Firearms Laws

The 2nd Amendment of the constitution gives citizens the right to bear arms. However, not all firearms are legal to own and the laws vary from state to state. Now more than ever, technology has made access to "guns" easier but this doesn’t always mean it's legal. Attorney John Calcagni highlights how laws are constantly being updated to keep up with all the technical advancements. There's even a new term that's developed over the years referred to as " Ghost Guns" 

https://www.calcagnilaw.com/

John L. Calcagni, III, is a prominent Rhode Island criminal defense attorney with extensive experience as a former military prosecutor (JAG Corps) and Special Assistant U.S. Attorney, specializing in federal, state, and military cases, including violent crimes, drug offenses, sex crimes, and white-collar cases, leveraging his prosecution background for defense in state and federal courts. He holds a Juris Doctor from Roger Williams University Law School, is admitted to practice in multiple states and federal courts, including the U.S. Supreme Court, and is recognized as a SuperLawyer. 

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SPEAKER_01 0:13

What's your emergency?

SPEAKER_00 0:30

Metaphor. Has the jury reached a verdict? I'm John Calcagney, New England's premier criminal defense lawyer, and you're listening to my exclusive podcast. Not guilty, where all things criminal defense are explained and discussed. Thanks for listening and stay tuned.

SPEAKER_02 0:58

Not guilty.

SPEAKER_00 1:04

I'm Rhode Island-based criminal defense lawyer, John Calcagney, and this is my podcast. Today I want to speak about, in broad terms, firearms laws. Second Amendment. Yep. The Second Amendment to the United States Constitution essentially guarantees that individuals in this country, citizens, have the right to bear arms, which has been interpreted in many ways by the United States Supreme Court and other lower courts. But essentially, Americans have the right to own firearms and ammunition. It's essentially embodied in our Constitution, as you pointed out in the Second Amendment, and it's codified into various laws. But it's important that people understand that firearms laws vary from state to state. And as a criminal defense lawyer, I'm well versed with the firearms laws, especially in those states that I practice in extensively, mainly Rhode Island and Massachusetts, though I have a feel for the laws in Connecticut and New York as well, where I'm licensed. And I'm constantly representing people who find themselves on the wrong side of the law, though with good intentions, as it relates to firearms. Okay. So lots of the laws at the state and federal level regarding firearms certainly limit ownership. For example, certain individuals are deemed prohibited persons. They just cannot own or possess firearms or ammunition. And a prohibited person is going to be someone with a felony criminal conviction on their record, someone with a domestic violence conviction on their record, whether it be a felony or a misdemeanor. Somebody that has been subjected to a restraining or a no-contact order can be deemed a prohibited person, as well as folks who've been adjudicated by the court system as being addicted to an illicit substance, addicted to alcohol, or even suffering from a mental health illness. So these are sort of a category of prohibited persons. And it's important to know that who is and is not a prohibited person, that is barred by law from owning or possessing a firearm, can certainly vary from state to state, but these are the big ones that I've just highlighted. So if you get found even uh in connection with a routine traffic stop or a routine encounter on the on the street with police and and you happen to be a prohibited person in possession of a firearm, regardless of type or ammunition, regardless of type, uh you can find yourself uh criminally charged. It's important to know that. It's also important for folks to know that uh the types of firearms uh that are authorized for folks to possess uh can also vary from state to state, and uh it could also be limited uh by the federal law. So, for example, uh most people, unless you have special licenses, most people are prohibited from possessing or owning automatic weapons. Now, there are certain states that do allow for this, and there are certain federal licenses that also permit people to have them, but your average citizen, your average member of the community is going to be prohibited uh from having automatic weapons of any kind. There are also limitations on people possessing or owning sawed-off shotguns. You know, a shotgun traditionally uh is the type of weapon that's used for hunting, right? And uh it's a long barrel rifle. And uh historically, people have used hacksaws to cut the barrel off so that they can conceal the shotgun itself, perhaps, you know, under a long garment, a jacket, some article of clothing, and use them in connection with criminal activity. Uh and as a result, in most states and under the federal law, sawed-off shotguns are completely outlawed. Uh, folks also need to know that depending upon what state you live in, uh, lots of firearm laws include limitations on the magazine capacity for certain weapons. So semi-automatic rifles like the AR-15, that's so commonly known, or semi-automatic handguns, you know, your nine millimeter, your 45 caliber, things like this, which which have a magazine that's inserted into the handle, uh, many state laws have limitations on how many rounds a magazine can hold. So just a little historical lesson, uh, not not too far back in history, but Massachusetts, as far as I know, has always had a 10 round magazine limitation. So if you got found in possession of a firearm that had a magazine in it with more than 10 rounds, or even if you got found in possession of magazines for a firearm that have the ability to store more than 10 rounds, possession of that magazine device in and of itself could be a violation of the Massachusetts state firearm laws. Now, Rhode Island, back in the day when I first became a lawful gun owner, Rhode Island didn't have any limitation on magazine capacity. And in fact, many semi-automatic handguns come right out of the manufacturer's factory with 15-round magazine, 17-round magazine, 12-round uh one firearm brand I can think of even as a 20-round magazine. In the good old-fashioned AR-15 we talked about, standard comes with a 20-round magazine or 30-round magazines. That's how these guns were being manufactured and designed for sale in the marketplace. For many, many years, Rhode Island had no limitation on magazine capacity. And within the last couple of years, Rhode Island has now implemented, just like Massachusetts, that 10-round magazine uh limitation, which, if you are found in possession of what we call a large capacity feeding device, or in Massachusetts, the high capacity feeding device, a magazine capable of storing more than 10 rounds. That's the basis of a felony charge here in Rhode Island. Max punishments five years in jail. So the the state of Rhode Island and the state of Massachusetts mean business when when they're outlawing high capacity magazines. So thank you. That's a nice takeaway for some for folks to know. Uh here's another little tidbit that I want to pass on to folks uh when it comes to firearms laws. It's becoming uh somewhat routine to encounter folks in connection with firearm cases being charged with what's known as a ghost gun. This is a a new term of art that's developed in the legal community over in the past uh maybe few past several years. And the phrase ghost gun is really designed to refer to a gun that has no serial numbers on it, so it can't be traced. And there are plenty of manufacturing companies throughout the world that instead of selling guns are selling kits that contain all of the necessary parts in components to be purchased and assembled to result the final product being a working firearm. And because these kits are not actually firearms, uh, they're not subject to the same regulations that guns are, particularly here in the United States, and they're not subjected to the serial number process. Now, don't think that you're gonna buy one of these kits and it's gonna be like a model airplane or a puzzle and you're gonna piece it together at your your desk in a matter of minutes. The parts themselves often still need to be machined. That is, holes need to be drilled into them for uh particular pins or screws that become necessary for putting together the assembly of a firearm. And because these parts, some of which need to be machined or milled, uh, that is why they're not considered firearms or treated as firearms, but they're treated as firearms building kits. The ghost guns pop up a lot in connection with gang activity, you know, gun violence. And as a result, a lot of states, namely Rhode Island, comes to mind for me, uh, have laws on the books that specifically outlaw the possession of ghost guns, even if you're an otherwise lawful gun owner, and impose heavy punishments. The idea here being to um deter people from pursuing these uh unregistered, untraceable, unserialized firearms that are often used in connection with criminal activity.

