FEDERAL FIREARM LAWS
The federal firearm laws are complex. They carry potentially serious penalties. Offenses include selling guns without a license and possessing a gun as a convicted felon. There are dozens of federal criminal laws that cover the purchase, sale, possession, and use of firearms. Our federal criminal attorneys have helped numerous clients win federal gun cases.
Not only are the laws complicated, but they give federal prosecutors a daunting toolkit for prosecuting individuals. The result has been a massive increase in prosecutions under federal firearm laws. As firearms prosecutions are on the rise across the nation, it is more important than ever for people to understand their rights according to the law.
Federal Gun Legislation
Two main laws govern federal gun offenses: 18 U.S.C. § 922 and 18 U.S.C. § 924. Here are some of the more common charges that federal prosecutor file
Unlicensed Guns Sale
Multiple federal firearm laws regulate gun sales, including licensing regulations and limits on transporting certain weapons across state lines. Pursuant to federal law, it is illegal to sell guns across state lines without a license. Selling guns without a license can get you a five-year prison sentence. 18 U.S.C. § 922(a).
Nevertheless, even licensed dealers need to be careful when selling guns, as federal firearm laws criminalize certain sales. According to 18 U.S.C. § 922(b), licensed firearms dealers are prohibited from selling guns to:
- Minors children under 18 years old for rifle and shotgun sales, and 21 years old for other types of firearms
- Any individual the dealer has reason to believe does not reside in the same state as the dealer
- Certain persons prohibited from owning a firearm under federal or state law. This includes convicted felons and undocumented immigrants
In addition, licensed dealers are prohibited from selling certain kinds of firearms, including machine guns and “destructive devices”. These are defined as bombs, grenades, mines, and rockets. (18 U.S.C. § 922(b)(4)). A conviction on charges of illegal sale of guns can lead to a prison sentence of 5 to 10 years.
“Straw Purchasers” and Persons Who Make False Statements
Gun buyers need to be just as careful as gun sellers. The statute 18 U.S.C. § 922(a)(6) makes it unlawful for a person buying a gun to make a false statement or misrepresent his identity to the dealer.
Buying a gun often requires filling out forms. It is critical that the buyer discloses all relevant information and take care not to make any misrepresentations to the dealer or the government. The consequence of failing to do so can include a fine and a ten-year prison term.
Certain persons who are prohibited from buying guns frequently attempt to buy them illegally through another person. The other person purchases the gun from the dealer on the prohibited person’s behalf. This third party is known as a “straw purchaser,” and these “straw purchases” can get the buyer a prison sentence of up to ten years.
Altering or Removing Serial Numbers from Firearms
Gun owners are required by law preserve the serial numbers on their firearms. Any individual who knowingly delivers, transports, or possesses a gun that has an altered or removed serial number can get convicted for violating federal law 18 U.S.C. § 922(k) and face up to five years behind bars.
Possessing a Machine Gun
There are certain guns which are completely illegal for civilians to own without a special license. For example, 18 U.S.C. § 922(o) criminalizes selling and owning “machine guns.” A machine gun is defined as weapons with the capacity to automatically shoot more than one bullet by a single pull of the trigger. Knowingly violating the law by being in possession of a machine gun can result in a ten-year sentence if convicted. Wielding or firing a machine gun during the commission of any crime can lead to a mandatory minimum sentence of thirty years.
Firearm Possession in a School Zone
Signs outside of schools declaring the campus a “gun free zone” are a common sight. It is indeed a violation of federal law 18 U.S.C. § 922(q) for an individual to possess a firearm in a school zone. Knowingly violating this statute can result in a fine and up to five years in prison.
Being in Possession of a Stolen Firearm
Because the market for guns is so heavily regulated, it should come as no surprise that federal firearm laws forbid possession or dealing in stolen guns. Pursuant to 18 U.S.C. § 922(i) and (j) it is unlawful for any person, licensed or unlicensed, to transport or possess a stolen firearm or stolen ammunition, as long as the person knows the gun was stolen. The punishment for breaking this law includes a fine and up to ten years behind bars.
