Can a felon own a gun?

[seamusTX]

I know of one case where a guy(technically in violation)was forced to plead guilty to possession; if not, the feds would prosecute his wife for providing access. She owned her late father's guns.

Do you mind if I ask how any LEO knew what was in the home?

If you don't want to answer, I understand.

- Jim

[KBCraig]

Okay, let me expand on my prior statement about federal law.

Every single week when a new busload of federal inmates arrive, I see several who are serving sentences for "felon in possession of a firearm".

Most of the time, they were continuing their criminal ways, and just happened to get caught with a gun instead of drugs. But every now and then, I see someone who's lived a straight and narrow life after being convicted of a youthful indiscretion, only to wind up in serious trouble over this issue.

Case in point: I had an inmate who just didn't seem like the "inmate type", if you know what I mean. I read his file, then asked him about his case. Turns out he'd had "spirited" teenage years, and when he was 18 he served a year+ on a state charge (car theft, I think; joyriding).

He got out of prison as a changed man. He married, raised a family, shunned all his old criminal buddies, owned a hardware store, became a pillar of society, Sunday School teacher, PTA, Lion's Club, yada-yada... everything we hope for when a young man is released from prison.

Fast-forward 20 years... the DEA is investigating some of the guys he ran with as a kid, and want him to get information on them. He hasn't seen them since they got in trouble as teens, and tells the DEA he doesn't want anything to do with that whole bunch.

They don't want to take "no" for an answer. They keep pressuring. He keeps insisting he has nothing to do with his previous life. They ask to search his truck. He wants to prove he's a good guy, so he says okay.

His state (I think it was Wisconsin or Minnesota) allowed felons to own long arms for hunting. He had a hunting license, it was squirrel season, and he had a .22 squirrel rifle behind the seat of his truck. Feds said, "A-ha! Gotcha!" and sent him to federal prison for five years.

It didn't matter that his previous felony conviction was a state charge. It didn't matter that his gun possession was legal by state law. Even though the official charge was "felon in possession of a firearm", his real offense was "failure to cooperate with the feds".

This was the clearest example I've seen, although I've seen many others like it.

Kevin

[loosecannon]

The man belonged to an archery club. Personality differences with another member over club politics prompted the other guy to notify local and federal law offices.

[KBCraig]

I'm a layman, but...my knowledge of this question is up-to-date because of a gun-buddy friend who married a felon. The feds say no guns and no access to them. So, a gun safe keeps everybody out of trouble including the lawful owner, who might otherwise be charged with allowing access.

Correct: the key term is "constructive possession". To add to my previous example, I examined a case in the last couple of years, where a guy got out of prison, was staying with his brother until he could get on his feet, some LE agency was looking at the brother or some of his associates, and my guy wound up getting the mandatory five years because his brother (unbeknownst to him) had a shotgun in his closet.

Because it was unsecured, he had "constructive possession" of it: he could have accessed it at will.

(Which puts the lie to G. Gordon Liddy's claim that his wife keeps her revolver in the bedside drawer on his side of the bed. She might do so, but they're not legal.)

Suggest that your friend ask the ATF. I think that black powder stuff is excluded.

The federal laws only apply to the federal definition of "firearm". That means that black powder is excluded, as is anything manufactured before January 1, 1899.

A .45-70 rifle manufactured in 1898 is legal, but one manufactured in 1899 is not. But --lawyer logic is lovely!-- the ammo would be illegal for a felon to possess. No worries with black powder possession, since there is no "ammunition" involved.

Kevin

[carlson1]

I had a brother in law that when he was 18 robbed a convience store. He served about 3 years locked up and about another 10 on parole. He is now 58 without any problems whatsoever. He was arrested last month in crocket for Felon in Possession. He was on legal land, hunting license, and hunting with an East Texas JP. He is now out on bond.
Here is what he told me his attorney gave him. . . "Possession of firearms by felons: A convicted felon, regardless of where the conviction occurred, may not possess or use a firearm (as defined by Penal Code, §46.01) to hunt in this state. Under Penal Code, §46.01, a muzzleloading firearm is lawful if it is an antique or curio firearm manufactured before 1899 or a replica of an antique or curio firearm manufactured before 1899 that does not use rimfire or centerfire ammunition."

