# Can I carry a gun if spouse has a felony?



## heyjude1927

Hello everyone, 
I'm trying to find information on whether or not I'm permitted to own a handgun if my husband has a felony conviction. Been searching the internet looking for this answer but I'm not really certain what the actual answer is! 
Any help in getting me in the right direction would be appreciated. 
thanks!


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## Jimmy19

You are fine! but you can not have it accessible to any felon (husband) So a locked gun and only you have the key SHOULD be fine. 3rd year Crim Just Major At the University of Minnesota. If this helps


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## denner

Jimmy19 said:


> You are fine! but you can not have it accessible to any felon (husband) So a locked gun and only you have the key SHOULD be fine. 3rd year Crim Just Major At the University of Minnesota. If this helps


You need to speak w/ an attorney, the FBI, ATF or your local Sheriff's office would be my suggestion. I'm not too sure about the advice above, I believe you're permitted to own a firearm, but your husband cannot be around it including your residence, locked box, vehicle etc... he would definately take the fall for that one and it's severe. Up to 10 years/250,000 fine on the federal level.


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## Newbie62

Different locales have different "rules" check with your local issuing authority.


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## denner

Newbie62 said:


> Different locales have different "rules" check with your local issuing authority.


While states may have differing penalties or rules as you call them, federal law does not. Anyone who has been convicted of a felony is banned by federal law from ever possessing "any firearm or ammunition." Specifically a person "convicted in any court of a crime punishable by imprisonment for a term exceeding one year" cannot possess any firearm in any location. 18 U.S.C. 922(g). If the Feds are not happy with a states court ruling, rest assured they will be there to impose their jurisdiction. No state has the authority to make any law with less severe punishment, or circumvent Federal Law, any state's law must either mirror 18 U.S.C. 922(g), or be more severe.


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## denner

Possession of a firearm may be either actual or constructive. The latter has been defined as
follows: "Constructive possession exists when a person knowingly has the power and intention at
a given time of exercising dominion and control over the object or over the area in which the object
is locate...." (See U.S. v Booth, et.al. 111 F.3d 2 [1st Cir. September 1997]). If you know the
firearm is present in your residence, vehicle, etc., and if it can be shown that you have the ability to
access and exercise control over that firearm personally or through another individual, then you
could be considered to have constructive possession of the firearm. You would then be subject to
new criminal charges and/or revocation of supervision. For these reasons, all firearms are to be
removed from your residence during the term of supervision.


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## Scott9mm

Isn't it interesting that locals can have more restrictive laws about things like guns but not about other things, like voting age, for example.


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## denner

Quite interesting, when Reagan signed into federal law the legal drinking age from 18 to 21 the state of Florida resisted, but gave in as soon as the state was informed that the federal gov would cut all funds for Florida's highways. Furthermore, just because a law, federal or state is enacted doesn't mean that it gets enforced.


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## heyjude1927

Thank you all for helping me try and answer this one. Sounds like the technical answer is - no I can't own one. But I see where there's a small possible grey area to keep researching. I can certainly see the reasoning behind it - but can't quite 100% agree on it. He's not a violent criminal - stupid drug charge from YEARS ago. So I feel like I'm being punished for this as well. Hell, I didn't even know him then! I'll keep digging.


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## denner

heyjude1927 said:


> Thank you all for helping me try and answer this one. Sounds like the technical answer is - no I can't own one. But I see where there's a small possible grey area to keep researching. I can certainly see the reasoning behind it - but can't quite 100% agree on it. He's not a violent criminal - stupid drug charge from YEARS ago. So I feel like I'm being punished for this as well. Hell, I didn't even know him then! I'll keep digging.


The best way to overcome the problem is to have his record/felony expunged by an attorney. As you state his crime was not violent so he should qualify, generally 10 years must pass, have not commited any other crime and have paid all fines and met all conditions regarding his felony conviction.


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## BackyardCowboy

I'd suggest contacting an attorney in your area versed in criminal law, and as another pointed out, see if the felony conviction can be expunged from his record. (** also ask the attorney if his record is expunged, is it just at a local level or is it also expunged at a federal level as well **)
Concern would be if you had a gun locked in a car and even if you had the only key, if he was driving it (without you) and he was pulled over, they could still claim he had 'control' of it. Might get thrown out of court or cleared, but you'd still be put through the arrest and going to court. (What if he was alone in the house with your locked up gun and the cops came for some reason))


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## SouthernBoy

Possess translates to "on or about the person". One should be fine if they have a firearm on their person in the company of a convicted felon. The firearm could even be on a table in a home. The convicted felon just can't handle the firearm.

As has been suggested, an attorney, knowledgeable in these matters, will be your best friend.


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## Goldwing

Back in the mid-eighties an ex-con here in my home town ran a gunshop. His sons handled the guns and took care of the paperwork, but everyone including the local LE 

knew exactly what was going on. He spent 40 hours a week surrounded by guns that he owned, but not on the paperwork.

GW


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## Shipwreck

Every state is different - I will tell you how it is usually dealt with in Texas... 

However - I would possibly ask an attorney in your area before you take legal advice online.

I am a probation officer - I do home visits, and have lots of people on felony probation. The way the Judges and prosecutors look at it in counties I have worked at before: If the gun owner has it locked in a safe that the felon can't access - it is usually acceptable. I would suggest not using one with a key, but one with a combination. Do not let the felon know the combo. Do not have the safe in the bedroom of the felon. 

When I deal with a person on felony probation that lives with his parents, I state to put the safe in a non common area (like in the bedroom of the parents). In your case, it is you and your husband. He has full access to any part of the house/residence as a result. But, I would suggest not putting it in the bedroom.

