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?
Under New Mexico state law, a felony is any crime that is punishable by a sentence of death or of imprisonment for a term of one year or more.1
1 N.M.S.A § 31-1-2(D)
I am a victim of domestic violence and the abuser has a gun. Is that legal?
New Mexico law prohibits certain people from having or buying a gun. In New Mexico, it is a illegal for someone to have a gun if any of the following apply:
- s/he is a felon and it has been less than ten years since s/he completed his/her sentence;
- s/he is subject to a final domestic violence protection order;
- s/he is prohibited from having a gun under federal law, or
- s/he has been convicted of any of the following crimes:
Additionally, under New Mexico law the abuser may be prohibited from getting a concealed handgun license if any of the following apply:
- s/he is not a citizen of the United States;
- s/he is not a resident of New Mexico (unless s/he is a member of the armed forces whose permanent duty station is located in New Mexico or is a dependent of such a member);
- s/he is under age twenty-one;
- s/he is a fugitive from justice;
- s/he has been convicted of, or is currently under indictment for, a felony in New Mexico or any other state;
- s/he is prohibited by federal law or the law of any other jurisdiction from purchasing or possessing a firearm, which includes the reasons listed here;
- s/he has been adjudicated mentally incompetent or committed to a mental institution;
- s/he is addicted to alcohol or controlled substances;2
- s/he has been convicted of a misdemeanor offense involving assault, battery or battery against a household member;
- s/he received a conditional discharge, a diversion or a deferment or has been convicted of, pled guilty to or entered a plea of no contest (“nolo contendere”) to a misdemeanor offense involving a crime of violence within the ten years immediately before the application;
- s/he has been convicted of a misdemeanor offense involving driving while under the influence of intoxicating liquor or drugs within five years immediately preceding the application for a concealed handgun license; or
- s/he has been convicted of a misdemeanor offense involving the possession or abuse of a controlled substance within ten years immediately preceding the application.3
Note: Federal laws, which apply to all states, restrict an abuser’s right to have a gun if s/he has been convicted of a felony or domestic violence misdemeanor; or if you have a protective order against him/her that meets certain requirements (even if the judge does not specifically include on the order that s/he cannot have a gun). Go to the Federal Gun Laws page to get more information.
1 N.M. Stat. § 30-7-16(A), (E)(3); 18 U.S.C. § 921
2 N.M. Stat. § 29-19-4(A)
3 N.M. Stat. § 29-19-4(B)