LA RS 14:95.1 refers to persons convicted of certain felonies; those enumerated in R.S. 14:2(B):
The issue, as it has been explained to me, is not whether the state has determined that persons with Article 893 dismissals and expungements are eligible to purchase or possess firearms. It has been established, at least in my case, that on a state level, I am allowed to do so. The issue is a federal one. The letter states that since Louisiana Revised Statute 40:1379.3(C) (10) restricts persons with Article 893 dismissals and expungements from obtaining a Concealed Carry Permit, they are not eligible per the Gun Control Act.
This is being based on Caron v. United States, 524 U.S. 308 (1998) wherein Caron, a multiple offender with a conviction in Massachusetts where his rights had been restored. The key part of the ruling is that "Massachusetts law allowed petitioner to possess rifles or shotguns, as he had the necessary firearm permit and his felony convictions were more than five years old. Mass. Gen. Laws §§140:123, 140:129B, 140:129C (1996). The law forbade him to possess handguns outside his home or business. See §§140:121, 140:131, 269:10."
Continued from the Gun Control Act, note Violent Felony:
Further down in the case, comes the part the letter states applies to Louisiana:
The end result of this case is:
In the case of Louisiana's restriction on CHP's, the question is whether or not it applies to the ruling in this case. The ruling, as I understand it, is based on a type of weapon and/or the physical location(s) in which a weapon may be possessed having been restricted by the state. Louisiana does not restrict either of these in this case. Beyond whether or not this restrictions meets the precedent set in this case, you have the question of whether 40:1379.3(C) (10) is congruent with the text of Article 893 and R.S. 44:9 Section E. (1) (b):
Key there is the restoration of all rights, shall be treated in all respects as not having been arrested or convicted, and the unless clause. The unless clause does not include an exception for 40:1379.3(C) (10) to disallow nor does 893/894. The intent of 44:9 E (1) (b) and Article 893 is clearly to restore all rights as if the person were never convicted except that the previous conviction could be used to enhance future convictions. The intent is not to further restrict a person in any way: shall be treated in all respects as not having been arrested or convicted.
B. In this Code, "crime of violence" means an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. The following enumerated offenses and attempts to commit any of them are included as "crimes of violence":
(1) Solicitation for murder
(2) First degree murder
(3) Second degree murder
(4) Manslaughter
(5) Aggravated battery
(6) Second degree battery
(7) Aggravated assault
(8) Mingling harmful substances
(9) Aggravated rape
(10) Forcible rape
(11) Simple rape
(12) Sexual battery
(13) Second degree sexual battery
(14) Intentional exposure to AIDS virus
(15) Aggravated kidnapping
(16) Second degree kidnapping
(17) Simple kidnapping
(18) Aggravated arson
(19) Aggravated criminal damage to property
(20) Aggravated burglary
(21) Armed robbery
(22) First degree robbery
(23) Simple robbery
(24) Purse snatching
(25) Extortion
(26) Assault by drive-by shooting
(27) Aggravated crime against nature
(28) Carjacking
(29) Illegal use of weapons or dangerous instrumentalities
(30) Terrorism
(31) Aggravated second degree battery
(32) Aggravated assault upon a peace officer with a firearm
(33) Aggravated assault with a firearm
(34) Armed robbery; use of firearm; additional penalty
(35) Second degree robbery
(36) Disarming of a peace officer
(37) Stalking
(38) Second degree cruelty to juveniles
(39) Aggravated flight from an officer
(40) Aggravated incest
(41) Battery of a police officer
(42) Trafficking of children for sexual purposes
(43) Human trafficking
(44) Home invasion
The issue, as it has been explained to me, is not whether the state has determined that persons with Article 893 dismissals and expungements are eligible to purchase or possess firearms. It has been established, at least in my case, that on a state level, I am allowed to do so. The issue is a federal one. The letter states that since Louisiana Revised Statute 40:1379.3(C) (10) restricts persons with Article 893 dismissals and expungements from obtaining a Concealed Carry Permit, they are not eligible per the Gun Control Act.
This is being based on Caron v. United States, 524 U.S. 308 (1998) wherein Caron, a multiple offender with a conviction in Massachusetts where his rights had been restored. The key part of the ruling is that "Massachusetts law allowed petitioner to possess rifles or shotguns, as he had the necessary firearm permit and his felony convictions were more than five years old. Mass. Gen. Laws §§140:123, 140:129B, 140:129C (1996). The law forbade him to possess handguns outside his home or business. See §§140:121, 140:131, 269:10."
Though Massachusetts restricted petitioner’s right to carry a handgun, the District Court considered the restriction irrelevant because his case involved rifles and shotguns. See ibid. The First Circuit reversed, counting the convictions because petitioner remained subject to significant firearms restrictions.
Continued from the Gun Control Act, note Violent Felony:
Three-time violent felons who violate §922(g) face enhanced sentences of at least 15 years’ imprisonment. §924(e)(1). *Violent felony* is defined to include burglary and other crimes creating a serious risk of physical injury. §924(e)(2)(B)(ii). This term includes petitioner’s previous offenses discussed above.
Further down in the case, comes the part the letter states applies to Louisiana:
*What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.* §921(a)(20).
The first sentence and the first clause of the second sentence define convictions, pardons, expungements, and restorations of civil rights by reference to the law of the convicting jurisdiction. See Beecham v. United States, 511 U.S. 368, 371 (1994).
Aside from the unless clause, the parties agree Massachusetts law has restored petitioner’s civil rights. As for the unless clause, state law permits him to possess rifles and shotguns but forbids him to possess handguns outside his home or business. The question presented is whether the handgun restriction activates the unless clause, making the convictions count under federal law.
The unless clause is activated if a restoration of civil rights *expressly provides that the person may not … possess … firearms.* 18 U.S.C. § 921(a)(20). Either the restorations forbade possession of *firearms* and the convictions count for all purposes, or they did not and the convictions count not at all. The unless clause looks to the terms of the past restorations alone and does not refer to the weapons at issue in the present case. So if the Massachusetts convictions count for some purposes, they count for all and bar possession of all guns.
The end result of this case is:
In sum, Massachusetts treats petitioner as too dangerous to trust with handguns, though it accords this right to law-abiding citizens. Federal law uses this state finding of dangerousness in forbidding petitioner to have any guns.
In the case of Louisiana's restriction on CHP's, the question is whether or not it applies to the ruling in this case. The ruling, as I understand it, is based on a type of weapon and/or the physical location(s) in which a weapon may be possessed having been restricted by the state. Louisiana does not restrict either of these in this case. Beyond whether or not this restrictions meets the precedent set in this case, you have the question of whether 40:1379.3(C) (10) is congruent with the text of Article 893 and R.S. 44:9 Section E. (1) (b):
After a contradictory hearing with the district attorney and the arresting law enforcement agency, the court may order expungement of the record of a felony conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure. Upon the entry of such an order of expungement, all rights which were lost or suspended by virtue of the conviction shall be restored to the person against whom the conviction has been entered, and such person shall be treated in all respects as not having been arrested or convicted unless otherwise provided in this Section or otherwise provided in the Code of Criminal Procedure Articles 893 and 894.
Key there is the restoration of all rights, shall be treated in all respects as not having been arrested or convicted, and the unless clause. The unless clause does not include an exception for 40:1379.3(C) (10) to disallow nor does 893/894. The intent of 44:9 E (1) (b) and Article 893 is clearly to restore all rights as if the person were never convicted except that the previous conviction could be used to enhance future convictions. The intent is not to further restrict a person in any way: shall be treated in all respects as not having been arrested or convicted.