Now, can you still be prosecuted if some prosecutor (state or federal) just wants to come after you and has an axe to grind? Yes, I suppose you could. But around here, this is what usually is considered allowable. I've dealt with this issue in front of Judges before - and this is usually the way it goes.


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## berettatoter

denner said:


> You need to speak w/ an attorney, the FBI, ATF or your local Sheriff's office would be my suggestion. I'm not too sure about the advice above, I believe you're permitted to own a firearm, but your husband cannot be around it including your residence, locked box, vehicle etc... he would definately take the fall for that one and it's severe. Up to 10 years/250,000 fine on the federal level.


Like denner posted, you had better talk to a lawyer, who has experience in this sort of thing. You don't want to find out the hard way, that you got bad information.


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## shootbrownelk

denner said:


> You need to speak w/ an attorney, the FBI, ATF or your local Sheriff's office would be my suggestion. I'm not too sure about the advice above, I believe you're permitted to own a firearm, but your husband cannot be around it including your residence, locked box, vehicle etc... he would definately take the fall for that one and it's severe. Up to 10 years/250,000 fine on the federal level.


 Not only can the convicted felon not be in a residence with a firearm locked-up or not, he cannot be around ammunition either, with or without a firearm present. A loose round or two that rolled under the car seat or under a sofa cushion for example...is against Federal law. And penalties are severe.


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## SouthernBoy

shootbrownelk said:


> Not only can the convicted felon not be in a residence with a firearm locked-up or not, he cannot be around ammunition either, with or without a firearm present. A loose round or two that rolled under the car seat or under a sofa cushion for example...is against Federal law. And penalties are severe.


This makes no sense (I am not questioning you here). Suppose someone has a nice gun collection in their home and makes a point of having one or two hidden in some strategic locations for their more immediate protection. His adult son happens to come by one day to pick up a few things, some furniture and such, and brings a friend with him. Unbeknownst to the homeowner, the son's friend has a felony conviction. Are you now in jeopardy of arrest and prosecution because a felon is in your home?

I happen to know of a situation in Maryland in the 90's where the husband was a convicted felon and the wife carried a firearm for her protection. All of the guns in the home were accessible to the husband but he could not "possess" them on or about his person*. This husband was famous and had a radio talk show where he would mention this from time to time. He would say that all of the guns in his house were owned by his wife.

* "on or about the person" is from old English common law that came to Virginia in 1607 and is still in force. A firearm which is "about" the person in one which is within common reach.


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## shootbrownelk

SouthernBoy said:


> This makes no sense (I am not questioning you here). Suppose someone has a nice gun collection in their home and makes a point of having one or two hidden in some strategic locations for their more immediate protection. His adult son happens to come by one day to pick up a few things, some furniture and such, and brings a friend with him. Unbeknownst to the homeowner, the son's friend has a felony conviction. Are you now in jeopardy of arrest and prosecution because a felon is in your home?
> 
> I happen to know of a situation in Maryland in the 90's where the husband was a convicted felon and the wife carried a firearm for her protection. All of the guns in the home were accessible to the husband but he could not "possess" them on or about his person*. This husband was famous and had a radio talk show where he would mention this from time to time. He would say that all of the guns in his house were owned by his wife.
> 
> No, the homeowner would not be charged with anything, the son's friend with the felony conviction would. A felon cannot live in a home where there are firearms or ammunition. A felon stopped for DUI out here, and while searching the vehicle they found several rounds of loaded ammo. He was charged by the Feds (BATFE or FBI) he was convicted. A person would have to check with the FBI for more information, but the Federal rules apply nationwide and trump any State firearm laws or restrictions


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## SouthernBoy

*shootbrownelk*

Thank you for your response. So let me ask this. Let's I had a son, which I don't, who committed a crime and was charged and convicted for a felony. He served his time, and since he had no means of support, he moved back into my home. Could I keep my firearms or would I have to relinquish them?

The man of whom I spoke in post #17, was a former FBI agent. He was charged with a felony crime, convicted, and spent time in prison. Before this, he had a collection of firearms. I believe he "gave" them to his wife and when we was released from prison, she still had his former firearms. He even took some pictures of them, which I saw. As far as I know, these arms are still in his home as his wife's property.


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## shootbrownelk

SouthernBoy said:


> *shootbrownelk*
> 
> Thank you for your response. So let me ask this. Let's I had a son, which I don't, who committed a crime and was charged and convicted for a felony. He served his time, and since he had no means of support, he moved back into my home. Could I keep my firearms or would I have to relinquish them?
> 
> The man of whom I spoke in post #17, was a former FBI agent. He was charged with a felony crime, convicted, and spent time in prison. Before this, he had a collection of firearms. I believe he "gave" them to his wife and when we was released from prison, she still had his former firearms. He even took some pictures of them, which I saw. As far as I know, these arms are still in his home as his wife's property.


 You got me SB, I'm no lawyer. But an acquaintance of mine in Wisconsin was ratted-out by a PO'd neighbor for living in a home that had firearms and ammunition in it. If I remember correctly, he was charged but I believe his lawyer plea bargained it down, but he still did jail time.
Isn't there an FBI agent lurking on here that can shed some light on this?


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## SouthernBoy

Not sure if there is an FBI agent on these forums but it would be interesting to hear his take.


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## Shipwreck

Well, I did offer one view above, but one one has commented on it. I can't say I am an expert - and I have made it clear that a prosecutor CAN come after you if they want to no matter what. But, I am the only one here that actually deals in these matters.... 

Anyway - I do not believe you will ever get a definitive answer - not in the way you want. There will always be a small % chance that the husband with the felony record could be prosecuted IF a prosecutor wanted to. Even if the norm is what I described above (how its done in this area of Texas). The feds seem to not go after many gun prosecutions, from what I have read, though. They seem to not make that great an effort to prosecute people caught lying on the form you fill out to purchase a firearm.


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