A Shot at Mens Rea in Aiding and Abetting Illegal Firearms Possession under 18 U.S.C. [Section] 922(g)

Article excerpt


Whether the term used is "sensible" gun laws, "reasonable" gun laws, or "common-sense gun laws," the message is always the same: No one in his right mind could possibly oppose such laws; law-abiding gun owners have nothing to fear from them; they will not infringe on anyone's legitimate gun rights ....

... [But] do they, in fact, represent a real and present danger to the gun rights of Americans? (1)

--Richard Poe

In the Southwest, a neighbor of twenty years asks a fellow homemaker if she may borrow a firearm for protection. Unbeknownst to the homemaker, who loans the gun, the neighbor is an illegal alien. In the Midwest, as hunting season opens, a sportsman wants to try his friend's new rifle. The friend does not know that this hunter, whom he has known for many years, was once convicted of misdemeanor domestic violence, and lets him take the rifle hunting. In an inner city on the East Coast, a man gives a gun to his accomplice before they proceed to hold up a service station, knowing she is a convicted felon.

While the frequency of these occurrences is difficult to measure, guns are frequently borrowed and loaned in the United States. (2) Many would be surprised to learn that all three borrowers in the above situations committed a federal felony the moment they took possession of the gun. (3) But even more surprising is that all three lenders could be convicted of the same felony as the borrowers because of a disparity in the current federal gun laws and the convoluted application of the federal aiding and abetting statute.

Title 18, [section] 922(g) of the U.S. Code restricts persons in any one of nine categories--including convicted felons, illegal aliens, and drug addicts--from knowingly possessing firearms or ammunition. (4) Title 18, [section] 922(d), restricts the sale or disposal of firearms or ammunition to an individual that one knows or has reason to know is in one of the nine restricted categories. (5) However, if one is charged with aiding and abetting illegal firearm possession--that is, charged under [section] 922(g) via the federal aiding and abetting statute (6)--innocent people could be held strictly liable because of two distinct flaws.

The first flaw is in the construction of [section] 922(g). The mens rea requirement in the statute is that the principal--the one actually possessing the gun--knowingly possess a firearm. All other elements involve strict liability, meaning that the prosecution need prove only that the defendant falls into one of the nine restricted categories (for example, convicted felon, illegal alien, or drug addict). The prosecutor need not prove that the defendant knows she falls into a restricted category. The strict liability standard makes sense in a prosecution against a principal. But automatically applying the same (strict liability) mens rea standard to the aider and abettor (the one loaning or selling the gun)--which is precisely what the federal aiding and abetting statute requires (7)--clashes with the congressional intent behind [section] 922(d). When Congress enacted [section] 922(d), it decided to punish a person who sold or disposed of a firearm or ammunition to, for instance, a convicted felon or a drug addict only if the person knew or should have known of the person's restricted status. But if the prosecution must prove only that the principal is in a restricted class and that the alleged aider and abettor knowingly facilitated his possession, then it becomes a de facto strict liability offense for the aider and abettor, and a person could be convicted without regard to whether she knew or should have known of a buyer or borrower's restricted status. In other words, while [section] 922(d) requires the defendant to know or have reason to know of the principal's restricted status, aider and abettor charges under [section] 922(g) via the federal aiding and abetting statute possess no such requirement. …