Maintaining the right to own or possess a gun is justifiably important to many groups of people.
These groups include
(a) people who believe their lives may be endangered if they do not own or carry a weapon,
(b) people whose livelihood depends on their legal ability to own or possess weapons, and
(c) people who routinely participate in recreational or sporting activities that involve firearms.
However, your Second Amendment right to bear arms is a right that…like many others…may be revoked once you suffer certain types of criminal convictions.
In such a case, California's firearms laws are strict…and federal laws are even stricter. Once the state or federal government revokes your gun rights, restoring them can be difficult and complicated.
Fortunately, we're here to help. As former cops and prosecutors, we are equipped with the kind of first-hand knowledge essential to helping you restore your right to bear arms.
Below our California criminal defense attorneys1 address the following:
You may also find helpful information in our related articles on California Firearm Laws; Penal Code 12021 PC Felon with a Firearm; Penal Code 12025 PC Carrying a Concealed Weapon; Penal Code 12031 PC Carrying a Loaded Firearm; Penal Code 417 PC Brandishing a Weapon; Penal Code 245(a)(2) Assault with a Firearm; Penal Code 12020 PC Dangerous Weapons; Penal Code 12020 PC Dirks, Daggers, and Explosive Substances; Penal Code 12280 PC Assault Weapons; Penal Code 12303 PC Destructive Devices; Domestic Violence Convictions and Gun Rights; California Expungement Law; Reducing a Felony to a Misdemeanor; Certificates of Rehabilitation; Governor's Pardons; and California Legal Defenses.
Before we can discuss restoring your California gun rights, you should first understand the various circumstances under which the government will revoke these rights.
California law does not require you to obtain a license to purchase, receive, own, or possess a gun. Essentially anyone can own a firearm in this state, as long as they are not otherwise prohibited from doing so.
There are basically five categories of individuals who are banned from exercising their California gun rights:
Let's take a closer look at each of these categories.
Felons are prohibited from exercising gun rights under Penal Code 12021 PC, California's "felon with a firearm" law. Penal Code 12021 PC imposes a lifetime firearms ban on anyone who has been convicted of any felony offense in any state or country.
This lifetime ban also applies to:
Generally speaking, a misdemeanor conviction does not trigger a gun restriction. However, there are about 40 specific misdemeanor convictions that do carry a California ten-year firearms ban. Some of these include (but are not limited to):
If you were convicted of one of the enumerated misdemeanor offenses that imposed a ten-year ban prior to its being added to Penal Code 12021 PC, you may request that the court restore your California gun rights after the ten years elapse.
The court will grant this relief if it believes that you are likely to use a firearm in a "safe and lawful manner."4
People who are addicted to a narcotic drug are forever banned from owning, possessing, purchasing, or receiving a firearm under Penal Code 12021 PC.5 Federal law also imposes a lifetime ban on this category of persons as well.6
If you are "addicted" to a narcotic drug, it means that you are both emotionally and physically dependent on the drug and have an increased tolerance to its effects.7
Generally, people whom a court has declared to be dangerous to themselves or others due to a mental disorder or mental illness are prevented from purchasing, receiving, owning, or possessing firearms either:
Those who may not restore their California firearms rights, unless and until they receive an order stating that their competence has been restored or that they have recovered their sanity, include:
Additionally, individuals who confess to a psychotherapist that they intend to cause serious physical harm to an identifiable victim may not possess, own, purchase, or receive a gun for a period of six months.9
Note that federal law imposes its own restrictions on this class of individuals as well.10 Further discussion of federal law follows below.
Minors are prohibited from owning, possessing, purchasing, or receiving guns. But minors who are not subject to any of the above firearms restrictions are entitled to exercise their Second Amendment right to bear arms:
However, if the minor is convicted of certain offenses and is adjudged a ward of the juvenile court as a result of those convictions, California law prohibits the minor from owning or possessing a firearm until he/she is 30 years old.
