Last Monday, NRA-ILA (ILA) filed comments in response to a proposed rulemaking by the U.S. Department of Justice (DOJ) to revive the government’s “relief from disabilities” program for people categorically prohibited from acquiring or possessing firearms. The program would allow those convicted of certain offenses or otherwise federally disabled from exercising their Second Amendment rights to petition the Office of the Pardon Attorney at DOJ to have those disabilities removed.
This relief has long been authorized by federal statute, but administration of the program – which had formerly been delegated to ATF – has been defunded by appropriation riders since 1992. The Trump administration revived the program earlier this year by formally withdrawing delegation of the program to ATF, the only agency affected by the rider’s language. Since then, the Office of the Pardon Attorney has been tasked with reviewing applications. The latest rulemaking concerned standards and procedures by which application would be reviewed.
ILA’s comments expressed strong support for revival of the program, while offering suggestions for improving DOJ’s proposal.
First, ILA pointed out several features of the proposal that were not authorized by the underlying statute,18 U.S.C. § 925(c). These included effectively carving out broad categories of ineligibility through presumptions of denial; imposing a variable fee; and granting the attorney general (AG) authority to revoke relief retroactively. ILA explained how all these mechanisms could be abused by later anti-gun administrations and compared them to abuses already happening with post-Bruen concealed carry licensing regimes in former may-issue jurisdictions.
ILA’s comments also took issue with the breadth of the proposal’s presumptive bases of denial, explaining that the Supreme Court in U.S. v. Rahimi (2024) relied on a judicial finding of dangerousness in validating a temporary restriction on Second Amendment rights. Many of the disqualifying offenses in the proposal, on the other hand, involved non-violent or even victimless crimes. This was especially true to the degree they incorporated non-person violations of the Gun Control Act or even broader state gun control laws, some of which were passed to bully or intimidate people out of exercising their rights or in protest of the Court’s own Second Amendment jurisprudence.
The comments further explained how the proposal’s authors had relied on the same anti-gun advocacy pieces by the Violence Policy Center and its director, Josh Sugarmann, as had anti-gun members of Congress in defunding relief in the first place. As the comments detailed, this was not the work of disinterested social scientists but lobbying efforts by firearm prohibition activists. Even at that, their findings in some cases actually illustrated the over breadth of the current federal prohibitors in reaching non-violent offenses and indicated that those who were granted relief did not violently reoffend at high levels.
On the subject of public safety, ILA made clear NRA’s support for vigorous enforcement of existing laws against dangerous criminals, who should be incapacitated in prison, not merely subjected to symbolic gun control which most of them readily ignore. At the same time, however, ILA argued that convictions for non-violent crimes, especially if they were remote in time and not followed by recidivism, did not create a presumption strong enough to overcome the Second Amendment itself. Moreover, as ILA explained, DOJ has ample discretion under the statute to deny relief in appropriate cases, even without the unauthorized presumptions.
ILA further pointed out ways in which the proposal’s considerable administrative burdens mirror the terms of overreaching concealed carry licensing regimes and could inhibit or prevent applications even by eligible individuals. Besides the uncapped fee, these included open-ended requirements for information from the AG; “character references” that required the reference to swear under penalties of perjury to complicated legal and factual matters; in some cases, certifications by medical professionals for which there are no medical standards; and redundant background checks by both the petitioner and the government.
The comments additionally noted that Congress, with the Bipartisan Safer Communities Act of 2022, created a presumption of relief from disabilities for certain prohibited domestic violence misdemeanants by capping the period of disability at five years. Thus, ILA argued, it would be “at least as reasonable for DOJ, in administering its [relief] authority … to similarly create presumptions of restoration in the absence of derogatory events or information following a formerly disqualifying conviction or other circumstance.”
Finally, ILA suggested that the final rule should require updating of the NICS database upon the granting of relief and establish time limits for action on applications so they do not languish unnecessarily, as concealed carry license applications do in various anti-gun jurisdictions.
Overall, while NRA-ILA believes DOJ’s proposal can and should be improved, it is encouraged to see progress on this important initiative, which ensures the Second Amendment is not treated as a second-class right. We look forward to the publication of DOJ’s final rule and commend its attention to the many comments the agency received from pro-freedom Americans.
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