Tag: Constitutional Law

October 16, 2014   Posted by: Margarita Smirnova

Firearm Laws and Complications From Possessing Firearms!

In October, 2013, when Shaneen Allen was charged for possessing a firearm in her car in New Jersey the arrest came as a surprising shock.  According to the Philly.com report, a single mom of two, who resides in Philadelphia, obtained a license-to-carry permit and lawfully purchased .380 Bersa Thunder handgun for self defense purposes.   The last thing she expected was that during a routine traffic stop in New Jersey she would get arrested and was charged with unlawful possession of a weapon and possession of hollow-point bullets.  For many who were unaware of how firearm laws work it was mind boggling.   Ms. Allen had all the documentation and proper preparation to be able to carry her Bersa.  So, what went wrong? The answer is different states have different rules and reciprocity is far from automatic.

The Second Amendment to the U.S. Constitution guarantees to each citizen the right to bear arms.  Yet, many state legislations across the country enacted many controversial restrictions and limitations no other amendment could ever endure.  Each state requires its own license; whether it is to collect fees or to control the amount of firearms.

For better or worse, the firearm law is constantly changing.   It is important to know your rights because the punishment for these offenses is quite severe, and traditionally, the prosecution addresses the violators who possess firearms with vigor.

In 2013, New York enacted a Safe Act that claims to “keep communities safe while respecting hunters and sportsmen.” Governor Guomo, if reelected, plans to sign a Safe Act 2 which makes one wonder whether the first act didn’t keep the public safe.   Under the New York law, criminal possession of a weapon is fourth degree and is a strict liability and per se crime in the New York Penal Law pursuant to NY PL 265.01.  The implication of strict liability for simply possessing a firearm or even a knife is automatic prison time.

Recently, Massachusetts reinstated itself as one of the leaders in tough gun control in the nation.  On August 13, 2014, the Massachusetts legislation signed into law an Act Relative to the Reduction of Gun Violence.  The Act allows police chiefs to ask courts to deny firearms identification cards to individuals if they feel are unfit to obtain them.  The Act made gun-based crimes tougher and created an online portal for background checks in private gun sales, making Massachusetts join the National Instant Background Check System.

An improperly possessed or used firearm is dangerous not only for possessing the firearm which is regulated by the Mass. Gen. Laws Ch. 269 Sec. 10 (h) and having to surrender it under the Mass Gen. Laws Ch. 140 Sec. 129D but also risky to your freedom.  The Mass Gen Laws 140 Sec. 128B states that for the first offense the violator will be punished by a fine of up to $1,000 and for any subsequent offense by imprisonment in the state prison for up to ten years.

Different towns and cities require different policies and procedures to obtain License to Carry of Firearm Identification.  Possession, storage and transportation of firearms are heavily regulated.  It’s important to obtain a proper license prior to purchasing any firearms.  No doubt, the Act Relative to the Reduction of Gun Violence makes owning firearms more complicated and since certain regulations will become active in January 2015, applicants will be prone to make mistakes in filing or renewing their licenses to carry or firearm identifications cards applications, or worse, due to new regulations, losing their rights altogether.

It is important to note that under the Massachusetts law a possession of a firearm while committing a felony will will result in a mandatory minimum sentence of 5 years.  Failing to proper obtain a license to posses a firearm can automatically render a perfectly law abiding citizen a felon.

By Margarita Smirnova
Call: (617)398-7482
E-mail: margarita.smirnova@gmail.com
This post is for informational and educational use only and does not create attorney-client relationship.
May 22, 2012   Posted by: Margarita Smirnova

Monitoring of Sensitive Information, Warrants and Legal Response!

In a recent US v. Jones, (January 2012) decision the US Supreme Court held that “the Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.”  In Jones, the police obtained the warrant but didn’t quite properly execute it.  While the Jones case was mostly the 4th Amendment of the US Constitution and its protections and warrant issues, the key issue in my mind was the surveillance and how far it can go without the warrant.  Warrant less surveillance has been a hot topic forever.  Law responds depending on political movement of what is considered the bad guy at that certain period of time.

Now, US Supreme Court is going to hear a new case.  This time the question involves a post Sept. 11 government’s aggressive use of electronic surveillance.  The scrutiny is over the validity of an amendment to the Foreign Intelligence Surveillance Act (FISA) which is about disclosure of the “secret program to wiretap the international communications of people suspected of terrorist ties without obtaining court warrants,” according to the New York times.  In other words its about the wiretapping law of 2008.

While I clearly understand the “security” reasons behind this particular legislation, it is always the current state of affairs in the country that makes up the decision of the judges.  I find it fascinating how each new legislation especially of this huge caliber brings out the gray area that eventually shapes our legal history in the long run.

See below, Supreme Court Agrees to Hear Case on Surveillance, by Adam Liptak, May 21, 2012 
 http://www.nytimes.com/2012/05/22/us/justices-agree-to-hear-surveillance-challenge.html?_r=1&hp

Written by Margarita Smirnova, Esq.

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