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“I can forgive, but I cannot forget, is only another way of saying, I will not forgive. Forgiveness ought to be like a cancelled note – torn in two, and burned up, so that it never can be shown against one.”
~ Henry Ward Beecher
Famed 19th Century social reformer (and father of Harriet Beecher Stowe)

A fine quote indeed, but what does it have to do with prior criminal convictions and your Second Amendment rights? Quite a bit, it turns out.

The Second Amendment’s right to bear arms is no doubt a hotly contested issue, one which could fill a thousand or more blogs, and which we will reserve for a later time. For the purpose of this entry, suffice it to state that despite the surplus of passions on the matter, the right to bear arms is not an absolute one. In other words, a person’s behavior can definitely impact his or her right to bear arms, especially if a criminal conviction results. But the question remains, just how far back into my past can the law look when deciding to impede my ability to possess a firearm?

The answer: it depends upon the nature and severity of the conviction.

Colorado has its own law that prohibits a convicted felon from possessing a firearm. See, C.R.S. 18-12-108. The law is very restrictive, applies to most felony convictions from other states, and the prohibitions imposed upon a felon do not expire. In other words, a felony conviction from 50+ years ago will still serve to prevent the felon from possessing a firearm, despite all time having been served, and despite decades of good behavior. Hence my reference to forgiving, but not forgetting.

But what about a misdemeanor conviction? Surely the same exclusions do not apply, right? In most cases, that is true … unless your misdemeanor was related to domestic violence.

A very controversial Federal law called “The Lautenberg Amendment” prohibits the possession of a firearm by anyone convicted of a misdemeanor crime related to domestic violence, no matter how far back the conviction. (The full name of the law is “Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence”, found at 18 U.S.C. § 922(g)(9).) While many Second Amendment advocates argue that The Lautenberg Amendment is overly broad and unduly burdensome, Federal courts have upheld the law as constitutional.

What About Expungement?

Is it possible to expunge your prior criminal records such that they do not affect your gun possession rights? Unfortunately, the law in Colorado is also not very favorable in that regard. In fact, Colorado does not actually allow expungement at all, but does allow some criminal records to be sealed in some very limited circumstances. To be clear, the difference between expungement and sealing the records is that with an expungement, the criminal records and files are essentially destroyed, whereas with the sealing they are only sealed and protected from public view.

The downside is that Colorado law only allows criminal records to be sealed in three circumstances: 1) when you were not actually charged with the crime for which you were arrested, 2) when the case was completely dismissed, or 3) when you were found not guilty of the crime. If you were either found guilty or pled guilty to any charges, the court will not grant a request to seal the records, no matter how long ago it happened.

So, in short, an individual is prohibited from possession a firearm in Colorado if he or she has been convicted of 1) a felony, or 2) a misdemeanor conviction that involved domestic violence. Furthermore, a person who has been convicted or has pled to either of those categories of crimes is not likely to be able to seal the records of the crime in order to better his or her chances of being able to possess a firearm.

There are usually exceptions to every rule, so I would encourage you to speak with a qualified attorney about your particular circumstances.

by Josh Deere, Attorney at Hanes Hrbacek & Bartels, LLC

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