Federal Firearms Charges Defense

The Second Amendment did not save the last seven thousand people convicted under Section 922(g).

In fiscal year 2024, federal courts sentenced 7,419 defendants for firearms possession offenses under 18 U.S.C. Section 922(g), with an average term of imprisonment of seventy-one months. That is nearly six years. The Armed Career Criminal Act converted a substantial portion of those sentences into mandatory minimums of fifteen years or more, with an average among ACCA-enhanced defendants of 203 months. These are not hypothetical exposures. They are the statistical reality of a statute that prohibits nine categories of persons from possessing a firearm or a single round of ammunition, anywhere, at any time, for the remainder of their lives.

The constitutional ground beneath this statute is shifting. Whether it shifts fast enough for the person reading this sentence is a different question.

What Section 922(g) Prohibits and Who It Reaches

The statute is deceptively simple. It forbids the shipment, transportation, possession, or receipt of any firearm or ammunition by persons falling within enumerated categories. The most common is 922(g)(1), the felon-in-possession provision, which applies to anyone convicted of a crime punishable by imprisonment exceeding one year. Not sentenced to more than one year. Punishable by more than one year. The distinction collapses thousands of people who received probation, community service, or short jail sentences into the same prohibition as those who served decades.

The remaining subsections capture fugitives, unlawful users of controlled substances, persons adjudicated as mentally defective, undocumented noncitizens, those dishonorably discharged from the armed services, persons who have renounced citizenship, individuals subject to qualifying domestic violence restraining orders, and those convicted of misdemeanor crimes of domestic violence. Each category presents its own interpretive difficulties. The domestic violence provisions alone have generated a circuit split that the Supreme Court addressed in June 2024 and did not entirely resolve.

Possession need not be physical. Constructive possession, the doctrine by which a firearm found in a shared residence or vehicle may be attributed to a defendant who never touched it, accounts for a significant fraction of federal firearms prosecutions. The government need only establish that the defendant knew of the weapon and had the ability to exercise dominion and control over it. In a shared apartment, the inference is available. In a car with three passengers, it is available. The doctrine functions as an expansion of the statute by other means.

The Constitutional Fracture After Bruen

In June 2022, the Supreme Court decided New York State Rifle and Pistol Association v. Bruen and in doing so altered the method by which every firearms regulation in the country must be evaluated. The old framework, a two-step means-end scrutiny analysis that had governed Second Amendment cases since Heller, was replaced with a single historical inquiry: the government must demonstrate that the challenged regulation is consistent with the Nation’s historical tradition of firearms regulation. Not merely that the regulation serves an important interest. That it has a historical analogue.

The decision produced an immediate and ongoing disruption in federal firearms law. By late 2024, defendants had filed more than two thousand challenges to gun laws citing Bruen, and the annual volume of Second Amendment cases in federal court had increased from seventy-four per year in the decade before the decision to 680. Courts upheld the challenged regulations in approximately ninety-three percent of criminal cases. That number provides comfort to prosecutors. It should not. Seven percent of a very large number is a very large number.

The Third Circuit became the first federal appellate court to strike down Section 922(g)(1) as applied to a specific defendant. In Range v. Attorney General, the en banc court held that Bryan Range, whose sole disqualifying conviction was a 1995 guilty plea to making a false statement to obtain food stamps under Pennsylvania law, could not be permanently disarmed consistent with the Second Amendment. The government, the court concluded, had failed to identify any historical analogue for the permanent disarmament of a citizen whose only offense was a nonviolent fraud.

Range created a circuit split. Outside of that split, the constitutionality of the felon-in-possession statute as applied to nonviolent offenders remains an open and actively litigated question.

After Rahimi, the Boundaries Clarified and Did Not

The Supreme Court returned to the Second Amendment in June 2024 with United States v. Rahimi. The facts were not sympathetic. Zackey Rahimi was subject to a civil protective order after assaulting his girlfriend and threatening to shoot her. He subsequently participated in five separate shooting incidents. The Fifth Circuit, applying Bruen, had held that Section 922(g)(8) was unconstitutional because the government could not produce a precise historical match for the disarmament of persons subject to domestic violence restraining orders.

The Supreme Court reversed, eight to one. Chief Justice Roberts wrote that when a court has found an individual to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment. The Court refined the Bruen framework in the process: the historical inquiry requires relevant similarity, not a regulatory twin. Courts must apply faithfully the balance struck by the founding generation to modern circumstances, not demand an identical statute from 1791.

The refinement matters for defense counsel. Rahimi confirmed that categorical disarmament is not automatically constitutional. The government must still identify a historical principle supporting the specific regulation as applied. For domestic violence restraining orders involving credible threats of physical violence, that principle exists. For the permanent disarmament of a person convicted of food stamp fraud three decades ago, it may not. The space between those two poles is where the current litigation resides.

Ghost Guns and the VanDerStok Confirmation

A separate front in federal firearms enforcement concerns weapons without serial numbers. In August 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives promulgated a rule expanding the regulatory definition of firearm to include weapon parts kits and partially completed frames and receivers that can readily be converted into functioning firearms. The rule subjected those items to the same requirements that apply to completed weapons: serialization, background checks, licensed dealer sales.

The rule was challenged immediately. The Fifth Circuit struck it down. In March 2025, the Supreme Court reversed in Bondi v. VanDerStok, with Justice Gorsuch writing for a seven-Justice majority that the Gun Control Act covered at least some weapons parts kits regulated by the ATF rule. The holding preserved the regulatory framework. Federal prosecution for possession of an unserialized firearm, or for trafficking in ghost gun kits, now rests on confirmed statutory authority.

