Article 120, UCMJ, and Firearms — Court-Martial Trial Practice Blog

18 U.S.C. § 922, part of the Gun Control Act of 1968, is one of the most important federal statutes regulating firearms and ammunition in the United States. It delineates specific prohibitions on the possession, sale, transfer, shipment, and receipt of firearms and ammunition under various circumstances. The statute aims to keep firearms out of the hands of prohibited individuals, regulate interstate and foreign commerce in firearms, and ensure accountability among firearms dealers and manufacturers.

I. Structure and Purpose of 18 U.S.C. § 922

Section 922 contains over twenty subsections. Each establishes different restrictions or obligations. Collectively, they regulate the conduct of both individual citizens and licensed dealers, with specific prohibitions tied to criminal history, age, geography, and status (e.g., military, law enforcement, noncitizen). Violations can result in serious criminal penalties, including felony charges under 18 U.S.C. § 924.

II. Key Provisions of 18 U.S.C. § 922

A. Subsection (a): Interstate and Foreign Commerce Restrictions

It is unlawful for any person, except a licensed dealer, manufacturer, or importer, to engage in the business of importing, manufacturing, or dealing in firearms without a license (§ 922(a)(1)(A)).
Prohibits knowingly shipping or transporting firearms in interstate commerce to or from any person not licensed, or receiving such shipments unless exempted (§ 922(a)(2)–(5)).

B. Subsection (b): Sales by Licensed Dealers

Licensed dealers may not sell:
- Handguns to persons under 21 years old.
- Any firearm or ammunition to a person prohibited under § 922(d).
- Firearms to residents of another state (with limited exceptions for long guns).
Mandates recordkeeping and verification via the National Instant Criminal Background Check System (NICS).

C. Subsection (d): Transfers to Prohibited Persons

This is a crucial provision. It prohibits anyone from selling or transferring any firearm or ammunition to a person who:

Is a felon.
Is a fugitive from justice.
Is an unlawful user of a controlled substance.
Has been adjudicated as mentally defective or committed to a mental institution.
Is an illegal alien, or non-immigrant without a proper visa exception.
Has been dishonorably discharged from the U.S. Armed Forces.
Has renounced U.S. citizenship.
Is subject to a domestic violence restraining order.
Has been convicted of a misdemeanor crime of domestic violence.

These categories are mirrored in § 922(g), which prohibits possession by the same groups.

D. Subsection (g): Possession by Prohibited Persons

This subsection criminalizes possession, not just acquisition. Any person who falls into the prohibited categories above and who possesses, ships, or receives a firearm or ammunition that has traveled in interstate or foreign commerce violates federal law. Courts broadly interpret the interstate commerce element; if the firearm crossed state lines at any point in its history, it satisfies the requirement.

Relevant case law:

Scarborough v. United States, 431 U.S. 563 (1977): Interstate nexus is satisfied if the firearm previously traveled in commerce.

E. Subsection (h): Ammunition Possession by Prohibited Persons

Mirroring subsection (g), § 922(h) prohibits the receipt of ammunition by the same prohibited categories of individuals.

F. Subsections (i) and (j): Firearms with Obliterated Serial Numbers and Stolen Firearms

§ 922(i): Prohibits transportation across state lines of a firearm with an obliterated or altered serial number.
§ 922(j): Prohibits knowingly possessing or selling a stolen firearm that has moved in interstate commerce.

G. Subsection (k): Firearms with Removed Serial Numbers

Makes it unlawful to possess or receive a firearm that has had the serial number removed, altered, or obliterated.

H. Subsections (n) and (o): Indictment and Machine Guns

§ 922(n): Bars individuals under felony indictment from receiving firearms shipped in interstate commerce.
§ 922(o): Bans possession or transfer of machine guns manufactured after May 19, 1986, with limited law enforcement and government exceptions.

III. Constitutional and Practical Considerations

Federal courts have upheld § 922 against most constitutional challenges, particularly under the Commerce Clause and Second Amendment. However, Bruen v. New York State Rifle & Pistol Ass’n, 597 U.S. ___ (2022), introduced a historical-tradition test for Second Amendment scrutiny. As a result, lower courts are reevaluating the constitutionality of some § 922 provisions, especially as applied to nonviolent felons or drug users.

For example:

United States v. Daniels, 77 F.4th 337 (5th Cir. 2023), struck down § 922(g)(3)’s prohibition on possession by a marijuana user, applying Bruen.
United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), invalidated § 922(g)(8) (domestic violence restraining orders), later reversed by the Supreme Court in United States v. Rahimi, 602 U.S. ___ (2024).

Conclusion

18 U.S.C. § 922 is the cornerstone of federal firearms regulation, setting broad prohibitions on the possession and transfer of firearms and ammunition—especially across state lines and to prohibited persons. It interacts closely with § 924 (penalties) and § 925 (exceptions), forming a comprehensive statutory scheme. Courts and policymakers continue to evaluate its scope in light of evolving constitutional doctrine and public safety concerns.

