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) or you can notify ATF yourself. 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. It is defined under Georgia law as a crime that is punishable by a prison sentence of more than one year or by death.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 local criminal courthouse and try to search the records.
1 GA ST § 16-1-3(5)
I am a victim of domestic violence and the abuser has a gun. Is that legal?
Georgia law says that a person cannot have or buy a gun if s/he:
- is under 21 years of age (unless s/he is 18 or older and provides proof that s/he has completed basic training in the armed forces of the United States and either is actively serving or has been honorably discharged);
- has been convicted of a felony in any state or in another country;
- currently has felony charges pending against him/her (but hasn’t yet been convicted) or is a fugitive from justice;
- has had his/her license to carry weapons revoked within three years before the date of the application for a firearm license;
- is prohibited under federal law from having a firearm in his/her possession;
- has been convicted of an offense arising out of the unlawful manufacture or distribution of a controlled substance or other dangerous drug;
- has been convicted of any misdemeanor involving the use or possession of a controlled substance (drugs) and within the past five years, s/he also:
- has been in restraint or under supervision
- gets a second conviction of any misdemeanor involving the use or possession of a controlled substance; or
- is convicted for various weapons charges;
- has been convicted of carrying a weapon without the proper license;
- has been convicted of carrying a weapon or long gun in an unauthorized location (unless for the past five years, s/he has not been under restraint or supervision related to these crimes and has not been convicted of any other crime);
- has been hospitalized as an inpatient in any mental hospital or alcohol or drug treatment center within the past five years; or
- has been adjudicated (found by a judge) “mentally incompetent to stand trial” or “not guilty by reason of insanity” at the time that s/he committed a crime.1
Also, a person under 18 is not allowed to possess a handgun at any time unless s/he is on land that is controlled by his/her parent, legal guardian, or grandparent and the minor has the adult’s permission.2 There are some exceptions when a minor can carry a gun, such as when shooting at a gun range or hunting. To read the complete list, go to our GA Statutes page and see section 16-11-132(c). Note: The exceptions do not apply if the minor has been convicted of a forcible felony or forcible misdemeanor.3
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 a felony or domestic violence misdemeanor. Go to Federal Gun Laws to get more information.
1 GA ST § 16-11-129(b)(2)
2 GA ST § 16-11-132(b)
3 GA ST § 16-11-129(d)