Tenn. Op. Atty. Gen. No. 97-169
Office of the Attorney General
State of Tennessee
Opinion No. 97-169
December 22, 1997
Felons obtaining a handgun carry permit after restoration of rights
Stephen I. Cohen
State Senator
Suite 8, Legislative Plaza
Nashville, TN 37243-0030
QUESTIONS
1. Does restoration of rights of citizenship pursuant to Tenn.
Code Ann. §§ 40-29-101 through 40-29-105 (1997) render a felon who has been
convicted of an infamous crime (FN1) eligible to obtain a handgun carry permit upon
proper application under 1997 Pub. Acts ch. 476 § 1 (codified at Tenn. Code Ann. §
39-17-1351 (1997) and hereinafter referred to as such)?
2. What is the procedure to obtain restoration of rights of
citizenship?
OPINIONS
1. Yes. Restoration of rights of citizenship pursuant to Tenn.
Code Ann. §§ 40-29-101 through 40-29-105 will enable some felons to obtain a
handgun carry permit, if otherwise qualified, upon proper application under Tenn.
Code Ann. § 39-17-1351.
2. Most felons may have their rights of citizenship restored by
petitioning the circuit court of the county in which they reside or in which they were
convicted after the expiration of the maximum sentence imposed and by following the other
procedures set out in Tenn. Code Ann. §§ 40-29-101 through 40-29-105.
ANALYSIS
1.
To obtain a handgun carry permit under Tennessee Law, a person, inter
alia, must be eligible to possess a handgun under all of the following provisions:
Tenn. Code Ann. §§ 39-17-1316(a), 39-17-1307(b) (1997); 18 U.S.C. § 922(g)
(Supp. 1996); and any other State or federal law. Tenn. Code Ann. § 39-17-1351(b).
Generally, felons (FN2) are ineligible to possess a handgun under all of those
statutes, (FN3) unless their rights have been restored (FN4) and unless they
are otherwise qualified. Tenn. Code Ann. § 39-17-1351(j); 18 U.S.C. §§
922(g)(1), 921(a)(20) (Supp. 1996).
For felons to lawfully possess a firearm under federal law, they must
have their "civil rights" restored to them by the appropriate State. The
definition of "civil rights" for purposes of 18 U.S.C. §§ 922(g) and
921(a)(20) has been set forth in federal case law. United States v. Cassidy,
899 F.2d 543 (6th Cir. 1990). The Sixth Circuit held that for purposes of 18 U.S.C.
§§ 922(g), 921(a)(20) "civil rights" means the "right to vote, the
right to seek and hold public office and the right to serve on a jury." Id. at 549
(footnote omitted), cited with approval in United States v. Dahms, 938 F.2d 131, 133
(9th Cir. 1991) and United States v. Hassan El, 5 F.3d 726, 734 (4th Cir. 1993). The
court ruled that a State must restore all three of those rights to a felon, and not
otherwise prohibit the felon from possessing a firearm under State law, in order for that
felon to be able to lawfully possess a firearm under federal law. The United States
District Court for the Middle District of Tennessee followed Cassidy in deciding a similar
issue. United States v. White, 808 F. Supp. 586 (M.D. Tenn. 1992). Thus, a felon
must have the rights to vote, seek and hold public office, and to sit as a juror restored
in order to be able to lawfully possess a firearm under federal law.
Whether those rights are lost upon conviction and thereafter restored
to felons is a matter of State law. In Tennessee, felons convicted of an infamous crime
lose the right to vote ( Tenn. Code Ann. § 40-20-112), lose the right to sit as a juror (
Tenn. Code Ann. § 22-1-102(a)(1) (1994)), and may lose the right to seek and hold public
office (FN5) ( Tenn. Code Ann. § 40-20-114 (1997)). A felon may have all of these
rights restored to him under the procedure outlined in Tenn. Code Ann. §§
40-29-101 through 40-29-105. "Persons rendered infamous or deprived of the
rights of citizenship by the judgment of any state or federal court may have their full
rights of citizenship restored by the circuit court." Tenn. Code Ann. §
40-29-101(a) (1997). The General Assembly's use of the word "full" in this
context evidences its intent that a felon be restored to all rights of citizenship lost by
virtue of conviction. (FN6) In Op. Tenn. Att'y Gen. 87-57 (Apr. 2, 1987), this
office opined that the restoration of a person's rights of citizenship pursuant to
Tenn. Code Ann. § 40-29-101 et seq. operates to remove any incompetency to State court
jury service. However, felons convicted of murder, rape, treason, and voter fraud may not
have their right to vote restored. Tenn. Code Ann. §40-29-105(b)(2), (c)(2)(B).
Since Tennessee restores to most felons the rights to vote, to seek and
hold public office, and to sit as a juror, those felons may lawfully possess a firearm
under federal law, if otherwise qualified. Therefore, such felons may obtain a handgun
carry permit under Tennessee law if otherwise qualified. (FN7)
2.
