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. It is defined under North Dakota law as a crime that is punishable by a prison sentence of more than one year.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 See generally ND Statutes § 12.1-32-01
I am a victim of domestic violence and the abuser has a gun. Is that legal?
It depends. North Dakota state law prohibits the possession of any firearm under the following circumstances:
- A person who was convicted of a felony involving violence or intimidation that comes under any of the following sections of the North Dakota criminal law (or a similar felony in another state) cannot possess a firearm for 10 years from the date of conviction or the date of release from incarceration, parole, or probation, whichever is latest:
- Chapter 12.1–16. Homicide
- Chapter 12.1–17. Assaults—threats—coercion—harassment
- Chapter 12.1–17.1. Offenses against unborn children
- Chapter 12.1–18. Kidnapping
- Chapter 12.1–20. Sex offenses
- Chapter 12.1–21. Damaging property or public services
- Chapter 12.1–21.1. Animal research facility damage
- Chapter 12.1–22. Robbery—breaking and entering offenses
- Chapter 12.1–23. Theft and related offenses
- Chapter 12.1–23.1. Theft of cable television
- Chapter 12.1–24. Forgery and counterfeiting
- Chapter 12.1–25. Riot;1
- A person who was convicted of a felony (in North Dakota or in another state) that does not fall under the categories listed in #1 cannot possess a firearm for 5 years from the date of the conviction or the date of release from incarceration, parole, or probation, whichever is latest;2
- A person who was convicted of a class A misdemeanor involving violence or intimidation that comes under any of the sections of the North Dakota criminal law listed in #1 (or a similar class A misdemeanor in another state) cannot possess a firearm for 5 years from the date of conviction or the date of release from incarceration, parole, or probation, whichever is latest – however, and s/he must have used or possessed a firearm, a dangerous weapon, a destructive device or an explosive while committing the misdemeanor crime;2
- A person is prohibited from purchasing or possessing a firearm if s/he has ever been:
- diagnosed as:
- a “person requiring treatment” due to mental illness or chemical dependence; or
- a “mentally deficient person;” and
- confined or committed to a hospital or other institution (in any state) by a court;3 and
- diagnosed as:
- A person who is under the age of eighteen (unless it’s for hunting, target shooting, etc., and under the direct supervision of an adult).4
In addition, if a person applies for a concealed weapons license in North Dakota, s/he should be denied the license if any of the following are true:
- s/he falls into any of the categories listed above (in #1 through #5);
- s/he has been convicted of any felony;
- s/he has been convicted of a crime of violence;
- s/he has been convicted of an offense involving domestic violence;
- s/he has a final order of protection against him/her that meets the requirements under federal law;
- s/he has been convicted of an offense involving the use of alcohol within the past ten years;
- s/he has been convicted of a misdemeanor involving the unlawful use of drugs within the past ten years;
- s/he has been convicted of an offense involving moral turpitude; or
- a court has declared him/her to be mentally incompetent.5
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 ND Statutes § 62.1-02-01(1)(a)
2 ND Statutes § 62.1-02-01(1)(b)
3 ND Statutes § 62.1-02-01(1)(c)
4 ND Statutes § 62.1-02-01(1)(d)
5 ND Statutes § 62.1-04-03(1)(c)