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 a felony?
Throughout these gun law pages, we will refer to 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 NY state 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 courthouse to search the conviction records.
1 NY Penal Law §10.00(5)
What is the definition of a "domestic violence misdemeanor"?
Throughout this section, we will refer to the fact that it is illegal to carry a gun if a person has been convicted of a “domestic violence misdemeanor.” Here are the steps you can take to figure out if the abuser was convicted of a domestic violence misdemeanor:
Step 1: You first need to know if the abuser was convicted of a misdemeanor crime either in state court or in federal court.1 A misdemeanor may have different definitions in each state but basically, it is a lesser crime than a felony. If you are unsure if the abuser was convicted of a misdemeanor, you can call the district attorney or prosecutor who handled the criminal case and ask him/her.
Step 2: The next step is that you need to figure out if the crime involved either the use or attempted use of physical violence or force, or the threatened use of a deadly weapon.1 Again, if you are unsure, you might want to call the prosecutor who handled the case.
Step 3: The abuser must be either:
- your current or former spouse;
- your parent or guardian;
- a person who you share a child with;
- a person who you live with or have lived with as if s/he were a spouse, parent or guardian; or
- a person who is like a spouse, parent or guardian.1
If all three of these steps apply to your situation, it is likely that the abuser was convicted of a domestic violence misdemeanor.
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.” For example: If Bob is convicted of a misdemeanor assault against his wife, it is illegal for him to buy a have a gun. If Bob is convicted of a misdemeanor assault against his neighbor, he may still be able to have or buy a gun.
For more information, or if you are still confused, you might want to 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); see Buster v. United States, 447 F.3d 1130 (8th cir 2006) for discussion of defining “as a spouse.”
2 See, for example, United States v. Kavoukian, 315 F. 3d 139 (2d. Cir. 2002); United States v. Meade, 175 F.3d 215 (1st Cir. 1999)
I am a victim of domestic violence and the abuser has a gun. Is that legal?
Under New York state law, a person can only get a gun license or renew an existing gun license if s/he:
- is over age 21 (except for someone who was honorably discharged from the United States army, navy, marine corps, air force or coast guard, or the national guard of the state of New York - in that case, s/he can be under 21);
- is of “good moral character;”
- has not been convicted anywhere of, and does not have an outstanding arrest warrant for, a felony or a serious offense;
- is not a fugitive from justice;
- is not an unlawful drug user or addicted to any controlled substance;
- is not an undocumented immigrant (or has not renounced his or her U.S. citizenship);
- has not been discharged from the Armed Forces under dishonorable conditions;
- has not been involuntarily committed to a mental health facility by a judge;
- has not had his/her gun license revoked or who is not under a suspension or ineligibility order;
- has successfully completed a firearms safety course and test (in counties where this is required and where applicable); and
- has not had a guardian appointed for him/her based on subnormal intelligence, mental illness, incapacity, condition or disease, or that s/he lacks the mental capacity to contract or manage his or her own affairs.1
1 NY Penal Law § 400.00(1)