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FIRM ARTICLES
Illegal Possession of Weapons Federal & State Issues
By Vince Imhoff, Esq. and Sapana Shah
From Wild West heroes, to shows like Miami Vice and the A-Team, and to big-budget action movies like Lethal Weapon, Rambo and Die Hard, the visual media has not only glamorized the gun, but also shown exactly how pervasive weapons are in our culture and society. Though we frequently see guns in cartoons and television dramas and can readily find fake weapons in toy stores, the reality of weapons possession is nonetheless, a very serious and complicated matter.
Background
The issue of weapons rights is one of the most controversial debates in the United States. The central point of contention behind the debate is the interpretation of the Second Amendment of the United States Constitution: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. The Amendment originally referred to the right of organized militia to possess firearms; while gun control advocates, today, endorse this original intention, gun rights groups, particularly those led by the National Rifle Association believe that such rights enshrined in the Amendment are inherently granted to all law-abiding citizens. As a result, weapons possession rights have become a matter of federal, state, and local legislation. To complicate matters further, there is little uniformity among states regarding weapons possession laws, particularly as it applies to the primary regulatory issues of weapon type, and the age and criminal record of those in possession of weapons.
Federal Legislation
Among US historys most glamorized outlaws are the 1930s gangsters of Bonnie and Clyde, John Dillinger, etc., whose crimes led the federal government to expand gun control measures to the federal level. Since then, Congress began passing initiatives regulating the sale of fully automatic firearms like machine guns, mandating that gun sellers be licensed, and prohibiting persons convicted of violent felonies from purchasing guns. With the assassinations of President John F. Kennedy, Martin Luther King, and Bobby Kennedy in the 1960s Congress enacted the Gun Control Act of 1968 which regulated imported guns, expanded gun?dealer licensing requirements, and expanded the list of persons not eligible to purchase guns to include persons convicted of any non?business related felony, minors, or persons found to be mentally incompetent, and users of illegal drugs. In 1990, legislation was passed which banned the manufacturing and importation of semi?automatic assault weapons. In 1994, the Clinton Administration imposed the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103?322) also known as the 1994 Assault Weapons Ban, which prohibited 19 different types of military assault weapons; although this ban expired in September 2004, some states, including California and New York, have instituted similar provisions to maintain proscription of assault weapons.
State Legislation
Each state defines specific regulations for the sale and possession of weapons, including those specific to concealed and assault weapons, the background and criminal history of the owner, as well as licensing and purchasing requirements. Generally, about seven states prohibit concealed weapons; in over half the states, all non-felons are able to obtain licenses to carry concealed weapons. Only one state, Vermont, has no licensing or permit requirement. Currently, twenty-one states either prohibit or substantially regulate this secondary market for minors; more than twenty states regulate all secondary sales through registration or licensing requirements. Because minors and criminals can easily obtain weapons through the secondary market in those states that do not have such regulationa phenomenon known as the "gun show" loopholemany states, including California, New Jersey, Hawaii, Connecticut and Maryland have enacted bans on certain types of automatic weapons. Four statesSouth Carolina, Virginia, Maryland, and Californiahave laws that limit legal purchases of handguns to one a month per buyer. (David L. Raybin, Stick to Your Guns: Restoration of Tennessee Firearms Rights, Tennessee Bar Association Quarterly, March 2003).
California law, in particular, restricts the sale of all semiautomatic assault weapons that have specific military features such as pistol grips and folding stocks as well as a list of assault weapons and their copies such as the AK47 and Uzi. People who owned such assault weapons prior to the law are required to register the weapons and may not sell or give them to anyone else in the state. State law also restricts the sale of rapid-fire ammunition magazines in excess of 10 rounds. A minor may not possess a handgun, except with written permission or under the supervision of a parent or guardian. Furthermore, it is a misdemeanor to manufacture or cause to be manufactured, import into California for sale, keep for sale, offer or expose for sale, give, or lend any "unsafe handgun. (California Penal Code Section 12020).
Prior Criminal Record and Weapons Rights
Federal Legislation Where a person is under indictment for a felony ? even before they are convicted ? it is unlawful to acquire firearms. (18 U.S.C. 922(n)). Once the person has been convicted then it may be unlawful to possess firearms depending on whether the crime is a felony or a misdemeanor. Generally, it is permissible to possess weapons following a misdemeanor conviction except during the term of the sentence when firearm prohibitions are universally in effect as a condition of probation. Another exception is where the misdemeanor conviction is for domestic assault. Here, federal law imposes a permanent ban on firearms (18 U.S.C. 922 (g)(9)). Federal law prohibits firearm possession following ANY state or federal felony conviction even if the sentence was suspended (18 U.S.C. 922(g)(1)).
State Legislation California prohibits anyone convicted of a felony, or who is a drug addict, present or former mental patient, ever committed for mental observation, or acquitted by reason of insanity to own or possess any firearm. People with certain misdemeanor convictions involving force or violence may not possess or own any firearm within 10 years of the conviction. A person who has been adjudicated as a juvenile offender or delinquent for any offense, which would be classified as a felony or misdemeanor involving force or violence if committed by an adult, may not own or possess any firearm until age 30.
Restoration of Civil Rights While federal legislation and legislation in many states prohibits anyone convicted of a felony from possessing a firearm, a restoration of civil rights, or an expungement or pardon of a convictionas a matter of State lawmay allow a felon to regain weapons possession rights (18 U.S.C. 921(a)(20)). Generally, a state restoration of rights may still impose restrictions on possessing certain types of weapons or may even retain federal mandates notwithstanding a state restoration or rights. In California, if a felon meets proper requirements, he or she may apply for the Certificate of Rehabilitation and Pardon or the Direct Application for Pardon, the latter made directly to the Governor. Under California Penal Code Section 12021, the person granted a full and unconditional pardon by the governor may lawfully own and possess any type of weapon that may be lawfully owned and possessed by other citizens in California.
Defending Your Rights
Federal, state and local legislation governing various regulatory weapons issues consistently undergo significant changes. Particularly important is reconciling the differences that exist between federal and state legislation and understanding the rights as a non-felon US citizen as well as a person with a criminal conviction. Clearly, the right to own and possess weapons that is embedded in the Second Amendment is susceptible to narrow interpretation, thereby increasing the importance of other forms of relief in order to retain fundamental weapons possession rights. A person with a criminal conviction may very well restore these rights by obtaining a Certificate or a Direct Pardon by the governor of the jurisdiction. Additionally, if a person is found with an unlawful possession of weapons, it is possible that the situation and method in which the evidence was procured is illegal; in order to protect oneself from the serious penalties that include lengthy prison or jail time and fines, an understanding of federal and state search and seizure laws becomes particularly imperative.
Due to the constantly evolving laws, maintaining weapons possession rights now requires a thorough understanding of both fundamental Constitutional protections and civil forms of relief. Thus, while the likes of Billy the Kid and Elliot Ness have fashioned the glorification and desensitization of weapons in nearly all aspects of popular culture, the reality of possessing weapons is the possibility of facing severe penalties for illegal usage and the necessity for understanding all legal protections to prevent unwarranted convictions.