PERSONS DISALLOWED FROM POSSESSING FIREARMS
The Constitution gives us all the “Right to Bear Arms,” as part of the Second Amendment. The Founding Fathers clearly believed that this right was extremely important given that they included it directly after the Right to Free Speech. This right is not, however, without exceptions. The following article explains who is not permitted to own or possess guns in Nevada.
What is the legal definition of who is prohibited from owning or possessing a firearm?
The laws relating to removing or changing the serial number on a weapon are governed by NRS 202.253, and 202.360.
NRS 202.253 – Definitions.
As used in NRS 202.253 to 202.369, inclusive:
- “Explosive of incendiary device” means any explosive or incendiary device material or substance that has been constructed, altered, packaged or arranged in such a manner that its ordinary use would cause destruction or injury to life or property.
- “Firearm” means any device designed to be used as a weapon from which a projectile may be expelled through the barrel by the force of any explosion or other form of combustion.
- “Firearm capable of being concealed upon the person” applies to and includes all firearms having a barrel less than 12 inches in length.
- “Motor vehicle” means every vehicle that is self-propelled.
NRS 202.360 – Ownership or possession of firearm by certain persons prohibited; penalties.
- A person shall not own or have in his or her possession or under his or her custody or control any firearm if the person;
- Has been convicted in this State or any other state of a misdemeanor crime of domestic violence as defined in U.S.C. 921(a)(33);
- Has been convicted of a felony in this State or any other state, or in any political subdivision thereof, or of a felony in violation of the laws of the United States of America, unless the person has received a pardon and the pardon does not restrict his or her right to bear arms;
- Is a fugitive from justice;
- In an unlawful user of, or addicted to, any controlled substance; or
- Is otherwise prohibited by federal law from having a firearm in his or her possession or under his or her custody or control.
- A person who violates the provisions of this subsection is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and may be further punished by a fine of not more than $5,000.
- A person shall not own or have in his or her possession or under his or her control any firearm if the person:
- Has been adjudicated as mentally ill or has been committed to any mental health facility by a court of this State, any other state or the United States;
- Has entered a plea of guilty but mentally ill in a court of this State, any other state or the United States;
- Has been found guilty but mentally ill in a court of this State, any other state or the United States;
- Has been acquitted by reason of insanity in a court of this State, any other state or the United States; or
- Is illegally or unlawfully in the United States.
- A person who violates the provisions of this subsection is guilty of a category D felony and shall be punished as provided in NRS 193.130.
- As used in this section:
- “Controlled substance” has the meaning ascribed to it in 21 USC 802(6).
- “Firearm” includes any firearm that is loaded or unloaded and operable or inoperable.
If the Constitution guarantees the right to bear arms, then how can that right be taken away?
While it is absolutely true that the Constitution applies to every American citizen equally, the commission of a felony alters a person’s rights, and in many cases, revokes that right altogether. The 2nd Amendment right to bear arms is one such right.
The reason behind this is contrary to the purpose of the American Justice system, but is nevertheless logical in the face of the rate that ex-convicts re-offend in our country; ex-felons are more likely to commit a future crime, so they should not be permitted to own guns.
Please Note: The federal law regarding ex-convicts possessing guns extends beyond just those convicted of a felony and includes people convicted of a misdemeanor domestic violence crime. (for a more in-depth look at the Federal Firearm Ban, please click here)
Are ex-felons the only people prohibited from owning a gun?
No. There are a few other groups that are prohibited from owning a gun:
- Anyone who has been legally determined mentally ill;
- Anyone who has been committed to a mental health facility in any state or territory of the United States;
- Anyone who is addicted to, or illegally using, any controlled substance or drug;
- Anyone who is a fugitive from justice; and
- Anyone who is in the United States Illegally.
What if my criminal records have been sealed?
While it is possible to restore the right to own a gun, sealing felony records does not automatically make you eligible to possess a firearm. The only way to guarantee that your rights will be restored is to have the records set aside or expunged, or to receive a government pardon that specifically restores your right to own a firearm.
