Application for Relief From Disabilities Imposed by Federal Laws With Respect to the Acquisition, Receipt, Transfer, Shipment, Transportation, or Possession of Firearms

Federal RegisterAug 20, 2026

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DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms, and Explosives

27 CFR Part 478

Office of the Attorney General

28 CFR Parts 0, 25, and 107

[Docket No. OAG191; AG Order No. 7109-2026]

RIN 1105-AB78

Application for Relief From Disabilities Imposed by Federal Laws With Respect to the Acquisition, Receipt, Transfer, Shipment, Transportation, or Possession of Firearms

AGENCY:

Bureau of Alcohol, Tobacco, Firearms, and Explosives, Office of the Attorney General, Department of Justice.

ACTION:

Final rule.

SUMMARY:

The Department of Justice (“the Department”) is implementing criteria to guide determinations for granting relief from disabilities imposed by federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms. The criteria are designed to ensure that the fundamental right of the people to keep and bear arms is not unduly infringed, that those people granted relief are not likely to act in a manner dangerous to public safety, and that granting such relief would not be contrary to the public interest.

DATES:

This rule is effective September 21, 2026. Starting on September 21, 2026, the Department will begin soliciting applications from individuals.

ADDRESSES:

To learn more about how the Department will accept applications, please go to

https://www.justice.gov/ffrr.

FOR FURTHER INFORMATION CONTACT:

Kira Gillespie, Deputy Pardon Attorney, Office of the Pardon Attorney, U.S. Department of Justice, 950 Pennsylvania Avenue NW, Washington, DC 20530; telephone: (202) 514-9251.

SUPPLEMENTARY INFORMATION:

This final rule provides a brief overview of the relevant history of federal firearms prohibitions, a recitation of the background that has motivated the issuance of this rule, a summary description of the earlier published interim final rule and notice of proposed rulemaking, a description of the final rule as adopted after consideration of the comments received on the interim final rule and the notice of proposed rulemaking, a summary of the public comments received, and the options for relief for the individuals impacted by this rule.

I. Background

The Gun Control Act of 1968 (“GCA”), Public Law 90-618, 82 Stat. 1213, prohibits several categories of persons from “ship[ping] or transport[ing] in interstate or foreign commerce, or possess[ing] in or affecting commerce, any firearm or ammunition,” or “receiv[ing] any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. 922(g) (“section 922(g)”). For example, the statute prohibits firearm transfer, possession, or receipt by persons convicted of a crime punishable for a term exceeding one year. 18 U.S.C. 922(g)(1). This particular prohibition is based on Congress's conclusion that individuals “convicted of serious crimes” may “be expected to misuse” firearms.

Dickerson

New Banner Inst., Inc.,

460 U.S. 103, 119 (1983).

The GCA also provides that a “person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms.” 18 U.S.C. 925(c). Congress created this mechanism in recognition of the fact that some persons subject to the GCA's restrictions on activities related to firearms may be able to demonstrate that they “will not be likely to act in a manner dangerous to public safety” and that granting them relief from federal firearm disabilities “would not be contrary to the public interest.”

Id.

Granting such relief in appropriate cases would, among other things, protect the Second Amendment right of the people to keep and bear arms in a manner that is consistent with public safety considerations. Section 925(c) thus provides an opportunity for the Attorney General to provide relief to persons who would otherwise be subject to federal firearms disabilities if they can show that they are likely to possess firearms safely and in a manner consistent with the public interest, while also ensuring that violent or otherwise dangerous persons continue to remain prohibited under the GCA from engaging in certain activities related to firearms.

The authority to determine who qualifies for relief pursuant to section 925(c) was initially delegated to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) by an Assistant Secretary within the Department of the Treasury,

see

26 CFR 178.144 (1969), and, after ATF was transferred to the Department of Justice, by the Attorney General,

see

27 CFR 478.144 (2003). However, ATF's administration of section 925(c) proved difficult, insofar as relief from disability was based on ad hoc determinations that were resource-intensive, inconsistent, and sometimes resulted in outcomes that were not wholly consistent with public safety.

Beginning in 1992, Congress prohibited ATF from using appropriated funds to process applications under section 925(c), rendering ATF's relief from disabilities program unusable.

Congress expressed dissatisfaction over several aspects of the ATF determinations, including outcome inconsistencies stemming from a lack of guidance; the restoration of firearms rights to individuals who posed ongoing public safety concerns; and the expenditure of substantial time and money on investigations that diverted resources from the investigation of violent crimes.

See

Application for Relief from Disabilities Imposed by Federal Laws with Respect to the Acquisition, Receipt, Transfer, Shipment, Transportation, or Possession of Firearms, 90 FR 34394, 34395 (July 22, 2025) (discussing congressional findings on the ATF process).

Treasury, Postal Service, and General Government Appropriations Act, 1993, Public Law 102-393, 106 Stat 1729, 1732 (1992).

II. Background Prompting Issuance of the Rule

In 2025, the Department began developing a modernized process for firearms-rights restoration that would (1) address the flaws of the defunct ATF process and (2) ensure that restoration decisions made by the Attorney General are consistent with the statutory requirements that an individual who receives relief must not be likely to endanger the public and that relief must be consistent with the public interest. In March 2025, the Attorney General issued an interim final rule withdrawing the delegation of authority to ATF to administer section 925(c).

See

Withdrawing the Attorney General's Delegation of Authority, 90 FR 13080 (Mar. 20, 2025) (“IFR”). The IFR stated that “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.”

Id.

at 13083.

In July 2025, the Department issued a notice of proposed rulemaking (“NPRM”), outlining anticipated criteria for evaluating applications for relief under section 925(c).

See

90 FR at 34394. Among other things, the NPRM proposed to set forth several categories

of applicants who would be “presumptively unable to establish” that they would “not be likely to act in a manner dangerous to public safety and that the granting of relief would not be contrary to the public interest.”

Id.

at 34402. These proposed categories of applicants included persons with prior violent felony offenses, including homicide, kidnapping, terrorism, stalking, and other offenses commonly understood to be violent; persons with prior convictions involving the brandishing or discharge of a firearm; and persons required to register under the Sex Offender Registration and Notification Act (“SORNA”), 34 U.S.C. 20911-20932, based on an offense that prohibits them from owning a firearm under section 922(g). Further, the NPRM proposed presumptively restricting individuals with certain prior convictions from receiving relief for a period of time following the discharge of any sentence related to those convictions. For example, those with drug trafficking convictions or misdemeanor domestic violence convictions would be presumptively disqualified from obtaining relief for at least 10 years after completing their sentences. Individuals with felony convictions not otherwise triggering the 10-year presumptive disqualification would be presumptively disqualified from obtaining relief for a period of five years after completing their sentences.

The NPRM also addressed those persons whose federal firearms disability arises from sections other than section 922(g)(1), such as 922(g)(2) (fugitives from justice), 922(g)(3) (unlawful users of controlled substances), and 922(g)(8) (those subject to domestic violence restraining orders). Because such persons' disabilities arise not from past conduct alone, but also from other indicia of lack of respect for the law and potential dangerousness, the NPRM proposed that these persons would presumptively be denied relief under section 925(c). 90 FR at 34396. However, these persons can ordinarily take themselves out of their prohibited category by discontinuing their unlawful conduct or, in the case of section 922(g)(8), seeking a modification or early termination of the protective order.

The NPRM further explained that individuals subject to the prohibition in section 922(g)(5) (unlawfully present aliens or certain aliens admitted to the United States on nonimmigrant visas) would also be presumptively disqualified because “unlawful aliens are not part of ‘the people’ to whom the protections of the Second Amendment extend.”

United States

Sitladeen,

64 F.4th 978, 987 (8th Cir. 2023) (“

Sitladeen”

). Finally, the NPRM proposed additional provisions (1) describing the documentation required to submit an application for relief from disability (which varies depending on the type of disability the applicant is seeking to relieve); (2) imposing a requirement for applicants to submit three sworn statements from character references attesting to various statements supportive of the request for relief; (3) mandating notification of the fact of application to the Chief Law Enforcement Officer in the applicant's jurisdiction of residence, who would have the opportunity to opine on the appropriateness of granting the applicant relief; (4) setting a fee required for an application for relief; and (5) outlining common and relevant considerations that the Attorney General would utilize to evaluate applications for relief. The NPRM concluded by addressing administrative matters, including the public announcement of grants of relief and special rules for federal firearms licensees.

See United States

Rahimi,

602 U.S. 680, 698-99 (2024) (finding that the burden of section 922(g)(8) “fits within our regulatory tradition” in part because, “like surety bonds of limited duration,” its restriction is “temporary”) (“

Rahimi”

);

Range

Att'y Gen.,

124 F.4th 218, 252 (3d Cir. 2024) (en banc) (Krause, J., concurring in the judgment) (“[T]he Second Amendment demands that the disability it imposes has at least the potential to be ‘of limited duration[.]’” (quoting

Rahimi,

602 U.S. at 699)) (“

Range”

);

United States

Perez-Garcia,

96 F.4th 1166, 1181 (9th Cir. 2024) (holding that the Bail Reform Act's prohibition on possessing any firearm as a condition of pretrial release does not violate the Second Amendment where, even though it “imposes a heavy burden on Appellants' rights to bear arms,” the condition “is a temporary one”);

United States

Posey,

655 F. Supp. 3d 762, 775-76 (N.D. Ind. 2023) (“The burden imposed by [section] 922(g)(3) only endures for as long as the individual is an unlawful user or addict, leaving them free to regain their full Second Amendment rights at any time.”).

III. Comment Analysis and Department Response

The Department received 12,154 comments in response to the IFR of March 20, 2025, and 3,405 comments in response to the NPRM of July 22, 2025, totaling 15,559 comments. Submissions came from individuals, non-profit and advocacy organizations, government officials, business entities, and academics. Of these submissions, roughly 91 percent of the comments, or 14,140 comments, were generally in agreement with the objective of the IFR and NPRM to reinvigorate the restoration process. Roughly nine percent of comments, or 1,293 comments, were generally against the rule, and the remaining 126 comments were deemed to be irrelevant, duplicative, or unclear. A total of 4,476 comments were deemed to be unique substantive comments, while 11,037 comments were form letter submissions,

i.e.,

comments submitted by individuals with identical or near identical text that is often supplied by advocacy organizations or found online.

The overwhelming majority of public comments received were generally in support of the rule's objective to establish a process for restoring firearms rights. Commenters noted the importance of the constitutional right to bear arms in general (“I believe the second amendment is the most important of all [t]he Constitutional Amendments.”); for self-defense (“I feel that denying the right of non-violent persons to defend themselves and their family from violent criminals and wild animals is a denial of the right to life.”); for employment (“I did work as a security guard and was fired because [I] could not get my [Firearm Owner's Identification Card] card in Illinois.”); for hunting (“I am restricted to hunting with a bow and arrow, and I do love bow hunting, but I am more than a little nervous that I cannot protect myself adequately should I need to.”); for the enjoyment of other household members (The lifelong ban on felons owning firearms has “forced law-abiding citizens to have to choose between marrying the love of their life and owning a firearm for defense in many cases.”); or for other reasons.

Among those who were opposed to the rule, most cited public safety concerns (“It would be far safer for the country if the Department halted its push to establish a new firearm disability relief program, as there are significant risks inherent in any process of restoring firearm rights to those who have lost them because of felony convictions, domestic violence offenses, or other conduct prohibited by federal law.”); or concerns with the specific process outlined in the NPRM (“The administrative requirements of the application process are overly burdensome and will make relief illusory for many who, even though they would be eligible on the merits, would not have the means or sophistication to navigate the process.”).

