Dynamic Incorporation, Rights Restoration, and 18 U.S.C. § 922(g)(1)
A felony conviction carries consequences beyond imprisonment. Felons often have trouble securing housing or employment post-release. They may be disqualified from receiving public assistance, including food stamps, subsidized housing, and financial aid. Felons are also categorically prohibited from serving in the armed forces. And, most relevant here, a felony conviction typically deprives felons of their civil rights, including the rights to vote, hold public office, serve on a jury, and possess firearms.
But so too do state legislatures provide mechanisms for restoring felons’ rights. States vary widely in how, when, and whether to restore these rights. Some states restore certain rights automatically; others do so on a case-by-case basis; some states restore most or all rights shortly after release; others are stingier, restoring perhaps the right to vote automatically but making it more difficult for felons’ other rights to be restored.
This Note focuses on one right in particular: the right to keep and bear arms, enshrined in the Second Amendment of the Constitution. Yet the purpose of this Note is not to analyze the constitutionality of restrictions on felons’ gun rights, a disputed topic since the Supreme Court’s decision in District of Columbia v. Heller. Instead, this Note focuses on how states’ mechanisms for restoring felons’ civil and gun rights influence the federal felon-in-possession law, which prohibits persons convicted of federal or state felonies from possessing firearms. It does so through the lens of “dynamic incorporation,” a process by which Congress incorporates the changing policy judgments of state legislatures into federal law.
In a recent article, Joshua M. Divine extolls the benefits of dynamic incorporation and encourages Congress to use the tool more often in federal criminal law. Divine identifies a few existing instances of dynamic incorporation in federal criminal law, including the felon-in-possession law. Yet he argues that the felon-in-possession law is a poor example of dynamic incorporation because it provides state legislatures few incentives to change their own criminal laws to influence the application of the federal felon-in-possession law. This Note concedes that states are unlikely to change their own laws simply to influence how the felon-in-possession law applies. It argues, however, that Divine misses an important second layer of dynamic incorporation in the felon-in-possession law: the rights-restoration provision in 18 U.S.C. § 921(a)(20). This provision exempts a felon from the felon-in-possession law when his civil rights—the rights to vote, hold public office, and serve on a jury—have been restored under state law, provided the state does not expressly limit the felon’s gun rights.
Under the felon-in-possession law, the laws of the convicting jurisdiction, often a state, determine what constitutes a conviction for “a crime punishable by imprisonment for a term exceeding one year,” triggering the felon-in-possession prohibition. The laws of the convicting jurisdiction also determine whether a felon’s civil rights have been restored. So, the statute provides states more than one way to influence whether the federal felon-in-possession law applies. First, they can define a predicate offense as punishable by imprisonment for a year or less. And second, they can exempt a felon who would otherwise be subject to the prohibition in § 922(g)(1) by restoring his civil rights without otherwise limiting his gun rights.
This second way is more congruous with the goals of dynamic incorporation. States are likely to take into account how their own laws interact with the felon-in-possession law’s rights-restoration provision. Those wishing to preserve the option of federal prosecution of felons who possess firearms may well choose not to restore one or more civil rights, or to impose explicit limitations on felons’ gun rights. Those wishing to free certain felons from the threat of federal firearms prosecution may automatically restore these felons’ civil rights upon release or shortly thereafter, without imposing any limitations on their gun rights. The rights-restoration provision is nonetheless an imperfect mechanism for dynamic incorporation. Its text, and how courts have interpreted the text, restricts states’ capacity to influence the federal felon-in-possession law without abandoning local judgments as to when, whether, and to what extent felons’ civil and gun rights should be restored.
This Note proceeds in three parts. Part I briefly diagnoses a problem that has been diagnosed many times before: the federalization of criminal law. It then provides an overview of dynamic incorporation, a potential solution to this problem, and offers two scholars’ differing views on the benefits and costs of dynamic incorporation. Part I concludes by introducing the federal felon-in-possession law and examining how it dynamically incorporates state law, including through the rights-restoration provision. Part II begins by surveying how courts have interpreted the rights-restoration provision and related provisions in § 921(a)(20). It then reviews the diverse ways states restore civil and gun rights, using three states’ restoration procedures as examples. Finally, drawing on lessons from Parts I and II, Part III proposes three amendments to § 921(a)(20) that would allow states to more directly influence how the federal felon-in-possession law applies.
