In general, to process to legally obtain a firearm in Ohio is straight forward: Fill out some forms, wait for the background check to be completed, and take home your new handgun, rifle or shotgun. However, the process becomes a bit complicated when you have a record for committing a violent crime. If this is you, your right to own a firearm is controlled by a complex maze of state and federal laws and even court decisions that may leave you tossing your hands up in frustration and giving up.
Your right to own a handgun is something to consider, before pleading guilty to committing a violent crime. Read on to learn the consequences of a violent crime conviction, including domestic violence, on your right to possess a firearm. You need to know the consequences that may affect your rights long after you complete the sentence handed down by the judge. One of the rights you may lose is the ability to own or possess a firearm. The following look at Ohio and federal laws and key court decisions interpreting them may offer much-needed insight as to the effect of a criminal conviction on your right to own a gun.
The Second Amendment and Ohio restrictions on guns
The Second Amendment, which was added to the U.S. Constitution in 1791, is composed of only one sentence: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." It is in these few words that the cherished right to own a firearm is rooted. Historically, state and federal laws imposing restrictions on the ability of individuals to own and possess firearms generally survived despite challenges in the courts that the laws infringed upon the rights granted by the Second Amendment. That changed in 2008.
In District of Columbia v. Heller, the United States Supreme Court, in a 5-4 decision, struck down a ban on handguns imposed by the District of Columbia as an unconstitutional restraint on the rights of citizens to own and possess firearms. However, the Court noted that laws restricting gun ownership by convicted criminals would not be affected by its decision.
Under Ohio Revised Code 2923.13, Ohio imposes limitations on your ability to acquire, possess or use any firearms if you are in one of the following categories:
- A fugitive from justice.
- Under indictment or convicted of a violent felony offense.
- Adjudicated a delinquent child for committing what would be a violent felony offense if committed by an adult.
- Under indictment or convicted of a felony drug offense, including possession, sale, use, distribution or trafficking.
- Adjudicated a delinquent child for what would be a felony drug offense if committed by an adult, including possession, sale, use, distribution or trafficking.
The same Ohio statute also prevents mentally incompetent individuals and chronic alcoholics or drug dependent persons from possessing, using or owning firearms.
Although the statute references felony offenses, a misdemeanor offense of domestic violence can also result in a lifetime ban under federal law, as will be discussed more thoroughly below.
Crimes classified as offenses of violence
The Ohio Revised Code lists several crimes as being offenses of violence. Included among them are the following:
- Aggravated murder
- Voluntary manslaughter
- Involuntary manslaughter
- Permitting child abuse
- Aggravated menacing
- Menacing by stalking
- Human Trafficking
- Sexual battery
- Gross sexual imposition
- Aggravated arson
- Inciting to violence
- Inducing panic
- Domestic violence
- Improperly discharging a firearm
- Patient abuse
- Endangering children
In Ohio, offenses can be classified as a felony for offenses deemed more serious, or misdemeanors for offenses deemed less serious. Under Ohio law, the “offense of violence” must be classified as a felony to result in the loss of gun possession rights
Several of the Ohio offenses are specifically indicated to be felonies or misdemeanors. For example, the statute defining the conduct constituting the crime of aggravated assault classifies it as a felony regardless of the penalty a judge may impose at sentencing. However, in many cases the offense is not expressly classified. If the statute does not specifically classify a crime as a felony, you need to look at the sentence a judge is authorized to impose. If the judge can impose a punishment of imprisonment in excess of one year, the offense is a felony. Note that the determination is not dependent upon the sentence actually imposed, but on the potential term of imprisonment.
In classifying the offense, the magic term of imprisonment is one year. Offenses where the maximum potential imprisonment is one year or less are misdemeanors. Offenses where the maximum term of imprisonment is greater than one year (one year plus one day), are felonies.
As a general rule, a misdemeanor conviction would not, result in the loss of the right to own or possess a gun under Ohio law. However, a domestic violence offense is an exception to the general rule and could jeopardize your Second Amendment rights under Federal law.
Domestic violence offenses and gun ownership
Domestic violence as defined in O.R.C. 2919.25 is an offense of violence, but it is generally classified as a misdemeanor unless you have a prior domestic violence conviction, or knew the victim was pregnant, both of which elevate the crime to a felony (which precludes gun ownership under Ohio law). However, under Federal law, even a state conviction of a misdemeanor domestic violence offense will prevent you from exercising your Second Amendment rights.
The Gun Control Act of 1968 prohibits gun ownership by anyone having a conviction for any state or federal crime that is "punishable by imprisonment for a term exceeding one year." The application of the federal statute would be limited only to felony convictions in Ohio because sentencing guidelines for misdemeanors do not include incarceration in excess of one year. There is, however, an exception when the crime is a domestic violence offense.
Congress amended the Gun Control Act in 1996 by passage of what is known as the Lautenberg Amendment to include state and federal domestic violence convictions among the crimes disqualifying a person from owning or possessing a firearm. The amendment specifically references misdemeanor crimes of domestic violence. Therefore a conviction in Ohio of a domestic violence offense would prohibit you from owning a gun.
Restoration of Second Amendment rights after a conviction
When an Ohio conviction for a violent felony offense results in the loss of gun rights, state law allows you to file a petition asking a judge to restore them. However, the petition does not apply to domestic violence convictions where the loss of gun rights is the result of the federal law.
How Can An Attorney Help?
Prior to being convicted of a violent offense, you should consult with an experienced criminal defense attorney, and specifically express your concern about gun ownership An attorney may offer options, such as a negotiated plea to a different offense, that may help to avoid the loss of gun rights.
If you have already been convicted and completed all penalties related to your violent offense conviction (e.g., prison, community control, parole, etc.), an attorney can help you petition for restoration of your rights, and argue your that your rights should be restored.