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?
It depends. If you have a final order for protection against the abuser, Minnesota law states that a judge must order the abuser not to possess firearms for the time that the order is in effect if the order:
- instructs the abuser from harassing, stalking, or threatening you, or from engaging in other conduct that would place you in reasonable fear of bodily injury; and
- includes a finding (the judge’s determination) that the abuser represents a credible threat to your physical safety or prohibits the abuser party from using, attempting to use, or threatening to use physical force against you.1
In addition, Minnesota state law also makes it illegal to own a gun in many other situations. It may be illegal for him/her to have a gun under Minnesota state law if the abuser:
- was convicted of a crime of violence, either as an adult or as a juvenile, either in Minnesota or similar crimes in another state;
- was convicted of a crime in another state similar to MN’s crime of domestic assault (subdivision 3) or MN’s assault in the 5th degree (subdivision 3) or convicted in Minnesota of assault against a family or household member or domestic assault (subdivision 8) - (however, if more than 3 years has passed since the conviction and s/he has no subsequent similar convictions and s/he has not been convicted of any of the crimes listed below in #6, s/he may be able to possess a gun at that time);
- was convicted of any crime punishable by jail time of more than one year;
- was convicted of a drug-related misdemeanor or gross misdemeanor (however, if more than 3 years has passed since the conviction and s/he has no subsequent similar convictions, s/he may be able to possess a gun at that time);
- an adult or juvenile who was charged with a crime of violence and placed in a pretrial diversion program (s/he cannot possess a gun while in the pretrial diversion program);
- was convicted in any state of any of the following gross misdemeanors: gang violence, bias assault, false imprisonment, neglect or endangerment of a child, burglary, stalking, setting a spring gun, and riot (however, if more than 3 years has passed since the conviction and s/he has no subsequent similar convictions, s/he may be able to possess a gun at that time);
- is a user of unlawful drugs;
- is a fugitive from justice;
- is an undocumented immigrant or who was a U.S. citizen and renounced his/her citizenship;
- has been dishonorably discharged from the military;
- has been convicted of assaulting a family or household member while using a firearm (then s/he can’t possess a gun for the period determined by the trial court judge);
- was deemed mentally ill by a judge and committed to a treatment facility or was found incompetent to stand trial or not guilty by reason of mental illness;
- was committed by a judge for drug treatment;
- is a peace officer who has been informally admitted to drug treatment (unless the head of the treatment facility provides a certificate that the officer is discharged);
- is specifically prohibited from possessing a firearm in an order for protection that was issued due to domestic child abuse or for domestic violence; or
- is prohibited from having a firearm under federal law.2
Note: A person’s right to possess a firearm could eventually be restored (given back) by a judge if s/he falls into categories 12 through 14 listed above.3
Federal law also states that it is illegal for someone with an order for protection against him/her to buy, own or have a gun in his/her possession. There are certain requirements that your order for protection must meet for it to qualify under federal law. Also, federal law prohibits firearm possession if the abuser has been convicted of a felony or domestic violence misdemeanor.4 If you are not sure if the abuser has been convicted of a domestic violence misdemeanor, see What crimes are considered domestic violence misdemeanors? To read the definition of a felony, see What is the definition of a felony?
1 MN Statutes § 518B.01(6)(g)
2 MN Statutes § 624.713(1)
3 MN Statutes § 624.713(1),(4)
4 18 USC § 922(g)(8),(9)
What crimes are considered domestic violence misdemeanors?
Here are the steps you can take to figure out if the abuser was convicted of a domestic violence misdemeanor:
Step 1: You first need to know if the abuser was convicted of a misdemeanor crime either in state court or in federal court.1 A misdemeanor may have different definitions in each state but basically, it is a lesser crime than a felony. If you are unsure if the abuser was convicted of a misdemeanor, you can call the district attorney or prosecutor who handled the criminal case and ask him/her or go to the local criminal courthouse and try to do a search of his convictions.
Step 2: The next step is that you need to figure out if the crime involved either the use or attempted use of physical violence or force, or the threatened use of a deadly weapon.1 Again, if you are unsure, you might want to call the prosecutor who handled the case.
Step 3: The abuser must be either:
- your current or former spouse;
- your parent or guardian;
- a person who you have a child in common with;
- a person who is like a spouse, parent or guardian to you (whether or not you live/d with him/her). For example, this might be a long-term boyfriend or someone you share an intimate, personal relationship with.1
If all three of these steps apply to your situation, it is likely that the abuser was convicted of a domestic violence misdemeanor.
Note: The crime may 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 could determine whether or not the misdemeanor is a “domestic violence misdemeanor.” For example: If Bob is convicted of a misdemeanor assault against his wife, it is illegal for him to buy or have a gun. If Bob is convicted of a misdemeanor assault against his neighbor, he may still be able to have or buy a gun.
For more information, or if you are still confused, you might want to contact the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111 x 2.
1 18 USC 921(a)(33)(A); see Buster v. United States, 447 F.3d 1130 (8th Cir. 2006) for discussion of defining “as a spouse.”
2 See United States v. Hayes, 555 U.S. 415, 129 S.Ct. 1079 (2009)
What is the definition of a felony?
A felony under both federal and MN state law is a crime that is punishable by a prison sentence of more than one year.1
1 18 USC § 3559; MN Statutes § 609.02(2)