SPEAKER_01 10:39

I knew nothing about this at all.

SPEAKER_00 10:41

Yeah, I'm sure you didn't. I'm sure you didn't. But look, over the years, it's become easier and perhaps popular for people to start to build their own guns. Now I've had clients from both ends of the spectrum. On one end, the folks who are allegedly involved in gang activity, engaged in gun violence with the ghost guns. And then at the other end of the spectrum, I have like the really nerdy clients with the science background and the mechanical background who just think it's cool to buy the gun kits with all different colors and designs on the parts and piece together some customized handgun that nobody else in the world has. And oftentimes I am challenged with the uphill climb of trying to distinguish these types of clients for the purposes of minimizing punishment. See, pretty crazy, right?

SPEAKER_01 11:35

It's it's almost like um it's like a bootleg version of a gun. Kind of like in like in my world, when you take something and you remix it or mash up, you're using all these different parts and different pieces that by themselves have no meaning. But then when you put it together, that's so it's at least that's what I'm thinking of as you're describing this. Yeah.

SPEAKER_00 11:57

Yeah, I'm I'm thinking of your I'm thinking of the way you use the word bootleg in a different way. So I'm thinking of the non-bootleg official version, is the song that was released by Def Jam Records or Sony with the brand label on it, and then the bootleg happens to be the version that you created in your basement studio, utilizing the same lyrics or the same hook or bass line that the Sony record had, but putting your own spin on it, and it's non-official. That's a good analogy because uh a well-known firearms manufacturer happens to be this Austrian company called Glock. They make a lot of firearms, they're really popular for self-defense, uh, they're popular with the law enforcement community, the military community. Well, my guess is that the patent for the Glock gun probably ran out at some point. Uh, and companies out there are developing the gun kits with parts that look just like the Glock. And when you assemble the parts to the final assembled firearm, it looks just like a Glock, but it's not the Glock brand. I'm sure that there are definitely distinctions, but it looks the same, feels the same into your, you know, unsophisticated, inexperienced shooter or uh firearm owner. Maybe they don't know the difference. That's the bootleg version. Yeah, that's a great example. And and by the way, you can find these kits online, can probably buy them on Amazon as well as all kinds of other websites and have them shipped right to your home. No problems, no laws violated. But once you would machine it and assemble it and put it all together, well, now you're in violation of the law because you're in possession of a ghost gun.