Some of these offenses include (but are not limited to):
There are a couple of other ways that the court may impose firearms restrictions. The first is when a judge imposes a restriction as a condition of probation for a criminal conviction. The second is when you are the subject of a court-issued protective order.
While you are subject to California probation conditions that revoke your gun rights, or while you are subject to the conditions of a protective order, you are prohibited from owning, possessing, purchasing, or receiving a firearm.13
Federal law imposes its own set of firearms restrictions on certain classes of people. Many of these restrictions are identical to those imposed by California gun law. However, when federal gun laws and California gun laws conflict, federal gun laws prevail. In such a case, California gun laws may as well not even exist.
As previously stated, federal gun restrictions apply to persons addicted to drugs and to those who have been committed to mental institutions or have been adjudged a "mental defective."14
The other noteworthy conflict…the one that receives the most public attention…is with respect to misdemeanor crimes of domestic violence (often referred to as "MCDV").
State law restores California gun rights to an individual convicted of misdemeanor crimes of domestic violence once a ten-year restriction expires. However, federal law imposes a lifetime firearms ban on individuals convicted of any misdemeanor crime of domestic violence.15
This means that the only way to avoid the lifetime federal ban is to avoid the domestic violence conviction in the first place.
For a more complete discussion, visit our page on domestic violence convictions & California gun rights.
As Newport Beach criminal defense attorney Zachary McCready16 explains, "There are a variety of legal options that are available to help you restore your California gun rights. But for all of them, the most critical point to understand is that before you can legally own, possess, purchase, or receive a firearm in this state both your California and your federal criminal records must be free from any gun prohibition."
It bears repeating that even if you clear a California firearms ban, a federal restriction may still prevent you from legally possessing a gun.
Generally, California expungement law relieves an individual of all criminal "penalties and disabilities." Yet that does not include the benefit of lifting an individual's ban on owning or possessing firearms. California expungement law explicitly prohibits restoring one's gun rights following a Penal Code 12021 PC conviction.17
Federal law also limits the benefits of expunging a criminal conviction because it doesn't even recognize California expungements. To understand what that means, consider the following example. Say you were convicted of a misdemeanor crime of domestic violence in California, you waited the required ten years to restore your firearms rights, and then successfully obtained a California expungement. Federal law would still prohibit you from exercising your state-based firearms rights.18
So while obtaining an expungement provides many benefits, restoring your California gun rights is not one of them.
Reducing your California felony to a misdemeanor is probably the easiest way to restore your firearms rights. This relief applies to "wobbler" offenses. A so-called wobbler is a crime which prosecutors may choose to charge as either a misdemeanor or a felony on a case by case basis.
If you were convicted of a wobbler felony, your California criminal defense attorney may subsequently petition the court to reduce that felony to a misdemeanor.19 If your attorney is successful, the state will restore your gun rights automatically… as long as the misdemeanor isn't one of the crimes that subjects you to a ten-year gun restriction. If it is, you must wait-out the period before your firearms rights can be restored by petition.
But that's not all…. As we said above, we are attempting to make this complicated area understandable. Keep the following two points in mind.
First, if your conviction was for a crime of domestic violence or a drug offense that classifies the individual as a "narcotic addict," federal law prevents California from restoring your gun rights.
Second, understand how a "wobbler" felony is different from a "straight" felony. As mentioned above, wobblers give prosecutors a choice between charging someone with a felony or a misdemeanor. Prosecutors do not have that choice with a straight felony. As a result, a court cannot choose later to reduce a straight felony to a misdemeanor. If you get convicted of a straight felony you would have to obtain a certificate of rehabilitation or a governor's pardon (both of which are discussed below).
If you successfully obtain either of these forms of relief, your gun rights will be restored subject to one final limitation: if you have suffered any felony conviction that involved the use of a dangerous weapon, there is no way to restore your firearms rights.20 California law defines "dangerous weapon" as any weapon, instrument, or object capable of being used to inflict great bodily injury or death.21
To really figure out which of these laws apply to a specific individual, what's a person to do?
