Firearms are an integral part of Idaho culture. It is not unusual to see someone open carrying a pistol at your local supermarket or to overhear a hunter talking about shooting some ducks with his 870 Wingmaster. This is not surprising as nearly sixty percent of Idaho households are estimated to own at least one firearm.[1]

Unfortunately, thousands of people are stripped of their rights each year due to Idaho’s criminal justice system working in conjunction with federal law. Even more concerning is that some defendants, and their attorneys, are not aware that the resolution of their case has rendered them a person prohibited from possessing firearms. This article is designed to provide tips for avoiding loss of gun rights, elucidate the different avenues by which such rights can be restored, and suggest two proposals for how to potentially restore gun rights to certain classes of defendants who cannot avail themselves of the usual avenues.

Avenues to Loss of Gun Rights

This section does not provide a comprehensive list of all the legal statuses that can lead to loss of firearms rights. Rather, this section focuses on providing warnings for criminal law practitioners who may be unaware of some of the pitfalls that can lead to a defendant unwittingly losing the right to possess firearms. Included are some tips for negotiating resolutions that will not render your clients prohibited persons.

Felons. It is a violation of federal law for a felon to possess a firearm.  However, Congress does not use the term “felony,” instead opting to utilize the term “crime punishable by imprisonment for a term exceeding one year” to describe this class of offenses.[2]  This term, due to its statutory definition, does not include certain white-collar felonies, nor crimes deemed misdemeanors by a State that are punishable by a jail term of not more than two years.[3]

Idaho state law is narrower as to the scope of individuals it pertains to, barring anybody “who has entered a plea of guilty, nolo contendere or has been found guilty of any of the crimes enumerated in section 18-310, Idaho Code, or to a comparable felony crime in another state, territory, commonwealth, or other jurisdiction of the United States” from purchasing, owning, possessing, or having under his or her custody or control any firearm.[4]  Because section 18-310 does not only omit the white-collar offenses omitted under federal law, but also crimes such as felony driving under the influence, section 18-3316(1) applies to only a fraction of those felons prohibited from owning firearms under federal law.

However, section 18-3302(2)(d) of the Idaho Code defines “firearm” as any weapon that will, is designed to, or may readily be converted to expel a projectile by the action of an explosive. This definition unfortunately is broader than the federal definition, which omits, inter alia, black powder firearms.[5]This leads to felons in Idaho, including some of my former clients, purchasing black-powder muzzleloaders, predominantly so that they can hunt with them.  These felons then unwittingly get into trouble with state authorities.  Thus, it is important to advise felony clients of this potential danger.

Misdemeanants. Anyone convicted of a “misdemeanor crime of domestic violence” is a prohibited person.[6] To qualify as a misdemeanor crime of domestic violence, a state-level offense must have, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon. In addition, the violence must have been committed by “a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, by a person similarly situated to a spouse, parent, or guardian of the victim, or by a person who has a current or recent former dating relationship with the victim.”

Criminal law practitioners should immediately recognize that this list of qualifying relationships is broader than the list contained in Idaho Code § 18-918.  For instance, under Idaho law, neither a dating relationship nor a parent-child relationship can transform a simple battery into a domestic battery.[7]

Confusingly, the domestic relationship “element” of the federal definition need not be an actual element of the state-level offense.[8] That relationship can be established by examining charging documents, plea agreements, plea colloquies, and comparable judicial records. These same records can also be utilized to determine the basis for a conviction under a divisible statute, such as disturbing the peace, as defined by Idaho Code § 18-6409, in which there are multiple actus reus by which guilt can be established.[9]

It is for this reason that (a) disturbing the peace is not an ideal resolution in domestic cases, and (b) practitioners should always make sure that misdemeanor defendants allocute to disturbing the peace by loud and unusual noise in the form of screaming or something along those lines.  Another resolution that may be the best that can be negotiated with a tough prosecutor is assault under Idaho Code § 18-901(b), which arguably would not qualify as a crime of domestic violence under federal law assuming no weapon was involved.[10]

However, better resolutions include amending the assault or battery charge to trespass, unlawful entry, malicious injury to property, or obstructing an officer, depending on the specific factual circumstances of a case.  Additionally, Idaho Code § 18-2901 defines false imprisonment as the unlawful violation of the personal liberty of another.  This definition does not contain the necessary violence element, nor is it divisible. Prosecutors may also be more willing to accept such a resolution because the maximum penalties for false imprisonment are one year in jail and a $5,000 fine.

