FOPA...travelling with firearms & Heller vs. DC fallout????

FOPA...travelling with firearms & Heller vs. DC fallout????

This is a discussion on FOPA...travelling with firearms & Heller vs. DC fallout???? within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; First a little background: Some here will be familiar with FOPA: Firearms Owner Protection Act (18 U.S.C. § 926A) . This was passed into law ...

Results 1 to 15 of 15

Thread: FOPA...travelling with firearms & Heller vs. DC fallout????

  1. #1
    VIP Member
    Array goawayfarm's Avatar
    Join Date
    Mar 2005
    Location
    Fork Union, Virginia
    Posts
    2,701

    FOPA...travelling with firearms & Heller vs. DC fallout????

    First a little background:

    Some here will be familiar with FOPA: Firearms Owner Protection Act (18 U.S.C. § 926A). This was passed into law in 1986 to correct abuses of gun laws by some states & jurisdictions that prosecuted & in some cases imprisoned gun owners traveling with firearms.

    .....FOPA pre-empts state law and provides that if it is lawful for a traveler to possess firearms at both the points of departure and destination, then it is lawful to transport firearms anywhere in between during the course of travel – regardless of what local law says in the intervening states.

    In order for FOPA to apply, the firearm must be unloaded and neither the firearm nor any ammunition being transported can be “readily accessible or directly accessible from the passenger compartment of the transporting vehicle.” In vehicles without a trunk, the firearm and ammunition must be in a locked container other than the glove compartment or console.

    It must also be lawful for the traveler to possess firearms in the two jurisdictions where the travel begins and ends. Careful consideration of laws in both jurisdictions is advisable. Since local laws vary widely, there are no universally applicable guidelines.

    Some courts have held that the travel must be relatively prompt and direct in order for FOPA to apply, without undue delay in the course of travel other than as reasonably necessary.

    FOPA’s existence does not mean that local law enforcement will necessarily disregard local laws prohibiting possession and transportation of firearms. Many local police are not even aware of FOPA’s existence (it’s a good idea to have a copy of the law with you). In states like New Jersey, nonresidents with firearms are regularly arrested and prosecuted for local law violations. When the matter is finally sorted out in court, FOPA (if properly complied with) will be an absolute defense, but that is little consolation when an otherwise law-abiding citizen is arrested and imprisoned pending a hearing.
    Ever since Heller's victory, I have perused the decision from time to time & tried to come up with different angles. Some of these have been already been posted here by others.

    Now on to my point:

    Since the Heller decision came down & part of it includes these words....
    We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.pg. 58 Heller Vs. DC
    Could this not also be applied to traveling with a defensive firearm? Just because the traveler is not at home, does he/she abrogate this defensive use right?

    The way I'm seeing this is that I should be able to carry a loaded accessible firearm while I travel the roadways. The court ruling stated:
    Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53
    It says "SUCH AS SELF-DEFENSE WITHIN THE HOME"...It doesn't say "ONLY WITHIN THE HOME".

    The only limits I see from the decision are:
    Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56
    In the above limitations I don't see any reference to the lawful use/ carry while driving.

    What do you think? What am I missing?
    Quemadmodum gladius neminem occidit, occidentis telum est.-Seneca

    "If you carry a gun, people will call you paranoid. If I have a gun, what do I have to be paranoid about?" -Clint Smith

    "An unarmed man can only flee from evil, and evil is not overcome by fleeing from it." -Jeff Cooper


  2. #2
    Senior Member Array press1280's Avatar
    Join Date
    Sep 2007
    Location
    WV
    Posts
    750
    .....FOPA pre-empts state law and provides that if it is lawful for a traveler to possess firearms at both the points of departure and destination, then it is lawful to transport firearms anywhere in between during the course of travel – regardless of what local law says in the intervening states.

    In order for FOPA to apply, the firearm must be unloaded and neither the firearm nor any ammunition being transported can be “readily accessible or directly accessible from the passenger compartment of the transporting vehicle.” In vehicles without a trunk, the firearm and ammunition must be in a locked container other than the glove compartment or console.

    It must also be lawful for the traveler to possess firearms in the two jurisdictions where the travel begins and ends. Careful consideration of laws in both jurisdictions is advisable. Since local laws vary widely, there are no universally applicable guidelines.

