Our Legislature Wants to Make it Easier for Convicted Violent Felons to Get Their Gun Rights Back

Yes, you read that right.

Here’s the official summary of SB 1613/ HB 1565:

Present law provides 10 defenses that a defendant may assert when charged with illegal possession of a weapon; provided, that the defenses are not available to a person who unlawfully possesses a firearm and has been convicted of either a felony involving the use or attempted use of force, violence, or a deadly weapon or a felony drug offense. This bill makes the defenses available to a person who unlawfully possesses a firearm and has been convicted of either a felony involving the use or attempted use of force, violence, or a deadly weapon or a felony drug offense if the felony conviction was expunged or the person’s citizenship rights were restored under the laws of Tennessee, another state, or the United States.

OK, so maybe that’s not so bad?  Think again.  Here’s our legal analysis of exactly what the bill is about (yes, it’s a technical, kind of complicated subject but the analysis should be pretty clear):

Overview and Background Regarding HB1565/SB1613

Currently, the law in Tennessee states that it is unlawful to possess a firearm if you have been convicted of a felony using or attempting to use force, violence or a deadly weapon; or a felony drug offense.  39-17-1307  Tennessee Code 39-17-1308, provides 10 defenses to a possession charge, but these defenses are not available to individuals convicted of the above felonies.

SB 1613 would make these defenses available to those exempted individuals if their felonies have been expunged, or they have their citizenship rights restored.  Currently, these particular felonies cannot be expunged under Tennessee law, so the focus on the bill is clearly on individuals who, despite having these violent felonies, have had their rights restored.

Restoration of citizenship rights are governed by Tennessee Code sections 40-29-101 to 106  and can be summarized as follows:

Felony Convictions Between July 1, 1986 and July 1, 1996

  • Citizenship rights may be restored upon receiving a pardon (except where the pardon contains special conditions pertaining to the right of suffrage); service or expiration of the maximum sentence; or being granted final release from incarceration or supervision by the board of parole or county correction authority.  40-29-105(b) (1)
  • Individuals convicted of first degree murder, aggravated rape, treason or voter fraud during this time shall never be elligible to register and vote in this state.  40-29-105 (b)(2)

Felony Convictions After July 1, 1996

  • Individual may petition the the circuit court of the county where the petitioner resides, or where the conviction occurred to have his or her citizenship rights restored immediately upon receiving a pardon or upon the expiration of the maximum sentence imposed by the court.  40-29-105 (c)(1) and (2)
  • Individuals convicted of murder, rape, treason or voter fraud shall never be eligible to register and vote in this state 40-29-105 (c)(2)(B)
  • The petition shall set for the bases for the petitioner’s eligibility for restoration and shall state the reasons the petitioner believes that petitioner’s full citizenship rights should be restored. 40-29-105(c)(3)
  • The petition shall be accompanied by the certified records, statements and other documents or information necessary to demonstrate to the court that the petitioner is eligible for and merits have full citizenship restored.  THe court may require additional proof as it deems necessary. 40-29-105(c)(3)
  • There is a presumption that a petition filed pursuant to this subsection shall be granted and that the full citizenship rights of the petitioner shall be restored.  This presumption may only be overcome upon proof by a preponderance of the evidence that either the petitioners is not eligbible for restoration or there is otherwise good cause to deny the petition.”40-29-105(c)(3) (emphasis added)
  • At least 30 days prior to any hearing or disposition on a petition, the court shall notify in writing the district attorney generals of the county in which the petitioner resides and the county where the conviction occurred.  If the conviction was in federal court, notice shall be given to the United States attorney and district attorney general in whose district the petitioner is currently residing for federal convictions.  Each district general attorney may oppose the petition in person or in writing. 40-29-105(4)

This exact issue was litigated in 2002 in the State v. Johnson, where the Supreme Court of the State of Tennessee addressed the certified question: “After an individual has had his full rights of citizenship restored pursuant to Tenn.Code Ann. § 40-29-101, et seq., following a conviction of aggravated assault with a deadly weapon, can he be convicted of a violation of Tenn.Code Ann. § 39-17-1307(b)(1)(A), or is he allowed to possess a handgun?”  The answer was no.

In that case, Mr. Johnson was convicted, on June 29, 1989, of felony aggravated assault with a knife, which resulted in the loss of his citizenship rights.  Id., 79. S.W.3d at 524.  On May 12, 1999 Mr. Johnson successful had his citizenship rights restored.  Then, on February 4, 2000, a search warrant was executed at Mr. Johnson’s residence and marijuana, a rifle and a handgun were found.  Id. Mr. Johnson claimed, he could not be prosecuted for possession of the handgun in his own home because 39-17-1308 explicitly allowed such possession.  The Court of Criminal Appeals agreed but the Supreme Court reversed, holding, based on an analysis of the current statutes:

these statutory provisions demonstrate the legislature’s clear intent to prohibit convicted violent felons from possessing a handgun. We therefore hold that a person convicted of a felony involving the use or attempted use of force, violence, or a deadly weapon cannot possess a handgun, even where his or her citizenship rights have been restored pursuant to Tenn.Code Ann. § 40-29-101, et seq.

Id. at 528

Clearly, the current bill was drafted to override the Supreme Court decision in Johnson.  It seems fairly simple to have one’s citizenship rightsrestored.  Indeed, in some cases it is automatic, and where a petition is required, there is an explicit presumption will be granted.  This bill will therefore make it relatively easy for convicted violent felons to legally obtain firearms.  Given that the original legislation clearly considered and exempted these individuals from ever owning firearms, this bill seems ill conceived.

Some questions for consideration:

How does this proposed amendment benefit the citizens of Tennessee?

How does the existing legislation, banning a convicted felon from possessing a firearm, infringe on the rights of law-abiding citizens?

Why not restore voting rights to murderers then? Why withhold that constitutional right?

How many instances are citizenship rights restored? Do you think that will increase because of this amendment?

Will the standard change? Perhaps the presumption that rights are restored be removed?

How do you respond to what recently happened in North Dakota?

A similar bill was passed in North Dakota in 2011, allowing “an individual who is prohibited from possessing a firearm due to a conviction of a felony [to] petition the District Court where they live for a restoration of the individual’s firearm rights.”   This bill was then taken advantage of by Marcus Schumacher.  Mr. Schumacher was convicted of a felony for shooting and killing a man in 1988, but successfully petitioned to have his rights restored.  He then legally purchased a firearm, which he used last week to shoot and kill a police officer.

Members of the Senate Judiciary Committee:

Sen. Brian Kelsey 615-741-3036
7 LP

Sen. Doug Overbey 615-741-0981
306 WMB

Sen. Janice Bowling 615-741-6694
310 WMB

Sen. Mike Bell 615-741-1946
309 WMB

Sen. Todd Gardenhire 615-741-6682
11A LP

Sen. Lee Harris 615-741-1767
318 WMB

Sen. Sara Kyle 615-741-4167
305 WMB

Sen. Kerry Roberts 615-741-4499
321 WMB

Sen John Stevens 615-741-4576
302 WMB