SPEAKER_01 13:41

I see. And I can see how that could be also like attractive, I'm sure it's cheaper on some part, you know.

SPEAKER_00 13:47

Absolutely. It's cheaper if you're a prohibited person, you put the order online. You don't have to go to the gun store and fill out your applications. You can get yourself in trouble that way. Um there's no waiting period, just like when you go to the gun store. There's no background check like when you go to the gun store. And because of these things, this is why society wants to discourage people from buying these kits, many of which are made in China and having them shipped here, because they give people the opportunity to subvert or avoid the gun laws. Uh, and obviously, that's not good for society. And oftentimes, I find myself representing people accused of uh ghost gun-related charges. Okay. Sticking with the firearms topic again a little bit until we wrap up this episode, some of the firearms laws also regulate firearm parts. So you should know that uh technology has evolved such that various parts have been manufactured that for the skilled gun owner can be installed in a semi-automatic weapon that will convert it to become automatic. These are colloquially referred to oftentimes as switches, an automatic switch. Uh, these are outlawed. If you get caught with those, that's the basis of another criminal charge. And as we were with, if we were to go down the laundry list of firearms chargers, there's uh oftentimes there are restrictions on types of ammunition that people can have, types of ammunition that they can carry. Uh and the list really goes on. Some states are what they call open carry state. You don't even need a permit. You buy the gun, you carry it on your person. As long as other people can see that you have it, you don't violate the law. That's big in Texas. I experienced it once in Kentucky when I saw people walking around with guns. I thought we were under attack. And then the waitress in a restaurant had to tell me, hey, it's an open carry state, sir. This is completely normal. So and then you, you know, the gun laws in the Midwest and in the South are very liberalized compared to the more restrictive laws that we have up here in the Northeast. New York, Connecticut, Rhode Island, Massachusetts. Go a little bit further, Maine and New Hampshire, and they liberalize again. So we happen to be caught in a cluster of states where the laws are pretty strict, and this often leads to problems because my Massachusetts clients who have a Massachusetts license to carry firearms, they find themselves just a few miles down the road. They cross the border into Rhode Island, and now that license to carry isn't valid here. And it works in the reverse. My Rhode Island concealed carry permit holders find themselves stumbling into Massachusetts. That that license has no effect there, and they run afoul of the law. So the federal government, of course, regulates firearms. It's embedded in the Constitution, but the states are allowed to regulate at their level. And because there's no uniformity, uh the variation in firearm laws from state to state creates a lot of confusion uh and often a lot of unnecessary legal problems. Basically, firearms fall into two categories.

SPEAKER_01 17:12

Okay, two categories. Okay.

SPEAKER_00 17:13

Long guns and handguns. A long gun is gonna be a rifle of any kind. It could be something like a shotgun, it could be a hunting rifle, bolt action, or it could be a semi-automatic rifle, like the AR-15. But these are all gonna fall into long gun category. Then you have the handgun. Handguns generally come in two styles: the revolver, which is the type of firearm where the cartridges are fed using a cylinder, typically six rounds, five rounds. I think some are even up to nine round capacity. And then, aside from the revolver and the handgun uh category is the semi-automatic. And those are the types of handguns that have the magazine, which gets inserted into the handle, and the rounds are fed into the chamber utilizing a spring. And you can, as you fire a semi-automatic handgun or a semi-automatic rifle, the um machinery or the mechanism in the firearm ejects the spent shell casing and automatically loads up a new bullet to be fired. So as fast as you can pull the trigger, the weapon can fire. Whereas the revolver, the shell casings that have been fired remain inside of the cylinder chamber to be manually removed and replaced when you're reloading the weapon. So, in terms of ownership, you've got to apply to buy any kind of a gun, and you can make those applications down at your local gun store of choice when you're going to make a purchase. And they do a local background check and a federal background check by having you fill out forms with the uh alcohol, tobacco, and firearms from the feds, ATF. And you've got to pass both in order for the sale to be complete. If you want to own a handgun in Rhode Island, uh you have to own what's called a blue card, and you essentially just take a small test that demonstrates basic knowledge of firearms safety and ownership. Uh used to be true or false. Maybe it's multiple choice today, maybe it's still true or false. I haven't taken it. And I got my first gun immediately when I turned 21. I'm now a lot older, so I don't know what the current test is like, but I know that you can typically take it at a gun store. They score it right there, and if you pass, you move on to the background checks. Every time you want to buy a gun in the state of Rhode Island, it's a seven-day waiting period. And that seven days is designed to afford the gun store as well as the various state, federal, and local law enforcement authorities to run the necessary background checks to make sure you're not a prohibited person before the gun gets sold to you. Other states are different, they have cash and carry. You walk in like you're buying candy, give them the money, they give you the gun, and you walk out the door. But here in Rhode Island, across the border en masse, they have the waiting periods.

SPEAKER_01 20:15

Great.

SPEAKER_02 20:17

Not guilty.