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?
In Delaware, felonies are serious crimes, punishable by incarceration in state prison and by a fine in an amount the judge believes is appropriate.1 You can see the different categories of felony crimes and their possible sentences on our DE Statutes page.
A felony under federal law is a crime that is punishable by a prison sentence of more than one year.2
1 See 11 Del Code § 4205
2 18 USC § 3559
I am a victim of domestic violence and the abuser has a gun. Is that legal?
Under Delaware state law, it is against the law for someone to buy, own, possess, or control a firearm (or ammunition) if:
- s/he was convicted (in Delaware or elsewhere) of a felony or a crime of violence involving physical injury to another – it doesn’t matter if s/he had any weapon during crime;
- s/he is a fugitive from justice from a case in which s/he is accused of a felony;
- s/he was convicted in any court of any misdemeanor crime of domestic violence, as defined in Delaware law Title 11, Section 1448(a)(7);
- s/he was convicted for the unlawful use, possession or sale of a narcotic, dangerous drug, central nervous system depressant or stimulant, or controlled substance;
- as a juvenile, s/he was adjudicated as delinquent for conduct which, if committed by an adult, would be a felony (Note: The firearm prohibition will last until the person turns 25 years old);
- the person is the respondent on a family court protection from abuse order. However, if the protection order was issued only based on one or more of the following allegations, then it may not be illegal for the respondent to have a firearm (or ammunition):
- engaging in a course of alarming or distressing conduct in a manner which is likely to cause fear or emotional distress or to provoke a violent or disorderly response;
- trespassing on or in property of another person, or on or in property from which the trespasser has been excluded by court order;
- any other conduct which a reasonable person under the circumstances would find threatening or harmful;
- s/he was involuntarily committed for a mental condition;
- for a crime of violence, s/he was found (as an adult or a juvenile) to be:
- not guilty by reason of insanity;
- guilty but mentally ill;
- mentally incompetent to stand trial;
- s/he is subject to an order of relinquishment;
- s/he is subject to a lethal violence protection order;
- s/he is currently a juvenile (unless it is a handgun for the purpose of engaging in lawful hunting, instruction, sporting or recreational activity while under the direct or indirect supervision of an adult);
- s/he is the subject of an outstanding arrest warrant, post-arrest charges, or an active indictment or information for any felony or for a misdemeanor crime of domestic violence; or
- s/he is in possession of a semi-automatic or automatic firearm, or a handgun, while possessing a controlled substance at the same time.1
If any of these situations apply to the abuser, it may be illegal for him/her to have a gun. 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 or if s/he has been convicted of certain crimes. Go to Federal Gun Laws to get more information.
1 11 Del. Code §§ 1448(a)(1)-(9), (a)(11)-(12); 1041(1)(d), (1)(e), (1)(h)