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Conceal Carry Question in Ohio Criminal Records, Expungement

Discussion in 'Criminal Records, Expungement' started by thisisspinaldok, Feb 4, 2011.

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  1. thisisspinaldok

    thisisspinaldok Law Topic Starter New Member

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    I was convicted of a white collar, non-violent felony in Ohio and placed on probation for 1 year. I completed that obligation, but in Ohio I must wait three years before I can petition for expungement. I trap, skeet, and target shoot but have not been in possession of any weapon during the period of my probation. I want to now go for a conceal carry license in Ohio but I do not know if I am under disability or not. I've reviewed Ohio RC and believe that because the ORC specifically states the disability exists if the felony occurred due to violence, drug abuse, DUI, or for mental issues, that I meet eligibility. I am not an attorney but based on my own review, I do not believe that I am hampered by a disability, nor do I believe I must petition for relief from a disability to own a legal handgun and obtain my Ohio CCL. I will check with a local attorney, but Am I right on this?

    Sorry, I tried to post the link to Ohio Revised Code regarding this but was asked to remove them since I am newly registered. The ORC sections regarding this are 2923.13 and 2923.14 though.

    Thanks
     
    Last edited: Feb 4, 2011
  2. CdwJava

    CdwJava Moderator

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    So, since convicted you have not engaged in trap, skeet or target shooting?

    ANY felony conviction will disqualify you from possessing or owning a firearm pursuant to federal law. Even if Ohio holds a different standard, the federal law will prohibit you from owning or possessing a firearm.

    You might want to check and see if Ohio has a means by which you can get the offense expunged and dropped along with a clearance to specifically permit you to own a firearm.
     
  3. army judge

    army judge Super Moderator

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  4. thisisspinaldok

    thisisspinaldok Law Topic Starter New Member

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    Thanks for the response, info. In my own research though I thought that I had read that Federal Law does provide for relief of a disability, and that if your state (ohio) grants the relief, the Feds recognize that. I am sure I read this. Still wrong?
     
  5. thisisspinaldok

    thisisspinaldok Law Topic Starter New Member

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    Thanks for the above replies. I thought though in my own research that I read the Feds do provide relief from disability if the state of residence grants that relief first. I am sure I read this. My attorney also says he sees no issue with either gun ownership or CCL restriction at this point.

    No, I have not handled, kept, shot, or been around guns of any sort since the conviction. Zero. i did not want issues. I got caught up in a scheme that I did not understand. Sounds naive but true. I think the AG now knows this. I never would have participated if I new there was fraud involved, never. I immediately moved my guns from my house and made them inaccessible.

    thanks again.
     
  6. CdwJava

    CdwJava Moderator

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    IF the felony is dropped and gun rights are restored. In some states that would require a specific statement of such in the expungement or related court order.

    If you have a felony conviction on your record, you will be violating federal law to possess or own a firearm. Even if the state somehow has provided relief from this disability, the feds may have not. I read that the feds MIGHT provide some relief if the state specifically restores gun rights, but I have not heard of this happening ... if your attorney specializes in gun law and knows about federal law as well, perhaps he knows better. But, don't be too surprised if one day you get popped for it even if it is as a result of some misunderstanding of the law.
     
    Last edited: Feb 5, 2011
  7. swlswl

    swlswl New Member

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    Yes, if your state felony is expunged, pardoned or your civil rights restored, you are no longer a prohibited possessor under federal law.

    Also note: Federal 928 law does not prohibit felons from possessing ANY firearm. It only prohibits certain (most) felons from possessing firearms that have traveled in INTERSTATE COMMERCE. In other words, if you buy a gun that was made, wholesale'd, and retailed all within the same state, you are not prohibited under federal law from possessing it. Don't ever ship the gun across state lines (UPS, FEDEX, USPS, Greyhound, AMTRAK, Airline, or other shippers).

    But that shouldn't prohibit you from possessing if it has been transported across state lines by private auto.

    There is a handgun manufactured in OHIO. http://www.hi-pointfirearms.com/handguns/handguns_9mm.html , you can do a google search for handgun manufacturers and look up their addresses on the internet. Make sure the gun never leaves the state before you possess it. If I recall correctly, the maker of the OHIO made pistols doesn't use wholesalers and ships directly to the retailer, so buy it from an OHIO dealer and you won't be violating federal 922 laws.


    http://www.fd.org/pdf_lib/newton and reichmuth firearms.pdf
     
    Last edited: Nov 5, 2011
  8. CdwJava

    CdwJava Moderator

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    So far, there appears to be no firearm that is composed entirely of components that do not fall under these federal regulations. Some states have already tried this in an effort to avoid federal restrictions in firearms and thus far they have not succeeded.