Below, the Department sets forth the key issues raised in the comments on the IFR and NPRM, outlines the public sentiments on each issue, and then responds to each issue. Notably, the Department did not receive comments requiring a response that pertained to all potential disabilities identified under section 922(g). The Department received no such comments on the disabilities

under section 922(g)(2) (pertaining to fugitives from justice) or 922(g)(8) (pertaining to those who are subject to a court protective order). Instead, the comments requiring a response were focused on the section 922(g)(1) prohibitor for convictions punishable by more than one year's imprisonment (discussed in multiple sections of this preamble below), the 922(g)(3) prohibitor for drug use (discussed in section III.F.2 of this preamble below), the 922(g)(4) prohibitor for adjudications of mental illness (discussed in section III.H of this preamble below), the 922(g)(5) prohibitor for unlawful or otherwise nonqualified aliens (discussed in section III.F.2 of this preamble below), the 922(g)(6) prohibitor for dishonorable military discharge (discussed in section III.C of this preamble below), the 922(g)(7) prohibitor for renounced citizenship (discussed in section III.F.2 of this preamble below) or the 922(g)(9) misdemeanor domestic violence prohibitor (discussed in multiple sections of this preamble below).

A. The Department's Legal Authority To Issue and Implement This Rule

Comments Received:

Commenters questioning the legal authority of the Department to engage in this rulemaking were divided between those who argued that any or most statutory restrictions on firearms possession are unlawful (and thus that Department regulatory authority pursuant to those statutes is invalid) and those who argued that specific provisions in the NPRM exceeded the Department's authority. In the first group, many commenters decried the lifetime restriction on felons possessing firearms and expressed their belief that any restriction on gun possession violates the Constitution. As one commenter stated, “no person—even a felon, if non-violent—should be deprived of the right of effective self-defense, of defense of family, loved ones, and innocents under attack, as we have seen in church and school shootings.” Others opined that permanent bans on felons possessing firearms may violate recent Supreme Court precedent. One commenter opined that “[a] lifetime ban [on firearm possession under 18 U.S.C. 922(g)] with no relief mechanism is constitutionally suspect, especially after the Supreme Court's decisions in Heller and Bruen[

],” while another stated that “[a]ll gun laws are an infringement one way or another and therefore unconstitutional, illegal crimes against the supreme law of the land.”

See District of Columbia

Heller,

554 U.S. 570 (2008) (“

Heller”

);

N.Y. State Rifle & Pistol Ass'n

Bruen,

597 U.S. 1 (2022) (“

Bruen”

In the latter group, commenters expressed concern that the NPRM's proposed requirements and presumptive disqualification criteria exceeded the statutory authority granted in 18 U.S.C. 925. For example, one group dedicated to preventing gun violence argued that the NPRM inappropriately proposed to permit the Attorney General to consider whether “a failure to grant relief would infringe the applicant's rights under the Second Amendment” (quoting NPRM, 90 FR at 34404). This group also argued that “the primary, indeed

only

, relevant consideration under Section 925(c) is whether restoring the individual's lawful firearm access would threaten public safety” and thus that “DOJ need not rely on an individual rights balancing test in order to [adjudicate applications for relief] because those seeking relief are not `ordinary, law-abiding citizens'[

] protected by the Second Amendment.” Conversely, a group dedicated to supporting individual gun rights opined that the rule “exceeds the authority of the enabling statute by narrowing the exercise of official discretion with broad-based presumptions” such as the presumptive disqualifications proposed in the NPRM.

The commenter did not cite a specific source but was presumably quoting

Bruen,

597 U.S. at 9.

At least one commenter, an advocacy group dedicated to firearm safety, opined that the revival of a restoration process would violate congressional appropriations laws that defunded the ATF program and prevented the transfer of any ATF functions to another government entity. Some commenters expressed concern that states still could restrict individuals' firearms rights notwithstanding federal restoration, while others suggested that a state restoration should presumptively effect a federal restoration too. Finally, at least one commenter opined that exempting from section 922(g) disability those individuals who have had their state convictions expunged under 18 U.S.C. 921(a)(20) creates a disparity across different states that could violate equal protection.

Department Response:

The Department appreciates the public's interest in the rights restoration process and observes that the varied and often diametrically opposed views from members of the public demonstrate the complexity of this matter, thus supporting the necessity of creating a well-crafted and functional rule to implement this vital process. Regarding the Department's authority to engage in this rulemaking and to implement processes and procedures regarding this rule, section 925(c) authorizes the Attorney General to develop a process to review and evaluate applications for relief. Further, this rulemaking is consistent with the Administrative Procedure Act, 5 U.S.C. 551

et seq.,

and its rulemaking requirements, as well as prior mechanisms utilized to accomplish this same objective,

see

27 CFR 478.144 (2003).

In addition, although the Department acknowledges the comments of some individuals that Second Amendment rights should be entirely unfettered, the existence of reasonable restrictions on gun ownership, such as those established in section 922(g), is wholly consistent with Supreme Court precedent and the history and tradition of the United States. The Supreme Court has often stated that its decisions should not be interpreted “to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.”

Heller,

554 U.S. at 626;

see also Hemani,

146 S. Ct. at 1693; section III.F.2 of this preamble.

Sitladeen,

64 F.4th at 987 (“[U]nlawful aliens are not part of ‘the people’ to whom the protections of the Second Amendment extend.”). See section III.F.2 of this preamble for further discussion of this issue.

Further, notwithstanding the presumption that persons with these types of offenses or statuses are unable to obtain relief, the final rule provides that, in “extraordinary circumstances,” an individual applicant may be able to overcome this presumption. Thus, this section 925(c) process goes beyond what courts have required in the determination of who should be ineligible to handle firearms by allowing for an individualized assessment of a person's fitness to exercise Second Amendment rights in extraordinary

cases, as opposed to relying solely on categorical or presumptive rules.

The Department also disagrees that the rule would unlawfully circumvent appropriations restrictions on ATF or violate applicable budget riders. Budget riders dating from 1992 through January 2026 have restricted ATF from expending any funds for investigations under section 925(c).

For several reasons, these riders do not prevent the Department from issuing this final rule. First, the relevant rider is phrased as a proviso, and the “office of a proviso” is “to except something from the operative effect . . . of the substantive enactment to which it is attached.”

Cox

Hart,

260 U.S. 427, 435 (1922). Consistent with that principle, the Department has interpreted appropriations provisos as presumptively limited to the specific line items to which they are attached.

See The Effect of an Appropriations Rider on the Authority of the Justice Department to File a Supreme Court Amicus Brief,

14 Op. O.L.C. 13, 16 (1990). Here, the section 925(c) rider appears as a proviso to a specific appropriation account—the account for “necessary expenses of the Bureau of Alcohol, Tobacco, Firearms and Explosives, for training of State and local law enforcement agencies . . . , and for provision of laboratory assistance to State and local law enforcement agencies.” 140 Stat. at 23. The proviso thus does not apply to the Department as a whole.

See, e.g.,

Department of Justice Appropriations Act, 2026, Public Law 119-74, div. A, tit. II, 140 Stat. 17, 23.

Second, the rider refers only to “the funds appropriated herein.”

Id.

That phrase contrasts with many other riders that use broader language to restrict, for example, all funds “made available in this title,”

id.

at 68-69, “made available by this Act,”

id.

at 40, or “appropriated or otherwise made available by this Act,”

id.

at 54. Where “Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally.”

Nat'l Fed'n of Indep. Bus.

Sebelius,

567 U.S. 519, 544 (2012). This presumption is especially strong here because several of those broader riders appear within nearby Department of Justice appropriations,

see

140 Stat. at 23 (“none of the funds made available by this Act or any prior Department of Justice Appropriations Act”), including one in the very next sentence (as discussed below),

see id.

Again, then, the rider does not broadly apply to the Department as a whole.

Finally, the legislative record shows that a key purpose of the 925(c) rider is to preserve ATF enforcement resources. The Senate Appropriations Committee noted in its report regarding the original rider that “ATF agents spend many hours investigating a particular applicant” and concluded that “the approximately 40 man-years spent annually to investigate and act upon these investigations and applications would be better utilized to crack down on violent crime.” S. Rep. No. 102-353, at 19-20 (1992). “Therefore,” the Committee explained, it had “included language in the bill which prohibits the use of funds for ATF to investigate and act upon applications for relief from Federal firearms disabilities.”

Id.

at 20. The House Appropriations Committee offered a similar explanation.

See

H.R. Rep. 102-618, at 14 (1992). Because this final rule would not involve ATF personnel or resources in the processing of relief applications, the rule is consistent with the rider's stated purpose of preserving ATF resources.

The Department also disagrees that appropriations riders regarding the transfer of ATF functions prevent the issuance of this rule. Appropriation riders have since 1994 prohibited ATF from transferring its “functions, missions, or activities” to “other agencies or Departments.”

The final rule does not violate this restriction because processing applications pursuant to 18 U.S.C. 925(c) is not a “function[ ],” “mission[ ],” or “activit[y]” of ATF. Processing such applications is a statutory function of the Attorney General, which ATF, in the past, performed by delegation,

see

27 CFR 478.144 (2024). ATF, however, has long been statutorily barred from acting on that delegation to process relief applications by the appropriations riders discussed above. Thus, when Congress includes the transfer rider in appropriations acts, it legislates against a long historical background establishing that section 925(c) processing is not one of the “functions” or “activities” that ATF actually performs. Further, as discussed above, Congress's apparent reason for barring ATF from processing section 925(c) applications was that it viewed such processing as a distraction from ATF's duties.

See

S. Rep. No. 102-353, at 19-20; H.R. Rep. 102-618, at 14. This background suggests that, by the time Congress first enacted the transfer rider, Congress did not consider the processing of section 925(c) applications to be a proper “function[ ]” or “activit[y]” of ATF or as falling within ATF's “mission[ ].”

William J. Krouse, Cong. Rsch. Serv., R44189,

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF): FY2016 Appropriations

at 23 (updated Dec. 30, 2015).

This view is consistent with the statutory text. The processing of section 925(c) applications is a power given expressly “to the Attorney General,” not to ATF. 18 U.S.C. 925(c). No applicable statute limits the Attorney General's authority to delegate this function, withdraw a previous delegation of this function, or amend previous rules regarding this function.

This rule thus properly establishes a process for the Attorney General to exercise his own authority under section 925(c); it does not transfer a function, mission, or activity of ATF.

Agencies are presumed to have the inherent authority to reconsider their prior decisions.

E.g., Ivy Sports Med., LLC

Burwell,

767 F.3d 81, 86 (D.C. Cir. 2014) (Kavanaugh, J.) (“[A]dministrative agencies are assumed to possess at least some inherent authority to revisit their prior decisions, at least if done in a timely fashion . . . . [I]nherent authority for timely administrative reconsideration is premised on the notion that the ‘power to reconsider is inherent in the power to decide.’ ” (citations omitted));

Macktal

Chao,

286 F.3d 822, 825-26 (5th Cir. 2002) (“[I]t is generally accepted that in the absence of a specific statutory limitation, an administrative agency has the inherent authority to reconsider its decisions.” (collecting cases));

Mazaleski

Treusdell,

562 F.2d 701, 720 (D.C. Cir. 1977) (“We have many times held that an agency has the inherent power to reconsider and change a decision if it does so within a reasonable period of time.”).

