State Gun Laws
Basic Info and Definitions
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 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. Under CA law, a felony is a crime that is punishable by death or by imprisonment in the state prison or county jail for more than one year.1 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 courthouse and search the conviction records.
1 Ann.Cal.Penal Code §17(a)
I am a victim of domestic violence and the abuser has a gun. Is that legal?
It depends. If you have a protective order (DVRO) against the abuser, California law says that s/he cannot have or buy a gun. See I have a DVRO against the abuser. Can s/he keep a gun or buy a new gun? for more information.
Also, federal laws, which apply to all states, restrict a person’s right to have a gun under certain circumstances such as when the abuser has been convicted of certain domestic violence-related crimes or if you have an order of protection against the abuser that meets certain requirements. Go to Federal Gun Laws to get more information.
Guns and Domestic Violence Restraining Orders (DVROs)
I have a temporary ex parte restraining order against the abuser. Can the abuser have a gun?
In California, the abuser cannot have or buy a gun once s/he has been served with a temporary ex parte order.1 You will see this stated in items #10-11 on page two of your DV-110 (“Temporary Restraining Order and Notice of Hearing”) form.
1 Ann.Cal.Fam.Code §§ 6218; 6389(a)
I have a DVRO against the abuser. Can s/he keep a gun or buy a new gun?
No. California state law says that if you have a DVRO against the abuser, s/he cannot have a gun in his/her possession, or buy a new gun while the order is in effect.1 This applies to ex parte (temporary) orders as well as orders issued after notice and a hearing.2 However, there is an exception to this law if the abuser uses a firearm for his/her job. See The abuser uses a gun for his/her job. Do the state gun laws still apply? for more information.
Also, federal laws, which apply to all states, restrict an abuser’s right to have a gun if you have a final protection order against him/her that meets certain requirements even if the judge does not specifically include on the order that s/he cannot have a gun. Go to the Federal Gun Laws page to get more information.
1 Cal. Fam. Code § 6389(a)
2 Cal. Fam. Code §§ 6218; 6389(a)
Is there anything I can do to make it more likely that the abuser's gun is taken away when I get a DVRO?
If you file for and receive a DVRO, it should be clear to the abuser and to law enforcement that the abuser’s gun needs to be taken away. When you file for a DVRO, the abuser has to be notified. California state law says that on all forms that give notice to the abuser that a protective order has been requested or granted, it must include this language: “The respondent shall be ordered to relinquish possession or control of any firearms and not to purchase or receive or attempt to purchase or receive any firearms for a period not to exceed the duration of the restraining order.”1 Basically, this means that the abuser has to give up any guns that s/he has and s/he cannot buy or get any guns while you have an order against him/her.
Additionally, there is a place on the fourth page of your DV-100 (“Request for Order”) form where you can tell the judge whether the abuser has a gun and if s/he has ever threatened you with it.2 It may be a good idea to check this box if you believe the abuser has a gun so that the judge is aware of the guns.
1 Cal. Fam. Code § 6389(b)
2 See Cal. Fam. Code § 6389(c)(3)
The abuser did not show up for the DVRO hearing. Can his/her gun still be taken away?
Yes. California state law says that the ban on guns that is written into the notice that is served upon an abuser when you apply for a DVRO – the gun ban can apply to ex parte (temporary) orders as well as orders issued after notice and a hearing.1 Therefore, if the abuser was provided with the legal forms that notify him/her of the fact that you applied for the DVRO and that a hearing is scheduled, the gun ban should still apply to him/her.
1 Ann.Cal.Fam.Code §§ 6389(a); 6218
Guns and Criminal Convictions
If the abuser has been convicted of a crime, can s/he keep or buy a gun?
Depending on the crime, the abuser may not be able to legally have a gun. California state law prohibits the following criminals from having a gun in their possession:
- Any person who has been convicted of a felony;1
- Anyone who has been convicted of any offense involving the violent use of a firearm;2
- Anyone who has been convicted of certain misdemeanors (including violation of a protective order) cannot have a gun within 10 years of the conviction.3
If the abuser was convicted of a misdemeanor other than the one mentioned above, you might be able to get help from a local legal organization to find out if this conviction means s/he cannot own a gun under this statute. See CA Finding a Lawyer for resources. You might also be able to find out this information from the police.
1 Cal. Penal Code § 12021(a)(1)
2 Cal. Penal Code § 12021(a)(2)-(b)
3 Cal. Penal Code § 12021(c)(1)
If a law enforcement officer is convicted of a domestic violence crime, can s/he have or buy a gun?
Maybe. The law says that in general, anyone who has been convicted of a felony or certain domestic violence crimes cannot have or buy a gun for any purpose, including his/her official duties.1
However, there is an exception for law enforcement officials whose jobs depend on their ability to use a gun. If the abuser is a law enforcement officer who has been convicted of stalking or certain domestic violence crimes (including violation of a protective order), s/he has a one-time chance to ask the court for permission to have a gun for work purposes. If the judge believes that s/he will use the gun safely and legally, the judge can allow him/her to have a gun.2 When deciding whether or not the abuser can keep his/her gun, the judge will consider the abuser’s continued employment (whether s/he is going to be able to keep his/her job without his/her gun) as well as any relevant evidence. If the judge allows him/her to have a gun, the judge has to require that the abuser agree to participate in counseling as deemed appropriate by the court.3
1 Cal.Penal Code § 12021(a)(1) & (c)(2)
2 Cal.Penal Code § 12021(c)(2)(A)
3 Cal.Penal Code § 12021(c)(2)(C)(ii)
How can I find out if the abuser has been convicted of a crime?
