Can You Carry A Gun In the Presence of a Felon
The words “possession” and “control” can be the difference between a legal battle and lawful gun ownership when considering concealed carry around a felon.
As is usual, this is not formal legal advice and anyone looking to carry concealed with a felon nearby should have a discussion with law enforcement or a lawyer beforehand. It’s their responsibility to know the law and adhere to it when carrying a weapon.
The crux of the issue rests on how the weapon is stored, where it’s stored and who maintains possession, access and control of it at all times.
According to 18 U.S.C. § 922(g)(1), those convicted of a crime punishable by imprisonment for more than one year may not possess any firearm or ammunition.
Legality of Concealed Carry Around a Felon
There is a difference between actual possession and constructive possession, meaning concealed carry around a felon, and having a firearm around them in general, means controlling the means of access and control of it.
“Constructive possession” is often used in criminal law possession cases, like illegal drug possession, but it is a serious consideration for gun owners.
When used in court, constructive possession means having knowledge of an object and access to it. If someone has the keys to a locked container, they have constructive possession of its contents.
Whereas with actual possession, as defined in United States v. Nenadich, 689 F. Supp. 285 (S.D.N.Y. 1988), the owner of an object has the item in physical custody.
Therefore, a gun owner can walk past (or even with) a felon on the street and have their lawful firearm holstered and concealed, for example, inside the waistband. They maintain control, access and possession of it.
When in a vehicle or a closed environment with the felon, that is when the firearm needs even more stringent control. If it’s stored in a container, the container should be locked and the means of accessing it must be completely barred from the convicted felon’s knowledge or control.
A felon must not have access to the code to a safe, keys to a locked container or even the ability to unzip or unclasp it -- just to name a few.
The felons may be family, significant others or the most trustworthy confidants. It doesn’t matter. Protect yourself and them by being mindful of the appropriate, legal steps to concealed carry and gun ownership with them as fixtures in your life.
Cases where gun possession was affected by where a felon lived
There are a couple court rulings that set precedent for legal gun possession with a felon living with a lawful gun owner.
In the 2012 case U.S. v. Cory L. Griffin, the 7th U.S. Circuit Court of Appeals reversed Griffin’s felony conviction in violation of 18 U.S.C. § 922(g)(1), stating that the ruling of his “intentional possession of a firearm and ammunition” did not have sufficient evidence indicating that he ever intended to exercise control over his father’s firearms in his parents’ home.
Griffin’s father was an avid hunter and owned shotguns and handguns. Griffin, a convicted felon, was living in his father’s home.
The courts decided “that mere proximity to contraband is not enough to establish a sufficient nexus to prove constructive possession” and that “proof of constructive possession of contraband in the residence requires the government to demonstrate a ‘substantial connection’ between the defendant and the contraband itself, not just the residence.”
This case meant federal prosecutors now have a higher threshold when attempting to convict a felony-in-possession and that access doesn’t always equal possession.
This case proved that a felon cannot be automatically banned from living somewhere guns are lawfully owned, according to Bruce Vielmetti of the Journal Sentinel.
U.S. v. Huet was a similar matter. Melissa A. Huet was indicted on charges of aiding and abetting a convicted felon’s possession of a firearm and transferring unregistered firearms to her co-defendant and partner Marvin E. Hall, who was indicted with possession of a firearm as a convicted felon.
Huet had a clean record and was legally allowed to possess a firearm. She and her paramour, or romantic interest with no legal relationship, had a home, and within a room she owned and stored an SKS rifle. Federal agents were working undercover to “penetrate a cell of militia extremists,” and seized the rifle from the room.
The agents never actually observed Huet or Hall handling the rifle, nor is there allegation that Huet delivered the rifle to Hall or directed him to fire or handle it. There also were never allegations Huet straw purchased the rifle for Hall. She was simply charged with the aforementioned indictments.
The court found that Huet is entitled to the individual right to keep and bear arms -- protected under the Second Amendment and reinforced through District of Columbia v. Heller -- in her own home.
So is it possible to concealed carry around a felon?
In some cases, yes, concealed carry around a felon is legal when the firearm is possessed, controlled and able to be accessed only by the parties it is lawfully bound to.
Speak with a lawyer and local law enforcement prior to doing so. You may trust their character, but in the eyes of the law there will be hesitation.
About The Author
Jake Smith (@notjakesmith) is a copywriter in his final year of studying public relations and apparel at the University of Idaho.