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Gun Laws

What Are Gun Laws?

Gun laws control who is eligible to purchase, own, and carry guns in a given state or city. Every state has different gun laws, and gun laws can sometimes be different from city to city. For instance, the gun laws in California may be drastically different from New York gun laws.

Most gun laws govern issues such as:

  • Who can buy or possess a gun
  • How long a person must wait in between buying a gun and actually receiving it (i.e. “waiting times”)
  • Whether a gun can be carried in public
  • Whether the gun needs to be concealed or not
  • Storage of guns in transit

A violation of gun laws can lead to various legal consequences. Also, being convicted of certain crimes can lead to a loss of the right to own a firearm.

What Are Some Common Violations of Gun Laws?

Common violations of gun laws include:

  • Unauthorized purchase of a firearm
  • Illegal carrying of a gun (especially in public places)
  • Minor in possession of a gun
  • Discharging a gun in public or in prohibited areas
  • Possessing a gun without authorization or a proper permit (for instance, a person who has been convicted of a felony and is no longer allowed to own a gun)

These types of violations are separate from crimes involving guns as weapons (such as assault, homicide, or armed robbery).

Are there Any Legal Consequences to Gun Law Violations?

Violations of gun laws can lead to legal penalties such as a fine, jail time, and a loss or suspension of one's gun license. Such violations can often be complex, especially if the person has a criminal history involving violent felonies. A gun law violation generally requires the assistance of a lawyer.

What Are Some Restrictions On Gun Possession?

Gun possession is limited by gun control laws in an effort to ensure public safety. Whether it is illegal to possess a gun largely depends on factors such as:

  • A person's age;
  • Their background;
  • The type of gun possessed; and
  • Whether they are in violation of concealed carry laws.

The following list further details regarding factors considered for gun control laws:

  • Age And Type of Gun: Federal law prohibits the sale of a handgun to anyone who is under age 18; however, the same restriction does not apply for long guns, such as rifles and shotguns. Each state has the ability to implement more strict age requirements, and as such, the law differs by state so that the minimum age to purchase a handgun in many states is actually 21 years old.
  • Background: A person's criminal background can also make it illegal for them to possess a gun. Federal law prevents the sale of a gun to anyone who:
    • Has been convicted of or charged with a crime in federal court, that carries a possible sentence of over a year in jail, which is generally a felony;
    • Has been convicted of or charged with a crime in state court, that is a felony or is a misdemeanor that is punishable by more than 2 years in prison;
    • Is a fugitive;
    • Is known to be addicted to controlled substances, which requires that the person has “lost the power of self-control with reference to the use of controlled substance,” and is sometimes inferred from multiple recent drug convictions;
    • Has been found by a court or other lawful authority to be a danger to themselves or others, or who have been involuntarily committed for drug/alcohol abuse or mental health issues;
    • Has been convicted of certain crimes, or is subject to a court order associated with domestic violence or a serious mental condition;
    • Is in the U.S. illegally; and/or
    • Was dishonorably discharged from U.S. Military Service.

There are some locations in which gun possession is prohibited, even by someone who can legally possess a gun elsewhere. Federal law prohibits gun possession at:

  • Federal facilities such as courthouses;
  • Post offices;
  • Airports and on airplanes, except when the weapon is unloaded, is in a checked bag, and the airline is made aware of the weapon; and
  • School zones, meaning K-12, except when someone has a state-issued concealed carry permit.

Some other areas where guns are commonly prohibited by states include:

  • Bars or restaurants that serve alcohol;
  • Churches;
  • Polling places; and
  • Daycare facilities.

What Are Some Other Gun Possession Restrictions?

Some states prohibit specific types of firearms completely, such as:

  • Assault Weapons: Semi-automatic guns with detachable magazines (e.g. AK-47, M-16);
  • “Ghost Guns:” Firearms assembled from kits or made with 3D printers, that are untraceable by law enforcement and often undetectable by metal detectors;
  • Large Capacity Magazines: Magazines containing more than 10 rounds;
  • Machine Guns: Fully automatic firearms that continue firing bullets as long as the trigger is held down;
  • 50 Caliber Weapons: It is important to note that very few states have banned these; and/or
  • Silencers: These are used to prevent someone from hearing the sound of gunfire, or from seeing the muzzle flash.

