Posted by: Patrick Allen Foster | July 11, 2013

Does the Full Faith and Credit Clause Apply to Pardons?

Here’s an interesting case that looks at the intersection of the Full Faith and Credit Clause, the Second Amendment, and the pardon power. Eugene Volokh points to a recent decision from the Tennessee Court of Appeals, Blackwell v. Haslam (Tenn. Ct. App. June 28, 2013):

The petitioner was convicted of felony drug offenses in Georgia. The State of Georgia granted the petitioner a full pardon for his crimes; his Georgia pardon expressly restored his right to possess a firearm. The petitioner now resides in Tennessee. A Tennessee statute provides that it is a felony for a person who has been convicted of a felony drug offense to possess a firearm, and it does not make an exception for persons who have been pardoned for their crime. The petitioner filed this declaratory judgment action against the State of Tennessee, seeking a declaration that, because he received a pardon for his drug offenses in Georgia, he can purchase or possess a firearm in Tennessee without violating the Tennessee statute.

The trial court ruled in favor of the petitioner, holding that “the Full Faith and Credit Clause of the United States Constitution requires Tennessee to recognize Georgia’s pardon in full and to permit the petitioner to carry a firearm in Tennessee.” The state appealed.

At the Court of Appeals, Judge Kirby, writing for the panel, noted a difference between Tennessee’s policy and Georgia’s policy regarding the restoration of firearm rights to felons convicted of violent crimes (emphasis in original):

Tennessee public policy proscribes the restoration of firearm rights for a convicted violent drug felon, contrary to Georgia’s public policy allowing the restoration of firearm rights for all felons, violent or not. This Tennessee policy implicates public safety so as to warrant application of the public-policy exception to the Full Faith and Credit Clause under the appropriate circumstances…

So, basically, because Tennessee and Georgia legislatures have reached different conclusions regarding when and whether Second Amendment rights should be restored to convicted felons, Tennessee does not have to give full faith and credit to Georgia’s pardon. Or, looked at another way, the fact that Georgia gave the petitioner a pardon does not have the same effects in Tennessee that it does in Georgia.

Popularly, we tend to think of a pardon as “wiping the slate clean,” but clearly that is not always the case.

(Also, I think this means that the Tennessee Court of Appeals has just held, effectively, that Georgia is soft on crime. Or something.)

Ah, but all hope is not lost for the petitioner, Mr. Broadwell! Since this case in the lower court “was decided based on the pleadings alone,” the Court of Appeals is remanding the case for further argument (footnote omitted):

Mr. Blackwell’s complaint states that he was pardoned for “drug felonies,” but it does not indicate whether the drug felonies of which Mr. Blackwell was pardoned involved the use or attempted use of force, violence, or a deadly weapon. For this reason, the case should be remanded for further proceedings. On remand, the State bears the “stern and heavy” burden of proving that Mr. Blackwell’s crimes involved the use or attempted use of force, violence, or a deadly weapon. If this is so, then giving full faith and credit to Georgia’s restoration of Mr. Blackwell’s firearm rights would be directly contrary to Tennessee’s strong public policy against the restoration of firearm rights for one convicted of such a felony. In other words, requiring Tennessee to extend full faith and credit to Georgia’s restoration of Mr. Blackwell’s firearm rights under those circumstances would require “too large a sacrifice by [Tennessee] of its interests in a matter with which it is primarily concerned” — protecting public safety and preventing crime. Restatement (Second) of Conflict of Laws § 103 cmt. b.

Therefore, we vacate the trial court’s grant of judgment on the pleadings to Mr Blackwell. We remand the case to the trial court for the State to have the opportunity to show that giving full faith and credit to Georgia’s restoration of Mr. Blackwell’s firearm rights would offend Tennessee’s public policy against the restoration of firearm rights for a person convicted of a felony that involved the use or attempted use of force, violence, or a deadly weapon, and further related proceedings.

Prof. Volokh provides an important side note:

Note also (just to fend off an argument that often arises about a different guns/Full Faith and Credit matter) that the fact that a person is licensed to do something in State A (carry a gun, practice law, drive) doesn’t mean that State B must honor that license when that person wants to do the same thing in State B. Full Faith and Credit does not apply to that, though many states may choose to honor out-of-state licenses as a matter of policy (as, for instance, with driver’s licenses).

In the wake of last month’s US Supreme Court decision in the DOMA case, we are likely to be hearing a lot about the Full Faith and Credit Clause in the next few years. Heads up.

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