Next, the Department shares commenters' concerns regarding states' failure to recognize the federal restoration process; it plans to work with state partners to ease those concerns and encourage their recognition of the federal process.

Further, 18 U.S.C. 921(a)(20) explicitly exempts convictions that have been expunged or set aside from serving as a prior conviction for purposes of section 922(g), thus obviating the need for persons with such state offenses to pursue federal relief. To the extent that some forms of state-level relief may leave an individual subject to restrictions on firearms under section 922(g), the Attorney General may

consider the relief as a factor in his ultimate decision on that person's section 925(c) application. Additionally, the Department disagrees that considering state-level relief in this way, or enforcing 18 U.S.C. 921(a)(20) with respect to expunged state convictions, would violate equal protection principles applicable to the federal government through the Due Process Clause of the Fifth Amendment. Effectuating states' relief decisions is rationally related to the government's objective of restoring firearms rights in a manner consistent with public safety and the public interest.

See Sitladeen,

64 at 988 (explaining why rational-basis review, rather than heightened scrutiny, applies to equal-protection claims brought by individuals who have been constitutionally disarmed under section 922(g)).

For examples of scholarship examining the ways that state law may treat firearms restoration, see Benjamin Bowers,

Act 631 and HB 1013—Recently Enacted and Proposed Legislation Concerning the Restoration of Firearm Rights for Convicted Felons,

45 U. Ark. Little Rock L. Rev. 825 (2023) (discussing then-pending legislation in Arkansas on restoring firearms rights to certain convicted persons); Robert Luther, III,

The Quiet Army: Felon Firearm Rights Restoration in the Fourth Circuit,

23 Wm. & Mary Bill Rts. J. 237 (2014) (discussing firearm restoration practices in states within the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit); Ethan Tourtellotte, Note,

Second Chances for Second Amendment Rights: Prohibited Persons, Restoration of Rights, and Lifetime Bans in Light of

New York State Rifle & Pistol Ass'n

Bruen

, 48 Okla. City U.L. Rev. 109, 159-62 (2023) (surveying various state firearm restoration statutes).

B. Standard of Proof

Comments Received:

Commenters were split about the appropriate standard of proof for an application for relief from disability under section 925(c), with some commenters supporting automatic restoration of rights for certain groups of applicants, some opposing it, some proposing alternative criteria to consider, and some seeking further information regarding the rule's use of the term “extraordinary circumstances.” Commenters supporting automatic restoration of gun rights took differing views as to the stage at which restoration would be appropriate. Although some commenters supported automatic restoration for all prohibited individuals following release from prison or supervision, others preferred automatic restoration for subcategories of such persons, such as for nonviolent offenders only, or for persons who had been on release for a specified period of time. A smaller number of commenters specifically opposed automatic restoration for any group. Some commenters fell short of explicitly endorsing automatic restoration but argued that there should be a presumption in favor of restoration, either for persons who are not found to pose a danger to society, after the passage of a period of time, or based on specific criteria, like veteran or military status or state restoration of rights. Alternatively, at least one commenter proposed an expedited restoration process for persons with a military background or prior record of gun ownership.

Other commenters expressed their hope that the Department would use objective criteria, such as a point system, to evaluate applications, thereby “prevent[ing] targeting” based on personal or political bias. At least one commenter, an academic organization studying gun violence, argued that, as part of the Attorney General's statutorily mandated dangerousness assessment, the Attorney General should consider “[d]ocumented acts or threats of violence; [d]ocumented alcohol or other substance misuse; and [v]iolations of restraining, protection, or no-contact orders.” Others suggested that objective, criminologically studied criteria, such as drug testing, should inform the evaluation of each application. One commenter proposed a burden-shifting framework whereby applicants would generally have to demonstrate by clear and convincing evidence that granting relief would not be contrary to the public interest, but the government would also be able to create rebuttable presumptions that certain categories of people are dangerous.

Finally, many commenters sought clarity on how the Department would apply an “extraordinary circumstances” standard when determining whether an individual had overcome a presumptive disqualification. At least one critic opined that the existence of an “extraordinary circumstances” standard casts doubt upon the premise that persons with presumptively disqualifying convictions or statuses could ever receive relief: “This approach does not inspire confidence; the likelihood of being granted relief seems relatively low, which is a cause for concern and a clear indication that the process needs to be reevaluated.” On the opposite end of the spectrum, some commenters worried that too many dangerous people would qualify for relief: “This introduces potentially dangerous and unacceptable ambiguity for applicants, for victims, and for the American people. The DOJ must publish, with particularity, what constitutes extraordinary circumstances that would be sufficient to overcome a presumptive disqualification.” Many suggested evaluating the applications of presumptively disqualified persons according to a clear and convincing standard of proof, as opposed to evaluating the existence of “extraordinary circumstances.” Others expressed concern that the definition of “extraordinary circumstances” would vary based on the whims of the political party in power. Finally, one anonymous commenter proposed the following language as a definition of “extraordinary circumstances”: “[T]he Attorney General shall consider factors including, but not limited to: (i) whether the applicant has only a single violent conviction; (ii) whether at least fifteen years have passed without further convictions; (iii) the applicant's age at the time of the offense; (iv) evidence of rehabilitation and community reintegration; and (v) whether credible information suggests the applicant poses an ongoing public safety risk. No single factor shall be dispositive, but together these considerations may constitute extraordinary circumstances.”

Department Response:

The Department appreciates the interest from the public in the evidentiary standards that the Attorney General will utilize in evaluating applications. The Department remains committed to a fair and consistent process that will enable the Attorney General to issue restorations to all applicants who qualify under the standard articulated in section 925(c), as implemented in this final rule.

As to the specific comments, consistent with the careful and measured rule set forth herein, the Department rejects automatic restoration of rights for any particular group, as such restoration would not adequately fulfill the Attorney General's statutory obligation to evaluate both the likelihood that an applicant will act in a manner dangerous to public safety and whether the granting of relief would be contrary to the public interest. Automatic restoration is inconsistent with the careful analysis that section 925(c) requires. Instead, the Department adopts the measured approach of this final rule, which will allow the Department to carefully review applications consistent with its statutory obligations in individual cases.

The Department disagrees that a separate, expedited review process for any category of persons should be implemented. Instead, the Department will use disclosures in the applications for relief and information learned from government partners to develop appropriate procedures and efficient methods to investigate the cases submitted to it. As explained in the preamble to the NPRM, some applications—such as those from persons who are prohibited under section 922(g)(1), meet all time requirements, and have only one prior nonviolent conviction—are likely to be processed relatively quickly given the straightforward nature of the analysis required.

See

NPRM, 90 FR at 34395-96. Through time and experience, the Department will identify further means to efficiently process applications and will adapt its processes throughout the life of this program to adjust for the additional data the Department receives and analyzes from its applicant pool.

Moreover, the Department notes that none of the commenters' proposals for expediting review of certain types of cases included research or data supporting the recommended prioritizations, meaning that the public provided no strong basis for implementing these proposals. The Department also believes that any formal prioritization process would likely be undermined by applicants who incorrectly identify themselves as qualifying for expedited review or who request exceptions so they may be prioritized. An expedited process therefore would create an unnecessary additional layer of review that may not ultimately benefit the population of people it would be intended to serve.

As to one commenter's proposal that a point system or other quantitative adjudication method would be appropriate, the Department declines to limit itself to one rigid methodology for decision-making before the restoration process has even begun. The Department is committed to developing an efficient and effective process that fulfills the goal of restoring rights to individuals who would not be likely to act in a manner dangerous to public safety and that guarantees any grants of relief would not be contrary to the public interest. To achieve this goal, the Department firmly believes that its review and decision-making methodology must be agile and adaptable based on experience learned throughout the implementation and execution of this new process and on data collected from the applicant pool. Adhering to an overly rigid formula for review and decision-making, particularly one devised at the inception of the program, would be contrary to that end.

Regarding comments that the Department should base its review upon additional, specific criteria not already proposed in the NPRM, such as assessing applicants' alcohol use and record of non-criminal violence, and requiring applicants to undergo drug testing, the Department agrees that those factors could assist in evaluating the likelihood that an applicant will not act in a manner dangerous to public safety and that granting relief would not be against the public interest. Although the rule does not require drug testing, it does include requirements that would address factors mentioned by commenters by requiring both the applicant and the applicant's character references to affirm under penalty of perjury that the applicant is not an unlawful drug user or alcohol abuser,

see

§ 107.10(g)(13)(iii)(B) & (C), 107.10(g)(14)(ii) & (iii), and has neither engaged in nor is likely to engage in violence,

see

§ 107.10(g)(13)(F) & (G), 107.10(g)(14)(vi) & (vii). Additional requirements like drug or alcohol testing would be overly burdensome with limited additional benefit in most cases. Further, regarding the proposal that specific burdens of proof should apply to the Department's review at various stages and in various scenarios, the Department believes that implementing a burden-shifting framework would needlessly overcomplicate its review. The Department intends to develop internal guidelines to ensure consistency in its outcomes, while still maintaining flexibility.

Finally, the Department appreciates the desire for a pronouncement on the definition of “extraordinary circumstances.” Unlike critics of its approach, the Department does not believe the use of “extraordinary circumstances” as a metric for granting relief to presumptively disqualified persons necessarily means that an inappropriately low number of persons will be granted such relief. To the contrary, the inclusion of a relief mechanism for those who have a presumptive disqualifier supports the likelihood that relief will be granted in appropriate instances, where individuals can demonstrate they are unlikely to act in a manner that endangers public safety and that granting relief is not contrary to the public interest. Conversely, the Department also does not believe that the existence of the extraordinary-circumstances provision broadly opens the door to firearm possession by those posing a danger to public safety. Imposing a presumption of disqualification based on a conviction for violent or dangerous conduct, a recent criminal conviction, continuing illegal or irresponsible conduct, or the lack of sufficiently persuasive information to support an applicant's claim that he or she no longer poses a risk despite possessing such factors recognizes that an individual with those characteristics will likely be unable to satisfy the Attorney General's statutory assessment of public safety and the public interest. The NPRM's inclusion of the narrow “extraordinary circumstances” exception, which contemplates that an applicant may be presumptively disqualified under circumstances that do not accurately reflect continuing dangerousness or risk to public safety, allows for a sufficient opportunity for an individual to overcome this presumption.

See

NPRM, 90 FR at 34396.

The Department declines to provide a rigid definition of “extraordinary circumstances” to avoid unnecessarily cabining the Attorney General's discretion to provide relief where he assesses that it is appropriate. The very language of “extraordinary circumstances” implies unforeseen and unusual circumstances and retaining the Attorney General's statutory discretion to assess risk to public safety and whether relief would be contrary to the public interest is important for the Department. Nevertheless, the Department recognizes that certain common factors are likely to be present where extraordinary circumstances are found. Those factors relate to the circumstances of the offense underlying the disability, such as the relative seriousness of the offense, the age of the applicant at the time of the offense, the level of remorse and atonement shown for the offense, and the presence of an exceptionally long period of non-criminal conduct since the offense.

