Section 265.03 Wording
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  1. #1
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    Default Section 265.03 Wording

    Trying to understand the wording of Section 265.03. It seems that the way it is worded would imply that having an unloaded handgun in your home is permissable. When reading it like this "Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business."

    Anyone care to comment or add thoughts? Does this allow for a lawful person to have an unloaded handgun in their home as long as it falls within the other requirements?



    Section 265.03

    Criminal possession of a weapon in the second degree
    Penal (PEN)


    A person is guilty of criminal possession of a weapon in the second degree when:


    (1) with intent to use the same unlawfully against another, such person:


    (a) possesses a machine-gun; or


    (b) possesses a loaded firearm; or


    (c) possesses a disguised gun; or


    (2) such person possesses five or more firearms; or


    (3) such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business.


    Criminal possession of a weapon in the second degree is a class C felony.

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  3. #2
    Colonel OwnTheRide's Avatar
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    The part you're missing is 265.01, where possession of an unloaded firearm in any location is prohibited.

    In other words, possessing an unloaded firearm in your home (without qualifying for an exemption as defined in 265.20) is criminal possession of a weapon in the fourth degree, but you're looking at the law that defines criminal possession of a weapon in the second degree.

    Be sure to note my signature.
    Anything stated in the above post is my personal opinion and should not be construed as legal advice.

  4. #3
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    All that is saying is that the elevated felony charge (2nd degree) does not automatically apply in the home, however you would still be guilty of unlawful possession in the 4th degree (A misdemeanor) or 3rd degree (D felony), depending on how many illegally possessed firearms you had.

    It is important to note however that included in the SAFE act is a provision which allows police or a DA to charge anyone with Criminal possession of a weapon (265.01b) which is an E felony, at their discretion for possessing any illegal weapon, regardless of circumstances.
    Last edited by smitty846; 07-09-2020 at 01:23 PM.

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  6. #4
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    Quote Originally Posted by OwnTheRide View Post
    The part you're missing is 265.01, where possession of an unloaded firearm in any location is prohibited.

    In other words, possessing an unloaded firearm in your home (without qualifying for an exemption as defined in 265.20) is criminal possession of a weapon in the fourth degree, but you're looking at the law that defines criminal possession of a weapon in the second degree.

    Be sure to note my signature.

    Thank you for clarifying. That helps!

  7. #5
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    Quote Originally Posted by smitty846 View Post
    All that is saying is that the elevated felony charge (2nd degree) does not automatically apply in the home, however you would still be guilty of unlawful possession in the 4th degree (A misdemeanor) or 3rd degree (D felony), depending on how many illegally possessed firearms you had.

    It is important to note however that included in the SAFE act is a provision which allows police or a DA to charge anyone with second degree (C felony) unlawful weapons possession at their discretion, if the person does not have a license to possess the firearm regardless of the circumstances.
    Thanks so much for the insight!

  8. #6
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    Quote Originally Posted by roosterdoode View Post
    Thanks so much for the insight!
    See my updated edit. It is a separate charge, not 2nd degree. Same basic outcome though.

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