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EspañolWhat is the difference between federal and state gun laws? Why do I need to understand both?
In these gun laws pages, we refer to both “federal gun laws” and “state gun laws.” The major difference between the two has to do with who makes the law, who prosecutes someone who violates the law, and what the penalty is for breaking the law.
One reason why it is important for you to know that there are these two sets of gun laws is so that you can understand all of the possible ways that the abuser might be breaking the law, and you can better protect yourself. Throughout this section, we will be referring mostly to state laws. Be sure to also read our Federal Gun Laws pages to see if any federal laws apply to your situation as well. You will need to read both state and federal laws to see which ones, if any, the abuser might be violating.
If you are calling the police because you believe the abuser has violated a gun law, you do not necessarily need to be able to tell the police which law was violated (state versus federal) but local police cannot arrest someone for violating federal law, only for violating state/local laws. Only federal law enforcement, the Bureau of Alcohol, Tobacco and Firearms (“ATF”), can arrest someone for violating federal laws. If the local police believe that a state law is being violated, they could arrest the abuser and hand the case over to the state prosecutor. If the local police believe a federal law is being violated, hopefully, the police department will notify the ATF or perhaps the U.S. Attorney’s office in your state (which is the federal prosecutor). For information on how you can contact ATF directly to report the violation of federal gun laws, go to Who do I notify if I think the abuser should not have a gun? If the abuser is breaking both state and federal laws, s/he might be prosecuted in both state and federal court.
What is a felony?
Throughout these gun law pages, we will refer to laws that make it illegal for someone convicted of a felony to have a gun. A felony is a more serious crime than a misdemeanor. It is defined under NY state law as a crime that is punishable by a prison sentence of more than one year.1 However, you cannot always tell if someone was convicted of a felony only by looking at the amount of time s/he actually served in prison since sentences are often reduced or pled down. If you are unsure if the abuser was convicted of a felony, you might want to talk to the prosecutor who handled the criminal case against the abuser to find out or go to the courthouse to search the conviction records.
1 NY Penal Law §10.00(5)
I am a victim of domestic violence and the abuser has a gun. Is that legal?
Under New York state law, a person can get a gun license or renew an existing gun license if s/he:
- is over age 21 - however, someone who was honorably discharged from the Armed Forces can be under 21;
- is of “good moral character,” which is defined as having the character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others;
- has not been convicted anywhere of, and does not have an outstanding arrest warrant for, a felony or a serious offense;
- is not a fugitive from justice;
- is not an unlawful drug user or addicted to any controlled substance;
- is not an undocumented immigrant or has not renounced his or her U.S. citizenship;
- has not been discharged from the Armed Forces under dishonorable conditions;
- has not been involuntarily committed to a mental health facility by a judge;
- has not been the subject of a report made pursuant to section 9.46 of the Mental Hygiene Law;
- has not had his/her gun license revoked or who is not under a suspension or ineligibility order;
- has successfully completed a firearms safety course and test in counties where this is required and where applicable; and
- has not had a guardian appointed for him/her based on subnormal intelligence, mental illness, incompetency, incapacity, condition or disease, or that s/he lacks the mental capacity to contract or manage his or her own affairs.1
If someone wants to get a license to carry a concealed firearm, there are additional restrictions. In addition to meeting the requirements above, the person must:
- not have been convicted within the past five years of any of the following:
- assault in the third degree;
- misdemeanor driving while intoxicated; or
- menacing in the third degree; and
- meet in person with the licensing officer for an interview to provide the following:
- names and contact information for the applicant’s current spouse or domestic partner and anyone else living in the applicant’s home;
- names and contact information for four character references who can attest to the applicant’s good moral character and confirm that the applicant has not engaged in any acts, or made any statements that suggest s/he is likely to do something that would result in harm to him/herself or others;
- certification of completion of the training required; and
- a list of former and current social media accounts of the applicant from the past three years.2
1 NY Penal Law § 400.00(1)
2 NY Penal Law § 400.00(1), (2)