Further, the Department acknowledges that some individuals have been convicted of offenses that the final rule identifies as presumptively disqualifying but that may have been based on conduct that does not necessarily indicate ongoing dangerousness or risk to public safety. Examples may include individuals convicted of burglary whose underlying conduct involved an unarmed breaking and entering into an abandoned building such that a trespassing charge was an equally plausible outcome, or individuals convicted of possessing a firearm at a protected location who engaged in conduct no more extensive than mere possession and who were otherwise legally allowed to possess a firearm. The application process will provide ample opportunity for individuals to explain their past presumptively disqualifying convictions, to elaborate on the severity of the offense conduct, and to include reliable information that the conviction could plausibly have resulted in less serious and nonviolent charges. Department personnel will review whether these explanations are sufficient to overcome the presumptive disqualification and show that the applicant's criminal history does not necessarily indicate an ongoing propensity for violence.

C. Scope of Rule

Comments Received:

Commenters who discussed the scope of the rule focused on two general propositions: either that (1) the relief offered by the rule should be expanded to all categories of disability or (2) the relief should be narrowed based on certain criteria. In the first camp, commenters

suggested that individuals with disqualifications resulting from misdemeanors or from conduct that did not result in a conviction should also be eligible for restoration; commenters cited isolated instances in which their firearms rights were restricted based on such conduct because of,

e.g.,

the terms of a non-prosecution agreement: “I have a non-violent case that was dismissed, but the dismissal had a condition that I lost my rights to own a firearm in the state in which I resided at the time” or “I'm pleading with the DOJ DEPT to please make this law/rule affect state non violent/misdemeanors as well.” In the second camp, commenters stated that individuals whose disability is predicated on military discharge should be evaluated in the same manner as individuals whose disabilities are based on non-military conduct. For example: “[D]ishonorable discharges . . . should be evaluated using the same criteria as their parallel offenses in civilian law.” Similarly, some commenters believed that relief should be available only to non-violent offenders or people convicted of lesser violent offenses: “ALL Citizens shall be able to own and use guns unless they have been convicted of a violent felony.” At least one commenter suggested that relief be denied to anyone with multiple prior convictions. A few commenters proposed that the rule provide relief to possess or otherwise handle only certain types of firearms in lieu of full firearms rights restoration. One commenter opined that prior foreign convictions for crimes other than terrorism, human trafficking, espionage, treason, and large-scale drug trafficking should be excluded as disabling predicate convictions, while others opined that foreign convictions have no place within the scope of review for section 925(c) relief.

Department Response:

The Department appreciates the thoughtful comments regarding the scope of the rule. In light of those comments, the Department has made minor adjustments to the rule to clarify the procedures regarding military discharges and the necessary paperwork an applicant with a military discharge or conviction disability must provide. The Department has also expanded the definitions of disabling offenses to include reference to the Uniform Code of Military Justice (“UCMJ”), making it clear that persons who committed offenses under the UCMJ also are subject to presumptive disqualifications. Finally, the Department has clarified in the final rule's definitions that dishonorable discharges include sentences of dismissal for commissioned officers, cadets, and midshipmen.

These changes better reflect the important point that the federal firearms disability for a dishonorable discharge, section 922(g)(6), is a basis for disqualification separate from the underlying offense that precipitated the discharge, which may be a disqualification under section 922(g)(1) or (9). Both the discharge and the underlying offense are independently disabling, and applicants who have both a dishonorable discharge and a disabling conviction must disclose both disabilities in their application. Notably, however, not all military convictions that are disabling lead to dishonorable discharges, so individuals with a disabling military conviction, even without a dishonorable discharge, also would need to apply for relief.

Regarding some commenters' inquiries about state misdemeanors that are not domestic violence offenses, as well as clauses in state non-prosecution agreements, the Department believes that neither scenario described by commenters would impact a person's federal firearms rights because neither falls within the scope of section 922(g); thus, the Department did not make any adjustment to its relief process with respect to these categories of applicants. Similarly, in reference to the commenter who asked that foreign convictions be excluded as disabling predicates, the Supreme Court already has so held, meaning that individuals with exclusively foreign convictions are not federally prohibited from owning firearms.

The final rule need not provide relief to individuals who are not federally prohibited from owning firearms.

Small

United States,

544 U.S. 385 (2005) (holding that Congress did not intend foreign convictions to serve as predicates for prosecution under section 922(g)). Although a foreign conviction is not disabling under section 922(g), this final rule requires submission of information on certain foreign conduct that may bear on whether a person a person with a section 922(g) disability is eligible for relief under section 925(c). Foreign conduct, in other words, even if not initially disabling, is still probative of a person's character and hence whether a disqualified person can satisfy the statutory standard in section 925(c). Indeed, the Court in

Small

reached its result based primarily on the presumption against extraterritoriality that applies when interpreting statutes, 544 U.S. at 388—not any general notion that foreign conduct is irrelevant in assessing a person's character.

Accord id.

at 394 (agreeing that “one convicted of a serious crime abroad may well be as dangerous as one convicted of a similar crime in the United States”).

The Department has, however, amended the final rule to require collection of information regarding foreign convictions, foreign mental health adjudications, foreign military discharges, and foreign expungements. If an applicant has such information to share, he or she will be asked to produce these materials, with accompanying translations as necessary. The information collected here will not create a presumptive disqualification for any applicant but instead will help inform the Attorney General's overall decision regarding whether restoring the applicant's firearms rights is likely to pose a danger to public safety or would be contrary to the public interest. To fulfill the Attorney General's obligations under the statute, and to ensure that his decisions are made with a broad knowledge base, the Department will collect and review such information as one facet of its application review. Also, to address potential concerns with various foreign judicial systems and the quality of due process in those regimes, the applicant will, of course, have the opportunity to provide information explaining or mitigating the foreign materials.

The Department broadly rejects suggestions that it should allow only a subset of individuals with criminal convictions to apply for relief from disability, as was preferred by some commenters. Instead, the Department favors the scheme of this final rule, which allows applications from individuals with prior convictions of any nature but creates a high bar to restoration for those whose past conviction was for an offense that makes it unlikely they will be able to demonstrate that they will not act in a manner dangerous to public safety and that relief would not be against the public interest. This measured approach appropriately helps protect the Second Amendment rights of all citizens while also promoting public safety.

The Department also rejects suggestions to restore rights only as to certain types or kinds of firearms as an unworkable and unnecessarily complex manner by which to administer relief. If an individual is deemed an appropriate candidate for the restoration of federal firearms rights, then that person is deemed federally authorized to possess all lawful types of firearms. An incremental approach to federal firearms rights would place a significant additional burden on government entities tasked with documenting, recording, and issuing guidance on the level of firearm-related activities that any individual could engage in and complicate efforts by state law enforcement officials, the Federal Bureau of Investigation (“FBI”), and ATF to administer and enforce federal firearms laws, for little if any benefit.

D. Public Safety

Comments Received:

Commenters were split between those opposing the rule based on their belief that any restoration process poses a danger to public safety and those who believed that the rule—as initially proposed or with minor adjustments—could help to ensure public safety. Those opposing the rule on public safety grounds generally believed that any relaxation of firearms restrictions would be dangerous. A commenter stated, “We need strong rules and oversight to protect our communities and keep guns out of dangerous hands. Returning guns to people who shouldn't have them is not a good policy. Period.” Domestic violence and potential threats to children were commonly cited concerns: “Please do not do ANYTHING to make it easier for people who have been adjudged to have committed domestic violence to own a firearm. Too many people have died already!” and “Guns are the #1 killer of our children and teens. There are 47,000 gun deaths a year. We need strong rules, not weaker ones.” Mental health concerns also arose frequently in commenters' objections: “I vehemently oppose any weakening of the review process for restoring gun rights. This process is meant to protect us all. We need strong rules and laws to keep guns away from abusers and out of the hands of unstable people and from those deemed a threat.” Some commenters expressed concern that felons and others who have lost their firearms rights generally cannot be trusted, asserting that “[f]elons, regardless of violence or not, should not be given back their rights to own/possess/use firearms or deadly weapons. They have already shown a serious lack of judgment and they will likely be more inclined to use a firearm for bad.”

By contrast, some commenters believed that public safety could be protected, or even improved, by a restoration process, generally opining that an armed society is a civil society. Several commenters pointed to their belief that restoring firearms rights to certain types of people is consistent with public safety, expressing sentiments such as: “[r]esearch supports the idea that nonviolent offenders, especially after many years without further legal trouble, are no more likely to commit gun violence than the average citizen.” One commenter pointed to successful state level rights restoration programs as evidencing the likely effectiveness of a federal program: “Many states have implemented successful rights restoration programs for non-violent and rehabilitated individuals, and these programs have not led to increased firearm-related violence. This demonstrates that thoughtful, individualized restoration is not only feasible but effective.” One domestic abuse survivor stated: “As a woman who has been in a previous domestic violent abusive relationship, I strongly believe in bearing arms to protect our family . . . . I have had encounters where my ex would harass me and my husband. My husband is our protector and his non violent crime is the only thing holding us back from being able to have any guns in our home for protection purposes.”

Some commenters thought that restoration would not pose a public safety risk based on their belief that people can change, stating “I believe that individuals who have demonstrated a commitment to positive change, lived responsibly, and proven themselves to be nonviolent and no threat to society deserve an opportunity for restoration.” One commenter expressed his opinion that only law-abiding or reformed citizens would seek restoration through this process: “Real criminals don't care about gun rights, they don't apply to restore them! Only law abiding citizens care about rights and only law abiding citizens will apply to get their rights back!” Some commenters argued that firearms restoration promotes rehabilitation and improves public safety: “A man, or woman, must have an achievable goal . . . . If there was a real plan of action, a true process that could be implemented guaranteeing an individual would have [his or her] second amendment rights, . . . I would guarantee the number of repeat offenders would decrease substantially.”

A minority of commenters who believed a restoration process is consistent with public safety suggested additional provisions be added to the final rule. One commenter asked for additional research before a process is implemented, and other commenters proposed expanding presumptive disqualifiers or otherwise requiring greater certainty that the applicant is not a threat to society before granting relief. Finally, some commenters opined that public safety requires a stringent restoration process that includes elements like review by expert panels and extensive background checks.

Department Response:

The Department strongly agrees with commenters that public safety is a paramount consideration in the creation and implementation of the rights restoration process. Satisfying the statutory requirement that any restoration be consistent with public safety and the public interest is the Department's primary goal. The Department strongly disagrees with some commenters' conclusion that the mere existence of a restoration process is a danger to the public or that all individuals prohibited under section 922(g)(1) necessarily pose an ongoing danger to the public even long after completing their sentences. Congress also clearly did not share that conclusion, as evidenced by the inclusion of section 925(c) in the GCA.

Instead, as set forth in the final rule, the best way to ensure public safety is by creating a rigorous restoration process that requires a background investigation, asks for full and candid disclosure of convictions and activities that are linked to dangerousness and firearms misuse, and provides relief only to those individuals who satisfy the statutory standard.

The Department does not believe that the appropriations rider discussed in section III.A of this preamble changes this conclusion. As noted, the legislative record suggests that Congress enacted the appropriations rider, in part, because it viewed the restoration rights process as a diversion from ATF's duties related to investigating violent and dangerous crime rather than because it saw the process itself as fundamentally dangerous or inappropriate when carried out by the Attorney General, as section 925(c) itself contemplates. In addition, the fact that Congress chose to prevent implementation of the process by ATF through time-limited appropriations riders provides insight into congressional intent. Had Congress concluded that section 925(c) was indeed an irredeemably dangerous threat to public safety, it could have amended the GCA to remove section 925(c) entirely. The fact that Congress instead chose simply to limit the appropriations available to implement section 925(c) on a year-to-year basis suggests that Congress concluded that section 925(c) was generally appropriate, but that a new process needed to be developed to implement it.

