Misdemeanor Conviction Firearm Prohibition

Under Federal law, a conviction of some misdemeanor offenses could invoke a lifetime firearm possession prohibition, meaning the person would not be able to possess a firearm for the rest of his or her life. Under 18 U.S.C. 922(g)(1), it is unlawful for a person to possess a firearm if the person has been convicted, pleaded guilty, or pleaded nolo contendre or no contest to a crime “punishable by imprisonment for a term exceeding one year.”

While the law appears to be clear that a conviction exceeding one year invokes the Federal firearms prohibition, the phrase “crime punishable by imprisonment for a term exceeding one year” does not actually mean what it says. Instead, the phrase is defined at 18 U.S.C. 921(a)(20) and does not include state misdemeanor convictions that are “punishable by a term of imprisonment of two years or less.” In Pennsylvania, most second and third-degree misdemeanors offenses are punishable by two years or less, which means convictions of such offenses normally would not trigger the firearm ban. A misdemeanor of the first degree is punishable by up to five years in jail, so a conviction of a first degree misdemeanor would prohibit a person from possessing a firearm under Federal law.  Highest tier, second offense DUI convictions in Pennsylvania are first degree misdemeanors and thereby trigger the firearm prohibition.

Max Sentence and Not Actual Sentence Imposed

It is also important to note that the prohibition is triggered based upon the maximum sentence that a judge could impose and not based upon the sentence that the judge did impose. For example, a second offense of driving under the influence in the highest range of penalties is a first-degree misdemeanor and thereby carries a maximum sentence of five years in jail. In such cases, the judge may impose a sentence of two years. Many people hear the actual sentence, meaning a maximum of two years, and thereby think that they are permitted to possess a firearm. However, because the maximum sentence that is permitted or allowed is the important factor, such a person is prohibited from possessing a firearm.

The max sentence versus actual sentence issue often arises when people try to purchase a firearm and incorrectly complete the prior criminal record portion of the background check portion of the application. Regrettably, an incorrect answer about a prior misdemeanor conviction on a gun application can lead to a felony charge.