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?
In New Jersey, felonies are referred to as “indictable offenses.” (In comparison, misdemeanors are referred to as “non-indictable offenses,” “disorderly persons offenses” or “petty disorderly persons offenses.”) The term “indictable” refers to the fact that the prosecutor will seek an “indictment” from a grand jury before charging someone with a crime. There are four degrees of indictable offenses in New Jersey, with the lowest (4th degree) carrying a possible prison term of up to 18 months in prison and up to a $10,000 fine.1
1 NJ Stat. §§ 2C:43-6; 2C:43-3(b)(2)
I am a victim of domestic violence and the abuser has a gun. Is that legal?
New Jersey state law says that a person cannot get a “handgun purchase permit” or a “firearms purchaser identification card” if:
- s/he was convicted of any “crime” (in other words, an “indictable offense,” which is referred to in other states as a felony);1
- s/he was convicted of a “disorderly persons offense” (referred to as a misdemeanor in other states) that involves an act of domestic violence, which includes any of the following crimes when committed against a family or household member:
- terroristic threats
- criminal restraint
- false imprisonment
- criminal mischief
- criminal trespass
- sexual assault
- criminal sexual contact
- criminal coercion
- contempt of a domestic violence order (if it is considered to be a crime or disorderly persons offense)
- any other crime that involves risk of death or serious bodily injury;2
- s/he is subject to a restraining order against him/her that prohibits him/her from possessing a firearm;
- s/he had a gun that was taken away under the Prevention of Domestic Violence Act and it was not returned;
- the issuance of the permit would not be in the interest of the public health, safety or welfare;
- s/he is addicted to drugs or is an alcoholic;
- s/he is currently, or has ever been, confined for a mental disorder to a hospital or mental institution or sanitarium;
- s/he suffers from a physical defect/disease, which would make it unsafe for him/her to handle firearms;
- s/he knowingly falsifies any information on the application form for a handgun purchase permit or firearms purchaser identification card;
- s/he is under the age of 18 years (for a firearms purchaser identification card) or under the age of 21 years (for a permit to purchase a handgun);
- s/he was, as a juvenile, adjudicated delinquent for an offense which, if committed by an adult, would constitute a crime and the offense involved the unlawful use or possession of a weapon or explosive/destructive device; or
- s/he is named on the consolidated Terrorist Watchlist maintained by Terrorist Screening Center administered by the Federal Bureau of Investigation.1
In addition, it is a crime of the 2nd degree under New Jersey state law for anyone who was convicted of any of the following crimes, or an attempt or conspiracy to commit any of the following crimes, to possess a firearm or ammunition:
- aggravated assault;
- aggravated sexual assault;
- sexual assault;
- bias intimidation;
- endangering the welfare of a child;
- gang criminality;
- terroristic threats;
- unlawful possession of a machine gun, handgun, or assault firearm;
- leader of firearms trafficking network;
- a crime involving domestic violence or an attempt or conspiracy to commit a crime involving domestic violence;
- certain drug crimes or an attempt or conspiracy to commit certain drug crimes (listed here in (b)(1));
- certain crimes involving possession of prohibited weapons and devices (listed here in (b)(1)).3
It is a crime of the 3rd degree under New Jersey state law for someone to possess a firearm or ammunition if:
- s/he was convicted of a disorderly persons offense involving domestic violence;
- s/he is subject to an extreme risk protection order;
- his/her firearm was seized (taken by police) pursuant to the “Prevention of Domestic Violence Act” and was not returned; or
- there is a court order prohibiting the possession of firearms issued pursuant to the “Prevention of Domestic Violence Act” (except this does not apply to law enforcement officers while on duty, or to any member of the Armed Forces of the United States or member of the National Guard while on duty or traveling to or from an authorized place of duty).4
Note: These convictions listed above do not necessarily have to have taken place in a New Jersey court. If the abuser was convicted of a similar crime in another state, territory, commonwealth or other jurisdiction of the United States, or even in any country in the world (if it was in a court of “competent jurisdiction”), the law would still apply.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 NJ Stat. § 2C:58-3(c)
2 NJ Stat. §§ 2C:58-3(c); 2C:25-19(a)
3 NJ Stat. § 2C:39-7(b)(1)
4 NJ Stat. § 2C:39-7(b)(2), (b)(3), (b)(4)
5 NJ Stat. § 2C:39-7(c)