What law(s) prohibit possession of firearms by "prohibited persons"?

[skydve76]

Note: This is not a thread asking for legal advice.


I am trying to find the laws that prohibit "Prohibited people" from possessing firearms. Obviously it exists I am not just not finding it.


I am trying not to use Wikipedia as anyone can type anything into that.


Gun control act:
https://www.gpo.gov/fdsys/pkg/STATUTE-82/pdf/STATUTE-82-Pg1213-2.pdf

Talks about it being illegal to transfer or to dispose of firearms to certain people. I don't see anything there about possessing firearms. It doesnt seem to address the issue where someone already owns firearms before becoming prohibited.

Brady Act
http://usgovinfo.about.com/library/bills/blbradyact.htm
Similar to the above act except requires background check for transfer and a waiting period, nothing about prohibiting possession, just sales/transfers.

I did find a state law for my state:
http://www.nebraskalegislature.gov/laws/statutes.php?statute=28-1206

However it specifically enumerates the prohibited people, leaving out anyone who is mentally ill. So someone mentally ill

I am thinking that it is the states that set who is prohibited from possession and its not done at a federal level?

Very interesting here:
http://www.foxnews.com/politics/2014/12/19/us-appeals-court-deems-gun-law-unconstitutional.html

There was another one in Ohio recently. I am wondering how that will affect the rights of mentally ill people. Seems it could be expanded to just about anything that is "distant" and prohibits buying guns.

It doesn't make sense to have laws to prevent some people from buying guns but allowing them to possess them, I agree, but where does it say it?


Im ignorant so thanks for any help.

 

[suemarkp]

I don't have the exact text in front of me to know if it is enumerated here, or if you have to chase a definition down someplace else:

18 USC 922(d), (g) and (n).

 

[v35]

Here is a link to the text of the law:

https://www.atf.gov/resource-center/docs/atf-p-5300-4pdf/download

As you know it is easy to find where such a "prohibited person" may not receive a firearm, but mere possession is addressed in 922(g)(9).

That's just GCA of 1968 and other references are certain to exist. There are plenty of people on this site far more qualified than I am to refer you to them, but perhaps that will get you started.

Welcome to THR!

 

[skydve76]

922(g)(9)
It is unlawful:
..lists who here..

who has been convicted in any
court of a misdemeanor crime of domestic
violence, 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

It makes it sound like across state lines...

 

[Frank Ettin]

...I am trying to find the laws that prohibit "Prohibited people" from possessing firearms....

Here's the primary statute, 18 USC 922(g):

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;

(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));​

(6) who has been discharged from the Armed Forces under dishonorable conditions;

(7) who, having been a citizen of the United States, has renounced his citizenship;

(8) who is subject to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
​

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
​

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.

...It makes it sound like across state lines...

And here's what the courts have said about that:

1. In U.S. v. Chesney, 86 F.3d 564 (C.A.6 (Tenn.), 1996), the Sixth Circuit affirmed, against a Commerce Clause challenge Chesney's conviction for being a felon in possession of a firearm.
   
   In rejecting Chesney's assertion that the 18 USC 922(g) is unconstitutional, the court of appeal noted, at 568 -- 569:

   ...another panel of this court has held § 922(g)(1) to be constitutional. In United States v. Turner, 77 F.3d 887 (6th Cir.1996), a unanimous panel held that " § 922(g)(1) represents a valid exercise of legislative power under the Commerce Clause." Id. at 889. As this court wrote in Turner, "Every court of appeals that has been faced with this question since Lopez has held that the jurisdictional element of § 922(g) provides the requisite nexus with interstate commerce ....

   
   In rejecting Chesney's assertion that the statute can not be applied in his case, the court of appeal noted, at 570 -- 571:

   ...Chesney, unlike the defendant in Turner, also challenges § 922(g)(1) as applied to him by arguing that his conviction is unconstitutional because the government failed to prove any "substantial nexus between the crime charged and interstate commerce." Chesney stipulated that the gun had moved in interstate commerce, and such a stipulation is sufficient evidence to support Chesney's conviction pursuant to § 922(g)(1). See United States v. Lee, 72 F.3d 55, 58 (7th Cir.1995) (stipulation that gun was in or affecting commerce sufficient evidence to support a conviction under § 922(g)(1)). ...
   
   The Supreme Court has held that proof that a firearm moved in interstate commerce at any time is sufficient to meet the government's burden of proving the "in commerce or affecting commerce" element of § 1202(a), the predecessor to § 922(g)(1). Scarborough v. United States, 431 U.S. 563, 566-67, 97 S.Ct. 1963, 1964-65, 52 L.Ed.2d 582 (1977). Although Scarborough was decided as a matter of statutory construction, the Court noted that Congress knew how to assert " 'its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce,' " and that Congress intended to exercise the full extent of its Commerce Clause power when enacting § 1202(a). Id. at 571-72, 97 S.Ct. at 1967-68 ...
   