    Some courts have held that the travel must be relatively prompt and direct in order for FOPA to apply, without undue delay in the course of travel other than as reasonably necessary.

    FOPA’s existence does not mean that local law enforcement will necessarily disregard local laws prohibiting possession and transportation of firearms. Many local police are not even aware of FOPA’s existence (it’s a good idea to have a copy of the law with you). In states like New Jersey, nonresidents with firearms are regularly arrested and prosecuted for local law violations. When the matter is finally sorted out in court, FOPA (if properly complied with) will be an absolute defense, but that is little consolation when an otherwise law-abiding citizen is arrested and imprisoned pending a hearing.
    Where did this piece come from?
    "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
    Nunn v. State GA 1848

  3. #3
    Member Array philman's Avatar
    Join Date
    Oct 2007
    Location
    Centerville, Ohio
    Posts
    190
    I don't think you missed anything. The ultimate issue will be what the courts consider as "such as self-defense within the home"

    I suspect they would rule that the word "such as" applies to "such as self defense", not "such as within the home." I read it as the first, "such as self defense, but only in the home". But who knows.

    Weather right or wrong (wrong as most of us see it), I think the issue is protection of police officers as they stop vehicles.

    What about a motor home RV?

  4. #4
    VIP Member
    Array goawayfarm's Avatar
    Join Date
    Mar 2005
    Location
    Fork Union, Virginia
    Posts
    2,701
    Quote Originally Posted by press1280 View Post
    where did this piece come from?
    nra-ila
    Quemadmodum gladius neminem occidit, occidentis telum est.-Seneca

    "If you carry a gun, people will call you paranoid. If I have a gun, what do I have to be paranoid about?" -Clint Smith

    "An unarmed man can only flee from evil, and evil is not overcome by fleeing from it." -Jeff Cooper

  5. #5
    Senior Member Array cagueits's Avatar
    Join Date
    Jun 2006
    Location
    Puerto Rico
    Posts
    911
    We only need someone to file a suit against the goverment claiming their right to self defense at X place (highway, school, nonsecure gov facilities, etc) to be protected under the 2A, then for that someone to make a good case before all the courts the case ends up going (and probably spend a good chunk of money in doing so). The rest depends on the judges. Other than than, another ammendment to clarify the 2A is what we need.

  6. #6
    VIP Member
    Array Hopyard's Avatar
    Join Date
    Jun 2006
    Location
    Disappeared
    Posts
    12,047

    Difference between literal meaning and practice

    Quote Originally Posted by goawayfarm View Post
    The way I'm seeing this is that I should be able to carry a loaded accessible firearm while I travel the roadways. The court ruling stated:
    It says "SUCH AS SELF-DEFENSE WITHIN THE HOME"...It doesn't say "ONLY WITHIN THE HOME".
    The only limits I see from the decision are:

    In the above limitations I don't see any reference to the lawful use/ carry while driving.

    What do you think? What am I missing?
    What you are missing is not the literal meaning, but the practice that is followed by LE, DA, and lower court judges.

    I got sued one time because I did something that appeared to be O.K. if you accepted that the statute was literally giving an example and not an exclusive list of the only acceptable things that might be done.

    The judge determined that "it would be against public policy" to allow what I (and my attorney) thought was clearly permitted by statute.

    In other words, literally, you are absolutely correct. But as a practical matter, you would likely end up in jail.

  7. #7
    Distinguished Member Array kazzaerexys's Avatar
    Join Date
    Nov 2007
    Location
    Maryland
    Posts
    1,838
    The fact of the matter is, even if D.C. were not deliberately playing stupid and immediately complied with the spirit of Heller, the only thing that would change is possession of firearms in the home. There is no right to carry outside the home at all, open or otherwise, and D.C. does not acknowledge the car as an extension of the home. Very few places do.

    So, FOPA has not changed---theoretically if the gun is unloaded and locked as described and you are passing through D.C. from someplace you may have a gun to someplace else you may have that gun, you are good to go.

