The simple definition for criminal possession of a weapon is the unlawful possession of a weapon by a person. In order to gain a better understanding of what this actually means, it is helpful to discuss the three separate definitions that make up the full meaning of the term.
A weapon is an object that can be used to fight, injure, and/or cause death to another person. Depending on the item used as well as the circumstances, a weapon may be categorized as either a “nonlethal” or a “deadly” weapon.
Some examples of both non lethal and deadly weapons include:
- Pepper spray;
- Explosives; and
In a legal context, a person is said to have possession of an object when they have immediate physical contact with it. An example of this would be when carrying a gun. They are also said to have possession when they have control over it, such as by having access to a gun kept at their house.
In this instance, the criminal element may refer to:
- The type of weapon;
- The individual in possession of the weapon; and/or
- The possession itself.
Generally speaking, in order for a person to have criminal possession of an item, they must either know from the start that the item they possess is illegal or after discovering that it is illegal, they remain in possession of it regardless.
Additionally, differing state law also determines whether possession of a weapon is considered to be criminal or not. In many states, certain weapons are considered to be illegal and simply possessing them can result in criminal charges. Classes of people, such as felons, may be prohibited by law from owning any type of weapon.
As such, what might be illegal in one state, might not be illegal in another. This is why the full meaning of criminal possession of a weapon does not have an absolute definition; it is based on the laws, facts, and circumstances of each case.
The following types of weapons are generally classified as illegal weapons:
- Switchblade knives;
- Cane swords;
- Metal or brass knuckles;
- Guns equipped with large-capacity magazines;
- Camouflaging firearm containers;
- Chemical weapons; and
- Any firearms that are not immediately recognizable as a gun.
People who are not allowed to acquire or possess any weapons generally include:
- Those who already have a prior felony conviction on their criminal record;
- Fugitives fleeing from the law;
- Mentally incapacitated people;
- People who are dependent on certain drugs or medication;
- People who are prohibited from gun ownership according to a court order; and
- People who did not pass a mandatory background check in order to obtain a firearm license.
Possession of a weapon may be considered criminal if the weapon is found in any of the following areas:
- In a courthouse or courtroom;
- Federal buildings, such as a post office;
- In an airport or onboard an airplane;
- Public and private schools, including in the no-weapons zones that surround schools;
- Mental health facilities;
- Childcare facilities;
- Religious institutions;
- State wildlife preserves; and
- Entertainment venues, such as theaters, sports stadiums, and amusement parks.
This is only a general list of locations where weapons are generally not permitted; this largely depends on the laws of each state. As such, there may be additional prohibited locations listed, and individual states might have their requirements.
An example of this would be how many cities heavily enforce bans on weapon possession due to the risks involved with having such a large population, as well as the amount of injuries that one incident can cause. Alternatively, some cities have enacted an open-carry policy, which allows a person to carry guns throughout the entire designated area as long as they have a permit to do so.
What Are Some Crimes Involving Gun Possession?
Gun crimes are generally divided into two general categories. The first category includes crimes associated with criminal possession of a gun. The second category includes crimes that begin as simple crimes, or misdemeanors, and are made into more serious felonies due to the use or presence of a gun in the commission of the crime.
While the Second Amendment of the Constitution provides the right to own a gun, not everyone is entitled to own a gun, and not every gun is legal to ordinary citizens. Additionally, each state has its own, unique gun laws.
The following is a generalized list of crimes that involve the possession of guns:
- Illegal Firearms: Specific guns are not legal for ordinary citizens to own. An example of this would be how all unregistered guns, guns that have been illegally altered such as those that use silencers, or guns that are only available for military personnel are not legal for ordinary citizens to possess;
- Felony Possession of a Firearm: Simply put, convicted felons are not allowed to own a gun;
- Persons Convicted of Domestic Violence: Similarly, those convicted of domestic violence and other related crimes cannot own a firearm. This includes those who are convicted of sex crimes, as well as pedophiles; and
- Violations of Gun Control Laws: Each state has unique gun control laws that place restrictions on the types of guns that can be owned within the state.
Additionally, people who have been declared mentally unfit or unstable are generally not allowed to legally own a firearm.
The use of a gun in the commission of a crime nearly always enhances the seriousness of the crime, and allows for considerably harsher punishment under the law. In general, a misdemeanor crime will be increased to a felony charge if a gun was used or present during the crime, even if that gun is fake but appears to be real.
An example of this would be the comparison between misdemeanor assault and assault with a deadly weapon. Misdemeanor assault is generally punishable by a short jail sentence, and/or a monetary fine. Alternatively, assault with a deadly weapon such as a gun will result in felony charges, which include a higher fine and/or longer incarceration. Battery, robbery, and carjacking are three examples of crimes that have harsher punishments when a gun is involved.
Are There Any Defenses For Crimes Involving Guns?
As was previously mentioned, while the U.S. Constitution provides citizens with the right to own and bear arms, there are many restrictions placed on when and how guns can be used. Additionally, each state has a set of laws that regulate the use of firearms in the state. These facts heavily influence whether there is any defense for a crime that involves a gun.
Because guns are considered to be deadly weapons, they generally cannot be used for self-defense unless the attacker is already using or threatening with deadly force. Deadly force, also known as lethal force, is physical force applied by one person to another that has the potential to cause serious bodily injury or death.
An example of deadly force would be law enforcement using a deadly weapon to subdue the perpetrator of a crime. Another example of this would be how the police might fire a gun in order to stop a perpetrator from fleeing the police after committing a violent felony.
In order for this to serve as a defense, the use of deadly force must be justified by the circumstances at the time the force is used. It can generally be used in extreme circumstances when necessary, and when lesser means of applying force would be inadequate or unavailable.
Do I Need A Lawyer For Help With Crimes Involving Guns?
If you are facing charges for a crime involving a gun, you should consult with a local criminal defense lawyer. Your attorney can help you understand your legal rights and options according to your state’s specific gun possession laws, and will also be able to represent you in court, as needed.