Criminal Possession of a Weapon

criminal-possession-of-a-weaponA person may be charged with criminal possession of a weapon if that person has actual (the weapon is on the person, under direct physical control, or within reach) or constructive possession (the person has knowledge of where a weapon is and control over that area) of a deadly weapon.

In addition a person may be charged with illegal possession of weapons if the person is either not allowed to possess such a deadly weapon as a condition of a prior conviction or the possession is inconsistent with the laws for registration and possession of deadly weapons. Most states have a list of weapons that are illegal to possess or that require a permit to possess.

Deadly weapons include but are not limited to guns, ballistic knifes, belt buckle knifes, cane swords, Billy clubs, large-capacity ammunition magazines, ammunition with (or containing) an explosive agent, camouflaging firearm containers, any gun not immediately recognizable as a firearm, or metallic knuckles. However, since the advent of airline restrictions as a precaution to terroristic threats, the definition of a deadly weapon can include any object capable of inflicting death or injury. In reality, it is impossible to list everything that could constitute a dangerous weapon, and legislature has left the definition up to the courts to define on a case-by-case basis, U.S. v. Dishman, 486 F.2d 727, 730 (9th Cir. 1973).

Debates about the laws surrounding illegal possession are ongoing and heated, and center on the interpretation of the Second Amendment of the United States that states that law-abiding citizens have a right to bear arms. As a result of the many debates surrounding the issue of gun control and the Second Amendment, little uniformity exists among the states regarding weapons possessions laws, making the conviction of a charge of illegal possession of weapons complicated.

Each state has its own specific regulations for the sale and possession of weapons that includes the particular requirements that have to be met by an individual to possess concealed and assault weapons, the background and criminal history of the owner of the weapon, as well as the licensing and purchasing requirements of such possession. Seven states prohibit concealed weapons, and in over half of the states, all non-felons are able to obtain a license to carry a concealed weapon. Vermont, however, has no licensing or permit requirements for weapon possession. Thus, questions surrounding the exact nature of criminal possession of a weapon charges are rampant, and with each state having differing sets of regulatory requirements murky, at best.

Federal law makes it unlawful to possess firearms after a felony conviction of any kind, even if the sentence was suspended (18 U.S.C. § 922(g)(1). However, it is permissible to possess a weapon following a misdemeanor conviction except during the term of the sentence when firearm prohibitions are universally in effect as a condition of probation. An exception is when a person has been convicted of a domestic assault misdemeanor under which federal law bans the possession of a firearm for life (18 U.S.C. § 922(g)(9). And while federal law and most state laws prohibit anyone convicted of a felony from possessing a firearm, a restoration of civil rights or expungement or pardon of a conviction may allow a felon to regain weapons possession rights (18 U.S.C. § 921(a)(20).

Federal, state and local laws governing weapons regulatory issues undergo significant changes often. Reconciling the differences that exist between federal and state legislation and understanding the rights as a non-felon United States citizen or a person with a criminal conviction is complicated. Since 9/11, new laws have broadened the scope of punishable conduct, and courts appear to err on the side of the prosecution when a weapons possession charge is the issue. Given the potential consequence of ten or more years in federal prison for weapons possession, it is wise to be up-to-date on what is and what is not a weapon.

If you violate an illegal weapon law, you have generally committed a felony and could face criminal punishment that can include jail time (from one to five years), fines, (from $100 to $1000), probation or parole, loss of the right to own a deadly weapon, community service, and/or loss of your driver’s license in addition to other penalties determined by various state and local statues. Criminal possession of a weapon is a serious offense.

Defenses for a charge of illegal possession of weapons may potentially include the showing of insufficient evidence concerning the possession, proof of factual innocence of the person charged, or evidence that was obtained illegally in violation of federal or state search and seizure laws.

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