What is the difference between federal and state gun laws? Why do I need to understand both?
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.
What is the definition of a felony?
Throughout these gun law pages, we will refer to 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. 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 courthouse where s/he was convicted and search the conviction records.
I am a victim of domestic violence and the abuser has a gun. Is that legal?
Under Arkansas law, it is illegal for someone to have any firearm if s/he has been:
- convicted of a felony;
- determined by a court (“adjudicated”) to be mentally ill; or
- committed involuntarily to any mental institution.1
In addition, a person can be denied a license to carry a concealed weapon if s/he:
- has been convicted of a misdemeanor crime of violence or of “carrying a weapon” within the last five years, unless the person received a suspended sentence for the crime;2
- is under 21 – although s/he can get a license at 18 if s/he is currently on active duty in the United States Armed Forces, in the reserves, or was honorably discharged; or is in the National Guard;
- has been convicted of a felony in any state;
- is a danger to himself/herself or others due to his/her mental state;
- suffers from a mental or physical illness that prevents the safe handling of a gun;
- has threatened or attempted suicide;
- has been declared mentally incompetent by a court;
- has voluntarily or involuntarily been committed to a mental institution or mental health treatment facility;
- regularly uses drugs or alcohol to the point that his/her mental ability is harmed;
- has been committed to a treatment facility for drugs or alcohol;
- has been found guilty of a drug crime or two or more alcohol-related crimes within the last three years;
- is not a US citizen or a permanent legal resident;
- is not a resident of Arkansas; (Note: It is also required that the person has resided continuously in Arkansas for the past 90 days unless the person or his/her spouse was on active duty in the military during that time);
- is prohibited by federal law to possess or transport a firearm, which includes someone who has a final order of protection issued against him/her that meets federal requirements;
- is a fugitive or has a warrant out for his/her arrest.3Note: A person can also be denied a license if the county sheriff or chief of police in the area where the applicant lives submits an affidavit to the department that issues licenses in which s/he states that:
- the applicant has been or is reasonably likely to be a danger to himself/herself or to others based on:
- threats of unlawful violence;
- participation in an incident involving unlawful violence; or
- past patterns of behavior; or
- the applicant is under a criminal investigation.4
If someone already has a license to carry a concealed weapon, that license can be revoked (canceled) if:
- the person has been found guilty of a crime of violence within the last three years; or
- the department that issues licenses is notified by any law enforcement agency or a court that the license-holder is arrested or formally charged with a crime that would disqualify him/her from having a license. The license can be revoked until the criminal case is decided; at that point, it can continue to be revoked or it can be re-instated, depending on the outcome of the case.5
Also, federal laws, which apply to all states, restrict an abuser’s right to have a gun if you have a restraining order against him/her that meets certain requirements. Go to Federal Gun Laws to get more information.
1 A.C.A. § 5-73-103(a)
2 A.C.A. § 5-73-308(a)(1)(A), (a)(2)
3 A.C.A. § 5 -73-309
4 A.C.A. § 5 -73-308(b)(1)
5 See A.C.A. § 5 -73-308(a)(1)(B), (a)(3)