18 U.S.C. § 922(g) – Felon in possession of firearm

18 U.S.C. § 922(g) – Felon in possession of firearm

18 U.S.C. § 922(g) is a federal law that makes it illegal for certain people to possess firearms or ammunition. Specifically, it prohibits possession by anyone who:

• Has been convicted of a crime punishable by more than one year in prison (a felony)
• Is a fugitive from justice
• Is an unlawful user of or addicted to any controlled substance
• Has been adjudicated as a mental defective or committed to a mental institution
• Is illegally or unlawfully in the United States
• Has been discharged from the Armed Forces under dishonorable conditions
• Having been a citizen of the United States, has renounced U.S. citizenship
• Is subject to a court order restraining them from harassing, stalking, or threatening an intimate partner, their child, or a child of their intimate partner
• Has been convicted of a misdemeanor crime of domestic violence

This law is an important tool used by federal prosecutors to combat gun violence and keep firearms out of the hands of potentially dangerous individuals. Let’s take a closer look at how it works.

Background and Purpose

18 U.S.C. § 922(g) was passed as part of the Gun Control Act of 1968. It was intended to keep firearms away from “presumptively risky people” without requiring prosecutors to prove they had criminal intent when they obtained or possessed the firearm, according to the U.S. Sentencing Commission. Previously, federal law only prohibited convicted felons from receiving firearms that had traveled in interstate commerce. This new statute cast a much wider net to prohibit possession outright.

Over the years, Congress expanded the categories of prohibited people through amendments to the law. The statute now bars possession by anyone who meets one or more of the categories listed above. According to the Bureau of Justice Statistics, an estimated 5.4 million people were prohibited under this law as of 2016.

Federal vs. State Prohibitions

18 U.S.C. § 922(g) provides an additional layer of firearm prohibition on top of state laws. Many states have laws prohibiting firearm possession by convicted felons, people convicted of domestic violence misdemeanors, those adjudicated as “mentally defective,” and other categories of concerning individuals. However, state laws only apply within the respective state borders.

The federal prohibition steps in to prevent these individuals from simply crossing state lines to obtain guns. The federal law requires only minimal proof that the firearm traveled in interstate commerce, such as the firearm being manufactured in a different state from where it was possessed. Thus, the federal law provides nationwide restrictions on the possession of firearms by prohibited categories.

Penalties

A conviction under 18 U.S.C. § 922(g) carries substantial penalties. The maximum sentence is 10 years in federal prison. Fines up to $250,000 may also be imposed. The average sentence for felon in possession cases was 64 months in FY 2018.

In addition to the prison term, those convicted will become further restricted in their ability to possess firearms in the future. For example, felons lose the ability to legally possess guns for life under federal law. Those subject to domestic violence protective orders lose the ability to possess guns for the duration of the order. These long-term restrictions underscore the seriousness of a 922(g) conviction.

Requirements for a Conviction

To convict under 18 U.S.C. § 922(g), prosecutors must prove the following elements beyond a reasonable doubt:

1. The defendant falls within one of the prohibited categories (felon, domestic violence misdemeanant, etc.)
2. The defendant knowingly possessed a firearm or ammunition
3. The firearm or ammunition was transported across state lines at some point (interstate nexus requirement)

Merely holding a firearm for a brief period, such as posing for a photo, may be enough to satisfy the possession element. The interstate nexus applies broadly, as most guns are manufactured in one state and sold in another. In rare cases, the nexus can be proven if the gun at one point crossed state lines, even if the defendant himself did not transport it.

Common Defenses

Several legal defenses may apply in felon in possession cases:

• Lack of Knowledge – The defendant can argue they were unaware the firearm was present. For example, if a passenger in a car has a gun concealed under their seat without the driver’s knowledge.
• Justification – Possessing the firearm was necessary for self-defense or defense of others from imminent harm.
• Duress – The defendant only possessed the firearm due to threats of immediate bodily harm.
• Innocent Possession – The defendant only briefly held the firearm with no criminal intent, such as disarming someone.
• Entrapment – The defendant was induced by police to commit the offense.

These defenses place the burden on the defendant and are often difficult to establish. But they provide potential arguments to challenge the prosecution’s case.

Related Statutes and Sentencing Enhancements

18 U.S.C. § 922(g) works in tandem with 18 U.S.C. § 924(a)(2), which provides penalties for the violation. Several other related statutes can impact charging and sentencing:

• 18 U.S.C. § 924(e) – Provides a 15 year mandatory minimum sentence if the defendant has three or more prior convictions for a violent felony or serious drug offense.
• 18 U.S.C. § 924(c) – Provides mandatory consecutive sentences if the firearm was used or possessed in furtherance of a drug trafficking crime or crime of violence.
• 18 U.S.C. § 922(d) – Prohibits providing firearms to prohibited persons, such as through a straw purchase.
• 18 U.S.C. § 922(a)(6) – Prohibits providing false information in acquisition of a firearm, such as lying on ATF Form 4473.

Prosecutors often bring multiple charges under these related statutes in addition to the 922(g) violation itself.

Restoration of Rights

For convicted felons, it is sometimes possible to get firearm rights restored under 18 U.S.C. § 922(g)(1). One avenue is through a qualifying state procedure. For example, a state may allow restoration of gun rights to non-violent felons after a certain period of time. Defendants may also apply directly to the ATF for relief, but the bar is high and few petitions are granted.

Recent Challenges

The constitutionality of 18 U.S.C. § 922(g) has been upheld under the Second Amendment’s right to bear arms and the Commerce Clause. However, it continues to face legal challenges:

• In 2019, the U.S. Supreme Court declined to hear a case questioning whether the law violates the Second Amendment as applied to non-violent felons.
• Some courts have questioned whether the interstate nexus requirement is satisfied merely because a firearm traveled across state lines at some point in the past.
• There are also challenges to what constitutes a felony “conviction” that would prohibit gun possession.

So far these challenges have seen limited success. But it signals that clarification of the law through future legislation or court rulings remains a possibility.

Policy Debate

18 U.S.C. § 922(g) sits at the center of the debate on balancing public safety and gun rights. Supporters argue the law is necessary to keep firearms away from dangerous individuals who could misuse them. But critics counter that the law is overbroad and unfairly denies reformed individuals the ability to defend themselves.

There are good-faith arguments on both sides. Some key considerations in the debate include:

• Should the law distinguish between violent and non-violent offenders?
• Is the law effective at reducing gun crime, or are prohibited individuals easily circumventing it?
• Should the law focus more narrowly on restricting likely dangerous individuals from obtaining new firearms, rather than possession outright?
• How strictly should provisions on restoration of rights be implemented?

These issues will likely continue sparking debate as legislators consider reforms such as more clearly spelling out paths to restoration of gun rights. The law seeks to balance public safety with individual rights, but where to strike that balance remains controversial.

Conclusion

18 U.S.C. § 922(g) provides federal prosecutors with an important tool to keep firearms away from individuals deemed risky. The law has been upheld as a reasonable restriction, but continues to face legal and legislative challenges. People prohibited under the law should seek legal counsel to understand their rights and options. But they face substantial penalties for possessing a firearm, so compliance is crucial.

Going forward, we may see efforts to refine the law’s scope. But the basic framework of restricting access to firearms by concerning individuals is likely here to stay. Understanding the provisions, penalties, and defenses of 18 U.S.C. § 922(g) remains essential for all who may be impacted.