Big Gay Al
Michigan Moderator
I believe, I recall somewhere, felons could have firearms as long as they don't fire modern ammunition, such as cap and ball type firearms.
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Ive got a Home Defense question
- Thread starter army74
- Start date
stainless1911
Banned
Yeah, I've heard that as well, now that you mention it, I think that it was here on OCDO.
Big Gay Al
Michigan Moderator
I think I read it somewhere else first, but I also recall it in a thread here too. Heck, it may even have been on the ATF website.
Onnie
Regular Member
this is from a article from feb 2010 so unless things have changes, its still NO to felon in his home with a firearm in possession or not!
US v. Balanga, 109 F.3d 1299 (8th Cir. 1997).
Another instructive case is US v. Balanga, 109 F.3d 1299 (8th Cir. 1997). Balanga argued on appeal that there was insufficient evidence to support his conviction for being in possession of a .22 caliber rifle and ammunition found in his basement. Balanga argued that he did not possess a key to his basement door's padlock while another person stored a rifle and ammunition in Balanga's basement. Balanga admitted that he knew of the .22 caliber rifle and the ammunition that was stored in his basement, but argued that because he did not have a key to the basement, he did not have access to the rifle and the ammunition, and therefore did not possess them.
The court disagreed, finding that to convict Balanga of being a felon in possession of a firearm, the government had the burden of proving beyond a reasonable doubt that he "'exercised ownership, dominion or control over the firearms or dominion over the premises'" where the firearms were stored. The court ruled that, "In this case the jury could have reasonably concluded that Balanga failed to refute the normal inference of dominion over his own home. While there was some testimony at trial to support Balanga's assertion that he did not have a key to his own basement during the period in question, there was also evidence that Balanga in fact retained a key."
So, the mere presence of a firearm in the home of a convicted felon (where he has "dominion") will raise a presumption that he is in possession of it in violation of the law. The burden shifts to the prohibited person to prove in court that he had no access whatsoever to the firearm. From the cases, this appears to be a very heavy burden.
Finally, note also that the wife who allows her convicted felon husband to possess the firearm is also guilty of a federal felony under 18 USC 922(d). Transfers of firearms to any prohibited persons is unlawful under federal law.
US v. Balanga, 109 F.3d 1299 (8th Cir. 1997).
Another instructive case is US v. Balanga, 109 F.3d 1299 (8th Cir. 1997). Balanga argued on appeal that there was insufficient evidence to support his conviction for being in possession of a .22 caliber rifle and ammunition found in his basement. Balanga argued that he did not possess a key to his basement door's padlock while another person stored a rifle and ammunition in Balanga's basement. Balanga admitted that he knew of the .22 caliber rifle and the ammunition that was stored in his basement, but argued that because he did not have a key to the basement, he did not have access to the rifle and the ammunition, and therefore did not possess them.
The court disagreed, finding that to convict Balanga of being a felon in possession of a firearm, the government had the burden of proving beyond a reasonable doubt that he "'exercised ownership, dominion or control over the firearms or dominion over the premises'" where the firearms were stored. The court ruled that, "In this case the jury could have reasonably concluded that Balanga failed to refute the normal inference of dominion over his own home. While there was some testimony at trial to support Balanga's assertion that he did not have a key to his own basement during the period in question, there was also evidence that Balanga in fact retained a key."
So, the mere presence of a firearm in the home of a convicted felon (where he has "dominion") will raise a presumption that he is in possession of it in violation of the law. The burden shifts to the prohibited person to prove in court that he had no access whatsoever to the firearm. From the cases, this appears to be a very heavy burden.
Finally, note also that the wife who allows her convicted felon husband to possess the firearm is also guilty of a federal felony under 18 USC 922(d). Transfers of firearms to any prohibited persons is unlawful under federal law.
scot623
Regular Member
That's what I thought. Good cite.
NHCGRPR45
Regular Member
Onnie
Regular Member
There also seems to be a queston with the Michigan Constitution as it states:
Right to bear arms.
13. Every person has a right to bear arms for the defense of himself and the state
i found this on michiganprocutor.org
http://www.michiganprosecutor.org/alger/Articles/Gun Laws.doc
I receive many inquiries about laws pertaining to firearms and other weapons and am using today's column to respond to one that I've received anonymously as well as to others of general interest. The anonymous inquiry concerns the effect of felony convictions on one's ability to possess firearms and this is a complex subject due to the interaction of state and federal law.
Under Michigan law a felony conviction will indeed disable a citizen from possessing firearms, but only if it carries a maximum penalty of 4 years or more, and there are actually a number of 2 year felonies such as Criminal Sexual Conduct – 4th Degree, Domestic Violence – 3rd, Negligent Homicide, Resisting and Obstructing, Fleeing and Eluding – 4th Degree, Joyriding, etc. Federal law, however, extends the same disability to 2-year felonies. Whether these disabilities are permanent currently depends on whether such convictions are set aside.
Michigan law does provide for the restoration of rights to possess firearms following felony convictions. For some felonies, primarily property crimes, restoration is automatic upon the expiration of 3 years following the completion of all sentencing terms, which includes all probation or parole. For other felonies, primarily assaultive crimes and those involving controlled substances, weapons and home invasions, restoration is unavailable until 5 years post-sentence and can only be accomplished by application to the county concealed weapons licensing board, or gun board for short.
Restorations pursuant to Michigan law are misleading, however, because they do not satisfy federal law.
Federal law prohibits convicted felons from possessing firearms unless they've had their convictions set aside OR had their civil rights fully restored, AND are not subject to any state firearms restrictions.
Right to bear arms.
13. Every person has a right to bear arms for the defense of himself and the state
i found this on michiganprocutor.org
http://www.michiganprosecutor.org/alger/Articles/Gun Laws.doc
I receive many inquiries about laws pertaining to firearms and other weapons and am using today's column to respond to one that I've received anonymously as well as to others of general interest. The anonymous inquiry concerns the effect of felony convictions on one's ability to possess firearms and this is a complex subject due to the interaction of state and federal law.
Under Michigan law a felony conviction will indeed disable a citizen from possessing firearms, but only if it carries a maximum penalty of 4 years or more, and there are actually a number of 2 year felonies such as Criminal Sexual Conduct – 4th Degree, Domestic Violence – 3rd, Negligent Homicide, Resisting and Obstructing, Fleeing and Eluding – 4th Degree, Joyriding, etc. Federal law, however, extends the same disability to 2-year felonies. Whether these disabilities are permanent currently depends on whether such convictions are set aside.
Michigan law does provide for the restoration of rights to possess firearms following felony convictions. For some felonies, primarily property crimes, restoration is automatic upon the expiration of 3 years following the completion of all sentencing terms, which includes all probation or parole. For other felonies, primarily assaultive crimes and those involving controlled substances, weapons and home invasions, restoration is unavailable until 5 years post-sentence and can only be accomplished by application to the county concealed weapons licensing board, or gun board for short.
Restorations pursuant to Michigan law are misleading, however, because they do not satisfy federal law.
Federal law prohibits convicted felons from possessing firearms unless they've had their convictions set aside OR had their civil rights fully restored, AND are not subject to any state firearms restrictions.