E. Benefits of the Rule

Comments Received:

Many commenters who supported the rule touted its benefits. They heralded it as a bulwark against government overreach and as a means to ensure a “well-regulated militia,” consistent with the Second Amendment. Such commenters believed that this restoration process would help to safeguard self-defense rights; protect families, homes, and property; and help individuals carry on family traditions of hunting and engaging in other recreational firearms sports. Commenters further observed that restoring persons' firearms rights could expand their employment opportunities in areas such as law enforcement, private security, and commercial services. A handful of commenters highlighted the need to carry firearms to protect livestock and domestic animals from predators, tying

the inability to possess firearms with a loss of income due to the death of livestock.

Commenters also highlighted the cultural and social importance of recreational activities, noting that in many areas, hunting and recreational firearms sports are “cultural tradition[s]” or family pastimes. Commenters with firearms disabilities noted their loss of social engagement since being unable to attend group outings such as trophy hunts, shooting-sports events, and hunting camps. Some commenters lamented that a felony conviction complicates the ability of family members and roommates without their own convictions to lawfully possess firearms in shared homes, effectively stripping firearms rights from some people without disabilities. A few comments identified the benefit of possessing family heirlooms and antique firearms. More than one commenter cited the desire to possess a gun collection as a factor in support of the restoration of firearms rights, with one in particular noting that his relatives are avid gun collectors and that it “breaks both of their hearts” knowing they cannot pass on the collection to the commenter, who is prohibited.

Some commenters expressed their preferences for certain groups to receive restoration of their firearms rights, noting that a rule such as this one could benefit or prefer, for instance, those with active security clearances and veterans who have served their country and already have significant firearms training. Several commenters opined that restored firearms ownership could support a felon's reintegration into the community and reduce potential recidivism, expressing frustration over the lasting effects of felony convictions, which one commenter described as a “life sentence.” Several commenters expressed gratitude that this final rule provides an alternative and less burdensome process than the federal pardon process, which has practically functioned as the only means of restoring federal firearms rights for individuals for over 30 years. Finally, a few commenters noted the positive impact that the opportunity for restoration will have on marginalized communities, stating that persons belonging to “communities of color, . . . are more likely to be convicted of non-violent drug felonies. The result is unequal access to constitutional rights and compounded systemic injustice.”

Department Response:

The Department appreciates the many positive comments regarding this rule and agrees that many of the benefits articulated by commenters support the necessity of establishing this new restoration process. The Department remains committed to its goal of restoring federal firearms rights to the many individuals who qualify for relief, consistent with its commitment to public safety and the public interest. Although the Department declines to give preferential treatment to any particular group, the fact that an individual may, for example, have significant firearms training or hold a security clearance is a factor that the Attorney General may consider in his holistic review of the individual's case, and the Department acknowledges that the rule is likely to benefit many deserving individuals and groups.

F. Permanent Presumptive Disqualifications

Comments Received:

Well over 1,000 commenters offered a range of opinions on the NPRM's presumptive disqualification provisions. Comments referenced both the general idea of presumptive disqualification as well as the particular categories of offenses identified for presumptive disqualification.

Those who supported some manner of presumptive disqualification agreed that certain violent acts should presumptively disqualify an applicant from firearm relief. Commenters noted that such presumptions echo the intent of the GCA itself, which created broad categories of prohibited persons “to proactively prevent potential harm by keeping firearms out of the hands of those considered dangerous or at higher risk of committing violence.” Some commenters further opined that the NPRM's methodology allows the restoration process to focus on “plausible applicants” instead of those who have committed crimes with high recidivism rates or that are violent by nature. Many commenters were encouraged by the inclusion of offenses such as misdemeanor domestic violence crimes in the presumptively-disqualified-for-a-term-of-years category, arguing that certain felonious or dangerous acts can result in misdemeanor convictions but still indicate present danger. These commenters also pointed out that the rule's establishment of time-limited presumptive disqualifications for certain offenses helps to dispel fears of an insurmountable lifetime ban on firearm possession for all serious offenders. Some commenters noted their preference for the proposed system, agreeing with the Department that the prior system for evaluating section 925(c) applications resulted in the restoration of gun rights to some violent felons who remained threats to the public. Others wrote that certain offenses and individual actions should be afforded greater weight in the presumptive disqualification analysis due to their predictive and violent nature. Commenters also argued that the presumptive disqualifiers would help to constrain the Attorney General's discretion and ensure greater consistency in outcomes, expressing concern that, were an individualized review method employed without such parameters, it would lead to inconsistent decisions on similar fact patterns.

Opponents of the presumptive disqualifiers argued the opposite. They claimed that no constitutional basis exists for such a scheme, that the presumptions exceed the authorizing statute, and that presumptive disqualifiers violate recent Supreme Court decisions such as

Heller

and

Bruen

that, according to the commenters, favor individual, case-by-case analyses. Critics said the NPRM overemphasized a desire to conserve resources and did so to the detriment of individual constitutional rights. They pointed out that the presumptions failed to factor in juvenile indiscretions; prosecutorial overreach; individuals accepting plea bargains to protect against harsher sentences; innocence; and self-defense. Critics contended that the presumptions were overbroad and arbitrary, would discourage applications, and could be politically weaponized. A few argued that the only appropriate consideration should be the applicant's present, rather than past, dangerousness, and that automatic restoration should occur when the person has completed their sentence. Numerous commenters took issue with categorical presumptive disqualifications, instead favoring individualized review in every case. Others noted that the NPRM itself recognized concerns associated with the inclusion of presumptions by stating that “Congress, in enacting section 925(c), recognized that a subset of persons subject to the Gun Control Act may be able to make an individualized showing both that they ‘will not be likely to act in a manner dangerous to public safety’ if allowed to possess firearms and that granting relief from federal firearm disabilities ‘would not be contrary to the public interest.’ ”

See

NPRM, 90 FR at 34395 (citation omitted).

Commenters further worried that the weight afforded to a presumptive disqualifier would unfairly stifle evidence from an applicant who demonstrates rehabilitation. They

believed this would have a chilling effect on applications. Finally, others suggested that the NPRM's proposed method of utilizing presumptive disqualifications may contradict the recent, pre-NPRM restoration actions taken by the Attorney General.

The commenter specifically cited the restoration of federal firearms rights to recipients on March 31, 2025.

See

Granting of Relief; Federal Firearms Privileges, 90 FR 17835 (Apr. 29, 2025). The commenter noted that, because of the public profile of one of the recipients, it was well known that this person was convicted in 2011 of a domestic violence offense—an offense that falls within a category of crimes that is presumptively disqualified—and argued that the Attorney General's decision to grant relief notwithstanding that conviction demonstrated that presumptive disqualifications are too “backward-looking” and do not appropriately account for the present circumstances of applicants. The Department understands this comment to suggest that procedures for implementing section 925(c) should place more weight on an applicant's current status and very recent conduct, and less weight on any conduct that occurred several years ago.

Department Response:

The Department appreciates the thoughtful comments both for and against the presumptive disqualification scheme. The variety of opinions received underscores the need for a thoughtful, measured, and careful approach in the implementation of this application process. As previously addressed, the Department's presumptive disqualification method is authorized by section 925(c)'s statutory direction to the Attorney General to create a restoration process that aligns with public safety and the public interest. Further, ATF's unpredictable prior process, and Congress's dissatisfaction with it, strongly indicate that the Department should devise a system of review that provides consistent guidelines for when restoring firearms rights would be appropriate. The presumptive disqualification method achieves that goal.

First, presumptive disqualifications are entirely consistent with Congress's disarmament scheme under the GCA, as well as with the Second Amendment. The Department's presumptive disqualifiers are necessary to ensure the restoration process is functional and efficient, while also satisfying the statutory objective of protecting public safety and the public interest. Moreover, the presumptive disqualifiers hew closely to assessments of dangerousness and propensity for recidivism that the courts have said fit within the historical traditions of the United States regarding gun prohibitions.

For these reasons, the Department disagrees with the concerns raised by some commenters that the presumptions in the final rule exceed the authorizing statute or violate the Second Amendment. As noted above, Second Amendment rights are not absolute, and Congress may remove those rights from persons who pose a danger to themselves or others. Additionally, courts have repeatedly found that certain types of crimes and the individuals convicted of committing those crimes can summarily be found dangerous.

And, to the extent that some commenters may nonetheless be concerned that this final rule jeopardizes Second Amendment rights, the Department notes that the presumptions of disqualification are only that—presumptions. Applicants will receive an individualized determination of whether they have established extraordinary circumstances rebutting an applicable presumption. By incorporating an individualized determination, this rule goes beyond what courts have deemed required in their Second Amendment jurisprudence.

See, e.g., United States

Vizcaino-Peguero,

175 F.4th 34, 47 (1st Cir. 2026) (Second Amendment does not require “an individualized finding of dangerousness to disarm a person”).

See supra

note 9.

See supra

note 10.

Second, the Department notes that a presumptive disqualification scheme allows the government to conserve its limited resources to prioritize individuals who are most likely to qualify for relief,

see

NPRM, 90 FR at 34396, while still conducting individualized assessments. Accordingly, the Department continues to adopt a general presumptive disqualification scheme in its final rule.

Finally, the Department believes that, contrary to assertions by some commenters regarding the recent restorations granted by the Attorney General, all restoration decisions the Attorney General has made are consistent with both the Attorney General's statutory obligations and the criteria cited in this final rule. The commenter in particular referenced the restoration of rights for an individual with a prior misdemeanor domestic violence conviction. The commenter failed to recognize, however, that the NPRM proposed that misdemeanor domestic violence offenders would be presumptively disqualified from relief for only a 10-year period. Given the time elapsed since the domestic violence conviction of the individual in question, the former Attorney General's decision would have been consistent with the presumptive disqualifications proposed in the NPRM and adopted in this final rule, had those presumptions been in place at the time of the former Attorney General's decision.

1. Expanding the Number of Presumptive Disqualifiers

Comments Received:

In addition to providing views on the general appropriateness of a presumptive disqualification scheme, many commenters stated that the list of presumptive disqualifiers should be expanded. These commenters focused largely on three categories of offenses or conduct. The first category was felony hate crimes. One advocacy group dedicated to preventing gun violence reported that hate crimes have doubled in the last 10 years, have been significantly underreported, have targeted minority populations, and have often included the use of a firearm.

This group further argued that, unlike other crimes, hate crimes pose a danger to large swaths of the population; carry a risk of reoffending that is not shown to decline as the perpetrator ages; and, over 60 percent of the time, are committed by perpetrators who have engaged in other criminal activity.

Commenter cited: USAFacts,

Are Hate Crimes on the Rise?

(Sept. 5, 2025),

https://usafacts.org/articles/which-groups-have-experienced-an-increase-in-hate-crimes/;

Grace Kena & Alexandra Thompson, U.S. Dep't of Just., Bureau of Just. Stats.,

Hate Crime Victimization, 2005-2019

(Sept. 2021),

https://bjs.ojp.gov/media/64996/download.

Commenter cited: Nat'l Consortium for the Study of Terrorism,

Motivations and Characteristics of Hate Crime Offenders

(Oct. 2020),

https://www.start.umd.edu/pubs/START_BIAS_MotivationsCharacteristicsOfHateCrimeOffenders_Oct2020.pdf.

The next proposed additional disqualifier was offenses for driving under the influence (“DUI”) and similar alcohol-related offenses and conduct. Supporters of this addition pointed to studies and statistics demonstrating a link between DUI and similar alcohol-related offenses and an increased risk of gun violence.

