It gets worse. Patricia Richman, national sentencing resource counsel at Federal Public & Community Defenders, notes that the "trafficking in firearms" provision applies to anyone who obtains a gun when he "knows or has reasonable cause to believe that such receipt would constitute a felony." It therefore covers prohibited persons as defined by state as well as federal law—a significant expansion, since state criteria for gun ownership are often stricter than federal criteria. That provision, Richman notes in an email, "pull in all state felony prohibitions on firearm possession."
Maryland, for example,
prohibits handgun possession by people convicted of violent misdemeanors, such as simple assault, that are not disqualifying under federal law. Violating that rule is a felony that carries a mandatory minimum sentence of five years in prison. That means someone with a disqualifying misdemeanor record who obtains a handgun in Maryland could also be guilty of "trafficking in firearms" under the Bipartisan Safer Communities Act, even if he was not a prohibited person under federal law. So in addition to Maryland's five-year mandatory minimum, he could face up to 15 years in federal prison.
The U.S. Supreme Court has
ruled that such serial prosecutions do not amount to double jeopardy under the Fifth Amendment, even when they involve state and federal crimes with the same elements. In the 2019 case
Gamble v. United States, the Court rejected an appeal by a man with a felony record who had been convicted of illegal gun possession twice, once under state law and once under federal law.
The "trafficking in firearms" provision includes a knowledge requirement that could be helpful for some defendants. Last year, for example, the Maryland Court of Appeals
considered the case of Mashour Howling, who was arrested in 2019 because he had a pistol and had been convicted of simple assault in Pennsylvania 17 years before. Howling argued that he should not have been convicted of illegal handgun possession because he did not realize he was a prohibited person. That argument, he noted, was consistent with the reasoning of the U.S. Supreme Court's 2019 decision in
Rehaif v. United States, which held that prohibited persons can be convicted of illegal gun possession under federal law only if they recognized that they were not allowed to have firearms.