This is the second in a series of articles which examine a proposed administrative rule that was published in the Federal Register on July 22, 2025 (Proposed Rule). If implemented, the Proposed Rule will govern the submission, review, and administrative adjudication of applications for relief from federal prohibited person status relating to the possession, etc., of firearms and ammunition (Prohibited Persons).
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Most laws and administrative rules which establish eligibility for a particular government benefit or status require applicants to meet certain specific requirements. For example, in the context of being able to lawfully purchase or possess a firearm (or ammunition), a person must not, among other things, have been convicted of a felony or of a misdemeanor crime of domestic violence.
When a person seeks to purchase a firearm, government conducts a background check to search for, among other things, any disqualifying criminal convictions. If a disqualifying conviction is found, the governmental inquiry is concluded and the purchaser’s request to receive the firearm(s) is denied. If no disqualifying information is found, the governmental inquiry is concluded and the purchaser’s request to receive the firearm(s) is approved. Under this objective standard of review, the only discretion that government officials may properly exercise is to make a determination regarding whether a particular criminal prosecution resulted in a disqualifying conviction. Consideration of any other issue(s) is improper.
The Proposed Rule, on the other hand, creates rebuttable presumptions concerning an applicant’s eligibility for Prohibited Persons relief and gives the U.S. Attorney General discretion to grant such relief to persons who are presumptively ineligible for such relief, while also allowing the Attorney General to deny such relief to persons who are presumptively eligible for such relief. Whether, from an individual applicant’s perspective, this subjective type of review is a good thing will depend, among other things, on the applicant’s specific circumstances and, in all likelihood, on the political party affiliation of the President who nominated the Attorney General who will be deciding the applicant’s request for relief.
The Proposed Rule refers to this subjective standard as “holistic review,” stating in relevant part:
When a person seeks to purchase a firearm, government conducts a background check to search for, among other things, any disqualifying criminal convictions. If a disqualifying conviction is found, the governmental inquiry is concluded and the purchaser’s request to receive the firearm(s) is denied. If no disqualifying information is found, the governmental inquiry is concluded and the purchaser’s request to receive the firearm(s) is approved. Under this objective standard of review, the only discretion that government officials may properly exercise is to make a determination regarding whether a particular criminal prosecution resulted in a disqualifying conviction. Consideration of any other issue(s) is improper.
The Proposed Rule, on the other hand, creates rebuttable presumptions concerning an applicant’s eligibility for Prohibited Persons relief and gives the U.S. Attorney General discretion to grant such relief to persons who are presumptively ineligible for such relief, while also allowing the Attorney General to deny such relief to persons who are presumptively eligible for such relief. Whether, from an individual applicant’s perspective, this subjective type of review is a good thing will depend, among other things, on the applicant’s specific circumstances and, in all likelihood, on the political party affiliation of the President who nominated the Attorney General who will be deciding the applicant’s request for relief.
The Proposed Rule refers to this subjective standard as “holistic review,” stating in relevant part:
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To guide the Attorney General’s holistic review, the rule would set forth a non-exhaustive list of factors that the Attorney General may consider in determining whether the applicant has ‘‘established to the [Attorney General’s] satisfaction’’ that relief would be consistent with public safety and the public interest.
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Federal Register / Vol. 90, No. 138 / Tuesday, July 22, 2025 / Proposed Rules (Federal Register), at 34398.
This subjective standard of review is analogous to the subjective “May Issue” standard of review that certain anti-gun states formerly employed when processing (denying) applications for carry concealed weapon (CCW) licenses. The U.S. Supreme Court, in the context of CCW licenses, struck down this subjective type of statutory scheme as unconstitutional. See, NYSRPA v. Bruen, 142 S.Ct. 2111 (2022). As of this writing, the U.S. Supreme has not ruled on the constitutionality of laws – federal or state – which impose a lifetime firearms ban on persons who have been convicted of non-violent felony offenses.
This subjective standard of review is analogous to the subjective “May Issue” standard of review that certain anti-gun states formerly employed when processing (denying) applications for carry concealed weapon (CCW) licenses. The U.S. Supreme Court, in the context of CCW licenses, struck down this subjective type of statutory scheme as unconstitutional. See, NYSRPA v. Bruen, 142 S.Ct. 2111 (2022). As of this writing, the U.S. Supreme has not ruled on the constitutionality of laws – federal or state – which impose a lifetime firearms ban on persons who have been convicted of non-violent felony offenses.
The next article in this series will address the various offenses which will result in an applicant being deemed presumptively ineligible for Section 925(c) Prohibited Persons relief.
DISCLAIMER
The information contained in this publication is provided by Lapin Law Group, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.
Lapin Law Group, with its principal office in the Dallas-Fort Worth Metroplex, serves all 254 Texas counties.
Lapin Law Group, with its principal office in the Dallas-Fort Worth Metroplex, serves all 254 Texas counties.