The federal definition of “misdemeanor crime of domestic violence” also exempts from prosecution for unlawful firearm possession certain persons who have otherwise-qualifying convictions.[11] First, defendants who were not represented by counsel and did not knowingly and intelligently waive their right to counsel are exempt from prosecution. Second, defendants who pleaded guilty or who were found guilty after a court trial but did not knowingly and intelligently waive their right to have their case tried by a jury, are exempt from prosecution.

Judges sometimes forget to make the required inquiries, so federal defenders need to check the underlying record to ensure their clients are not exempt from prosecution.  Finally, if the defendant has no more than one conviction for a misdemeanor crime of domestic violence, and if that one conviction involved only a dating relationship, then the defendant ceases to be a prohibited person once five years have elapsed from the later of the judgment of conviction or the completion of the person’s custodial or supervisory sentence.

Statuses that Can Apply Regardless of Conviction. There are two pre-conviction statuses that can lead to temporary loss of gun rights, so long as the status exists.  The first status is that of a “fugitive from justice” which means that the person has fled from any State to avoid prosecution for a crime or to avoid giving testimony in a criminal proceeding.[12]  The word “fled” has been interpreted in such as a way that the person need not have left the State for the purpose of avoiding prosecution; remaining away for the purpose of avoiding prosecution is sufficient.[13] If a client fails to appear and a warrant issues pursuant to Idaho Code § 19-2915, it is vital that they be advised that they could now be considered a prohibited person by the federal government if they leave the State of Idaho.

The second status is that of a person who is subject to a domestic violence protection order, which is very specifically defined in section 922(g)(8) of Title 18, United States Code. Importantly, subparagraph (A) requires the order to be issued “after a hearing of which such person received actual notice, and at which such person had an opportunity to participate,” which means a temporary protection order obtained ex parte pursuant to Idaho Code § 39-6308 would not render the restrained individual a prohibited person under federal law.

Mental Defectives. The final class of prohibited persons that this article will address are those persons adjudicated as a mental defective.[14] This status normally applies to those under guardianship or those who have been involuntarily committed, but it sometimes arises from a criminal case. This is because 27 CFR 478.11 defines “adjudicated as a mental defective” as including “a finding of insanity by a court in a criminal case.” At least some courts have held that a person who is committed to restore them to competency, such as via the 18-212 process here in Idaho, loses their gun rights.[15] Idaho Code § 66-356 clarifies this determination under Idaho law and also provides a process by which a defendant can petition to have the prohibition on firearms ownership due to mental defectiveness lifted. 

Avenues to Restoration of Gun Rights

In Idaho, there are four ways that a felon can restore their right to possess a firearm. The easiest way is to have the right restored automatically by operation of statute upon completion of probation, parole, or imprisonment, as the case may be. The second method would be to seek restoration from a judge pursuant to Idaho Code § 19-2604(1). However, not all felons qualify for relief under § 19-2604(1), especially if they have had a substantiated probation violation.  The third and fourth options are a little less common, and they involve applying to the executive branch, either for a gubernatorial pardon or specifically for restoration of firearms rights through the Commission of Pardons and Parole. 

Automatic Restoration. Idaho Code § 18-310(2) works to automatically restore gun rights for certain felons for both state and federal purposes.[16] The restoration occurs upon “final discharge” which is defined as “satisfactory completion of imprisonment, probation and parole as the case may be.” There is, however, a list of felonies contained in this subsection that explicitly do not qualify for this automatic restoration. This list contains primarily crimes of violence; however, drug offenses are also listed. Additionally, per Idaho Code § 18-310(4), persons convicted of felonies in other states or jurisdictions are not automatically restored under § 18-310(2).[17]

