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.
I am a victim of domestic violence and the abuser has a gun. Is that legal?
According to Colorado state law, a person can only get a permit to carry a concealed handgun if all of the following conditions are met. The applicant must:
- be a legal resident of the state of Colorado (including a member of the armed forces who is stationed in Colorado and his/her immediate family members);
- be at least twenty-one years old;
- have never been convicted of a felony, attempt to commit a felony, or conspiracy to commit a felony;
- have never been convicted of perjury related to information provided on a concealed handgun permit application;
- not chronically and habitually abuse alcohol - (Note: A recovering alcoholic who has been sober for at least the past three years can be excused from this requirement if a substance abuse counselor swears to this information in an affidavit);
- not be an unlawful user of (or addicted to) drugs;
- not have a temporary or final civil protection order issued against him/her based on domestic violence or based on stalking, sexual assault, physical harm/threats or abuse of the elderly/at-risk adult;
- not have a protection order issued against him/her as part of a criminal court case, including a protection order based on a juvenile delinquent act;
- not have a temporary or final extreme risk protection order issued against him/her.1
In addition, as part of a temporary or final protection order due to domestic violence, stalking, sexual assault, physical harm/threats or abuse of the elderly/at-risk adult, the judge can order that the abuser:
- not have or buy any firearms or ammunition for the duration of the order; and
- give up any firearms or ammunition that s/he currently has in his/her possession or control to a licensed firearms dealer, private party or to law enforcement.2
Note: Even if the applicant meets all of the requirements above, the sheriff can still deny the permit if, based on the applicant’s previous behavior, the sheriff has a reasonable belief that s/he would likely be a danger to himself/herself or others if the permit were granted.3
In addition, it is illegal for anyone to possess a firearm if s/he is on probation after being convicted of a crime that involved domestic violence. An exception can be made, however, for a defendant whose job requires the use of a firearm if the judge believes that the victim and his/her child would not be endangered and the gun is not stored in the defendant’s home.4
Also, federal laws, which apply to all states, restrict an abuser’s right to have a gun if s/he was convicted of a felony or a domestic violence misdemeanor or if you have a final protection order against him/her that meets certain requirements. Go to the Federal Gun Laws page to get more information.
For additional information on gun laws in Colorado, you can go the the Giffords Law Center website.
1 Colo. Rev. Stat. §§ 18-12-203(1)(a)-(g); 18-12-108
2 Colo. Rev. Stat. § 13-14-105.5(1)(a) & (2)(c)
3 Colo. Rev. Stat. § 18-12-203(2)
4 Colo. Rev. Stat. § 18-1.3-204(2)(b)(IV)
What crimes are considered domestic violence misdemeanors?
A crime is considered a domestic violence misdemeanor under federal law if it:
- Can be defined as a misdemeanor under federal or state law; and
- 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 (listed above) with a spouse, parent or guardian of the victim.1
Note: The crime does 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.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 may still be able to have or buy a gun.
If you’re not sure if a certain crime counts as a domestic violence misdemeanor, you can contact the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111 x 2.
It is important to note that the definition of a domestic violence misdemeanor under Colorado law is different than that under federal law. Specifically, Colorado defines domestic violence as taking place between “intimate partners” and not in a parent-child relationship.4 However, for the purpose of interpreting federal law, the federal law definition is what would be used.
1 18 USC § 921(a)(33)(A)
2United States v. Kavoukian, 315 F. 3d 139 (2d. Cir. 2002); United States v. Meade, 175 F.3d 215 (1st Cir. 1999).
3 See, for example, United States v. Denis, 297 F.3d.25 (1st Cir. 2002.); United States v. Costigan, 18 Fed.Appx. 2, 2001 WL 535734 (C.A.1 (Me.))
4 See C.R.S.A. § 18-6-801(1)(a)
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. Most felonies under Colorado law are punishable by a prison sentence of 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 and since some misdemeanors in Colorado can be punishable by up to 18 months of incarceration.2 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.
1 Colo. Rev. Stat. § 18-1.3-401
2 See Colo. Rev. Stat. § 18-1.3-501