When one mentions hunting, fishing, and shooting sports, there isn’t a finer place to enjoy these activities than Maine. Maine has a significant outdoor tradition and Mainers are gun owners. Are you aware of your Maine Gun Rights? The Second Amendment preserves the right to bear arms on the Federal level. There are certain situations within the Maine Gun Laws, where it is possible for you to lose your Maine Gun Rights to own or possess firearms. For outdoor enthusiasts, it can be difficult to lose their ability to lose their sporting firearms. If your Maine gun rights are in jeopardy, the best thing is to hire an experienced criminal defense attorney to fight for your rights.
As we talk about the details of your case at the free consultation, one of things we discuss is the line in the sand. If you choose my firm to represent you, we are going to draw a line in the sand. On our side of the line is your future how you envision it to be. On the other side of the line is the State of Maine, with their charges, fines and loss of your Maine Gun Rights. Also the repercussions a conviction will have on your ability to protect yourself or go hunting.
As your lawyer, we will do everything in our power to stop them from crossing that line and taking your Maine gun rights. We will fight for you using all of our passion, conviction and skill.
Given my decade of experience, this article is to help answer some of your questions if you feel your Maine gun rights are in jeopardy and how an attorney can help defend you against the charge. We will review:
- Who has Maine Gun Rights / Who may possess a gun in Maine
- When you can lose gun rights in Maine (state and federal)
- How an attorney can help restore your Maine Gun Rights
- The Maine Court Process for cases affecting your 2nd amendment rights
If you or someone you know is facing a criminal charge in which their Maine gun rights are affected, I encourage you to contact The Nielsen Group for your free and confidential legal consultation. I am always happy to meet with people and to answer their questions so that their mind is put at ease.
Who has Maine Gun Rights / Who may possess a gun in Maine?
Within the U.S. Constitution, the 2nd Amendment grants American citizens the right to possess arms. Often the state governments place restrictions upon this right. Maine gun rights apply to all its residents. Maine is an open carry state, however if you have been convicted of any federal or Maine state crimes which prevent you owning a firearm, then you may not open carry. If you want to carry a concealed weapon, you will need a concealed carry permit. Concealed carry permits are issued by the local or state police in Maine.
When can you lose your Maine gun rights?
There are federal and state situations where you can lose your Maine gun rights. I often equate it to being between a rock and hard place. You have the federal laws on the rock side and the Maine state gun laws at the hard place.
Let’s take an in depth look at the state and federal limitations which will place a ban on your Maine gun rights:
- Any conviction for a felony crime – The federal law is within the main firearm statute, 18 U.S.C. § 922(g)(1). This law states anyone “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” cannot own a firearm. The other sad point here is that the conviction qualification is according to the maximum sentence as defined in the Maine Statutes. Even the lowest Maine felony, a class C felony has a mandatory jail time sentence of at least 5 years. Most convictions of a felony within Maine qualify for this restriction on your Maine Gun Rights. The Maine statute, Title 15 §393, states that an individual with any conviction with a sentence of at least a year of imprisonment may not own firearms. As with all laws, there are some exceptions. Federal Law 18 U.S.C. §921 gives us the guidance that felonies “pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices” are excluded from the ban on owning firearms is convicted of a felony at the federal level.
- Conviction for a Domestic Violence charge – The Lautenberg Amendment is a gun ban for individuals convicted of a misdemeanor domestic violence crime. The amendment can be found in 18 U.S.C. § 922(g)(9). This law states “[i]t shall be unlawful for any person … who has been convicted in any court of a misdemeanor crime of domestic violence” to own a firearm or ammunition.” At the federal level of the law, which of course has different language that Maine state laws, the misdemeanor domestic violence crime is defined by 18 U.S.C. § 921(a)(33). The law states a “misdemeanor crime of domestic violence … has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.” So simply stated if you have been convicted of domestic violence crimes within Maine or another us state, you are banned from owning firearms or ammunition.
- Being the Defendant in a Temporary or Final civil Protection From Abuse (PFA) Order – The Lautenberg Amendment also provides guidance for banning the possession of firearms or ammunition to defendants in a domestic violence protection order. In Maine, a temporary or Final civil Protection From Abuse Order qualifies as a domestic violence protection order. This guidance comes from 18 U.S.C. § 922(g)(8). When the PFA expires, the federal firearm ban expires also.
- As a result of bail requirements for a Domestic Violence Charge in Maine – The mandatory bail requirements for a domestic violence charges include a no-contact order and a requirement not to be in possession of firearms.
- Frequent users of Illegal drugs – Under Federal Law, 18 U.S.C. § 922(g)(3), guidance is given that any person “who is an unlawful user of or addicted to any controlled substance” is banned from possessing firearms. So if you have multiple convictions of possession of a drug like marijuana in the recent past, you may qualify for being banned from owning a firearm.
