The "right to keep and bear arms" is enumerated and preserved by both the Second Amendment to the U.S. Constitution and Section Six of the Constitution of Michigan of 1963. Michigan law permits an individual to openly carry a firearm in public (provided certain time and place restrictions are satisfied) or permits an individual to carry a concealed weapon after obtaining the proper licensure. However, no matter if the firearm is open-carry or concealed, Michigan law prohibits any person from carrying a weapon with unlawful intent. A violation of this statute can result in criminal penalties that include fines, probation and even imprisonment.
MCL 750.226 states "[a] person shall not, with intent to use the same unlawfully against the person of another, go armed with a pistol or other firearm, or a pneumatic gun, dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length, or any other dangerous or deadly weapon or instrument."
- A dirk is a straight knife with a pointed blade. People v Payne, 180 Mich App 283, 287; 446 NW2d 629 (1989).
- A dagger is a knife with a short, pointed blade. People v Payne, 180 Mich App 283, 287; 446 NW2d 629 (1989).
- A stiletto is a small dagger with a slender, tapering blade. People v Payne, 180 Mich App 283, 287; 446 NW2d 629 (1989).
- "Pneumatic gun" means any implement, designed as a gun, that will expel a BB or pellet by spring, gas, or air. Pneumatic gun includes a paintball gun that expels by pneumatic pressure plastic balls filled with paint for the purpose of marking the point of impact. MCL 123.1101(d).
- "Other firearm" means any weapon which will, is designed to, or may readily be converted to expel a projectile by action of an explosive, including rifles and long-barrel guns that do not require licensure for purchase. MCL 123.1101(a). The definition of "firearms" under this statute is far broader than the definition of weapons prohibited under the concealed weapon statute in MCL 750.227. People v Smith, 393 Mich 432; 225 NW2d 165 (1975).
An individual is guilty of carrying a dangerous weapon with unlawful intent, contrary to MCL 750.226(1), if the prosecutor can prove ALL of the following beyond a reasonable doubt (Model Criminal Jury Instruction 11.17):
- First, that the individual went armed with a dangerous weapon defined under MCL 750.226(1).
- Second, at that time the individual intended to use this weapon unlawfully against someone else.
Carrying a dangerous weapon with unlawful intent is a specific intent crime, meaning that the prosecutor must prove beyond a reasonable doubt that the defendant had the mindset to use the carried weapon with an illegal purpose. In People v Flinnon, 78 Mich App 380; 260 NW2d 106 (1977), the defendant (along with two other individuals) was convicted of armed robbery, assault with intent to murder, and carrying firearms with unlawful intent relating to a gas station hold-up and shooting of the clerk. When the three defendants were arrested, two loaded rifles and a handgun were located in the passenger cab of their vehicle. However, there was no evidence that the rifles were present during the robbery. "It is not a question of whether defendants might have carried the rifles with the unlawful intent, but whether they in fact did have an unlawful intent". "Conviction under this statute must rest on proof of the intent with which the weapons were carried, not mere possibilities. The fact that loaded weapons were present in the passenger compartment of the vehicle does not prove the intent with which they were carried." Therefore, the Michigan Court of Appeals reversed the conviction on the basis of insufficient evidence.
A person found guilty of carrying a weapon with unlawful intent receives a felony conviction punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00. MCL 750.226(2). In addition, the pistol will be forfeited to the State of Michigan. MCL 750.239(1). Also, if the offense occurs in a weapon free school zone, the judge can order up to 150 hours of community service and a fine up to $7,500.00 in addition to the normal penalties. MCL 750.237a(1).
A charge of carrying a weapon with unlawful intent is a serious allegation and requires the assistance of a skilled criminal defense lawyer. If you or a loved one are charged with any weapon crime, do not hesitate to contact the attorneys at Kershaw, Vititoe & Jedinak PLC today.