Transporting firearms across state lines can prove to be a nightmare for gun owners due to the patchwork of state and local gun laws in this nation even despite federal law providing protections for interstate firearm transportation. The fact is that even though this legal protection exists, due to the lack of guidance from courts and political agendas, gun owners transporting firearms still place themselves at risk of arrest and prosecution, especially when travelling through states or cities that heavily regulate possession and transportation.
This article is meant to provide an overview of the law concerning interstate transportation of firearms in order to give gun owners a general understanding of their rights in this area. This discussion is not meant to be an exhaustive or academic review of this area of law and should not be regarded as legal advice. As always, you should consult an attorney if you need legal advice.
The Federal Transportation Law
Concerning the interstate transportation of firearms, federal law provides at 18 USCS § 926A:
§ 926A. Interstate transportation of firearms
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter [18 USCS §§ 921 et seq.] from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.
Under this law, to legally transport a firearm interstate all the following need apply:
(1) You are not otherwise prohibited from possessing a firearm
(2) It is lawful to possess AND carry the firearm in the place of origin
(3) It is lawful to possess AND carry the firearm in the place of destination
(4) The firearm must be unloaded
(5) The firearm and any ammunition are not readily accessible OR directly accessible from the passenger compartment (if not possible see below)
Note: In vehicles without a trunk separate from the passenger compartment any firearms AND ammunition must be in a locked container other than the glove compartment or console.
Before engaging in interstate travel, the gun owner should ensure that all the above criteria apply before transporting firearms. Before travel, the gun owner should verify that it is legal to both carry and possess the firearm in the jurisdiction of origins and destination. Immediately before beginning travel the gun owner should ensure the firearms are all unloaded, unloaded all magazines, and secure them separately. Although not required by law, unless in a vehicle without a compartment separate of the passenger compartment, it is advisable to secure the guns also in a locked case or with individual locks. This may make transport also lawful under state or local law as well as federal law which will provide an extra layer of protection.
There is nothing explicit in the statute that requires a gun owner to carry any type of documentation, such as gun permits or registrations, but it is advisable to do so because this could prevent unneeded problems and even arrest.
The case of Torraco v. Port Auth., 539 F. Supp. 2d 632 (E.D.N.Y. 2008) aptly illustrates how carrying documentation can avoid potential legal trouble. In Torraco two gun owners travelling through a New York City airport, attempting to transport their firearms, were subject to detention and arrest despite claiming federal law preempted any local or state gun laws prohibiting possession. The gun owners asserted the protection of federal law, but could not provide any documentation of their claims. Because the local officers were unfamiliar with this federal law and the plaintiffs could not produce any further evidence of their legal claims, they arrested the plaintiffs for illegal possession.
The plaintiffs later sued the officers, making several claims; one among them was unlawful arrest. In dismissing the lawsuit, a federal district court held that even though the plaintiffs claimed protection of the federal law, since they were unable to verify their verbal claims with any documentation and since the officer was unfamiliar with the federal law, probable cause existed to make an arrest.
The court in Torraco reasoned that since probable cause, “is knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime” the officer was not required to engage in an exhaustive investigation of the purely verbal claims before making an arrest. This means that simply verbally stating federal law makes possession or transportation legal is most likely not enough to avoid arrest.
Because probable cause to make an arrest is a lower standard of evidence and can be easily reached given the correct factual circumstances, it is advisable for a gun owner to have documentation of lawful possession ready and to fully cooperate in the event of a police encounter.
Here are some types of documentation that a gun owner might want to obtain before travelling:
A copy of the federal interstate transportation law
Resident or non-resident gun permits or copies of reciprocity agreements or laws from the state of origin or destination and states through which travel will take place
Any required registration paperwork for the state of origin or destination or laws concern a duty or register
Copies of relevant case law providing a right to carry or possess in state of origin or destination (for instance, states with open or concealed carry as a matter of constitutional right)
Bills of sale and transfer paperwork for all guns being transported
In the event of a police encounter, the gun owner should be able to provide ample documentation in order to effectively invoke the protection of federal law. Also, the gun owner should cooperate fully during the investigation because evasive or defiant behavior may contribute to establishing probable cause for an arrest. If the officer appears to be unfamiliar with the federal law after providing documentation, ask to speak with a supervisor. If in an airport, the gun owner may suggest that the local officer consult with a TSA official because they are trained on this federal law and can provide guidance to local law enforcement.
