Gun Law Crimes

Over the past 36 years, Paul Kish has been a criminal defense lawyer handling federal firearms cases in Atlanta and other parts of the country. He has significant experience representing individuals and companies who are charged with violating the federal firearms laws. Guns are an emotional subject for many people, and anyone who is alleged to have violated the law in this area needs an attorney who is willing to separate the emotion from the facts and the law. Firearms are one of the few subject areas mentioned in the United States Constitution, meaning the well-known provision in the Second Amendment that protects the right to “keep and bear arms.” While guns have some constitutional protection, an extensive set of other laws and regulations impact whether a person has or has not committed a federal firearms crime.

There are two main federal gun laws. One is found at 18 U.S.C. §922, while the other is at 18 U.S.C. §924. Basically, these laws are the criminal statutes by which the federal government tries to carry out the remainder of the laws and regulations which somewhat regulate the firearms industry in this country. These laws and the hundreds of regulations enacted by the Bureau of Alcohol Tobacco and Firearms (usually referred to as “ATF”) impact all aspects of firearms, from their manufacture, sale, disposal, to use and possession of guns by certain individuals. These laws are excessively complex and require an attorney who is well-versed in the intricate cross-references found in these laws.

Although the federal gun laws are complicated, there are several common factual patterns that result in a gun crime being prosecuted in federal court. While some state court cases involve the illegal use of a gun, most pure “gun crimes” are creatures of federal statute, and therefore are brought against Defendants in the federal court system.

One major federal gun crime that seems almost like a white collar matter is the crime of dealing in firearms without a license. To sell guns legally, for the most part a person or company needs to have a federal firearms license, what is sometimes called an “FFL”. Selling guns without an FFL is a federal crime that can lead to a prison sentence. However, it is also legal for an individual to buy or sell guns. The fine line between legal sales and illegally dealing in firearms requires the assistance of an attorney who has handled these tricky distinctions.

Registered and licensed gun dealers are highly regulated by ATF. However, even having an FFL does not insulate gun dealers. These companies can be prosecuted for selling to certain classes of people. For example, the holder of an FFL cannot sell to anyone who apparently lives in a different state, or a person who apparently is either an undocumented alien or who has a prior felony offense. FFL holders also cannot sell “long guns” to minors under 18. Certain types of more dangerous weapons and devices, like machines guns and automatic weapons, require additional licensing, without which a dealer also is committing a crime.

Another very common federal gun crime is what we call a “straw purchase” case. Under 18 U.S.C. § 922(a)(6), it is illegal for a person buying a gun to make a false statement. However, ATF takes the position that it is a “false statement” if Person A goes into a store, intends to later provide that weapon to Person B, but in the store A fills out Form 4473 and says that A is the “actual transferee/buyer”. This concept of “actual transferee/buyer” has never been approved of by Congress, which after all writes the laws. Paul has been challenging this theory for over two decades.

Another federal gun crime is if anyone possesses a firearm that has an altered or removed serial number. The law requires that gun dealers know the serial numbers on all firearms in which the dealer is involved. A separate part of the gun law makes it a crime if any person knowingly delivers, transports, or possesses a gun that has an altered or removed serial number. The same is true with stolen firearms, the knowing possession of which is also a crime. Likewise, most people have heard of the crime that prohibits possession of a firearm by any person who has a prior felony conviction. The tricky thing about this law is that it describes additional “disabilities” which operate to prevent other people from having a gun, categories such as those who are addicted to drugs, people who have been committed to a mental institution, illegal immigrants, people dishonorably discharged from the armed forces, and those convicted of a misdemeanor crime of violence.

Certain types of firearms are completely illegal for the average person to own or possess, unless that person has a special license. For example, another subsection of the gun laws makes it illegal to sell or possess a machine gun, unless the person has one of those rare and almost impossible to get special licenses. These weapons are for the most part defined as one which has the ability to automatically shoot more than one shot by a single pull of the trigger.

One common defense to these gun crimes is to show that the Defendant never had “possession”. However, court rulings have said that a person can be “in possession” even when they are not carrying a gun on their person. The person merely needs to have the intention and ability to control the firearm.

One of the most dangerous federal guns crimes is using or carrying a firearm during a crime of violence or drug trafficking crime. This law has especially harsh sentences.

Federal gun crimes are sometimes difficult to comprehend. The penalties are severe. People facing such a case must consult with an attorney accustomed to fighting such cases. Paul has done so for many years, so call if you’d like to discuss your situation.