Louisiana Expungements do not allow firearm ownership according to NICS/FBI/DOJ

infringed · Sep 16, 2014

325paratrooper said:
Will do. The issue seems to me that the feds are considering a CCP as a right, but states consider a CCP a privelege. One will have to accept the other's definition. It would be poetic justice if this attempt to broaden the definition of "prohibited persons" ends up making a CCP a federally recognized right. That would scrap the training and proficiency requirements also. Hmmm...I can hear Bloomberg and his Moms squealing already.

The holding in Caron v. United States doesn't necessarily define that the CHP is a Federal right. It states that the State cannot withhold anything firearm related (right or privilege) from the person(s) they are restoring rights to. Doing so would suggest a distrust in that person. The Federal stance is understandable, even if it's not as clearly spelled out in the law. In many of the cases where this is an issue, the State has declared that all rights have been restored; without reservation. The fact that a Federal prohibition (based on state law) exists proves that rights have not been restored.

I believe the State would be responsive to a change in LA RS 40:1379.3 (c)(10). What I haven't figured out is the timeline for such a change. It seems that it cannot be introduced in the 2015 (odd-numbered) legislative session. Meaning it would have to wait until 2016. Which is a pretty long time to wait. Maybe I'm being paranoid, but it seems that this change in interpretation was purposefully held until the end of the 2014 legislative session. The new interpretation came with changes to the CHP law. Why was this issue not presented to the legislature during that time to be addressed at the same time?

As an aside, when state laws conflict, the Supreme Court is tasked with sorting out the prevailing law. In this case, there are multiple laws in conflict (depending on the person's particular circumstance). For example: The amended Section 11 of the State Constitution, LA CCrP Article 893, and RS 44:9 E(1)(b) all conflict with RS 40:1379.3 (c)(10).

coance · Sep 16, 2014

infringed why is it that it cannot be brought up in 2015? Not arguing just dont know anything about " odd numbered" legislative session. Not very knowledgeable about this stuff. May have been having smoke blown at me but when I was talking to one of my reps they made it sound like they would be able to look at it in next session (2015)

325paratrooper · Sep 16, 2014

What I meant was that if the right case came up, this opinion could be used to argue that the feds consider concealed carry a right and not a privilege since even though the right to possess a firearm has been restored by the state, you are still prohibited from possession because you are ineligible for a CCP, meaning your rights haven't been completely restored.

325paratrooper · Sep 16, 2014

To my reading of Caron (oilfield hand and not a lawyer), it just deals with possession and not the manner of carry. With OC legal in the state there is no place a CCP holder can carry that a non-holder can't, only whether it's visible or not, unless I'm mistaken. I think the quickest way to get some action on this would be for someone to apply for a CCP, and after their denial file a civil suit. That person would be putting himself out there and it would probably be very expensive, though.

coance · Sep 20, 2014

325paratrooper I had a CCP when all this began and was told by the state police it was issued in error. Then it was revoked. Could really care less about having it again but need the ability to apply for it legally( 40:1379.3(C)(10) would have to be changed or done away with) so that in the feds eyes the rights to possess are restored.

geoney · Sep 20, 2014

325paratrooper said:
To my reading of Caron (oilfield hand and not a lawyer), it just deals with possession and not the manner of carry. With OC legal in the state there is no place a CCP holder can carry that a non-holder can't, only whether it's visible or not, unless I'm mistaken. I think the quickest way to get some action on this would be for someone to apply for a CCP, and after their denial file a civil suit. That person would be putting himself out there and it would probably be very expensive, though.

You cannot open carry in a restaurant that serves alcohol, but you can CCW with a CHP.

You cannot walk within 1000' of a school while OC, but can be within 1000' if CCW with a CHP.

mrppg · Sep 22, 2014

The amendment approved by us in 2012 removes language that authorized the legislature to *prohibit the carrying of weapons concealed on a person* and subjects any law that infringes on the right to bear arms to *strict scrutiny*. So how did this lead to every felon being banned from gun possession even after our rights were restored. i guess my question is. Can the constitutionality of 40:1379.3 (c)(10) be challenged since it does not meet the strict scrutiny criteria, is in conflict with 14:95 and causing everyones previously returned rights to be nullified! The DOJ used a backdoor tactic to deny us so why cant we use the same door to get it reversed!