Commenter cited: Hannah Laqueur et al.,

Alcohol Related Crimes and Risk of Arrest for Intimate Partner Violence Among California Handgun Purchasers,

38:10 Health Affairs 1719, 1725 (Oct. 2019),

https://www.healthaffairs.org/doi/10.1377/hlthaff.2019.00608

(“This study, along with our forthcoming work that shows an association of comparable magnitude between a preexisting DUI conviction and risk for subsequent firearm-related crime and violent crime broadly, contributes to the evidence base for policies intended to regulate firearm ownership among people with alcohol use problems.” (footnote omitted)); Ellicott C. Matthay et al.,

Assessing Links Between Alcohol Exposure and Firearm Violence: A Scoping Review Update,

45:1 Alcohol Rsch. 2 (Jan. 10, 2025),

https://pmc.ncbi.nlm.nih.gov/articles/PMC11737877/.

Next, a number of commenters proposed moving all domestic violence convictions into a permanent, rather than a time-limited, presumptive disqualification. At least one advocacy group noted that the risk of perpetrating domestic violence crimes does not

diminish with age, unlike the risk of committing other violent crimes.

Other commenters provided supporting statistics regarding the use of firearms in the commission of domestic violence, noting that “41% of American women and 26% of men” have been victimized by an intimate partner; that “more than half” of intimate partner homicides are committed with firearms; and that “more than 70 American women” per month are shot and killed by their intimate partners.

Commenter cited: Matthew R. Durose et al., U.S. Dep't of Just., Bureau of Just. Stats.,

Family Violence Statistics: Including Statistics on Strangers and Acquaintances

1 (June 2005),

https://bjs.ojp.gov/content/pub/pdf/fvs10.pdf

(finding that over 62 percent of domestic violence offenders were over the age of 30); Texas Council on Family Violence,

Honoring Texas Victims: Family Violence Fatalities in 2023

10 (2023),

https://tcfv.org/wp-content/uploads/2023-HTV-REport-Jan-2025-UPdate.pdf

(noting that, in 2023, most intimate partner homicides in Texas were committed by men over the age of 40).

Commenter cited: Ruth W. Leemis et al., Ctrs. for Disease Control & Prevention,

The National Intimate Partner and Sexual Violence Survey: 2016/2017 Report on Intimate Partner Violence

(Oct. 2022),

https://www.cdc.gov/nisvs/documentation/nisvsreportonip_2022.pdf?;

Avanti Adhia at al.,

Nonfatal Use of Firearms in Intimate Partner Violence: Results of a National Survey,

147 Preventive Medicine (June 2021),

https://doi.org/10.1016/j.ypmed.2021.106500;

L.E. Stalzman et al.,

Weapon Involvement and Injury Outcomes in Family and Intimate Assaults,

267:22 JAMA 3043 (June 1992),

https://pubmed.ncbi.nlm.nih.gov/1588718/;

Emma E. Fridel & James Alen Fox,

Gender Differences in Patterns and Trends in U.S. Homicide, 1976

2017,

6:1 Violence and Gender 27 (Mar. 2019),

https://doi.org/10.1089/vio.2019.0005;

Neil Websdale, Kathleen Ferraro & Steven D. Barger,

The Domestic Violence Fatality Review Clearinghouse: Introduction to a New National Data System with a Focus on Firearms,

6 Injury Epidemiology (2019),

https://doi.org/10.1186/s40621-019-0182-2;

FBI,

FBI Crime Data Explorer: Expanded Homicides Reported in the United States, https://cde.ucr.cjis.gov/LATEST/webapp/#/pages/explorere/crime/shr

(last visited July 4, 2026).

Commenters also suggested “categorically” denying applications for relief submitted by repeat domestic violence offenders. These commenters proposed that, at a minimum, the individualized review of applications involving domestic violence cases should be completed by domestic violence experts and should result in the disqualification of those who engaged in aggravated conduct, such as violating protection orders, stalking, or strangulation. These commenters also proposed that the review of these applications should include review of police reports, victim testimony, and any civil protection orders imposed against the applicant.

These groups also encouraged reliance on expert panels and victim input when making any decision to rearm domestic violence offenders. Finally, these groups provided a list of actions that they believed should be considered an absolute bar to an individual receiving restoration of gun rights: repeated convictions for domestic violence offenses or for domestic violence in combination with other violent offenses; violation of a domestic violence protection order; strangling a victim; threatening a victim with a weapon; and sexually assaulting a victim. Commenters opined that research shows individuals engaging in these types of aggravated conduct pose the greatest ongoing threat of intimate partner homicide and consequently would never be able to satisfy the statutory public safety and public interest considerations.

In addition to commenting on hate crimes, DUI offenses, and domestic violence offenses, commenters suggested three additional categories of disqualifying conduct. The first category was for individuals with a high risk of suicide: referencing the public safety risk inherent in suicide, suicide attempts, and suicidal ideation—including both the harm to the individual seeking to commit suicide and harm to others stemming from murder-suicides and active shooter situations—commenters opined that those who pose a risk of suicide should be permanently presumptively disqualified from gun possession. These commenters pointed out that although violent recidivism decreases with age, suicide rates increase with age for certain populations.

The second category, suggested by a joint letter from 16 states' attorneys general, was for individuals who are prohibited under section 922(g)(7) based on renouncement of citizenship. The attorneys general could “imagine no legitimate reason why anyone who has voluntarily given up the honors and responsibilities of American citizenship should be rewarded with restoration of firearm rights.” The third category, also suggested by the 16 states' attorneys general, was to render individuals who are subject to pretrial diversion or a treatment program in lieu of a felony conviction presumptively disqualified.

Commenter cited: Olivia Goldhill,

An Overlooked Demographic has the Highest Suicide Risk—and it's Been Rising,

STAT (July 17, 2025),

https://www.statnews.com/2025/07/17/suicide-rates-rising-older-men-cdc-data-say/;

Ajit Shah,

The Relationship Between Suicide Rates and Age: An Analysis of Multinational Data from the World Health Organization,

19 Int'l Psych. 1141 (Dec. 2007),

https://www.sciencedirect.com/science/article/pii/s104161022405169X.

Department Response:

The categories of serious offenses that qualify for presumptive disqualification are of significant importance in the implementation of a viable and effective section 925(c) application process. The NPRM set forth a list of offense types that, by their nature, carry a presumption that the offender poses a risk to public safety. This list was limited to violent offenses drawn from “crime of violence” definitions, other criminal offenses closely associated with violence, and offenses where the offenders statistically demonstrate high recidivism rates. In each category, the offender's ongoing dangerousness can be legitimately presumed.

Hate Crimes

The Department greatly appreciates commenters' thoughts regarding potential additional offenses to include on the list of presumptive disqualifications. Regarding commenters' suggestions that hate crimes should be added to the list of presumptive disqualifiers, the Department declines to adopt this suggestion. The final rule already presumptively disqualifies perpetrators of most violent acts that could serve as an underlying offense in a hate-crime prosecution. For example, the FBI defines a hate crime “as a criminal offense against a person or property motivated in whole or in part by an offender's bias against” the victim's identifying characteristics, such as race, religion, or ethnicity.

The FBI collects data from states and localities on the types of offenses committed during hate crimes, identifying murder and manslaughter, rape, aggravated assault, intimidation, human trafficking or commercial sex acts, robbery, burglary, and arson as substantive offenses frequently involved in hate crime prosecutions.

Each of the foregoing categories of offenses is already presumptively disqualifying under the final rule.

FBI,

What We Investigate: Hate Crimes, https://www.fbi.gov/investigate/civil-rights/hate-crimes

(last visited July 4, 2026).

FBI,

FBI: Crime Data Explorer, https://cde.ucr.cjis.gov/LATEST/webapp/#/pages/downloads

(last visited July 4, 2026) (providing downloadable statistics for hate crime information).

The Department is cognizant that the list above does not capture every potential underlying offense that could form the basis of a state-designated hate crime. However, the Department seeks to avoid sweeping into a presumptive disqualification conduct that does not involve violence or ongoing risk to the public. Expanding the presumptive disqualification list to include all hate-crime-related conduct (as suggested by commenters) substantially increases the likelihood that conduct that is non-violent could be subject to a permanent presumptive disqualification. Inasmuch

as an individual applicant's prior conviction(s) involve(s) conduct that does not fall into the presumptive disqualifications but that the Attorney General finds indicates that the applicant is likely to act in a manner dangerous to public safety and that granting relief would be contrary to the public interest, then the Attorney General would deny that application after reviewing the relevant materials. Accordingly, the final rule's list of presumptively disqualifying offenses continues to focus on identifying past convictions that implicate public safety and ongoing risk to the public.

Alcohol-Related Offenses

Similarly, the Department declines to adopt the suggestions of commenters that alcohol-related offenses or conduct should be presumptively disqualifying. Those convicted of alcohol-related offenses are not a category of persons who would necessarily have a federal firearms disability absent other factors. Further, alcohol abuse is not consistently documented in the way firearms disabilities pursuant to section 922(g) would be, including because individuals who have engaged in alcohol-abuse conduct that does not rise to criminal levels may have no criminal history at all. Without consistent and reliable documentation that the Department can utilize to establish that the applicant has engaged in alcohol-abuse-related conduct, the Department would struggle to administer a presumptive disqualification on that basis. To prevent the restoration of firearms rights for those individuals with ongoing substance abuse problems, the final rule requires individual applicants, as well as their character references, to affirm that the applicant does not regularly abuse alcohol or other intoxicants.

See

28 CFR 107.10(g)(13)(iii)(C), (14)(iii). This requirement will allow the Attorney General to assess an applicant's substance abuse and help ensure that individuals with such problems cannot use firearms in a way that endangers public safety. Further, nothing in the final rule prevents the Attorney General from determining on a case-by-case basis that the individual circumstances of an applicant's prior history of alcohol-related offenses or alcohol-abuse conduct indicate that the applicant may be likely to pose a danger to public safety or that granting relief is against the public interest.

Aggravated Domestic Violence Offenses

The Department also appreciates the concerns expressed by domestic violence victim advocacy groups, particularly in their identification of aggravated conduct that may occur in domestic violence cases. The Department agrees that the examples of aggravated conduct cited by commenters, such as strangulation or multiple domestic violence incidents, are serious crimes. The Department also believes that the final rule already provides sufficient safeguards to ensure that firearms rights are not restored to applicants who have engaged in the aggravated conduct identified by commenters. As an initial matter, the final rule unequivocally categorizes any felony-level domestic violence conduct as presumptively disqualifying. The Department believes that most of the aggravated conduct cited by commenters would be felony-level conduct that is likely to result in felony-level convictions;

accordingly, under the final rule, individuals with such convictions will already be presumptively disqualified on a permanent basis.

See e.g.,

U.S. Dep't of Just., U.S. Attorney's Off. for the District of Columbia,

Sex Offense and Domestic Violence Section, https://www.justice.gov/usao-dc/sex-offense-and-domestic-violence-section

(last visited July 4, 2026) (describing felony level domestic violence prosecutions as those involving “shootings, stabbings, strangulation, kidnapping, arson, chronic abuse over significant periods of time, and/or serious bodily injury”).

