Federal Law Permits the AG To Restore Gun Rights. But Congress Has Refused To Fund This Role Since 1993

December 29th, 2016

18 U.S.C. s. 925 provides that the Attorney General has discretion to relieve individuals from any disability imposed by federal firearm prohibitions.

(c) A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Attorney General 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.

However, since 1993, Congress has refused to fund the Bureau of Alcohol, Tobacco, and Firearms from providing such relief. The Congressional Research Service offered this analysis (pp. 21-22):

For FY1993 and every year thereafter, Congress included a proviso in the ATF S&E appropriations language that prevents that agency from using appropriations to consider applications for disabilities relief (i.e., reinstatement of an applicant’s right to gun ownership) from individuals who are otherwise ineligible to be transferred a firearm.61 In the 102nd Congress, House report language (H.R. 5488; H.Rept. 102-618) included the following justification: “the Committee believes that the $3.75 million and the 40 man-years annually spent investigating and acting upon these applications for relief would be better utilized by ATF in fighting violent crime.” Senate and Conference report language were silent on this issue. The language of this proviso is as follows:

Provided further, That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c).

For FY2015, this proviso was included in the Consolidated and Further Continuing Appropriations Act, 2015 (P.L. 113-235). For FY2016, the Senate Committee on Appropriations included identical language in its reported CJS appropriations bill (H.R. 2578, as amended). The House-passed version of H.R. 2578, however, reflected a floor amendment (H.Amdt. 302) that would have required ATF to process disability relief applications for individuals. The Consolidated Appropriations Act, 2016 (P.L. 114-113), however, did not include this amended provision. Instead, it included and maintained the appropriations limitation described above. Both the Senate and House FY2017 CJS Appropriations bills (S. 2837 and H.R. 5393) included identical provisions.

Judge Gibson (for whom I clerked) flagged this issue in a recent decision from the Western District of Pennsylvania.

Federal law does contain a provision, codified at 18 U.S.C. § 925(c), equivalent to Pennsylvania’s relief statute. Under § 925(c), a person prohibited from owning a firearm under federal law may apply to the Attorney General for relief. The ATF has promulgated a rule, 27 C.F.R. § 478.114, setting forth the procedures for such an application for relief. In practice, however, both 18 U.S.C. § 925(c) and 27 C.F.R. § 478.114 are meaningless; Congress has denied any funding “to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c).” Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, 128 Stat. 2130, 2187 (2015). Thus, 18 U.S.C. § 925(c) does not provide an actual avenue of relief.

Franklin v. Lynch, No. 3:16-CV-36, 2016 WL 6879265 (W.D. Pa. Nov. 21, 2016).

Why on earth would Congress expressly vest the AG with this discretion–which amounts to the restoration of a constitutional right–and then refuse to fund him from exercising it?

Even more perverse, because the AG lacks this discretion, the second part of 925(c)–providing for judicial review– becomes meaningless:

Any person whose application for relief from disabilities is denied by the Attorney General may file a petition with the United States district court for the district in which he resides for a judicial review of such denial. The court may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice. A licensed importer, licensed manufacturer, licensed dealer, or licensed collector conducting operations under this chapter, who makes application for relief from the disabilities incurred under this chapter, shall not be barred by such disability from further operations under his license pending final action on an application for relief filed pursuant to this section. Whenever the Attorney General grants relief to any person pursuant to this section he shall promptly publish in the Federal Register notice of such action, together with the reasons therefor.

The Supreme Court held, unanimously, in United States v. Bean that because the AG cannot take actions, district courts lack the authority to restore gun rights.

The absence of an actual denial by ATF of a felon’s petition precludes judicial review under § 925(c). The Secretary of the Treasury is authorized to grant relief from a firearms disability if certain preconditions are met, and an applicant may seek federal-court review if the Secretary denies his application. Ibid. Since 1992, however, the appropriations bar has prevented ATF, to which the Secretary has delegated this authority, from using appropriated funds to investigate or act upon the applications. Section 925(c)’s text and the procedure it lays out for seeking relief make clear that an actual decision by ATF on an application is a prerequisite for judicial review, and that mere inaction by ATF does not invest a district court with independent jurisdiction.

This should change.