It has come to our attention that Paul Ferris, the preeminent firearms lawyer in the State of Washington, is warning anyone that has ever been convicted of domestic violence in Washington State that the NICS and BATF no longer view a Restoration of Rights under Washington law as valid under federal cases dealing with the definition of civil rights. Here is an excerpt from Mr. Ferris’ Washington Record site and a link for the full text:

There has been a reversal in the position of the Bureau of Alcohol, Tobacco and Firearms (ATF) and the National Instant Check System (NICS) regarding Washington State court orders restoring firearm rights to persons convicted of misdemeanor crimes of domestic violence. Many Washington State citizens with misdemeanor DV convictions followed established procedures in pursuing relief from federal prohibition by obtaining a state court order restoring firearm rights. This procedure for relief was typically recommended by NICS in appeal letters. A state court order restoring firearm rights removed the federal prohibition because the federal statute expressly contained an exception for offenders whose right to possess had been restored:

A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

The issues lies in the interpretation of “civil rights". The federal government had been treating the right to possess firearms as a civil right lost upon conviction of a misdemeanor DV crime. Typically, civil rights refers to core rights such as voting, holding elected office and serving on a jury. Recent federal court decisions in many circuits hold that the right to possess firearms is not a civil right. Thus, ATF and NICS now take the position that a Washington State court order restoring firearm rights to misdemeanants does not remove firearm prohibitions under federal law because the conviction does not result in the loss of civil rights.

Not all circuits have taken this position. However, Washington State is in the 9th Circuit and a violation of federal firearm laws in this state could be prosecuted in federal district court under precedents in this jurisdiction.

It is important to note that a state court order restoring firearm rights is still necessary and valid (within state jurisdiction but not federal) to remove prohibitions under state law for domestic violence misdemeanors. Without one, an offender would be subject to prosecution by the State of Washington for a felony charge - unlawful possession of a firearm in the second degree - if found in possession of a modern firearm or muzzleloader.

The Wyoming Attorney General recently filed a lawsuit in federal district court over the federal government’s refusal to honor Wyoming state procedure for restoring gun rights in domestic violence misdemeanor cases. Perhaps our legislators will soon realize the fiasco created by the Lautenberg Amendment and join the efforts to repeal it. Please contact your representatives and encourage them to become educated about this issue and respond appropriately.

Note that vacating a Washington conviction does not completely expunge or set-aside the conviction as required by federal law under federal interpretations of the Tenth Circuit in the case of Wyoming ex rel Crank v United States. The 2008 Crank decision may be a moot issue in Washington because it has been recognized for some time that in order to restore gun rights it is necessary to petition the Washington State courts for a Certificate of Rehabilition and Restoration of Firearms Rights.

In the Crank case, the State of Wyoming sued the BATF because the BATF interpretes the state expungement statute in such a way that federal gun rights are not restored subsequent to a restoration of rights under Wyoming law. Washington is in the Ninth Circuit and our statute, enacted by the legislature to restore gunrights, is significantly different than the Wyoming expungement statute that was the issue in Crank. However, it is not enough to merely vacate the conviction under RCW 9.96.060(3). You must obtain a Certificate of Rehabilitation under RCW 9.41.047.

For now the bottom line seems to be that if you were convicted of a felony (and lost your voting rights and other civil rights) and Washington state restores your right to possess a weapon then the BATF and NICS will recognize Washington’s restoration of your gun rights. On the other hand, if your rights are restored subsequent to a DV that is not a felony, the fact that your other civil rights were not taken away under state law dictates that Washington cannot restore your rights in a way that the BATF and NICS will recognize.

See Logan v US and United States of America v Brailey.

For some good news, see the Second Amendment Foundation’s News Release; courts are shooting down cities and anti-gun mayors that enact illegal laws:

See SAF Amicus Brief in U.S. v Hayes and see also:
Ohio Supreme Court Upholds Gun Rights.