John T. Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization and in an expert in criminal law. He is a respected author of several articles discussing issues related to firearms and criminal law. 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 bears arms is the almost universally accepted prohibition against convicted felons possessing firearms.
Second Amendment Does Not Prohibit Laws Restricting Felons in Possession
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 routine 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.
Federal Criminal Gun Laws
On October 22, 1968, President Lyndon Johnson signed into the law the Gun Control Act of 1968 which is codified in 18 U.S.C. §§ 922, 924.
Importing, Manufacturing or Dealing Without a License
Among other things, 18 U.S.C. § 922 prohibits anyone other than a license manufacturer or dealer from engaging in the business of 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.
Federal Felon in Possession
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:
- A fugitive from justice;
- An unlawful user of or addict to any controlled substance;
- An adjudicated mental defective or one who has been committed to a mental institution;
- An illegal alien;
- A nonimmigrant admitted to the United States under a visa’
- A former member of the Armed Forces discharged under dishonorable conditions;
- A former citizen of the United States who has renounced his/her citizenship;
- A person under a court order restraining that person from harassing, stalking, or threatening an intimate partner or child of the intimate partner, or otherwise making the intimate partner/child have a reasonable fear of bodily injury; and
- A person convicted in any court of a misdemeanor crime of domestic violence.
18 U.S.C. § 921(a)(3) defines the term “firearm” (except an antique firearm) as:
- any weapon (including a starter gun) which will or is capable of expelling a projectile by an explosive action;
- the frame or receiver of any such weapon;
- any firearm silencer or muffler; and
- any destructive device.
Strict and Severe Punishments
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 any form of suspension.
A prior conviction cannot be utilized under § 922 unless:
- The person was represented by counsel or knowingly and intelligently waived the right to counsel;
- The person’s right to a jury trial was observed or intelligently waived.
Use of Firearm During Crime of Violence or Drug Trafficking
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:
- committed a crime of violence or a drug trafficking offense;
- knowingly possessed a firearm; and
- possessed the firearm in furtherance of a crime of violence or a drug trafficking offense.
Co-Conspirators Carrying Firearms
A defendant does not have to carry the gun himself 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 as culpable as the co-conspirator who actually 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 simply establish a “nexus” between the drugs and a deadly weapon for the jury to reasonably make a finding of guilt.
Guns Considered Common, Necessary Tools of Drug Trade
For example, the Government need only show the presence of a firearm at some juncture in the conspiracy, and 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.
Sentences for Use of Gun in Crime of Violence, Drug Trafficking
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.
- The possession of a deadly weapon mandates a sentence of not less than 5 years;
- The brandishing of a firearm mandates a sentence of not less than 7 years;
- The discharge of a firearm mandates a sentence of not less than 10 years;
- If the firearm possessed is a short-barreled rifle, short-barreled shotgun, or semi-automatic weapon, a sentence of not less than 10 years is mandated;
- If the firearm possessed is a machinegun or is equipped with a silencer (or muffler), a sentence of not less 30 years is mandated; and
- A second conviction of any of the foregoing firearm possessions mandates a sentence of not less than 25 years unless the firearm is a machinegun and/or is equipped with a silence/muffler which mandates a sentence of life imprisonment.
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 imposed under § 924 cannot run concurrently with any other term of imprisonment, including the predicate offenses of drug trafficking and/or violence.
Texas Gun Laws
Unlawful Possession of Firearm
Section 46.04 of the Texas Penal Code governs the unlawful possession of a 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.
Felon in Possession
A felon in possession of a firearm can be charged under Section 46.04 under two set of circumstances:
- after [prior] conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
- after the period described in subsection (1), at any location other than the premises at which the person lives.
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, as well as a fine up to $10,000.00.
Elements of Felon in Possession
In order to convict a felon for possession of a firearm in Texas, the State must first show that the defendant is a convicted felon who, within five years of his release from prison or community supervision, knowingly and voluntarily possessed a firearm.
The State may fulfill this burden, either 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:
- in a vehicle driven by the defendant,
- in a place owned by the defendant,
- conveniently accessible to the defendant,
- in plain view, or
- found in an enclosed space.
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.
As examples, courts have found that a gun in the trunk of a girlfriend’s vehicle or having possession of shop ticket for a shotgun are sufficient basis for conviction under Section. 46.04.
While there are no affirmative defenses to unlawful possession of a firearm by a felon, there are general defenses under Texas law which may be invoked by a defendant charged under Section 46.04.
Mistake of Fact
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. This defense, however, is viable only if the defendant presents sufficient evidence which negates the requisite culpable mental state; namely, that the defendant did not knowingly or intentionally possess a firearm.
Mistake of Law
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:
- reasonably believed his conduct did not constitute a crime, and
- he reasonably relied upon either an administrative order or written interpretation of law contained in an opinion of record.
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:
- the defendant reasonably believes that the conduct is immediately necessary to avoid imminent harm, and
- according to the ordinary standards of reasonableness, the desirability and urgency of avoiding the harm clearly outweigh the harm sought to be prevented by the law proscribing the conduct.
Once a defendant presents some evidence that supports 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 who is kidnapped by the members of the gang and who manages to steal a gun from the gang member guarding him in order to escape is entitled to an instruction on the defense of necessity.
Extraneous Offenses or Bad Acts
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’ Cleansing Period
Texas has a “cleansing” period that allows a felon to own a firearm after 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 the individual’s release from prison or probation.
The problem is that Section 46.04 does not trump federal law, § 922.
State Law V. Federal Law
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:
- Right to serve on a jury,
- Right to hold public office, and
- Right to vote.
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, right to hold public office, and right to serve as Executor or Administrator to 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 criminal target, it is unlikely that the federal government will charge a felon who is 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 for prosecuting a felon possessing in their own home.
Possession of Firearm and Marijuana
Twenty-three states and the District of Columbia have legalized medical marijuana. Four states have also legalized marijuana for recreational and personal usage while a number of states have decriminalize 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?
- 922(g)(3) says no. This statutory provision makes it unlawful for a person to possess a firearm “who is an unlawful user of or addicted to any controlled substance.”
In September 2011, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a public letter (in response to gun owner queries) that any kind of marijuana is a “controlled substance” within the meaning of Section 922(g)(3).
In April 2014, the Fourth Circuit Court of Appeals found there is 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”:
- that drug users are more likely to encounter law enforcement;
- that their criminal associations increase the risk of violence;
- that the high price of drugs is likely to lead to violent property crimes; and
- that drug use impairs judgment.
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 of the federal law remains that it is illegal to possess a firearms and use marijuana.