Final Dismissal Granted by Judge. Idaho Code § 19-2604(1) provides judges with the discretion to “set aside the plea of guilty or conviction of the defendant and finally dismiss the case” if certain prerequisites are met and good cause is shown. Generally speaking, relief under this subsection is only available to felons or misdemeanants who have completed a period of probation with no adjudicated probation violations, or misdemeanants who received a fine-only sentence. A final dismissal of the case pursuant to § 19-2604(1) has the effect of restoring the defendant to his civil rights.  This includes the right to possess firearms for defendants with a felony or misdemeanor crime of domestic violence, unless the judge explicitly states otherwise in the order granting the final dismissal.[xviii]

There are two common misconceptions that must be addressed before proceeding.  The first misconception is that the Court granting a withheld judgment, which enters instead of a judgment of conviction, means that the defendant is not a convicted felon and, therefore, not a prohibited person.  That is false.  Until one “effectuates” the withheld judgment by securing a final dismissal via § 19-2604(1), the withheld judgment still renders one a prohibited person.[xix]

The other, more pervasive, misconception is that amending a felony to a misdemeanor under subsection (2) or (3) of § 19-2604 serves to restore gun rights.  Though that is logical, as the defendant is no longer deemed a felon, the Idaho Supreme Court clarified in 2021 that subsection (2) lacks the “shall have the effect of restoring the defendant to his civil rights” language found in § 19-2604(1), and thus does not restore the right to possess firearms.[xx]  Accordingly, individuals convicted of a felony enumerated in Idaho Code § 18-310(2) who have had their conviction reduced to a misdemeanor pursuant to subsection (2) or (3) of § 19-2604 will still need their firearm rights restored by the Commission of Pardons and Parole before they can lawfully possess firearms. 

Idaho Commission of Pardons and Parole. If a defendant’s rights are not restored automatically pursuant to Idaho Code § 18-310(2) and if the courts cannot or will not restore the defendant’s rights pursuant to Idaho Code § 19-2604(1), then the defendant’s only hope is the executive branch.  The defendant could seek a gubernatorial pardon, which would serve to restore their right to possess firearms, but acquiring a pardon is unlikely.

The more common avenue to restoring gun rights via the executive branch is applying to the Idaho Commission of Pardons and Parole for restoration of firearms rights.  The application process is governed by Idaho Code § 18-310(3). The two main criteria to qualify for restoration of rights via this application process are (i) that five years have elapsed from the date of final discharge, and (ii) that the defendant was not convicted of murder or of a disqualifying felony with a firearm enhancement. An additional rule that clients should be advised of is that applications may only be submitted once every twelve months. An application for a pardon or for restoration of gun rights by the Commission is generally the last avenue for criminal defendants who do not qualify for relief under § 18-310(2) or § 19-2604(1).

Voluntary Appeal File. Just because a defendant’s rights are restored does not mean the Federal Bureau of Investigations (“FBI”) will be aware of this and, so, when a Federal Firearms Licensee (“FFL”) (e.g., a gun store), submits the background check associated with Form 4473, it may come back “Denied”.  If the defendant is certain he has no other prohibitions, he can submit a Voluntarily Appeal File application to the FBI.  It will expedite the process to have the National Instant Criminal Background Check System (NICS) transaction number, which the FFL who submitted the Form 4473 can provide.  Of course, if a defendant does not wish to go through this process, they can still purchase a firearm from a private seller.

Pushing for Automatic Restoration for Certain Non-Violent Offenders

The issue with Idaho Code § 18-310 is that not all non-violent felons have their rights restored automatically upon final discharge. Specifically, under subsection (2)(bb), those convicted of simple possession of a controlled substance, such as a user-amount of methamphetamine or even some cocaine residue on a dollar bill, are not automatically restored to their right to possess firearms upon final discharge.  One way to fix this injustice is to strike “or possession of” from paragraph (bb). If enough citizens contact their local legislators, perhaps a legislative amendment could solve this issue.