There is a new move by the Department of Justice to implement regulations affecting gun possession.

Application for Relief From Disabilities Imposed by Federal Laws With Respect to the Acquisition, Receipt, Transfer, Shipment, Transportation, or Possession of Firearms: A Proposed Rule by the Justice Department. FR Document: 2025-13765, 07/22/2025.

Summary of the Proposed Rule

1. Purpose and Scope

The Department of Justice (“the Department”) proposes formal criteria to govern applications under 18 U.S.C. 925(c)—which allows individuals otherwise prohibited under § 922(g) to seek restoration of firearm rights if they prove they are not likely to act dangerously and that granting relief would serve the public interest.

2. Delegation Shift

Previously, ATF administered relief under 28 CFR 478.144. On March 20, 2025, the DOJ rescinded ATF’s authority and reassumed sole responsibility, citing past inconsistent decisions and public safety concerns.

3. Structured Criteria

The proposed rule introduces a tiered-risk framework:

Applicants with certain violent felony convictions are presumptively disqualified, unless they can demonstrate “extraordinary circumstances.”
Two recidivism-free periods are established:
- 10 years post‑supervision for serious violent offenses.
- 5 years for other felonies.
Even after these periods, relief is not guaranteed—it requires a factual showing of rehabilitation, character, and public safety considerations.

This represents a clear shift from the earlier “ad hoc” ATF evaluations that often granted relief to individuals with violent histories.

4. Application Process & Fees

Applicants must submit a formal application (to be codified in new 28 CFR Part 107) detailing their legal history, character references, and documentation backing their request Department of Justice+1Federal Register+1.
A $20 processing fee is proposed to recover first-year program costs ($20 million projected) based on an estimated 1 million applications. Indigent applicants can seek fee waivers Federal Register.

5. Public Input and Timeline

A 90-day public comment period ends on October 20, 2025 Federal Register+1Department of Justice+1.
The Department is specifically seeking input on:
- Which offense categories should be presumptively disqualifying.
- Optimal recidivism-free periods.
- Federalism and economic impacts Federal Register+1Department of Justice+1.

🔍 Analysis

A. Consistency & Transparency

By codifying clear standards—defining presumptive categories, timelines, and evidentiary burdens—the DOJ enhances transparency and consistency in relief determinations. This framework replaces ATF’s prior discretionary and opaque review process, which documented cases granting relief to individuals with histories of homicide, sexual assault, and drug trafficking Congress.gov+7Federal Register+7Department of Justice+7.

B. Balancing Second Amendment Rights and Public Safety

The rule reinforces the constitutional premise that § 925(c) exists to allow law-abiding, rehabilitated individuals to regain rights, while safeguarding public safety by imposing structured, evidence-based thresholds. Risk-based timelines—10 years for violent crimes and 5 years for other offenses—align with criminological data on recidivism, especially among violent offenders Federal Register+1ATF+1.

C. Operational Viability

Processing an estimated 1 million applications annually demands significant resources. A self-sustaining $20 fee per application appears reasonable, with prospects for fee adjustments every two years. Provisions for fee waivers promote fairness for indigent applicants Federal Register+1Department of Justice+1.

D. Potential Consequences

Presumptive disqualification may streamline processing but could over-penalize individuals with less serious offenses unless they can muster “extraordinary circumstances.”
Requiring attorney general review and publication of approvals fosters accountability but may deter some applicants due to privacy concerns.
The rule does not address state-law disabilities, meaning relief under federal law doesn’t override state-level prohibitions—maintaining federal-state consistency Department of Justice+1Federal Register+1.

E. Invitation for Stakeholder Input

By highlighting specific questions—offense categories, timelines, cost impacts—the DOJ is proactively inviting stakeholder participation. Legal professionals could help define which nonviolent felonies (e.g., drug possession, financial crimes) should be eligible sooner or presumptively excluded.

✅ Conclusion

The proposed 2025 rule is a significant modernization of the firearms disability relief process. It codifies procedural guardrails to ensure second chances for rehabilitated individuals while upholding rigorous standards for public safety. Judges, practitioners, and stakeholders should closely examine:

Whether the 5/10-year thresholds align with rehabilitation science,
What qualifies as extraordinary circumstances, and
The balance between individualized review and due process transparency.

Analysis of How the DOJ’s Proposed 18 U.S.C. § 925(c) Rule Affects Servicemembers Convicted at Court-Martial

The Department of Justice’s 2025 proposed rulemaking regarding relief from federal firearm disabilities under 18 U.S.C. § 925(c) carries significant implications for former servicemembers convicted at court-martial and subsequently subject to firearm prohibitions under 18 U.S.C. § 922(g). Although court-martial convictions originate in the military justice system (under the Uniform Code of Military Justice), such convictions are treated as felony convictions for federal purposes if they resulted in imprisonment exceeding one year, even if they arise outside the Article III court structure (see 18 U.S.C. § 921(a)(20); U.S. v. Grant, 753 F.3d 480 (4th Cir. 2014)).