    In practice, D.C., NYC, and Chicago are the three places I wouldn't push the issue. If I am truly passing through it is pretty easy to avoid those places and I would not want to risk being the example case when the local LEOs decide that they like their laws more than FOPA.
    “What is a moderate interpretation of [the Constitution]? Halfway between what it says and [...] what you want it to say?” —Justice Antonin Scalia

    SIG: P220R SS Elite SAO, P220R SAO, P220R Carry, P226R Navy, P226, P239/.40S&W, P2022/.40S&W; GSR 5", P6.

  8. #8
    VIP Member
    Array goawayfarm's Avatar
    Join Date
    Mar 2005
    Location
    Fork Union, Virginia
    Posts
    2,701
    Quote Originally Posted by kazzaerexys View Post
    ....There is no right to carry outside the home at all, open or otherwise, and D.C. does not acknowledge the car as an extension of the home.....
    So the only way to be assured of my rights is to stay home?

    The point I'm trying to make is that while out in public (not on private property), ALL my rights should exist. I know that the Heller opinion did address PARTIALLY, the limits on bearing arms.

    ....The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.....
    However why should PUBLIC ROADS be off limits while traveling? Even with FOPA in force, I can't carry a readily available firearm for self defense.
    ...The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment.....

    ....the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.
    Why is being at home any different than being in my vehicle? It isn't a "sensitive place".

    For that matter, why is it any different than walking down the street?

    (I'm not trying to push any agenda with this....it's more of an intellectual exercise than any thing else. I just want all gun-owners to get the most out of the Heller case. Remember the anti's are going full throttle against it!...Some of us should use the same tactics to oppose them.....On second thought, I guess I am pushing an agenda......)
    Quemadmodum gladius neminem occidit, occidentis telum est.-Seneca

    "If you carry a gun, people will call you paranoid. If I have a gun, what do I have to be paranoid about?" -Clint Smith

    "An unarmed man can only flee from evil, and evil is not overcome by fleeing from it." -Jeff Cooper

  9. #9
    Senior Member Array Shizzlemah's Avatar
    Join Date
    May 2006
    Location
    Maine
    Posts
    723
    FOPA relates to transportation from point A to B, and does *not* relate to carry from point A to B.

  10. #10
    VIP Member
    Array goawayfarm's Avatar
    Join Date
    Mar 2005
    Location
    Fork Union, Virginia
    Posts
    2,701
    Quote Originally Posted by Shizzlemah View Post
    FOPA relates to transportation from point A to B, and does *not* relate to carry from point A to B.
    I realize that. What I'm suggesting is that localities that forbid the carrying of a loaded firearm in their jurisdiction may be in violation of the Constitution.

    From the Heller decision:
    The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment.....

    ....the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.
    Wouldn't this requirement be un-Constitutional while driving a swell?
    Quemadmodum gladius neminem occidit, occidentis telum est.-Seneca

    "If you carry a gun, people will call you paranoid. If I have a gun, what do I have to be paranoid about?" -Clint Smith

    "An unarmed man can only flee from evil, and evil is not overcome by fleeing from it." -Jeff Cooper

  11. #11
    Distinguished Member Array kazzaerexys's Avatar
    Join Date
    Nov 2007
    Location
    Maryland
    Posts
    1,838
    Quote Originally Posted by goawayfarm View Post
    So the only way to be assured of my rights is to stay home?
    My mistake; I thought you were asking about the actual current state of law, which is what I tried to answer. And that is that D.C. won't be letting you carry a loaded gun outside the home anytime soon, and FOPA only allows carry unloaded and locked up unless the locality is itself already more permissive.

    As to what your rights should be, there is a good case to be made based on the Heller decision that open carry of any lawful firearm should be legal throughout the U.S. And if that is what you were getting at, I certainly agree.

    ETA: Although I agree with Shizzlemah that there is a difference between carry and transport. I can't think of a strong legal precedent for establishing that the car is an extension of the home, even though some States do word it that way. And I also think the whole 'gun in a car is concealed' line that a lot of States take is entirely defensible. Therefore even in a ubiquitous open carry situation, carry of loaded weapons in cars could still be a strongly divided issue...
    Last edited by kazzaerexys; July 31st, 2008 at 07:46 PM. Reason: Another thought.
    “What is a moderate interpretation of [the Constitution]? Halfway between what it says and [...] what you want it to say?” —Justice Antonin Scalia

    SIG: P220R SS Elite SAO, P220R SAO, P220R Carry, P226R Navy, P226, P239/.40S&W, P2022/.40S&W; GSR 5", P6.

