Rights Restoration Won't Get Felon a Gun in Mont.
(CN) - Though Montana restores civil rights to convicted felons upon completion of their sentences, the 9th Circuit said the ex-cons are still not entitled to possess a firearm.
Frank Van der hule was convicted of sexual assault and four counts of sexual intercourse without consent in 1983. He was sentenced to 25 years in prison and was released in 1996. In 2003 he applied for a concealed weapons permit, but a National Instant Criminal Background Check System (NICS) examiner concluded that Van der hule should not be allowed to obtain a concealed weapons permit under Montana law and that he is precluded from purchasing or possessing a firearm under federal law.
After the NCIS Appeal Services Team upheld the examiner's decision, Van der hule alleged "erroneous denial of firearm" in a federal complaint.
Van der hule argued that under Montana law, "if a person has been deprived of a civil or constitutional right by reason of conviction ... and the person's sentence has expired ..., the person is restored to all civil rights and full citizenship, the same as if the conviction had not occurred."
Though a federal judge sided with the government on summary judgment in September 2007, he asked the Montana Supreme Court to clarify whether a sheriff under Montana law can grant a concealed-weapons permit to an individual with a felony conviction.
The Montana Supreme Court ruled in 2009 that a sheriff could not.
Van der hule had in the meantime amended his complaint, and District Court again granted the government summary judgment, refusing to let Van der hule obtain a concealed weapons permit or to possess a firearm.
A three-judge panel of the 9th Circuit affirmed Wednesday, finding that Van der hule does have a Second Amendment case.
"Montana's prohibition on Van der hule's obtaining a permit to carry a concealed weapon is a sufficient restriction of his firearm rights to trigger the 'unless clause' of [federal code]," Judge Jay Bybee wrote for the court in Portland, Ore. "He is, accordingly, forbidden to receive or possess a firearm under federal law and that ban does not violate his Second Amendment rights."
The ruling also notes that Montana law supports denying concealed-carry permits to applicants convicted of a crime that includes "sexual abuse, or sexual intercourse or contact without consent."
"Because Van der hule was convicted of the crimes of sexual abuse and sexual intercourse without consent, the sheriff cannot issue him a permit to carry a concealed weapon, which in turn restricts him from concealing a handgun in certain locations," Bybee said.
In any case, the federal law prohibiting convicted felons from owning guns trumps state law, according to the ruling.
"Although Montana has enacted only a time, place, or manner restriction on Van der hule's possession of handguns, Congress has adopted 'a single, national, protective policy, broader than required by state law," Bybee wrote.
Judges William Fletcher and Raymond Fisher rounded out the panel.