Denied, due to January 6?

An interesting blog, to be sure, because how often do we consider a denial or delay of an attempted firearms purchase in the context of a presidential pardon?  That’s our topic for today.

 Two-point chronology:

·         January 20, 2025 – President Trump issued a pardon, shown on the White House website, for persons convicted or facing prosecution for events pertaining to January 6 at the U.S. Capitol.

·         January 28, 2025 – U.S. DOJ posted instructions on their website on how to obtain a personalized certificate of pardon.

Note that the White House website does not link to the US DOJ website, nor does the White House website include any language to inform an individual that they can now request the pardon certificate.

Enter now you, the FFL, putting through an ATF Form 4473, and your customer gets “deny” or “delay.”  The customer remarks, but I’ve been pardoned.

I thought you might find interesting what I am currently working on in this regard.   

1.  A conviction related to January 6, 2021 is not automatically a disqualifying event.  Many of the crimes charged and of the convictions and plea deals are for crimes carrying less than a potential 365-day prison sentence.  The first thing I have to ascertain is the actual crime of conviction (not the crimes charged).  Then, I have to look at the sentencing guidelines.  A nice, straightforward first step.

For example, if the conviction is a misdemeanor charge, such as “parading” (one of the more commonly charged crimes), federal sentencing guidelines limit that to a six-month maximum sentence.  This may not disqualify the individual under 18 U.S.C. §922(g)(1), which is where you find that 365-day breakpoint. 

2.  The second step may relate to an issue I blogged about four years ago: a number of the judges, at arraignments, when entering conditional orders of release pending trial, checked a box or wrote in language that said, literally, or in essence, “no firearms.”  Those initial orders may have made their way into the FBI NICS system and could still be sitting there.  Even finding those orders is a labor of love because the typical record for a January 6 defendant involves at least two federal case numbers, judges, and courtrooms.  The arraignments were typically initiated in district courts local to the defendant, then transferred into the D.C. District Court.

3.  The third step could be that something unrelated to but surfacing during the January 6 prosecution, including any pre-sentencing report compiled.  Don’t rule out that even if a customer has been purchasing firearms straight along with no problem that there isn’t some little something, like the proverbial joy ride as an 18-year-old, out there to catch up with the person.  And that old stuff?  Different process to get rights reinstated.  The President Trump January 20, 2025 pardon is not a blanket pardon; it pertains only to charges related to events of January 6, 2021 at and near the U.S. Capitol.

Fortunately, there’s the ATF/FBI “Voluntary Appeals File” and the opportunity to request a UPIN.  For dealers in firearms with a customer at the counter, it may be useful to share to them both the federal ATF website page and any state POC appeals process.  Long gun appeals may be made separately and directly to the ATF/FBI, in addition to any state office involved. 

In the past, my experience is that the ATF/FBI have been forthcoming and prompt with disclosure of any records being associated with a disqualification factor.  Further, there is a federal statute at 18 USC 925A, under which I have sued previously, that allows a federal case to be filed to obtain a judicial order correcting any erroneous FBI NICS record.  What I’m tucking away in my “legal contingencies file” is that if I don’t see results within about six months – in other words, if it starts to look like resistance to process the pardon within the FBI or the ATF – there could be basis to file under the statute and to seek an award of attorney’s fees and costs against the federal government.

Keep in mind, again, that firearm purchase denials require administrative appeal within thirty (30) days of denial. 

This previously rare issue in the Second Amendment world is of a scale that may test government workers, attorneys, and possibly courts.  Tuck this away as informative and a place to start, if this most interesting question arises at your FFL.  Please also be welcomed to share this with other attorneys you may know, as an invitation for a broader conversation.