The Department of Justice (DOJ) released a new plan to eventually create a process for restoring the gun rights of former convicts who meet an as-yet-undetermined standard.
On Wednesday, the DOJ posted an unpublished version of an interim final rule (IFR) that would rescind the delegation rights restoration from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). That power would transfer directly back to Attorney General Pam Bondi until she decided how best to outline a new process. In the IFR, Bondi claimed the move is necessary because Congress blocked funding for the ATF’s restoration process in the early 1990s and it has laid dormant ever since.
“ATF, which currently has regulatory authority to act on applications made under 18 U.S.C. 925(c), has been forbidden from utilizing any of its appropriated funds for staffing to process requests by individuals for over 30 years,” Bondi wrote in the IFR. “Although the specific contours of any new approach to the implementation of 18 U.S.C. 925(c) may be refined through future rulemaking, the Attorney General has determined, in an exercise of her discretion under the HSA and 28 U.S.C. 509–510, that the appropriate first step is to withdraw the delegation to ATF to administer section 925(c) and withdraw the moribund regulations governing individual applications to ATF for 18 U.S.C. 925(c) relief”
The rule is the first concrete result of the executive branch gun policy review President Donald Trump ordered in early February. It could help ease concerns among some gun-rights activists about the delay in delivering promised reforms. However, like Trump’s order, the rule does not implement any final changes. Instead, it promises to create a process for gun-rights restoration at some point down the line.
“Revising 28 CFR 0.130 and removing 27 CFR 478.144 further provides the Department a clean slate on which to build a new approach to implementing 18 U.S.C. 925(c) without the baggage of no-longer-necessary procedures—e.g., a requirement to file an application ‘in triplicate,’ 27 CFR 478.144(b),” Bondi wrote. “With such a clean slate, the Department anticipates future actions, including rulemaking consistent with applicable law, to give full effect to 18 U.S.C. 925(c) while simultaneously ensuring that violent or dangerous individuals remain disabled from lawfully acquiring firearms.”
Bondi said she would not immediately delegate the restoration authority to a new agency. However, she promised the DOJ would produce recommendations to Congress for how to best fund a gun-rights restoration process.
“The Department respects congressional appropriations prerogatives, and it expects its forthcoming plan under Executive Order 14206 to include legislative proposals to modify or rescind the rider,” she said. “It is also undertaking a broader examination of how to address the drain on resources that caused Congress to impose the rider in the first instance, including by addressing any potential inefficiencies in the regulatory process created by 26 CFR 178.144.”
Federal law bars anyone with a felony or domestic violence misdemeanor conviction or a disqualifying mental health record from possessing guns or ammo. Bondi did not offer specific criteria for how those prohibited from owning firearms under federal law could petition to restore their rights. However, she did say the decision would be “based on a combination of the nature of their past criminal activity and their subsequent and current law-abiding behavior.”
“The Department simultaneously recognizes that no constitutional right is limitless; consequently, it also supports existing laws that ensure, for example, that violent and dangerous persons remain disabled from lawfully acquiring firearms,” Bondi said.
The plan to restore the gun rights of some convicts, especially non-violent felons, has been a long-term fight for gun-rights activists. Since the Supreme Court handed down a new standard for reviewing modern gun laws in New York State Rifle and Pistol Association v. Bruen, non-violent felons have won a series of lower-court victories against what has amounted to a lifetime ban on gun ownership. Bryan Range, a Pennsylvania man who lost his gun rights for lying on a food stamp application in the 1990s, has become one of the most closely-watched plaintiffs backed by gun-rights groups as he’s taken his fight to get his gun rights back all the way up to the Supreme Court multiple times.
However, the Trump Administration’s push for gun-rights restoration caused a new controversy at the DOJ last week. Elizabeth G. Oyer, a former DOJ pardon attorney, told The New York Times she was fired after refusing to recommend actor and Trump-booster Mel Gibson have his gun rights restored despite a domestic violence misdemeanor. Oyer claimed DOJ leadership tasked her with recommending former offenders for rights restoration. She said she delivered 95 candidates, but after they selected nine candidates, a member of leadership told her to recommend Gibson as well.
“He then essentially explained to me that Mel Gibson has a personal relationship with President Trump and that should be sufficient basis for me to make a recommendation and that I would be wise to make the recommendation,” Oyer told The Times.
She said she refused to do so because she believes those with a record of domestic violence should not own guns.
“Giving guns back to domestic abusers is a serious matter that, in my view, is not something that I could recommend lightly, because there are real consequences that flow from people who have a history of domestic violence being in possession of firearms,” she told the publication.
Oyer said she also noted Attorney General Bondi did not need her recommendation to restore Gibson’s gun rights, but she claimed her refusal to do so was the motivation for her firing. A DOJ official anonymously disputed the claim and told The Times Oyer was not fired over the Gibson request.
Additionally, Oyer described a fight over what the gun-rights restoration process should look like moving forward. She advocated for using a case-by-case approach, while others at DOJ argued for a more “automated” process that looked at how long it had been since the prohibiting offense and excluded those convicted of murder or armed robbery.
Bondi asserted in the IFR that the move does not require an up-front notice and commence period before going into effect.
“Removing effectively defunct regulations addressing how the Attorney General’s statutory authority will be exercised does not adversely affect members of the public and involves an agency management decision that is exempt from the notice-and-comment rulemaking procedures of the Administrative Procedure Act,” she said.
So, the IFR, which DOJ plans to publish on Thursday, will go into effect immediately. However, it still provides a 90-day post-publication public comment period.
“Due to the significance of the removal of firearms disabilities process, it is also providing the public with opportunity for post-promulgation comment before the Department issues a final rule on these matters,” Bondi wrote. “Providing such an opportunity is not, however, committing the Department to waive its exemption from the APA’s notice-and-comment process in this or future rulemakings regarding the removal of firearms disabilities under section 925(c).”
