Bovine, Flatulating: wrote:A great many of those are strict liability crimes where the offense isn't really doing anything, or having any mental state, but rather owning a firearm or weapon of a variety that isn't allowed by some governmental entity,....
First, I very much doubt that there is now, or ever has been, a "strict liability crime" for which someone can be found guilty without doing anything
A couple of things here - and I'm not trying to nitpick or be adverse - but you're combining a couple of concepts here. A strict liability crime is not one where one can be found guilty without doing anything. It is a crime where one can be found guilty without regard to mental state.
Historically, for there to be a crime, there must have been an act (actus reus) and a mental state (mens rea), both elements which must be proven by the prosecution beyond a reasonable doubt, along with any other elements. For example, manslaughter, the negligent (mens rea) killing of another person (actus reus). Most common law crimes (real common law, not make believe sovrun common law) have both a mens rea and actus reus element.
The phrase "strict liability crime" refers to a crime where there is no mens rea or mental state element. It is a legal term of art. Such crimes have been on the books for about the past 3 or 4 decades and are therefore a relatively recent occurrence. Some question their validity as without even a mental state of "knowingly" they lead to prosecution and incarceration of persons who simply don't have a criminal mindset and never intended to commit any crime - many gun laws for instance are strict liability - e.g., have a loaded weapon in a place where you're not supposed to and it doesn't matter if you knew, didn't know, intended to use, didn't intend to use, etc. The mens rea is not an element hence the phrase strict liability.
A bill was introduced in the Senate recently to outlaw such crimes. I don't give it much a chance of passing, but personally it sounds like a good idea to me. YMMV.
Here's a wikipedia article on the subject: http://en.wikipedia.org/wiki/Strict_liability_(criminal)#United_States
So, yes "strict liability crimes" exist, even though many think they shouldn't, and they don't involve crimes where "no one did anything" (actus reus) but rather crimes where there is no intent element that must be proven by the prosecution.
LPC wrote:Second (and this may seem trivial), weapons offenses are usually based on possession and not "owning" or "ownership." Owning a gun in the abstract is not necessarily illegal if it's not in my possession, and having a gun in my possession may be illegal regardless of who "owns" it.
Correct - but owning some guns or weapons is enough, under certain strict liability crime statutes, to be a crime. In my state, the wrong combination of where you have the gun, the ammunition, and circumstances can all combine to make your possession of an otherwise perfectly legal firearm illegal, regardless of mental state, knowledge of law, what you had for breakfast, etc.
LPC wrote:Third (and perhaps most important), the possession of something is "doing something." Unless you were born with a gun duck-taped to your hands, if you "possess" a gun then you bought it, picked it up, didn't put it down, or did *something* to acquire or maintain possession of that gun. Mere possession is therefore the "doing something" that is the "actus rea."
I'll leave "mens rea" and other issues to others.
If it is, there should still be a requirement that there be a mens rea. For example, if one is driving a car where a passenger left contraband, one may have possession of it, but unless that is "knowing" or greater mens rea, there is no criminal mindset and in my idea of a just legal system, should be no statute which would criminalize that.
Nothing I'm saying here other than my own editorializing and statements of preference are anything which I think any legally trained person would disagree with. I'm not engaging in any crazy theorizing here, rather, this is stuff right out of my criminal law courses in law school way back when.