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Apr 18, 2008

Started with R.A. No. 54. The penalty was only arresto mayor. During his regime, Pres. Marcos ammended it by passing P.D. 1866.

The decree set the new penalty from arresto mayor to reclusion temporal in its maximum period (17 yrs. and 1 day - 20 yrs.) to reclusion perpetua (20 yrs. and 1 day - 40 yrs.). Furthermore, if the unlicensed firearm was used in the commission of the crime of murder or homicide, penalty is death.

The offender, however, could be tried for both crimes - Illegal Possession of Firearm and Murder/Homicide - and still it would not constitute double jeopardy. There was also no distinction made as to the caliber of the weapon. Whether it is .22, .35, .45, high-caliber or low-caliber, the penalty is the same RT max to RP.

Robin Padilla was sentenced to 17 yrs. and 1 day to 21 yrs. The Indeterminate Sentence Law did not apply so no possibility of parole. No probation either, and no mitigating circumstance, not even if the offender pleaded "guilty."

Q: If the firearm was licensed but the same is already expired?
A: It is the same as possessing an unlicensed firearm.

Q: How is a firearm obtained?
A: File an application at the Firearms and Explosives Office. If you are a member of the police force, you already have the "privilege" to carry a firearm. There are two separate licenses, one for the purpose of keeping a licensed firearm at home and one for carrying it outside. The order required for the latter is often termed as the "mission order."

Q: If your licensed firearm is only for home use and you are caught carrying it outside, are you liable under this law?
A: Yes, you're liable for carrying a firearm without authority.

Q: Can Illegal Possession of Firearms be complexed by Murder or Homicide?
A: In the case of People v. Barros, Justice Laurence Regalado said that under P.D. 1866, two kinds of crimes could be charged -- that of Illegal Possession of Firearm and Murder or Homicide. It would not constitute double jeopardy. However, if the law already punishes the act (Murder or Homicide) with death, the highest penalty under the law, it would be useless to punish the accused by another penalty for the other crime, which is Illegal Possession. The Supreme Court thus ruled, en banc, that there is only one crime - that of Murder or Homicide aggravated with the use of unlicensed firearm.

Later on, in a separate case of People v. Quijado, Justice Davide overturned Justice Regalado's ruling, by stating that the two crimes are under two separate laws. Murder or Homicide is governed by the Revised Penal Code while Illegal Possession is under Special Penal Laws. One crime cannot be absorbed into the other because the two are distinct and separate from each other. Besides, one is not barred from making two separate charges.

The issue became moot when Congress passed R.A. 8294.

Under the new law, several new distinctions were made, including the caliber of the weapon. For low-powered weapons, the penalty is only prision correccional (6 mos. and 1 day - 6 yrs.), which means that the offender can avail of the benefits of probation. If it is a high-powered gun, the measurement of the ring exceeds 9mm, the penalty is prision mayor (6 yrs. and 1 day - 12 yrs.).

Q: Are air rifles covered under this law?
A: There are air rifles that can be converted into .22 caliber rifles, in which case, it is covered under the law.

Q: Under the new law, are there still two separate crimes of Murder or Homicide and Illegal Possession?
A: No. R.A. No. 8294 provides that if the unlicensed firearm is used in the commission of any of the acts under the Revised Penal Code or special laws, possession is considered as an aggravated circumstance. The crime therefore is Murder or Homicide aggravated with the use of unlicensed firearm, and the penalty is death.

Q: The firearm is licensed but you are not the owner. Liable?
A: Yes, because the holder of the license is only the owner of the firearm.

Q: Security guards do not apply for license. Are they liable?
A: Not liable if the agency has a license. What the security guard holds, therefore, is not the actual license but an authority from the agency that he works for and that has a license. The rule is that these firearms are restricted to the designated posts of the guards. They could not be brought home. Otherwise, it would constitute a violation of the law. This is true even if the guard did not intend to bring home the gun. Under the Special Penal Laws, intention is immaterial.

Q: There are instances where the agency will only secure licenses for three guns and then go ahead and distribute six guns to six different guards, changing only the serial numbers of each gun to match the serial numbers in the licenses. Who is liable - the agency or the security gun?
A: A distinction must be made. If the security guard is aware that he is carrying an unlicensed firearm, then he can be charged with the crime. If not, the other two possible offenders are the owner of the company or the manager of the agency.

An employee is entitled to assume that his employer had the requisite license to possess the firearm.

Q: How many guns is a person allowed?
A: Usually two - one long caliber and one short. Long caliber weapons are usually just issued to the military.

Q: Who issues the license?
A: Only the President has the authority to issue a license, but his power is delegated to the Chief of the PNP. If your license was not issued by the PNP Chief, then that license is invalid.


There is no such thing as a complex crime of Illegal Possession of Firearm with Homicide.

There is only one crime, but aggravated (Justice Regalado's ruling).

If you are a member of a gun club, the club will be the one who will process everything for you and you will only receive the gun.


Anonymous said...

Great post..

Just for clarification..

What if a guy commits illegal possession of firearms after he commits other light threats.

What will be the case?

Is he entitled for illegal possession of firearms or just other light threats or even both?

jute said...

Please note that Sec. 1, R.A. 8294, as amended, contains the caveat: "xxx: Provided, That no other crime was committed."

Anonymous said...

The firearm is licensed but no permit to carry. Which court will handle? MTC or RTC?

scire licet said...

Even if the firearm is licensed but you have no permit to carry, that is still a violation of this law. The penalty is arresto mayor, which is from one month and one day to six months. That is under the jurisdiction of the MTC.

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