Criminal Possession of Guns

Can mere possession of a thing be defined by the government as a crime?  Yes.

Woman with handgunThe nature of the thing:  Possession of certain forbidden items, or contraband – depending upon the nature of the things or item –  can be made a crime.  Examples include certain guns and firearms.

The status of the person:  The Possession of things can also be made a crime depending upon characteristics of the person in “possession” of them.  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

Whether a person is “in possession” of a thing is an important legal issue in many different kinds of criminal law cases, including criminal drug possession cases, criminal gun possession cases, certain sex crime cases such as child pornography and computer crime-related cases, possession of stolen property or receiving stolen property cases.

What then, does possession mean?

To understand what “possession” means in the context of criminal law, one must first understand something of the basic elements that together define a crime.

Every crime is defined by a statute and sometimes refined by court interpretation, and is made up of several “elements.”

The government’s lawyer must first produce evidence supporting an inference that each “element” of the crime existed.   Then the prosecutor must try to convince the fact-finder (i.e. jury) that its 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.”  Before a person can be found criminally responsible for violating a law, a statute must clearly put the person on notice of specifically which acts are prohibited and subject to criminal penalties.

The mens rea element means that, before a person can be found criminally liable for violating a law, that person must have guilty intention to commit the prohibited act.

When it comes to crimes of possession, issues of proof of both mens rea and actus reus can be quite important.

The prohibited act

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 an item was found in their pocket, would that be evidence suggesting actual possession?  No doubt the state would argue this.

What if an item was found not on the person, but in some proximity?  If the item was not in the person’s actual possession, government’s and prosecutors have some up with the argument of “constructive possession,” meaning possession supported by only circumstantial evidence.  Constructive possession is not actual possession.


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

Knowledge is required but not enough to prove intent.

Where the prohibited act is possession of an item, in the sense that an item was found on the person or nearby, the person could not be guilty of criminal possession where the person did not know the item was there, or what it was.


Another basic element of any crime is identity – whether, even if a crime was committed, was the accused person the same person who committed it?

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

In criminal possession cases, a different kind of identity can also be a key issue of proof – an additional element (did a crime occur at all?).  This is the identity of the contraband.  In a gun crime case, sometimes the identity of the firearm can be critical.  (Was it a particular, stolen item?  Was it a firearm at all?  Or just a BB gun?)

Possession defense

In a 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 for purposes of analysis, in real life things are seldom so neat and clean.

When it comes to criminal possession law, the elements of mens rea, actus reus, and identity sometimes overlap.  For example, if you knew that you had a gun in your home, knew you had purchased it for a fair price, but did not know that the serial number on the gun was listed as stolen – does that raise the more 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.