   All of the courts of appeals to consider the issue since Lopez have concluded that § 922(g)(1), as construed to require only the minimum nexus to commerce approved in Scarborough, is constitutional. See, e.g., McAllister, 77 F.3d at 390; Sorrentino, 72 F.3d at 296; Shelton, 66 F.3d at 992; Hanna, 55 F.3d at 1462 n. 2.,...

   
   
2. In U.S. v. Singletary, 268 F.3d 196 (3rd Cir., 2001), the Third Circuit affirmed a conviction for being a felon in possession against an attack on the constitutionality of 922(g), at 197:

   ...Singletary contends that the felon-in-possession statute is unconstitutional because the conduct it proscribes -- the intrastate possession of a firearm -- does not have a substantial effect upon interstate commerce, and thus does not constitute a valid exercise of Congress' authority under the Commerce Clause. Specifically,...

   
   In rejected Singletary's assertion, the court of appeal noted, at 200:

   ...the Court in Scarborough v. United States had the opportunity to address squarely "whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce." 431 U.S. 563, 564 (1977). The Court accepted the Government's contention that it only need prove that "the firearm possessed by the convicted felon traveled at some time in interstate commerce." Id. at 568. Thus, the Scarborough Court established the proposition that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of the statute. Because S 1202(a) is the predecessor to the current felon-in-possession statute, this statutory construction applies equally to S 922(g)(1)....

   
   
3. In United States v. Hoyle, 697 F.3d 1158 (10th Cir., 2012), the Tenth Circuit affirmed Hoyle's conviction for being a felon in possession. In doing so the court of appeal noted, at 1165:

   ... “Section 922(g) requires that the firearm be possessed ‘in or affecting commerce.’” United States v. Williams, 403 F.3d 1188, 1195 (10th Cir.2005) (quoting 18 U.S.C. § 922(g)). The Supreme Court has affirmed the Fourth Circuit's holding that: “[T]he interstate commerce nexus requirement of the possession offense was satisfied by proof that the firearm [defendant] possessed had previously traveled in interstate commerce.” Scarborough v. United States, 431 U.S. 563, 566, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)...

Good luck beating an 18 USC 922(g) charge on Commerce Clause grounds. And remember that the federal law prohibits possession of a gun or ammunition.

 

[skydve76]

SO it is in fact true, the firearm has to of crossed state lines.

Interesting. Im not trying to find a way to beat anything. However the precedence you gave me are GREAT.

Its clear to me the laws dont say what the courts are enforcing, so its easy to see how one can be confused reading them.

http://www.buffalonews.com/20130323/mentally_ill_veteran_charged_with_possessing_shotgun.html

There is a line in there about having to show the gun crossed state lines.

 

[skydve76]

I find it interesting those cases use the term "felon in possession" since not all of the prohibited people are felons:

Restraining orders
Mentally ill
Misdemeanor domestic violence.

I really appreciate the information.

Since you seem to be so aware, any cases involving the mentally ill? These are all clear cut felons, looking for more of the "subjective" side, which seems the mental illness parts are not well defined.

Executive orders signed recently have attempted to clarify, but wondering how its played out in the past.

Thanks~

 

[Frank Ettin]

I find it interesting those cases use the term "felon in possession" since not all of the prohibited people are felons....

In those cases I cited, each of the defendants was a convicted felon; so that was the disqualifying condition. So in reality, it's not interesting at all.

....Since you seem to be so aware, any cases involving the mentally ill?....

I'm aware because I'm a lawyer and I do the research. I'm not planning to spend any time in the near future looking for cases in which the disqualifying condition was as described in 18 USC 922(g)(4), or any other subparagraph of 18 USC 922(g). You're welcome to do the research and share your findings.

...Executive orders signed recently have attempted to clarify,...

What Executive Orders do you think have been signed recently? Hint: the correct answer is "none."

There have been no new Executive Orders. Executive Orders are a formal thing, and there are procedures for issuing Executive Orders. All Executive Orders are published in the Federal Register. You can find every single Executive Orders issued by Obama here. None of those Executive Orders deal with guns.

All this hoopla now is about so called "executive actions." That really doesn't mean anything beyond simply actions taken by an executive. In plain English Obama having his morning coffee is an "executive action." In this context it's really a sort of made-up concept intended to give weight to to certain presidential comments.

In this particular situation, the so called executive actions we're concerned about are fairly vague statements about what Obama, as senior manager of the Executive Branch of the federal government, would like to see done in connection with guns. These vague statements were set out in this "fact sheet" published by the White House, including:

• The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is making clear that it doesn’t matter where you conduct your business—from a store, at gun shows, or over the Internet: If you’re in the business of selling firearms, you must get a license and conduct background checks....

  
  

• ...Attorney General Loretta E. Lynch has sent a letter to States highlighting the importance of receiving complete criminal history....

  
  

• ....The Attorney General convened a call with U.S. Attorneys around the country to direct federal prosecutors to continue to focus on smart and effective enforcement of our gun laws....

