The Constitution guarantees the right to keep and bear arms in the Second Amendment. The Constitution also gives authorities the power to regulate the use of firearms. Approved uses include protection, hunting animals, and keeping the King of England out of your face. Those categories are very broad, and reasonable people disagree as to their meanings.
Although the state’s laws are very broad in this area, illegal possession of a firearm is probably the most common gun crime in Georgia. Gun ownership trusts eliminate many of these issues. The trust, not a person, legally owns the firearm. Therefore, anyone affiliated with the trust, such as a beneficiary or trustee, has a right of possession.
These trusts have other benefits as well. For example, settlors (people who establish trusts) may often include silencers and other normally prohibited items in their trusts. Additionally, when the settlor dies, settlor’s gun collection remains private. Assets in trust are exempt from probate.
On a related note, the settlor can attach conditions, like the completion of an advanced safety course, to firearm inheritance. Furthermore, and perhaps most importantly, items in a gun trust are exempt from many gun ownership law changes.
A gun trust attorney protects your property rights. A Marietta criminal defense attorney protects your individual rights in illegal firearms cases. These rights include procedural protections as well as the presumption of innocence.
Illegal Possession
One advocacy group ranked Georgia 47th out of 50 states in terms of strong gun laws. Depending on your perspective, that ranking is either good news or bad news.
Georgia lawmakers recently made the Peach State a “Constitutional Carry” state. Gun owners don’t need a license to carry an open or concealed long gun, handgun, or long knife (blade longer than twelve inches) if:
- No prior or pending felony cases,
- No prior domestic violence, drugs, or weapons violations misdemeanor convictions,
- No outstanding warrants of any kind (this condition disqualifies many people),
- No federal firearm prohibition,
- No inpatient mental facility, alcohol, or drug treatment in the past five years, and
- No formal adjudication of mental incompetency or insanity.
Constitutional carry also eliminated many prohibited places. Lawful weapons carriers may carry in parks, historic sites, college campuses, recreation areas, and wildlife management areas, unless restricted by federal law. A few prohibited places remain, such as:
- Courthouses, jails, prisons, and restricted government buildings,
- Churches and other places of worship (unless expressly allowed by the owner),
- State-owned mental health facilities,
- Nuclear power facilities, and
- Polling places during elections.
These definitions often aren’t very straightforward. For example, many churches meet in places like mini-malls or hotel lobbies. The law is unclear as to where the prohibited zone begins. The line may be in the parking lot, at the front entrance of the hotel or mini-mall, or at the door of the place of worship itself.
These charges only hold up in court if prosecutors establish proximity, knowledge, and control, the three legal elements of possession. If the evidence is weak in any area, a Marietta criminal defense attorney has a better chance to successfully resolve the case.
Illegal Sale or Transfer
Georgia law doesn’t require licensing, waiting periods, or impose other restrictions. Gun shop owners must run background checks, but this requirement doesn’t apply to trade show or private sales.
Federal law is different. People cannot legally sell firearms to buyers if the seller knows, or should know, the buyer has a felony conviction, a history of domestic violence, or is otherwise on the prohibited ownership list. The federal prohibited list is longer than the state prohibited list. Federal law also excludes most noncitizens, dishonorably discharged veterans, mentally ill people (not just insane people), and drug abusers.
The best practice is to sell firearms to individuals with a valid Georgia Weapons Carry License (WCL) or Georgia Firearms License (GFL). These licenses indicate that the seller is legally qualified to possess a gun. Sellers might want to do some additional due diligence. If the buyer signs a statement that s/he’s not on the prohibited list, that’s usually enough.
Significantly, federal age restrictions vary. Generally, the legal age to purchase and possess a handgun is 21, or 18 for active military personnel or those honorably discharged. The legal age to possess a rifle or shotgun in Georgia is 18 years old.
Unlawful Discharge
Gun owners cannot fire their weapons on another person’s property without the owner’s express consent, fire a weapon within fifty yards of a public street under any circumstances, or fire a weapon while under the influence of alcohol or drugs.
An owner’s permission could be verbal or written. Obviously, written permission is a much stronger defense than verbal permission. The fifty yards law effectively bans firing a weapon in the city limits, except perhaps in the middle of a very large park or group of athletic fields, like a softball complex. Fifty yards is half a football field. “Under the influence” of alcohol or another substance usually means intoxication, which is the complete loss of normal physical and mental faculties.
Illegal Use
Georgia Code 16-11-102 is a closely related law. This provision bans pointing a loaded or unloaded gun at anyone, unless a legal justification applies.
Prosecutors often use this law to enhance robbery charges to armed robbery charges. Brandishing a gun during a fight is also illegal. Showing someone a gun in a threatening way is legal.
Self-defense, defense of others, or defense of property are the most common legal justifications. Typically, the actor must reasonably believe brandishing or using a firearm was reasonably necessary to prevent imminent harm. There’s a lot of gray area in that definition, which a Marietta criminal defense lawyer can exploit.
Criminally Negligent Homicide
A fatal DUI collision is the most common example of a criminally negligent homicide. Brandishing or playing with a gun that “accidentally” discharges could be an offense as well. CNH charges hold up in court if the defendant knew about an unjustifiable risk, the defendant, through act or omission, disregarded that risk, and the defendant’s negligence caused the victim’s death.
State lawmakers have eliminated most, but not all, firearms possession restrictions in Georgia. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Virtual, home, and after-hours visits are available.
