What is the difference between federal and state gun laws?
In these gun laws pages, we refer to both “federal gun laws” and “state gun laws.” The major difference between the two 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. Throughout this section, we will be referring mostly to state laws. Be sure to also read our Federal Gun Laws pages to see if any federal laws apply to your situation as well. You will need to read both state and federal laws to see which ones, if any, the abuser might be violating.
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 Who do I notify if I think the abuser should not have a gun? If the abuser is breaking both state and federal laws, s/he might be prosecuted in both state and federal court.
I am a victim of domestic violence and the abuser has a gun. Is that legal?
Under Maine state law, a person cannot get a firearm permit –to have or buy a firearm– if any of the following apply:
- as an adult, s/he was convicted of (or found “not criminally responsible by reason of insanity” of) any of the following crimes:
- domestic violence assault;
- domestic violence criminal threatening;
- domestic violence terrorizing;
- domestic violence stalking;
- domestic violence reckless conduct;
- a domestic violence crime similar to any of the above Maine state-specific crimes but it was committed in another state;
- a crime that is punishable by a prison sentence of one year or more, which usually means that it is a felony; or
- any crime committed while using a firearm or other dangerous weapon in Maine, in another state, or in the Passamaquoddy Tribe or Penobscot Nation;1
- as a juvenile, s/he was found to have engaged in conduct that would have been considered any of the above-mentioned crimes if s/he committed the act as an adult. If it was “a crime that is punishable by a prison sentence of one year or more,” the prohibition only applies if, while committing the act, s/he caused bodily injury to another person or bodily injury was threatened;2
- there is a protection order against him/her that was issued after notice and a hearing, which does both of the following:
- orders the abuser to not:
- harass, stalk, or threaten an intimate partner or a child of his/her intimate partner; or
- act in a way that would place the intimate partner in reasonable fear or bodily injury to himself/herself or to his/her child in Maine or any other state, in any U.S. territory, or in any commonwealth or tribe; and
- includes a determination that s/he represents a credible threat to the physical safety of an intimate partner or child; or
- specifically prohibits the use, attempted use, or threatened use of physical force against an intimate partner or child that would reasonably be expected to cause bodily injury;3
- orders the abuser to not:
- s/he was involuntarily committed to a hospital because s/he was found to present a likelihood of causing serious harm;
- s/he was found to be “not criminally responsible by reason of insanity” for any crime;
- s/he was found to be “not competent to stand trial” for any crime;
- s/he is a fugitive from justice;
- s/he is an unlawful user of, or is addicted to, any controlled substance;
- s/he is an alien who is illegally or unlawfully in the United States or who was admitted under a nonimmigrant visa and who is prohibited from possession of a firearm under federal law (18 USC § 922(g)(5));
- s/he was a U.S. citizen and gave up (renounced) his/her citizenship; or
- s/he has been dishonorably discharged from the United States Armed Forces.4
Note: In some situations, the restriction on getting a permit only lasts for a certain period of time. Once five years has passed after the adult or juvenile completes the sentence imposed as a result of one of the following convictions, s/he can re-apply for a permit to carry a firearm (but s/he still cannot get get a permit to carry a concealed handgun):
- for adults, committing a crime that is punishable by a prison sentence of one year or more (usually, a felony); or
- for juveniles, committing:
- the crime described in paragraph 2 (above); or
- any crime committed while using a firearm or other dangerous weapon in Maine, in another state, or in the Passamaquoddy Tribe or Penobscot Nation.5
However, if the conviction was for one of the domestic violence crimes listed in paragraph 1, there is the additional requirement that the person must not have been convicted of any crimes during the five-year period after completing the sentence. If the person is convicted of a new crime during the five-year period, s/he has to wait an additional five years after the sentence for that new crime is completed before applying for the firearm permit.6
The length of the prohibition is even shorter if the crime was nonviolent and was committed by a juvenile. If the juvenile did not cause or threaten bodily injury while committing any of the acts described in paragraph 1, s/he can get a firearm permit when s/he turns 18 or three years after completing of the sentence, whichever is later.7
Also, federal laws, which apply to all states, may restrict an abuser’s right to have a gun. Go to Federal Gun Laws to get more information.
1 ME ST T. 15 § 393(1)(A-1), (1-B)
2 ME ST T. 15 § 393(1)(C), (1-B)(B)
3 ME ST T. 15 § 393(1)(D)
4 ME ST T. 15 § 393(1)(E), (1)(F)-(J)
5 ME ST T. 15 § 393(2)
6 ME ST T. 15 § 393(1-B)(B)
7 ME ST T. 15 § 393(1-A)
What crimes are considered domestic violence misdemeanors?
A crime is considered a domestic violence misdemeanor under federal law if the act:
- can be defined as a misdemeanor under federal or state law;
- involves physical violence or force or includes threats made with a deadly weapon; and
- was committed by:
- a current or former spouse;
- a parent or guardian of the victim;
- a person with whom the victim shares a child;
- a person living with the victim as a spouse, parent or guardian; or
- a person who has a similar relationship with a spouse, parent or guardian of the victim.1
Note: The crime does not have to mention “domestic violence” specifically either to be considered a domestic violence misdemeanor or for the federal firearm law to apply.2 The relationship that the victim has with the offender is what determines whether or not the misdemeanor is a “domestic violence” misdemeanor.3
For example: If Bob is convicted of a misdemeanor assault against his wife, he may no longer have or buy a gun.
If Bob is convicted of a misdemeanor assault against his neighbor, he still may be able to have or buy a gun.
If you are unsure whether a certain crime is a domestic violence misdemeanor, you can contact the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111 x 2.
1 18 USC § 921(a)(33)
2United States v. Kavoukian, 315 F. 3d 139 (2d. Cir. 2002); United States v. Meade, 175 F.3d 215 (1st Cir. 1999).
3United States v. Denis, 297 F.3d.25 (1st Cir. 2002.); United States v. Costigan, No. 009-B0H, 2000 U.S. Dist. (D. Me. June 16, 2000).
What is the definition of a felony?
A felony under federal law is a crime punishable by a prison sentence of more than one year. 1
1 18 USC § 3559