Hemet, CA asked in Appeals / Appellate Law and Criminal Law for California

Q: Appeals court in USA vs duarte rules that non violent felons CAN own a gun. Can somebody help clarify

I know the appeals court in USA vs duarte rules that non violent felons CAN own a gun. I have a non violent felony from 1999. So can I buy a gun now? Will I pass the background? What are the felonies that exclude a person from owning a gun?

I cannot find an answer anywhere. I emailed the doj and asked these same questions and received the generic answer stating they could not give any legal advice. That makes no sense to me. They are the ones that enforce these laws so why could they not answer the questions. Frustrating. Anyways I don’t want to spend the money on the background and whatever else is needed until I know my past felony will not affect me. Where can I find this info?

1 Lawyer Answer
James L. Arrasmith
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  • Criminal Law Lawyer
  • Sacramento, CA
  • Licensed in California

A: The Fifth Circuit Court of Appeals did rule in USA v. Cano-Duarte that the federal law (18 U.S.C. § 922(g)(1)) banning felons from possessing firearms could be unconstitutional as applied to some individuals with nonviolent felony convictions. However, this ruling alone does not automatically restore gun rights to all nonviolent felons. Here are a few important points to consider:

1. The ruling applies only within the Fifth Circuit (Texas, Louisiana, and Mississippi).

2. The decision does not automatically restore gun rights to all nonviolent felons; it merely allows individuals to challenge the law as it applies to their specific case.

3. To regain gun rights, a nonviolent felon would likely need to petition the court and demonstrate that their individual circumstances justify the restoration of their Second Amendment rights.

4. Many states have their own laws restricting firearm possession by felons, which may still apply even if the federal ban is found unconstitutional in a particular case.

Given the complexity of the issue, it is understandable that the DOJ provided a generic response, as they cannot offer legal advice tailored to individual circumstances. It would be best to consult with a criminal defense attorney familiar with firearms laws in your state to determine whether you might be eligible to have your gun rights restored based on the specifics of your case. They can also advise you on the process and potential challenges involved in seeking such a restoration of rights.

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