Is there a defense to a federal felon in possession of a firearm charge

The law is very clear. A person violates federal law if he or she has been convicted of a felony in either state or federal court, and at any time or for any reason, possesses a pistol, rifle or a shotgun. But should this hard line rule apply in every case? What if it is necessary that a felon possess a firearm in order to defend himself, or another person, from being killed or seriously hurt? For example, what if a man who was convicted in a state court of felony hot check violations happens upon a elderly person that is being beaten and robbed at gun point. What if this same person, who I will call our Good Samaritan, knocks the gun from the robber’s hands and holds the robber at gun point until the police arrive? Should our Good Samaritan be convicted of violating title 18, U.S.C. Section 922(g)(1) the federal law that bans felons from holding, possessing, using or even smelling a firearm. He probably will be indicted, but can our Good Samaritan argue to the jury that he was defending the elderly woman and was justified in possessing the robber’s firearm? The answer is Maybe!

Although most federal circuits recognize self-defense or defense of others (called a Justification Defense) to a Section 922(g)(1) violation, those federal courts will require our Good Samaritan to pass a Four-Part Test and show the trial judge there is evidence to support his defense. The additional problem is that this test is so tough, even our Good Samaritan might not pass it. And if our Good Samaritan is indicted in a state that makes up the Eighth Circuit Court of Appeals (Arkansas, Missouri, Nebraska, Minnesota, North Dakota and South Dakota) he is in real trouble because federal courts in those states do not even recognize that there is a defense to a Section 922(g)(1) violation.

What do you do if you are charged with being a felon in possession of a firearm? Plead guilty and get ready to go to federal prison? No, you should call me.

Prior to 1934, federal gun laws did not exist, only the states had gun laws. In 1934, the U.S. Congress passed the National Firearms Act and soon after that passed The Federal Firearms Act that prohibited felons from transporting a firearm across state lines. This law was quickly challenged on grounds it violated the Second Amendment to the U.S. Constitution. In United States v. Miller, a case that originated in the Western District of Arkansas, the U.S. Supreme Court held that the federal firearms acts did not violate the Second Amendment to the U.S. Constitution.

In 1968, Congress passed The Federal Gun Control Act, again making a illegal under federal law for a felon to simply possess a firearm. But Congress did not provide that people like our Good Samaritan were excluded from this federal law, now found at title 18, U.S.C., Section 922(g)(1).

Then, in 1980, in the case of United States v. Bailey, the U.S. Supreme Court held that our Good Samaritan might have a defense to this charge, if he could show that his defense was made in good faith and there was some evidence to support it. Soon after the Bailey decision, most circuits recognized that, although our Good Samaritan might be indicted for violating Section 922(g)(1) violation, our Good Samaritan must pass a Four-Part Test demonstrating there was some evidence to support that defense. But if you are not charged in Arkansas, the federal courts do not recognize a Justification Defense to a Section 922(g)(1) charge. Although some courts will listen to your Justification Defense argument, and might let you make this claim, it is seldom successful. But that might be changing.

I recently argued to a three-judge panel at the Eighth Circuit that it is not only time for a Justification Defense to be recognized by the Eighth Circuit, but that the Four-Part test is unconstitutional. I argued that when the U.S. Supreme Court ruled in District of Columbia v. Heller and McDonald v. City of Chicago, that the Second Amendment to the U.S. Constitution created a constitutional right of self-defense, and that any unreasonable restriction of that right (such as restricting the of right of non-felons to carry a firearm) is unconstitutional, that even a felon has the right to argue this defense to a jury without having to prove to the judge his defense has merit.

I told the Eighth Circuit that a felon can be barred from carrying a firearm, every court, federal or state, should recognize the right of self-defense and any restriction on even a felons right to argue self-defense should not be restricted.

We will wait and see what they decide, but in the meantime, if you are charged with any federal gun violation, no matter what state or federal court, call me. I will provide you with a free phone consultation and if you want, my legal services.