Federal Felon in Possession Defense — 18 U.S.C. § 922(g)

People with old felony convictions routinely believe that enough time has passed, or that a gun at home is lawful. Under Texas law there is something to that — a five-year window and a premises exception.

Federal law has neither. Section 922(g)(1) is a lifetime prohibition with no geographic exception, and the same conduct that is lawful under state law can be a fifteen-year federal felony.

The nine prohibited categories

18 U.S.C. § 922(g) prohibits possession of a firearm or ammunition by anyone who:

(1) has been convicted of a crime punishable by more than one year of imprisonment
(2) is a fugitive from justice
(3) is an unlawful user of or addicted to a controlled substance
(4) has been adjudicated mentally defective or committed to a mental institution
(5) is unlawfully present in the United States
(6) was discharged from the armed forces under dishonourable conditions
(7) has renounced United States citizenship
(8) is subject to a qualifying domestic violence restraining order
(9) has been convicted of a misdemeanour crime of domestic violence

Note that ammunition alone is enough. A single cartridge in a glovebox supports a § 922(g) charge.

Why federal law is far broader than Texas law

The comparison matters because people rely on the state rule:

Texas Penal Code § 46.04 — prohibition runs for five years after release from confinement, supervision, or parole; after that, possession is lawful at the person's premises. Third-degree felony, 2 to 10 years.

18 U.S.C. § 922(g)(1) — lifetime prohibition, no time limit, no premises exception, and it applies to any conviction punishable by more than a year regardless of the sentence actually served. Up to 15 years.

The practical consequence is stark. A person eight years past release, keeping a shotgun at home, is complying with Texas law and committing a federal felony at the same time. State-court advice about the five-year rule has produced a great many federal prosecutions.

Rehaif: the government must prove you knew

In Rehaif v. United States, 588 U.S. 225 (2019), the Supreme Court held that in a § 922(g) prosecution the government must prove the defendant knew he belonged to the relevant prohibited category — not merely that he knew he possessed a firearm.

This is a genuine element with real applications. Someone who believed a deferred adjudication was not a conviction, who believed their rights had been restored, who was told the offense was a misdemeanour, or who did not know an out-of-state conviction was punishable by more than a year, has a Rehaif defense.

It applies to every category. In a § 922(g)(3) case the government must prove the defendant knew he was an unlawful user of a controlled substance; in a § 922(g)(8) case, that he knew he was subject to a qualifying order.

Constructive possession, and the commerce element

Possession need not be actual. Constructive possession — knowledge of the firearm plus the power and intention to exercise control over it — is sufficient, and it is how most cases involving shared homes and vehicles are charged.

Mere proximity is not enough. Where a gun was found in a residence occupied by several people, or in a vehicle the defendant did not own, whether the government can prove knowledge and dominion is a real jury question. Fingerprints, DNA, admissions, and the location of the weapon relative to the defendant's belongings do the work.

The jurisdictional element — that the firearm was possessed "in or affecting" interstate commerce — is satisfied by proof that the firearm was manufactured outside the state at some point. It is effectively never a defense.

The Armed Career Criminal Act: a 15-year mandatory minimum

This is the single most important question in any § 922(g) case. Under § 924(e), a defendant with three or more prior convictions for a violent felony or a serious drug offense, committed on occasions different from one another, faces a 15-year mandatory minimum — up from a 15-year maximum.

Whether a prior qualifies is determined by the categorical approach, comparing the elements of the prior statute against the federal definition. This litigation is extensive and productive:

• The residual clause of the violent felony definition was struck as unconstitutionally vague in Johnson v. United States, 576 U.S. 591 (2015)
• A prior qualifies as violent only if it categorically requires the use, attempted use, or threatened use of physical force
• Many state burglary, assault, and drug statutes sweep more broadly than the federal definition and therefore do not count
• Wooden v. United States, 595 U.S. 360 (2022), narrowed what counts as "occasions different from one another" — multiple offenses in a single criminal episode may count once, not several times

Defeating ACCA status is worth more than every other argument in the case combined. It is the difference between a Guidelines range and a fifteen-year floor, and it turns on the text of old state statutes rather than on the facts of the present offense.

Second Amendment challenges after Bruen and Rahimi

This area is genuinely unsettled and worth watching closely.

New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), replaced means-end scrutiny with a historical-tradition test, prompting a wave of challenges to the § 922(g) categories.

In United States v. Rahimi, 602 U.S. 680 (2024), the Court upheld § 922(g)(8), holding that an individual found by a court to pose a credible threat to another's physical safety may be disarmed consistent with the Second Amendment. The opinion emphasized that its holding was narrow.

What remains live: as-applied challenges to § 922(g)(1) by defendants whose predicate felonies were non-violent, and challenges to § 922(g)(3) as applied to marijuana users — an area where Fifth Circuit law has been actively developing. These arguments do not always win, but in the right case they are worth preserving, because the law may change while the case is pending.

Sentencing outside ACCA

Where ACCA does not apply, the Guidelines run through § 2K2.1. The base offense level turns on the defendant's prior record and the type of firearm, with enhancements for the number of firearms, for a stolen firearm or an obliterated serial number, and for possession in connection with another felony offense.

That last enhancement is significant and frequently contested — whether the firearm was genuinely connected to other criminal conduct, as opposed to merely present, is a factual question.

Related pages

Texas felon in possession (§ 46.04) · § 924(c) firearm charges · Federal weapon charges · Federal sentencing guidelines