You'd think it would be pretty easy to figure out if you're a felon.
Turns out, that's not always the case. In most states, it is a crime for a person convicted of a felony to possess a firearm, and I've yet to hear a rational argument that this sort of law is a violation of the Second Amendment right to bear arms. The recent Supreme Court case, D.C. v. Heller, affirmed that the Second Amendment does indeed confer an individual right to keep and bear arms, but explicitly states that this should not be read as denying the constitutionality of state laws prohibiting felons from possessing firearms. There's a lot of room to disagree on whether certain crimes should be felonies, but we're all agreed that felons can't have guns. Enter the level of intent required. There are five basic levels of intent: Intent (you meant for the effect to occur), Knowledge (you knew to a reasonable degree of certainty that your actions would produce the effect), Recklessness (you unreasonably ignored a substantial risk that the effect would occur), Negligence (you should have known, and a reasonable person would have known, that the effect would occur), and Strict Liability (we don't care what you knew). (Pretty much the only crimes for which a person can be held strictly criminally liable are ones that involve minors.) The level of intent is an element of the crime, which the government must prove beyond a reasonable doubt in order to convict. It would be entirely unreasonable to convict someone of being a felon in possession of a firearm if he didn't know he had a firearm in his possession, so the requisite level of intent is knowledge. I was of the impression that it was fairly well-established that the government must prove that the defendant (a) knew that he (b) had a firearm in his possession, and that he (c) knew that he (d) had been convicted of a felony. (Each letter representing a discrete element that the government must prove beyond a reasonable doubt in order to secure a conviction.) Apparently not.
U.S. v. Kitsch, (E.D. Pa. Aug. 1, 2008), the case Professor Volokh discusses in the above link, concerns exactly that issue, in a way I have not seen before. Generally, the defendant had good reason to doubt whether his conviction was a felony at all. In the present case, however, there was no dispute about whether Mr. Kitsch had committed and been convicted of a felony. While cooperating with law enforcement to obtain evidence against a marijuana grower, Mr. Kitsch set a small fire on a barn. He promptly called the fire department, and the fire fighters found the marijuana growing in the barn. Mr. Kitsch pled guilty to third degree arson, and claims "law enforcement officials told him they would set aside the conviction and Kitsch could live as though the event had never happened."
The district court concludes that under federal law Kitsch would be guilty only if he knowingly possessed a gun knowing that he was a felon, and that Kitsch is entitled to a jury instruction that "in order to convict Kitsch, the Government must prove beyond a reasonable doubt that he knew or was willfully blind to the fact that he had a prior felony conviction that had not been set aside or expunged."
(Quote from Volokh's post.) Volokh points out that this opinion only concerns Kitsch's right to the jury instruction, and that the trial has not yet taken place. What fascinates me is that there was any doubt that he would be entitled to such an instruction. A conviction that was expunged is a conviction that, for all intents and purposes, never happened. If his conviction had been expunged, Kitsch would have had the right to possess a firearm. While a lawyer would make absolutely certain he had something in writing, it is entirely reasonable for a layman to rely on assurances from law enforcement that everything would be taken care of.
UPDATE: Above, I stated that most states have laws prohibiting felons from possessing guns. This is accurate. I neglected to mention that there is also a federal law to the same effect, so it is illegal for felons to possess firearms in all states, whether or not there is also a state law.
U.S. v. Kitsch, (E.D. Pa. Aug. 1, 2008), the case Professor Volokh discusses in the above link, concerns exactly that issue, in a way I have not seen before. Generally, the defendant had good reason to doubt whether his conviction was a felony at all. In the present case, however, there was no dispute about whether Mr. Kitsch had committed and been convicted of a felony. While cooperating with law enforcement to obtain evidence against a marijuana grower, Mr. Kitsch set a small fire on a barn. He promptly called the fire department, and the fire fighters found the marijuana growing in the barn. Mr. Kitsch pled guilty to third degree arson, and claims "law enforcement officials told him they would set aside the conviction and Kitsch could live as though the event had never happened."
The district court concludes that under federal law Kitsch would be guilty only if he knowingly possessed a gun knowing that he was a felon, and that Kitsch is entitled to a jury instruction that "in order to convict Kitsch, the Government must prove beyond a reasonable doubt that he knew or was willfully blind to the fact that he had a prior felony conviction that had not been set aside or expunged."
(Quote from Volokh's post.) Volokh points out that this opinion only concerns Kitsch's right to the jury instruction, and that the trial has not yet taken place. What fascinates me is that there was any doubt that he would be entitled to such an instruction. A conviction that was expunged is a conviction that, for all intents and purposes, never happened. If his conviction had been expunged, Kitsch would have had the right to possess a firearm. While a lawyer would make absolutely certain he had something in writing, it is entirely reasonable for a layman to rely on assurances from law enforcement that everything would be taken care of.
UPDATE: Above, I stated that most states have laws prohibiting felons from possessing guns. This is accurate. I neglected to mention that there is also a federal law to the same effect, so it is illegal for felons to possess firearms in all states, whether or not there is also a state law.