In a previous post, we discussed the harsh penalties associated with the use of a firearm during the commission of a crime of violence or a drug trafficking offense under the provisions of 18 U.S.C. § 924.
A statutory relative of § 924 is 18 U.S.C. § 922 which criminalizes the possession of a firearm by felons who have been convicted of a crime with a punishment exceeding one year. It is this part of § 922 which most people are familiar with, but the statute also criminalizes possession by other classes of individuals, much further than just convicted felons. 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 (1) any weapon (including a starter gun) which will or is capable of expelling a projectile by an explosive action; (2) the frame or receiver of any such weapon; (3) any firearm silencer or muffler; and (4) any destructive device.
Under 18 U.S.C. § 921(a)(20), the predicate crime—one “punishable by imprisonment for a term exceeding one year”—does not include (1) any Federal or State offenses involving unfair trade practices, antitrust violations, restraints of trade, or any other offenses related to business practices; and (2) any State offense classified by that State as a misdemeanor subject to a term of imprisonment of two years or less. More recently (2005), the U.S. Supreme Court, in Small v. United States, also excluded convictions obtained in foreign courts.
At the John T. Law Firm, we frequently fields questions about the impact of a pardon on the predicate crime. § 922 does not apply to convictions for which the offender has been pardoned or has had his/her civil rights restored (unless the executive action expressly precludes the offender from possessing a firearm); and/or who has had the conviction vacated or expunged.
The U.S. Supreme Court, in Logan v. United States, held that a state law which does not cause an offender to lose his/her civil rights does not fall under the “pardon” exception, finding that “retention” does not equate to “restoration.” Put simply, the right of possession can only be restored by executive action.
Further, 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.
A person convicted under § 922 is subject to a fine and a sentence of not more than 10 years 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.
As we pointed out in a post this past April, the Second Amendment right to “keep and bear arms” does not apply to the unlawful firearm possessions spelled out in § 922.  However, the Supreme Court, in District Court of Columbia v. Heller (2008), left some wiggle room under its “strict scrutiny” analysis to the uncompromising “perpetual firearms prohibition[s]” under statutes like § 922, implying that there could be some exceptions, such as a person possessing a hunting shotgun who has a 20 year old misdemeanor conviction.
The Tenth Circuit, in United States v. McCane (2009), in a concurring opinion written by Judge Tymkovich said the constitutional history of “felon-dispossession” laws are actually “undeveloped,” especially when it comes to felons, and in particular non-violent felons, possessing firearms for home protection which is the core guarantee of the Second Amendment, and even hunting which was an ancient right recognized by the Framers.
The governmental interests to regulate the possession of firearms in situations like those spelled out in § 922 does not necessarily justify lifetime dispossession. Depending upon the circumstances of the § 922 violations, criminal defense attorneys should always investigate and attempt to develop that the government’s regulatory scheme under the statute is not proportioned to the interest served, especially in cases where the predicate crime (one not involving violence or drug trafficking) was committed ten, twenty or thirty years ago.
Well researched defenses for individuals facing federal indictment can often result in positive practical results for the defendant. Therefore, among the other immediate concerns facing a criminal defense attorney, it is imperative to quickly research 1) whether there is an available defense; and 2) if so, the best way to frame that defense, either in a plea negotiation or trial setting. The John T. Floyd Law Firm is prepared to defend any 18 U.S.C. § 922 case for the best and most desirable outcome of the client.