Expert: Robert P. Firriolo - 10/7/2009

Question
QUESTION: I recently tried to buy a shotgun at walmart here in MN. I was denied a firearms transfer. I have a disorderly conduct conviction due to an arguement with an ex-girlfriend at our home. Initially I was charged with Domestic assault. I was not convicted with that only the disorderly conduct. This took place in 2000, it is now 2009. I also have an obstruct legal process in 1998 which was a misdemeanor. Is that reason enough to deny purchase of a shotgun for hunting? Also I bought a muzzleloader a few years back with no issue. Thank you.

ANSWER: Most muzzleloaders are not considered firearms under federal law, and no NICS check is required if it is not considered a firearm. The "obstruct legal process" misdemeanor should not bar you from possessing or acquiring firearms under federal law unless it somehow involved domestic violence.

However, the disorderly conduct charge potentially can make you a prohibited person, because it involved a domestic incident. Being convicted of a misdemeanor where domestic violence was an element makes one a prohibited person. Under a recent Supreme Court decision, it does not matter whether the statute that one was convicted of has domestic violence as an element. All that matters is whether the conviction was based on a crime that involved domestic violence.

If you believe that your disorderly conduct plea did not involve domestic violence, or that there is some other error in your records resulting in the NICS denial, you can contact the NICS Appeal Services Team and request an appeal of the denial. See here for details on doing this: http://www.fbi.gov/hq/cjisd/nics/nicsappeals.htm

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QUESTION: Ok. If the element of domestic violence was in there. Does that mean that I cannot purchase a firearm permanently? Or is there a timeframe after conviction that I can have my right to purchase reinstated?

Answer
Somebody convicted of a domestic violence misdemeanor is permanently prohibited from possessing firearms or ammunition unless 1) the conviction is expunged, 2) the person is pardoned, or 3) the person has had his civil rights restored.

18 USC sec. 921(a)(33) defines "misdemeanor crime of domestic violence." That definition contains the following exception to such a crime:

(B)(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

Assuming that your conviction was in MN, you will have to consult the local authorities there or a local attorney regarding how to have your civil rights restored.