Whether, to be convicted under §
922(g), the term “knowingly” in § 924(a)(2)’s mens-rea and penalty
provision applies only to the element of possession, or whether it applies to
two elements: (1) possession, and (2) the individual’s prohibited status (in
this case, one who is in the United States illegally), which renders the possession
unlawful.

At
trial, over Rehaif’s objection, the district court instructed the jury that
“[a]n alien illegally or unlawfully in the United State is an alien whose
presence within the United States is forbidden or not authorized by law.
The Justices appeared keenly aware during argument last week that a ruling in Rehaif’s favor—that the knowingly provision applies to possession, as well as to prohibited status—would have broad implications, especially so for the more-oft charged felon-in-possession. If “knowingly” applies to both elements, not only would the government need prove that an individual possessed a firearm or ammunition, but also that that individual knew he was a felon at the time. This may well be Rehaif's effect.
The Justices appeared keenly aware during argument last week that a ruling in Rehaif’s favor—that the knowingly provision applies to possession, as well as to prohibited status—would have broad implications, especially so for the more-oft charged felon-in-possession. If “knowingly” applies to both elements, not only would the government need prove that an individual possessed a firearm or ammunition, but also that that individual knew he was a felon at the time. This may well be Rehaif's effect.
As
Justice Gorsuch noted in a dissent while sitting for the Tenth Circuit, it is
“hardly crazy to think that in a § 922(g)(1) prosecution Congress might require
the government to prove that the defendant had knowledge of the only fact (his felony
status) separating criminal behavior from not just permissible, but constitutionally
protected, conduct.”
Practice
pointer:
if a client is charged under § 922(g), preserve this issue, unless you’ve
strategically stipulated to it. Especially in the case where the government
cannot meet its burden in establishing your client’s knowledge of his prohibited
status, it could make all the difference. (See,
e.g., United States v. Games-Perez (Gorsuch, J., dissenting)).