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2008 U. Ill. L. Rev. 1045 (2008)
Firearm Owners' Protection Act and the Restoration of Felons' Right to Possess Firearms: Congressional Intent versus Notice

handle is hein.journals/unilllr2008 and id is 1051 raw text is: THE FIREARM OWNERS' PROTECTION ACT AND THE RESTORATION OF FELONS' RIGHT TO POSSESS FIREARMS: CONGRESSIONAL INTENT VERSUS NOTICE DANIEL BRENNER* Many federal and state statutes affect individuals' right to keep and bear arms as guaranteed by the Second Amendment of the United States Constitution. In particular, the Firearm Owners Protec- tion Act (FOPA ) prohibits felons from possessing, receiving, ship- ping, or transporting firearms or ammunition in interstate or foreign commerce. FOPA does not apply, however, to individuals who have received pardons or a restoration of their civil rights. It also exempts felons whose convictions have been expunged or set aside. These ex- ceptions apply as long as such pardon, expungement, or restoration of civil rights fails to expressly provide that the individual may not ship, possess, or receive firearms or ammunition. Although commentators do not significantly dispute FOPA's broad restriction on felons' Second Amendment right to keep and bear arms, FOPA's other provisions have given rise to a federal cir- cuit court split regarding whether a pardon, expungement, or restora- tion reinstates the entirety of a former felon's civil rights when an ap- plicable state law provides that felons may not possess firearms or ammunition. The author begins by outlining the background of the Second Amendment, FOPA's statutory precursors, and FOPA's ba- sic framework for restoring a former felon's firearm privileges. Next, the author uses these concepts to analyze two inconsistencies in circuit courts' application of FOPA: (1) the effect of a state's reinstatement of a former felon's civil rights by certificate or other document when the state otherwise forbids the felon from possessing firearms (the active restoration split), and (2) the implications of a state's provi- sion for automatic reinstatement of a former felon's civil rights when the state also prohibits felons from possessing firearms (the passive restoration split). The author then scrutinizes whether and at what point courts should invoke the rule of lenity used in statutory con- struction to resolve these issues. After concluding that a singular em- * J.D. Candidate 2008, University of Illinois College of Law. B.A. 2005, University of Texas at Austin. Special thanks to Professor Andrew Leipold for his guidance at the early stages of this pro- ject. I would also like to sincerely thank Emily Watson Harring, Rob Beard, and all of the other mem- bers and editors of the University of Illinois Law Review for their hard work and dedication. Last, to my grandfather, whose memory continues to inspire and motivate me in all that I do. 1045

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