The more difficult route would be to challenge the lack of automatic restoration by bringing a constitutional challenge, either facial or as applied, against Idaho Code § 18-310(2)(bb).  Although making such a constitutional challenge a couple of decades ago would have been viewed as frivolous or even laughable, the paradigm shift in Second Amendment jurisprudence under Bruen coupled with how drugs are currently viewed make it plausible.[xxi]  Bruen is a 2022 case wherein the Supreme Court of the United States established a new test for whether a government regulation violates the Second Amendment:  “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”[xxii]

Accordingly, the standard is not strict scrutiny or rational basis, but whether a historical analogue of the current regulation was in existence prior to the ratification of the Second Amendment. Unfortunately, the Supreme Court may have rendered Bruen toothless with its “clarification” in Rahimi last year, wherein the Court explained that, in the context of historical analogues, “The law must comport with the principles underlying the Second Amendment, but it need not be a dead ringer or a historical twin.”[xxiii]

The easiest procedural posture would be to find a defendant in a criminal case who only has a conviction for felony possession of a controlled substance and then move to dismiss that case under Idaho Criminal Rule 48(a). Alternatively, a felon who desires to own a firearm could file a petition for writ of prohibition or perhaps a petition for a declaratory judgment, although the latter would likely only work if the United States Court of Appeals for the Ninth Circuit decided to reinstate the ruling in Duarte. In that decision, the Ninth Circuit basically held that crimes, especially non-violent crimes, that were not considered felonies at the time the Second Amendment was ratified, could not serve as a basis for depriving an individual of their right to bear arms. However, after the Supreme Court’s decision in Rahimi, the opinion in Duarte was vacated by the Ninth Circuit pending further argument and analysis.[xxiv]

At this point, the future of Bruen-based constitutional challengesis unclear, so it is paramount that practitioners do their best to resolve cases in a manner that avoids loss of gun rights.  If loss of gun rights cannot be avoided, defendants need to be properly apprised of the different avenues by which their rights may be restored when the time comes.  There is no reason why a defendant’s Second Amendment rights should not be safeguarded to the same extent as other constitutional rights, and it is imperative that defense attorneys assist in preserving those rights.

Adam J. Ondo is a trial attorney for the Idaho State Public Defender, but he previously maintained a criminal and family law practice at Hilverda McRae, PLLC, in Twin Falls. He also hunts, serves on a gun club’s board of directors, and teaches the legal portion of an Idaho enhanced concealed weapons license course.

[1] See, e.g., Terry L. Schell et al, State-Level Estimates of Household Firearm Ownership, RAND (Apr. 22, 2020).

[2] 18 U.S.C. § 922(g)(1).

[3] 18 U.S.C. § 921(a)(20).

[4] Idaho Code § 18-3316(2).

[5] 18 U.S.C. § 921(a)(3); 18 U.S.C. § 921(a)(16).

[6] 18 U.S.C. § 921(a)(33).

[7] Idaho Code § 18-918(1)(a).

[8]  White v. Department of Justice, 328 F.3d 1361, 1367 (Fed. Cir. 2003).

[9] United States v. Horse Looking, 828 F.3d 744, 746-47 (8th Cir. 2016).

[10] This tip comes courtesy of the sagacious attorney David Gadd.

[11] 18 U.S.C. § 921(a)(33).

[12] 18 U.S.C. § 921(a)(15).

[13] United States v. Spillane, 913 F.2d 1079, 1081-82 (4th Cir. 1990).

[14] 18 U.S.C. § 922(g)(4).

[15] See, e.g.,United States v. Midgett, 198 F.3d 143 (4th Cir. 1999). 

[16] Idaho Code § 18-3316(3); United States v. Gomez,911 F.2d 219 (9th Cir. 1990).

[17] State v. Boren, 156 Idaho 498, 500, 328 P.3d 478, 480 (2014).

[xviii] 27 C.F.R. § 478.11.

[xix] United States v. Locke, 409 F. Supp. 600, 604-05 (D. Idaho 1976).

[xx] In re Order Certifying Question to Supreme Court of Idaho, 169 Idaho 135, 139-140, 492 P.3d 1094, 1098-99 (2021).

[xxi] New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).

[xxii] Id. at 20-21.

[xxiii] United States v. Rahimi, 602 U.S. 680, 692 (2024).

[xxiv] See United States v. Duarte,101 F.4th 657, 691 (9th Cir. 2024) (vacated pending en banc review).