The Most Common Expungement — and Its Biggest Limitation
Class D felonies are the most common category of felony in Kentucky and the most common type of felony eligible for expungement under KRS 431.073. For thousands of Kentuckians, expungement of a Class D felony represents a second chance — the opportunity to remove a conviction from their record and move forward with their lives. But when it comes to firearms rights, the Class D felony expungement has a significant limitation that most people do not understand: it may not remove the federal firearms disability. At Clark + Harris in Lexington and Louisville, we call this “the federal gap,” and it is one of the most important issues we discuss with our expungement clients.
Class D Felonies in Kentucky
Class D felonies carry a sentence of one to five years in prison. Common Class D felonies in Kentucky include theft by unlawful taking over $500 (KRS 514.030), possession of a controlled substance in the first degree (KRS 218A.1415), possession of a firearm by a convicted felon (KRS 527.040, ironically), forgery (KRS 516.020 and 516.030), and receiving stolen property over $500 (KRS 514.110).
These offenses are overwhelmingly non-violent. They represent mistakes — often related to addiction, poverty, or poor judgment — rather than a pattern of dangerous behavior. The people convicted of these offenses are exactly the kind of individuals who should be eligible for a meaningful second chance, including the restoration of their constitutional rights.
The Federal Gap Explained
When a Kentucky Class D felony is expunged under KRS 431.073, the state treats the conviction as if it never occurred. But the federal government may not agree. Under 18 U.S.C. § 921(a)(20), the federal firearms disability is removed only if the expungement qualifies as a sufficient state action under the statute. If it does not — if federal courts determine that a Kentucky expungement does not meet the requirements of § 921(a)(20) — then the person remains a prohibited person under federal law despite having a clean record under state law.
This gap creates an absurd and dangerous situation. A person walks out of a Kentucky courtroom with an expungement order in hand, their felony conviction erased from the state record. They go to a gun shop, pass the NICS check (perhaps because the database has been updated), and purchase a firearm. Under Kentucky law, everything they have done is legal. Under federal law, they may have just committed a new felony.
Why the Gap Exists
The federal gap exists because state expungement law and federal firearms law were not designed to work together. Kentucky’s expungement statute was drafted to provide relief from state-law consequences of a conviction. Federal firearms law was drafted to prevent dangerous individuals from possessing firearms. Neither statute was written with the other in mind, and the interaction between them creates gaps that leave real people in legal limbo.
Closing the Gap
At Clark + Harris, we work to close the federal gap for our clients using every available tool. For some clients, the most effective approach is to pursue a Governor’s pardon in addition to or instead of an expungement. A pardon with express firearms restoration language provides the strongest protection under § 921(a)(20). For others, a proactive legal challenge — seeking a judicial determination that the expungement satisfies the federal standard — may be appropriate. And for some clients, the post-Bruen constitutional landscape offers new arguments that the federal firearms disability is unconstitutional as applied to their specific situation.
The right strategy depends on your individual circumstances — the nature of your conviction, the language of your expungement order, and the current state of the law. But the first step is always the same: get a professional legal analysis before you possess a firearm.
Don’t risk a federal firearms charge by assuming your rights are restored. Call Clark + Harris at 859-474-0001 for a legal analysis of your specific situation. Our attorneys in Lexington and Louisville understand the federal gap and can help you bridge it safely.
Frequently Asked Questions
How soon should I contact Clark + Harris after being charged in Kentucky?
As soon as possible. Early representation protects your rights during questioning, preserves evidence, and often leads to better outcomes. Call 859-474-0001 — we respond promptly to new inquiries.
Does Clark + Harris represent clients throughout Kentucky?
Yes. We represent clients in all 120 Kentucky counties, both state District and Circuit courts, and federal courts in the Eastern and Western Districts of Kentucky.
What happens during a free consultation with Clark + Harris?
We review the specific charges and evidence, discuss available defenses, explain the likely process in the relevant court, and give you a clear roadmap of next steps — at no cost to you.
Related Resources
If this information applied to your situation, the following Clark + Harris guides may also be helpful:
- Federal Prohibited Persons List: Who Cannot Own a Firearm Under Federal Law?
- ATF Form 4473 and Kentucky Criminal History: What You Need to Know
- NICS Background Check Denials in Kentucky: How to Challenge a False Denial
- Federal Gun Rights After a Kentucky Misdemeanor Conviction
- Interstate Firearms Disabilities: How Other States’ Laws Affect Kentucky Gun Owners