Ping - ElTejon: federal law v. State/local

[kludge]

A question/comment came up on another board regarding Indiana handgun licenses and federal law when it comes to transporting a handun, unloaded and locked in the trunk...

The OP is waiting on his LCH and wanted to know, while waiting if it was legal to transport his handgun to the range for target practice.

Indiana law requires a "qualified" license for target practice/hunting, and an "unlimited" license for carry.

The question is: legally, does "notwithstanding" always mean "despite"?

A subsequent poster stated the Federal law pre-empts State and local law because of the use of the word "notwithstanding"... in his words... (emphasis mine)

First, here is a topic from the BATF Site FAQ's Section:
(B7) May a nonlicensee transport firearms for sporting or other lawfulpurposes?Yes. Federal law provides a person, who is not prohibited by the GCAfrom receiving or transporting firearms, the right to transport a firearmunder certain conditions, notwithstanding State or local law to the contrary.The firearms must be unloaded and in a locked trunk or, in a vehicle lacking atrunk, in a locked container other than the glove compartment or console. Also, the carrying and possession must be lawful at the place of origin anddestination.[18 U.S.C. 926A, 27 CFR 178.38]

Here is the actual Federal law they refer to. I give all my friends and customer's a card with this printed on it to stick in with each firearm they are transporting just in case they need to educate local officials:

§ 178.38 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 from transporting, shipping,or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place wheresuch person may lawfully possess and carry such firearm to any other place where such person may lawfullypossess and carry such firearm if, during such transportation the firearm is unloaded, and neither thefirearm nor any ammunition being transported is readily accessible or is directly accessible from thepassenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without acompartment separate from the driver's compartment the firearm or ammunition shall be contained in a lockedcontainer other than the glove compartment or console.

(A good synonym for Notwithstanding is Despite)

 

[Siderite]

I'm not El Tejon, nor do I play him on television, but...

I think the actual federal law is:
TITLE 18 > PART I > CHAPTER 44 > § 926A. Interstate transportation of firearms (emphasis mine)
http://www.law.cornell.edu/uscode/18/usc_sec_18_00000926---A000-.html

where did you get "§ 178.38" from?

This would imply that it only applies to the "interstate commerce" that the federal government has powers over. This is to say that the federal government is protecting interstate transportation, notwithstanding any state laws to the contrary - i.e. transporting a handgun through Chicago, New York City, etc.

El Tejon, correct me if I'm wrong.

-Siderite

 

[El Tejon]

Inter =/= intra.

I've always wanted to argue a federal preemption defense on this, but it hasn't come up.

 

[txgho1911]

Is this a law that will require an arrest before you can litigate?

 

[Siderite]

txgho1911,
I believe so.

The reason why Parker, et al. vs D.C. became D.C. vs Heller is that the other plaintiffs were denied on the basis of a "lack of standing." As I understand it, Heller was the only one who applied and was denied, and thus had "standing" before the court. As I am not a lawyer, I can't explain beyond that, but perhaps El Tejon might clarify.

-Siderite

 

[Jim K]

Siderite is correct. Those sections are from the FOPA and apply ONLY to Interstate travel. Enacted primarily for target shooters who have to travel through an anti-gun state to get to matches, the law applies to anyone in interstate travel.

For example, a PA shooter cannot reasonably get to a match in Vermont without going through NY or NJ, either of which would, without the law, arrest him for illegal ownership of his guns. (Even with the FOPA, gun owners have been detained and harassed in those states if found in possession of a gun.)

The law does NOT apply to transportation entirely within a state, so it cannot be used by an Indiana resident to evade an Indiana law.

Jim

 

[kludge]

Thanks all.

I've always wanted to argue a federal preemption defense on this, but it hasn't come up.

Interesting... if they can ban manufacture of a machine gun that doesn't actually travel in interstate commerce, do they have a corrolary power to preempt state and local laws and establish transportation rights of another type of firearm, which is not being transported interstate?

 

[txgho1911]

Kludge, Now you need to carry your weapon as per federal guidelines for transporting and let El Tejon get his shot at a turnover of state law.
Just kidding. Wait for the pink paper.

 

[kludge]

Not me. I've got my too-big-for-the-card-slot-in-my-wallet-when-it's-laminated pink slip already... I'm counting the days until I can apply for my lifetime license.

