18 U.S. Code § 922(g)

18 U.S. Code § 922(g) is a provision of U.S. federal law that forbids several categories of people, including felons, fugitives from justice, drug users and addicts, mental defectives, illegal aliens, dishonorably discharged military, former U.S. citizens who renounced their citizenship, persons subject to restraining orders, and persons who have been convicted of domestic violence misdemeanors (for a duration of five years from the date of conviction of the domestic violence misdemeanor(s)), "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."[1]

Per 18 U.S.C. § 924(a)(2), the penalty for a violation is ordinarily up to 10 years in prison. However, pursuant to 18 U.S.C. § 924(e), the Armed Career Criminal Act applies,[2] and a defendant may receive a minimum of 15 years without parole, if he has three or more prior convictions for a felony crime of violence or a serious drug offense.[3]

The U.S. Department of Justice advises prosecutors to charge defendants with separate counts for each status category they fall under, but not to seek consecutive or concurrent sentences for a single instance of unlawful weapons possession.[4]

In fiscal year 2018, there were 6,719 offenders convicted under 18 U.S.C. § 922(g).[5]

Elements of the offense

In United States v. Games-Perez, the U.S. Court of Appeals for the 10th Circuit ruled that a defendant need not have known he was a felon in order to be convicted under this statute.[6] Neil Gorsuch was criticized for his opposition to this ruling during his confirmation hearings, with Gabby Giffords and Nancy Pelosi arguing he cared more about felons' gun rights than children's' safety,[7] a claim that some have criticized as inaccurate or misleading.[8] According to Gorsuch, "Games-Perez was sent to federal prison for violating a 'statute' effectively written by judges rather than legislators, one neither Mr. Games-Perez nor anyone else could have found and taken notice of in the United States Code before the conduct leading to his 'offense.'"[9]

Pending legislation

The Extreme Risk Protection Order Act proposes adding to the list of prohibited persons those who have been determined by a court to pose a risk of harm to themselves or others.[10] The Disarm Hate Act proposes adding to the list those who have been convicted of misdemeanor hate crimes.[11] The Second Amendment Protection Act would clarify "that an individual shall not be treated as an unlawful user of or addicted to any controlled substance based on the individual using marihuana for a medical purpose in accordance with State law".[12]

Sentencing guidelines

The U.S. Sentencing Commission notes, "The offense level under this guideline is determined principally by the type of firearm in question, the defendant's prior convictions for violent felonies or drug-related felonies," and other factors.[13]

Pursuant to USSG §2K2.1, the base offense level is 26, if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine; or (ii) firearm that is described in 26 U.S.C. § 5845(a); and (B) the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense; 24, if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense; 22, if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine; or (ii) firearm that is described in 26 U.S.C. § 5845(a); and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense; 20, if — (A) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense; or (B) the (i) offense involved a (I) semiautomatic firearm that is capable of accepting a large capacity magazine; or (II) firearm that is described in 26 U.S.C. § 5845(a); 18, if the offense involved a firearm described in 18 U.S.C. § 5845(a); or 14.[14]

Notable defendants

Among those convicted for violations of this statute have been Shauntay Henderson, Turk, Taxstone, Jay Carl Wagner, Johnny Lynn Old Chief, and Robert W. Stewart, Jr.

See also

References
  1. "Identify Prohibited Persons | Bureau of Alcohol, Tobacco, Firearms and Explosives". www.atf.gov.
  2. http://www.ncids.org/Defender%20Training/2004%20New%20Felony%20Defender%20Training/Federal%20Consequences.pdf
  3. https://www.justice.gov/sites/default/files/usao-ut/legacy/2013/06/03/guncard.pdf
  4. "1431. Department Memorandum -- Prosecutions Under 922(g)". www.justice.gov. February 19, 2015.
  5. "Section 922(g) Firearms". United States Sentencing Commission. March 14, 2016.
  6. https://caselaw.findlaw.com/us-10th-circuit/1592134.html
  7. https://www.vice.com/en_us/article/5958nq/trumps-supreme-court-nominee-neil-gorsuch-defends-us-v-games-perez
  8. https://www.politifact.com/truth-o-meter/statements/2017/feb/02/nancy-pelosi/pelosis-misleading-claim-gorsuch-sides-felons-over/
  9. https://www.nationalreview.com/2019/09/disregarding-separation-of-powers-has-real-life-consequences/
  10. https://www.congress.gov/bill/116th-congress/house-bill/1236/text
  11. https://www.congress.gov/bill/116th-congress/house-bill/2708/text
  12. https://www.congress.gov/bill/116th-congress/house-bill/2071/text
  13. https://www.ussc.gov/sites/default/files/pdf/training/primers/Primer_Firearms.pdf
  14. https://www.ussc.gov/guidelines/2018-guidelines-manual/annotated-2018-chapter-2-e-k#NaN
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