Date: November 2, 2026 | Category: Federal Criminal Defense
Facing a federal gun charge based on a past conviction or another status can be incredibly challenging, for you and your family. Help and guidance are available. At Tidwell Law Firm, PLLC, we empathize with the uncertainty these cases create, and we provide experienced criminal defense representation to help you understand your options. The details matter.
Table of Contents
- Who can be prohibited under § 922(g)?
- What does the government have to prove?
- How can prior convictions change the sentence?
- What do Hemani and Rahimi mean for gun cases?
- What defenses may be available?
- Frequently asked questions
Who can be prohibited under § 922(g)?
Section 922(g) of the federal Gun Control Act prohibits certain people from possessing, receiving, shipping, or transporting a firearm or ammunition in or affecting commerce. The prohibited categories include:
- People with certain prior convictions: Section 922(g)(1) covers a person convicted of an offense punishable by more than one year in prison. That can include a qualifying state conviction, not only a federal felony.
- Unlawful controlled-substance users or people with an addiction: Section 922(g)(3) addresses people who are unlawful users of or addicted to controlled substances. The scope of that provision is affected by recent constitutional decisions, discussed below.
- People with certain domestic-violence records or orders: Section 922(g)(9), known as the Lautenberg Amendment, covers qualifying misdemeanor crimes of domestic violence. Section 922(g)(8) separately covers certain people subject to qualifying domestic-violence protective orders.
- Other listed categories: These include fugitives, certain people subject to mental-health adjudications or commitments, people unlawfully in the United States or admitted under certain nonimmigrant visas, people dishonorably discharged from the armed forces, and people who have renounced U.S. citizenship.
A state record may therefore trigger federal scrutiny even when the underlying event occurred years ago. The precise statute of conviction and the legal effect of any later order are crucial.
What does the government have to prove?
A § 922(g) case is not established simply by finding a firearm near someone who has a record. The prosecution generally must prove the defendant’s prohibited status, knowledge of that status, knowing possession of the firearm or ammunition, and the required connection to interstate commerce. Under Rehaif v. United States, the government must show that a defendant knew of the relevant prohibited status, not that the defendant knew federal law barred possession.
Actual and constructive possession
Actual possession means the firearm was physically on you or in your immediate control. Constructive possession can apply when you knew about a firearm and had the power and intention to exercise control over it, even if it was somewhere else.
In the Fifth Circuit, constructive possession may be shown through dominion or control over the firearm, or over the place where it is found, but a person’s mere presence in a place is not enough. Joint occupancy matters: evidence must support a reasonable inference that the defendant knew about the firearm and could exercise control over it. The Fifth Circuit’s decision in United States v. De Leon discusses constructive possession and shared premises.
For example, imagine John shares a home with two relatives, and police find a gun in a locked cabinet in a room he rarely uses. Living at the address alone would not necessarily establish that John knowingly possessed the gun; who used the room, who had access, and what evidence links John to the firearm could all matter.
The commerce connection
The statute also requires the firearm or ammunition to be “in or affecting commerce.” In many cases, that element is met by evidence that the firearm previously crossed state lines. It is often not the central dispute, but the government still must prove the required connection.
How can prior convictions change the sentence?
A conviction under § 922(g) can carry a statutory maximum of 15 years in prison under 18 U.S.C. § 924(a)(8). The sentencing calculation may be shaped by the Federal Sentencing Guidelines, particularly U.S.S.G. § 2K2.1, which considers factors such as prior qualifying convictions, the firearm involved, and other offense circumstances.
Keep in mind that the guideline calculation and the Armed Career Criminal Act (ACCA) are different. Under 18 U.S.C. § 924(e), a person convicted under § 922(g)(1) may face a 15-year mandatory minimum if the person has three qualifying prior convictions for violent felonies or serious drug offenses committed on different occasions. Whether a prior offense qualifies, and whether the offenses occurred on separate occasions, can require detailed legal analysis.
