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 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;
- 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 (family) 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 family violence misdemeanor, you can contact the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111, ext. 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?
Throughout these gun law pages, we will refer to gun 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 Texas state law as an offense punishable by death or confinement in a penitentiary or any other offense that is named a felony under the law.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 and search the conviction records.
1 Tex. Penal Code § 1.07(a)(23)