  12. #12
    Senior Member Array Shizzlemah's Avatar
    Join Date
    May 2006
    Location
    Maine
    Posts
    723
    [QUOTE=goawayfarm;803162]I realize that. What I'm suggesting is that localities that forbid the carrying of a loaded firearm in their jurisdiction may be in violation of the Constitution.

    Ah my mistake, I see your point now.

    I don't believe the feds can force state A to recognize a permit from state B. If the states *want* to cooperate, that's fine - and you can CCW.

  13. #13
    VIP Member
    Array goawayfarm's Avatar
    Join Date
    Mar 2005
    Location
    Fork Union, Virginia
    Posts
    2,701
    It looks like some others are agreeing with me on this:

    http://www.defensivecarry.com/vbulle...tml#post803738

    In about half a dozen New York City cases reviewed by The New York Sun, defense lawyers have filed briefs arguing that the Supreme Court's decision requires the dismissal of gun possession charges against their clients.

    The briefs question the constitutionality of the city's treatment of all unlicensed guns as illegal guns — mere possession of which can be punished by up to 15 years in prison.

    At least two of the cases involve gun arrests during traffic stops. The motions ask New York courts to expand the federal Supreme Court decision to find that the "right to bear arms is not limited to the physical confines of the home," as a Brooklyn lawyer, Andrew Miller, wrote in one such case.
    Quemadmodum gladius neminem occidit, occidentis telum est.-Seneca

    "If you carry a gun, people will call you paranoid. If I have a gun, what do I have to be paranoid about?" -Clint Smith

    "An unarmed man can only flee from evil, and evil is not overcome by fleeing from it." -Jeff Cooper

  14. #14
    VIP Member Array ccw9mm's Avatar
    Join Date
    Jul 2006
    Location
    USA
    Posts
    28,256
    Quote Originally Posted by goawayfarm View Post
    It says "SUCH AS SELF-DEFENSE WITHIN THE HOME"...It doesn't say "ONLY WITHIN THE HOME".
    I agree with you. This likely will be the path followed with subsequent lawsuits until the right is restored in actuality.
    Your best weapon is your brain. Don't leave home without it.
    Thoughts: Justifiable self defense (A.O.J.).
    Explain: How does disarming victims reduce the number of victims?
    Reason over Force: The Gun is Civilization (Marko Kloos).
    NRA, SAF, GOA, OFF, ACLDN.

  15. #15
    Senior Member Array 2edgesword's Avatar
    Join Date
    Aug 2006
    Location
    New York
    Posts
    653
    goawayfarm

    Good post and opens up my mind to how the affects of the Heller decision beyond D.C.

    Your post also highlights one of my issues with respect to laws being proposed in other states to address existing conflicts with the Heller decision. We need to stop talking about the decision as if it limits self-defense to the home. Every time a statement is made that implies that the Heller decision limits the defensive use of a firearm to the home (which it did NOT) it weakens the force of the decision in the perception of the public. This is one of the things I object to in the Gillibrand proposal.

Sponsored Links

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  

Similar Threads

  1. 3rd circuit says FOPA doesn't cover hotels
    By press1280 in forum The Second Amendment & Gun Legislation Discussion
    Replies: 8
    Last Post: April 1st, 2010, 01:17 AM
  2. Firearms Storage While Travelling
    By The Fish in forum General Firearm Discussion
    Replies: 4
    Last Post: July 27th, 2008, 11:14 PM
  3. LA Crimes (er, Times)...VT shooting fallout
    By SIGguy229 in forum The Second Amendment & Gun Legislation Discussion
    Replies: 9
    Last Post: April 17th, 2007, 11:32 PM
  4. Fallout Shelters
    By Otis in forum Related Gear & Equipment
    Replies: 11
    Last Post: October 11th, 2005, 04:47 PM

Search tags for this page

dc fopa

,
fopa beider dc
,
fopa dc
,

fopa guidelines

,
fopa motor vehicles
,

fopa ss 926a

,
fopa transport
,
fopa violation
,
fopa washington, dc
,
heller vs dc
,
home protection for felons
,
possession of a firearm in dc traveler
Click on a term to search for related topics.