The right to keep and bear arms is guaranteed for every American by the Second Amendment of the Bill of Rights of the Constitution of the United States of America, to wit: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Sounds pretty cut and dry, doesn’t it? Unfortunately, many authoritarian states make it difficult and expensive for law-abiding citizens to keep and bear arms. But even in states that have greater respect for gun owners’ rights, there are ways you can lose them.

Criminal Convictions

This is probably the best-known cause for losing your Second Amendment rights. Under federal law, the severity of the felony is taken into consideration as being “under indictment or information in any court for a felony, or any other crime for which the judge could imprison you for more than one year.” Firearms laws vary by state, but in general, any crime of violence will cause you to lose your rights. However, in some states, any felony at all, even if it did not involve violence or the use of a firearm, will cause you to lose your rights. Even multiple misdemeanors can hit you hard. For example, in Virginia, multiple drug-related misdemeanors within three years will do the trick. If you own guns when you are convicted, the police will show up to confiscate them.

Mental Illness

Diagnosed mental and emotional disorders can put a hard stop on your right to own a gun. Under federal law, a person diagnosed with a mental disorder who has a history of violent behavior cannot purchase or own a firearm. This also applies to having a mental or emotional break and being involuntarily confined to a mental health facility. Finally, anyone who has been found incompetent to stand trial or “not criminally responsible” is also forbidden from possessing a gun. In practical terms, not being legally eligible to possess a gun due to mental illness doesn’t work any better at keeping guns out of the wrong hands than not being able to own one due to a criminal record, but for law-abiding gun owners, it can be a problem.

Red Flag Laws

While it makes sense for someone who is violently mentally or emotionally ill not to have access to a gun, it becomes less clear when it comes to Red Flag laws, officially called “gun violence restraining orders (GVRO).”  All that is required to be subjected to a GVRO is for someone to file a petition claiming they think you are a threat. It can be initiated by a neighbor, ex-partner, counselor, employer, or just about anyone who thinks you might be scary. They are often rammed through the court without giving the targeted person notice or an opportunity to answer the accusation. Once approved, they are frequently issued “ex parte” with no notice or due process. The police simply show up one day to confiscate your guns.

This process is not only unconstitutional, but it can also target people who are not a threat but might be seeking counseling, such as veterans dealing with depression or PTSD. In situations like that, the knowledge that they might be subjected to a Red Flag adjudication can influence people not to seek help for problems they are experiencing. While there have indeed been cases of people who should never have had a gun snapping and committing atrocities, it is most often the ones who have not received help or do not have a functional support system who go off the deep end. Another problem is that anyone with an axe to grind against another person can make a completely spurious assertion just to cause trouble for them. This might include a scheming ex-partner or even a neighbor you have had a dispute with.  

Domestic Violence

18 U.S.C. § 922(g)(9) prohibits firearm possession by anyone “who has been convicted in any court of a misdemeanor crime of domestic violence.” The conviction does not have to result in criminal punishments such as jail time. Even if it is settled by paying a fine, it applies to the loss of firearm rights. Under the law, violence can mean the smallest touch, poke, or shove during an argument. It also applies to attempted use of physical force, or the threatened use of a deadly weapon against a current or past intimate partner, such as a stupid comment made in the heat of the moment. The lesson here is to keep a cool head and take a time out if you find yourself getting that angry, no matter what the provocation may be.

Protective Orders

Although often justified, protective orders can also be a hidden trap because under 18 U.S.C. §922(g)(8), they can also instantly rescind your rights, even if there has been no violence or even threats. This may happen because an angry ex sets you up, but it can also be something as innocuous as filing for divorce using a form pulled off a government website that contains protective order language. Always consult an attorney before signing anything.

Substance Abuse

As I write this article, the Supreme Court is preparing to deliberate on the legality of denying Second Amendment rights to people who smoke marijuana. No matter what your opinion on the topic is, as of right now, you can not possess a firearm if you use illegal drugs. The ATF Firearms Transaction Record you fill out to buy a gun reads, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.” 

That means that even if your home state has legalized marijuana use, it is still a federally illegal drug. How would anyone know if you smoke pot, you might ask. All it would take is an arrest for possession, and it becomes public record. Social media is another potential source of trouble. Make a comment on Facebook about getting high, and it could come back to haunt you.

Transporting Firearms Across State Lines

This one may make you scratch your head, but it is true. Gun laws vary wildly from state to state, and some are insanely strict. Fortunately, the Firearm Owners Protection Act (FOPA), or Safe Harbor Act, allows you to transport your guns through states where they would otherwise be illegal. But the law is very specific and not following it to the letter could result in real problems. For example, if you were going from your home state to another state where your guns are legal, but to get there, you had to pass through a state like California or New York, the FOPA would protect you if you passed straight through. However, if you stop at a hotel for the night, you would unintentionally be in violation of state law and subject to a felony charge, and goodbye to your gun rights.

Summary

Restoration of lost gun rights varies wildly across states. In general, rights rescinded due to a GRVO or protective order can be restored as soon as the order is no longer in effect. However, other circumstances, such as felony records and drug use, can be more difficult to overcome. In many cases, the process requires an application to the court, and it may take years before rights are restored. Being denied on a NICS background check when trying to buy a gun is even worse. If the denial was on a federal level through the FBI, you must file a challenge directly to the FBI, and there is a backlog of six months or more in processing them. This is an improvement, as the backlog used to be years, but it is still a long process. It is important as a law-abiding gun owner to keep your wits about you and make a concerted effort not to do anything that might jeopardize your right to legally keep and bear arms.