  
  

• ...ATF is finalizing a rule to ensure that dealers who ship firearms notify law enforcement if their guns are lost or stolen in transit....

What it all boils down to is that various Departments in the Executive Branch are being urge to pursue rule making with regard to some matters and urge to shift priorities ast to others.

...the precedence you gave me are GREAT...

The word is "precedent." The plural is "precedents."

...Its clear to me the laws dont say what the courts are enforcing, so its easy to see how one can be confused reading them....

I have no idea what you mean by that, but the reality is that understanding law and how things work requires effort, study, research. Much in the law is non-intuitive or will make sense only when one has sufficient background knowledge. You can't expect to be able to figure out what the law is or how it works just trying to "noodle it out."

Part of the difficulty reading laws and court opinions comes from a need to be familiar with the context -- where "law" comes from, what it is and how the process works. It might help to think of "law", i. e., statutes enacted by legislative bodies, constitutions and charters adopted by political entities to govern the operations of those entities, and past judicial opinions, as a tool used to decide the outcome of a dispute or disagreement. So when a court writes an opinion deciding a matter in contention, it is explaining how it applied the law to the facts and circumstances in order to decide the outcome.

Another part of the difficulty is a matter of volume and practice. In law school we read a lot of cases and talk about them a lot, all under the guidance of our teachers. Dealing with the subject matter regularly and in a disciplined, rigorous way is a big help.

Some on-line sources that might help --

• scotusblog: This is a blog by lawyers and law students focusing on Supreme Court activity. In addition to following cased, one can often find articles discussion Supreme Court actions and decision. This might offer some insight in how lawyers look at these things.
  
  
• The Legal Information Institute: This is a publication of the Cornell Law School. Among other things the site includes links to other resources and a legal encyclopedia.
  
  
• Oyex: This is a publication of the Chicago-Kent College of Law. It tracks Supreme Court cases and publishes articles.
  
  
• Often if you Google a case name you will find articles by lawyers discussing the case. Sometimes reading the articles in combination with the case opinion will help clarify the decision.

...SO it is in fact true, the firearm has to of crossed state lines....

That is an overly simplistic way of looking at thing, and was clarified in the cases I cited. A gun (or ammunition, since a prohibited person can't possess ammunition) must have, at some time in its history, have been in interstate commerce. Finding any commercial product which has not been in "interstate commerce" as generally understood by courts is pretty close to impossible.

...http://www.buffalonews.com/20130323/mentally_ill_veteran_charged_with_possessing_shotgun.html

There is a line in there about having to show the gun crossed state lines....

What the article actually says is:

...The charge covers the shotgun, and in order to bring the illegal-possession charge, federal agents and prosecutors had to show the weapon crossed state lines at some point in its history.

Simmance’s shotgun was manufactured in New York but was shipped to a Kmart distribution center in Warren, Ohio, before it was returned to New York and sold at a Kmart store in Batavia....

So the shotgun involved had unquestionably been in interstate commerce.

 

[Spats McGee]

In addition to 18 USC 922, most states have some counterpart. In fact, every state that I've ever researched (which is more than 5 and less than 50) has a statute prohibiting firearms possession to certain persons. Those statutes often prohibit firearms possession to the same persons prohibited under federal law from possessing them. In Arkansas, that statute is called (unimaginatively) "Possession of Firearms by Certain Persons." The term "felon in possession" is just a catchy shorthand.

 

[skydve76]

I noticed that the states "tend" to be the ones to define "felon in possession", and also tend to have much more specific laws about prohibited people. This is why I wondered if it was left at a state level to define.

The 922(g) doesn't specifically address possession outright, and as was shown in the case law it is being interpreted that way. Who am I to argue? But to a layman like me the law seems pretty clear as written it addresses transfer and possession across state lines. But with forums like this I am getting a much better understanding, I thank you.

So with that said my question has been answered.

One could contrive some situation where someone smelted metal and made a gun, then gave it to someone who later became prohibited all in 1 state. However its clear the courts would argue that proving the raw materials crossed state lines is sufficient. I wont go there though because its pointless.

 

[Frank Ettin]

Looks like this one's been covered.

 

[Spats McGee]

Hang on one second, Frank. There's one point I have to address. I'll lock up when I'm done.

The 922(g) doesn't specifically address possession outright, and as was shown in the case law it is being interpreted that way.

Hogwash. Here's 922(g), in its entirety. I've added bolds and underlines for emphasis.

(g) It shall be unlawful for any person--

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;

(5) who, being an alien--

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));

(6) who has been discharged from the Armed Forces under dishonorable conditions;

(7) who, having been a citizen of the United States, has renounced his citizenship;

(8) who is subject to a court order that--

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

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.

922(g) addresses, quite clearly, the possession of any firearm that has traveled in or affected interstate commerce by certain persons.

 

[Frank Ettin]

Thanks, Spats. Your emphasizing those points is very helpful.