(Editor’s Note: Please do not contact us if you seek representation to restore your gun rights or obtain a pardon. We do not do that kind of legal work. We will not give advice or answer questions about the restoration of gun rights over the phone. We are a criminal defense law firm. We do not represent individuals attempting to restore their gun rights or get a pardon. We represent individuals accused of serious firearms crimes before criminal courts. If you are being investigated or charged with Importing, Dealing, or Manufacturing Firearms without a License or Federal Felon in Possession of a Firearm, we can help.)
John T. Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is an expert in criminal law. He is a respected author of several articles discussing firearms and criminal law issues. Mr. Floyd travels to criminal courts throughout Texas and federal courts nationwide, representing businesses and individuals charged with serious crimes involving firearms, including Manufacturing, Importing, or Dealing Firearms without a license, Felon in Possession of a Firearm, and Self Defense.
All constitutional rights are limited. This includes the Second Amendment’s right “to keep and bear arms.” This has always been the case. One significant limitation of the right to bear arms is the almost universally accepted prohibition against convicted felons possessing firearms.
In its 2008 decision in D.C. v. Heller, the U.S. Supreme Court pointed out that “from Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
The Court followed this observation with the specific point that the Second Amendment does not prohibit laws that curtail or eliminate altogether the right of felons to keep and bear arms. The federal government and states have enacted laws that not only restrict the right of felons to possess firearms but to punish them with severe criminal sanctions if they do so.
On October 22, 1968, President Lyndon Johnson signed the Gun Control Act of 1968, codified in 18 U.S.C. §§ 922, 924.
Among other things, 18 U.S.C. § 922 prohibits anyone other than a licensed manufacturer or dealer from importing, manufacturing, or dealing in firearms or ammunition. 18 U.S.C 924 prohibits and severely punishes the use of a firearm in furtherance of drug trafficking or a crime of violence.
18 U.S.C § 922 specifically criminalizes the possession of a firearm by convicted felons who have been convicted of a crime with a punishment exceeding one year(felons). This part of § 922 is the section most people are familiar with, but subsection “G” of the statute also criminalizes possession by the below-listed individuals:
18 U.S.C. § 921(a)(3) defines the term “firearm” (except an antique firearm) as:
A person convicted under § 922 is subject to a fine and a sentence of not more than 10 years in federal prison unless the offender has three separate prior convictions for a violent felony or drug offense which will then subject him to a term of imprisonment of not less than 15 years. Any sentence imposed under § 922 is not subject to probation or suspension.
A prior conviction cannot be utilized under § 922 unless:
18 U.S.C. § 924(c)(1)(A) prohibits the use of a firearm or any dangerous weapon during any crime of violence or drug trafficking offense.
To be convicted under § 924, the Government must prove that a defendant:
A defendant does not have to carry the gun to be liable under § 924(c).
The Government need only show that a co-defendant (“co-conspirator”) carried a firearm and that it was reasonably foreseeable to the defendant that the co-defendant would carry the firearm. This makes a defendant culpable as the co-conspirator who carried the firearm. This kind of situation most often occurs in drug trafficking offenses.
It is generally easy for the Government to establish a conspiracy between two or more defendants to possess and distribute drugs. While this predicate crime is relatively easy to prove, it is more difficult to prove that a non-firearm carrying defendant knew, or foreseeably could have known, that a co-conspirator would possess a firearm in furtherance of the conspiracy.
This evidentiary hurdle notwithstanding, the Government has the edge in these cases because the firearm does not have to be present when the drugs are verified or even when they actually change hands. The Government must establish a “nexus” between the drugs and a deadly weapon for the jury to reasonably make a finding of guilt.
For example, the Government need only show the presence of a firearm at some juncture in the conspiracy. Because guns are considered “common tools of the drug trade,” the showing that one co-conspirator possessed a gun reasonably implies that one or more of the other co-conspirators involved in their “collaborative criminal venture” knew about the possession.
In effect, the courts have concluded that because drug trafficking is a “dangerous, violent business,” it is reasonably foreseeable that firearms will usually be used in a drug trafficking conspiracy with the knowledge of all the conspirators involved.
Further, the courts have uniformly concluded that firearms are a necessary tool to protect not only the drugs but the well-being of all those involved in the trafficking business.
Finally, with respect to the range of § 924 penalties, all of which are to be applied “in addition to” the predicate offense, they are severe and unforgiving.
A defendant convicted under § 924 is not eligible for probation. Parole is not available to any defendant convicted of a Federal offense.
Further, any sentence under § 924 cannot run concurrently with any other term of imprisonment, including the predicate offenses of drug trafficking and/or violence.
Section 46.04 of the Texas Penal Code governs the unlawful possession of firearms by a person convicted of certain crimes. The offense can range from a Class A misdemeanor, for those convicted of domestic violence, to a third-degree felony for convicted felons in possession of a firearm.
