Court: Freed Felons Still Face Gun Restrictions

The decision affects freed felons across the state who believed their gun rights had been restored

By Dillon Tabish

MISSOULA — Freed Montana felons can’t possess any firearms if they don’t qualify for a concealed-weapons permit, even though the state’s Constitution restores the civil rights of offenders who have served their time, a federal appellate court panel ruled.

The July 16 ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals came in the case of convicted rapist Frank Van der hule, who was denied the purchase of a gun in 2003 after completing a 25-year prison sentence in 1996.

The decision affects freed felons across the state who believed their gun rights had been restored after they completed their prison sentences and probation, a defense attorney told the Missoulian, which first reported on the decision.

“I think when a felon completes their sentence and their rights are fully restored, then they have earned that privilege,” Missoula attorney Lance Jasper said. “That’s the way the Constitution was written.”

The Montana Constitution restores the right of gun ownership and possession to offenders after their sentences have expired and they are no longer under the state’s supervision. But a separate state law says sheriffs “may” deny a concealed-weapons permit if an offender had a prison sentence greater than a year or was convicted of a violent or sexual crime.

The 9th Circuit asked the Montana Supreme Court for a clarification of that law, and the state court ruled in 2009 that Montana sheriffs are prohibited from issuing a concealed-weapons permit to anybody who fits that description.

The federal panel said that limitation on the concealed-weapons permit triggers a federal ban on firearms possession. Federal law recognizes the restored civil rights of felons unless it comes with conditions that restrict the person from shipping, transporting, possessing or receiving firearms.

The concealed-weapons permit ban triggered that “unless” clause, the 9th Circuit ruling said.

“In one sense Montana does not restrict Van der hule from possessing any firearms,” the opinion said. “Montana does, however, restrict the way in which Van der hule can possess such firearms.

“Although Montana has enacted only a time, place, or manner restriction on Van der hule’s possession of handguns, Congress has adopted ‘a single, national, protective policy, broader than required by state law,'” it added.

Missoula gun dealer and former police officer Rich Ocshner told the Missoulian he will abide by the ruling, and that he already doesn’t sell guns to violent criminals. But, he said, he is worried about the effect of the ruling on people who have been convicted of nonviolent felonies.

“If it’s a felony DUI, should that person be a restricted person because they are driving drunk?” he asked.

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