Purchasing a firearm after your gun rights have been restored following a mental health adjudication

Confusing_DirectionsIn Virginia, there are a number of mental health adjudications that can lead to a prohibition on the right to purchase, possess, and transport firearms.

These include the following:

All four categories allow for a person thus impacted to petition the General District Court in the jurisdiction where they reside for restoration of their gun rights after they have recovered from the issue which gave rise to the adjudication.

If you have had your gun rights restored following one of the aforementioned mental health adjudications then you are able to once again legally purchase firearms, both in private transactions and from a licensed dealer.

However, there is a question on the ATF Form 4473 which you must answer correctly or your purchase will be denied.

When completing this form, question 11f asks “Have you ever been adjudicated mentally defective (which includes a determination by a court, board, commission, or other lawful authority that you are a danger to yourself or to others or are incompetent to manage your own affairs) OR have you ever been committed to a mental institution?

4473-11f

Your initial inclination would be to answer ‘Yes’ since this is truthful answer to the question presented. But that is not what you should do.

The question goes on to suggest that you see the attached instructions. There we find that there are exceptions.  However, on the current version of the 4473, none of the enumerated exceptions would apply to those who have had their rights restored at the state level.

2012-11f-Exception

This is a perplexing and infuriating omission on the part of the ATF.  Under the NICS Improvement Act of 2007, when a state court grants a qualified relief petition, the adjudication or commitment that rendered the person ineligible to possess or acquire firearms is “deemed not to have occurred” for purposes of federal law (see § 105(b) of the NICS Improvement Act of 2007)

The ATF is currently working in a new version of the 4473 and they apparently noticed the omission because they have corrected the exception language in the as-of-yet unapproved version of the 4473.

2016-11f-Exception

But regardless of whether or not the exception is mentioned in the instructions, a person who has had his or her firearm rights restored by a qualified state process may answer ‘No’ to question 11f on the ATF form 4473 when applying to purchase a firearm.

However, to insure that there could never be a question about the honesty or intent of the applicant, I advise my clients to answer the question ‘No‘ and then put ‘Rights Restored‘ in the margin beside the question.

In Virginia, there is also a state form (SP65) which you will have to complete in addition to the ATF form 4473. Question 9 on the state form asks a similar question but erroneously does not list the exceptions. The Virginia State Police have asked that applicants answer ‘No’ to question 9 and then write ‘Rights Restored’ in the margin beside the question.

When I assist a client in getting their rights restored, I always send a copy of the court order to the Virginia State Police Firearms Transaction Center.  However, even if they have a copy of your restoration order, you may be delayed when attempting to make a purchase.

Even with your rights restored, you should know that you may be delayed when attempting to make a purchase.  In case there is ever any question, I would also strongly suggest carrying a copy of the restoration order with you both when you apply for, and when picking up, the firearm.

Finally, I want to reiterate that, while this restoration removes both your federal and Virginia disabilities, it does not necessarily remove the prohibitions in any other state. Before possessing a firearm in any state other than Virginia you should consult with an attorney licensed to practice law in that state to determine whether that state has a prohibition that would apply to your situation, whether that state recognizes gun rights restoration proceedings from other states and, if so, whether Virginia’s process meets their requirements.


Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer is specific to Virginia.

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