clear their criminal record by erasing a misdemeanor or felony conviction from their public record. This can be achieved through a petition filed with the court, usually after the individual has completed their sentence and probation period. The purpose of expungement is to remove the stigma associated with a criminal conviction and to provide an individual with a fresh start.
Types of Expungements
There are two main types of expungements in California: Judicial Expungement and Executive Clemency.
• Judicial Expungement: This type of expungement is achieved through a court order and is only available for felony convictions that have been fully completed.
• Executive Clemency: This type of expungement is granted by the Governor or the Board of Parole Hearings and is only available for certain types of convictions, such as felonies or misdemeanors committed by juveniles.
Does Expungement Restore Gun Rights in California?
In California, the legal answer is no. Even after an expungement, an individual’s gun rights may still be limited or restricted due to state and federal laws. There are several factors that must be considered, including:
• Pursuant to California law: In California, any individual convicted of a misdemeanor or felony that is punishable by more than one year in state prison is prohibited from owning, possessing, or purchasing a firearm. Expungement does not automatically restore gun rights under California law.
• Under federal law: The Federal Gun Control Act of 1968 and the Firearms Owners Protection Act of 1986 both prohibit the sale or possession of a firearm to individuals who have been convicted of a misdemeanor or felony. Federal law also restricts the sale or transfer of a firearm to any individual who has been subject to a restraining order or has a history of violence.
• ATF’s Background Check Process: Even if an individual’s record has been expunged, the National Instant Criminal Background Check System (NICS) will still review their criminal history and identify any prior convictions or restrictions that may impact their eligibility to own or possess a firearm.
Table: Gun Rights Restrictions in California
| Restriction | Description |
|---|---|
| California | Prohibits possession or purchase of a firearm for those convicted of a misdemeanor or felony punishable by more than one year in state prison |
| Federal | Prohibits sale or possession of a firearm to individuals with a prior felony or misdemeanor conviction |
| ATF Background Check | Reviews individual’s criminal history and identifies prior convictions or restrictions impacting eligibility for gun ownership or possession |
The Legal Process for Obtaining Gun Rights
For an individual who has had their gun rights restricted due to a criminal conviction, the legal process for obtaining gun rights involves several steps:
• Petition for Expungement: The individual must file a petition with the court requesting expungement of their criminal conviction.
• Background Check: The individual must undergo a background check to ensure that they do not have any outstanding warrants or prior convictions that may impact their eligibility for gun ownership or possession.
• ATF Approval: The individual must obtain approval from the ATF to restore their gun rights.
• California License to Carry: The individual must also obtain a California License to Carry a Firearm from the California Department of Justice.
Key Takeaways
• Expungement does not automatically restore gun rights in California.
• California and federal laws prohibit the sale or possession of a firearm to individuals with prior criminal convictions.
• The legal process for obtaining gun rights involves petitioning for expungement, undergoing a background check, obtaining ATF approval, and obtaining a California License to Carry.
In conclusion, while expungement can erase a criminal conviction from an individual’s public record, it is not a guarantee that their gun rights will be restored. It is essential to understand the complex legal requirements and restrictions that apply in California, including the requirements for judicial expungement, executive clemency, and the legal process for obtaining gun rights.
