Written by Barry Zimmerman, updated by Keegan Smith.
In California, people can lose their gun rights in different ways, sometimes even without a felony conviction. This can be a surprise, especially if you find out when your gun purchase is denied. In this post, we’ll explain how gun rights can be lost and share possible ways to get second amendment rights back.
1. Losing gun rights for a mental health issue. If your mental health issue gets you attention from authorities and they determine you are a danger to yourself or others, they can take away your right to own a firearm. Most often the mental health issue comes to the authority’s attention when a person is involuntarily committed on a psychiatric hold, known commonly in California as a “5150” or “5250” hold.
2. Losing gun rights by government action. If a report is made against you or you are arrested for a crime, the government may determine that you are dangerous and cannot have a gun. This can even happen without an arrest or subsequent prosecution. Before your gun rights are taken away, you have the right to a hearing before a judge.
3. Losing gun rights by being convicted of certain misdemeanors. You can lose firearm rights for 10 years for some misdemeanor convictions, like domestic violence or sex crimes. See Can you own a gun if you have a misdemeanor conviction in California? for a list of misdemeanor offenses that affect your right to possess guns.
4. Losing gun rights by being convicted of a felony. If you have a felony conviction, regardless of the type of crime, it can result in a lifetime ban on your right to possess a gun.
1. If you lose your firearm rights because of a court case, the judge or your lawyer will tell you.
2. If your right to possess firearms is taken because you are arrested for a crime, the police will tell you.
3. You can request a copy of your criminal record from the Department of Justice. An experienced criminal defense attorney can review your record with you to determine if you have a felony conviction or a misdemeanor conviction that affects your firearm rights.
There are two ways to surrender your guns if you lose your second amendment rights:
1. Make an appointment with local law enforcement, tell them you are surrendering your firearm, and follow the instructions they provide for safe surrender of the gun.
2. Contact a federally licensed firearm dealer (commonly called an FFL), and sell the firearm, consign it, or pay rent to store it until your rights are reinstated. You may also use the FFL to facilitate the transfer of the firearm to a person who does not have any prohibitions on the right to firearms. In any event, you should get a receipt from the transfer, sale or storage of the firearm, as it will provide proof that you no longer possess the gun.
Reinstatement or restoration of your right to a firearm depends on how you lost your rights.
1. If you lost your rights due to a mental health issue. Get treated. Once healthy, you may request a hearing before the court and present evidence of your treatment and rehabilitation. If the court determines you are no longer a danger to yourself or others, they may issue an order restoring your right to a firearm.
2. If you lost your gun rights after being arrested or the subject of a report. You can request a court hearing and present evidence that shows why you should have your gun rights restored.
3. If you lost your gun rights after a felony conviction. There are only two ways for a person convicted of a felony to have their firearm rights restored in California.
a. Have your felony conviction reduced to a misdemeanor conviction. Only certain felony convictions can be reduced to misdemeanors in California. Lawyers often call these charges “wobblers,” as they wobble from felony to misdemeanor depending on the facts of the case. Not all felonies are wobblers, so this is only possible for some felonies. See How can I get my felony reduced to a misdemeanor to get my gun rights back in California?
b. Apply directly to the Governor for a pardon. See How do I petition the Governor in California to get my gun rights back?
Unfortunately, no.
California law requires you to return to court, usually with the help of a criminal defense attorney, and request to have your rights restored. The process can be difficult and frustrating for some parties.
Call the Cohen Defense Group at (916) 596-2700 to talk to an experienced criminal defense attorney about returning to court to get your gun rights back. Or fill out our contact form here.