Restrictions can also be based on the way the gun is being held or carried by its owner. An example of this would be how carrying a concealed gun while in public can be a crime depending on which state you are in. Fifteen states do not prohibit concealed carry, but the rest require you to first obtain a concealed carry permit, which can be considerably difficult in some states.

Carrying an openly visible gun in public is prohibited entirely by 5 states, while 15 states require some form of permit or license in order to do so. Open carry is allowed without a permit in around 30 states.

While the Second Amendment grants the right to bear arms, that right is not absolute. Because of this, carrying a firearm in violation of one of the above mentioned restrictions can result in serious legal consequences, and carrying a gun while committing another crime will result in considerably harsher penalties.

Someone who has been convicted of a felony is nearly always prohibited from carrying a gun, and being a felon in possession of a firearm is punished harshly. However, most states allow a felon to restore their gun possession rights as long as the applicant is not deemed dangerous to public safety. Restoring the rights must not be contrary to the public interest.

How Do Gun Laws Differ From State To State?

Pursuant to the Second Amendment of the U.S. Constitution, American citizens have the “right to bear arms,” or the right to possess guns. To reiterate, because of the concept of “state's rights,” individual states have different regulations in terms of gun possession.

An example of this would be how Texas has no regulation on purchasing assault rifles, no requirement for registering firearms once they are purchased, and allows gun owners to carry firearms with little government interference. Conversely, California bans the sale of certain types of guns, and makes it a criminal misdemeanor to openly carry an unloaded gun in specific areas.

The majority of gun legislation in the United States is enacted at the state level. States take different approaches in terms of the following factors:

  • Sales, such as whether background checks are required, the age in which you must be to purchase a firearm, etc;
  • Permits, such as whether one is required and how long it takes to process;
  • Licensing laws;
  • Carrying laws, meaning open carrying laws versus concealed weapons; and
  • The legal use of guns in self-defense.

What is New York's Gun Restriction Law?

Some states place limitations on firearm possession and sales. These are the restriction on firearms in New York:

  • Juvenile Possession Law – This law bars possession of handguns for people under 21 and for other firearms for people under 16 years unless for supervised hunting.
  • Juvenile Sale/Transfer Law – This law bars or restricts the sale or transfer of specified guns to youth. In New York you have to be 19 to buy a firearm. Exceptions can be given for hunting.

What Are The Federal Laws Regarding Gun Possession?

Generally speaking, federal law establishes the baseline for the types of people who are ineligible to purchase firearms. In addition to the previously mentioned prohibited categories, pursuant to the federal Gun Control Act of 1968, the sale of firearms is prohibited to any person who:

  • Is either a criminal or under indictment for a crime that is punishable by more than a year;
  • Has renounced U.S. citizenship;
  • Has an outstanding restraining order against them;
  • Is committed to a mental institution; and/or
  • Has been convicted of domestic violence.

Possession of a firearm or ammunition by a prohibited person is punishable by up to 10 years imprisonment. Additionally, if the person has three or more prior convictions of a felony crime of violence such as:

  • Burglary;
  • Robbery;
  • Assault; and/or
  • Conviction of drug trafficking, they can receive a minimum sentence of 15 years without parole.

In 1993, the Brady Handgun Violence Prevention Act was enacted and amended the Gun Control Act of 1968. This imposed a waiting period of 5 days before a licensed importer, manufacturer, or dealer can sell, deliver, and/or transfer a handgun to an unlicensed person.

It is imperative to note that this only applies to states that do not have alternate systems of conducting background checks on handgun purchasers. Nine states which include California, Connecticut, New York and Washington, require universal background checks. Maryland and Pennsylvania require point of sale background checks.

The National Firearms Act places restrictions on the possession and sale of machine guns, short-barreled shotguns, and silencers. Additionally, it imposes a tax on the making and transfer of these types of firearms, and requires the purchaser to go through a lengthy background check. It also necessitates that the weapon is registered with the Bureau of Alcohol, Tobacco, and Firearms.

