Criminal possession of a weapon is the unlawful possession of a weapon by an individual. A weapon is an object which may be used to:
- Injure; or
- Cause death.
Depending upon the item and the circumstances, the weapon may be classified as either non-lethal or deadly. Examples of non-lethal and deadly weapons may include:
- Pepper spray;
- Explosives; and
Under the law, an individual is in possession of an object when they have immediate physical contact with the object or control over it. The criminal element of the definition refers to the type of weapon, the individual in possession, or the possession itself.
In most cases, for an individual to have criminal possession of an item, they are required to have knowledge from the beginning that the item they possess is illegal. Or, if after they discover the item is illegal, they remain in possession of it regardless of that fact.
When is Gun Possession a Crime?
Gun possession is limited by individuals by gun control laws in an effort to ensure the safety of gun owners as well as those around them. The legality of gun possession will depend on several factors, including:
- The individual’s age;
- Their background;
- The type of gun which is possessed; and
- Whether the individual is in violation of concealed carry laws.
What are the Individual Restrictions on Gun Possession?
Gun possession can be restricted based upon numerous factors, including the age of the individual or the type of firearm and the individual’s background. Federal laws prohibit the sale of a handgun to any individual under the age of 18.
This age restriction does not apply for long guns, such as rifles and shotguns. Each state, however, has the ability to implement stricter age requirements.
Because of this, the laws regarding purchase may differ by state. However, the minimum age to purchase a handgun in many states is 21 years of age.
An individual’s background may also make it illegal for them to possess a firearm. Federal laws prohibit the same of a firearm to any individual who:
- Has been charged with or convicted of a crime in federal court, which carries a possible sentence of over a year in jail. In general, these are felonies;
- Has been convicted of or charged with a crime in state court that is a felony or is a misdemeanor punishable by more than 2 years in prison;
- Is a fugitive;
- Is known to be addicted to controlled substances. This requires that the individual has “lost the power of self-control with reference to the use of controlled substance” and is sometimes inferred from multiple recent drug convictions;
- Has been found by a court or other lawful authority to be a danger to themselves or others or who has been involuntarily committed for drug or alcohol abuse or mental health issues;
- Is subject to a court order related to domestic violence or a serious mental condition or has been convicted of certain crimes;
- Is in the U.S. illegally; or
- Was dishonorably discharged from a branch of the United States Military Service.
Similar to the age requirement, every state also has the ability to be more strict than federal laws regarding which individuals are permitted to possess a firearm based upon their background.
What are the Location Restrictions on Gun Possession?
There are certain locations where gun possession is prohibited, even by an individual who is permitted to legally possess a firearm elsewhere. As previously noted, there are federal laws and state laws, which provide the states with the ability to be more strict.
Federal laws prohibit gun possession at the following locations:
- Federal facilities;
- Post offices;
- Airports and on airplanes, except:
- when the weapon is unloaded;
- is in a checked bag; and
- the airline was made aware of the weapon; and
- School Zones, K-12, except by individuals who have a state-issued concealed carry permit.
The majority of states prohibit firearms in courthouses as well as in other government-owned buildings. The laws, however, are often different for those individuals who have an open carry permit.
Other areas where firearms are commonly prohibited by a state includes:
- Bars or restaurants that serve alcohol;
- Polling places; and
- Daycare facilities.
If an individual is unsure of the laws of their state, a firearms attorney can provide them with advice regarding local restrictions.
What are the Restrictions on Specific Types of Firearms?
There are some states that prohibit specific types of firearms. Depending on the state an individual resides in, it may be illegal to possess:
- Assault weapons. These are semi-automatic guns with detachable magazines, such as AK-47s and M-16s;
- Ghost guns, which are firearms assembled from a kit or made with a 3D printer that are untraceable by law enforcement and often undetectable by metal detectors;
- Large capacity magazines. In general, magazines containing more than 10 rounds;
- Machine guns or fully automatic firearms which continue to fire bullets as long as the trigger is held down;
- 50 caliber weapons. Only a few states prohibit these; and
- Silencers, which are used to prevent other individuals from hearing the sound of gunfire or from seeing the muzzle flash.
What are the Restrictions on Gun Possession Types?
Restrictions on gun possession types may also be based upon the way the firearm is being held or carried by the owner. There are two main categories of carrying firearms, concealed carry and open carry.
Carrying a concealed firearm while in public may be a crime, depending on what state an individual is in. around 15 states do not prohibit the concealed carry of firearms.
The remainder of the states require an individual to obtain a concealed carry permit. In some states, obtaining this permit can be very difficult.
Carrying a firearm openly in public may pose a problem by intimidating individuals nearby. Around 5 states prohibit open carry entirely.
There are 15 states which require some type of permit or license in order to open carry. Open carry is allowed without a permit in approximately 30 states.
What is the Punishment for an Illegal Firearm Possession Conviction?
Although the Second Amendment grants the right to bear arms, it is not an absolute right. If an individual carries a firearm in violation of one of the restrictions mentioned above, it may result in serious legal consequences.
Carrying a firearm while committing another crime frequently results in harsher punishments as well. If an individual has been convicted of a felony, they will almost always be prohibited from carrying a firearm.
In addition, being a felon in possession of a firearm carries stiff penalties. Most states, however, allow felons to restore their gun possession rights as long as they are not deemed dangerous to public safety and restoring their rights is not contrary to public interests.
Do I Need an Attorney for Help with Gun Possession Charges?
Yes, it is essential to have the assistance of a criminal lawyer for any issues, questions, or concerns you may have related to a gun possession charge. If you are unsure of the laws in your state, if you have been charged with illegal possession of a firearm, or you want to attempt to have your gun possession rights restored, your lawyer can help.
The possible consequences and penalties of violating gun laws make gun possession or gun charges especially serious and not something you would want to take your chances with. The consequences of a felony conviction may affect more than just your criminal record. It can also affect your employment and even child custody.