In addition, the final rule addresses in a few key ways the possibility that some aggravated conduct may have resulted in only misdemeanor charges. First, the rule creates a presumptive 10-year disqualification for all misdemeanor domestic violence offenses. 28 CFR 107.50(b)(2)(i). Second, it restarts the 10 years of presumptive disqualification for anyone with a prior domestic violence conviction who incurs an additional arrest for a domestic violence or other violence-related offense within 10 years after completion of a domestic violence sentence. 28 CFR 107.50(b)(2)(ii)-(iii). Third, the final rule adds a five-year presumptive denial for any individual convicted of certain misdemeanor violent offenses that are not domestic-violence related. 28 CFR 107.50(b)(4). Finally, even in the absence of a presumptive denial or after the expiration of a presumptive denial period, the rule allows the Attorney General to assess the conduct underlying any offense. 28 CFR 107.10(b). Thus, if a misdemeanor conviction included felony-level conduct like strangulation or sexual assault, the Attorney General could review the substance of that conduct and find that the individual who engaged in that conduct should not receive restoration of federal firearms rights, regardless of whether a presumptive disqualification is in effect.

Moreover, the final rule allows the Attorney General's review to extend beyond convictions to “charges against the applicant that were dismissed in exchange for a guilty plea,” 28 CFR 107.20(a)(3); “arrests, regardless of whether they resulted in criminal charges,” 28 CFR 107.20(a)(1); “restraining or protection orders, regardless of whether that behavior related to an arrest,” 28 CFR 107.20(a)(7), and “threats or threatening behavior, regardless of whether that behavior resulted in criminal charges,” 28 CFR 107.20(a)(8). This wide latitude of review should mitigate concerns that individuals who engaged in aggravated conduct and pose an ongoing danger to society will have their firearms rights restored, while still not foreclosing the possibility that an applicant could overcome any applicable presumption.

Suicide Risk

The Department is cognizant of the troubling connection between suicide risk and firearms usage but declines to specifically presumptively disqualify individuals with a history of suicide attempts or suicidal ideation, as proposed by commenters. Those with past suicide attempts or ongoing suicidal ideation do not necessarily have a history of criminal conduct and do not comprise a category of persons who would necessarily have a federal firearms disability absent other factors. Moreover, suicide-related conduct, such as suicidal ideation or attempt, is not necessarily consistently documented in the same way as conduct giving rise to firearms disabilities pursuant to section 922(g), and thus the Department would have difficulty identifying evidence that would appropriately establish suicide-related conduct consistently across applications. Inasmuch as suicide-related mental states overlap with a mental health prohibitor from which an individual applicant may be seeking relief, then suicidal ideation or attempts would be addressed in the context of relief from that particular prohibitor. However, to capture individual applicants where there is no such overlap, the final rule has revised the affirmations required of applicants and their character references to specifically mandate that they identify suicide risk.

See

28 CFR 107.10(g)(13)(iii)(F), (14)(vi). Such a requirement cannot substitute for the record evidence that, as just explained, is often lacking in the context of suicide-related conduct, but these changes should help to allay commenters' concerns in this regard.

Renounced Citizenship

As to the request to add renounced citizenship to the list of presumptive disqualifiers, the commenter identified no specific public safety rationale for doing so, and the Department has not independently identified one. Nor did the commenter identify any reason that restoration for this category of applicants would necessarily be “contrary to the public interest,” 18 U.S.C. 925(c), beyond a vague and unexplained notion that individuals who renounce their citizenship ought not to be allowed to benefit from the ability to receive less unfavorable treatment than other prohibited persons.

Pretrial Diversion

Finally, as to the request to presumptively disqualify those individuals under some form of a pretrial diversion program, the Department agrees that pretrial diversion and similar programs are frequently used to resolve criminal adjudications in state court and often require fact-finding or admissions of guilt similar to criminal convictions, yet do not trigger an additional prohibition under section 922(g). Because state courts use such programs so frequently, failing to address them in the final rule could leave many individuals uncertain about any presumptions that may apply to their applications. The Department has accordingly amended the final rule at § 107.50(c)(3) to include specific provisions related to such programs.

2. Reducing the Number of Presumptive Disqualifiers

Comments Received:

Many commenters argued that, even if a presumptive disqualification scheme is employed, some of the proposed presumptive disqualifiers should be removed. Multiple commenters expressed the opinion that sex offenders are not inherently violent and that sex-offender registration should therefore be removed from the list. They argued that presumptively disqualifying everyone on a sex-offender registration system is an inappropriate blanket ban because the system does not equate to an “assessment of ongoing dangerousness” but instead merely “create[s] permanent status based on past conduct.” They further argued that treating registration as an indication of ongoing dangerousness is inconsistent with case law concluding that it is unlawful to use a registry to increase a sex offender's punishment. Commenters criticized the study used in the NPRM to establish the high rate of sex-offender recidivism as applying to a narrow, more violent subset of such individuals, and argued that general recidivism rates are much lower. Others pointed to the low recidivism rate among certain low-risk categories of registered sex offenders, generally asserting that numerous studies have concluded that low-risk sex offenders—those whose offenses are deemed to be less serious—have the lowest recidivism rates among any class of offender. Commenters did not provide the sources or studies they referenced.

These commenters proposed changing sex-offender registration disqualification from a permanent presumptive disqualification to a time-limited presumptive disqualification. They further pointed to problems associated with SORNA and argued that SORNA “does not reflect actual individual risk, public threat, or recidivism likelihood. Instead, it is based solely on the maximum possible sentence associated with a given offense. This structure ignores the actual sentence imposed or the specific facts of the case.” They also highlighted problems associated with federalism—

i.e.,

a lack of uniformity in who is required to be on the offender list depending on the jurisdiction of conviction—and the Supreme Court's holding that sex-offender registration is not to be used punitively.

The commenter did not provide a citation to the Supreme Court case referenced.

Only one comment, from the joint letter of the 16 states' attorneys general, proposed expanding the sex-offender disqualification to include anyone who is currently registered “as a sex offender . . . , whether or not the offense or incident that gave rise to the registration obligation would disqualify the person from possessing a firearm under the Gun Control Act.” (Emphasis omitted.) This group cited to the Supreme Court's assessment that the “risk of recidivism posed by sex offenders is ‘frightening and high.’ ”

Commenter cited:

Smith

Doe,

538 U.S. 84, 103 (2003) (quoting

McKune

Lile,

536 U.S. 24, 34 (2002)).

The next proposed presumptive disqualifier for which some commenters sought removal was misdemeanor offenses. Certain commenters suggested that a person should not be disadvantaged in the restoration process for what could be perceived as a minor indiscretion. Others voiced concerns over specific misdemeanor offenses, often mentioning state offenses that they viewed as allowing too much discretion in charging to qualify as presumptive disqualifiers, such as stalking, threats, simple assault, or domestic violence-related charges. Numerous commenters opined that several of the disqualifying misdemeanors set forth in the NPRM did not necessarily include violence and suggested that lower-level versions of those offenses should be carved out of the presumptions and reviewed individually without requiring an applicant to overcome a negative inference. Offenses that commenters viewed as posing lesser risk included burglary, which could encompass breaking and entering; possession of burglary tools; vandalism; and involuntary manslaughter, which may involve unintentional or reckless conduct.

Another presumptive disqualifier that commenters asked the Department to remove was that pertaining to drug use. Comments on this topic focused primarily on marijuana use. Some commenters believed that no public safety rationale justifies presumptively disqualifying users of controlled substances, particularly marijuana users. They pointed to post-

Bruen

jurisprudence emphasizing the historic tradition of disarming primarily those persons found to be dangerous, and also to the fact that nearly two-thirds of states have legalized marijuana.

Some commenters also observed that if casual alcohol users are able to have their rights restored without overcoming a presumptive disqualification, then marijuana users should not be subject to such a presumption. On the other side of the issue, commenters who believed drug use was appropriately categorized as a presumptive disqualifier varied between those supporting a permanent ban and those endorsing some pathway to relief for former drug users, while one commenter opined that “all applicants should submit current drug test results.”

For example, one commenter mentioned cases before the U.S. Courts of Appeals for the Fifth and Eleventh Circuits but did not provide sufficient information to identify the specific cases discussed.

Some commenters supported removing from presumptive disqualification several types of possessory firearm offenses not committed in conjunction with violent acts, such as possession of a machine gun or possession of a firearm in a protected location. Such commenters described these offenses as administrative in nature. Commenters also contended that violating bans on certain types of gun magazines likewise should not trigger presumptive disqualification, arguing generally that laws punishing possessory offenses violate the Second Amendment because such offenses are not inherently violent. In contrast, some commenters expressed relief that the presumptions were

applied to firearms offenses; one commenter, for example, supported the presumptions because, according to a study cited by the commenter, handgun purchasers with at least one prior misdemeanor conviction were more than seven times as likely as those with no prior criminal history to be charged with a new offense after a handgun purchase.

Commenter cited: Garen J. Wintemute,

Prior Misdemeanor Convictions as a Risk Factor for Later Violent and Firearm-Related Criminal Activity Among Authorized Purchasers of Handguns,

280:24 JAMA 2083 (Dec. 1998),

https://jamanetwork.com/journals/jama/fullarticle/188297

(“

Prior Misdemeanor Convictions”

Next, one anonymous commenter posited that the Department should investigate “credible self-defense claims” and exempt those convictions from presumptive disqualification. Finally, another commenter posited that alien applicants prohibited under section 922(g)(5) should be removed from presumptive disqualification because “[n]o data show undocumented residents or visa holders are categorically more violent.”

Department Response:

The Department addresses in turn each offense targeted by commenters for removal from the presumptive disqualification list.

Sex-Offender Registration

The Department understands commenters' concerns about the “overly broad” application of a presumptive disqualification for SORNA registrants and certain sex offenders but disagrees with their ultimate conclusions. First, not all SORNA or sex-offender registration is presumptively disqualifying. The final rule provides at § 107.50(c)(6) that only ongoing registration stemming from the offense or offenses that led to the firearms disability will result in presumptive disqualification. Registration triggered solely by an offense that would not independently result in a firearms disability (

i.e.,

a misdemeanor offense) is not presumptively disqualifying, and this caveat should alleviate many commenters' concerns on this topic. Moreover, the least serious felony offenses that would independently result in a firearms disability are likely to require only a time-limited SORNA registration (typically 10 to 15 years). As such, those with the least serious SORNA qualifying offenses may no longer be subject to SORNA registration by the time of their application.

Second, commenters argued that recidivism rates for certain low-risk sex offenses are lower than the recidivism rates for general criminal offenses. The commenters, however, did not share the source of these claims. Although it is somewhat difficult to respond directly to unsourced claims, the Department notes that—according to a 2015 study completed by the Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking—sex offense recidivism rates are difficult to calculate and are often incorrectly identified as low due to artificially brief follow-up periods.

Researchers observed that “it is important to recognize that recidivism rates derived from followup periods of 5 years or less may mislabel a considerable proportion of repeat offenders as nonrecidivists.”

Although the Department does not presume to know precisely which studies commenters were referring to when making their claims, it is possible that those studies suffer from the same flaws regarding artificially low recidivism rates determined during short follow-up periods. Potentially flawed and unsourced studies are not a sufficient basis to alter the final rule's treatment of these types of offenses.

Roger Przybylski, U.S. Dep't of Just., Off. of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking,

SOMAPI Research Brief: Recidivism of Adult Sexual Offenders

1-2 (July 2015),

https://smart.ojp.gov/sites/g/files/xyckuh231/files/media/document/recidivismofadultsexualoffenders.pdf

(noting that recidivism rates are difficult to calculate because of “the surreptitious nature of sex crimes, the fact that few sexual offenses are reported to authorities, and the variation in the ways researchers calculate recidivism rates”). This study noted that recidivism rates for sex offenders were almost five times higher at 15 years than they were at 3 years.