I. Impact on Court-Martialed Veterans and Former Servicemembers

A. Presumptive Disqualification for Violent Convictions

Under the proposed rule, former servicemembers convicted at court-martial of violent offenses—such as sexual assault (Article 120, UCMJ), aggravated assault (Article 128), or manslaughter (Article 119)—will face presumptive ineligibility for restoration of firearm rights unless they demonstrate “extraordinary circumstances.” This likely imposes a higher burden than that faced under prior ATF-administered reviews, which lacked uniform criteria and occasionally granted relief even to individuals with egregious military criminal histories.

Examples of common military-specific offenses that could trigger presumptive denial:

Article 118–119: Murder or manslaughter
Article 120–120b: Sexual assault, abusive sexual contact
Article 128: Aggravated assault or domestic violence
Article 134 (Assimilative Crimes): Civilian felony equivalents prosecuted under UCMJ

B. Recidivism-Free Waiting Periods

For servicemembers convicted of nonviolent felonies—such as larceny (Article 121), drug offenses (Article 112a), or unauthorized weapon possession (Article 134)—the DOJ proposes a 5-year minimum waiting period post-supervision. For more serious violent offenses, the waiting period is 10 years. These timelines begin after release from confinement, parole, or probation, and presuppose no subsequent disqualifying conduct.

Given the rehabilitative focus of the military’s correctional programs and parole system (e.g., DoD Clemency and Parole Board), many former servicemembers could qualify under the 5-year track, especially for drug-related or nonviolent general orders violations.

C. Increased Burden of Proof

The rule imposes a rigorous evidentiary burden, requiring applicants to demonstrate:

Full rehabilitation
Positive post-conviction conduct
That relief is not contrary to public safety or the public interest

For court-martialed individuals, this would likely necessitate documentation from military corrections officials, performance reviews during parole/supervision, letters of reference from commanders or employers, and potentially service records reflecting honorable conduct after the offense.

This formalizes what was previously a non-standardized process, thereby reducing discretion and increasing procedural regularity—but potentially limiting relief for deserving individuals who lack sufficient documentation or legal support.

II. Procedural and Administrative Effects

A. Loss of ATF Jurisdiction

The transfer of § 925(c) authority from ATF to DOJ removes a historically military-engaged agency (ATF has routinely dealt with veterans, military surplus, and related licensing) and replaces it with DOJ—a more centralized, security-driven entity. This may reduce institutional sensitivity to the unique rehabilitative aspects of military justice and veteran reintegration, unless DOJ incorporates DoD correctional data into its evaluation criteria.

B. Application Costs and Access to Relief

The proposed $20 application fee (with waiver provisions) appears nominal but may still present a barrier to indigent veterans or former servicemembers discharged under other-than-honorable conditions who may lack post-service support. The application will require sophisticated legal and evidentiary preparation, likely necessitating legal counsel—raising concerns of equity and access.

C. Lack of Deference to Military Character Evidence

Unlike clemency or discharge upgrade boards, the DOJ’s process does not explicitly credit military service or valorous conduct. This may undercut meritorious applications by decorated veterans who have otherwise shown post-service rehabilitation and continued contribution to their communities.

III. Recommendations and Legal Considerations

Stakeholder Engagement: The military legal community, including Judge Advocates, veteran service organizations, and military defense practitioners, should submit comments during the public review period to advocate for:
- Recognition of rehabilitative programs within DoD corrections.
- Appropriate weighting of military-specific factors (e.g., combat exposure, PTSD).
- Deference to military parole and clemency determinations.
Due Process Advocacy: Former servicemembers may raise due process or equal protection challenges if the DOJ’s criteria result in de facto exclusion of military applicants compared to similarly situated civilians.
State-Level Interaction: Even if federal rights are restored under § 925(c), state laws may continue to bar firearm possession. Servicemembers must evaluate both federal and state-specific disability relief (e.g., under state firearm restoration statutes or civil rights restoration laws).

IV. Conclusion

The DOJ’s proposed rule under § 925(c) imposes a structured but more restrictive framework that could have a chilling effect on court-martialed servicemembers seeking to regain firearm rights—especially those convicted of offenses with violent elements. While the proposal enhances transparency and standardization, it does not yet accommodate the distinctive nature of military justice, DoD correctional rehabilitation, or the transitional needs of veterans. Legal advocates should take the opportunity to influence the rule’s final shape to ensure that former servicemembers are not disproportionately or unjustly excluded from meaningful relief.