Introduction
Unless your conviction has been expunged, set aside, or vacated, or your gun rights have been restored, anyone convicted of a felony in any jurisdiction across the country is a prohibited possessor in every U.S. state. Federal law prohibits anyone convicted of a felony from purchasing or possessing any type of firearm.
Arizona gun laws for felons are similar, but some people convicted of felonies can have their rights restored under certain circumstances. If you have been convicted of a felony, it’s important to do your research and consider your case before you give up on the possibility of owning a gun. You may be able to have your rights restored by following a detailed petitioning process.
Gun Laws in Arizona
An Arizona resident who is at least 21 years old can carry a concealed weapon without a permit if they are not a prohibited possessor—this is also known as unrestricted carry or constitutional carry. However, a concealed carry permit can allow you to carry in several other states and in areas that are normally off-limits by law, like school zones and restaurants that serve alcohol.
Anyone who is at least 18 years old can legally possess a firearm and open carry, as long as they’re not a prohibited possessor.
Arizona also recognizes valid permits from other states if the following conditions are met:
- The permit or license is recognized as valid in the issuing state.
- The permit or license holder is legally present in Arizona.
- The permit or license holder is not legally prohibited from possessing a firearm in Arizona.
A person cannot carry in Arizona if the following apply:
- The person is under 18 years old.
- The person is under indictment for, or has been convicted of, a felony offense in any jurisdiction, unless that conviction has been expunged, set aside, or vacated, or the person’s rights have been restored, and they are not currently a prohibited possessor under federal or state law.
Owning or possessing a gun with a previous felony conviction is considered misconduct involving weapons, which is a class four felony in Arizona. The penalty for this charge has a presumptive term of two years and six months in prison. If you have a prior felony conviction, this penalty has a presumptive term of four years and six months.
State v. Gahary
The case State v. Gahary called into question a person’s right to own a gun despite a previous felony conviction. The first case of its kind in Arizona, this case set a precedent for restoring gun rights to convicted felons in the state, even if the felony charge came from a different state.
The defendant in the case, Jacques Gahary, pleaded guilty to a charge of third-degree attempted criminal possession of a weapon in New York in 1982 but later moved to Arizona and wanted to pursue a restoration of his rights to own a gun. The case was decided by a three-judge panel in the court of appeals.
The court found that a felony conviction in another state does not necessarily prevent someone now living in Arizona from restoring their right to own a gun. The ruling determined that state courts do have the power to restore an individual’s right to possess or carry a firearm.
The judges considered that Arizona law groups felony offenders into three categories under A.R.S. 13-910, each with its own right to gun ownership:
- People convicted of “dangerous offenses” classified under Arizona law or a similar crime in another state. This group has no legal right to seek the restoration of their right to own a gun.
- People convicted of “serious offenses” in Arizona or another state. This group can only seek to have their rights restored at least ten years after their cases have been absolutely discharged, which means that all fines are paid and all probation periods have ended.
- People convicted of any other felony offense can seek to have their rights restored two years after their cases have been absolutely discharged.
The judges agreed that Gahary fell into the third category and was justified in asking for his rights to be restored. However, the right to own a gun is not automatically restored. The court ruled that it’s up to a trial court to consider an appeal and determine whether to grant the return of rights to gun ownership.
How To Have Your Gun Rights Restored in Arizona
According to A.R.S. 13-908 and the precedent set forth by State v. Gahary, a person who is convicted of a felony can apply to have their gun rights restored, depending on the nature of their past felony charges. There are two main ways that you can have your rights restored.
Petition
After an appropriate waiting period, you may be able to file a petition with the court to have your rights restored, depending on the nature of your conviction. This is usually ten years for serious offenses and two years for other felony offenses.
If you have been convicted of a dangerous offense, it’s highly unlikely to have your rights restored. According to A.R.S. 13-105, a dangerous offense is one where the crime involves the use or threat of a deadly weapon or dangerous instrument or the intentional infliction of serious physical injury on another person.
If you meet the proper requirements to have your rights restored, you must make a written request to the court. It will then be up to the court to decide if you’re eligible based on your conviction and your current case.
Some factors that may influence your ability to have your rights restored include:
- Your criminal history
- Performance during probation
- The severity of your felony
- Steps taken for rehabilitation
Felony Set Aside
To restore your rights to gun ownership, you may also have your felony conviction set aside or expunged. When a felony is set aside, your conviction still exists on record, but the penalties associated with it are released. Having your felony set aside is only an option for crimes convicted in the State of Arizona.
When it is expunged, your conviction is essentially erased in the eyes of the law. The benefit of having your felony set aside or expunged is that it restores civil rights like employment and voting rights in addition to gun rights. Keep in mind that you can only have your conviction expunged in the jurisdiction where the crime occurred.
Similar to the petitioning process, you must file an application with the courts, and you can only pursue this route after all fines are paid and all probation periods are complete.
Can a Felon Live in a House with a Gun in Arizona?
If you are a felon who has not had their rights restored, it is unlawful to own or have access to a gun—that includes being in the same house as one. According to A.R.S. 13-3102, possessing a deadly weapon as a prohibited possessor is considered misconduct involving weapons and is a class four felony.
However, the definition of possessing a gun is not exactly straightforward. According to the law, it is possible to be in illegal possession of a gun, even if the gun belongs to someone else.
Constructive possession is the legal possession of an object that is not in the person’s direct control. In the eyes of the law, anyone with access to a gun is considered to have possession of it, even if they do not technically own the gun themselves.
Living in a house with a gun can fall under constructive possession—because a felon can be considered to have access to the gun, they can be at risk of a possession charge.
There are some defenses to this, like if the weapon is locked up in a safe and the prohibited possessor does not have a key. However, the safest legal route for felons is to stay as far away from weapons as possible.
If you have any concerns about your proximity to a weapon as a felon, consider consulting a lawyer to fully understand your rights and how to remain in compliance with the law.
Find a Lawyer To Help You Get Your Gun Rights Back in Arizona
If you are a convicted felon, you can get your gun rights restored by going through a petitioning process if you meet the proper criteria. You can apply through the court to have your conviction set aside, expunged, or vacated in the state where you were convicted, or you can petition the court to have your gun rights restored in Arizona. The petitioning process can be a tedious one, so it’s valuable to have help from an experienced lawyer.
If you need assistance restoring your gun rights in Arizona, the criminal defense lawyers at JacksonWhite can help. We can also help you get your felony conviction set aside, expunged, or vacated if you were convicted of a felony in Arizona.
Call the JacksonWhite Criminal Law team at (480) 418-4281 to discuss your case today.
