While the right to keep and bear arms is a constitutionally protected liberty, all states limit a person’s ability to carry or possess certain weapons in certain situations. Each state has its own laws that establish the types of weapons that are illegal to own or possess. Anyone who possesses a weapon that is specifically prohibited by state or federal law can be charged with possession of a prohibited weapon.
- Weapons. State laws typically list a variety of firearms or other types of weapons that are prohibited. Though these laws differ, the types of prohibited weapons tend to be very similar. State laws typically prohibit citizens from possessing explosives, gas guns, switchblade knives, exploding projectiles, and brass knuckles, as well as any weapon prohibited under federal law such as short-barreled shotguns or firearms with silencers.
- Possession. Whenever you carry a weapon on you, have one in your home, or carry one in your vehicle, this is usually considered possessing a weapon. It isn’t necessary for you to actually have it in your hand or in your pocket, or otherwise carry it with you. To show possession, a prosecutor must show that you had control or domain over the prohibited weapon.
- Exceptions. While all states prohibit specific types of weapons, the laws that prohibit these weapons often include exceptions that allow for people to carry them in certain situations. For example, displaying a prohibited weapon in a museum or public exhibition is typically allowed, as is the proper use of explosives in an industrial or commercial setting.
Possessing Versus Carrying a Concealed Weapon
Criminal possession of a weapon is similar to the crime of carrying a concealed weapon, though there are important differences. When the state prohibits a certain weapon, it doesn’t matter if you own it, carry it in the open, or have it hidden somewhere on your body or in your car (within reach). It’s enough that you have the weapon or have control over it to be convicted of possessing a prohibited weapon. But if you carry a prohibited weapon in a concealed manner, you may also be charged with carrying a concealed weapon.
Individuals Prohibited From Possessing Weapons
In addition to prohibiting certain types of weapons, state and federal laws also prohibit possession of guns or other dangerous weapons by certain individuals, including people convicted of felonies or domestic violence misdemeanors, those who are subject to domestic violence restraining orders, illegal drug users, and former military members who were dishonorably discharged (18 U.S.C. § 922(g) (2019)). Under so-called red flag laws in some states, people who’ve been identified as posing a danger of gun violence are also barred from possessing firearms while subject to extreme risk protection orders.
Possessing a prohibited weapon is often charged as a misdemeanor, though in some situations it can count as a felony offense. Misdemeanors are crimes for which the punishment is up to one year in jail, while a felony can lead to incarceration in a prison for at least a year or more. In many jurisdictions, the dividing line between a misdemeanor and felony charge depends on whether the person convicted of the crime has been previously convicted of the same crime, or convicted of any other felony.
Though the type of sentence associated with the conviction for possessing a prohibited weapon can vary widely from case to case, they typically involve one or more of the following penalties:
- Fines. A misdemeanor conviction for possessing a prohibited weapon often brings with it a fine as its primary penalty. The amount of the fine can vary widely, though felony fines are much higher than misdemeanor fines. A misdemeanor conviction might bring with it a fine of up to $1,000, while felony convictions can have fines of $10,000 or more.
- Incarceration. Being convicted of a misdemeanor charge of possession of a prohibited weapon typically does not involve significant, if any, jail time, though each case differs. The maximum jail time for a misdemeanor conviction is usually somewhere between six months and one year. For felony convictions, defendants can face a significantly longer time in prison. Felony convictions are punished by at least one year in jail, and depending on the state and the defendant’s criminal history, a sentence of 10 years or more is a possibility.
- Probation. A court may also sentence someone convicted of possessing a prohibited weapon to a term of probation. Anyone sentenced to probation term must spend a specific number of months, usually at least six and sometimes as many as 24 or even 36, complying with specific terms as ordered by the court. These terms, such as maintaining steady employment and not committing further crimes, must be followed closely or you risk going back to court and being forced to serve a jail or prison sentence instead of the probation sentence.
Talk to an Attorney
While being charged with possessing a prohibited weapon may seem like a minor offense, it is always in your best interest to speak to an experienced criminal defense attorney whenever you face a criminal charge. Even if you believe you are not guilty of the crime and do not believe you can be convicted, it’s important you speak to an attorney so you can receive competent legal advice about the options you have and what steps you have to take. Only a criminal defense attorney will know how to properly analyze your case and provide legal advice based on the law and the facts in your particular circumstances.