Firearm Possession: Federal Law And Individual Rights

Federal law establishes a national standard for individuals' eligibility to acquire and possess firearms. Generally, a person is prohibited from possessing firearms if they have been convicted of certain crimes, are subject to specific court orders, or have been found to be a danger to themselves or others due to a mental condition. The Gun Control Act (GCA) and the National Instant Criminal Background Check System (NICS) help enforce these restrictions. However, some states, like Vermont, have their own laws regarding firearm possession, and it is essential to consider factors such as previous convictions, circumstances, and potential for violence when determining eligibility.

Convicted criminals, indictment and domestic violence

Federal law establishes a baseline national standard regarding individuals' eligibility to acquire and possess firearms. Under federal law, a person is generally prohibited from acquiring or possessing firearms if they have been convicted of certain crimes, are under indictment for certain crimes, or are subject to certain court orders related to domestic violence.

Convicted Criminals

Individuals convicted of crimes that carry a potential sentence of more than one year of imprisonment are prohibited from possessing firearms. This restriction also applies to those convicted of misdemeanour crimes of domestic violence, as outlined in the Lautenberg Amendment (18 U.S.C. § 922(g)(9)), which amended the 1968 Gun Control Act. All felony domestic violence convictions trigger the federal firearms ban, as do most felony convictions in general, regardless of whether they occur in federal or state court.

Indictment

Individuals under indictment for crimes punishable by imprisonment for more than one year are also prohibited from possessing firearms. This is outlined in the Gun Control Act (GCA) at 18 U.S.C. § 922(n).

Domestic Violence

Federal law prohibits individuals subject to domestic violence restraining orders or protective orders from purchasing or possessing firearms and ammunition. This includes orders that prohibit an individual from harassing, stalking, harming, or threatening an "intimate partner" or their child. Intimate partners are defined as co-parents or those who share a relationship as current or former spouses or cohabitants.

Despite these federal and state prohibitions, legal gaps still enable individuals who pose a significant risk of violence to gain access to firearms. Additionally, while federal law sets a baseline, many states have passed laws that fill gaps or expand gun restrictions for domestic abusers, such as prohibiting firearm possession by individuals convicted of all violent misdemeanours, regardless of the victim's relationship with the offender.

Fugitives from justice

Federal law establishes a baseline national standard regarding individuals' eligibility to acquire and possess firearms. Under federal law, a person is generally prohibited from acquiring or possessing firearms if they have been convicted of certain crimes or become subject to specific court orders related to domestic violence or a serious mental condition.

The Gun Control Act (GCA), codified at 18 U.S.C. § 922(g), makes it unlawful for certain categories of persons to ship, transport, receive, or possess firearms or ammunition. This includes fugitives from justice. The term "fugitive from justice" refers to a wanted person with an outstanding arrest warrant for extradition. Federal law prohibits gun possession by people who have fled from prosecution. This includes individuals who have left the state where the warrant was issued to avoid imminent prosecution or a summons to testify in a legal case.

Despite federal and state prohibitions, legal gaps enable individuals who pose a significant risk of violence to possess firearms. For example, the Justice Department has been accused of lowering the bar for 'fugitives' who try to buy guns. According to an FBI memo, the Department of Justice has decided that people with open arrest warrants should only be disqualified from buying guns if they have left the state where the warrant was issued to avoid prosecution or a summons to testify.

The penalty for violating federal law by possessing a firearm while a fugitive is up to ten years' imprisonment and a $250,000 fine. While fugitive status is defined by federal law, strong state policies help protect the public from people who pose a danger. The strongest state laws bar gun purchases by any people with outstanding warrants they have failed to answer.

Unlawful users of controlled substances

Federal law establishes a baseline national standard regarding individuals' eligibility to acquire and possess firearms. Under federal law, a person is generally prohibited from acquiring or possessing firearms if they have been convicted of certain crimes, are subject to specific court orders, or fall into particular categories.

One such category is "unlawful users of controlled substances." Under federal law, anyone "who is an unlawful user of or addicted to any controlled substance" is forbidden from possessing firearms. This prohibition extends to those without a conviction, and it is not limited to felony drug convictions.

The ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives) defines an unlawful user as "any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician." Current use is a critical factor, and evidence of relevantly recent use can be demonstrated through a conviction for possession or use within the past year, multiple arrests for such offenses within the past five years, or a failed drug test from the past year.

The definition of an unlawful user or someone addicted to a controlled substance covers a substantial number of people. For example, an individual taking a higher dose of a prescribed medication than instructed may be considered a felony and, therefore, a crime if they possess a firearm simultaneously.

Despite federal and state prohibitions, legal loopholes still allow individuals who pose a significant risk of violence to obtain firearms. Additionally, the issue of users of medical marijuana in states where it is legal and regulated has been a challenging topic within this context.

Dishonourably discharged military members

Under federal law, a person is generally prohibited from acquiring or possessing firearms if they have been convicted of certain crimes or become subject to certain court orders related to domestic violence or a serious mental condition. The Gun Control Act (GCA) of 1968, codified at 18 U.S.C. § 922, prohibits the sale, possession, transportation, and receipt of firearms and ammunition by certain individuals.

Veterans discharged from the military with a status of "less than honourable" may appeal their discharge characterisation through the Discharge Appeal Review Board or request a review of their service record by the VA to determine eligibility for benefits. To appeal a discharge status, individuals can submit DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States. Additionally, DD Form 149, the Application for Correction of Military Record, can be used to request a change in one's military service record.

It is important to note that gun ownership laws vary by state, and some states may have specific restrictions or allowances for dishonourably discharged military members. For example, in South Carolina, there is a one-year restriction on gun rights following an Other Than Honourable (OTH) discharge. Therefore, it is advisable to consult the relevant state laws and seek legal advice for specific cases.

Mental health and institutionalisation

Federal law establishes a baseline national standard regarding individuals' eligibility to acquire and possess firearms. The Gun Control Act (GCA), codified at 18 U.S.C. § 922(g), makes it unlawful for certain categories of persons to ship, transport, receive, or possess firearms or ammunition. This includes any person who has been convicted of a crime punishable by imprisonment for more than a year, is a fugitive from justice, is an unlawful user of or addicted to controlled substances, has been dishonourably discharged from the Armed Forces, or is an alien illegally in the United States.

To ensure compliance with the law, the Department of Emergency Services and Public Protection (DESPP) commissioner is required to verify with the Department of Mental Health and Addiction Services (DHMAS) that an individual seeking a gun credential has not been confined in a psychiatric hospital within the preceding 60 months by a probate court order or voluntarily admitted within the last six months. Psychiatric hospitals must notify the DHMAS commissioner of voluntary admissions, excluding those solely for alcohol or drug-related treatment. Probate courts are also mandated to notify DHMAS of involuntary commitment orders.

It is important to note that federal law provides a court procedure for individuals to restore their firearm privileges if they have been lost due to a federal adjudication or commitment. This process allows for relief from firearms disabilities under a federally approved program. However, legal gaps in federal and state prohibitions have been identified, enabling individuals who pose a significant risk of violence to retain access to firearms.

Frequently asked questions