- Fugitives from justice – A “fugitive from justice” may not possess a firearm in Maine or anywhere in the United States. A fugitive is typically someone who has fled to avoid prosecution for riminal charges or to avoid testifying at court.
- Persons who have been involuntarily committed to a mental institution – Federal Law, 18 U.S.C. § 922(g)(4), states one is banned from owning or possessing firearms if one “has been adjudicated as a mental defective or has been committed to any mental institution.” What this means is that if you have been committed to a mental facility against your will or charged but not convicted of a crime due to mental illness or the insanity defense. You are not to own a gun or other firearms – effectively losing your Maine Gun Rights.
- Illegal Aliens – A person who is not lawfully in the United States is banned from owning a firearm according to the Maine Federal Statute, 18 U.S.C. § 922(g)(5).
- Persons who have renounced U.S. citizenship – If you have ever renounced your US citizenship, like 3100 former Americans did 2013. In order to renounce citizenship, you needed to pay a $450 fee to the FBI. Those who officially renounce citizenship are barred from buying guns in the United States.
- Persons dishonorably discharged from the Armed Forces – The federal law is within the main firearm statute, 18 U.S.C. § 922(g)(6). This law states anyone “who has been discharged from the Armed Forces under dishonorable conditions” cannot own a firearm.
- Persons who have committed a crime using a firearm or other dangerous weapon in Maine – The Maine Statute, Title 15 §393, states that an individual with any conviction of a crime using a weapon or firearm, is banned from possessing or owning a firearm.
- Persons who were convicted as a juvenile of a crime of domestic violence, a felony, or a crime aggravated by use of a firearm – As an adult according to the Maine Statute, Title 15 §393 you are banned from owning a firearm if you were convicted of domestic violence, a felony, or a crime aggravated by use of a firearm.
One point of note, is there is a lot of overlap between Federal Laws and Maine Gun Laws. In cases where there is a conflict. Federal Laws are the ones that are followed and will impact your Maine Gun Rights.
If convicted of a domestic violence-related crime or a felony crime, then you would become a person “prohibited from possessing firearms.” This means not being allowed to own guns or have any firearms, period. In this way, these types of convictions can make you lose your Maine gun rights to possess a firearm, and even ammunition.
Once identified as a person who is prohibited from owning firearms, if that person is found with any firearms, then that person has committed a federal offense. Federal criminal charges carry with them significant penalties, including jail time. Under the Federal Sentencing Guidelines, the federal mandatory minimum sentence for this violation is ten (10) years.
How a criminal defense lawyer can help restore your Maine Gun Rights
When your Maine gun rights are put at risk, it is essential to hire an experienced criminal defense attorney to help defend your rights. Here are some of the defense strategies that your defense attorney might employ to preserve your Maine Gun Rights:
- Challenge the State’s Evidence of the Crime. In order to win a conviction, the State’s attorney has to prove by beyond a reasonable doubt that you in fact committed the crime as accused. The role of your criminal defense attorney is to challenge the State’s evidence and uncover reasonable doubt whether the State’s version of the story is correct.
- Attempt to Suppress the State’s Evidence. If the State got a hold of certain evidence that was obtained in violation of your Constitutional rights, then your criminal defense attorney can request the Court to exclude that questionable evidence from being admitted into evidence at trial. If successful, the State would be deprived of this certain questionable evidence, and increasing your chances for success at trial.
- Fight the Charge for an Acquittal. By far, the best defense strategy is to fight the charge aggressively at court. An aggressive defense can potentially result in either a dismissal of the criminal charge, a plea deal that would not affect your Maine gun rights, or in an acquittal of the criminal charge altogether.
Maine Court Procedure for Cases Affecting Second Amendment Rights
Maine Court Procedure for Domestic Violence
In Maine, the majority of domestic violence charges are misdemeanors. When the police arrest the suspect for domestic violence, the person accused usually has contact with the bail commissioner before being released on bail. In Maine, domestic violence charges carry a number of mandatory bail conditions, including no use or possession of firearms, including all sporting firearms. While you are on bail, you will have temporarily lost your Maine Gun Rights.
Bail Condition of No Possession of Firearms
While on bail, if the person charged with domestic violence. There is a mandatory bail conviction which cause the accused to temporarily lose their Maine Gun Rights. If there are any firearms in their home, vehicle, etc., then that person must give away or sell their guns while the domestic violence case is pending at court. Often, clients will choose to give their guns to a trusted friend, or to the police to hold onto the firearms while the case is pending.
Unified Criminal Docket Procedure Domestic Violence
A typical misdemeanor domestic violence case out of Portland or Bangor will end up in the Unified Criminal Docket. Your first court date would be an Arraignment, where you can answer to the charge in the form of Not Guilty. Pleading Guilty or pleading Nolo Contendere would have the effect of a conviction, as well as the loss of Maine gun rights that comes with a domestic violence conviction in Maine.
