Montana Domestic Violence Guide

Living With a Gun Owner After a PFMA Case

A firearm ban is about possession, and possession does not require ownership or even touching the gun.

Written by

Licensed Montana attorney and co-founder of A&M Law. 18 years of experience as lead counsel in 50+ jury and bench trials. A Certified Mediator and Certified Guardian ad Litem focusing on family law, criminal defense, and DUI defense.

18 yearsReviewed by Misty GaubatzLast reviewed: September 20, 2026

Key Takeaways: Living With a Gun Owner After a PFMA Case

Federal firearm bans prohibit possession, and that includes constructive possession.
The Supreme Court describes constructive possession as having the power and intent to exercise control over an object without physical custody (Henderson v. United States, 2015).
The bans apply to the prohibited person. They do not make it unlawful for a spouse or roommate to own firearms.
It is a separate federal crime to sell or otherwise dispose of a firearm or ammunition to someone you know or have reasonable cause to believe is prohibited (18 U.S.C. § 922(d)).
A Montana release or sentence condition may be written more broadly than federal law. Its wording controls.
Whether a shared home creates possession is fact-specific. Get advice before the order or conviction takes effect, not after.

If you are prohibited from possessing firearms, the guns your spouse, partner, parent, or roommate owns can still create a legal problem for you. The reason is that the law prohibits possession, and possession is broader than ownership or holding a gun in your hands. This page explains the idea of constructive possession in general terms. It is part of the firearm section of our Montana Domestic Violence Guide, and every situation it describes is fact-specific.

When This Question Comes Up

A prohibition can come from several places, described in our overview of PFMA and gun rights:

A release condition that you not possess a firearm or other dangerous weapon (MCA § 46-9-108(1)(h)).
A sentence condition (MCA §§ 45-5-206(7), 46-18-202(1)(b)).
An order of protection, under its own terms or under 18 U.S.C. § 922(g)(8).
A felony conviction (18 U.S.C. § 922(g)(1)).
A qualifying misdemeanor domestic violence conviction (18 U.S.C. § 922(g)(9)), subject to the Ninth Circuit's ruling on Montana PFMA.

Actual and Constructive Possession

The Supreme Court laid out the two kinds of possession in Henderson v. United States, 575 U.S. 622 (2015). Actual possession exists when a person has direct physical control over a thing. Constructive possession "is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object." The Court said § 922(g) therefore prevents a prohibited person "not only from holding his firearms himself but also from maintaining control over those guns in the hands of others."

Two words in that definition do the work: power and intent. Both are questions of fact that a judge or jury decides from the circumstances.

What That Means in a Shared Home

The federal statutes we read prohibit the listed person from possessing. They do not prohibit other adults in the household from owning firearms. So a shared home is not automatically a violation, and it is not automatically safe either. The question in any real case would be whether the prohibited person had the power and the intent to control a firearm that was there.

We do not offer a checklist for this, for two reasons. First, no arrangement guarantees a result, because the question is decided on all the facts after the event. Second, a Montana order may require more than federal law does. A release order or judgment may say, for example, that no firearms may be kept in your residence at all. If your order says that, the constructive possession analysis is beside the point and the order controls.

The Other Person's Exposure

Household members have their own legal risk. Under 18 U.S.C. § 922(d), it is unlawful to sell or otherwise dispose of any firearm or ammunition to a person while knowing or having reasonable cause to believe the person is in a prohibited category. Those categories include a person convicted of a crime punishable by more than one year, a person subject to a qualifying protection order, and a person convicted of a misdemeanor crime of domestic violence. A knowing violation carries up to 15 years (18 U.S.C. § 924(a)(8)).

A family member who is unsure what they may do with their own firearms should get their own legal advice. Their interests and yours are not always the same.

Firearms You Own but Cannot Possess

Henderson was about a man who lawfully owned firearms, was later convicted of a felony, and asked a court to transfer them to someone else. The Supreme Court held that § 922(g) does not bar a court-ordered transfer to a third party "unless it would allow the felon to later control the guns, so that he could either use them or direct their use." A court may look for assurances that the recipient will not give the owner access. Our page on getting seized guns backexplains how that fits with Montana's procedure for seized property.

If the Protected Person Lives in the Same Home

Sometimes the gun owner in the household is the person protected by a no contact order or an order of protection. In that case the firearm question is secondary. You may not be allowed in the home at all, and you may not contact that person about firearms or anything else, directly or through someone else. Follow the order exactly and let a lawyer handle any necessary communication. See where you can live while the case is pending.

Raise It Early

The time to deal with firearms in a shared home is before a release hearing, an order of protection hearing, or sentencing. A lawyer can find out exactly what condition the court intends to impose and ask the court to state it clearly. After the order is in place, the options narrow, and guessing wrong can mean a new charge or a revocation.

This page explains the law in general as of the current text of 18 U.S.C. § 922 and the 2025 Montana Code Annotated. Possession is decided on the facts of each case. It is not legal advice about your specific case.

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FAQ

Living With a Gun Owner After a PFMA Case FAQ

Can my spouse keep guns in the house if I cannot possess firearms?

No statute we read bars a household member from owning firearms because of your case. The risk is yours: if you have the power and intent to control a firearm in the home, that can be possession even though you do not own it. Whether that is true in a particular household depends on the facts, and a court order in your case may add its own requirements.

What is constructive possession?

In Henderson v. United States, 575 U.S. 622 (2015), the Supreme Court explained that actual possession is direct physical control, and constructive possession exists when a person, though lacking physical custody, still has the power and intent to exercise control over the object. The Court said 18 U.S.C. § 922(g) covers both.

Does it matter whose name the gun is in?

Ownership is not the test. The federal statute prohibits possessing, and a person can possess a firearm someone else owns. In Henderson the Court also made the reverse point: a prohibited person can still hold an ownership interest in firearms without possessing them, so long as he cannot use them or direct their use.

Can a family member get in trouble for letting me use a gun?

Yes. Federal law makes it unlawful to sell or otherwise dispose of a firearm or ammunition to a person while knowing or having reasonable cause to believe the person falls in a prohibited category (18 U.S.C. § 922(d)). The penalty is up to 15 years (18 U.S.C. § 924(a)(8)).

Does the DeFrance decision mean this does not apply to me?

Maybe, for the federal misdemeanor ban only. The Ninth Circuit held that a conviction under MCA § 45-5-206(1)(a) is not a federal misdemeanor crime of domestic violence. A release condition, a sentence condition, a qualifying order of protection, or a felony conviction can still prohibit possession. See does a Montana PFMA count under federal law.

Firearms in a Shared Home?

Sort this out with a lawyer before a hearing or sentencing, when there is still time to plan. Call 406-830-3060 for a confidential consultation.

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