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Two sheriff's deputies in Fargo, North Dakota, secure the area near a fatal shooting of a police officer. The gunman, despite a criminal record, purchased a firearm after his gun rights were restored by a state law. [AP/Dave Kolpack]

Criminal Justice

The Complicated Collision of Criminal Justice Reform and Gun Rights

Ideological lines get tangled when reforming the system means people once barred from owning firearms can get them back.

On a frigid winter night in 2016, a boy in Fargo, North Dakota, called the police to tell them that his father had fired a pellet gun at his mother.

When officers arrived a few minutes later, the man, Marcus Schumacher, aimed a rifle out the window and pulled the trigger. He struck Officer Jason Moszer, a father of two, and Moszer died the next day.

It was not the first time Marcus Schumacher had killed someone with a gun. More than two decades earlier, he was convicted of negligent homicide after he shot two men who had approached his car window. One died, the other survived, and Schumacher served four years in prison. But 10 years after his release, Schumacher’s gun rights were restored. That’s because of a state law that automatically resets an individual’s gun rights a decade after he finishes serving his sentence.

While the North Dakota law has been on the books since 2011, laws that restore gun rights to people who lost them after criminal convictions have passed in several states more recently. In most cases, they are connected to legislation aimed at giving people with criminal records a second chance at life. The politicians who have drafted these laws want to make it easier for people with criminal records to vote, find stable housing, and find work. Sometimes, the laws also make it possible for those people to buy a gun.

“These new laws are intended to help people who have had an adverse encounter with the justice system get back on their feet,”  said attorney Margaret Love, executive director of the Collateral Consequences Resource Center and an expert on rights restoration.

Love, whose organization maintains a database of state and federal laws governing rights restoration, said that, last year, states enacted 61 separate laws aimed at some type of rights restoration. This year, more than 100 such laws have already either been passed or are awaiting a governor’s signature. Some laws include a path to firearms rights restoration, like one that passed this year in Arizona that allows nonviolent offenders to get their gun rights back when they complete their sentence, and allows violent offenders to petition a judge for their gun rights after a waiting period. Another law enacted in 2019 in Arkansas allows some low-level offenders whose convictions were sealed or expunged to regain concealed handgun privileges, Love said. 

Other laws aimed at rights restoration clearly exclude gun rights. Many are difficult to interpret where gun rights are concerned, and may end up being hashed out in the courts, Love said.

While people across the political spectrum have embraced the idea of rights restoration — at least for people who demonstrate they have rehabilitated themselves after criminal convictions — this wave of criminal justice reform presents a challenge for those seeking to constrain gun violence. In 2011, The New York Times examined hundreds of restoration cases in several states, and found examples in which people with violent criminal histories committed new gun crimes with the weapons that they had gotten permission to possess.

Some advocates say offenders’ needs are being put ahead of victims’.

“We’re seeing a wave of pro-offender agenda,” said Jessica Eskeland, a public policy specialist with the New Hampshire Coalition Against Domestic & Sexual Violence. “It’s laudable that they are getting help rebuilding their lives, but there is a problem when the line becomes blurred between people who have committed low-level nonviolent offenses, and people who have committed crimes against people.”

The push to restore rights has muddied the ideological lines around gun rights restoration in recent years. In the earlier part of this decade, Second Amendment groups like the National Rifle Association were the most prominent public backers of gun rights restoration legislation across the country. Today, in some cases, bills that restore gun rights are being backed by social justice organizations. This spring, a debate over clearing criminal records pitted the New Hampshire ACLU against the New Hampshire Coalition Against Domestic & Sexual Violence, where Eskeland works. An early version of a bill introduced in the state Legislature would have made individuals convicted of domestic violence and sexual assault eligible for rights restoration — including their gun rights. After Eskeland and other victims’ advocates said the law put the public at risk, it was sent back to committee, where it remains.

