What is the difference between federal and state gun laws?
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 cannot arrest someone for violating federal law, only for violating state/local laws. Only federal law enforcement, 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 a crime that is punished more harshly than a misdemeanor. A felony is defined under federal law as a crime that is punishable by a prison sentence of more than one year.* 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 since sentences are often reduced or pled down. 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.
* 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." Basically, if the abuser is/was a family or household member and was charged with a misdemeanor because s/he abused you with physical force or the threat of physical force or a deadly weapon, s/he could have been convicted of a domestic violence misdemeanor.*
Here are the steps you can take to figure out if the abuser was convicted of a domestic violence misdemeanor:
Step 1: You first need to know if the abuser was convicted of a misdemeanor crime either in state court or in federal court.* A misdemeanor may have different definitions in each state, but basically it is a crime with a shorter possible sentence than a felony. If you are unsure if the abuser was convicted of a misdemeanor, you can call the district attorney or prosecutor who handled the criminal case and ask him/her or go to the local criminal courthouse and try to do a search of his/her convictions.
Step 2: The next step is that you need to figure out if the misdemeanor crime involved either the use or attempted use of physical violence or force, or the threatened use of a deadly weapon.* (“Force” 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.)** Note: An issue that may arise in a federal prosecution for violating this law is proving that the violence/force was “intentional.”*** In some states, misdemeanor crimes are described as either an “intentional” or “reckless.” In these cases, if it could be interpreted that the abuser acted recklessly (instead of intentionally), a prosecution for wrongly possessing a firearm may be more complicated. Again, if you are unsure, you might want to call the prosecutor who handled the case.
Step 3: The abuser must be either:
- 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.*
If all three of these steps apply to your situation, it is likely that the abuser was convicted of a domestic violence misdemeanor.
Note: 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.**** 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 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.
* 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.")
** See United States v. Castleman, 134 S. Ct. 1405, 188 L. Ed. 2d 426 (2014)
*** See United States v. Nobriga, 474 F.3d 561 (9th Cir. Ct App., 2006); United States v. Belless, 338 F.3rd 1063 (9th Cir. 2003); see also Domestic Violence and Firearms: A Deadly Combination
**** 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 two situations that make it illegal for the abuser to buy, own or have a gun in his/her possession.
Second, if you have a final order of protection against the abuser (assuming the order meets certain requirements), it is illegal for the abuser to buy, own, or have a gun in his/her possession during the period of time that you have the order of protection.** Read I have a final order of protection against the abuser. Can his/her gun be taken away? to find out more.
Please note that this is a federal law, which is enforced and prosecuted by federal law enforcement. However, many states have similar laws and have their own rules which may be stricter, or less strict. Please check your state's rule on this website and/or talk to an advocate at a domestic violence organization in your area about whether state law or federal law may be of more help to you and how to report violations of these laws.
* 18 USC § 922(g)(1),(9)
** 18 USC § 922(g)(8)