Know the Laws:
UPDATED April 11, 2011
The following information explains how an order of protection or criminal conviction affects an abuser’s right to have a gun under federal law. However, in addition to these federal gun laws, there may also be state-specific laws that may apply. In order to fully understand all of the legal protections available, please also read your state’s State Gun Laws section by entering your state on the left-hand side of the screen, and clicking on State Gun Laws.
WomensLaw.org strongly recommends that you get in touch with a domestic violence advocate in your community for more information on gun laws in your area.
- Definitions
- Basic Info about Federal Gun Laws
- Guns and Orders of Protection
- The Abuser Isn't Supposed to Have a Gun...Now What?
- Guns and Criminal Convictions
- More Information and Where to Get Help
Definitions
back to topWhat 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.
If you are calling the police because you believe the abuser has violated a gun law, it will not really matter to you if he violated federal or state law. You do not need to be able to tell the police which law he violated. It is the job of the prosecutor to decide under which laws he will be charged. If he is breaking both state and federal laws, he might be prosecuted in both state and federal court.
The reason why it is important for you to know about both federal and state 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.
back to topWhat 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 more serious crime than a misdemeanor. It 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
back to topWhat 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, 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 lesser crime 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 convictions.
Step 2: The next step is that you need to figure out if the crime involved either the use or attempted use of physical violence or force, or the threatened use of a deadly weapon.* 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 who you have a child in common with;
- 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 you share an intimate, personal relationship with.*
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 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 Full Faith and Credit at 1-800-903-0111.
* 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. Hayes, 555 U.S. 415, 129 S.Ct. 1079 (2009)