dissenting:
Today, the majority commits two fundamental errors in reaching its conclusion that the government must, in a § 922(g)(1) prosecution, prove that the defendant had knowledge of the characteristics of the firearm he or she possessed when the “defendant’s status as a convicted felon turns on the possession of a particular type of firearm.” Ante at 514. Because this additional evidentiary burden, one not heretofore recognized by this court or any other, has no place in the operation of § 922(g)(1), and because the majority’s decision is inconsistent with our recent en banc decision in United States v. Langley, 62 F.3d 602 (4th Cir.1995) (en banc), I respectfully dissent.
The first fundamental error in the majority’s decision is its conclusion that § 922(g)(1) contains an “element” requiring the government to prove that the defendant knew the characteristics of the firearm he or she possessed when the “defendant’s status as a convicted felon turns on the possession of a *515particular type of firearm.” Ante at 514. Section 922(g)(1) contains no such element; a short discussion of the operation of § 922(g)(1) will so illustrate.
Section 922(g)(1) makes it: unlawful for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Thus, to prove a § 922(g)(1) violation, the government must prove three elements beyond a reasonable doubt: “(1) the defendant previously had been convicted of a crime punishable by a term of imprisonment exceeding one year; (2) the defendant knowingly possessed, transported, shipped, or received, the firearm; and (3) the possession was in or affecting commerce, because the firearm had travelled in interstate or foreign commerce at some point during its existence.” Langley, 62 F.3d at 606.1
When the prior felony relied upon by the government is a state offense, a subsidiary question arises under the felony status element of § 922(g)(1) which requires a court to look to state law. This is so because § 921(a)(20) provides that a felony conviction which would otherwise qualify as such is not a felony conviction if, as to that particular conviction, the defendant has had his “civil rights restored.” We have said the effect of the restoration of rights provision of § 921(a)(20) on the felony status element of § 922(g)(1) is to “exclude[ ] from the definition of a predicate offense any conviction for which the defendant has had his civil rights, including the right to carry a firearm, restored.” United States v. Thomas, 52 F.3d 82, 84 (4th Cir.1995).
Whether a state felony conviction is a felony conviction for purposes of § 922(g)(1) is determined in accordance with “the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20). Thus, to determine whether a defendant’s civil rights have been restored under state law, we examine “the whole of [state] law.” United States v. McLean, 904 F.2d 216, 218 (4th Cir.), cert. denied, 498 U.S. 875, 111 S.Ct. 203, 112 L.Ed.2d 164 (1990). Under North Carolina law, an ex-felon is prohibited from possessing a “weapon of mass death and destruction.” See N.C.Gen.Stat. §§ 14-415.1 and 14-288.8.2
When the prior state felony conviction can be excluded from the definition of felony conviction under § 921(a)(20), the government bears the evidentiary burden of proving “independently the additional fact that [the defendant’s] civil rights ha[ve] not been restored.” Thomas, 52 F.3d at 85. For example, in United States v. Essick, 935 F.2d 28 (4th Cir.1991), the defendant’s prior state felony conviction occurred more than five years before the defendant’s possession of the firearm that formed the basis of the § 922(g)(1) charge. Id. at 29. North Carolina law provided that a defendant’s civil rights were not restored if the defendant possessed a firearm within five years of his or her conviction or unconditional discharge from probation or parole, whichever occurred later. Id. at 30. Because the prior state felony conviction could have been excluded from the definition of felony conviction under § 921(a)(20) — there was no evidence that the firearm was possessed within five years of the defendant’s conviction or unconditional discharge from probation or parole, we required the government to prove the “continuing vitality of the conviction,” i.e. that the defendant’s civil rights had not been restored. Id. at 31.
But when the prior state felony conviction cannot be excluded from the definition of felony conviction under § 921(a)(20), the gov-*516emment is not required to prove the “additional fact” that the defendant’s civil rights have not been restored. Thomas, 52 F.3d at 85. For example, in Thomas, Thomas was arrested for possession of a firearm within one year of his conviction for a state felony. Under North Carolina law, Thomas’ civil right to possess a firearm could not have been restored because five years had not elapsed since his prior state felony conviction. Id. at 84. Because Thomas’ prior state felony conviction “could not have ... been excluded from the definition of predicate offense under 18 U.S.C. § 921(a)(20), the government did not have the burden of proving independently the additional fact that Thomas’ civil rights had not been restored.” Id. at 85.
