Ruling: Montana felons can't own firearms after serving time, probation

2014-08-01T07:15:00Z 2014-08-02T00:24:51Z Ruling: Montana felons can't own firearms after serving time, probationBy KATHRYN HAAKE Missoulian The Billings Gazette
August 01, 2014 7:15 am  • 

According to a new judgment from the 9th U.S. Circuit Court of Appeals, Montana felons who have completed their sentence and probation will no longer be able to own firearms.

The decision last month upheld Missoula U.S. District Judge Donald Molloy’s decision that Frank Van der hule, who was convicted of four counts of rape and one count of sexual assault in 1983 and completed his sentence 13 years later, was not eligible to own a gun in Montana.

Montana is considered a restorative state, meaning under the Montana Constitution, felons who have completed their sentences and probationary periods have their rights restored — and technically can do things that regular citizens do, including possess a firearm and vote.

However, a federal statute states that felons are not able to purchase guns that have been in interstate commerce. In other words, if it’s not made in Montana, felons can’t purchase the firearm.

So when Van der hule attempted to purchase a gun in 2003, the firearms dealer ran a criminal background check and discovered that Van der hule’s prior convictions precluded him from receiving a concealed weapons permit under Montana law and also prohibited him from possessing a gun under federal law.

Van der hule filed a motion of declaratory judgment in Missoula U.S. District Court, seeking approval for his request to purchase a firearm. He later amended his complaint, arguing the laws precluding him from buying a gun violated his Second Amendment rights.

Not so, ruled Molloy. The appellate judges agreed.

The circuit’s three judges ruled against Van der hule, saying Montana’s restriction prohibiting a convicted felon from possessing a concealed weapons permit “is a sufficient restriction of his firearm rights” to also prohibit him from purchasing any weapon.

“He is accordingly forbidden to receive or possess a firearm under federal law and that ban does not violate his Second Amendment rights,” the decision stated.


Missoula attorney Lance Jasper said he represents many felons who have had their rights restored under Montana law, and he is concerned about the scope of this decision.

“I think when a felon completes their sentence and their rights are fully restored, then they have earned that privilege,” he explained. “That’s the way the constitution was written. It wasn’t my decision.”

Jasper said he doesn’t believe in giving guns to people convicted of violent crimes, but some of his clients are convicted felons who can’t get good-paying jobs because of their convictions and have been using their guns to hunt and provide meat for their families for years.

“It’s another way for the federal government to try and (control) what goes on in our state,” he added.

It’s currently unclear how the Bureau of Alcohol, Tobacco, Firearms and Explosives —or local law enforcement — will handle the new ruling.

ATF regional spokesman Bradley Beyersdorf said last week he couldn’t comment on the enforcement of the new decision, and directed the Missoulian to contact the U.S. Justice Department.

Local gun dealer and former Missoula Police Officer Rich Ochsner said he’s prepared to abide by the court’s ruling, but added that he hasn’t been selling to violent criminals for years.

“(The decision) doesn’t surprise me that much,” he said. “Being a retired police officer, there are some times when people shouldn’t have guns.”

Ochsner, who owns Axmen Firearms, said a convicted rapist attempted to purchase a firearm from him a few years ago and he refused to sell to him.

“There was no way I would sell a gun to a person if I thought they wouldn’t be safe,” he said.

But most of the felons who attempt to purchase guns from him have received deferred sentences and their convictions have been quashed, Ochsner explained.

This ruling wouldn’t affect those people because their felony conviction wouldn’t appear on their record, but Ochsner is concerned about people who have been convicted of nonviolent felonies.

“What would the felony be?” he asked. “If it’s a felony DUI, should that person be a restricted person because they are driving drunk?”

“I know the law, and until it’s overturned, I am not going to sell them a gun,” he added.

Copyright 2015 The Billings Gazette. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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