It’s 9:30 PM, and you’re 20 minutes from your hotel. It’s been a long day of driving, and you can’t wait to flop face-first into your nice and warm hotel bed. This is your fourth state in three days, and you’ve begun to lose track of where you are. Then it happens: flashing red and blue lights in your rearview mirror. Were you speeding? Did you drift a little out of your lane? It doesn’t matter, because you’re getting pulled over—and you have a legally concealed firearm in the car. Quick: Which state are you in? Does it even honor your carry permit or handgun license? Do you have a duty to inform the officer under this state’s laws? You have no idea. Traveling across state lines with a gun can be perilous. Unfortunately, concealed carry permits and handgun licenses aren’t like driver’s licenses, so your South Carolina Concealed Weapon Permit might not be honored in the state where you are waiting for the officer to walk up to your window. This article will explore how to get you and your gun from Point A to Point B safely (and legally).
Driving Across State Lines and the Second Amendment
Many gun owners advocate driving, even on long trips, as the best way to travel with a gun. But is that true, exactly? Unfortunately, no. Many states have wildly different gun laws—some ban hollow-point ammunition outside of the home. And others have “high-capacity” magazine restrictions. This means if you are caught in one of these gun-hostile states in violation of their laws, you could be thrown in jail…talk about a bad ending to a vacation.
Luckily, federal law provides a “traveling” defense intended to protect gun owners as they travel through (not to) such states. This defense is known as the Firearm Owners Protection Act (“FOPA”), and it can be found in 18 U.S.C. § 926A.
FOPA has three basic requirements for a person to have a strong legal defense when carrying a firearm through a hostile state: 1) the firearm must be lawful to possess where you start and finish your trip; 2) 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; and 3) you must be “traveling.”
The legal definition of “traveling” under FOPA is anything but clear. Different courts have ruled inconsistently on what it means. One fellow took a brief nap in a bank parking lot in New Jersey on his way from Maine, and even though he was legal to possess and transport his gun from his point of origin to his destination, his nap resulted in a five year prison sentence. Unfortunately, merely possessing his specific firearm in New Jersey was illegal, and he paid a steep price for not knowing the law. Had he not stopped “traveling,” he may have had a defense.
Even if you follow FOPA to the letter of the law, it is an affirmative defense. This means FOPA may be asserted as a defense at the TRIAL phase of the process—which can be MONTHS (or years) after an arrest in a gun-unfriendly state. A traveler may only assert their FOPA protection once they battle their way through the legal process and end up pleading their case before the judge or jury in the unfriendly jurisdiction.
Travel quickly (without speeding), safely, and directly through a gun-hostile state to best avoid having to raise FOPA as a legal defense.
Know the Laws of Every State You’re Traveling Through
It’s imperative to take the time to understand the laws of each of the states you are going to travel through with a firearm.
Unfortunately, even if you have a license to carry or a handgun permit issued by your home state, there is currently NO national reciprocity. It is very important to remember when you are physically located in another state, you are subject to that state’s laws—even those which may impact your Second Amendment rights.
There is no standardization of gun laws within the 50 individual states (not to mention Native American Reservations and Lands). In some states, it’s illegal for a non-resident to even possess a firearm in the passenger compartment of their vehicle!
Making things even more complex, different states have different laws regarding the Castle Doctrine and the duty to retreat (or stand your ground) before using force or deadly force.
What About Flying With a Firearm?
If you plan on flying with a firearm on a commercial airline, follow these three steps: 1) check and declare the firearm in your luggage; 2) keep the firearm in your checked baggage in a locked, hard-sided case; and 3) make sure that the firearm itself is unloaded and there is no free-floating ammunition in your bag. Further, individual airlines often have odd requirements on top of the Transportation Security Administration (“TSA”) rules, so be sure to call ahead to your airline to be prepared before you make it to the check-in counter.
The TSA provides this guidance:
- The firearm must be unloaded.
- The firearm must be in a locked, hard-sided container and transported as checked baggage only. You may use any brand or type of lock to secure your firearm case, including TSA-recognized locks. But only you should retain the key!
- Ammunition must be securely boxed or included within a hard-sided case containing an unloaded firearm and transported as checked baggage only. Either way, the ammunition must be packaged in a box specifically designed to carry ammunition. You cannot use firearm magazines or clips for packing ammunition unless they completely enclose the ammunition. Firearm magazines and ammunition clips, whether loaded or empty, must be boxed or included within a hard-sided, locked case.
- Declare each firearm at the check-in counter each time you present it for transport as checked baggage.
Many times, the agent will want to ensure that the gun is unloaded and will probably direct you to lock the hard-sided container in their presence once their inspection is complete. These requirements apply to checked baggage. What cannot go into your carry-on? All firearms, ammunition, firearm parts, magazines, bolts, firing pins, and replicas of firearms (including toys) must be in checked baggage. What can go in your carry-on? A rifle scope!
Before your trip, contact your specific airline(s) and ask what requirements they have for transporting firearms and if they have any additional restrictions beyond the TSA requirements. Make sure you arrive at the airport with plenty of time to go through the TSA declaration process!
Keep in mind if you do not follow these strict requirements, you could be subject to federal criminal prosecution (a hefty fine and potential prison time) AND a civil fine of up to $10,000 per violation by the TSA.
You must always follow the laws of the state where you find yourself. Flying into an airport is no exception. Use extreme caution if your flight is diverted and lands in a gun-hostile state or even in a state that does not recognize your license or permit to carry a handgun. When in doubt, do not claim your luggage. Above all, always check the laws in every state before taking possession of your firearm or attempting to carry!