Domestic violence misdemeanor and felony records are open to the public, but they are not always easy to access. If you know the exact courthouse where the abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records.
Domestic violence misdemeanor and felony records are also kept in the National Instant Criminal Background Check System (NICS). However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NICS. Your local police department may be willing to search NICS for you if you ask, but they are not required to do so.
To read more about the NICS, please see the question, What will happen if the abuser tries to purchase a gun?
The Abuser Isn't Supposed to Have a Gun...Now What?
If the abuser's gun is taken away, what will happen to it?
If the abuser is convicted of a crime and his gun is taken away, it will be destroyed or sold by law enforcement officials. If the abuser is ordered to give up his/her gun(s) by a domestic violence restraining order (DVRO), s/he has two choices: s/he can give them to local law enforcement officials for storage and safekeeping or s/he can sell them to a licensed gun dealer.1
If the abuser gives his/her gun(s) to a local law enforcement agency, the gun(s) will be kept in the property warehouse until the protective order expires. The abuser will have 24 hours after receiving notice of the order to turn in or sell his/her gun(s). After 48 hours of receiving notice of the order, the abuser will have to fill out form DV-800 (“Proof of Firearm Turned In”) and file it in court to show that s/he has turned in or sold his gun(s). If s/he fails to file this form, s/he will be violating the protective order.11
This procedure will be explained to the abuser on the copy of the DVRO that is given to him/her.
1 Cal.Penal Code § 12028
2 Cal. Fam. Code § 6389(c)(1)-(2)
Who do I notify if I think the abuser should not have a gun?
If you think the abuser is violating state firearm laws, you can call your local police or sheriff department or the State Police. If you think the abuser is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF).
You can find contact information for sheriff departments in your area on our CA Sheriff Departments page.
You can find ATF field offices in California on the ATF website. For reporting illegal firearm activity, a person can also call 1-800-ATF-GUNS (1-800-283-4867). Many ATF offices have victim advocates on staff (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer.
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 CA Advocates and Shelters page.
Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested for breaking the law. If the abuser has or buys a gun in violation of the law, the abuser can be arrested, whether or not s/he knows that s/he was in violation of the law.1
1United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)
What will happen if the abuser tries to purchase a gun?
Before purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). The National Instant Criminal Background Check System is used by federal firearms licensees (FFLs), such as firearms dealers or pawnbrokers, to instantly determine whether someone is eligible to receive (own, possess, transport) firearms or explosives.1 If the abuser has a qualifying protection order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from legally buying a gun. 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. Also, it is important to know that background checks are not required for private and online gun sales and so in those situations, the seller is not looking in the NICS.
If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate. 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.
What is the penalty for violating state firearm laws?
Under CA state law, anyone who has, buys, or tries to buy a gun while under a protective order is guilty of a public offense and can be punished by a fine of up to $1,000, jail/ prison time for up to 1 year, or both.1 The abuser might also be violating federal firearm laws as well, which carries separate penalties. See Federal Gun Laws for more information.
1 Ann.Cal.Penal Code §12021(g)(1)-(2)
More Information and Where to Get Help
I do not have a DVRO against the abuser and s/he has not been convicted of a crime. Can s/he have a gun?
In California, if the abuser is addicted to any narcotic drugs, s/he is not allowed to buy or have a gun.1 If this is your situation, please talk to a lawyer or advocate in your area about how this law is being enforced. You can find organizations near you under the Places that Help tab at the top of the page.
If this situation does not apply, you can still make a plan for your safety. See our Staying Safe page for more information. You can also contact your local domestic violence organization for additional help. You may want to talk to them about whether leaving the area - either long term or for a little while - might help improve your safety. See our CA Advocates and Shelters page to find a local domestic violence organization near you.
For additional information on gun laws in California, you can go to the Giffords Law Center website.
Also, federal laws, which apply to all states, restrict an abuser’s right to have a gun under other circumstances. Go to Federal Gun Laws to get more information.
1 Ann.Cal.Penal Code §12021(a)(1)
The abuser uses a gun for his/her job. Do the state gun laws still apply?
Yes - generally, the laws banning guns for people convicted of felonies, certain misdemeanors, and people who have protective orders against them apply to everyone, even those who use guns for their jobs.1 However, under California state law, if the abuser is a peace officer and can show that the firearm is necessary for continued employment and that the employer is unable to reassign him/her to another position where a firearm is unnecessary, the judge can make an exception and allow him/her to use a gun during work hours even though you have an DVRO against him/her.2
Also, if s/he can prove that s/he needs to carry a gun for his/her personal safety due to his/her job as a peace officer, the judge can allow him/her to continue to carry a firearm (either on duty or off duty) if the judge believes that the officer does not pose a threat of harm. Prior to making this decision, the judge has to order a psychological evaluation of the peace officer and may require the peace officer to enter into counseling or other treatment program to deal with his/her abusive behaviors.3
To find a domestic violence advocate in your area, please go to our CA Advocates and Shelters page.
1 Ann.Cal.Penal Code §12021(a)-(c)(1)
2 Ann.Cal.Penal Code §12021(c)(2)
3 Ann.Cal. Fam. Code §6389(h)
I've read through all of this information, and I am still confused. What can I do?
Trying to understand both federal and state gun laws can be confusing, but there are people out there who can help you better understand the law and your rights under the law. For more information:
- You can write to our Email Hotline
- You can contact a local domestic violence organization in your area (see our CA Advocates and Shelters page)
- You can also contact the National Center on Protection Orders and Full Faith & Credit to get more information about the federal firearm law and how it applies to you: 1-800-903-0111 x 2.