Geauxfish · Oct 30, 2014

I've been reading thru these postings and a question comes to mind. Is there another way to determine if you are prohibited other than being denied or getting a letter?

infringed · Oct 30, 2014

Geauxfish said:
I've been reading thru these postings and a question comes to mind. Is there another way to determine if you are prohibited other than being denied or getting a letter?

You can likely request that from the FBI directly. In short, if you are prohibited from a CHP due to an offense (read: not because of lack of training or age) then you are likely prohibited indefinitely under federal law unless you receive a gubernatorial pardon.

infringed · Nov 13, 2014

Here is a recent analysis of Van der hule v. Holder and Caron v. United States:

http://www.montanalawreview.org/cas...-montana-felons-in-van-der-hule-v-holder.html

coance · Nov 14, 2014

One day they will decide that if you get to many tickets or some other small crime that you are restricted, then maybe people will see that citizens rights are slowly being chipped away.

I still hold out hope that Louisiana will change their concealed carry laws so I guess it is wait and see.

lil_gz504 · Dec 4, 2014

any new news on weather or not they are working on this?

terry_71 · Dec 15, 2014

Does anyone know how many people have been denied due to this. Is this only happening to people that applied for the "pin" number for the 4473 or is it everone.

infringed · Dec 15, 2014

terry_71 said:
Does anyone know how many people have been denied due to this. Is this only happening to people that applied for the "pin" number for the 4473 or is it everone.

Due to the nature of some of the State procedures and statutes, the number of people affected is difficult to determine. For example, Article 893 and expungement are designed with the privacy of the individuals in mind. Additionally, the State may issue a document that clearly states that "all right have been restored," which would include the RTBA. You might be able to ask the State for an aggregate numbers of people in each category, but you'd never get the names. I would say that the total number of persons affected is in the hundreds of thousands; the total number recently denied: tens of thousands.

In many cases, people would be affected and have no knowledge that they are prohibited. NICS would not be able to contact prohibited persons since they do not keep records[1] of previous purchases. Further, unless one of these people have applied for and received a UPIN, NICS is not allowed to maintain these records. If you ask the [State] Court, politicians, lawyers, etc, they will likely tell you that you're not prohibited and/or that you need to contact the Federal Government. You'll just get the run around and a lot of finger pointing.

There are two as-applied challenges to Federal prohibitions in recent dockets. Binderup v. Holder (decided in favor of Binderup) and Byrd v. Holder (new case). The issue with "as-applied" challenges is that they effectively negate an expungement. Since the information pertaining to your original conviction is required for the challenge, it becomes public again with the new case. A quick Google search would reveal this to an employer even if a background check does not. As-applied is also very dependent on the region the challenge is made in. Try bringing an as-applied challenge before a judge who does not support the second amendment, and the result will not be in your favor.

[1] They are, at least, not allowed to maintain such records by law.

terry_71 · Dec 15, 2014

Has anyone tried to purchase a gun in the last month that falls under the 10 year cleaning of a non violent felony. If so wad you denied or approved.

coance · Dec 27, 2014

Has anyone heard anything new on this ?

drb · Dec 28, 2014

This is the binderup guy , I won my case in Sept and in Nov the gov appealed. Stay tuned something very good could come from my case, for many people

infringed · Dec 28, 2014

drb said:
This is the binderup guy , I won my case in Sept and in Nov the gov appealed. Stay tuned something very good could come from my case, for many people

Nothing has changed in Louisiana as far as I'm aware. Even in the face of a win in Binderup's appeal, I still hope that Louisiana's CHP law is changed. It's unconscionable that an explicit restoration of rights can be usurped by the restriction of a privilege. If the ability to obtain a CHP is an integral part of the right to bear arms per Federal law, how is it a privilege? It's even more disappointing that legislation pushed to prevent violent criminals from accessing firearms can manage to restrict so many non-violent people and even people who's rights have been explicitly restored from exercising their rights.

reath1 · Jan 10, 2015

I, too, fall under this. In for the comments.

Yamahauler99 · Feb 21, 2015

Infringed, I sent you a pm.

Louisiana Expungements do not allow firearm ownership according to NICS/FBI/DOJ

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