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  • Writer's pictureAttorney Neil Tassel

Exercising Second Amendment rights after a disqualifying conviction

Updated: Oct 13, 2023

In prior blog entries I have discussed options to restore one's right to possess a firearm in Massachusetts after a disqualifying conviction. As noted there, certain convictions permit licensing to possess firearms by statute for an firearms identification card (FID) or in the discretion of the Firearms License Review Board to obtain an license to carry (LTC). While both of these options were placed on hold by a flawed interpretation by the Bureau of Alcohol Tobacco and Firearms of the Supreme Court decision in Logan v. United States in 2007, which has been followed by the Commonwealth, recent court victories have reopened both of those avenues for restoration of rights.

But these options are neither perfect nor all encompassing. Persons whose rights have been restored will still run into the obstacle of rejection by the national instant check system if they attempt to purchase a firearm through an federal firearm licensed dealer because of the failure of the federal government to honor the restoration of rights. Moreover, people with certain types of convictions such as drug charges, or domestic violence, can not benefit from restoration by either mechanism.

The only solution to these concerns is to attempt to vacate the underlying conviction causing the disqualification. Serious barriers exist to vacating a conviction. Traditionally the courts have been extremely reluctant to vacate a conviction based on the principles of finality and judicial economy. This is particularly true where a civilian has been the victim in a case. Victim's rights laws require that the victim be advised of the motion and their input be solicited by the prosecution. But it has been my experience that older convictions, even in victim cases, may be vacated in the right circumstances.

When I review a case for a motion to vacate it can have been a plea or a trial. I examine the pleadings, the reports, and the docket to see if I can identify procedural irregularities that may suggest a fatal defect in the plea or trial or whether the lawyer was not effective. The latter point is because since defendants are entitled to effective representation by counsel, a failure to provide competent legal advice may merit relief from the conviction. The advice must have been critical to the decision to plead guilty of go to trial, or have affected the outcome of the trial. Failing to file important motions, not using important evidence at trial, not investigating defenses are all sources of potential relief. In the case of a plea, the failure to advise on the loss of an important right such as the ability to remain in the United States for an immigrant is a common source of relief since the 2010 Supreme Court decision in Padilla v. Kentucky.

I have repeatedly strived to argue that the loss of a specifically enumerated right, here that afforded by the Second Amendment, is a right to which a defendant should have been advised on before a decision was made to enter a guilty plea or take a matter to trial. Critical to this argument is the component that such failure to advise was prejudicial. Usually this requires evidence that a person considered this to be an important right that they either exercised by firearm ownership and licensure prior to the case or at least that they had a real interest in the sporting use of firearms previously. Usually, this failure to advise is accompanied by other identifiable lapses by the attorney which is fortunate since no court has specifically adopted this argument despite is apparent validity. Some case law exists which suggests that no such right to relief exists, since the loss of the right to possess a firearm is deemed in those cases to be a collateral right. However, those decisions either pre-exist or do not credit the constitutional right of the individual to possess a firearm as found in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010).

Some examples of convictions that I have been able to attack include the following:

1967 Assault and battery in a bar (defects in plea)

1966 Assault and battery (defects in plea)

1982 Motor vehicle document (defects in docket and plea, ineffective assistance of counsel)

1990 Indecent assault and battery (ineffective assistance of counsel)

2010 Operation under the influence of alcohol (ineffective assistance of counsel in trial)

1988 Operation under the influence of alcohol (ineffective assistance of counsel)

1997 OPeration under the influence of alcohol (ineffective assistance of counsel)

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