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?
Possibly. Both federal law and Nebraska state law prohibit certain persons from having and buying guns.
Nebraska state law says that it is illegal for anyone to possess a firearm who:
- has been convicted of a felony,
- is on probation pursuant to a deferred judgment for a felony;
- is a fugitive from justice (any person fleeing to avoid prosecution),
- has been convicted within the past seven years of a misdemeanor crime of domestic violence; or
- is the subject of a current domestic violence protection order, harassment protection order, or sexual assault protection order and is knowingly violating such order.1
Also, in order to get a concealed weapons permit in Nebraska, the applicant must meet all the following requirements:
- be at least twenty-one years of age;
- not be prohibited from purchasing or possessing a handgun according to federal law 18 USC § 922, which includes the prohibition against a respondent in a protection order case from possessing a firearm;
- meet certain vision (eyesight) requirements;
- not have been convicted of a felony under the laws of Nebraska or any other state;
- within the past 10 years, not have been convicted of a misdemeanor crime of violence under the laws of Nebraska or any other state;
- within the past 10 years, not have been found to be a “mentally ill and dangerous person” under the Nebraska Mental Health Commitment Act or a similar law in another state;
- not be currently adjudged mentally incompetent by a court;
- be a resident of this state for at least the past one hundred eighty days;
- within the past 10 years, not have had a conviction of any Nebraska law relating to firearms, unlawful use of a weapon, or controlled substances (drugs) or of any similar laws of another state;
- not be on parole, probation, house arrest, or work release; and
- provide proof of firearm training.2
In addition, if you have a protection order against the abuser, or if the abuser has been convicted of a felony or of a domestic violence misdemeanor, then federal law states that it is illegal for your abuser him/her to buy or have a gun in his/her possession.3Note: There are certain requirements that your protection order must meet for it to qualify under federal law. See I have a protection order against my abuser. Can s/he keep a gun or buy a new gun? to read more about what those requirements are. 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 NE ST § 28-1206(1)(a), (1)(b)
2 NE ST § 69-2433
3 18 USC § 922(g)(8), (g)(9)
What crimes are considered domestic violence misdemeanors?
A crime is considered a domestic violence misdemeanor under federal law if it:
- Can be defined as a misdemeanor under federal or state law; and
- Involves physical violence or force, or includes threats made with a deadly weapon; and
- Was committed by:
- a current or former spouse;
- a parent or guardian of the victim;
- a person with whom the victim shares a child;
- a person living with the victim as a spouse, parent or guardian; or
- a person who has a similar relationship (listed above) with a spouse, parent or guardian of the victim.1
Note: The crime does 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 is what determines whether or not the misdemeanor is a “domestic violence” misdemeanor.3
For example: If Bob is convicted of a misdemeanor assault against his wife, he may no longer have or buy a gun. If Bob is convicted of a misdemeanor assault against his neighbor, he may still be able to have or buy a gun.
If you’re not sure if a certain crime counts as a domestic violence misdemeanor, you can 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)
2United States v. Kavoukian, 315 F. 3d 139 (2d. Cir. 2002); United States v. Meade, 175 F.3d 215 (1st Cir. 1999)
3United States v. Denis, 297 F.3d.25(1st Cir. 2002); United States v. Costigan, No. 009-B0H, 2000 U.S. Dist. (D. Me. June 16, 2000)
What is the definition of a felony?
A felony under federal law is a crime that is punishable by a prison sentence of more than one year.1 Nebraska state law has various felony crimes, all with different sentences, some of which may be less than one year.2 To read the various classes of felonies in Nebraska, go to our NE Statutes page.
1 18 USC § 3559
2 NE R.S. § 28-105