Published in Criminal Law by Chris Eskew on March 29, 2023.
The Bill of Rights, the first 10 amendments to the U.S. Constitution, grants us certain fundamental rights. Our rights are personal to us as individuals, and we can choose to exercise them if we want. Thus, under the Second Amendment and the Indiana State Constitution, you have the right to possess a firearm if you meet the qualifications under Indiana law. However, no right is absolute. That is why state and federal laws can prohibit felons from possessing firearms.
The crime of felon in possession of a firearm is serious. You can face significant prison time if convicted. You could also face prosecution in federal court if the U.S. Attorney’s Office elects to bring charges against you. Where do you turn if that happens to you? The criminal defense lawyers with Eskew Law, have the experience and skill to protect your rights and help you get your life back on track.
Can the Spouse of a Felon Own a Gun?
Gun laws in Indiana do not expressly prohibit the spouse of a felon from owning a firearm. But, Indiana Code § 35-47-1-7 identifies a list of people who cannot legally own or possess a handgun, shotgun, rifle, or machine gun. The list of people prohibited from gun ownership includes anyone convicted of a crime carrying a sentence of more than one year. Indiana law defines a felony charge as any crime for which the penalty is greater than one year in prison. Therefore, if you are a convicted felon, you cannot legally own a gun.
Keep in mind that you do not actually have to serve a year in prison to be disqualified. You just have to be convicted of a crime that carries a potential punishment of more than a year of incarceration.
Similarly, federal law also prohibits a convicted felon from possessing a firearm.
Generally, the type of felony does not matter under federal law. Federal lawmakers assume that a person convicted of a felony cannot be trusted to possess a gun safely.
Indiana law varies slightly from federal law. While felons generally cannot obtain a firearm license, Indiana Code § 35-47-4-5 strictly punishes people who fall under the category of “serious violent felon” and possess a firearm.
Who Is a Serious Violent Felon in Indiana?
A serious violent felon is a person previously convicted of a violent offense or another dangerous felony. The definition of a serious violent felon includes individuals convicted of drug dealing crimes as well. Examples of serious violent felonies include:
- Voluntary manslaughter;
- Felonious battery (i.e., battery charge that is serious enough to rise to the level of a felony);
- Aggravated battery;
- Felonious domestic battery;
- Kidnapping; and
This list is not exhaustive. Also, out-of-state convictions can meet the definition and place you in the category of serious violent felon. Speaking with an experienced and skilled attorney can help you determine if your prior felony convictions fall under this statute.
The charge of unlawful possession of a firearm by a serious violent felon is a Level 4 felony. In Indiana, Level 4 felonies carry a minimum punishment of 2 years and a maximum of 12 years in prison with an advisory incarceration term of 6 years. The punishment could include a fine of up to $10,000 as well.
If My Spouse Can Legally Own a Gun, How Could I Get Charged with Being a Felon in Possession?
There is a significant difference in the law between ownership and possession. They do not mean the same thing. Ownership means you have title over something, like a car or a house. Possession is not ownership. Possession is the present ability to exercise control over an item. Possession can be actual or constructive. Actual possession means the item is on your person or you are holding something, like a pen, when you sign your name. Constructive possession means you know an item’s location and intend to exercise dominion over it. For example, you have constructive possession of your car when you are shopping in a store, and you have possession of your keys even when you are in the bedroom, and your keys are in the kitchen.
Understanding the law of possession might help you understand why you could be in serious legal trouble if your spouse owns a firearm. What if the police go to your house for some legitimate reason, and while they are there, they find a gun? The police do not have to prove you own the firearm. If the evidence shows that you know where the gun is and have the intent coupled with the ability to exercise dominion and control over it, a jury could find you guilty of possessing that gun. Even if your spouse claims ownership, you could be in trouble if you have access to it.
Each state has a vested interest in protecting its citizens from violence. According to recent statistics, 931 people die each year as a result of gun violence in the state. So, laws like these exist to curb the spate of gun violence in Indiana.
We Can Help
Can the Spouse of a Felon Own a Gun? If you have questions like this about your criminal case, contact Eskew Law, right away. We can inform you of your rights. Our firm combines a thorough understanding of Indiana law with a creative approach to solving your legal problem. Our award-winning lawyers are available to provide you with the strongest legal defense possible—and the best chance of avoiding a conviction. Contact us online or call us today to learn more.