He might have been able to help me many years ago when I carried at one our fine state sponsored institutions of higher learning... but no one ever knew.

 

[NavyLCDR]

Not only does FOPA only apply to interstate transport of firearms, but it also states in FOPA that it is only valid for persons who can legally possess the firearm at their origin of travel and at their destination of travel. Since the possession of the handgun would be illegal without the license at the range by the person without the license, then FOPA would not apply. As I understand it, Indiana law only allows possession of the handgun at the person's own residence, at the person's own place of business, at the place of purchase of the handgun, at a place of repair for the handgun, and for travels between the places listed above. Ironically, gun ranges are not specified in the law.

As I have stated elsewhere, but can't back it up in any way other than my twisted thinking, without the license, you must shoot at a range that also has a gunsmith on duty, that way you will be transporting to/from a place of repair. Don't answer the question as to why you have ammunition with the gun going to the place of repair .

 

[gc70]

where did you get "§ 178.38" from?

That would be Title 27 of the Code of Federal Regulations Part 178.38 (redesignated 27 CFR 478.38), which is the regulation implementing the actual statute.

Interestingly, 27 CFR 478.38 is entitled simply "Transportation of Firearms" and recites the same remaining language as the statute.

For all the lawyers out there: how is a one-word difference reconciled between a law and a regulation?

 

[Aguila Blanca]

Laws always override regulations enacted pursuant to laws.

What's the one-word discrepancy to which you refer?

 

[kludge]

As I understand it, Indiana law only allows possession of the handgun at the person's own residence, at the person's own place of business, at the place of purchase of the handgun, at a place of repair for the handgun, and for travels between the places listed above. Ironically, gun ranges are not specified in the law.

As I have stated elsewhere, but can't back it up in any way other than my twisted thinking, without the license, you must shoot at a range that also has a gunsmith on duty, that way you will be transporting to/from a place of repair. Don't answer the question as to why you have ammunition with the gun going to the place of repair .

That's how I understand it too, and I've wondered the same thing...

Something else I've always wondered about... what exactly constitutes "carry"?

If I go to a gun shop/range and rent a gun to shoot and I don't have a LTC, am I "carrying"? (There are several shops that rent guns around here, and renting of handguns is covered in Indiana code, gun shop has to run a background check etc.)

 

[El Tejon]

Carry usually equates to control, actual or constructive.

Potentially the rentee could be subject to a Class A misdemeanor if he did not possess a LTCH. Have not heard of such a thing prosecuted, but could happen.

 

[kludge]

Thanks El T.

It's certainly a wierd question, but it's a similar situation, I suppose, if I hand a buddy my gun at the range... or if a dealer hands a gun to a potential buyer at his shop.

I've never heard of this happening either, but the way it's written it sure sounds like it could - if you have a particularly nasty arresting officer and prosecutor.

I suppose the defense would be that a person w/o a license can legally transport a handgun from the place of puchase to his dwelling, so that presupposes that the same individual can inspect the article prior to purchase.

 

[El Tejon]

The defense is . . . wait for it . . . just get a license.

When I teach at the NRA class that my gun club hosts, I am amazed that the contortions that people will go through not to have to pay $25 for 4 years or the money for a lifetime LTCH. "So, if my 3rd cousin's aunt's dog carries the pistol, do I really have the pistol?" Full stop--just get the license, geez.

 

[kludge]

I am amazed that the contortions that people will go through not to have to pay $25

lol, how true

 

[El Tejon]

One class (I teach the NRA Personal Protection class at my gun club) I had (what am I saying every class we have it come up because of Kirk's First Law) Texas law came up. I mentioned the list of states with reciprocity with Texas (e.g. Florida) and people argued with me that "I can just walk down the streets with a gun on my hip in Texas and no one will say anything *'cause I'm a good, old boy in league with them thar Texians, wink, wink*". Ummm, no, but you will get to go to jail and get to meet new Texicano friends--Bobby Lee, Ray-ray and Hector--up close and personal.

Get a license. No, I don't want to hear how good a friends you are with the Sheriff of Cornhusk County 20 years ago. No, it doesn't matter how how served your country 30 years ago. No, It doesn't matter if you do not drink and pay your taxes.

