NRA-ILA | Shocker! Joe Biden Exercises Presidential Authority to Expand Access to Firearms

No, that is not a headline from a satirical news site. Indeed, it may come as a surprise to many (and perhaps even to the man himself), but Joe Biden has in two short days single-handedly paved the way for dozens of people to become gun owners.

The outgoing chief executive accomplished this feat on the 1^st and 12^th of December, as he issued some 40 unconditional pardons to individuals who had been convicted of offenses that trigger federal firearm prohibitions. Under federal law, those individuals are entitled to have their identifying information removed from the National Instant Criminal Background Check System, which must be queried any time an unlicensed person buys a firearm at retail.

Federal law imposes categorical prohibitions on the possession and acquisition of firearms by those convicted of certain criminal offenses. These include anyone who has been “convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” The ATF considers triggering offenses to include “[a]ny Federal, State or foreign offense for which the maximum penalty, whether or not imposed, is capital punishment or imprisonment in excess of 1 year.” Nevertheless, the term shall not include: “any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices” or “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of 2 years or less.”  

These prohibitions are presumptively permanent. However, they exclude (among other things) “[a]ny conviction … for which a person has been pardoned … unless such pardon … expressly provides that the person may not ship, transport, possess, or receive firearms.”

Since the beginning of the month, lame duck Joe Biden has been on a pardon bonanza. This began on the first day of the month with his very own son, Hunter Biden, whose convictions happened to include felony offenses related to unlawful firearm possession and providing false information to a federally licensed firearm dealer. On the 12^th, Biden added 38 more names to his December list of pardons. According to the official clemency warrants, these pardons are “full and unconditional.” Thus, assuming the individuals have no other disqualifying offenses or circumstances in their records, the pardons fully restore the rights of the affected individuals to acquire and possess firearms under federal law.

In a statement on granting these pardons, Biden characterized the various offenses involved as “non-violent crimes.” He also asserted that the pardoned individuals “have shown successful rehabilitation and have shown commitment to making their communities stronger and safer.” Biden additionally hinted that he was willing to create even more eligible gun owners in his waning days in office, stating:

I will take more steps in the weeks ahead. My Administration will continue reviewing clemency petitions to advance equal justice under the law, promote public safety, support rehabilitation and reentry, and provide meaningful second chances.

With these moves to restore firearm rights to former felons, drug dealers, fraudsters, thieves, and perjurers, Joe Biden has actually shown himself to be more pro-gun, in at least one sense, than every session of the U.S. Congress since 1992. That was the year a funding rider began in annual appropriation acts to prohibit the use of federal monies to consider applications under a provision of the Gun Control Act of 1968 that allows individuals to petition the attorney general for relief from federal firearm disabilities. The attorney general is empowered to “grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.” Notably, only natural persons are barred by the funding rider from seeking relief under this provision. Corporate defendants can and have successfully availed themselves of this provision.

“America” Joe Biden reminded us, “was built on the promise of possibility and second chances.” And he is willing to back up those words with action, including allowing people convicted of felony crack and methamphetamine distribution to regain the right to keep and bear arms.

Admittedly, this complicates Biden’s legacy as one of U.S. history’s most antigun presidents. But at least he can claim that he has a nearly untarnished record of making it as difficult as he could for the average law-abiding citizen with no disqualifying factors from exercising his or her Second Amendment rights.