Felon in Possession (Possession of a Firearm by a Convicted Felon)
Second Amendment rights notwithstanding, federal gun legislation prohibits certain classes of people from owning firearms. Many of us are aware of laws prohibiting convicted felons from possessing guns, but the law also applies to those who have been simply indicted for a felony. The statute 18 U.S.C. § 922(g) lists several other classes of people who are categorically barred from owning a firearm, including:
- Fugitives from justice, including anyone who has fled any state to avoid prosecution
- Known drug addicts and drug users, as defined in the Controlled Substances Act
- Mentally ill persons or anyone committed to a mental institution
- Undocumented immigrants
- Persons who have been dishonorably discharged from the Armed Forces
- Persons who have been convicted of a misdemeanor crime of domestic violence
The Supreme Court has decided that a person can said to be “in possession” of a firearm even if they are not carrying the gun on their person. For the purposes of the law “possession” is defined as having the intent and ability to control a weapon. It is critical for gun owners not only to know the law, but to also be fully aware of their criminal history and legal status, as conviction for the unlawful possession of a firearm carries can end up in a ten-year term in prison.
Carrying or Using a Firearm During a Crime of Violence or Drug Trafficking Crime
Federal firearm legislation is especially harsh on those who use guns while they commit other crimes. The statute 18 U.S.C. § 924(c) sets mandatory minimum sentences for individuals who “use or carry a firearm” during the commission of a crime of violence or drug trafficking crime.
The potential minimum sentences are decided based on the type of gun and how the gun was utilized during the violent or drug trafficking crime.
Pursuant to Subsection (c):
- A minimum five-year sentence is imposed for the mere possession of a gun during the crime;
- A minimum seven-year sentence is imposed for “brandishing” a gun during the crime;
- A minimum ten-year sentence is imposed if the gun is discharged during the crime;
- If the gun is a short barreled rifle or shotgun, then the minimum sentence imposed is ten years; and
- If the gun is a machine gun or a “destructive device,” then the minimum sentence is thirty years.
This law is especially severe in cases where a defendant faces multiple convictions or has a prior conviction of using or carrying a gun during a crime of violence or drug trafficking crime. Upon the second conviction for carrying a gun during a violent crime or drug trafficking offense, a minimum sentence of twenty-five years is imposed. In the even that the gun in the second conviction is a machine gun or destructive device, the minimum imposed is sentence is life in prison.
On top of that, the law mandates that a sentence for a conviction under 18 U.S.C. § 924(c) must not run “concurrently” with any other sentences. This means that an individual convicted under Subsection (c) is required to serve the minimum sentence in addition to any other sentence the individual is already serving.
Strong Legal Defenses to Federal Gun Charges
Mercifully, there are solid defenses and exceptions to federal gun laws. For instance, an exception exists when a person possesses a gun due to duress or out of necessity. In other words, the possessor of the firearm was under an unlawful and imminent threat of death or serious bodily injury. Also, antique weapons are exempted from numerous federal gun laws. An experienced federal firearms defense attorney will also bring arguments under the rules of evidence and the U.S. Constitution.
In numerous federal gun cases, law enforcement officials seize weapons after conducting a search. The Fourth Amendment prohibits unreasonable searches and seizures. In situations where the officers seize a gun in the course of an unlawful search, a smart defense lawyer will move to have the gun excluded from evidence. If a firearm is seized after searching an individual’s car without probable cause or consent, for example, it cannot be used as evidence against that individual. To search a residence, officers must have a valid search warrant. If not, then the property they seize can be excluded from evidence.
If the prosecution is unable to admit the firearm in question into evidence, that makes it difficult for them to prosecute a firearms case. That’s why it is so crucial to ensure officers are complying with the law when they search for evidence.
Most crimes require that a defendant have acted with criminal intent when he allegedly broke the law, and federal firearms laws are no different.
Most of the federal firearms legislation requires that an individual act “knowingly” when violating the law. For example, a conviction for possessing a gun with an altered serial number requires not only a defendant’s possession of a gun with an altered serial number, but additionally that the defendant had knowledge that that the serial number was altered or removed while the gun was in his possession. Likewise, a gun buyer needs to have known that his or her statements to the dealer are false for the sale to be an illegal purchase.
Because the government bears the burden of proof for proving every element of an offense, being able to demonstrate that a defendant did not act “knowingly,” or with criminal intent, can make all the difference in a federal firearms case.
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