Felons and other prohibited persons and Firearms and Ammunition

From Calguns Foundation Wiki
Jump to: navigation, search

Federal law also restricts felons and other prohibited persons from possessing firearms and/or ammunition.

A concise explanation, from a lawyer who is a moderator at The High Road, is here, and substantially reproduced below.

  1. Under federal law (the Controlled Substances Act, 21 USC 801, et seq.), marijuana is a Schedule I controlled substance which may not, therefore, be lawfully prescribed or used. Therefore, any user of marijuana, even if legal under state law, is, under federal law, an unlawful user of a controlled substance.

  2. Under federal law, a person who is an unlawful user of a controlled substance is prohibited from possessing a gun or ammunition (18 USC 922(g)(3)). Therefore, any one who is a user of marijuana, even if legal under state law, is a prohibited person and commits a federal felony by possessing a gun or ammunition. 
 (Possession means: 1 a : the act of having or taking into control...
)
  3. Under federal law, anyone who is a user of marijuana, even if legal under state law, is an unlawful user of a controlled substance and must answer "yes" on the form 4473 to the question about being addicted to or the unlawful user of a controlled substance. 
(See the BATF letter of September, 2011)
  4. If a member of the household is a prohibited person, and if the prohibited person as access to guns or ammunition lawfully owned/possessed by another member of the household --

  • The member of the household risks federal prosecution for being a prohibited person in possession (because he has access) to firearms or ammunition.

  • The person lawfully owning the firearms or ammunition and storing them in such a way that allows the prohibited person access to them risks prosecution for aiding and abetting the unlawful possession of firearms or ammunition by a prohibited person.

  • Both the unlawful possession and the aiding and abetting are federal felonies with penalties of up to five years in federal prison and/or a fine (plus a bonus of a lifetime loss of gun rights).


When the Federal Court of Appeals for the Third Circuit (Pennsylvania) looked at the issue a while ago, it let stand an indictment for aiding and abetting the unlawful possession of a gun by a prohibited persons in a situation in which a gun owner had a cohabitant who was a prohibited person. The point in that case, United States v. Huet, 665 F.3d 588 (3rd Cir., 2012), was that the gun the prohibited person was charged with possessing was not secured against the prohibited person's access, supporting both the prohibited person's conviction for unlawful possession of a gun and the indictment of his cohabitant.

From the opinion (at pg. 593, emphasis added):

...on June 6, 2008, a valid search warrant (the “search warrant”)
was executed on the couple‟s Clarion County home. Agents seized an SKS,
Interordnance M59/66 rifle (“SKS rifle”) from an upstairs bedroom.

Although Huet is legally permitted to possess a firearm, Hall was
convicted in 1999 of possessing an unregistered firearm, in violation of
26 U.S.C. § 5861(d), and is therefore prohibited from owning or
possessing a firearm. After being informed of the raid, Huet allegedly
told investigators that the guns in the house belonged to her and that
it was not illegal for her to purchase weapons. Despite Huet's
assertions that she alone possessed the SKS rifle, the Government sought
and obtained an indictment charging Hall with illegal possession of the
weapon, and Huet with aiding and abetting Hall's possession....