A California criminal defense attorney who specializes in this state's gun laws knows the most effective ways to help you maintain or restore your right to bear arms.22 A lawyer who understands the complex issues involved with this very technical area of the law will:
For more information about restoring your California gun rights, or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada's firearms laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.23 For information about pardons in Nevada, go to our page on Pardons in Nevada.
1Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2Penal Code 12021 PC -- California's "Felon with a firearm" law. ("(a)(1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6 [which includes California Penal Code 245(a)(2) assault with a firearm], or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony. (2) Any person who has two or more convictions for violating paragraph (2) of subdivision (a) of Section 417 [Penal Code 417 PC is California's "brandishing a weapon" law] and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony. (b) Notwithstanding subdivision (a), any person who has been convicted of a felony or of an offense enumerated in Section 12001.6, when that conviction results from certification by the juvenile court for prosecution as an adult in an adult court under Section 707 of the Welfare and Institutions Code, and who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony." Persons falling under this category must affirmatively seek relief in order to restore their California gun rights.)
3See same. ("(c)(1) Except as provided in subdivision (a) or paragraph (2) of this subdivision, any person who has been convicted of a misdemeanor violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of Section 148, Section 171b, 171c, 171d, 186.28, 240, 241, [Penal Code 242 PC battery], 243 [including Penal Code 243(e)(1) PC spousal battery], 243.4 [PC sexual battery], 244.5, 245, 245.5, 246.3, 247, 273.5 [PC corporal injury on a spouse / mate], 273.6, 417, 417.6, 422 [PC criminal threats], 626.9, 646.9 [PC stalking], 12023, or 12024, subdivision (b) or (d) of Section 12034, Section 12040, subdivision (b) of Section 12072, subdivision (a) of former Section 12100, Section 12220, 12320, or 12590, or Section 8100, 8101, or 8103 of the Welfare and Institutions Code, any firearm-related offense pursuant to Sections 871.5 and 1001.5 of the Welfare and Institutions Code, or of the conduct punished in paragraph (3) of subdivision (g) of Section 12072, and who, within 10 years of the conviction, owns, purchases, receives, or has in his or her possession or under his or her custody or control, any firearm is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. The court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this subdivision." So long as a person convicted of one of these crimes isn't simultaneously prohibited from owning a firearm under a federal ban, his/her California gun rights will be restored at the end of the ten year period.)
4California Penal Code 12021 PC, endnote 2, above. ("(3) Any person who is subject to the prohibition imposed by this subdivision because of a conviction of an offense prior to that offense being added to paragraph (1) may petition the court only once for relief from this prohibition. [This is one way to restore your California gun rights]. The petition shall be filed with the court in which the petitioner was sentenced. If possible, the matter shall be heard before the same judge that sentenced the petitioner. Upon filing the petition, the clerk of the court shall set the hearing date and notify the petitioner and the prosecuting attorney of the date of the hearing. Upon making each of the following findings, the court may reduce or eliminate the prohibition, impose conditions on reduction or elimination of the prohibition, or otherwise grant relief from the prohibition as the court deems appropriate: (A) Finds by a preponderance of the evidence that the petitioner is likely to use a firearm in a safe and lawful manner. (B) Finds that the petitioner is not within a prohibited class as specified in subdivision (a), (b), (d), (e), or (g) or Section 12021.1, and the court is not presented with any credible evidence that the petitioner is a person described in Section 8100 or 8103 of the Welfare and Institutions Code. (C)(i) Finds that the petitioner does not have a previous conviction under this subdivision, no matter when the prior conviction occurred. (ii) In making its decision, the court may consider the interest of justice, any relevant evidence, and the totality of the circumstances. It is the intent of the Legislature that courts exercise broad discretion in fashioning appropriate relief under this paragraph in cases in which relief is warranted. However, nothing in this paragraph shall be construed to require courts to grant relief to any particular petitioner.")
5See endnote 2, above.
