Affirmative Defense
A lot of firearms laws are that way. For instance, in TN, it is illegal to own a machine gun. However, having paid your federal tax and gone through the NFA process is an affirmative defense to owning a machine gun. So, they could arrest and charge you. Then you’d have to go to court with your tax stamp and say you are legit. In theory. Around here, that doesn’t happen and showing a cop your tax stamp is good enough. But they could still arrest you.
In Florida, having a concealed carry permit is an affirmative defense. And that is pretty bad law considering it is the Gun Shine State.
November 7th, 2013 at 11:35 pm
Uh-uh! First of all not all State’s Attorneys are geniuses or ethical — that’s a given, think Angela Corey — so this clown should not be a big surprise.
Second, “stop and frisk” comes from Terry v. Ohio which says, “If a police officer has articulable suspicion that a crime may be being committed, he may stop and question the suspect, and pat down his clothing for weapons for the officer’s protection while he is questioning him”. That’s not hard, right?
Now State’s Attorney Clown jumps Terry. If a police officer, during the pat down, finds your gun and you show him your permit, he does not have probable cause to arrest you for illegal carry, a higher standard than for stop and frisk. If he does, he is guilty of false arrest, false imprisonment, and of violating your civil rights while armed with a firearm a federal felony with a mandatory minimum sentence of ten years. Ok, that last part won’t happen unless your cousin is the US Attorney.
So, don’t let one clown get you down.
November 8th, 2013 at 2:13 am
Where did you get the idea that it’s illegal to own a machine gun in Tennessee? State law makes anyone who qualifies for an NFA purchase a mandatory shall-sign for sheriff’s and police chiefs.
November 8th, 2013 at 7:56 am
LKP: It is illegal to own one, but the tax stamp makes it legal by giving you a defense to the charge.
November 8th, 2013 at 9:49 am
The Houston TX district attorney used to have police arrest out of town visitors with guns in their cars, despite the TX law (affirmative defense) that going armed while traveling was legal.
A new law had to be passed, partly because of citizen complaints against that clown, detailing that essentially anyone in a car was “traveling” and not subject to arrest for having a loaded handgun with them.
Clowns will be clowns.
November 9th, 2013 at 11:09 pm
Illegal to own a machine gun in TN? Then how did the Blogger Shoot get done? I thought Bullet Fest was an annual thing?
November 12th, 2013 at 11:31 pm
In Texas, for NFA, it is a “defense”, not an “affirmative defense”. The difference being, once a “defense” is raised, the state has a burden of disproving beyond a reasonable doubt. For an “affirmative defense” the defendant has to prove by the preponderance of the evidence.
November 13th, 2013 at 5:49 pm
TCA 39-17-1302
(a) A person commits an offense who intentionally or knowingly possesses, manufactures, transports, repairs or sells:
[…]
(3) A machine gun;
See? Illegal. Later on…
(b) It is a defense to prosecution under this section that the person’s conduct:
[…]
(7) Involved acquisition or possession of a sawed-off shotgun, sawed-off rifle, machine gun or firearm silencer that is validly registered to the person under federal law in the National Firearms Registration and Transfer Records.