Legal Talk

Existing Gun Control Statutes and Discretionary Government Prosecutions

March 5, 2013 by Anna M. Clausen in Legal Talk
There are more than enough criminal statutes already on the books to cover every conceivable type of firearm offense imaginable. We certainly do NOT need any new legislation put into effect without first examining the use of well settled federal criminal law. For the past 25 years our government has been prosecuting the citizens of this country for violating 18 U.S.C. 922(g), even when offenders were unaware they were breaking the law.

Section 992(g) of the federal criminal code is commonly known as the “felon in possession” statute and it can be applied to anyone who has previously been convicted of a “felony offense.” Many individuals who have been charged with this offense were completely unaware they were exposing themselves to up to 10 years in prison for simply possessing a firearm. What’s worse is that the “possession” need not be direct or intentional. If a convicted felon is merely found to be in “constructive possession” (meaning that a legally registered firearm could be found inside a home where the felon jointly resides with others) it is enough to send he or she to prison for up to a decade. I believe that this is unconstitutional due to the sentencing disparities of those committing the same crime of “POSSESSING” a firearm.
For some firearm offenders the potential outcome is even much worse. Under section 18 U.S.C. 924(e) the penalties for being a felon in possession are greatly increased. There is a mandatory minimum of 15 years, with a maximum of life in prison, if the courts decide that the prior convictions are interpreted as “violent offenses.” This part of the federal criminal code is known as the Armed Career Criminal Act, or ACCA, and it has placed countless non-violent offenders behind bars for DECADES due to a greatly expanded reading of the original statutory language.

When Congress enacted 924(e), the ACCA, their intention was to provide an enhanced punishment for those specific offenders who had at least 3 prior “violent crime” convictions. However, as frequently happens with statutory interpretation, the government sought to greatly expand the language of 924(e)(2)(B)(ii) to include qualifying prior convictions that were actually non-violent in nature. The best example of this is the burglary of a residence, which is frequently used as a “violent” qualifier because it has the POTENTIAL to become a violent crime IF the intruder should happen to be confronted by the owner of such residence. If an enhanced mandatory minimum penalty should rest upon such conjecture, then I would suggest that literally EVERY crime is essentially a violent crime by (that) definition, and all minor offenses will eventually become subject to increasingly absurd penalties.

Clearly, Congress did not intend for the ACCA to be applied to individuals like myself who have never been convicted of an ACTUAL crime of violence. I would even suggest that the ACCA is likely unconstitutional as it is being applied to cases such as my own for all of the aforementioned reasons. The disparity it creates between a maximum penalty of 10 years for a 922(g) violation and a mandatory minimum of 15 years (up to life) for a violation of the ACCA should be enough to give a reasonable person pause before they rush forward to enactment more unnecessary and unjust federal gun control statutes. I would also ask you to consider the fact that none of the recent atrocities, although committed with firearms, were committed by ex-felons and It’s difficult to conceive of a law that would have prevented them from occurring. Maybe our attention should be focused on what caused these individuals to commit these heinous acts instead of allowing politicians to grandstand and politically profit these events. Thank you for your support.

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