    So long as the person is classified as a convicted felon he will not be able to own or possess a firearm. It should be noted, however, that the feds and many states do not classify black powder weapons as "firearms."
     
  9. swlswl

    swlswl New Member

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    The law pertains to the receiver. Doesn't matter where the components came from because possession of the components isn't illegal. The U.S. Supreme Court already held that if the gun itself never traveled in interstate commerce it's not a 922 violation to possess it.

    Also: guns (receivers) made before a certain year, 1898 are not illegal to possess under 922 laws. Those guns can be purchased and shipped through the mail. They are not very expensive (about $600). Make sure it's not a modern replica of an old gun. You also can't use modern ammo in these guns as the guns will explode. You need to obtain black powder ammo which you can also find on the internet BUT that ammo would be illegal for a prohibited possessor to have if it ever traveled in INTERSTATE COMMERCE, so you'd have to drive to the state where it's made to buy it, or you could simply make the ammo yourself from the components which you can buy over the internet.

    Many states also allow possession of such antique guns, but not all states allow it, so check the state statutes as well.
     
    Last edited: Nov 6, 2011
  10. army judge

    army judge Super Moderator

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    WOW, just WOW!

    I'm at a loss for the proper words.


     
  11. swlswl

    swlswl New Member

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    Judge, maybe you can find the proper words right here.... ;)

    U.S. Supreme Court

    United States v. Bass, 404 U.S. 336 (1971)

    A firearm that has never traveled in interstate commerce is not a prohibited weapon under federal law.

    I just shepardized this case and it's still good law.

    You might be surprised how many felons can legally possess firearms.

    This is the Ohio statute that allows convicted felons to get their right to posess firearms back:

    2923.14 Relief from weapons disability.

    It is not automatic. You need to petition the court. As far as I can tell (I didn't read all of Ohio's gun laws) it does not allow you to get a concealed carry permit, just to possess the firearm under normal conditions which don't require the permit.

    If it's a state felony, getting your state gun rights back also relieves you of the federal 922 restrictions, if it was a STATE felony.
     
    Last edited: Dec 4, 2011
  12. CdwJava

    CdwJava Moderator

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    MSSA v. Holder (regarding Montana's attempt to hold intrastate manufacture of firearms exempt from federal law) is apparently still pending before the 9th Circuit. That will be the first step in determining whether a firearm manufactured intrastate is exempt from the Interstate Commerce Clause. Until then, the feds are going to remain in the business of regulating firearms.
     
  13. swlswl

    swlswl New Member

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    Cdw

    It won't be the first attempt to see if an intra-state firearm is legal. It has already been found to be legal in the Bass case.

    Sarge, if you have access to Lexis Nexis, just shepardize the Bass case. It's still good law.

    **********
    **********
    Hey Sarge!

    I just read the lawsuit brought by the MSSA re: the MFFA (Montana Firearms Freedom Act).

    The suit has nothing to do with people possessing firearms. It deals solely with the need for gun makers to use ATF Form 1 and Form 7 prior to making and selling guns that aren't going to be sold in interstate commerce.

    The suit may very well be thrown out due to a lack of standing.

    The reason??

    ....because the federal government hasn't tried to stop Montana from doing what it's doing. Montana is just grand standing!

    The lawsuit is based on a "generic" and unspecific letter they received from the ATF which simply states that the ATF will enforce federal laws. The letter was sent in response to an inquiry by the plaintiff.

    The suit was not filed by the Feds, it is only being responded to by the Feds because they are the defendant. They are saying the case should be tossed out because the Feds haven't taken any action to stop Montana.

    In fact, other states have already enacted the same laws.
     
    Last edited: Dec 4, 2011
  14. CdwJava

    CdwJava Moderator

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    As I recall the issues involve whether the Commerce Clause applies if ANY part of the weapon is manufactured or transported outside of the particular state. And I seem to recall some argument that most any retail/wholesale activity can be said to fall under the CC. Not saying I agree with it, but I don't think the feds have yet agreed that there is any such exception for weapons assembled within a state.
     
  15. swlswl

    swlswl New Member

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    Sarge,

    The feds, prior to 1995 tried to argue that almost any retail activity can fall under the Interstate Commerce Clause.