618 United States Code 922 -- Unlawful acts. ("(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person…(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))". A person falling under this category may be unable to restore his/her California gun rights.)
7People v. O'Neil (1965) 62 Cal.2d 748, 750. ("…we must reverse the judgment and remand the cause for a determination of whether the defendant is ‘addicted' to the use of narcotics as we have defined that term in People v. Victor (1965) 62 A.C. 290, 312-315, 42 Cal.Rptr. 199, 398 P.2d 391; i. e., whether he exhibits the three characteristics of the addiction process: (1) ‘emotional dependence' on the drug, (2) an increased ‘tolerance' to its effects, and (3) ‘physical dependence' manifested by withdrawal symptoms upon sudden termination of drug intake.")
8See Penal Code 12021(c) PC, endnote 3, above. See also California Welfare and Institutions Code 8100, 8102 and 8103.
1018 United States Code 922 -- Unlawful acts. ("(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person…(4) has been adjudicated as a mental defective or has been committed to any mental institution.")
11California Attorney General's Firearms Website – Frequently Asked Questions. ("3. What is the process for purchasing a firearm in California? All firearms purchases and transfers, including private party transactions and sales at gun shows, must be made through a licensed dealer under the Dealer Record of Sale (DROS) process. California imposes a 10-day waiting period before a firearm can be released to a buyer or transferee. A person must be at least 18 years of age to purchase a rifle or shotgun. To buy a handgun, a person must be at least 21 years of age, and either 1) possess an HSC plus successfully complete a safety demonstration with the handgun being purchased or 2) qualify for an HSC exemption.")
12See California Penal Code 12021 PC, endnote 2, above. ("(e) Any person who (1) is alleged to have committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code [which include many California crimes of violence], an offense described in subdivision (b) of Section 1203.073 [which include many California drug offenses], any offense enumerated in paragraph (1) of subdivision (c), or any offense described in subdivision (a) of Section 12025 [Penal Code 12025 PC prohibits carrying a concealed weapon in California], subdivision (a) of Section 12031 [Penal Code 12031 PC is California's law against carrying a loaded firearm], or subdivision (a) of Section 12034, and (2) is subsequently adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, an offense described in subdivision (b) of Section 1203.073, any offense enumerated in paragraph (1) of subdivision (c), or any offense described in subdivision (a) of Section 12025, subdivision (a) of Section 12031, or subdivision (a) of Section 12034, shall not own, or have in his or her possession or under his or her custody or control, any firearm until the age of 30 years [at which time his/her California gun rights will be restored absent a conflicting federal ban]. A violation of this subdivision shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. The juvenile court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this subdivision. Notwithstanding any other law, the forms required to be submitted to the department pursuant to this subdivision may be used to determine eligibility to acquire a firearm.")
13See California Penal Code 12021 PC. ("(d)(1) Any person who, as an express condition of [California] probation, is prohibited or restricted from owning, possessing, controlling, receiving, or purchasing a firearm and who owns, purchases, receives, or has in his or her possession or under his or her custody or control, any firearm but who is not subject to subdivision (a) or (c) is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. The court, on forms provided by the Department of Justice, shall notify the department of persons subject to this subdivision. The notice shall include a copy of the order of probation and a copy of any minute order or abstract reflecting the order and conditions of probation. (2) For any person who is subject to subdivision (a), (b), or (c), the court shall, at the time judgment is imposed, provide on a form supplied by the Department of Justice, a notice to the defendant prohibited by this section from owning, purchasing, receiving, possessing or having under his or her custody or control, any firearm. The notice shall inform the defendant of the prohibition regarding firearms and include a form to facilitate the transfer of firearms. Failure to provide the notice shall not be a defense to a violation of this section…(3) The Judicial Council shall provide notice on all protective orders that the respondent is prohibited from owning, possessing, purchasing, receiving, or attempting to purchase or receive a firearm while the protective order is in effect. The order shall also state that the firearm shall be relinquished to the local law enforcement agency for that jurisdiction or sold to a licensed gun dealer, and that proof of surrender or sale shall be filed within a specified time of receipt of the order. The order shall state the penalties for a violation of the prohibition. The order shall also state on its face the expiration date for relinquishment." In order to restore your California gun rights under these scenarios, you must either wait until the protective order is lifted or petition the court to remove the restriction.)
