What is the difference between federal and state gun laws? Why do I need to understand both?
This section will explain the basics of federal gun laws. If you go to State Gun Laws, and enter your state into the drop-down menu, you may also see gun laws that are specific to your state. The major difference between federal and state gun laws has to do with:
- who makes the law;
- who prosecutes someone who violates the law; and
- what the penalty is for breaking the law.
One reason why it is important for you to know that there are these two sets of gun laws is so that you can understand all of the possible ways that the abuser might be breaking the law, and you can better protect yourself. If you are calling the police because you believe the abuser has violated a gun law, you do not necessarily need to be able to tell the police which law was violated (state versus federal) but local police generally can only arrest someone for violating state/local laws. Generally, local police cannot arrest someone for violating a federal law. Only federal law enforcement officers from the Bureau of Alcohol, Tobacco and Firearms (“ATF”) can arrest someone for violating federal laws.
If the local police believe that a state law is being violated, they could arrest the abuser and hand the case over to the state prosecutor. If the local police believe a federal law is being violated, hopefully, the police department will notify the ATF or perhaps the U.S. Attorney’s office in your state (which is the federal prosecutor). For information on how you can contact ATF directly to report the violation of federal gun laws, go to the ATF website to find the office nearest you. If the abuser is breaking both state and federal laws, s/he might be prosecuted in both state and federal court.
What is a felony?
Throughout these gun law pages, we will refer to gun laws that make it illegal for someone convicted of a felony to have a gun. A felony is defined under federal law as a crime that is punishable by a prison sentence of more than one year.1 However, you cannot always tell if someone was convicted of a felony only by looking at the amount of time s/he actually served in prison because sentences are often reduced or pled down. For example, if someone was convicted of a felony but only spent six months in prison, s/he would likely still not be able to legally have a gun under federal law. If you are unsure if the abuser was convicted of a felony, you might want to talk to the prosecutor who handled the criminal case against the abuser to find out, or go to the local criminal courthouse and try to search the records.
Note: An abuser who works for a government organization (such as a police officer or military servicemember) may still be allowed to possess a work-issued firearm even if s/he was convicted of a felony. Please see The abuser uses a gun for his/her job. Does the law still apply? for more information.
1 18 USC § 3559(a)
What is the definition of a domestic violence misdemeanor?
Throughout these gun law pages, we will refer to the fact that it is illegal to carry a gun if a person has been convicted of a “domestic violence misdemeanor.” A misdemeanor may have different definitions in each state, but basically it is a crime with a shorter possible sentence than a felony. In general, a misdemeanor could be a “domestic violence misdemeanor” if:
- the abuser is or was a family or household member, which includes:
- your current or former spouse;
- your parent or guardian;
- a person with whom you have a child in common;
- a person who is like a spouse, parent or guardian to you (whether or not you live/d with him/her). For example, this might be a long-term boyfriend or someone with whom you share an intimate, personal relationship; and
- s/he was charged with a misdemeanor because the crime involved:
- the use or attempted use of physical violence or “force;” or
- the threatened use of a deadly weapon.1
Note: The word “force” in the list above does not have to be violent force. “Offensive touching,” such as the type that comes under many crimes of battery, is considered to be force.2
The crime may not have to specifically mention “domestic violence” in order for it to be considered a domestic violence misdemeanor and for the federal firearm law to apply.3 The relationship that the victim has with the offender could determine whether or not the misdemeanor is a “domestic violence misdemeanor.” For example: If Bob is convicted of a misdemeanor assault against his wife, it is probably illegal for him to buy or have a gun. If Bob is convicted of a misdemeanor assault against his neighbor, he may still be able to have or buy a gun.
For tips on how to figure out if the abuser was convicted of a domestic violence misdemeanor, go to How can I find out if the abuser has been convicted of a crime? For more information, or if you are still confused, you might want to contact the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111, ext. 2.
1 18 USC § 921(a)(33)(A); see Buster v. United States, 447 F.3d 1130 (8th Cir. 2006) (for discussion of defining “as a spouse.”)
2 See United States v. Castleman, 134 S. Ct. 1405, 188 L. Ed. 2d 426 (2014)
3 See United States v. Hayes, 555 U.S. 415, 129 S.Ct. 1079 (2009)
The abuser has a gun. Is that legal?
Under federal law, there are several situations that make it illegal for the abuser to buy, own or have a gun (or ammunition) in his/her possession. Someone can’t own a gun if s/he:
- has a final order of protection against him/her that meets certain requirements;
- has been convicted of a domestic violence misdemeanor;
- has been convicted of any felony;
- is a fugitive from justice (fled any state to avoid being prosecuted or to avoid testifying in any criminal proceeding);
- is an unlawful user of or addicted to drugs (controlled substances) - but this does not include alcohol or tobacco;
- has been declared by a judge to be mentally incompetent or was committed to a mental institution against his/her will;
- has been found not guilty by reason of insanity or has been found incompetent to stand trial;
- is an immigrant who is illegally or unlawfully present in the U.S.;
- has been dishonorably discharged from the military; or
- has given up (renounced) her/his citizenship to the U.S.1
Note: An abuser who works for a government organization (such as a police officer or military servicemember) may still be allowed to possess a work-issued firearm even if s/he was convicted of a felony or if s/he has an order of protection issued against him/her. Please see The abuser uses a gun for his/her job. Does the law still apply? for more information.
There could be additional circumstances under your state’s law where it would be illegal to own or have a gun. Please go to our State Gun Laws page for more information.
1 18 USC § 922(g); 27 C.F.R. § 478.11