From the interplay between § 922(g)(1) and § 921(a)(20), the majority reaches a rather remarkable conclusion: the government must prove that the defendant had knowledge of the characteristics of the firearm he or she possessed when the “defendant’s status as a convicted felon turns on the possession of a particular type of firearm.” Ante at 514. This conclusion is premised on the notion that Tomlinson’s civil rights were restored under North Carolina law if he had no knowledge of the characteristics of the firearm that brought the firearm within the definition of a “weapon of mass death and destruction.” The critical fact the majority ignores in reaching its conclusion is that because the firearm at issue was a “weapon of mass death and destruction” under North Carolina law, Tomlinson’s felony conviction could not have been excluded from the definition of felony conviction under § 921(a)(20). Therefore, the government was not required to prove the additional fact that Tomlinson’s civil rights had not been restored under North Carolina law because the “continuing vitality” of Tomlinson’s prior state conviction could not meaningfully be challenged. Essick, 935 F.2d at 31; Thomas, 52 F.3d at 85. Thus, the only questions for the district court to instruct and for the jury to answer, were whether the government proved, beyond a reasonable doubt, that Tomlinson knowingly possessed the firearm after he committed the prior state felony and “the possession was in or affecting commerce, because the firearm had travelled in interstate or foreign commerce at some point during its existence.” Langley, 62 F.3d at 606. Because the jury in this case was properly instructed as to the elements of § 922(g)(1), I see no reason to disturb the district court’s judgment.3
Contrary to the majority’s decision, the district court was not required to instruct the jury that the government had to prove that Tomlinson had knowledge of the characteristics of the firearm which brought the firearm within the definition of a “weapon of mass death and destruction” under North Carolina law. Such an instruction is inconsistent with the mechanics of § 922(g)(1) described above, as the defendant’s knowledge of the characteristics of the firearm possessed is irrelevant in a § 922(g)(1) prosecution. Indeed, to my knowledge, no court has ever required the government to prove knowledge of the characteristics of a firearm in a § 922(g)(1) prosecution. The reason for this dearth of authority is readily apparent — § 922(g)(1) prohibits the possession of all firearms, regardless of the firearm’s characteristics. In light of the language employed by Congress in § 922(g)(1), it is highly unlikely that Congress intended for the government, under any circumstances, to shoulder the burden of *517proving knowledge of the characteristics of the firearm in a § 922(g)(1) prosecution.4
The second fundamental error in the majority’s decision is that the decision runs afoul of our recent en banc decision in Langley. In Langley, we held, with respect to the felony status element, the government need not establish that the defendant had knowledge of his felony status, but rather need only prove the defendant was convicted of a prior felony. Langley, 62 F.3d at 605-07. Here, the majority engrafts onto the felony status element a requirement that “when a defendant’s status as a convicted felon turns on the possession of a particular type of firearm, a jury must be instructed that a defendant is not a convicted felon if, despite possessing such a firearm, he did not know it had the particular nature on which his ‘convicted’ status turns.” Ante at 514. Because Langley rejected the notion that proof of knowledge applied to the felony status element, the majority’s decision is inconsistent with our decision in Langley.
For these reasons, I respectfully dissent.
. The term “crime punishable by imprisonment for a term exceeding one year” is commonly referred to as a "felony.”
. Although I harbor strong doubt that the firearm at issue, which is so widely sold in stores such as Wal-Mart, could be considered a "weapon of mass death and destruction," I am, nonetheless, constrained to agree with the majority's reasoning and conclusion, ante at 511 n. 4, that the firearm at issue was a "weapon of mass death and destruction” under North Carolina law.
. Interestingly, some courts take a wholly different approach to the interplay between § 922(g)(1) and § 921(a)(20). These courts address the question of whether a defendant’s civil rights have been restored as a question of law for the court. See, e.g., United States v. Flower, 29 F.3d 530, 532 (10th Cir.1994) ("Whether a prior conviction meets the definition of § 921(a)(20), and is therefore properly admitted in a § 922(g)(1) case, is an ultimate legal determination to be decided by the trial judge.”); see id. at 535 (“Because § 921(a)(20) is definitional, it is the trial judge’s responsibility to determine as a matter of law whether a prior conviction is admissible in a § 922(g)(1) case.”). Under Flower, if the court determines that, as a matter of law, a defendant’s civil rights have been restored with respect to a particular felony conviction, the evidence of that felony conviction is not admissible at the defendant's trial. Id. Conversely, if the court determines that, as a matter of law, a defendant's civil rights have not been restored with respect to a particular felony conviction, the evidence of that conviction is admissible at trial as proof of the felony status element. Id.
. Because knowledge of the characteristics of the firearm is not an element of the instant offense, Staples v. United States, - U.S. -, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), relied upon heavily by the majority, has no application to this case.