Losing Your Firearm Rights
Written by: Timothy E. Zerillo
Everyone understands that certain individuals cannot possess firearms. For example, most people understand that felons cannot possess firearms. You may wonder who else cannot possess firearms in addition to felons. Or, you may correctly wonder what possession means in this context.
The expansion of federal law in this area over the past several decades has captured whole groups of individuals in a very wide net of possession disqualification. Since the last thing anyone wants is a Possession of a Firearm by a Disqualified person charge in Federal Court, it is worth examining the three basic elements the government needs to prove in such a case. These elements apply to possession or receipt of firearms or ammunition. The elements are:
2. That you are, in fact, disqualified and
3. Interstate nexus.
In Part One of this article, we will briefly examine the first element, possession.
The first category of possession is the one we actually most imagine to be possession. A game warden stops me in the woods while hunting and observes me with my rifle on my shoulder. That is actual possession.
In addition to actual possession is the more complicated constructive possession. Under federal law, constructive possession will be punished to the same degree as active possession if the possessor is disqualified. Constructive possession of a firearm requires that the alleged possessor knowingly has the power and intention to exercise dominion and control over the firearm. See e.g. United States v. McLean, 409 F.3d 492 (1st Cir. 2005). This dominion or control may be through other people. Further, multiple individuals may constructively possess a firearm. Under a constructive possession theory, the actual ownership of the firearm is not an element the government is required to prove.
So, now you know what possession of a firearms or ammunition means under federal law. The next step is to determine the factors that disqualify certain people from possessing. We will examine that next time.
Timothy E. Zerillo is a shareholder in the firm of Hallett, Zerillo & Whipple, P.A. His practice focuses on criminal defense, complex civil litigation and appeals. He is licensed to practice in Maine, the First Circuit Court of Appeals and the Supreme Court of the United States. He has been nominated to New England Super Lawyers for the past 5 consecutive years. He is a Past President of the Maine Association of Criminal Defense Lawyers and is a President’s Award winner for that organization. He was given a Client’s Choice award for Criminal Defense for 2014 from www.AVVO.com. He is currently editing a book he authored for James Publishing with the working title Defending Specific Crimes. For more about Attorney Zerillo, visit his website at www.HZWlaw.com