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 IL state law, a felony is a crime that is punishable by death or a sentence of one year or more in a penitentiary.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.
1 720 ILCS 5/2-7
I am a victim of domestic violence and the abuser has a gun. Is that legal?
It depends. Under Illinois law, anyone who has a domestic violence order of protection against him/ her, including an interim order of protection, emergency order of protection, or plenary order of protection, cannot legally have a firearm. Any firearms in the possession of the abuser must be turned over to a person with a valid Firearm Owner’s Identification Card and the abuser must turn over his/her Firearm Owner’s Identification Card to the local law enforcement agency. Also, if the abuser is a law enforcement officer (“peace officer”), s/he must surrender any firearms that are used in the performance of his/her duties to the agency’s chief law enforcement officer.1
Also, under Illinois state law, the Department of State Police has the power to deny an application for a Firearm Owner’s Identification Card (or to revoke and seize one that was previously issued) if the applicant or holder of the card:
- is subject to an existing order of protection or firearms restraining order;2
- has been convicted of a felony in any state (or a juvenile who was declared delinquent for an offense that would have been a felony if committed by an adult);
- has been convicted within the past 5 years of battery, assault, aggravated assault, violation of an order of protection, or a substantially similar offense, in which a firearm was used or possessed;
- is under 21 and has been convicted of a misdemeanor (other than a traffic offense or adjudged delinquent);
- is under 21 and does not have the written consent of a parent/guardian or whose parent/guardian does not qualify to have a Firearm Owner’s Identification Card;
- is a drug addict;
- was a patient in a a mental health facility within the last 5 years; (Note: If the person was a patient in a mental health facility more than 5 years ago, s/he must have a certification that s/he or she is not a clear and present danger to himself, herself, or others.) However, this restriction does not apply to an active law enforcement officer who did not act in a manner threatening to the officer, another person, or the public as determined by the treating clinical psychologist or physician, and the officer seeks mental health treatment);
- has been adjudicated (declared by a judge) as a person with a mental disability;
- was involuntarily admitted into a mental health facility;
- has a developmental disability;
- has an intellectual disability;
- has a mental condition that poses a clear and present danger to the applicant, to anyone else or to the community;
- intentionally makes a false statement in the Firearm Owner’s Identification Card application;
- is an undocumented (illegal) immigrant;
- is prohibited from possessing firearms or ammunition by any Illinois state law or by federal law; or
- is not a resident of Illinois.3
In addition, it is illegal for a convicted felon to have a firearm or ammunition:
- on his/her person (in other words, to carry it);
- on his/her land;
- in his/her home; or
- at his/her fixed place of business.4
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.
1 725 ILCS 5/112A-14(b)(14.5)
2 430 ILCS 65/8.2
3 430 ILCS 65/8
4 720 ILCS 5/24-1.1(a)