If after following these guidelines you are still subjected to arrest, contact an attorney immediately. Write down the details of the encounter and note any witnesses and other officials present. Do not consent to any searches or make any statements until you speak with your attorney.
Stops While Travelling
Courts have generally held that in order to be able to invoke this law as a defense the only stops allowed must be directly incidental to the trip. For example, in People v. Selyukov, 2008 NY Slip Op 28104, 2 (N.Y. J. Ct. 2008), a trial court held:
Fundamental to the defense is the firearm owner's actually engaging in travel, or acts incidental to travel, through the state of arrest, such as stopping for food or gasoline or picking up passengers or packages for the trip. Any pause in the journey must be directly incident to it.
The defense is generally lost if the firearm’s owner stops for any reasons not directly related to the immediate trip. (for example see State v Baker, 639 SW2d 617 [Mo App, SD 1982]) defense not available when stop was for unrelated stay with girlfriend.)
It is clear that stops for food and gasoline do not constitute a break in travel. But what about stops such as overnight stays or major diversions to collect passengers? Stops such as this are a grey area under this law and it is hard to judge the line when a stop is directly incident to the journey or falls outside of that category. Due to the lack of any settled law, it is best for a gun owner to be cautious when planning any intermediate stops. When planning a trip it would be best for the gun owner to:
Plan a travel route through states where possession is legal under state or local law
Plan travel routes that avoid jurisdictions which heavily regulate firearms and minimize travel time and stops in jurisdictions which do so
Minimize the need for overnight stops
When making overnight stops, stay close to your travel route. Do not deviate from the route to stay overnight with friends or family.
Do not make major detours to collect passengers or packages. If possible, make arrangements to collect these close to your main travel route.
Make stops as brief as possible. Minimize length of stops whenever possible.
When stopped, even overnight, do not remove firearms from the car as doing so may remove the protection of federal law and may even constitute illegal carry of a firearm in that jurisdiction
Other Practical Tips
Before travelling, acquire non-resident permits for the destination state and any intermediate state. This will make transport easier, especially if interstate travel along the same route occurs regularly.
Most police encounters during travel involve stops for traffic offenses. Following traffic laws, such as speed limits, will greatly reduce the chance of any encounter with law enforcement.
In the event of a police encounter, do not offer any additional information then what is demanded. Produce only information required by the officer. Admitting unnecessarily that you are transporting firearms when not required to do so will only ensure a longer detention and possible custodial arrest. Although note that some state laws require a driver to immediately disclose to police if transporting firearms. These "duty to inform" state laws may be preempted by the federal interstate transportation law, but there is no known case law on the subject. As such, gun owners should use caution and research applicable state laws before travelling.
Furthermore, do not consent to any searches of your vehicle. Consenting only ensures that the officer will search your vehicle and this will also greatly limit the ability of your attorney to suppress the fruits of the search in court. Generally an officer only needs probable cause to search the passenger compartment of your vehicle. But, in order to search any other area of you car, including an enclosed trunk, the officer will generally need both probable cause and a warrant (see generally New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).) If firearms were secured in a locked trunk, this makes it highly unlikely the officer will find them during a search. Although the officer may still seek a warrant, it is unlikely he will do so. (NOTE: if you are subject to custodial arrest or if your car is seized these general rules will most likely not apply.)
Federal law does provide some protection for gun owners who seek to transport their firearms over state lines. But, even with these protections a gun owner may still be presented with legal trouble when doing so. Because of this, gun owners should do proper research before travelling, secure guns as required by law, and use common sense. By following these simple guidelines, most gun owners will avoid any potential problems during their travels.