Can a Spouse of a Convicted Felon Own a Firearm in Massachusetts? 

March 03, 2022 by Anthony Riccio

Generally, the spouse of a convicted felon has the right to own a firearm in the state of Massachusetts. However, in doing so the convicted felon may be at risk of a possession charge.

The right to own firearms can get murky. While the Second Amendment affords all US citizens the right to own a gun, convicted felons are prohibited. When a married couple shares a home with firearms, the limited rights of one spouse may interfere with the rights of the other.

What Laws Govern Owning Firearms in Massachusetts?

Massachusetts has long been a supporter of stronger gun controls. The state boasts some of the strictest firearm-related laws in the nation, regulating the possession, sale, and use of all firearms and ammunition:

  • Firearm Identification (FID): Residents are required to have a Firearm Identification (FID) or permit to carry a firearm
  • License to conceal and carry (LTC): Conceal and carry permits are restricted and vary depending on location and use
  • FIDs and conceal and carry permits are issued by law enforcement: In some cases, officers exercise discretion when issuing permits and require applicants to justify why they need a firearm
  • Required background checks: To sell a firearm, the seller must verify the buyer’s FID and other related permits with the Department of Criminal Justice Information Services

Felonies and misdemeanors generally prohibit a person from attaining an FID. However, Massachusetts gives leniency to those convicted of non-violent crimes. A person may be qualified to receive an FID five years after release, probation, or parole. Felonies and misdemeanors will permanently disqualify an individual from an LTC

How Prevalent is Gun Violence in Massachusetts?

Harsh firearm control laws have led to lower gun violence in Massachusetts. According to The Educational Fund to Stop Gun Violence, in the last reporting year:

  • There were 247-gun deaths in Massachusetts
  • 38% of gun-related fatalities are due to homicides
  • 57% of gun-related deaths are attributed to suicides
  • Massachusetts has the lowest gun-related death rate in the US
  • The state also has the lowest firearm homicide rate in the nation

When data reflects a positive correlation between harsh firearm laws and lower violence, officials may be encouraged to prosecute felons in possession of firearms to the fullest extent of the law. The “tough on crime” rhetoric is reflected in mandatory minimum sentences throughout the country. 

The United States Sentencing Commission released a report focusing on the prevalence of felons illegally possessing firearms. The data shows:

  • Across the nation, nearly 85,000 convictions of felons in possession of firearms were reported to the sentencing commission
  • 95.6% were sentenced to imprisonment
  • Average sentences varied due to mandatory minimums:
    • Those convicted of possessing and transporting firearms represented 85% of all cases and were sentenced to an average of 6 years
    • Others convicted of possessing a firearm while trafficking drugs were given a mandatory 15-year minimum sentence or more

Convicted felons who live with a person who legally possesses a firearm are taking a significant risk. Mitigating the risk will require special attention to the legal doctrine of possession, “constructive possession.” 

What is Constructive Possession?

Federal and state firearm laws protect a spouse’s right to own a gun and make convicted felons vulnerable to criminal possession charges. The Second Amendment protects a spouse’s right to own a firearm. However, the potential consequences a convicted felon may face in close proximity to a gun can be extreme.

Under Massachusetts General Laws, a convicted felon found in possession of a firearm will face a mandatory minimum sentence of five years in prison. Spouses will need to weigh the benefits of one spouse rightfully owning a gun and the possible consequences to the other. 

It is essential to understand that owning and possession are different legal concepts. Under federal law, a convicted felon cannot own a firearm. Possession is not merely holding a gun. The control of a firearm has a different meaning under the doctrine, “constructive possession.”

Constructive possession is a legal doctrine that dictates a gun does not have to be in a convicted felon’s direct control. Instead, possession can extend to being in the same room, car, or residence. For a person to have constructive possession over a firearm, two factors must exist:

  1. The felon had knowledge that the gun was in the house
  2. The offender had the ability and intent to control the firearm

When arguing cases involving the illegal possession of a firearm by a felon, the fact that a convicted felon is in the same home as the gun is not enough to prove knowledge of the weapon or the ability to control it. Instead, the offender must have had personal knowledge that it was in the home. 

For example, suppose a gun-owning wife leaves the weapon on the nightstand every night. Her husband is a convicted felon. He would meet both criteria above since he undoubtedly has knowledge of the firearm’s existence and would have easy access to controlling the gun. 

Conversely, suppose the same gun-owning wife has the weapon in a locked safe in the closet. Her husband knows a gun is in the house, but he does not know where and does not have access. He does not meet the criteria for constructive possession.

Unfortunately, real-world scenarios are rarely this straightforward. Proving whether a felon knew about a firearm in the house can be challenging and may rely on circumstantial evidence. If the gun is in a safe, proving the spouse did not have access to the code offers another set of challenges.  

Can a Convicted Felon Restore Their Right to Bear Arms? 

Convicted felons may have served their sentence, but their rights are not fully restored. For a felon to regain the right to have a firearm, there are two complex methods:

  • If the felony results from an old criminal record, one option to restore gun rights is to overturn the conviction or have it expunged, if eligible, so that it restores a person’s full constitutional rights. 
  • A convicted felon may also petition the Firearms Licensing Review Board. This path may only be taken once and presents many challenges.

Restoring your right to bear arms may be a way to shield you and your spouse from any charges that may result from having a firearm at your residence. Due to the numerous complications of possession and federal and state laws, it may be in your best interest to seek the counsel of an attorney from Riccio Law.