See also California Penal Code 1203.1 -- Probation conditions. ("(j) The court may impose…other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer….")
See also People v. Lent (1975) 15 Cal.3d 481, 486. ("The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et seq.) A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality...'" [citation omitted.])
14See endnotes 6 and 10, above.
15The 1996 Lautenberg Amendment implements a lifetime ban on individuals convicted of misdemeanor domestic violence crimes, including any crime that can be classified under California's domestic violence laws. If you fall under this category, you may be prevented from restoring your California gun rights.
16Newport Beach criminal defense attorney Zachary McCready defends clients accused of violating California's gun laws throughout Orange County, including Fullerton, Anaheim, Newport Beach, Santa Ana, Irvine and Westminster.
17California Penal Code 1203.4 PC -- Expungements. ("Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Section 12021.")
18Jennings v. Mukasey (2007) 511 F.3d 894, 898. ("For purposes of 18 U.S.C. § 922(g)(9), a person shall not be considered to have been convicted of an MCDV if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that person may not ship, transport, possess, or receive firearms. 18 U.S.C. § 921(a)(33)(B)(ii). The government contends that Jennings did not receive an "expungement" as that term is used in 18 U.S.C. § 921(a)(33)(B)(ii), regardless of whether or not he obtained relief under California Penal Code section 1203.4 or section 1203.4a….Although "a number of courts have used forms of the word ‘expunge' to describe the relief" under section 1203.4, "the statute does not in fact produce such a dramatic result." People v. Frawley, 82 Cal.App.4th 784, 790-91, 98 Cal.Rptr.2d 555 (Cal.Ct.App.2000) (citations omitted)…Section 1203.4 does not, properly speaking, "expunge" the prior conviction. The statute does not purport to render the conviction a legal nullity…Indeed, section 1203.4 contains a sweeping limitation on the relief it offers, stating that "in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed." This provision alone precludes any notion that the term "expungement" accurately describes the relief allowed by the statute.")
19California Penal Code 17 -- Felony reduction. ("(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison. (2) When the court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor. (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor. (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint. (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint." If your attorney is successful in securing this reduction, you may be able to restore your California gun rights.)
20California Penal Code 4852.17 PC – Governor's Pardon ("Whenever a person is granted a full and unconditional pardon by the Governor, based upon a certificate of rehabilitation, the pardon shall entitle the person to exercise thereafter all civil and political rights of citizenship, including but not limited to: (1) the right to vote; (2) the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 12001 and 12021 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon." If there was no dangerous weapon and you are granted a pardon, the pardon will restore your California gun rights.)
See also California Penal Code 4854 PC -- Firearms; restoration of rights; exceptions. ("In the granting of a pardon to a person, the Governor may provide that the person is entitled to exercise the right to own, possess and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 12001 and 12021 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.")
21CALJIC 17.16 -- Personal use of a dangerous or deadly weapon. ["A deadly or dangerous weapon" means any weapon, instrument or object that is capable of being used to inflict great bodily injury or death[.]
See also People v. James (1978) 88 Cal.App.3d 150, 160. ([Refering to CALJIC 17.16] "This definition accords with prior case law defining deadly or dangerous weapon (see People v. Graham (1969) 71 Cal.2d 303, 327-328, 78 Cal.Rptr. 217, 455 P.2d 153; People v. Liner (1959) 168 Cal.App.2d 411, 414, 335 P.2d 964), and we believe it appropriately defines the terms…")
22Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. We are here to help you restore your California gun rights.
23Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's firearm laws and restoring your Nevada gun rights. Their Nevada law offices are located in Reno and Las Vegas.
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