Get the license. Get it for your wife too and all your kids 18+. This way if they jump in your pick-em-up truck where you left a .22 in the glovebox, there will be no hassle. No, I don't care that the police "will never arrest him/her." Get a license.

People will gouge their own eyes out with heated iron spikes before they spend one dime to avoid thousands of dollars in attorney fees, a stretch in the county jug and a criminal record. People will search the end of the Universe and the Internet to find non-applicable law before they get a license. People will tell me that the law is something that they heard their 3rd cousin who is a reserve officer in Gnawbone, Indiana before they get a license.

As you can tell, this issue drives me around the bend (sometimes).

 

[cyclist]

So it is illegal to take a handgun to a shooting range in IN without a license? I'm not talking concealed carry, but locked in the trunk transport? What if I'm a resident of a different state and want to bring along one to target shoot with friends who live there?

I've never looked too close at IN firearms laws. I didn't realize they were so similar to MI relative to handgun ownership. Oh well, sorry for the thread drift. WI doesn't have a firearms license scheme or program, therefore no reciprocity option.

(get's out map, draws another red circle around another State.)

 

[kludge]

Cyclist, no thread drift, that's exactly what the OP is about.

Yes, it is illegal to take your handgun to a range w/o a license.

If you have a license from your home state you're fine, if not, you're in the same boat.

As per WI, if you can't get a license in your home state, you can't carry/hunt with a handgun here.

AFAIK, there is nothing stated about out-of-state licenses, i.e. IL resident and want to carry/hunt in IN, are you legal if you get a FL/UT license?

I'll go check...

BRB.

 

[kludge]

IC 35-47-2-21
Recognition of retail dealers' licenses and licenses to carry handguns issued by other states
Sec. 21. (a) Retail dealers' licenses issued by other states or foreign countries will not be recognized in Indiana except for sales at wholesale.
(b) Licenses to carry handguns, issued by other states or foreign countries, will be recognized according to the terms thereof but only while the holders are not residents of Indiana.
As added by P.L.311-1983, SEC.32.

Looks like out-of-state licenses are AOK, but the 2007-2008 DNR Hunting Guide says:

Indiana Firearms Regulations
No license is required to possess a rifle, shotgun or muzzle-loading firearm (including muzzleloading handguns). You must have a permit to carry and/or hunt with a handgun. Landowners may hunt on their own property without a handgun permit. It is legal to carry a concealed handgun while hunting, if you possess a personal protection permit.
You may apply for a handgun permit at your local county sheriff’s office. You must be at least 18 years old to obtain a handgun permit. Non-residents using a handgun must have a permit issued by their home state. If their home state does not issue handgun permits, then they may not hunt with a handgun in Indiana.
For a complete listing of Indiana firearm regulations, see Indiana Code 35-47-2-1.

(emphasis mine)

 

[kludge]

their 3rd cousin who is a reserve officer in Gnawbone

ROFL! Chances are everyone in Gnawbone (pop. ~37) is everyone else's 3rd cousin.

 

[El Tejon]

Get a license, get a license, get a license, get a license, get a license, get a license . . . wait for it . . . get a license.:banghead:

From anywhere, Florida, Utah, East Elbonia, get a license so you can put the pistol on your third cousin's dog and then lock your dog in the trunk. *runs out of office, ripping off clothing and jumps in river*

 

[txgho1911]

What do you mean "drives you around the bend"? Thought they stuck you on that piece of road that runs between W Lafayette and I65.

 

[cyclist]

As per WI, if you can't get a license in your home state, you can't carry/hunt with a handgun here.

I had a question, then read the following

If their home state does not issue handgun permits, then they may not hunt with a handgun in Indiana.

Which sort of answered the question since WI does not require or offer or have a firearms permit of any kind. So, since WI does not have a firearms permission process (aka: permit, to my way of thinking), but does allow handgun "hunting", would a WI hunting license work for handgun target shooting in IN? Or does IN require the other state to specify "handgun" permission as a separate class of firearm in the other state's permitting/permission process and classification and regulation of citizen's use and transport and possession of firearms?

All this disparity between states, and then within some states between counties and cities and other local governing bodies just makes me want to ....

*runs out of office, ripping off clothing and jumps in river*

mind if I jump in too? The rivers up here are finally starting to thaw making "jumping in" possible without having to first punch a hole through the ice. Gonna be mighty cold though.