Record expungement, or set-aside, is not available for every felony, regardless of how long it may have been since the conviction. An experienced criminal attorney can assist with determining whether your record can be set aside or expunged, and if possible, can assist in filing the necessary court documents for doing so.
What are the possible penalties?
The penalties for possessing a gun when you are prohibited from doing so depend on which prohibited group you belong to.
If you are prohibited from owning a gun because you in the United States illegally, or because you are mentally ill, then a conviction for possession of a firearm is a category D felony and will carry with it:
- Between 1 and 4 years in a Nevada State Prison; and
- Possible fines up to $5,000.
If you are prohibited from owning a gun because you are an ex-felon, a fugitive from justice, or a drug addict or user of illegal drugs, then a conviction for possession of a firearm will be a category B felony and will carry with it:
- Between 1 and 6 years in a Nevada State Prison; and
- Possible fines up to $5,000.
If you are an ex-felon, or have been convicted of a misdemeanor domestic violence charge, and you are convicted of possession of a firearm under Federal law, then the penalties can be harsh:
- Up to 10 years in a Federal Prison; and/or
- Possible fines.
Convictions for unlawful possession of a firearm do not cause the automatic imposition of maximum penalties. Often, the sentencing judge will try to tailor the punishment to fit the circumstances. Some of the factors that are taken into consideration during sentencing include:
- The nature of the crime that the ex-felon was originally convicted of. There are many crimes that are considered “wobblers,” which are sometimes charged as felonies and sometimes as gross misdemeanors. Ex-felons convicted of such a “wobbler” crime are likely to get a lighter sentence for possessing a firearm than someone convicted a more straightforward felony. Similarly, someone convicted of a so-called “white-collar” crime, one that does not lead to violence or physical injuries, is likely to be given more leniency than a violent offender.
- The type of firearm in the person’s possession. The more dangerous the firearm, the less lenient the sentencing judge is likely to be.
- Where the firearm was obtained. If the gun was stolen, then the sentencing judge will not be lenient towards the defendant. Alternatively, if the gun is a family heirloom that was passed down to the defendant, the judge is likely to be much more lenient as the defendant had little control over the matter.
- Whether the firearm was used, and what it was used for. Obviously, if, in the previous example, a family heirloom was passed down and was then mounted on the wall, then there was no “use” of the gun, and no one was likely to ever be injured by the firearm. Similarly, use of a gun in self-defense will provide more leniency than use of a firearm in the commission of a crime.
Please Note: Any conviction for a crime related to guns and other firearms are deportable offenses. If you are not a citizen of the United States and you are convicted of unlawful possession of a firearm, then you will be deported.
Are there any Defenses?
Yes, of course there are. Some of the possible defenses include:
- No Ownership or Possession – Convictions for a violation of NRS 202.360 require actual possession and/or ownership of a firearm. If you can show that you were not in actual possession of the firearm, that you were only in the same vicinity as the firearm, then the charges against you should be dropped or dismissed.
- Illegal Search – One of the rights that continues to apply, even if you have been convicted of a felony, is the rights regarding search and seizure. Being an ex-felon is not cause enough to permit law enforcement to conduct an illegal search of your person. If such a search is conducted, and a gun is found, an experienced criminal defense attorney can get the evidence (the gun) suppressed, or withheld from the trial. A successful motion to suppress will force the Court to throw out, or disallow, any evidence found during the illegal search. Without the ability to use the gun as evidence in a trial, the charges against you are likely to be dropped or dismissed based on lack of evidence.
- Pardoned – As noted above, it is possible, though very difficult, to regain your right to bear arms. If you have managed to do so, and are later charged with the unlawful possession of a firearm, then you should be able to produce the government pardon reestablishing your rights. Any charges should be dropped or dismissed at that time.
- Lack of Evidence – As with any crime, the prosecution bears the burden of proving every element of the crime “beyond a reasonable doubt.” If there is not enough evidence to uphold this high level of proof, then the charges should be dropped or dismissed.
What should I do if I’ve been charged with unlawful possession of a firearm?
As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.