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
The Abuser Isn't Supposed to Have a Gun...Now What?
back to topWho do I notify if I think the abuser should not have a gun?
If you think the abuser is violating one of the firearm laws, you can call 911, or your local police or sheriff department, the State Police, or the Bureau of Alcohol, Tobacco and Firearms (ATF). Let them know that either you have an order of protection against the abuser, or the abuser has been convicted of a felony or domestic violence misdemeanor and s/he has a gun. The local police department should then try to get a warrant to take the gun(s) away.
You can find contact information for sheriff departments in your area on our Sheriff Departments page or to report illegal firearm activity, call 1-800-ATF-GUNS (1-800-283-4867) or go to www.atf.gov/field/ to find the closest field office in your state.
A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials. You will find contact information for organizations in your area on our State and Local Programs page. Choose your state from the drop-down menu on the left side of the screen.
back to topWill the abuser go to jail for having a gun when s/he isn't supposed to?
The abuser can get jail time for having a gun in violation of the law. Under federal law, anyone who owns, has or buys a gun in violation of the federal firearm law can be punished by a fine, jail time for up to 10 years, or both.*
However, as with any criminal case, the actual sentence the abuser gets may depend on a lot of different factors.
Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested (and convicted) for violating the law. If the abuser has a gun or buys a gun in violation of the law, the abuser can be arrested and convicted, whether or not the abuser knows s/he was in violation of the law. "Ignorance of the law" is no excuse or defense.**
* 18 USC §924(a)(2)
** See, for example, United States v. Denis, 297 F.3d. 25 (1st Cir. 2002); United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999).
back to topWhat will happen if the abuser tries to buy a gun when s/he isn't supposed to?
Before legally buying a gun, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). If the abuser has a qualifying order of protection* against him/her, or has been convicted of a felony or domestic violence misdemeanor, those records should be in the NICS, which should prevent the abuser from buying a gun. However, not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system.
To find out if your order of protection “qualifies” under federal law, go to I have a final order of protection against the abuser. Can his/her gun be taken away? You can also call the National Center on Full Faith and Credit at 1-800-903-0111 or contact us through our Email Hotline. You can also read the exact wording of the law [18 USC §922(g)(8)] on our Federal Statutes page.
If the abuser is able to purchase a gun and you believe that s/he should not have been able to get one due to your order of protection or due to his/her criminal history, you can alert the police, and ask that his/her gun be taken away. Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one. The criminal background check system is not foolproof.
For more information or to discuss the specific facts of your case, you can contact a local domestic violence organization in your area. Go to our State and Local Programs page to find an organization near you. Choose your state from the drop-down menu on the left side of the screen.