The voting thing I guess I am wrong. . . "Janet Heimlich reports from San Antonio on the voter registration efforts in Texas targeting ex-convicts. Texas is one of several states in which ex-cons who have served their sentences and completed probation are eligible to vote without a waiting period. About 800,000 are eligible. The project, called "Unlock Your Vote," hopes to register 10,000 new voters by November."

[seamusTX]

Thanks for the replies.

All of these incidents seem like miscarriages of justice in my book. Technical offenses that serve no good end.

(I've always thought Mr. Liddy was pushing his luck, too.)

- Jim

[stevie_d_64]

The feds say no guns and no access to them. So, a gun safe keeps everybody out of trouble including the lawful owner, who might otherwise be charged with allowing access.

I know of one case where a guy(technically in violation)was forced to plead guilty to possession; if not, the feds would prosecute his wife for providing access. She owned her late father's guns. This no access/no possession rule also applies to ammo.

This is where I had the rub with my brothers handler...

She told me that I could not have one in my posession at all when I was in proximity to my brother...Regardless if it was holstered, under my control, spare magazine in my back pocket, the whole smack...CHL and all...

I counted to ten and let it go...

She also told me that if he visited me at my home (even if she just heard about it), that she would find him in violation, and me complicite in allowing him to be around guns, even if they were locked up ammo and all in my gunsafe...

She said she'd just let the court sort it out...And if I raised a question (or in her words "stink" about it) she'd lower the boom...

There is just something here that kinda bugs me for some reason...I'm afraid to put my finger on it for fear I will poke a bigger hole in the dike...(pardon the pun)...

[KBCraig]

All of these incidents seem like miscarriages of justice in my book. Technical offenses that serve no good end.

You're absolutely right.

Lest anyone think I actually agree with the application of the law in those cases I cited, let me make it clear: Anyone who cannot be trusted with firearms should not be walking the streets.

Just as prohibition didn't work for alcohol and doesn't work for drugs, it also doesn't stop criminals from carrying guns. "Forbid" != "prevent".

If the sentence has been served, then full rights should be restored. By that, I include the right to own and possess firearms, the right to vote, the right to serve on a jury, and the right to serve in elective office.

Kevin

[KBCraig]

This is where I had the rub with my brothers handler...

She told me that I could not have one in my posession at all when I was in proximity to my brother...Regardless if it was holstered, under my control, spare magazine in my back pocket, the whole smack...CHL and all...

She's absolutely incorrect, and has no case law to back her up.

I counted to ten and let it go...

Wise choice.

She also told me that if he visited me at my home (even if she just heard about it), that she would find him in violation, and me complicite in allowing him to be around guns, even if they were locked up ammo and all in my gunsafe...

She said she'd just let the court sort it out...And if I raised a question (or in her words "stink" about it) she'd lower the boom...

You've obviously encountered a power-tripping peon, who wants to enforce the law as she wishes it to be, not as it actually is. IIRC from previous threads, she's a USPO, right? A long conversation with her supervisor is in order, followed by short but thoroughly documented correspondence with her supervisor's chain of command. (Note: USPOs work for the court system, not the DoJ.)

The upside: you and your brother would win in the long run. The downside: the minute she says he's violated, he goes to jail. (The double entendre of her "violating" him is deliberate, and appropriate.) We all understand about beating the rap, if not the ride; but for a convicted felon on supervised release, the "ride" is a helluva lot longer, and much harder to get off.

Kevin

[RPBrown]

So Kevin, if I understand you correctly (its early and I havent had all my coffee yet) he cannot own a firearm of any type except black powder nor can his wife unless its locked in a safe that he has no access to?

Nor can he ever go hunting again irregardless of state law?

[flintknapper]

So Kevin, if I understand you correctly (its early and I haven't had all my coffee yet) he cannot own a firearm of any type except black powder nor can his wife unless its locked in a safe that he has no access to?

Nor can he ever go hunting again irregardless of state law?

If I understand it correctly, it sounds as if he may both hunt with and possess certain types of firearms:

Under Penal Code, §46.01, a muzzleloading firearm is lawful if it is an antique or curio firearm manufactured before 1899 or a replica of an antique or curio firearm manufactured before 1899 that does not use rimfire or centerfire ammunition."

