Hey, there! Log in / Register

Court: You may not need a license for an antique gun, but you still can't pull one out in a road-rage incident

The Massachusetts Appeals Court today upheld a man's conviction for illegal gun possession in a 2013 Newton road-rage incident because a gun is a gun no matter when it's made and, in any case, he failed to prove his gun was actually an antique exempt from normal state gun-licensing requirements.

In his appeal from convictions of unlawful possession of a loaded firearm and possession of a firearm without a license, Byung-jin Kang said the judge in his Newton District Court trial improperly barred him from testifying he thought his gun had been made before 1900 - such guns do not normally require Massachusetts licenses - and then improperly refused to tell the jury about the antiques clause of a state gun law.

But the appeals court said the judge did nothing wrong in blocking Kang - who acknowledged buying what he was an antique gun because his local police department probably wouldn't let him license a newer weapon - from testifying that he thought he was carrying a loaded gun in his car when he got into a roadside argument with another driver on Needham Street. The argument ended with the other driver wrestling the gun away from him. Kang was acquitted on a charge of assault with a dangerous weapon.

The court said that neither of the two stat laws that deal with gun-related penalties provide

[F]or the affirmative defense of a defendant's honest but mistaken belief that he is exempt from firearms licensure requirements. The defendant has provided no authority to the contrary. The defendant's personal belief in the antiquity of the firearm was therefore irrelevant, and was properly excluded.

In any case, Kang failed to provide enough evidence the gun actually was an antique, the court continued. Kang testified he bought the gun from a Web site specializing in antique guns, specifically via a page labeled "Pre-1898 manufactured firearms."

But you can't believe everything you read on the Internet and Kang needed a higher level of proof than a label on a Web site, the court said.

At trial, the defendant offered evidence consisting merely of the hearsay labeling of the Web site from which he purchased the firearm, combined with the hearsay title of the section in which the firearm was listed. The defendant proffered no evidence regarding the reliability of the Web site or its labeling, any relevant features of the firearm itself, or any materials or certificates accompanying the weapon.

Neighborhoods: 
Topics: 
AttachmentSize
PDF icon Complete Kang ruling141.21 KB


Ad:


Like the job UHub is doing? Consider a contribution. Thanks!

Comments

That sounds like something the jury should have been left to decide.

up
Voting closed 0

The judge decided that the evidence was hearsay and therefore inadmissible. This is what judges do. Juries make decisions based on admissible evidence.

Explaining the exclusion is not necessary if there's no evidence it would apply.

up
Voting closed 0

should have known before presenting the evidence in court.

up
Voting closed 0

his lawyer was throwing something up against the wall hoping it would stick because he had no other defense to offer.

up
Voting closed 0

Sounds like something a NON LAWYER would say on the internet.

The lawyer's job isn't to be the judge. The LAWYER'S JOB is to provide the client with a defense.

up
Voting closed 0

that is not supported by other than hearsay claims - as the judge ruled - would be thrown out. IANAL, but it seems to me that's something they would teach in Lawyering 101, and would also be covered on a bar exam.

And if the lawyer decided "We'll try it, and if we lose, we'll appeal", they should be disbarred immediately.

up
Voting closed 0

In simple language: Defendant did not sufficiently prove gun was made before 1898. We will not define what proof would be necessary to make this determination. Cowardly decision by judge klein.

up
Voting closed 0

In simple language: Defendant did not sufficiently prove gun was made before 1898. We will not define what proof would be necessary to make this determination. Cowardly decision by judge klein.

Not even close.

Defendant offered the defense that he believed the gun was made before 1898. What the defendant did or did not believe is not relevant under the law. Therefore we will not allow statements about the defendant's belief about the gun.

up
Voting closed 0

Defendant offered the defense that he believed the gun was made before 1898. What the defendant did or did not believe is not relevant under the law.

.32 ACP was not introduced until 1899, so there's very little chance the gun used in the crime was made pre-1898.

up
Voting closed 0

You're embarrassing the entire family...of green drooling aliens from various Simpsons episodes.

up
Voting closed 0

Sounds to me that the gun actually turned out to be not an antique, if the only claim that was made by the defense stemmed from the stipulations of the retailer. It is very easy to definitively determine the year of production of just about any major brand revolver made in the late 1800's. Although I didn't read the actual ruling, only this article.

Also, there is no antique exemption for ammunition, so even if the gun was an antique, and loaded, then this guy would be illegally possessing ammunition (unless he has an FID).

But, if the gun was actually an antique, then this judge is wrong (or Kang's lawyer really sucks), as the law is very clear about pre-1899 guns not being considered firearms under the law.

up
Voting closed 0

is irrelevant to the guy he pointed it at. And he was acquitted on that charge, perhaps because there were additional, and lesser, charges the jury could find him guilty on. Like "Cheezy Rider" on the Expressway this morning. "OUI, ok. Negligent Operation, eh. Marked Lanes Violation - Throw the book at him"

up
Voting closed 0

It is very easy to definitively determine the year of production of just about any major brand revolver made in the late 1800's.

How exactly does a layman go about matching a 100 year old gun to its manufacturing date? Google image search?

up
Voting closed 0

You can match the serial codes to manufacturer logs. You can inspect the gun to see if the firing system was made before 1899 by having some firearm knowledge. I have a bunch of these black powder guns with no gun license as it's not needed. Most of mine aren't even antiques. They were made within the last 5 years which is still legal under our laws because it uses a firing system pre 1899. And you can get around the ammo regulation's legally and easily enough.

up
Voting closed 0

Not sure if this applies but I once was sucessful in a gun possession case by presenting evidence from a ballistician Bthat the gun was not capable of being fired

up
Voting closed 0

That gun was a great employee!

up
Voting closed 0

You mean that my purchase from totallylegaloxycontinandweed.com was probably a ripoff?

What about the stuff I ordered from plastiqueRus.net? RealVXandSarin.com?

Whoh. I feel really dumb now.

up
Voting closed 0

How about innocent untill proven guilty! Isn't it up to the state to prove this man guilty not him to prove himself innocent.

up
Voting closed 0

The state DID find him guilty. Or rather, proved to a jury that he was guilty beyond a reasonable doubt on the two charges.

up
Voting closed 0

Not superior court. Slight correction. ; )

Thanks as always for posting these- always interesting.

up
Voting closed 0

Fixed the court mistake.

up
Voting closed 0

I got nailed too with my antique heroin while soliciting an antique prostitute. Why won't our judges respect our history.

up
Voting closed 0