Are Plans Underway for U.S. Dept. of Justice to Reinstate Gun Rights for State Crimes?
Does the U.S. Department of Justice intend to offer a path for people with state convictions to apply for reinstatement of their gun rights?
Main Points:
Recent events reflect that the U.S. Dept of Justice's (DOJ) plans to establish a process by which individuals who have lost their gun rights due to a conviction can apply for reinstatement of those rights. At the present time, it is not clear if this process will apply only to federal offenders or both federal and state offenders.
At the present time, the only clear path for someone with a federal conviction to get their gun rights reinstated is to seek a pardon from the president.
If someone has lost their gun rights due to a state conviction, that individual must utilize the remedies available in the state where the crime occurred to reinstatement those rights.
Illinois now provides several ways in which someone can petition (appeal) to regain their gun rights. The nature of the offense (e.g., crime of violence or not) determines what those appeal rights are.
Under the current governor of Illinois, J.B. Pritzker, requests for reinstatement of gun rights have been routinely denied.
Earlier this month a U.S. Department of Justice (DOJ) attorney assigned to the Office of the Pardon Attorney (OPA)[1] was asked to identify candidates worthy of having their gun rights reinstated. The original list the pardon attorney provided contained 95 names, all of whom had pending pardon petitions and been vetted by the OPA staff.
After submitting the initial list, the pardon attorney was instructed to cut the list down to nine names. After resubmitting the list, a DOJ official asked the pardon attorney to add the actor Mel Gibson’s name to the list.[2]
After initially rejected the suggestion to add Mr. Gibson’s name, the DOJ attorney was asked to reconsider her decision.
The pardon attorney had already stated why she was not comfortable adding Mr. Gibson to the list: she knew nothing about his California domestic battery conviction, his subsequent rehabilitation efforts, or his risk of reoffending. To counter her concerns, the DOJ official offered the following information: Mr. Gibson is a good friend of the President and he’s starred in a lot of good movies.
The pardon attorney again declined to include Mr. Gibson’s name. The next day, the attorney was abruptly terminated without explanation.
Why is DOJ Prioritizing Reinstating Mel Gibson’s Gun Rights?
At this point, you might be asking: Why were DOJ officials so interested in reinstating Mr. Gibson’s gun rights? Not being a psychic, I doubt we’ll ever get a straight answer to that question.
More recently, however, we now see why the DOJ asked the pardon attorney to draw up that list of names. Not surprisingly, this story begins with an Executive Order.[3]
Executive Order 14206
On February 7, 2025, Executive Order 14206 (EO) was signed by President Trump with little fanfare. Titled Protecting Second Amendment Rights, EO 14206 instructed the DOJ to:
[A]ssess any ongoing infringements of the Second Amendment rights of our citizens, and present a proposed plan of action to the President, through the Domestic Policy Advisor, to protect the Second Amendment rights of all Americans.
(E.O. 14206, Sec. 2).
In other words, the president directed the DOJ to remove any orders, regulations, or plans enacted by President Biden that might be seen as “infringing” on citizen Second Amendment rights. There is nothing in the text of EO 14206 directing the DOJ to create a new process by which individuals can apply to regain their gun rights (following a criminal conviction) independent from the pardon process – currently, the only practical way federal offenders can regain their gun rights.
Nevertheless, on March 20, 2025, DOJ issued a “rule” cryptically titled Withdrawing the Attorney General’s Delegation of Authority. The rule cites EO 14206 as its rationale for seeking to create a new gun rights reinstatement review process.[4] Docket. No. OLP-179AG Order No. 6212-2025) (hereafter cited as Docket No. OLP-179AG) https://www.federalregister.gov/documents/2025/03/20/2025-04872/withdrawing-the-attorney-generals-delegation-of-authority
DOJ Offers No Insight on How it Plans to Review Gun Right Requests
I was eager to read DOJ’s rule since I have many questions regarding how it plans to vet these requests. What criteria is the DOJ going to consider? Is there going to be a waiting period to apply? Will there be a list of ineligible offenses? Is the process going to be limited to federal crimes or will it cover both federal and state crimes?
With the possible exception of my last question – whether the review process would apply to state crimes -- none of my questions were addressed in the DOJ’s rule. Instead, much of the rule focused on why the DOJ believes it rather than the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) should assume responsibility over this new review process.
