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Crime & Punishment: Why Felons Lose Their Second Amendment Rights
One of the foundations of our country’s criminal justice system is a belief that the punishment should fit the crime. But is it really fair that every felon in the state of Florida lose their right to possess a firearm, and face felony level weapons charges if they are caught with a weapon?
Why is the law the way it is?
Nobody should get a slap on the wrist for murder, or thrown in jail for life for stealing a piece of fruit. One punishment is too weak, and the other much too harsh. When there is such a mismatch between a crime and its punishment, people come to distrust the legal system.
To restore trust in the system, and balance crimes and their punishment, lawmakers pass laws that set the maximum sentence for various crimes. Judges then sentence people who plead guilty, or who are convicted of a crime, based on those guidelines. Although judges have some flexibility during the sentencing phase, it is too often true that the punishments fit the crime and not the criminal.
This is especially true when it comes to the possession of firearms by people who have been convicted of a crime. Florida law generally prohibits firearm possession by convicted felons, subject to statutory exceptions and qualifying restoration of rights. State and federal restrictions must both be checked. Anyone who violates this law can be charged with a second degree felony punishable by up to 15 years in prison.
What is the law?
Florida Statute 790.23 says:
(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:
(a) Convicted of a felony in the courts of this state;
(b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age;
(c) Convicted of or found to have committed a crime against the United States which is designated as a felony;
(d) Found to have committed a delinquent act in another state, territory, or country that would be a felony if committed by an adult and which was punishable by imprisonment for a term exceeding 1 year and such person is under 24 years of age; or
(e) Found guilty of an offense that is a felony in another state, territory, or country and which was punishable by imprisonment for a term exceeding 1 year.
Domestic-Violence Allegations and Protective Orders
An accusation alone does not automatically trigger every firearm prohibition. Florida section 790.233 prohibits firearm and ammunition possession or control while a qualifying final domestic-violence, stalking, or cyberstalking injunction is in effect. The specific order and any criminal release conditions must also be reviewed.
Federal law, 18 U.S.C. § 922(g)(8), separately applies to qualifying protective orders issued after notice and an opportunity to participate in a hearing. It includes relationship and conduct requirements and requires either a credible-threat finding or specified prohibitions on physical force. A temporary order entered without that opportunity does not automatically satisfy this federal provision, but its own terms and other applicable laws may still restrict firearms. A qualifying domestic-violence conviction can create a separate federal prohibition.
In United States v. Rahimi (2024), the Supreme Court upheld temporary disarmament in the circumstances of a judicial finding of a credible physical threat. Do not assume an order is invalid or disregard it; seek legal review and lawful relief.
Restoration of civil rights does not necessarily restore firearm authority. A lawyer should review the exact conviction, any pardon or restoration, Florida section 790.23, and applicable federal restrictions before possession resumes.
Fighting for your rights, and your freedom.
As an Olympic-caliber skeet shooter, Attorney Antonio Valiente appreciates how draconian this law really is. Not every felon who picks up a gun is a danger to society, or intended to commit a crime. He is passionate about defending Miami area residents who are charged with the unlawful possession of a firearm, and would welcome a call from you if you have been charged with this crime.
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