More than 3,000 comments were filed in response to the Justice Department’s proposed rule allowing the Attorney General to restore the Second Amendment rights of prohibited persons who request relief before the comment period ended in late October, and the DOJ is now reviewing and analyzing those comments before deciding whether to move forward with the rule as drafted or revise the language.
Second Amendment groups like the National Rifle Association were generally receptive to proposal, though the group did advocate for several changes that it believes would make the rights restoration process even better.
These included effectively carving out broad categories of ineligibility through presumptions of denial; imposing a variable fee; and granting the attorney general (AG) authority to revoke relief retroactively. ILA explained how all these mechanisms could be abused by later anti-gun administrations and compared them to abuses already happening with post-Bruen concealed carry licensing regimes in former may-issue jurisdictions.
ILA’s comments also took issue with the breadth of the proposal’s presumptive bases of denial, explaining that the Supreme Court in U.S. v. Rahimi (2024) relied on a judicial finding of dangerousness in validating a temporary restriction on Second Amendment rights. Many of the disqualifying offenses in the proposal, on the other hand, involved non-violent or even victimless crimes. This was especially true to the degree they incorporated non-person violations of the Gun Control Act or even broader state gun control laws, some of which were passed to bully or intimidate people out of exercising their rights or in protest of the Court’s own Second Amendment jurisprudence.
Gun control groups, on the other hand, were far more critical of the DOJ’s proposal. As The Reload’s Stephen Gutowski writes, “though the gun-control groups had some praise for the DOJ’s proposal, and they even zeroed in on some similar issues as the gun-rights groups, they want a lot more changed than their counterparts.”
While the two sides might have zeroed in on similar issues, that doesn’t mean they want the same changes. The NRA, for example, objected to the proposed rule’s presumptive denial of rights restoration for those convicted of certain categories of crimes, as did Everytown for Gun Safety. But while the NRA argued that the DOJ’s proposal “embodies an offense-based approach that was rejected by the administration itself in the high profile case of Mel Gibson,” and that instead an applicant’s “behavior and community standing in the present” should be a primary factor in determining whether their rights should be restored, Everytown argues there should be more categories of presumptive disqualification, including ““felony convictions for treason, seditious conspiracy, advocating overthrow of government, hate crime offenses, and trespassing onto restricted buildings or grounds or otherwise engaging in conduct that violates 18 U.S.C. § 1752.”
That language seems to be directed at J6 participants, even though the section of U.S. code cited by Everytown generally comes with a sentence of no more than one year in prison (unless the person uses or carries a deadly or dangerous weapon or firearm or the offense results in significant bodily injury).
The Brady Center to Prevent Gun Violence argued those with DUI-related offenses and who’ve shown a risk for suicide should be added to the list of presumptive denial criteria. Meanwhile, Giffords voiced support for the proposed rule’s five-year blanket denial because it said that delay ensured convicts weren’t immediate repeat offenders before letting them start the application process.
The gun-control groups expressed a similar concern about the amount of discretion the rule gives to the Attorney General that gun-rights groups had highlighted. Although, while the gun-rights groups were mainly concerned AGs could use that discretion to undo restorations from previous administrations, the gun-control groups worried AGs could use it to override the presumptive denial standards.
“While the proposed rule identifies offenses for which relief should not be granted, the Attorney General reserves significant discretion to grant relief in ‘extraordinary circumstances’ for cases involving these presumptively disqualifying offenses. Troublingly, the proposed rule does not define what ‘extraordinary circumstances’ the Attorney General may consider,” Giffords wrote in its comment. “Working within the confines of presumptive ineligibility and ensuring clarity, fairness, and consistency, ‘extraordinary circumstances’ must be defined. Without a clear definition, applicants and the public will be in the dark about how the Attorney General is carrying out the relief process. The result may be inconsistent, arbitrary, and dangerous outcomes.”
The gun control lobby also isn’t happy about the $20 the DOJ plans on charging applicants, complaining that the fees generated aren’t likely to cover the cost of administering the program. Other criticisms from groups like Everytown and Giffords involve the potential use of AI to screen applications and the lack of input from state and local law enforcement agencies regarding applicants.
Still, as Gutowski notes, Giffords ultimately came down in favor of the proposed rule. That’s actually pretty concerning to me. If a gun control organization is willing to accept a policy as-is, I’m automatically suspicious that it doesn’t go far enough in recognizing the inherent importance of our right to keep and bear arms. Here’s hoping that Giffords’ thumbs up will cause DOJ staffers to closely review and adopt the suggestions offered by Second Amendment organizations to strengthen the rights restoration process before it’s officially rolled out.
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