Qualls
United States v. Qualls
Opinion
Concurring Opinion
Hall, J.
with whom THOMPSON, TROTT, and KLEINFELD, Circuit Judges, join, concurring in judgment.
Because Dahms contradicts the plain language of the federal felon-in-possession statute, 18 U.S.C. § 922 (g)(1), I cannot join the majority’s opinion.
I
The federal felon-in-possession statute makes it unlawful for
18 U.S.C. § 922 (g)(1) (emphasis added). The phrase “crime punishable by imprisonment for a term exceeding one year” is a term of art defined in reference to state law in § 921(a)(20). That section excepts from the definition
18 U.S.C. § 921 (a)(20).
We thus start with the proposition that a felon in possession of a firearm violates the federal felon-in-possession statute. Section 921(a)(20)’s definition of a “crime punishable by imprisonment for a term exceeding one year” excepts from § 922(g)(l)’s prohibition any felon whose civil rights have been restored by the state of conviction, provided that the state does not restrict the felon’s right to possess firearms. If the state maintains any restriction on firearms possession, the § 921(a)(20) exception does not apply, and the prior felony conviction is cognizable under § 922(g)(1).
This analysis is easily applied to Qualls.…
Lead Opinion
Hawkins, J.
We granted en banc review in this appeal to determine whether our prior decision in United States v. Dahms, 938 F.2d 131 (9th Cir.1991), should be overturned. 1 Dahms looks to state law to determine the scope of restrictions on firearms possession under federal statutes governing the possession of firearms by previously convicted felons. The question typically arises when a previously convicted felon is granted a restoration of civil rights by state authorities including a partial restoration of the right to possess firearms.
Other circuits have adopted an “all or nothing” approach, holding that unless a state grants a complete restoration of the right to possess all firearms, the individual remains subject to federal prosecution as a felon in possession—even for a firearm that the former felon has an express right to possess under state law. See United States v. Estrella, 104 F.3d 3, 7-9 (1st Cir.), cert. denied, — U.S. -, 117 S.Ct. 2494 , 138 L.Ed.2d 1001 (1997); 2 United States v. Burns, 934 F.2d 1157, 1160 (10th Cir.1991); United States v. Driscoll, 970 F.2d 1472, 1480 (6th Cir.1992); accord, United States v. Lee, 72 F.3d 55, 57-58 (7th Cir.1995) (absent full restoration of…