A felon in possession of a firearm can be charged under Section 46.04 under two sets of circumstances:
A conviction under this section is a third-degree felony with a range of punishment of two to 10 years for a defendant with one prior felony conviction and a fine up to $10,000.00.
To convict a felon for possessing a firearm in Texas, the State must first show that the defendant is a convicted felon who knowingly and voluntarily possessed a firearm within five years of his release from prison or community supervision.
The State may fulfill this burden with direct or circumstantial evidence by establishing an affirmative link between the defendant and the firearm. Circumstantial evidence may include but is not limited to factors such as the firearm was:
Some felons incorrectly assume that if they do not actually physically “possess” the weapon, they cannot be charged under Section 46.04. That is not the case.
For example, courts have found that a gun in the trunk of a girlfriend’s vehicle or possessing a shop ticket for a shotgun is a sufficient basis for conviction under Section. 46.04.
While there are no affirmative defenses to unlawful firearm possession by a felon, there are general defenses under Texas law that may be invoked by a defendant charged under Section 46.04.
For example, Texas Penal Code Section 8.02 permits a “mistake of fact” defense. Essentially, this defense requires a showing by the defendant that through a mistake, he/she formed a reasonable belief about a matter of fact which negated the requisite culpability to commit a crime. However, this defense is viable only if the defendant presents sufficient evidence that negates the requisite culpable mental state, namely, that the defendant did not knowingly or intentionally possess a firearm.
A felon charged with unlawful gun possession may also raise a “mistake of law” defense authorized under Texas Penal Code Section 8.03. For a defendant to establish this defense, he must have the following:
A defendant charged under Section 46.04 defendant can also raise a defense of necessity under Texas Penal Code Section 9.22, which provides that conduct is justified when:
Once a defendant presents evidence supporting this defense, the prosecution bears the burden of persuasion to disprove the defense.
Further, a defendant is entitled to a jury instruction on these defenses, regardless of whether his/her evidence is weak or strong, unimpeached or contradicted, and without regard to the trial court’s appraisal of its credibility.
For example, a former gang member kidnapped by the gang members and who manages to steal a gun from the gang member guarding him to escape is entitled to an instruction on the defense of necessity.
The downside to raising any of these defenses that go to his or her culpable mental state, the State can introduce extraneous offenses and/or bad acts committed by the defendant to rebut the defenses under Rule 404(b) of the Texas Rules of Evidence.
Texas has a “cleansing” period that allows a felon to own a firearm after a specified period of time following a criminal conviction.
For example, Section 46.04 permits an individual with a felony conviction to possess a firearm on the premises where he or she resides five years after being released from prison or probation.
The problem is that Section 46.04 does not trump federal law, § 922.
Under the federal gun scheme, the right to gun ownership is restored only after he or she has been pardoned with full restoration of three civil rights:
The Supreme Court has held that whether a felon’s civil rights have been restored must be determined under the laws of the state in which the conviction was had.
Under Article 48.01 of the Texas Code of Criminal Procedure, a pardon restores the right to serve on a jury, hold public office, and serve as Executor or Administrator of an estate.
The right to vote in Texas is automatically restored upon discharge from a conviction.
The current federal policy is to follow the state law of the jurisdiction regarding felons in possession. So, unless the circumstances are unusual or the felon is the criminal target, it is unlikely that the federal government will charge a felon legally possessing inside their home for self-protection inside the State of Texas. This is only law enforcement policy, and nothing would legally prevent the federal government from prosecuting a felon possessing in their own home.
Twenty-three states and the District of Columbia have legalized medical marijuana. Four states have also legalized marijuana for recreational and personal use, while many states have decriminalized personal marijuana use by replacing criminal penalties with civil fines.
The Heller decision held that the Second Amendment codified a “pre-existing” right in this country to keep and bear arms; that this right, rooted in the right of self-defense, is undeniable in the home “where the need for defense of self, family, and property is most acute.”
But can legal marijuana, used for either medical or recreational purposes, coexist in the family home with gun ownership?
In September 2011, the Bureau of Alcohol, Tobacco, Firearms, and Explosives issued a public letter (in response to gun owner queries) that any marijuana is a “controlled substance” within the meaning of Section 922(g)(3).
In April 2014, the Fourth Circuit Court of Appeals found a causal connection between drug usage and violence sufficient to find that Section 922(g)(3) trumped the Second Amendment’s right of self-defense. The appeals court premised its decision on what it called four “commonsense notions”:
Two months after this decision, U.S. Sen. John Walsh, D-Mont., introduced legislation intended to overturn the 2011 ATF letter by prohibiting federal funds from being used to prosecute gun owners who are registered, medical marijuana users. The legislation does not cover recreational marijuana users.
Former presidential candidate and U.S. Sen. Ted Cruz, R-Tex., offered support for the Walsh legislation. The Walsh legislation has apparently stalled in the bureaucracy of Congress.
Currently, the state the federal law remains illegal to possess firearms and use marijuana.
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