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

goawayfarm · July 29th, 2008, 07:16 PM

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.

Quote:

.....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....

Quote:

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:

Quote:

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:

Quote:

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?

press1280 · July 30th, 2008, 07:50 AM

.....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?

philman · July 30th, 2008, 08:48 AM

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?

goawayfarm · July 30th, 2008, 09:28 AM

Quote:

Originally Posted by press1280

where did this piece come from?

nra-ila

cagueits · July 30th, 2008, 03:50 PM

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.

Hopyard · July 30th, 2008, 06:19 PM

Quote:

Originally Posted by goawayfarm

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.

kazzaerexys · July 30th, 2008, 07:10 PM

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.

goawayfarm · July 30th, 2008, 07:33 PM

Quote:

Originally Posted by kazzaerexys

....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.

Quote:

....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.

Quote:

...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......)

Shizzlemah · July 31st, 2008, 12:17 AM

FOPA relates to transportation from point A to B, and does *not* relate to carry from point A to B.

goawayfarm · July 31st, 2008, 06:33 PM

Quote:

Originally Posted by Shizzlemah

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:

Quote:

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?

July 30th, 2008, 07:50 AM	#2
press1280 Member Join Date: Sep 2007 Location: WV Posts: 369	.....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? __________________ And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete

July 30th, 2008, 07:10 PM	#7
kazzaerexys Senior Member Join Date: Nov 2007 Location: Maryland Posts: 919	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

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July 30th, 2008, 08:48 AM	#3
philman Member Join Date: Oct 2007 Location: Centerville, Ohio Posts: 139	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?

July 30th, 2008, 03:50 PM	#5
cagueits Senior Member Join Date: Jun 2006 Location: Puerto Rico Posts: 762	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.

July 31st, 2008, 12:17 AM	#9
Shizzlemah Senior Member Join Date: May 2006 Location: Maine Posts: 724	FOPA relates to transportation from point A to B, and does not relate to carry from point A to B.