A misdemeanor domestic violence conviction and some misdemeanor sex crimes will require you to surrender your firearms and ban you from gun ownership for 10 years. Misdemeanor convictions that will impact your second amendment rights include:
• Assault with a deadly weapon
• Battery
• Sexual battery
• Threatening public officials • Intimidating witnesses
• Threatening witnesses
• Reckless discharge of a firearm
• Violation of a domestic violence protection order
• Domestic violence charges including corporal injury to a spouse
• Unlawfully bringing a gun into a courtroom or school
It depends. Having multiple misdemeanor convictions on your record will not affect your gun rights, unless one of the misdemeanors carries a firearm ban. If you have been convicted of a misdemeanor that carries a firearm ban, like a misdemeanor domestic violence conviction, or some misdemeanor sex crimes, then you must wait 10 years to get your gun rights back.
No, not unless they successfully have the felony reduced to a misdemeanor or secure a pardon from the Governor of California.
There are only two possible ways for a felon to restore gun rights.
1. Get your charge reduced. If your felony conviction isn’t for a violent crime or sex crime, get it reduced to a misdemeanor conviction. This is only possible for California “wobbler” offenses, which may either be charged as a felony or as a misdemeanor.
2. Get pardoned. Apply to the governor for a pardon and receive one.
Many non-violent felonies will allow you to get your gun rights back once they are reduced to misdemeanors. Here are some examples of felonies that, when reduced to a misdemeanor, mean you can get your right to own a gun back:
• Grand theft
• Vehicle theft
• Receiving stolen property
• Arson
• 2nd degree burglary
• Forgery
• Vandalism
Even if your felony is reduced to a misdemeanor, some misdemeanor convictions, like those for violence or threats of violence, will still carry a 10-year ban on firearms per California state law.
The list of misdemeanors that can affect your right to own a gun include:
• Assault with a deadly weapon
• Battery
• Sexual battery
• Threatening public officials
• Intimidating witnesses
• Threatening witnesses
• Reckless discharge of a firearm
• Violating a domestic violence protection order
• Domestic violence charges, including corporal injury to a spouse
• Unlawfully bringing a gun into a courtroom or school
Your lawyer can advise you on whether it’s possible to get your felony conviction reduced and, if it does get reduced, whether you’ll still have a 10-year firearm ban.
Step 1: Get your felony reduced to a misdemeanor
To get your felony reduced, you or your attorney must file a motion and present evidence that shows why the felony charge should be reduced.
You’ll need to show that you have been rehabilitated, Examples of rehabilitation are: you successfully completed probation, you don’t have new convictions, or you are now employed.
Step 2: Request a hearing to get your gun rights back
Once the charge is reduced, you can request a hearing to ask to have your gun rights restored.
If your felony is not considered a “wobbler” in California, you might still be able to petition to get your gun rights back through a pardon from the governor.
The best way to go about this is to file a California Certificate of Rehabilitation in the county where you were convicted. If it’s approved, the court will recommend that the governor pardon you and the court will forward the certificate to the governor’s office. The governor will decide whether you will be pardoned.
No, it’s not required to hire a lawyer to petition the governor to get your gun rights back through a pardon.
However, it’s a really good idea to hire a criminal defense attorney because the laws on this are complicated.
An attorney can look at your record, help you gather positive information that will make your petition better, advise you on the best way to go about regaining your firearm rights, and help you follow through to get the best result.
Call the Cohen Defense Group at (916) 596-2700 to talk to an experienced criminal defense attorney about petitioning the governor. Or fill out our contact form here.
Yes, it’s possible. There are two ways you can go about trying to get them back.
1. Governor’s pardon
If you live outside California, you can fill out an application to get a pardon from the governor.
The governor’s office (usually the Board of Parole Hearings) will review your application and the supporting evidence you provide. They will tell the governor whether they think you should be pardoned and the governor will make a decision.
You can fill out the application on your own, but it is best to have an experienced criminal defense attorney help you. This will help make sure your application is strong, that you avoid unnecessary delays, and that the entire process goes smoothly.
2. Get your felony reduced to misdemeanor
If you live outside of California, you can petition the court to reduce your “wobbler” felony conviction to a misdemeanor conviction. For the reduction from a felony to a misdemeanor to help you get your gun rights back, the felony conviction must not be violent or a sex crime. The best way to do this is to hire a criminal defense lawyer in California to help.
