The Second Amendment to the U.S. Constitution guarantees to each citizen the right to bear arms. This constitutional amendment has been a cornerstone of American rights, but has also become a source of much controversy and fierce partisan debates in recent years. Though the Second Amendment guarantees the right to bear arms, each state reserves the right to regulate the use and ownership of such weapons. There are two very distinct statutes that you may face when found with a firearm. There is a big difference between being found in a home or business andbeing found in a car or your person outside your residence. I highlight the differences below.
1 Illegal Carrying of Weapons
Massachusetts General Laws Chapter 269 Section 10(a) makes it illegal to knowingly possess a loaded or unloaded firearm if:
- You are not present in your own residence or place of business
- You do not have the required firearm license
- You possess an illegal weapon, such as a sawed off shotgun or machine gun
If you are found in possession of an unlicensed weapon, carry your weapon outside of your home or place of business without the license to do so, or possess a dangerous weapon, you will be sentenced to a mandatory minimum of 18 months’ imprisonment. If you are found in possession of a machine gun or sawed off shotgun, you could be sentenced to life imprisonment.
2 Possession of an Unlicensed Weapon at Home or Work
Massachusetts General Laws Chapter 269 Section 10(h)(1) makes it illegal to possess a firearm, rifle, or shotgun without a license or permit—even if you possess it merely in your home or place of business. You face a maximum sentence of 2 years in the house of corrections, but there is no minimum mandatory jail sentence for violation of this provision.
Possession of a Firearm in Commission of a Felony
If you have been charged with a felony and possessed a firearm during its commission, you can be charged with an additional criminal charge. Massachusetts General Laws Chapter 265 Section 18B sets forth the crime of possessing a firearm while committing a felony. A conviction for possession of a firearm while committing a felony will result in a mandatory minimum sentence of 5 years’ imprisonment. If the weapon was a “large capacity” one, the minimum sentence you can receive is 10 years’ imprisonment. These sentences are in addition to whatever sentence you receive on the underlying felony.
Carrying a Loaded Firearm While Under the Influence of Drugs or Alcohol
Massachusetts General Laws Chapter 269 Section 10H makes it illegal to carry on your person or possess in your vehicle a loaded firearm while under the influence of drugs or alcohol. It is not a defense that you have a permit to carry the weapon. You could face 2 ½ years imprisonment along with a $5,000 fine for violating this provision.
Illegal Discharging of Weapons
Under Massachusetts General Laws Chapter 269 Section 12F, it is illegal to discharge a firearm within 500 ft. of a dwelling without the owner’s permission. You could face 3 months’ imprisonment for a conviction of illegal discharge of weapons and fines. This is actually a fairly minor crime and have recently resolved this type of a case at the clerk-magistrate level below.
Defense to Firearm Charges
Motions to suppress evidence—These are often the only hope of winning a firearm case assuming the weapon is in working condition. Because the weapon is typically found in your home, vehicle or person, its difficult to argue you didn’t know about. You found a firearm in my bedroom? The “I had no idea it was there” defense doesn’t work too well given this scenario. “That gun you found in my glove compartment must have been put there by someone who had to have access and a key to my car” is also a bad argument.
Lack of possession—As I described above, most firearm offenses require that you be in possession of the weapon or firearm. The term “possession” is a complicated one in the legal field. Possession implies both control and power over a weapon. For instance, if you are a passenger in the example above then it might be difficult for the prosecutor to prove control or constructive possession absent an admission or fingerprints.Absent your knowledge of the weapon’s presence, along with your possession of it, youcannot be convicted of illegal carrying of a weapon.
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I have had tremendous success in the area of my practice and understand what needs to be done in order to increase your chances of obtaining a successful result. If you have questions, please contact me at my office at (508) 791-9001 or by cell phone at (508) 769-7995. You may also e-mail me Michael@criminaldefenseworcester.com or text me. I take great pride is a very quick response time and will promptly schedule a free initial consultation at your convenience. I have also begun to conduct quite a few meetings via FACETIME or SKYPE for those clients who are either out of state or have license issues.