USA – -(Ammoland.com)- Welcome back to The Legal Brief, the show where we CRUSH the various legal myths and misinformation surrounding various areas of the gun world.
I’m your host Adam Kraut and don’t forget the NRA Board of Directors ballots are probably arriving in your mailbox shortly, so keep an eye out for your ballot!
If you don’t know how to vote for me, be sure to check out the video we did on that. Today we’re talking about prohibited persons.
Before we get started, I just want to take a moment to add some clarity to the purpose of the show. I see a lot of comments where people accuse me of being in favor of the law or regulation I’m describing or that I should be speaking out against the law or regulation rather than continue to perpetuate the unconstitutional shackles the legislators impose on us. The purpose of this show is to tell you the current state of the law and regulations. It is not a platform for me to espouse my views on issues of constitutionality, government overreach, etc. If you want to see that, you can head on over to my website and check out some of my selected works.
And if you’re expecting the format for this show to change, it isn’t going to, so get over it.
Now, onto today’s topic, prohibited persons. A number of viewers have asked over time what a prohibited person is and what they can or can’t do.
The term prohibited person is not found in the law or the regulations. However, it does cover a large subset of categories. As always, we are talking about federal law. Your state law may be more expansive as to who it prohibits from owning or possessing firearms.
Section 922 of the Gun Control Act tells us that it is unlawful for any of the people in the following list 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. And stay with me, this is going to take a minute to get through.
The list of individuals who are prohibited include persons who have been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; More on this in a moment.
(2) who are fugitives from justice;
(3) who are unlawful users of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act);
(4) who have been adjudicated as a mental defective or who have been committed to a mental institution;
(5) who, being an alien—
are illegally or unlawfully in the United States; or
have been admitted to the United States under a non-immigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act);
The exceptions to the alien admitted to the United States under a non-immigrant visa are for those who are:
admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States; This is the most common exception that I’ve seen an official representative of a foreign government who is either accredited to the United States Government or the Government’s mission to an international organization having its headquarters in the United States or en route to or from another country to which that alien is accredited an official of a foreign government or a distinguished foreign visitor who has been so designated by the Department of State or a foreign law enforcement officer of a friendly foreign government entering the United States on official law enforcement business.
Alright still with me? Good, let’s keep going.
And back to the list of prohibited individuals, persons who:
(6) have been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
And no, simply just saying you’re no longer an American isn’t enough. There’s paperwork involved. What can I say…it’s government. Those
(8) who are subject to a court order that—
was issued after a hearing of which the person received actual notice, and at which the person had an opportunity to participate;
So this means the person had to know the hearing was to occur and they had the opportunity to participate in it
The order restrains the person from harassing, stalking, or threatening an intimate partner of that person or child of that 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
(i) includes a finding that such person represents a credible threat to the physical safety of that 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;
(9) a person who has been convicted in any court of a misdemeanor crime of domestic violence.
Ok. Pretty exhaustive list right? And as always crystal clear as to who is prohibited. Well, not quite. Remember when I said we’d get back to the crime punishable by imprisonment for a term exceeding one year? Let’s talk about that.
If we look in the definitions of the Gun Control Act, we see that the term “crime punishable by imprisonment for a term exceeding one year” is defined. More importantly, it is defined to not include, that’s right I said not include, any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, so your white collar crimes. It also is defined to not include any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
Now I know what you’re thinking. He just said a state law misdemeanor punishable by a term of imprisonment of two years or less and we are talking about a crime punishable by imprisonment for a term exceeding one year….and two is not one unless we are talking about guns where two is one and one is none so what the heck does this all mean?
Yes, you heard me correctly. The legislature actually defined two to mean one. So what does this mean in normal people speak? If a person has been convicted or plead guilty to a state law misdemeanor crime that is punishable by a term of more than two years imprisonment, they are a prohibited person. ( ***Correction from Adam found in the transcript below highlighted***) And that’s on top of the federal one year prohibition.
So what can’t a prohibited person do? Well, as we see in Section 922(g) a prohibited person cannot ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. And since the Supreme Court has given a broad interpretation to commerce, in simple terms, a prohibited person cannot possess firearms or ammunition.
So that begs the question. Is there anything that a person who is prohibited can do in order to have their rights restored? The answer is yes. At the federal level there are two options that exist, one of which currently cannot be utilized and the other which is going to be a very expensive and lengthy process.
The first option would be federal firearms relief determinations. These were actually fairly common right up until the early 90s when Congress put language in the appropriations bill that ATF shall not use any of the funds it receives to conduct them. As a result, since the early 90s this option for relief no longer exists. Last year the House did have language to fund them again but the Senate passed their version of the bill first and as a result it was lost. So you’ll want to get on the phone and CALL your representatives to tell them to fund federal firearms relief determinations this coming year. And for those of your wondering, my colleague Joshua Prince already inquired whether an individual could fund their own firearms relief determination and probably for the first time in the history of the US Government was told that the government couldn’t accept the money.
The second option that exists is a Second Amendment as applied challenge. The long and short of it is, you sue in federal court stating that the prohibition as applied to you is unconstitutional. There are a number of factors that go into such a challenge and it is best to speak with a competent attorney who understands firearms law very clearly before pursuing such a challenge.
At the state level, there are options that exist such as pardons and expungements or even specific relief but that will vary state to state. So while options for relief do exist, the simplest one, that being federal firearms relief, is currently unavailable.
Hopefully that gives you a better understanding of what a prohibited person is, what they can’t do and what their options for relief are. I know that was a ton of information to take in, so please if you have questions, leave them in the comments below. If you guys liked this episode, you know what to do, hit that like button and share it around with your friends. Have a question you want answered on this show, head over to The Legal Brief section on theguncollective.com. Be sure to check out my website adamkraut.com for more information on my quest to serve YOU on the NRA Board of Directors. Don’t forget to like The Gun Collective on Facebook, Instagram, YouTube, Full 30, Snap Chat and wherever else you can catch us on social media.
And as always thanks for watching!
Links for this episode:
- 18 U.S.C. § 922(g): https://www.law.cornell.edu/uscode/text/18/922
- 27 C.F.R. § 478.32 – Prohibited shipment, transportation, possession, or receipt of firearms and ammunition by certain persons :https://www.law.cornell.edu/cfr/text/27/478.32
- 18 U.S.C. § 921(20) – Crime Punishable by Imprisonment for a Term Exceeding One Year : https://www.law.cornell.edu/uscode/text/18/921
- 27 C.F.R. § 478.11 – Crime Punishable by Imprisonment for a Term Exceeding One Year : https://www.law.cornell.edu/cfr/text/27/478.11
- 18 U.S.C. § 925(c) – Federal Firearms Relief Determinations: https://www.law.cornell.edu/uscode/text/18/925
- ATF Identify Prohibited Persons: https://www.atf.gov/firearms/identify-prohibited-persons
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