Arraignment is followed by a Dispositional Conference, where a negotiated resolution to the case is attempted by the State’s attorney and the criminal defense lawyer. If no resolution is reached that is acceptable to the defendant, then the case would progress to pretrial motions and a jury trial. Jury Selection is when a pool of potential jury members are selected from a pool of people selected for jury duty. At Trial, the Jury decides whether or not the defendant is guilty or innocent.
If you are plead to or are found guilty of domestic violence, then you would become a person who is forbidden from owning or possessing firearms – permanently losing your Maine Gun Rights.
District/Superior Court Procedure Domestic Violence
If the domestic violence case occurs in most counties in Maine, such as York County, Oxford, Kennebec, Androscoggin, etc., then a misdemeanor case would start at the District Court for an Arraignment. At Arraignment, the charges are read and you would have an opportunity to answer to the charges in the form of Not Guilty. After Arraignment, your case can either be heard by a Judge at a Bench Trial at the District Court, or the criminal defense attorney can submit a Jury Trial Request to transfer your case to the Superior Court, where a Jury Trial is available.
If transferred to the Superior Court, the first court date there would be a Docket Call, Here, the attorneys meet to attempt to resolve the case without going to trial. If after reviewing the plea offers, and the Defendant does not wish to accept the deal, then the case would proceed to pretrial motions, Jury Selection and Trial. If the criminal defense lawyer has submitted any pretrial motions, such as a Motion to Suppress, then a Hearing would be held to determine whether certain evidence should be excluded from evidence at Trial.
A Jury Trial is a very public proceeding for a domestic violence case. Because of this, many domestic violence defendants choose to not go to trial. This choice should be supported by the criminal defense lawyer, the private investigator report, and the facts of the case. Again, if you are found guilty of a domestic violence crime, then you would become a person who is forbidden from owning or possessing any firearms – permanently losing your Maine Gun Rights.
Maine Court Procedure for Felony Charges
Felony charges in Maine are Class C, Class B, and Class A crimes. Felony cases in Maine are heard at the Superior Court as well as at the Unified Criminal Docket. Felonies include many serious types of crimes, including illegal drug trafficking, burglary, robbery, aggravated assault charges, certain theft charges, as well as domestic violence charges with prior offenses, drunk driving charges, and Habitual Offender revocation. When charged with a felony, you might or might not be released on bail immediately. If you are released on bail, one of the potential bail conditions can be no use or possession of firearms – temporarily losing your Maine Gun Rights.
In order to be charged with a felony crime in Maine formally, the person needs to be indicted by a grand jury. The State has three grand jury cycles, or six months, to indict you. After you are indicted, you can be Arraigned, where the details of the charge are read and you can answer Not Guilty. At Arraignment, often your attorney receives a copy of the discovery materials, including the police reports.
After Arraignment, the felony Court procedure would be the same as that described above for the Superior Court. Ultimately, if you are convicted of the felony crime, then you would become a person prohibited from possessing firearms. However, if you were instead convicted of a non-domestic violence-related misdemeanor, or if the felony charges were dismissed, then your Maine gun rights would not be impacted.
Maine Court Procedure for Protection from Abuse
A Protection from Abuse case is a civil proceeding, also referred to as a “protection order,” in which a Plaintiff can petition the court for relief from domestic abuse. The civil court procedure for a Protection from Abuse case is outlined in more detail in a companion article. After the Plaintiff submits a Complaint for Protection from Abuse, the Judge might issue a Temporary PFA Order pending a Hearing on the issue. This Temporary Order can include that the Defendant be not permitted to possess firearms while the civil case is pending – temporarily losing your Maine Gun Rights. In this case, the Defendant would have to give their guns to the police or to a trusted friend or family member where they do not live for safekeeping.
In a Protection from Abuse case, a Hearing is held on the issue of domestic abuse. This hearing can be resolved in a number of ways, from a Hearing where there was a finding of abuse from the Judge to a Consent Order, which is an agreement between the parties. Due to a low burden of proof if the Plaintiff has a strong case it may be worthwhile to consider weighing your options and opt for a Consent Order, as this would preserve your Maine gun rights.
Even if you might lose your right to possess firearms during the two-year duration of the Consent Order, your Maine gun rights would be restored and you would be able to get your guns back after the two years have expired. If there is a PFA Hearing held, and you lose, it is a lifetime ban on your Maine gun rights.
If you or someone you know is in need of help with restoring Maine gun rights. It is a wise decision to hire an attorney to represent you. We are available to answer any questions relating to Maine’s gun laws. We will take the time to answer your questions and to put your mind at ease as we work with you to determine a defense strategy.
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If you would like to call us now at (207) 571-8555, we can begin to develop your case strategy.
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