In 2017, it was liberal U.S. Supreme Court Justices Ruth Bader Ginsburg and Sonia Sotomayor who wanted to hear the case of two people with nonviolent misdemeanor convictions petitioning to regain their gun rights. The court majority sided with a gun violence prevention advocacy group when they chose not to hear the case.

Under federal law, anyone convicted of a felony or misdemeanor domestic violence crime permanently loses his right to possess a firearm unless he receives a federal pardon, or his civil and gun rights are restored by the state where he was convicted.

Laws governing gun rights restoration in the 50 states and Washington, D.C., are like “51 Petri dishes,” said S. David Mitchell, a law professor at the University of Missouri who studies the criminal justice system through a sociological lens. “You end up with a lot of different stuff growing.”

Under some state laws, people can have their records expunged or sealed. Often, this means that a person has a right to stay mum if they are asked about their criminal history on a housing or employment form. In some states, people must apply to a board to have their rights restored. In others, like North Dakota, where the man who killed Officer Mozner lived, people’s rights are restored automatically after a set period of time.

Rights restoration is an important part of someone’s journey back to mainstream society after a criminal conviction, said Pastor Michael McBride, the head the LIVE FREE Campaign, a faith-based initiative that seeks solutions to gun violence and the mass incarceration of young people of color.  

McBride said people he works with care about getting jobs, voting rights, federal college tuition grants, housing, and visits with their children. He said few of them are concerned about their ability to buy guns. “The gun culture within black culture is very different,” he said. “Unless people are living in rural parts of the south, they usually don’t have guns for sport. Guns have been such a source of death and annihilation in our community that I don’t think many of us are advocates for more people to have guns.”

For some, regaining one’s gun rights can be an important part of reintegrating into society. Nicholas Leverson, an attorney who represents people who want to regain their gun rights in Eagan, Minnesota, said a person prohibited from possessing guns in Minnesota can easily find himself barred from important social events — and having to explain that the prohibition is tried to an old conviction. “It’s not unusual that a work function would take place at a firing range, and a person who lost gun rights would not be able to attend,” Leverson said, explaining that it is legally risky for a person prohibited from possessing guns to be close to them, even if he doesn’t own or handle them directly. Similarly, a person with an old conviction might not be able to take his child to a gun safety event or a hunting camp without risking a mandatory 60 months in prison. “For some people, it’s the last box they need to check to feel whole,” he said.

Sonja Starr, a University of Michigan Law School professor who studies the collateral consequences of criminal convictions, said the public has little to fear when gun rights are restored. In most places, she said, the process is arduous, and the small fraction of people who bother to fill out paperwork, hire a lawyer, or appear before a judge are unlikely to commit another crime. In her state, she studied people eligible to have their rights restored and found that only about 6.5 percent went  through the required legal process within five years of becoming eligible. Her research showed that those people were less likely to commit a crime than the general population.

In some cases, taking gun rights away from large numbers of people can actually fuel the illegal gun market, said Kyleanne Hunter, the vice president of programs at the Brady Center to Prevent Gun Violence. She said her organization supports restoring gun rights to some people with nonviolent convictions, because it increases the number of people who are going through background checks and buying guns legally. What’s more, advocates for domestic violence victims point out that some victims are also technically offenders. Complicated police calls and counter accusations by their abusers can generate criminal records. For those people, a clean slate can be crucial.

Some domestic violence and gun violence prevention advocates say gun rights should never be given back to a once-violent person. Or at least, decisions should not be automatic, but carefully weighed by a judge. They say lawmakers should keep gun rights restoration at the forefront of their minds as they debate so-called second-chance bills, and also keep a careful eye on individual cases as they move up through the trial courts.

Ruth Glenn, the president of the National Coalition Against Domestic Violence, said there are some cases where the line seems quite clear. “If someone has used a firearm to cause harm to another human being, I don’t feel comfortable that they should ever have possession of that weapon again,” she said.