Most modern muzzle loaders would not qualify. Sounds like to me, they would be limited to a "flintlock" pistol or rifle, or one that incorporated a "wick and flashpan".

[Liberty]

So Kevin, if I understand you correctly (its early and I haven't had all my coffee yet) he cannot own a firearm of any type except black powder nor can his wife unless its locked in a safe that he has no access to?

Nor can he ever go hunting again irregardless of state law?

If I understand it correctly, it sounds as if he may both hunt with and possess certain types of firearms:

Under Penal Code, §46.01, a muzzleloading firearm is lawful if it is an antique or curio firearm manufactured before 1899 or a replica of an antique or curio firearm manufactured before 1899 that does not use rimfire or centerfire ammunition."

Most modern muzzle loaders would not qualify. Sounds like to me, they would be limited to a "flintlock" pistol or rifle, or one that incorporated a "wick and flashpan".

I don't see anything that in there that would restrict a cap and ball reproduction.
Some of these are actually fairlly sophisticated for home protection.

[flintknapper]

So Kevin, if I understand you correctly (its early and I haven't had all my coffee yet) he cannot own a firearm of any type except black powder nor can his wife unless its locked in a safe that he has no access to?

Nor can he ever go hunting again irregardless of state law?

If I understand it correctly, it sounds as if he may both hunt with and possess certain types of firearms:

Under Penal Code, §46.01, a muzzleloading firearm is lawful if it is an antique or curio firearm manufactured before 1899 or a replica of an antique or curio firearm manufactured before 1899 that does not use rimfire or centerfire ammunition."

Most modern muzzle loaders would not qualify. Sounds like to me, they would be limited to a "flintlock" pistol or rifle, or one that incorporated a "wick and flashpan".

I don't see anything that in there that would restrict a cap and ball reproduction.
Some of these are actually fairlly sophisticated for home protection.

Yes, I can see where you might be right. On the other hand, this makes it even more confusing, from the Texas Parks and Wildlife handbook:

Muzzleloader: Any firearm that is loaded only through the muzzle. Note: A cap and ball firearm in which the powder and ball are loaded into a cylinder is not a muzzleloader. Muzzleloader deer seasons are restricted to muzzleloading firearms only.

Possession of firearms by felons: A convicted felon, regardless of where the conviction occurred, may not possess or use a firearm (as defined by Penal Code, §46.01) to hunt in this state. Under Penal Code, §46.01, a muzzleloading firearm is lawful if it is an antique or curio firearm manufactured before 1899 or a replica of an antique or curio firearm manufactured before 1899 that does not use rimfire or centerfire ammunition.

[KD5NRH]

It didn't matter that his previous felony conviction was a state charge. It didn't matter that his gun possession was legal by state law. Even though the official charge was "felon in possession of a firearm", his real offense was "failure to cooperate with the feds".

Hmm...correct me if I'm wrong, but pretty much all federal gun laws exist purely under the auspices of interstate commerce, don't they? Has anyone ever tried to push something like this (other than U.S. v Lopez, but building on it, of course) up the appeals process on the grounds that possessing an item with no intent to transfer, much less transfer out of state, could hardly be classed as interstate commerce? Granted, it would be an expensive longshot, but someone with the extra cash could likely make a good run of it.

While they're there, I'd really like to see them get rid of the "transfer tax" on any intrastate NFA transaction. I'll settle for anything that continues to chip away at the piles of regulation that Wickard v Filburn "let the dogs out" on, though.

[seamusTX]

Hmm...correct me if I'm wrong, but pretty much all federal gun laws exist purely under the auspices of interstate commerce, don't they? Has anyone ever tried to push something like this (other than U.S. v Lopez, but building on it, of course) up the appeals process on the grounds that possessing an item with no intent to transfer, much less transfer out of state, could hardly be classed as interstate commerce?

I don't know in the case of firearms. The Supreme Court has ruled in a number of cases that even if you make something for your own consumption, it affects interstate commerce because you then do not need to buy the thing.

That's the basis for the feds going after people who grow their own pot.

- Jim