Current federal policy is to defer to the states on this issue, but there is no guarantee that bad facts might lead to a federal prosecution.Defense of NecessityThere is also a true defense in a § 46.04 case. A defendant charged with unlawful firearm possession may use a defense of necessity which means that, under Texas Penal Code § 9.22, conduct is justified if (1) the actor reasonably believed the conduct to immediately necessary to avoid imminent harm, (2) the desirability and urgency of avoiding harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct, and (3) the legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. Before this defense can even be contemplated, there must be evidence of both immediate necessity and imminent harm.