To date, the DOJ has sent mixed messages as to whether it plans to consider review requests from state offenders, despite its claim that the rule “will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.” See Docket No. OLP-179AG, Sec. E.
How then does one reconcile the DOJ’s words with its own actions advocating for Mr. Gibson’s name to be to the list of possible recipients for this policy initiative? It is indisputable that Mr. Gibson lost his gun rights due to a state conviction. Bluntly put: the words and actions of the DOJ are mutually exclusive.
Does DOJ Have the Legal Authority to Reinstate Gun Rights Due to a State Crime?
Given its pointed assertion that its review process will not trigger “federalism implications,” the DOJ seems to recognize the right of States to regulate who can and can’t legally own a firearm within its borders – a right, by the way, previously recognized by the U.S. Supreme Court.
The U.S. Supreme Court has held that the law of the convicting jurisdiction determines whether someone’s gun rights should be restored. See Beecham v. U.S., 511 U.S. 368 (1994) (interpreting the federal Gun Control Act of 1968, 18 U.S.C. §921(a)(20)).
In light of recent actions taken by President Trump and his administration, one cannot rule out the possibility that DOJ may simply ignore prior U.S. Supreme Court precedent and assert that it has the legal authority to reinstate gun rights even with respect to those convicted of state crimes.
Current Remedies Available for Reinstating Gun Rights in Illinois
In the 10 years since filing my first clemency petition to reinstate a client’s gun rights, Illinois now offers more avenues of relief to those seeking reinstatement of their gun rights due to a criminal conviction.
Depending on the crime in question, these remedies run the gamut from petitioning a state court judge to order the Illinois State Police (ISP) to issue a FOID card (provided 20 years have passed since sentence completion[5]), filing an appeal with the FOID Card Review Board (authorized to review some FOID card conviction denials, as well as mental health denials), or seeking a full pardon from the governor.
Gov. J.B. Pritzker, who is midway through his second term as governor, has routinely declined requests for gun rights restoration through the clemency process unless the petitioner is seeking a pardon for immigration purposes. Individuals facing removal (deportation) must obtain a full pardon (reinstating all rights lost due to a felony conviction) in order to block a federal order of removal (deportation).
Under the Illinois Constitution, the governor has absolute discretion to use their authority to grant or deny a clemency (pardon or sentence commutation) request as s/he sees fit.
Conclusion
At this juncture, it is hard to predict who will benefit from the DOJ’s forthcoming review process. Most likely, we’ll have to wait until the final rule is published. The DOJ is accepting comments (as to how the review process should be conducted) from the public through June 18, 2025 about its plans.
Given the priority the DOJ appears to be giving this assignment, it would not come as a huge surprise if the DOJ has a review process up and running by the end of the year. Stay tuned.
[1] The Office of the Pardon Attorney (OPA) is housed within the DOJ and is responsible for assisting the U.S. president in exercising his or her authority to issue pardons, pursuant to Article II, Sec. 2, of the U.S. Constitution. In order to apply for a pardon through OPA, an individual would file a petition for a pardon. President Trump has largely side stepped the OPA. Only 25 (10.5%) of his pardons were vetted by the OPA. That means that the vast majority of pardon recipients never filed a pardon petition or underwent any detailed review of their character.
[2] To be clear, Mr. Gibson does not have a pending federal pardon petition. Mr. Gibson is not eligible for a federal pardon because his gun rights were revoked due to a 2011 domestic battery conviction, a state crime.
[3] Over the course of the past two months, President Trump has issued roughly 97 executive orders. During his first term in office, Trump issued 220 such orders. If he continues to issue executive orders at the current rate, he will have issued 2,328 executive orders by the end of his presidency. But then, I digress.
[4] As an aside, Project 2025’s chapter on DOJ contains no discussion or recommendation that DOJ play a more active role in reinstating the gun rights of those with disqualifying convictions.
[5] The 20-year waiting period applies only to forcible felony crimes. If someone has not been convicted of a forcible felony, there is no waiting period to file. Thus, if the individual has been convicted of a class 1 felony drug offense, s/he is not subject to a waiting to file a petition in state court. Given that petitioners must establish proof of rehabilitation and would not pose a current danger to the community to possess a gun, it is generally recommended that one wait several years before petitioning a judge to improve their odds of being successful. County prosecutors and/or the ISP have a right to intervene and oppose these requests.