Legal Question in Criminal Law in Georgia

Ok, I asked a question in two different ways and got the same response. ( the answer I didn't want to hear. ) I was convicted of simple battery in Ga. Code 16-5-23 and want to own a firearm for hunting and home protection purposes.

My new question is:

If I hired an attorney, filed paperwork with the Attorney General seeking exception to the gun control act, could I lawfully regain my right to own a firearm? Would I be considered?

Asked on 5/18/13, 8:05 pm

2 Answers from Attorneys

Glen Ashman Ashman Law Office

No and no.

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Answered on 5/18/13, 8:14 pm

Joshua Sabert Lowther National Federal Defense Group

18 U.S.C. 922(g)(9) prohibits the possession, receipt, shipment or transportation of a firearm or ammunition in interstate commerce by a person who has been convicted of a misdemeanor crime of domestic violence. 18 U.S.C. 921(a)(33)(A) defines "misdemeanor crime of domestic violence" as a misdemeanor offense (federal, state or tribal) that has "an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim." The Supreme Court of the United States, in United States v. Hayes, 555 U.S. 415 (2009), held that if the misdemeanor offense meets the definition of "misdemeanor crime of domestic violence" in 18 U.S.C. 921(a)(33)(A), the person convicted of the offense is prohibited from possessing a firearm or ammunition as stated in 922(g)(9), regardless of whether the conviction is under any state's domestic violence punishment scheme (in Georgia, the Family Violence Act). However, in 18 U.S.C. 921(a)(33)(B)(i), a person is not considered to have a conviction unless all of the following circumstances apply: "(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise." Even if those circumstances apply, 18 U.S.C. 921(a)(33)(B)(ii) states that "a person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or HAS HAD CIVIL RIGHTS RESTORED (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) UNLESS the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." Therefore, if you are considered to have been convicted of a misdemeanor crime of domestic violence under federal law, the State of Georgia's restoration of your civil rights would allow you to possess a firearm and ammunition legally, unless that restoration of right EXPRESSLY exempts the right to possess a firearm.

Joshua Sabert Lowther, Esq.


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Answered on 5/18/13, 8:45 pm

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