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.
I am a victim of domestic violence and the abuser has a gun. Is that legal?
It depends. It is illegal under Wisconsin law (a Class G felony) for a person to possess a firearm if any of the following applies:
- s/he has been convicted of a felony in Wisconsin (or a crime in another state that would be a felony if committed in Wisconsin);
- s/he has been found not guilty by reason of mental disease/defect of a felony in Wisconsin (or a crime in another state that would be a felony if committed in Wisconsin);
- s/he has been adjudicated delinquent for an act committed on or after April 21, 1994, that would be considered a felony if committed by an adult;
- s/he has been involuntarily committed for treatment by a court due to mental illness, drug dependency, or other developmental disability and is subject to an order not to possess a firearm;
- s/he is subject to an order not to possess a firearm in a court proceeding based on alcoholism, the appointment of a guardian, or protective placement/protective services;
- s/he has an injunction issued against him/her for domestic violence or child abuse , including a tribal domestic violence injunction (except the Menominee Indian tribe of Wisconsin); however, for these injunctions, there is an exception for law enforcement or military officers; or
- s/he is subject to an order not to possess a firearm in a harassment restraining order/injunction or an individual at risk restraining order/injunction.1
In addition, if you have a domestic abuse restraining order against the abuser, or if the abuser has been convicted of a felony or domestic violence misdemeanor, then federal law states that it is illegal for the abuser to buy, own or have a gun in his/her possession.2 To read more information, go to our Federal Gun Laws pages.
1 Wis. Stat. § 941.29(1m)
2 18 USC 922(g)(8),(9)
What is the definition of a felony?
Wisconsin state law defines a felony as a crime that is punishable by imprisonment in the Wisconsin state prisons.1 A felony under federal law is a crime that is punishable by a prison sentence of more than one year.2
1 Wis. Stat. § 939.60
2 18 USC 3559(a)