Call the Cohen Defense Group at (916) 596-2700 to talk to an experienced criminal defense attorney about getting your gun rights back in California if you moved away from California. Or fill out our contact form here.
Yes. Minors do not automatically lose their gun rights for life when found guilty of a felony in juvenile court. If, as a minor, you were convicted of a charge that would carry the 10-year gun prohibition on a misdemeanor in adult court, then you are only prohibited from owning a gun until the age of 30.
Because juvenile court rules are drastically different from adult court rules, it is important to consult with a lawyer who practices in juvenile court about your gun rights.
Yes. If, as a minor, you were found guilty of a charge that would carry the 10-year gun prohibition on a misdemeanor in adult court, then you are only banned from owning a gun until you turn 30 years old.
Because juvenile court rules are very different from adult court rules, it is important to consult with a lawyer who practices in juvenile court about your gun rights.
Call the Cohen Defense Group at (916) 596-2700 to talk to an experienced juvenile criminal defense attorney about your rights. Or fill out our contact form here.
It depends. There is no guarantee that you’ll get your gun rights back if your record was expunged. But expungement shows compliance with probation, so it can definitely help your request to reinstate your gun rights.
Call the Cohen Defense Group at (916) 596-2700 to talk to an experienced criminal defense attorney about how to get your gun rights back after your record was expunged. Or fill out our contact form here.
Federal rules, which are currently undergoing a lot of changes, are different than California ones. You must be following both to legally own a firearm.
For example, misdemeanor convictions for a domestic violence offense can carry a federal lifetime ban, making it vital to have a competent and experienced criminal defense attorney at the start of your case.
Call the Cohen Defense Group at (916) 596-2700 to talk to an experienced criminal defense attorney about your federal gun rights. Or fill out our contact form here.
Restoration of Firearm Rights Case Studies
Restoring gun rights after mental health issue case study
Auburn, CA
One of our clients had his guns confiscated during a mental health breakdown where he tried to hurt himself. Someone called the police and said he was having a crisis. The police determined that he was a danger and placed him on a hold. Once they discovered he had guns, the District Attorney filed a request to have them confiscated and took the guns.
Our client went to outpatient treatment for six months. We then petitioned the courts to get his rights back. He was able to show he was no longer suffering from the mental health issue. A character witness testified, and we presented evidence such as medical and psychiatric records and letters from his employer, wife, and community members.
His gun rights were restored, and the confiscated guns were returned to him. In addition, the judge did not require him to continue treatment.
Restoring gun rights after arrest case study
Roseville, CA
One of our clients got arrested for allegedly displaying a gun at another driver while in his car. The police came to his home and seized all his weapons.
He was entitled to a hearing on the question of whether he was violent. He testified before a judge, as did his wife and employer. In this scenario, the judge had full power to decide whether the guns would be destroyed or returned.
Fortunately, our client had no prior record, and there wasn’t sufficient evidence to show that he’d actually committed the offense for which he was arrested. He also had a good employment history and a good long-term relationship. He wasn’t a menace; he was responsibly using his gun for hunting.
We were able to get his gun rights fully restored.
Avoiding loss of gun rights case study
Sacramento, CA
Our client was charged with a felony for transporting or sale of an assault weapon. We compiled a packet with background information about our client and presented it to the attorney general’s office.
We proposed that our client plead guilty to a misdemeanor and join a Deferred Entry of Judgment program, which would allow the case to be dismissed after a year.
After reviewing our materials and discussing the case with our attorney, the Deputy Attorney General agreed.
This outcome let our client keep both their personal firearm rights and their license to deal firearms.
Need help restoring your gun rights in California?
If you’ve had your gun rights taken away from you and you want to find out if you are eligible for gun rights restoration, fill out our contact form or call the Cohen Defense Group at 530-823-7700 to reach our offices in Auburn, Roseville, Truckee, or Nevada City, CA.
We can help you show evidence to a judge that your situation warrants restoring your rights.