When Can I Legally Possess a Gun without a Valid Permit?

The Supreme Court specifically stated that both the McDonald and Heller decisions will not interfere with any existing statutes and regulations. Thus, the Second Amendment right to bear arms is not an absolute right. It does not mean that a person can carry or use a gun in any manner or for any purpose that they choose. Individual citizens must still abide by state statutes that require permits for the carrying of guns, whether concealed or not, or risk violating those permit laws. For example, statutes that prohibit convicted felons from using guns are still in effect.

Thus, it is vital to be aware that each state has different laws when it comes to gun possession. In most states, you do not need a permit simply to own a gun. By contrast, in some states, and for certain people, an ID card or license may be required to possess a gun.

Exceptions to Laws Requiring a Permit to Carry a Gun

Laws that forbid the possession and carrying of handguns will often include limited exceptions, meaning that there are certain places where it is legal to carry a handgun without a valid permit or license to do so. These exceptions are generally limited to when someone is 1) in their home, or 2) in their place of business Again, these laws vary widely by state and even by local jurisdiction.

1) Possession of a Gun In the Home:
Even in jurisdictions where it is illegal to carry a gun without a valid permit, you may be allowed to do so in your home. The law recognizes the importance of protecting one's home and often makes this exception where the carrying of a gun without a permit is otherwise illegal. However, even this exception may have a few exceptions.

  • “Home” may or may not include a residential dwelling that a person rents.
  • Ownership alone may not satisfy the exception. For instance, courts may be reluctant to extend this exception to property that a person owns but does not actually live in.
  • This exception also does not include possession of a gun when a person is in another person's home, although if the person carrying the gun is frequently staying overnight in the other person's home, a court may be more inclined to apply the exception.

2) Possession of a Gun in a Place of Business:
Laws that make the concealed carrying of a gun without a valid permit illegal will often include an exception for when a person is in their place of business. This exception is designed to allow gun possession for the purpose of the protecting a business and the person's ownership interest in the business. What constitutes a “place of business” will be determined by the court and is often an area of debate when a gun possessor claims to fall within the scope of this exception.

Be aware that gun control laws often change in response to public debate about firearms and the Second Amendment. If you are unsure, contact an attorney to determine what the laws are in your state.

Laws for Selling a Gun Privately

Selling a gun privately is considered a secondary sale of a firearm. The reason why it is a secondary sale is because the gun was initially purchased from a licensed gun dealer before being resold privately. A private seller of a gun does not need a license to sell guns.

Am I Required to Conduct a Background Check on the Purchaser?

Federal law does not require private gun sellers to obtain a background check on any gun purchaser. Many gun opponents refer to this as the gun show loophole.

However, a private gun seller may be required by state law to perform a background check on the purchaser. At least 17 states and Washington, D.C. require some type of background check to be performed on the purchaser, even by private gun sellers.

For example, Connecticut, California, Colorado, Delaware, New York, and Rhode Island do require a private seller to obtain a universal background check.

What If I Am Only Selling a Handgun?

Some states do require background checks for only handgun purchases. For example, New Jersey, Hawaii, Maryland, and Pennsylvania require a private seller to conduct background checks on purchasers. In Florida, it depends on the jurisdiction.

Am I Required to Make Sure the Purchaser Has a Permit?

It depends on where you live. Some states, including New Jersey and Iowa, require a private seller to transfer guns to only purchasers with a state license or permit.

Does New York Have a Child Access Prevention Law?

No, they don't. Gun owner are not held accountable for leaving gun accessible for children as they are in many other states. But child-safety locks have to be sold with guns.

Does New York Require Background Checks?

Yes, a background check must be done at all handgun sales, including those at gun shows. Buyers have to obtain a license from law enforcement prior to purchasing a handgun. This background check can take up to six months. Applicants must be 21 years old and the license involves a criminal background check. New handguns have to be ballistically fingerprinted.

Do I Need a Lawyer for Help with a Gun Law Violation?

You may wish to hire a criminal lawyer if you have been involved in a gun law violation. An attorney can provide you with advice and can notify you if any possible defenses may be available. Also, your lawyer can represent you during any court hearings or meetings.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.