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COA: Virginia petition process doesn’t restore Wisconsin gun rights

James P. Moran v. Wisconsin Department of Justice, 2018AP563, 6/11/2019, District 3 (recommended for publication); case activity (including briefs)

James Moran was convicted of a felony in Virginia. That state has a procedure by which a person can petition to have his or her right to own a gun restored, and Moran’s petition was successful. So he can buy a gun there. Can he buy one here?

No. The DOJ denied his application to purchase one, and the Court of Appeals agrees with the circuit court that it was correct to do so.

This is a civil suit, but it’s relevant to criminal law because the statute governing applications to purchase a gun, Wis. Stat. § 175.35(2)(g), denies them to those whose ownership would be a crime under Wis. Stat. § 941.29(5).

The simple reason Moran is out of luck is that Wis. Stat. § 941.29(5) provides only two exceptions to the prohibition on a felon’s possession: a pardon, or the restoration of rights by the U.S. Attorney General under 18 USC 925 (c). Virginia’s procedure isn’t a pardon, and it’s not the federal government, so no dice.

But it’s actually more complicated than that. For one thing, for the last quarter-century, Congress has not permitted the Attorney General to restore anyone’s rights under 18 USC 925 (c). (¶19). So that statutory route is, for now, dead letter.

Meanwhile, the other provision of the statute, permitting gun possession where there’s been a pardon, actually has a second requirement: the possession must be authorized under 18 USC app. 1203. A slight problem: there is no 18 USC app. 1203. There hasn’t been one since 1986, when Congress repealed it. (¶17). What it provided, when it did exist, was that a person was exempt from the federal bar on possession if he or she had been pardoned and the pardon expressly restored gun rights. Congress has since flipped the presumption: a pardon is presumed to restore gun rights unless it expressly declines to. But, that’s in another federal statute, not the one Wisconsin’s law refers to.

Our state’s attorney general opined back in 1989 that the result is that a pardon alone is good enough under Wisconsin law. 78 Wis. Op. Att’y Gen at 25. But, says the court of appeals, Virginia didn’t pardon Moran–it restored his right to a firearm, a proceeding authorized by a different portion of the Virginia Constitution than the one that authorizes pardons. (¶¶33-39). So, the Wisconsin statute doesn’t exempt Moran from the general prohibition on felons owning firearms.

The court goes on to determine that this prohibition doesn’t violate the Full Faith and Credit Clause of the federal Constitution, the Second Amendment, or the Wisconsin Constitution’s protection of the right to bear arms. (¶¶43-51)

 

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