The procedures for felons to have their rights restored, and thus
become eligible to obtain a handgun carry permit, if otherwise qualified, are set forth in
Tenn. Code Ann. §§ 40-29-101 through 40-29-105. The exact procedure to be
used depends on the date of one's conviction.
Before July 1, 1986
If a felon was convicted before July 1, 1986, he must petition
"the circuit court of the county in which the petitioner resides, or to the circuit
court of the county in which the petitioner was convicted." Tenn. Code Ann. §
40-29-102 (1997). The petition must be made after expiration of the maximum sentence
imposed. Tenn. Code Ann. § 40-29-101(c). The petition must contain
"satisfactory proof that ever since the judgment of disqualification, the petitioner
has sustained the character of a person of honesty, respectability and veracity, and that
he is generally esteemed as such by his neighbors." Tenn. Code Ann. §
40-29-102. Before the hearing on the petition, the court will notify the district attorney
general or United States attorney, as applicable, of the prosecuting jurisdiction and the
district attorney general having jurisdiction over the felon's place of residence for an
opportunity to resist. Tenn. Code Ann. § 40-29-103 (1997). Appeal of denial of
restoration of rights lies with court appeals and is reviewed de novo upon the record of
trial. In re Curtis, 6 Tenn. Civ. App. (6 Higgins) 12 (1915).
On and after July 1, 1986, but before July 1, 1996
If a felon was convicted on and after 1, 1986, but before July 1, 1996,
he must request a certificate of restoration from "an agent or officer of the
supervising or incarcerating authority" after "service or expiration of the
maximum sentence imposed ... or [after] being granted final release from incarceration or
supervision by the board of parole, the department of correction or county correction
authority." Tenn. Code Ann. § 40-29-105(b)(1)(A), (b)(1)(B), and (b)(3)(B)
(1997). The felon must then submit the certificate of restoration to the registrar of the
county in which the felon is eligible to vote. Tenn. Code Ann. § 40-29-105(b)(5).
The authority issuing the certificate of restoration will send a copy of the certificate
to the coordinator of elections. Tenn. Code Ann. § 40-29-105(b)(4). The registrar
will verify the certificate submitted by the felon with the coordinator of elections
before issuing a voter registration card. Tenn. Code Ann. § 40-29-105(b)(5) and
(b)(6). Felons convicted of murder, aggravated rape, treason or voter fraud on and after
July 1, 1986, but before July 1, 1996 "shall never be eligible to register or vote in
this state." Tenn. Code Ann. § 40-29-105(b)(2).
On or after July 1, 1996
If a felon was convicted on or after July 1, 1996, he must petition
"the circuit court of the county where the petitioner resides or where the conviction
for the infamous crime occurred." Tenn. Code Ann. § 40-29-105(c)(1). The
petition must be made after expiration of the maximum sentence imposed. Tenn. Code
Ann. § 40-29-105(c)(2)(B). The petition must "state the reasons the petitioner
believes that ... full citizenship rights should be restored [and] shall be accompanied by
such certified records, statements and other documents or information as is necessary to
demonstrate to the court that the petitioner is both eligible for and merits having full
rights of citizenship restored." Tenn. Code Ann. § 40-29-105(c)(3). Before
acting on the petition, the court will notify the district attorney general or United
States attorney, as applicable, of the prosecuting jurisdiction and the district attorney
general having jurisdiction over the felon's place of residence of the opportunity to
object. Tenn. Code Ann. § 40-29-105(c)(4). If the court approves the petition, it
will order restoration and send a copy of the order to the coordinator of elections.
Tenn. Code Ann. § 40-29-105(c)(5). The felon must submit a certified copy of the
order to the registrar of the county in which such felon is eligible to vote. Tenn.
Code Ann. § 40-29-105(c)(7). The registrar will verify the order with the coordinator of
elections and issue a voter registration card upon verification. Id. "A person
convicted of murder, rape, treason or voter fraud on or after July 1, 1996 shall never be
eligible to register and vote in this state." Tenn. Code Ann. §
40-29-105(c)(2)(B).
John Knox Walkup
Attorney General and Reporter
Michael E. Moore
Solicitor General
Roger E. Nell
Assistant Attorney General
FN1. "Felony" and "infamous crime" as used herein are not synonymous.
Not every felony has always been an infamous crime. Prior to May 18, 1981, an
"infamous crime" was any of the following: "abusing a female child, arson
and felonious burning, bigamy, burglary, felonious breaking and entering a dwelling house,
felonious breaking into a business house, outhouse other than a dwelling house, bribery,
buggery, counterfeiting, violating any other laws to suppress the same, forgery, incest,
larceny, horse stealing, perjury, robbery, receiving stolen property, rape, sodomy,
stealing bills of exchange or other valuable papers, subornation of perjury, and
destroying a will." Compiler's Note to Tenn. Code Ann. § 40-20-112 (1997).
