Legal Commentary

The Limits of the Federal Law Letting You Travel With a Locked, Unloaded Gun

By Eugene Volokh

18 U.S.C. § 926A ? part of the Firearms Owners? Protection Act ? provides (subsection lettering added),

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, 

(a) any person who is not otherwise prohibited by this chapter [18 U.S.C.S. §§ 921 et seq.] from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm

(b) for any lawful purpose 

(c) from any place where he may lawfully possess and carry such firearm 

(d) to any other place where he may lawfully possess and carry such firearm

(e) 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.

This in principle is supposed to let people drive and fly through states with their locked and unloaded guns, without having to worry about the laws of those states through which they briefly travel. But, unsurprisingly, this protection isn?t as strong in practice as one might imagine in theory. I blogged about one possible problem with it a few months ago; today I saw another decision, Torraco v. Port of Authority of N.Y. & N.J. (2d Cir. June 30, 2010), that highlights another problem.

Here?s the difficulty in a nutshell: If you?re traveling from Virginia to Vermont, and are going through New York, you might know that your possession is lawful in Virginia and Vermont. If you?re prosecuted for violating New York gun law and move to dismiss under § 926A, the judge should be able to figure out that your possession is lawful in Virginia and Vermont. But how is a police officer deciding whether to arrest you, or seize your weapon, or detain you in a way that makes you miss your flight to know? Police officers are supposed to know the laws they are enforcing (though that can be pretty difficult). But knowing the gun laws of all 50 States is quite a bit harder.

In any event, one can imagine a legal regime that requires the officers ? or at least those who routinely encounter such situations, such as airport police in airports where FAA-required declarations that you?re checking a gun in your luggage lead to automatic calls to the police ? to have reference works that they can consult on this. But it looks like courts are reluctant to require such a regime; the Torraco panel holds that any interference with § 926A doesn?t lead to liability for the police, because of the difficulty the police would face figuring out the law.

For similar reasons, the panel seems to make it very hard to sue the police for false arrest in such a situation, because a reasonable police officer might think that the terms of § 926A aren?t satisfied ? except perhaps in some hard-to-define set of cases in which the officer can be reasonably expected to know the other states? law, at least in light of whatever licenses or other documents the traveler presents from the other states. Maybe giving concealed carry licenses from both states would suffice to put the officer on notice, so that any arrest despite the presence of the documents would be unconstitutional. But what if the person doesn?t have a concealed carry license, but still lawfully owns the gun, and is free to carry it openly (or even concealed, in the states that don?t require a license to carry concealed, or in certain contexts where concealed carry is otherwise allowed without a license)? Such people might well not have any documents that show this, and the police officer would likely not be expected by a court to know that the other states? laws allow it.

So police officers seem to have nearly unlimited authority to arrest and otherwise interfere with people who are exercising their § 926A rights, with no threat of damages liability or anything else deterring such arrests or interference. And while I?m sure that most police officers want to follow the law, and don?t want to arrest people who are behaving legally, even well-intentioned officers might well know little about § 926A in the first place and even less about the other state laws that they?d have to apply in order to figure out whether the person is indeed transporting the gun legally. Now perhaps this is a necessary evil, given the police officers? duty to enforce their state law, and the difficulty of knowing all the other states? laws. But it is a reminder of how one?s rights on paper might not readily translate into rights in practice, even in the absence of any ill intentions on the part of the police.

Full post as published by The Volokh Conspiracy on July 02, 2010 (boomark / email).