The criminal exposure is not trivial. A related prosecution in 2024 produced a five-year federal sentence for trafficking unnumbered pistols across three states. The willfulness requirement remains, but willfulness in the context of a person who purchased components specifically designed to circumvent serialization requirements is not a difficult inference for the government to draw.

The ACCA and What Erlinger Restored

The Armed Career Criminal Act is the sentencing provision that transforms a firearms possession charge from serious to catastrophic. Three prior convictions for violent felonies or serious drug offenses trigger a mandatory minimum of fifteen years, displacing the standard ten-year maximum. The average sentence for ACCA-enhanced defendants in fiscal year 2024 was 203 months. Seventeen years.

The predicates themselves are contested terrain. What constitutes a violent felony has been the subject of continuous Supreme Court litigation for two decades. The residual clause was struck down in Johnson v. United States in 2015. The elements clause and the enumerated offenses clause remain, but their application to specific state convictions produces disagreements that occupy federal appellate courts with regularity.

In 2024, the Supreme Court decided Erlinger v. United States and held that the Fifth and Sixth Amendments require a unanimous jury to determine beyond a reasonable doubt whether a defendant’s prior offenses were committed on occasions different from one another. That factual finding had previously been made by judges under a preponderance standard. The correction was not small. Defendants whose prior offenses arose from a single criminal episode, or from closely related conduct, now possess a constitutional right to have a jury make the determination that separates a ten-year maximum from a fifteen-year minimum.

Separately, Brown v. United States established that a state drug conviction qualifies as an ACCA predicate based on the federal drug schedules in effect at the time of the state conviction, not at the time of federal sentencing. The ruling forecloses one avenue of challenge but opens others: defendants whose state convictions involved substances that were later reclassified or descheduled have arguments that did not previously exist.

Where Suppression Determines the Outcome

Federal firearms cases are evidence cases. The weapon is either admissible or it is not. If it is not, the case collapses. Suppression motions under the Fourth Amendment are therefore not ancillary. They are often the entire defense.

The frequency with which firearms are recovered during traffic stops, consent searches, and warrantless entries into residences creates recurring constitutional questions. Was the stop supported by reasonable suspicion. Did the consent extend to the area searched. Was the protective sweep of the residence justified by articulable facts suggesting danger, or was it a pretext for a general search. The particularity requirement for warrants, which demands that the warrant describe with specificity the place to be searched and the items to be seized, is violated more often than the government would prefer to acknowledge.

A suppression motion that prevails eliminates the physical evidence. Without the weapon, the government’s case reduces to testimony about constructive possession, which is weaker, or to statements made by the defendant, which may themselves be subject to suppression if obtained in violation of Miranda or the Sixth Amendment right to counsel.

DEFENSE TEAM SPOTLIGHT

Todd Spodek

Lead Attorney & Founder

Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.

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The distinction between a conviction and a dismissal in a federal firearms case frequently rests on what happened in the first ninety seconds of the encounter between the defendant and law enforcement. Those seconds must be reconstructed with precision.

The Sentencing Architecture

Absent an ACCA enhancement, Section 922(g) carries a statutory maximum of fifteen years following the Bipartisan Safer Communities Act of 2022, which raised the ceiling from ten. The Sentencing Guidelines assign a base offense level of fourteen under Section 2K2.1(a)(6) for a standard felon-in-possession case. Specific offense characteristics may increase that level based on the number of firearms involved, whether the firearm was stolen, whether the defendant possessed the firearm in connection with another felony, and whether the firearm was of a type particularly associated with violence (short-barreled rifles, semiautomatic assault weapons).

Criminal history is the second axis. A defendant in Criminal History Category I with a base offense level of fourteen faces a guideline range of fifteen to twenty-one months. The same offense level in Category VI produces a range of thirty-seven to forty-six months. With enhancements, the guideline calculations escalate with mechanical severity.

Departures and variances are available. Section 3553(a) requires the court to consider the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence to reflect the seriousness of the offense, and the need to avoid unwarranted sentencing disparities. A sentencing memorandum that addresses these factors with specificity and supported by mitigation evidence, rather than with generalizations about the defendant’s character, alters outcomes. The gap between the guideline range and the sentence imposed is not automatic. It is produced by advocacy.

The Conversation That Precedes Everything Else

A federal firearms charge compresses the timeline. An indictment under Section 922(g) or Section 924(c) initiates a sequence of detention hearings, discovery disputes, suppression briefing, plea negotiations, and sentencing preparation that proceeds at a pace unfamiliar to anyone whose prior contact with the criminal justice system was limited to state court.

The clients who contact this office arrive at various points in that sequence. Some have received target letters. Some were arrested this morning. The intervention point matters less than the quality of what follows, but earlier engagement permits the construction of defenses that later engagement does not. A Fourth Amendment challenge is strongest when the details of the encounter are fresh. A constitutional challenge under Bruen and Rahimi requires research into the defendant’s specific disqualifying conviction. An ACCA challenge requires analysis of the predicate offenses under the categorical approach before the government has committed its theory to paper.

Spodek Law Group has defended federal firearms cases in the Southern and Eastern Districts of New York, in the District of New Jersey, and in federal courts across the country. The firm understands the statute, the constitutional arguments that are reshaping it, the suppression issues that determine admissibility, and the sentencing mechanics that determine years. The situation requires assessment. The exposure requires calculation. The defense requires a firm that treats the matter with the seriousness that the penalties demand.