James Madison, one of the Constitution’s primary authors, once noted that the kingdoms of Europe were “afraid to trust the people with arms” and the new United States should be different. Madison and his cohorts apparently thought the Constitution as originally drafted adequately upheld the right to own guns. But some people wanted more assurance. So, the first Congress quickly ratified the Second Amendment.
For over a century thereafter, the courts stayed out of the gun control debate. That stance changed in 1939, when the Supreme Court ruled, in United States v. Miller, that the Second Amendment didn’t apply to weapons which had no “reasonable relationship to the preservation or efficiency of a well-regulated militia.” But the Supremes still largely avoided this question, until 2008’s District of Columbia v. Heller. This case overturned the District’s strict gun control policy as a violation of the Second Amendment.
The Second Amendment gives people the right to keep and bear arms. Under current law, keeping (owning) firearms is a right that almost no one disputes. Bearing (carrying) firearms is another matter. Courts are willing to back most restrictions in this area. Georgia lawmakers are currently debating a proposal that would eliminate most restrictions regarding the “possession or use” of firearms. But for now, the state’s relatively complex laws remain in force. More on these laws below.
Proving the law applies is just step one of an illegal weapons possession prosecution in Georgia. Step two is proving the defendant actually possessed the weapon. So, a Marietta criminal defense lawyer basically has two chances to derail a weapons possession offense in Cobb County. Frequently, an attorney can leverage these defenses during pretrial negotiations and obtain a favorable outcome without having to roll the dice at trial.
The Law in Georgia
Most illegal weapons possession cases are Section 16-11-126 infractions. It is a misdemeanor to carry a loaded or unloaded handgun, long knife (at least a 12-inch blade), or a loaded and concealed long gun in public if the person is unlicensed.
This prohibition does not apply if defendants are in their motor vehicles, personal homes, or places of business. This law also doesn’t apply if the defendant was hunting or fishing or the gun was unloaded and in a locked container. This container could be pretty much anything, from a gun safe to a gun display cabinet.
Furthermore, under Section 16-11-123, it is a felony to knowingly posses “a sawed-off shotgun, sawed-off rifle, machine gun, dangerous weapon, or silencer” under any circumstances. A “dangerous weapon” is usually a hand grenade, rocket launcher, recoilless rifle, mortar, or similar destructive and explosive device.
Briefly, in terms of licensing, Georgia significantly loosened these requirements in 2010. Basically, anyone who is over 21 and has no prior felonies, weapons convictions, or serious mental or emotional problems is eligible for a license. Furthermore, Georgia is a “shall issue” state. If a person meets the minimum requirements, authorities must issue a license. In many other states, some authorities basically have a veto power in this area.
Establishing Possession in Court
The rules about weapons types are rather straightforward. But establishing possession in court is another matter altogether. Basically, Cobb County prosecutors must establish three distinct elements:
- Control, and
- Knowledge (this element only applies in a felony weapons possession case).
The law is rather clear about the proximity requirement. For example, anything in the passenger area of a motor vehicle, even if it is not within arm’s length, satisfies the “proximity” requirement in most cases. Additionally, the law defines “passenger area” as including the bed of a pickup truck and trunk of a car. By analogy, anything in your home also satisfies the “proximity” requirement, even if the item is in a detached shed or garage.
In this context, “control” usually refers to the weapon’s condition. Some people remove the firing pins or other mechanisms from guns and simply display the weapons. These guns arguably do not satisfy this requirement. Other people don’t take are of their guns. Their firearms are in such bad shape that they are nonfunctional. These guns might not satisfy the “control” requirement either, although the argument is a little more difficult to make.
As mentioned, the final element, knowledge, only applies in felony possession cases. The misdemeanor law has no knowledge requirement.
Assume Sam borrows his wife’s car. Unbeknownst to him, she keeps a pistol under the seat. If an officer pulls over Sam and he gives the officer permission to search the car, Sam could be in big trouble, even though he didn’t knowingly do anything wrong.
On the other hand, if Sam’s wife kept a bazooka in the trunk, and we don’t want to speculate as to why she would do that, Sam is not guilty of a 16-11-123 infraction, even though the facts satisfy the proximity and control elements.
In the above pistol example, if Sam’s wife had a gun ownership trust, she could name Sam as a co-trustee. So, Sam could legally possess the unlicensed pistol. Gun ownership trusts are also excellent vehicles for people who frequently hunt with buddies. In a pinch, a gun owner can loan a gun to a non-owner, and if the non-owner is a co-beneficiary, the non-owner is in the clear.
Gun ownership trusts might also protect people from certain 16-11-123 felony offenses. Technically, the person doesn’t own the sawed-off shotgun or other prohibited item. The trust owns it.
These trusts have some other advantages as well, particularly when the gun owner passes away. Trusts usually make the inheritance process seamless. Trusts also make the inheritance process private. When Sam’s wife dies, she might not want everyone to know about her collection of high-powered firearms. If she has a trust, the guns are not listed on the estate’s inventory. These inventories are public records in Georgia.
A lawyer can set up a gun trust, which is usually valid in all states, in as little as one office visit. The trust is a living trust when can be easily modified at any time.
Most gun possession cases have many moving parts. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.