Possession of a Firearm

This post will answer some frequently asked questions about possession of a firearm.

What does the government need to show to prove a person illegally possessed a firearm?

In order to prove that a defendant unlawfully possessed a firearm, the Commonwealth must prove all of the following beyond a reasonable doubt:

  1. That the defendant:
  • Possessed an item
  • Had the item in question under his or her control in a vehicle

2. That the item meets the legal definition of a “firearm”

3. That the defendant:

  • Knew that he or she possessed that firearm
  • Knew that he or she had this item under his or her control in a vehicle

If there is evidence that the defendant has a firearm ID card, the Commonwealth must additionally prove that the defendant did NOT have a valid firearm ID card.

If there is evidence that the defendant qualified for an exemption to possessing a valid firearm ID card, then the Commonwealth must prove that the defendant did NOT qualify for one of the exemptions in the law that are a substitute for having a valid firearm ID card.

Note that possession of a firearm is a different legal concept from carrying a firearm.

What is the legal definition of a firearm?

Commonwealth law defines a firearm as:

“[A] pistol, revolver or other weapon…loaded or unloaded, from which a shot or bullet can be discharged and…the length of [whose] barrel is less than sixteen inches.”

This definition can be broken down into three requirements:

  • That the item must be a weapon
  • That the item must be capable of discharging a shot or bullet
  • That the item must have a barrel length of less than 16 inches

Note that “barrel length” refers to the portion of a firearm through which a shot or bullet is driven, guided or stabilized and includes the chamber.

Also note that as long as the item was a conventional firearm, the Commonwealth is NOT required to prove that the defendant knew that the item met the legal definition of a firearm.

Can it be illegal to transfer possession of a firearm?

Under Massachusetts law, a person can be punished for unlawfully transferring possession of a firearm as well as unlawfully possessing the firearm him or herself. Such an unlawful transfer is applicable to not only firearms, but also rifles, shotguns, or ammunition.

How can a person legally possess a firearm?

With a firearm ID card or a legal exemption from the requirement of a firearm ID card, a person may legally possess a firearm.

Note that the Commonwealth is NOT required to prove that the defendant knew that the law required him or her to have a firearm ID card before:

  • Possessing a firearm
  • Having a firearm under his or her control in a vehicle

Does an expired firearm ID card exempt me from being punished?

Yes, one of the exemptions to the requirement of a valid firearm ID card provided by law is for certain persons with an expired firearm ID card.

The exemption is intended to exempt from criminal punishment anyone whose license(s) became invalid inadvertently but who would otherwise not be disqualified from holding a valid license.

The defendant is entitled to this exemption if:

  1. His or her license to carry was expired

2. He or she had not been notified of one or more of the following:

  • Revocation or suspension of the license
  • Suspension of the license
  • Pending revocation of the license
  • Pending suspension of the license
  • Denial of a renewal application

Who has the burden of proving an expired firearm ID card exemption does not apply?

The Commonwealth has the burden of establishing beyond a reasonable doubt that the exemption of an expired firearm ID card does not apply.

To prove this, it must prove beyond a reasonable doubt one of the following:

  1. That the defendant NEVER had a valid firearm ID card
  2. That the defendant had been notified that the license:
    • Was revoked
    • Was suspended
    • The revocation was pending
    • The suspension was pending

And that the defendant had been notified of the denial of an application to renew his or her firearm ID card.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH UNLAWFULLY POSSESSING A FIREARM, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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