From May 18, 1981, all felonies are "infamous crimes." Tenn. Code Ann. §
40-20-112 (1997). The expansion of the scope of this term cannot be applied retroactively.
Gaskin v. Collins, 661 S. W. 2d 865 (Tenn. 1983).
"Felons" refers to persons convicted of felonies, whether or
not the crime was infamous, unless the context further modifies the word, as in
"felons convicted of infamous crimes."
FN2. This opinion does not address felons who may have this disability removed by virtue
of expungement, set aside, or pardon, and references herein to felons assumes that their
convictions have not been expunged or set aside and that they have not been pardoned.
FN3. Felons convicted only of felony "offenses pertaining to antitrust violations,
unfair trade practices, restraints of trade or other similar offenses relating to the
regulation of business practices" may lawfully possess a handgun under both state and
federal law even without restoration of their rights. They may obtain a handgun carry
permit, if otherwise qualified. Tenn. Code Ann. § 39-17-1351(c)(6); 18 U.S.C.
§ 921(a)(20)(A).
FN4. Felons convicted of a "felony involving the use or attempted use of force,
violence, or a deadly weapon" or of any felony drug offense may not lawfully possess
a handgun under Tennessee law even if they have had their rights restored. Tenn.
Code Ann. § 39-17-1307(b). They cannot, therefore, qualify for a handgun carry permit.
Likewise, felons convicted of "burglary, any felony offense involving violence or use
of a firearm or any felony drug offense involving a Schedule I, II, III, IV or V
controlled substance" are barred from obtaining a handgun carry permit. Tenn.
Code Ann. § 39-17-1351(j)(3).
FN5. Note that even though a person may have been convicted of a felony or an infamous
crime, he does not automatically lose the right to seek and hold public office. The person
must have also been sentenced to the penitentiary. Tenn. Code Ann. § 40-20-114.
Further note that not all felons have been convicted of infamous
crimes, see Note 1, supra, and may not have lost these rights. Those felons would,
therefore, have no need to seek restoration of those rights to be eligible to lawfully
possess a firearm or to be eligible for a handgun carry permit. Felons convicted of
felonies that were not defined as infamous crimes before May 18, 1981 would not have lost
the rights to vote or to sit on a jury, and would have lost the right to seek and hold
public office only if also sentenced to the penitentiary.
FN6. No Tennessee Supreme Court case has addressed whether a person may have the right to
sit as a juror restored. State v. Bell, 745 S.W.2d 858 (Tenn. 1988), addresses the
statute, but it does not discuss whether a person may regain the ability to sit on a jury
after conviction of an infamous crime. Id. at 860-61. See also, Durham v. State, 182
Tenn. 577, 581, 188 S.W.2d 555, 557 (1945) (issue squarely presented except that appellant
failed to preserve it for appeal and court did not decide it). Similarly, United
States v. White, 808 F. Supp. 586 (M.D. Tenn. 1992), alludes to the issue, but, not
needing to resolve it to decide the case, left the question unanswered.
FN7. It has been suggested that the General Assembly, by enacting Tenn. Code Ann. §
39-17-1351(j)(3), intended that a felon must obtain restoration of rights through a court
proceeding in order to be eligible to obtain a handgun carry permit. In other words, the
suggestion is that the General Assembly did not intend that a felon who obtained
restoration of rights through the automatic procedure available from July 1, 1986 until
June 30, 1996 be able to obtain a handgun carry permit.
The pertinent part of the statute states: "The department shall
not deny a permit application if ... [t]he applicant ... has had his or her full rights of
citizenship duly restored pursuant to the procedures set forth within title 40, chapter 29
...." Tenn. Code Ann. § 39-17-1351(j)(3). Title 40, chapter 29 of the
Tennessee Code provides three procedures for the restoration of rights, the procedure
applicable to a particular felon depending upon the date of his conviction, as further
explained in the main text, infra.
"In construing statutes, [we] must presume that the legislature
has knowledge of its prior enactments and knows the state of the law at the time it passes
legislation." State v. Levandowski, No. 03-S-01-9611-CR-000116, 1997 WL 610823,
at *1 (Tenn. Oct. 6, 1997). In this instance, the tape recordings of the debates in
committee and on the floor of both houses concerning this statute evidence that the
legislators were well aware of the automatic restoration procedure in place from 1986 to
1996. In the end, however, the General Assembly passed a final bill that did not
distinguish between the automatic procedure and the court procedure for restoration of
rights for purposes of obtaining a handgun carry permit. On this point, the statute is
clear and unambiguous. Only "[w]hen the language is ambiguous and does not yield a
clear interpretation ... may [we] consult the legislative history for additional
interpretive guidance." Carter v. State, 952 S.W.2d 417, 419 (Tenn. 1997).
Therefore, felons who have had their rights restored under the automatic procedures in
place in 1986 to 1996 are eligible to obtain a handgun carry permit, if otherwise qualified.