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Unofficial Opinion 2005-3

Unofficial Opinion 2005-3

July 7, 2005
To: 

County Attorney

Re: 

Drug offenders who are later pardoned are ineligible to obtain a license to carry a concealed pistol or revolver pursuant to O.C.G.A. § 16 11 129, although they are permitted to possess a pistol or revolver inside their home, vehicle, or place of business without violating Georgia law.

You have asked whether a probate court may issue a firearms license pursuant to O.C.G.A. § 16 11 129 to a person who has been convicted of a drug offense and who is later pardoned and expressly authorized by the State Board of Pardons and Paroles to receive, possess, or transport a firearm. See O.C.G.A. § 16 11 131(c). For the reasons set forth herein, it is my unofficial opinion that the probate court may not issue a firearms license to such a person.

While the right to keep and bear arms is generally secured by the Second Amendment to the United States Constitution, individual states and the federal government may regulate citizens’ rights to possess and carry a firearm. Presser v. Illinois, 116 U.S. 252 (1886). Pursuant to that authority, the Georgia General Assembly has developed a two-tiered approach in determining who may possess a firearm, and who may further be afforded the privilege of being licensed to carry a firearm in a concealed manner.

In Georgia, the right to possess a firearm in a home, vehicle, or place of business does not require a license. See O.C.G.A. §§ 16 11 126 and 16 11 128. Rather, as noted in those Code sections, Georgia law merely prohibits certain persons from possessing any firearm. A license issued pursuant to O.C.G.A. § 16 11 129 authorizes a person to carry a firearm in a concealed manner outside a home, vehicle, or place of business. The lack of a license issued pursuant to O.C.G.A. § 16 11 129 does not prevent a person from possessing a firearm otherwise in conformity with the law.

On the question of who may possess a firearm, as noted above, Georgia law specifically prohibits any unpardoned felon or person on first offender probation from possessing a firearm. See O.C.G.A. § 16 11 131. Those persons not disqualified from possessing a firearm by O.C.G.A. § 16 11 131 must then be approved by the county probate court to receive a license to carry a firearm in a concealed manner pursuant to O.C.G.A. § 16 11 129. Georgia law specifically excludes certain persons otherwise eligible to possess a firearm from obtaining a license pursuant to O.C.G.A. § 16 11 129, including persons under age 21, unpardoned felons, and those pardoned felons who are convicted of offenses involving controlled substances. See O.C.G.A. § 16 11 129(b).1

It is well settled that a specific statute will prevail over a general statute unless there is indication of a contrary legislative intent. Garden Hills Civic Association, Inc., v. MARTA, 273 Ga. 280 (2000). Georgia’s statutory scheme clearly establishes that the requirements to be licensed to carry a firearm in a concealed manner outside one’s home, vehicle, or place of business are more stringent than the minimal restrictions on the mere possession of a firearm. Plainly, then, the more specific requirements of O.C.G.A. § 16 11 129 would prevail, to the extent of any conflict, over the more general restrictions found in O.C.G.A. § 16 11 131.

Moreover, a later enacted statute is presumed to be enacted with full knowledge of any existing statutes. State v. Davis, 246 Ga. 761 (1980). Such statute should be construed in harmony with the existing law, and the meaning and effect will be determined in connection with those previously enacted statutes. Id. This canon of statutory construction is helpful in this instance, wherein O.C.G.A. § 16 11 129(b)(5)(A), which prohibits a pardoned convicted felon from obtaining a license, was enacted in 1990, ten years after the statute which authorizes a pardoned convicted felon to possess a firearm. See O.C.G.A. § 16 11 131. Thus, an examination of the differing legislative objectives of these two statutory provisions further reveals the intent of the General Assembly to further restrict those persons with drug convictions from being licensed to carry firearms.

Your inquiry alludes to a contradiction between O.C.G.A. § 16 11 129 and O.C.G.A. § 16 11 131; when read in pari materia, however, those two provisions can be harmonized. Official Code of Georgia Annotated § 16 11 129(b)(3) generally provides that probate courts may issue a license to carry a firearm to a person convicted of any felony if that person has received a pardon. Pursuant to O.C.G.A. § 16 11 129(b)(5)(A), however, if the conviction is for an offense arising out of the unlawful manufacture, distribution, possession, or use of a controlled substance or dangerous drug as defined therein, that person may not receive a license pursuant to that Code section, even if the person receives a pardon for that conviction. Official Code of Georgia Annotated § 16 11 131 only protects the convicted felon who has been pardoned from being charged with the crime of possession of a firearm by a convicted felon; it does not afford him the privilege of obtaining a license to carry that firearm in a concealed manner outside his home, vehicle, or place of business.2

In summary, it is my unofficial opinion that a probate court may not issued a license pursuant to O.C.G.A. § 16 11 129 to a person convicted of a drug offense as that is described in O.C.G.A. § 16 11 129(b)(5)(A), even if that person has been pardoned.

Prepared by:

Kay Baker
Assistant Attorney General


1 Marijuana is considered a controlled substance as that is defined in O.C.G.A. § 16 11 129(b)(5)(B)(i). See 1997 Op. Att’y Gen. U97-29.

2Fain v. State, 259 Ga. 708 (1989) does not affect the above analysis of a controlled substance violation as defined in O.C.G.A. § 16 11 129(b)(5)(A) because the court in Fain was reviewing a non-forcible felony conviction, and not a controlled substance conviction.