Question: I plead guilty to disorderly conduct (domestic violence) in 2005 and was given 36 months unsupervised probation. One year after my probation ended I requested the judgment be dismissed and set-aside, which the court and Judge agreed and issued a dismissal. Can I now legally own a weapon and apply for my CCW which was surrendered in 2005?
Answer: Unfortunately, the answer is “no”. Here is the issue. Under the Domestic Violence Gun Ban Act passed by Congress in 1996, a person that has been convicted of a domestic violence offense cannot legally possess a firearm or ammunition. In order to restore a person’s right to own a firearm under this law, the state court must “set-aside” or “expunged” the conviction and explicitly restore the person’s right to own a firearm.
Unfortunately, while a process exists to do this for person’s convicted of a felony offense whose convictions have been “set aside” or “expunged”, a similar process does not exist for persons convicted of a misdemeanor crime in Arizona. When the Arizona legislature wrote the law relating to setting aside misdemeanor convictions, the Domestic Violence Gun Ban Act did not exist. The Arizona legislature did not anticipate the passage of a federal law that would narrowly define the process of setting aside misdemeanor convictions. Since all other misdemeanors besides a domestic violence conviction do not result in the loss of gun ownership rights, there was no provision made in the law to restore the right to own a firearm when setting aside a misdemeanor conviction.
Therefore in Arizona and numerous other states, there is a “Catch 22″. There is no mechanism to restore firearm rights when setting aside a misdemeanor conviction and the federal law in question requires that states explicitly restore the right to own a firearm when setting aside a misdemeanor conviction for domestic violence in order for the federal law not to apply.
To summarize, a convicted felon can have their case set-aside or expunged, have their right to own a firearm restore and then can buy a gun or get an Arizona CCW permit. However, someone who has been convicted of a misdemeanor domestic violence offense has lost their right to own a firearm or get an AZ CCW permit forever, even if the charge has been set-aside or expunged. Fair? No, not at all. But then laws are not always fair, are they? The solution? Contact your Arizona legislator and ask them to fix this law.
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