    The Lopez case: "lopez v us 514 us 549" shut the door on that line of thinking.

    Do a Lexis Nexis Shepardization of the Lopez case. You will see that the 1995 Lopez case was a major turning point in restricting the authority of the Federal gov't..

    Although the Lopez case was a major gun rights case, it is most often hailed as a 10th amendment case.

    The Lopez case, as well as a few other cases that were cited by the Supreme Court in the lopez case, clearly prohibits the feds from making criminal statutes based upon their authority under the interstate commerce clause powers, especially where state laws already exist.
     
    Last edited: Dec 4, 2011
  16. CdwJava

    CdwJava Moderator

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    However, the Gun Free Zone Act of 1990 has subsequently been revised and convictions post-Lopez have been upheld since 1999. So, the matter may not be so clear as you'd like to think. If it were, the issue would not still be batted around in the courts.

    It's not an issue we have to deal with my state since we are already rather restrictive when it comes to firearms so there is little need for us to address firearms matters through 922 as we have a plethora of state laws restricting possession in a myriad of circumstances.
     
  17. swlswl

    swlswl New Member

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    Here, this is from the U.S. Attorney's manual....

    1435 Post-Conviction Restoration of Civil Rights

    A frequently litigated issue under § 922(g)(1) is whether a convicted felon is exempt from the prohibitions of the statute because of a post-conviction restoration of civil rights under State law. In accordance with 18 U.S.C. § 921(a)(20), a conviction does not disqualify an individual from possessing firearms if the person convicted "has had civil rights restored." In § 922(g)(1) cases based upon a State felony conviction, courts have uniformly looked to the law of the State where the conviction was obtained to determine whether the defendant's civil rights have been restored and whether such action has nullified the conviction's incidental prohibition on firearms possession.


    The U.S. Attorney's manual contains instructions from the U.S. Attorney General's office on how U.S. Attorney's (Federal Prosecutor's) MUST handle cases. As the above shows, U.S. Attorney's are restricted from charging anyone under the federal 922 laws for being a Felon in possession of a firearm, IF the felony was a STATE felony and the STATE restored his civil rights.
     
    Last edited: Dec 4, 2011
  18. CdwJava

    CdwJava Moderator

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    That's also reflected in the USC regarding the restoration of rights based upon state law.
     
  19. swlswl

    swlswl New Member

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    Sarge,

    Are you shepardizing these cases?

    After reading your post, I Shepardized the Lopez case.

    Only one court superceded Lopez, it was the U.S. 6th Circuit Court in the case:

    United States v. Tucker 90 F.3d 1135, 1996 U.S. App

    In reading the opinion of the Tucker case, it involved drugs not guns. The Defendant (Tucker) argued that because of the lopez case, drugs aren't an economic activity that the Feds can make criminal laws against.

    The 6th Circuit Court of Appeals somehow came to the conclusion that although the feds can't make criminal gun laws because they have no nexus with interstate commerce, drugs do have such a nexus and therefore federal drug laws can be passed by the feds.

    The 6th circuit court agreed with Lopez, as it pertains to guns, but not to drugs.

    I suspect that if Tucker appeals that, he'll win.

    All the other cases I found, agreed with Lopez.

    Congress did change the wording of the Gun Free School Zone law, but it's obvious that if anyone appeals a conviction for violating it, any appellate court would have to find the new law to also be a 10th amendment violation for the exact same reason.

    The rewording of the new statute only addressed one small aspect of why the statute was ruled unconstitutional in the first place. It didn't even attempt to address the main reasons the Supreme Court threw it out.

    If people are still being convicted under the rewritten statute, they either have no attorney or have an incompetent attorney.

    Sarge, I don't know if you have to be an attorney or law student to get Lexis Nexis, but as interested as you are in the law, I would think a police dept. would be able to get it. If not, I'll bet a prosecutor in your town would probably let you use the prosecutor's acct. to access Lexis so you can Shepardize.
     
  20. CdwJava

    CdwJava Moderator

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    No, I do not have access to Lexis Nexis. However, I can read the cases and the US Attorney's publications, and I have read a number of cases since 1999 that were cited as being a means around Lopez. Perhaps that is why the issue is not yet settled, because there are cases that seem to contradict Lopez.

    However, while Lopez may still be valid, the statutes that were argued and overturned have changed since 1995 and that changes the equation.

    A case can still be valid yet no longer relevant depending on the issues argued.
     

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