That is why a detailed review of the presentence report and criminal-history records is essential. Sentencing disputes may involve whether a prior conviction fits the relevant legal definition, whether the government has shown the required facts, and whether guideline adjustments have been applied correctly. Federal cases may also involve supervised-release conditions, including restrictions on firearms or ammunition.
What do Hemani and Rahimi mean for gun cases?
Marijuana use and United States v. Hemani
In United States v. Hemani (2026), the Supreme Court unanimously held that applying § 922(g)(3) to Hemani based solely on his admitted marijuana use violated the Second Amendment. The result was unanimous, though the Justices did not issue one single, shared 9–0 rationale.
The decision is important in Texas, but its limits matter. The Court did not invalidate § 922(g)(3) in every situation, define every form of “unlawful user,” or hold that the statute applies only to people who are intoxicated at the moment they possess a firearm or who are addicts. It expressly left questions involving addiction, present intoxication, and individualized evidence of danger unresolved.
Read our related Hemani case analysis for more background. The case may support a constitutional challenge in some § 922(g)(3) prosecutions, but its application depends on the allegations and evidence.
Protective orders and United States v. Rahimi
In United States v. Rahimi (2024), the Supreme Court upheld § 922(g)(8) as applied to a person subject to a qualifying protective order that included a finding of a credible threat to another person’s physical safety. The decision addressed the protective-order subsection, not the separate misdemeanor-conviction provision in § 922(g)(9).
Rahimi does not mean every protective order automatically triggers a federal firearm prohibition. The order and the proceedings must satisfy the statute’s requirements, including notice and an opportunity to participate. Read the Supreme Court’s Rahimi opinion for the Court’s analysis. Individual challenges may still depend on the order’s terms and the circumstances of the case.
What defenses may be available?
A careful defense often starts with the records and facts, not assumptions. Depending on your case, counsel may consider:
- Challenge the predicate conviction. Review the judgment, offense statute, and any pardon or court order. Under 18 U.S.C. § 921(a)(20), the legal effect of an expunction, set-aside, or pardon depends on the law of the jurisdiction where the conviction occurred. A Texas expunction, nondisclosure, or discharge does not automatically resolve the federal issue; the exact order and its legal effect need review.
- Contest possession. Examine who owned or controlled the firearm, who knew it was present, and who had access. In a shared home or vehicle, mere presence may not establish knowing possession.
- Evaluate knowledge and constitutional arguments. The prosecution must prove the required knowledge of prohibited status. In a § 922(g)(3) case, Hemani may be relevant; in a § 922(g)(8) case, Rahimi and the specific protective order may matter.
- Audit the sentencing calculation. Check each proposed prior-conviction enhancement and any ACCA allegation against the applicable law and documents. A prior label alone does not settle whether the conviction qualifies.
Many § 922(g) cases are resolved through guilty pleas, but a plea should follow a clear understanding of the evidence, potential defenses, and sentencing exposure. There are no guaranteed outcomes.
Frequently asked questions
“Can I be charged federally for possessing a gun in my home?”
Potentially. Section 922(g) applies to possession in a home when the government can prove the required elements, including the commerce connection. The location alone does not decide the case.
“Does a prior Texas felony always count?”
Not necessarily. The offense, its punishment, and any qualifying expunction, set-aside, or pardon must be examined under the applicable law. A sealed record or nondisclosure order does not automatically eliminate a federal disability.
“Does Hemani mean marijuana users can always possess firearms?”
No. Hemani decided a particular Second Amendment challenge and left important questions open. The facts and legal theory in your case matter.
“Can a guilty plea or probation completion restore my firearm rights?”
Do not assume so. The consequences depend on the offense, the jurisdiction’s law, and any applicable federal relief or court order. Seek legal advice before possessing a firearm or ammunition.
Take your next step with informed guidance
A federal felon-in-possession case can turn on the details of a decades-old state judgment, a shared living arrangement, or a guideline calculation that is not obvious at first glance. At Tidwell Law Firm, PLLC, we understand the pressure these charges place on you and your family. Contact our criminal defense team to discuss your situation and the next steps available. Professional help is available; no result can be promised.
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