If the abuser's gun(s) is taken away, what will happen to it?
It depends. If the abuser’s gun is ordered to be taken away by your order of protection, it may either be held by the sheriff department in your county, or in some cases, the authorities will allow the abuser to leave the gun with a friend or relative while your order is in effect. You can ask the court or law enforcement official handling your case where the abuser’s guns will go.
If the abuser’s gun is confiscated by the police because s/he was convicted of a domestic violence misdemeanor or felony, the police may destroy the weapon.
Who do I notify if I think the abuser should not have a gun?
If you think the abuser is violating the state firearm laws, you can call your local police or sheriff department or the State Police. If you believe s/he is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF). Let them know that either you have protective order against the abuser, s/he has been convicted of a felony or domestic violence misdemeanor.
You can find contact information for sheriff departments in your area on our MT Sheriff Departments page.
To contact your local ATF field office, see the ATF website. For reporting illegal firearm activity, you can also call: 1-800-ATF-GUNS (1-800-283-4867).
A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials. You will find contact information for organizations in your area on our MT Advocates and Shelters page under the Places that Help tab on the top of this page.
Note: Generally, a person does not have to have knowledge of the law in order to be arrested for violating the law. If the abuser has a gun or buys a gun in violation of the law, s/he can be arrested, whether or the abuser knows s/he was in violation of the law.1
1United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)
What is the penalty for violating the federal firearm law?
Anyone who owns, has or buys a gun in violation of the federal firearm law can be punished by a fine, jail time for up to 10 years, or both.1
1 18 USC § 924(a)(2)
I do not have an order of protection against the abuser, and s/he has not been convicted of any crimes. Can s/he have a gun?
If none of these situations apply, you can still make a plan for your safety. See our Safety Tips page for more information. You can also contact your local domestic violence organization for additional help. You may want to talk to them about whether leaving the area - either long term or for a little while - might help improve your safety. To find a shelter or an advocate at a local program, please visit the MT Advocates and Shelters page under the Places that Help tab at the top of this page.
For additional information on gun laws in Montana, you can go to the Giffords Law Center website.
What will happen if the abuser tries to purchase a gun?
Before purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). The National Instant Criminal Background Check System is used by federal firearms licensees (FFLs), such as firearms dealers or pawnbrokers, to instantly determine whether someone is eligible to receive (own, possess, transport) firearms or explosives.1 If the abuser has a qualifying protection order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from legally buying a gun. Not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system. Also, it is important to know that background checks are not required for private and online gun sales and so in those situations, the seller is not looking in the NICS.
If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate. Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one.
The abuser uses a gun for his/her job. Does the law still apply?
If the abuser has been convicted of a felony or a domestic violence misdemeanor, then under federal law, the abuser can NEVER buy or have a gun, even if s/he is a police officer or a military employee.
However, if the abuser was not convicted of one of the above-mentioned crimes, an abuser who is a law enforcement officer, military employee or government employee may still be able to continue to use a gun for work purposes (but not for personal use) even if you have a protective order.1
If you are confused or not sure whether the abuser can still use his/her gun for work purposes, you can talk to a domestic violence advocate in your area or call the National Center on Protection Orders and Full Faith & Credit to find out more information: 1-800-903-0111 x 2. To find a domestic violence advocate in your area, please go to our MT Advocates and Shelters page under the Places that Help tab on the top of this page.
1 18 USC § 925(a)(1)
I've read through all of this information and I am still confused. What can I do?
Trying to understand both federal and state law can be confusing, but there are people out there who can help you better understand the law and your rights under the law.
- You can also contact the National Center on Protection Orders and Full Faith & Credit to get more information about the federal firearm law and how it applies to you: 1-800-903-0111 x 2
- You can contact a local domestic violence organization in your area - see MT Advocates and Shelters page.
- You can write to our Email Hotline.