What Federal Law says I can’t have guns?

Happy Friday, everybody. Hope you had a great week. All right. So most of the time when I do any video about guns or gun laws, those things just kind of blow up in terms of views and comments. So, there’s a lot of interest and stuff around those topics, and I understand that. So I figured I would do one this week on an issue that has come up a couple of times in the comment sections of a couple of those videos. And just I’ll try to link the two other videos that I’m mostly referring to down below so you can go back and check those out. But the biggest one that seems to come up and that I find myself answering is when I say that there are federal laws that prohibit certain people from possessing firearms. Most people want to know what those are and what specifically they say, because more often than not the question that I get is, “Well, I had this case from back in the 1980s, and it was this, this, and this does that mean I’m prohibited?”

And so the easiest way for me to do this is to just point out what the statute is, try to lay out the different elements of this specific statute. There are others out there, but of this specific one, and then hopefully let you guys go through it and read it and then see if any of them seem to apply to you. So, the statute that you want to look at to determine if you’re one of these prohibited persons, is 18 U.S.C 922, specifically, subsection (g) is what we’re going to be looking at today. There are a lot of other subsections that deal with the things that if you’re selling firearms, what you can and can’t do. So those are definitely worth a look. But for now, we’re just going to look at subsection (g). Okay. So, subsection (g) lays out, there are nine classes of people that are prohibited in federal law from possessing firearms, or ammunition. Okay.

The first is the one that comes up most often. It’s what people think of, if I have a felony, I can’t possess firearms because what it says is it doesn’t use the word felony. It says, if you’ve been convicted in any court, state, municipal, federal, whatever, if you’ve been convicted in any court of a crime that is punishable by over one year in jail, then you’re a prohibited person. So in Texas, that means felonies because felonies are what are punishable for more than one year. In most states, that means felonies punishable by more than one year, but there could be some state laws out there that say this specific type of offense, it’s called a misdemeanor, or it’s called something else. But the range of punishment is over one year in jail, that would count if you get convicted of that offense. And remember conviction means conviction.

So, things like deferred adjudication wouldn’t necessarily trigger this because deferred adjudication, at least in Texas doesn’t mean conviction. What comes up a lot is, well, what about expunction? What if I get expunged from our record? That’s a super fact-specific specific question that depends on how your particular state treats expunction. So, if your state is one of the ones that says, if you’re eligible and you get an expunction, then it sets the conviction aside for all purposes, then you’re probably okay. But like here in Texas, for example, if you get convicted of a felony-level offense, you’re not eligible to get an expunction, so you can’t do that. Right. So, that’s why it’s so important that if you’re looking at something like this, talk to a local defense lawyer that practices in your state and is familiar with the expunction laws so that they can tell you, will that work or will that not work. Kind of going through some of the other ones of these nine. So like I said, that’s the number one.

Number two is if you’re a fugitive from justice, pretty self-explanatory. Number three is if you’re considered an unlawful user who’s addicted to a controlled substance that has a very specific legal definition. It’s defined in the controlled substances act, which you’re welcome to look up. It’s 21 U.S.C 802. You can look up how they define somebody who is addicted to a controlled substance. So look at that. It’s generally if you’ve been convicted of certain drug offenses. Number four is, if you’ve ever been found by a court to have a mental defect, or if you’ve been committed to a mental institution, that’s going to make you a prohibited person under federal law. Number five is if you’re in the United States illegally, or if you’re here on a non-immigrant visa, those are generally considered prohibited people. Number six is if you’ve ever been discharged from the military with a dishonorable discharge, that’s going to make you a prohibited person for firearms under federal law.

Number seven, if you’ve renounced your citizenship to the United States. Again, I’ve not ever looked into that, I don’t do immigration law, so I don’t know if that means a formal renouncement of citizenship or if there’s something else attributed to that, but just be aware that that’s out there. Number eight is if you’ve ever been subjected, or if you are currently, not if you’ve ever, if you are currently subjected to a protective order. So, this comes up in a lot of domestic violence cases.

So what it is, is if you have been subject to a court order that is based on harassing, stalking, threatening an intimate partner, or a dating partner or a spouse, most protective orders will trigger this statute and say that you’re prohibited from possessing firearms. Definitely, while the protective order is valid and maybe in some cases, even when the protective order has lapsed. So if you’ve ever had a protective order issued against you for a domestic violence incident, definitely talk to a lawyer and see and make sure that the expiration of that order would, re-establish your firearm rights under 922. You definitely want to take a look at that.

And finally, number 9 is if you’ve been convicted in any court, again, any court of a crime involving family violence, where this comes up and most people don’t realize is that, again, I’m only speaking to Texas. In Texas there are certain Class C misdemeanors, they’re called assault by offensive contact, where if they contain an affirmative finding of family violence, saying that you committed a Class C assault against a family member, that could prohibit you from possessing firearms for the rest of your life. Even though it’s a Class C misdemeanor, even though it’s not punishable by any jail time, it’s fine only. It could still, if it’s a conviction and if the judgment is worded in the correct fashion could prohibit you from possessing firearms for the rest of your life, according to federal law.

So again, those are kind of the nine different ways that 922 looks to prohibit certain individuals from possessing firearms. If you think any of these may apply to you, again always talk to a local defense lawyer because we can look and see in your specific case, does this apply, does this not apply? And if they do, there might be certain ways or avenues that we can fix that issue. Maybe some sort of writ of habeas corpus, or something like that, that can either set aside the conviction or change it from a conviction to a defer. There are a couple different ways that we can look at trying to fix that situation. So definitely worth a look, definitely worth sitting down and talking to somebody and seeing, “Hey, is this something that can be remedied?”

Again, my consultations are free. I don’t charge for that sort of thing. I sit down and we can talk about, is there anything out there that might be able to help you? So, if you have any questions about that, especially with constitutional carry coming out, Governor Abbott just signed it. It goes into effect September 1, but remember constitutional carry does not restore your gun rights to you if you’ve been considered a prohibited person under federal law, so if any of these nine things apply to you, just because Abbott signed constitutional carry doesn’t mean you’re getting your rights back. So again, if that’s something that is concerning to you, or you’re wondering how it affects you specifically, again, I’m happy to help. I’m sure there are defense lawyers in your area that are happy to help, or there’s probably especially come September going to be different pro bono groups out there that are looking to assist people that are trying to navigate that.

So if you have any questions, feel free to drop me an email, give me a call. I’m happy to see if there’s any way that I can help you, or I’m just happy to answer any questions. Again, I’m here to help and hope that clears up something. I know it’s a bit of a longer video, but I wanted to get through this and get that out there because it does come up quite a bit. As always hope you have a great weekend. I look forward to seeing you guys next week, stay safe, stay good and enjoy it.

Author Bio

James P. Whalen

James P. Whalen is the managing attorney and founder of Whalen Law Office, a Texas criminal defense firm offering personalized legal representation for various federal criminal charges. With a commitment to providing comfort and guidance during challenging times, Mr. Whalen serves as both an attorney and counselor to his clients, helping them navigate their cases while striving to restore normalcy to their lives.

In an inherently unbalanced criminal justice system, Mr. Whalen takes on cases with unwavering dedication. With decades of legal experience, he offers representation across various criminal charges, including white-collar crimes, violent crimes, drug charges, and more. Mr. Whalen’s numerous accolades, including Super Lawyer recognition and board certification in Criminal Appellate Law and Criminal Law, reflect his unwavering commitment to ethical and high-quality legal representation.

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