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 South Dakota, a felony is a crime for which someone can or must be sentenced to imprisonment in the state penitentiary. Any other crime is a misdemeanor.1
1 SDCL § 22-1-4
I am a victim of domestic violence and the abuser has a gun. Is that legal?
Under South Dakota state law, it is illegal for someone to have/buy a gun if s/he:
- was convicted in South Dakota or another state of a crime of violence; (Note: It is only illegal for 15 years after the person was last discharged from prison, jail, probation, or parole for the crime);1
- was convicted of a felony drug crime under the section of the law called “Chapter 22-42. Controlled Substances and Marijuana,”1 which are all listed on the South Dakota Legislature website. (Note: If s/he was convicted of certain felony crimes in Chapter 22-42 that are listed on our website here, then it is illegal to have/buy a gun for 15 years after the person was last discharged from prison, jail, probation, or parole for the crime.1 However, if the conviction was for one of the felony crimes that is listed on the South Dakota Legislature website but not listed on our website here, then it is only illegal to have/buy a gun for 5 years after the person was last discharged from prison, jail, probation, or parole for the crime);2 or
- was convicted of a misdemeanor crime involving an act of domestic violence; (Note: It is only illegal to have/buy a gun for the first year after the date of the conviction.)3
In addition, a person cannot get a permit to carry a concealed weapon if s/he:
- is under age eighteen;
- pled guilty to, pled no contest (nolo contendere) to, or was convicted of:
- is habitually in an intoxicated or drugged condition;
- is an unlawful user of or addicted to any controlled substance;
- has a history of violence;
- was determined to be a “danger to others” or a “danger to self” at some point during the past 10 years;
- is currently deemed mentally incompetent by a judge;
- has been declared in court (adjudicated) to be a “mental defective;”
- has been committed to a mental institution;
- has not physically resided the county where the application is being made for at least the past thirty days;4 (although there is an exception to this for members of the military and their spouses);5
- has been convicted of a felony or misdemeanor crime under Chapter 23-7, 22-14, or 22-42 within the past five years (or is currently under indictment for one of those crimes);
- is not a citizen or legal resident of the United States;
- was a citizen but has renounced his/her U.S. citizenship;
- is a fugitive from justice;
- has been discharged from the Armed Forces under dishonorable conditions;
- is prohibited under state law from from receiving, possessing or transporting a firearm; or
- iis the respondent on a protection order that was issued after notice and a hearing that:
- restrains him/her from:
- harassing, stalking, or threatening an intimate partner or the child of an intimate partner; or
- engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
- includes a finding that s/he represents a credible threat to the physical safety of an intimate partner or child or specifically prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.4
- restrains him/her from:
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 in certain situations. Go to Federal Gun Laws to get more information.
1 SDCL § 22-14-15
2 SDCL § 22-14-15.1
3 SDCL § 22-14-15.2
4 SDCL §§ 23-7-7; 23-7-7.1; 18 USC § 922(g), (n)
5 SDCL § 23-7-7.5