Criminal Possession of a Firearm

Can the government define mere possession of a firearm as a crime?  Yes.  But what is firearm possession?  This page is about gun possession – what it is, and how they prove it.

What is considered possession of a firearm?

Whether you are “guilty” of a  firearm possession crime depends on all the facts and circumstances.  So, what factors are important?

The nature of the thing

Possession of certain forbidden items, or contraband can be made a crime.  Their characteristics are key.  Examples include certain guns and firearm possession.

The status of the person

The possession of things can also be a crime depending upon characteristics of the person.  For example, a felon in possession crime would depend upon proof that the person accused was a person legally ineligible to possess.

Possession crimes examples

What is firearm possession in Minnesota?
What is firearm possession in Minnesota?

Whether a person “possesses” a thing is an important legal issue in many different kinds of criminal law cases, including:

  • drug crimes,
  • gun crimes,
  • certain sex crime cases such as child pornography,
  • stolen property or receiving stolen property cases.

What then, does criminal possession mean?

To understand what “possession” means in criminal law, let’s look at the basic elements that together define a crime.

statute defines every crime. And courts interpret those statutes.   Each statute specifies several “elements” to a crime.

The government’s lawyer must first produce evidence supporting an inference that each “element” of the firearm possession crime existed.   And then the prosecutor must try to convince the jury that her evidence is true and convincing beyond all real doubt.

The three basic elements of every crime

Every crime must at a minimum include at least three elements:

  1. mens rea;
  2. actus reus; and,
  3. identity.

From the Latin, mens rea is “guilty mind” – guilty knowledge or intention to commit a prohibited act.

Actus Reus is “the prohibited act.”  A criminal statute must give the person notice.  It must specify which acts it prohibits and subjects to criminal penalties.

The mens rea element means that person must have had guilty intention to do the prohibited act.

The prohibited act

What is considered possession of a firearm in Minnesota? Explained by Gallagher Criminal Defense Minneapolis
What is considered possession of a firearm in Minnesota? Explained by Gallagher Criminal Defense Minneapolis

First, is the question of actus reus, or the prohibited act element.  Did the accused person actually possess the contraband?  What evidence is there to suggest that the person actually possessed a thing?  If police find an item in their pocket, would that be evidence suggesting actual possession?  No doubt the state would argue this.

What if police find an item, not on the person, but in some proximity?  Where the person did not actually possess the item, prosecutors have some up with the argument of “constructive possession.”  “Constructive” means there is only circumstantial evidence.  Constructive firearm possession is not actual possession.

Courts require evidence of dominion and control to prove constructive possession.  Dominion implies proximity and physical boundaries.  Control implies power.  But ownership is not the same as possession.


Next, is the question of mens rea, guilty knowledge or intention to do the prohibited act.

Knowledge is a minimum, but not enough to prove intent.

Prerequisite:  Where the prohibited act is possession of an item, the person cannot be guilty where she did not know.  If she didn’t know the item was there, or what it was, then she did not criminally “possess” it.  So, knowledge is a low level of intent.  But it is a minimum threshold, required for a crime.


Another basic element of any crime is identity.  Even if someone committed a crime, was the accused person the person who did it?

Identity of the contraband – part of the act or intent elements

In criminal firearm possession cases, a different kind of identity can also be a key issue.  This is the identity of the contraband.  In a gun crime case, sometimes the identity of the firearm can be critical.  Did the person “possess a stolen firearm?  Was it a firearm at all?  Or just a BB gun, or air “gun?”

Firearm possession defense

In a gun possession case, we can defend by analyzing the prosecution evidence.  Does it prove anything?  Or is it just circumstantial evidence proving nothing about the innocent accused?

The law is a seamless web.  While we categorize facts and legal concepts, in real life things are seldom so tidy.

When it comes to criminal possession law, the elements of mens rea, actus reus, and identity sometimes overlap.  For example, what if you legally bought a gun, but did not know the serial number was stolen?  Does that raise the issue of mens rea or, of “identity of the item?” Both.

What about transitory possession of an item that does not belong to you, but to someone else?  Dominion and control may be lacking; or intent to exercise dominion and control may be lacking.

Gun-related pages on

Gun Crimes Defense Attorney
Self-defense Law in Minnesota
Ineligible Person in Possession of a Firearm
What is firearm possession? (this page)
Restoration of civil rights to firearms
Minnesota Carry Permit Law
Carrying under the influence

Gun Possession Defense Attorney

Minnesota Gun Crime Defense Attorney Thomas Gallagher
Minnesota Gun Crime Defense Attorney Thomas Gallagher

If you’re facing firearm possession charges, you should have a criminal attorney with expert knowledge of guns and gun laws.

Minneapolis gun possession attorney Thomas Gallagher is a best-rated Minnesota defense lawyer.  He has a 30 year track record of success.  And Attorney Gallagher is a firearms enthusiast and recognized expert on gun laws.  Take a look at all of the Continuing Legal Education classes Gallagher has taught, including this recent Minnesota Gun Law CLE.

And you can read his extensive articles on gun laws and articles on Minnesota self-defense law.

Question?  You can call Firearm Possession Attorney Thomas Gallagher at 612 333-1500