Id.

at 4.

Id.

Moreover, commenters expressed concerns that registration as a sex offender on SORNA or another system does not independently indicate dangerousness warranting the application of a presumptive disqualifier, but those concerns ignore two important considerations. One, SORNA is a tiered system of registration, requiring longer durations of registration based on the nature of the offense, the vulnerability of the victim, and prior convictions of a similar nature.

Those with less dangerous offenses will be removed from the registry sooner, and thus SORNA is properly calibrated to retain the most dangerous offenders on the registry for longer periods. Although not every state's registry satisfies the same rigorous standards of SORNA, most offer some opportunity for removal from a registry or otherwise align registration length to the seriousness of the offense.

Two, a state's failure to permit removal from a registration can certainly be a factor that an applicant could point to when trying to overcome the presumption of disqualification. But in general, most offenders convicted of nonviolent sex offenses and deemed to be low risk will be removed from registration requirements at an appropriate time; at that point, the SORNA-registration presumptive disqualifier will no longer apply.

U.S. Dep't of Just., Off. of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking,

Sex Offender Registration and Notification in the United States: Case Law Summary

72 (July 2024),

https://smart.ojp.gov/case-law-summary-july-2024.pdf.

Restoration of Rights Project,

50-State Comparison: Relief from Sex Offense Registration Obligations

(Oct. 2022),

https://ccresourcecenter.org/state-restoration-profiles/50-state-comparison-relief-from-sex-offender-registration-obligations/.

The Department also declines to adopt the recommendation of the 16 states' attorneys general that registration as a sex-offender should be independently disqualifying, regardless of whether the registration is predicated on the offense causing the firearms disability. The overlap between sex-offender registration and firearms disability is substantial, and only a minority of offenses requiring sex-offender registration would not also create a firearms disability. The independent fact of registration is certainly a piece of evidence that the Attorney General can look to when making his ultimate assessment on the appropriateness of firearms restoration, but the Department declines to extend presumptive disqualification in this scenario.

Misdemeanor Convictions and Overly Broad Violent Conduct

In reference to comments proposing that certain misdemeanor offenses be removed from the presumptive disqualification list, the Department offers some clarification. To begin, section 922(g)(1) identifies any offense that is punishable by more than one year in prison, with certain exceptions identified in 18 U.S.C. 921(a)(20), as an offense prohibiting firearms possession under federal law. Although this prohibition aligns with the definition of felony offense under both federal law and the laws of many states, certain states may allow “misdemeanor offenses” to be punishable by more than one year of imprisonment. These differing definitions could lead to the same offense being treated as a misdemeanor in one state and a felony in another. Section 922(g), combined with section 921(a)(20), eliminates this confusion by providing a standard definition for offenses punishable by more than one year in prison,

identifying those offenses as disqualifying, and providing that any offense that does not meet that definition is not disqualifying.

Domestic violence misdemeanor convictions, in accordance with section 922(g)(9), are the only convictions that are punishable by less than one year in prison and that still serve as disabling predicate convictions. Those offenses are addressed separately above. Nevertheless, the final rule at § 107.50(b)(4) does identify persons under a firearms disability who have also been convicted of certain violent misdemeanor offenses as being presumptively disqualified from relief for a period of five years. This time-limited presumption was added to the proposed rule in recognition of evidence cited by commenters showing that individuals with convictions that involve violence are more likely to pose a danger to the public in the immediate aftermath of that conviction than those who commit offenses without any violent characteristics.

Moreover, this presumption acknowledges that some felony-level violent conduct may result in only misdemeanor-level conviction and punishment, as noted in the discussion of domestic violence offenses.

18 U.S.C. 921(a)(20) (“The term `crime punishable by imprisonment for a term exceeding one year' does not include—(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offense relating to the regulation of business practices, or (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.”).

See, e.g.,

U.S. Dep't of Just., Bureau of Just. Stats.,

Recidivism of Prisoners Released in 24 States in 2008: A 10-Year Follow-Up Period

(2008-2018) 10 tbl. 11 (Sept. 2021) (“

Recidivism of Prisoners Released in 24 States in 2008”

https://bjs.ojp.gov/BJS_PUB/rpr24s0810yfup0818/Web%20content/508%20compliant%20PDFs

[

https://perma.cc/ZT4S-38GF

] (showing that nearly 44 percent of violent offenders who were arrested after release were arrested for violent offenses (most frequently assault), as opposed to less than 35 percent of drug offenders, less than 40 percent of property offenders, and less than 42 percent of public order offenders being arrested for a violent offense); U.S. Sentencing Comm'n,

Recidivism Among Federal Violent Offenders

3 (Jan. 2019),

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019/20190124_Recidivism_Violence.pdf

(“[O]ffenders who engaged in violent criminal activity . . . generally recidivated at a higher rate, more quickly, and for more serious crimes than non-violent offenders . . . . Violent offenders have higher recidivism rates than non-violent offenders in every Criminal History Category, however, the difference in recidivism rates between violent and non-violent offenders is most pronounced in the lower Criminal History Categories and [certain specially designated categories].”); Julia P. Schleimer, Rachel Ross & Ali Rowhani-Rahbar,

Association of Prior Criminal Charges and Convictions with Subsequent Violent and Firearm-Related Crime: A Retrospective Cohort Study,

12 Injury Epidemiology 5 (2025),

https://link.springer.com/article/10.1186/s40621-025-00593-x

(“The absolute risk among those with prior misdemeanors was also high; for example, approximately 30% of those with a violent misdemeanor charge had a subsequent violent charge within 5 years.”);

Prior Misdemeanor Convictions

at 2086 tbl. 5 (showing that those with at least one violent misdemeanor conviction had nearly twice the relative risk of reoffending with a new violent offense (8.9) as those with only one prior nonviolent misdemeanor conviction (4.8)).

Importantly, regarding the concerns of some commenters that statutes criminalizing threats or stalking often encompass a wide range of conduct, the Department maintains that stalking is a crime that is either inherently violent or closely associated with violence, and so it is properly placed into the permanent presumptively disqualified category when it rises to the level of a felony, and warrants a five-year presumption of disqualification even when it rises only to the level of a misdemeanor.

Exceptions to these presumptions are addressed by the final rule's extraordinary circumstances mechanism at § 107.50(a), (b), whereby applicants may submit statements or information indicating that, based on the individual circumstances of their offense, restoration of their firearms rights is not likely to pose a danger to the public and would be aligned with the public interest. The Department will review those claims and may consider factors such as whether the underlying conduct could have been addressed through lesser charges, the amount of time elapsed since the conduct, and the age of the person at the time of the conduct when determining whether an applicant has shown extraordinary circumstances.

U.S. Dep't of Just., Off. on Violence Against Women,

Stalking, https://www.justice.gov/ovw/stalking

(last visited July 4, 2026) (defining stalking as “engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others or suffer substantial emotional distress.”).

Conversely, the Department agrees that it may have exercised an overabundance of caution when including in the permanent presumptive disqualification category offenses involving the mere threat of violence, rather than the performance of any violent act against a person. The final rule at § 107.50(b)(1)(ii) revises the presumptive disqualification for these types of offenses to a time-limited 10-year period, in recognition of the fact that some convictions involving threats of violence may not ultimately reflect dangerousness on the offender's behalf. For example, the Supreme Court recently affirmed that convictions for “true threats” can involve speech that is merely reckless and lacks a “more specific intent to threaten the victim.”

Two concurring Justices reiterated that threats do not necessarily involve the intent “to carry through with the threat.”

Because of the broad nature of the speech that is encompassed in threats as construed by the Supreme Court, the Department acknowledges that not all individuals who are convicted of offenses involving threats demonstrate the same elevated propensity for violence as those who commit one of the violent offenses enumerated in the permanent presumptive disqualification section. On the other hand, it is undoubtably true that some portion of those individuals who threaten violence do go on to commit violence. The final rule balances these considerations and includes a 10-year presumptive disqualification for convictions involving threats of violence.

Counterman

Colorado,

600 U.S. 66, 73 (2023).

Id.

at 84 (Sotomayor, J. & Gorsuch, J., concurring).

Drug Users

The Department appreciates comments received regarding the presumptive disqualification of current drug users. As explained further below, the final rule continues to include certain drug users and addicts as categories of persons presumptively disqualified from relief under this final rule. The Department, however, has amended the rule to exclude from the scope of the presumption those individuals whose unlawful drug use or addiction consists only of the use of or addiction to marijuana, in recognition of the Supreme Court's recent decision in

Hemani

and in light of the many comments received regarding use of marijuana.

Specifically, the definition of “controlled substance” in the final rule at § 107.1 no longer includes marijuana, and the presumption of ineligibility for relief based on unlawful drug use or addiction at § 107.50(c) now applies only to controlled substances as defined in § 107.1. These changes have the effect of excluding unlawful marijuana use and marijuana addiction from the scope of conduct giving rise to a presumption of ineligibility under § 107.50(c).

The Department also made technical changes to reorganize the provision regarding individuals engaging in ongoing unlawful conduct and to improve the final rule's clarity.

See

28 CFR 107.50(c).

With respect to the rule's remaining drug-based presumption of ineligibility (

i.e.,

for drugs other than marijuana), the Department notes that individuals prohibited from owning firearms based on drug use or addiction are among the class of persons who can take themselves out of the prohibited

category simply by ending their unlawful conduct and avoiding additional drug-related conduct for a period of time—thus disrupting the “pattern” of drug use. Drug-use prohibitions are documented in the National Instant Criminal Background Check System (“NICS”),

a centralized repository of records documenting those who are under federal or state firearm prohibitions. Since 1997, NICS has viewed an individual as being a current drug user if, within the past year, the person has had a conviction for drug use or possession or has engaged in conduct that indicates drug use and, accordingly, drug-use-related records are retained in NICS Indices for only one year.

As a result, individuals prohibited on the basis of drug use or addiction can regain the right to possess a firearm, assuming no other prohibitors apply to them, by abstaining from ongoing drug use and allowing 12 months to pass. For these individuals, this final rule's drug-use-related presumption of ineligibility for relief under section 925(c) is irrelevant because such individuals will not need to apply for relief under section 925(c) at all.

NICS is the system used to conduct background checks on people who want to own a firearm or explosive, as required by law. FBI,

How We Can Help You, https://www.fbi.gov/how-we-can-help-you/more-fbi-services-and-information/nics

(last visited July 4, 2026). NICS provides the primary means of identifying those who are prohibited from owning firearms, including those who are prohibited based on drug use or addiction to a controlled substance.

See

FBI,

Active Entries in the NICS Indices as of December 31, 2025

at 6,

https://www.fbi.gov/file-repository/cjis/active-entries-in-the-nics-indices.pdf/view

(last visited July 4, 2026) (“

Active Entries”

) (“Since [evidence of being an unlawful user or addicted to a controlled substance creates] a temporary prohibition (one year), an expiration date [for such evidence] is required to be established in NICS Indices.”); 28 CFR 25.9(a) (“In cases where a firearms disability is not permanent,

e.g.,

a disqualifying restraining order, the NICS will automatically purge the pertinent record when it is no longer disqualifying.”). Documents indicating drug use could include items such as positive drug tests or admissions of use.

Active Entries

at 6;