Laws governing firearms differ from state to state, and gun owners in Massachusetts should be aware of the laws that concern purchasing, storing, and transporting guns. However, the federal government also regulates firearms, including the restriction of some categories of guns, prohibition of gun ownership by certain types of individuals, and the involvement of firearms in particular crimes. To convict for a gun charge, the law requires the government to prove three things beyond a reasonable doubt
- That you committed the underlying offense;
- That you possessed, carried, or used a firearm during and about the commission of the offense; and
- The possession, carrying, or use was knowing and willful.
If facing federal gun charges, it is important to understand how they are different from state gun laws, and to consult with an experienced attorney who can expertly defend the case.
Restricted Types of Firearms Under Federal Law
Federal law regulates certain firearms that must be registered with the Bureau of Alcohol, Tobacco and Firearms (ATF). It is a federal felony to possess an unregistered short-barreled shotgun (a barrel of less than 18 inches in length) or rifle (with a barrel less than 16 inches in length), a machine gun, or silencer. Individual buyers or owners are required to pay a $200 tax, and to report any movement across state lines to the ATF. Owners must also pass an extensive background check.
Some states have banned the ownership of these classifications of firearms, such as California and New York.
Persons Restricted From Owning Handguns
Under 18 U.S.C. § 922, also known as the Brady Handgun Violence Protection Act, certain individuals are prohibited from owning handguns for business or personal use. The legislation was introduced after James Brady, the press secretary under Ronald Reagan, was shot during an assassination attempt on the former president. The gunman, John Hinckley, Jr., had been under psychiatric care before the shooting.
Individuals cannot legally possess a firearm if they:
- Have been declared mentally unfit in a court of law, or are being treated in a mental institution
- Were dishonorably discharged from the U.S. military
- Have escaped police custody
- Illegally use controlled substances
- Have been placed under a restraining order to protect their partner and/or their children
- Received a domestic violence misdemeanor charge
- Are residing in the United States illegally
- Have renounced their U.S. citizenship
Common Federal Gun Charges
Although the number of gun crimes that can be prosecuted by the federal government under 18 U.S.C. § 922 and 924 is extensive, three out of four federal weapons prosecutions are for the possession, transporting or receiving a firearm by a felon, which is punishable by up to 10 years in prison and/or a $250,000 fine.
The second most common federal gun charge is the possession, brandishing (displaying a firearm in order to intimidate another person) or discharging of a firearm in order to further a drug trafficking crime, or a crime of violence. These carry stiff mandatory minimum sentences: 5 years in prison for possessing a firearm, 7 years for brandishing, and 10 years for discharging. In the case that banned firearms such as a short-barreled shotgun are used, the mandatory minimum sentence increases to between 10-30 years, and if the conviction is a second offense, up to life in prison.
Although it is a very small percentage of gun charges prosecuted, the third most common federal gun charge is the unlawful possession of a firearm by an individual residing in the United States illegally.
It is also against federal law to:
- Make false or fictitious statements in order to purchase a firearm
- Sell or deliver a handgun to a juvenile person
- Unlawfully possess a firearm in a school zone
- Transport or ship a stolen firearm
- Transport, deliver or receive an unregistered firearm
Firearms trafficking laws are violated when a firearm is removed from the legal market to an illegal one, and charges are made in a few main scenarios.
Straw purchases refer to the crime of an individual buying a firearm on behalf of someone else, usually someone who is legally prohibited from purchasing or possessing a firearm themselves.
Theftis another primary source of trafficked guns, whether from a commercial dealer or a private owner. Many stolen firearms are subsequently used in violent crimes.
Guns can be trafficked through private sellers Persons who want to acquire guns to use in a crime can avoid required background checks by purchasing firearms from another individual rather than a licensed dealer, who is compelled to follow the law. Individuals who would normally not pass a background check, such as convicted felons, or a person under a restraining order, can then acquire a firearm and divert them to illegal markets.
Firearms trafficking charges often are charged in conjunction with other federal crimes, such as illegal drug activity. When investigating these crimes, prosecutors look for signals that firearms were used to further the crime. A primary clue that a gun was purchased with the intent to use it in a crime if there was a gap of less than three years between the purchase and the crime taking place.
Federal law enforcement will also look for evidence that firearms used in a crime have crossed state lines. Even if a gun was legally purchased by a licensed dealer, if it is used in a crime in another state, prosecutors can charge the defendant with firearms trafficking. Tracing back a gun to its original owner relies on sales records kept by licensed dealers and matching evidence such as serial numbers with the firearm in question.
In a case involving drug trafficking or violent crime that also includes a firearms trafficking charge, the prosecution must not only prove that the gun in question was used to further the crime, but that the drug trafficking or violent crime also occurred. Without proof beyond a reasonable doubt of the primary crime, the firearm trafficking charge cannot be made.
If you have been charged with a federal gun crime, it is essential to have a legal team with the expertise to argue federal cases, and who will fight aggressively for your rights. Contact us today for a free consultation.