This is the second in a multi-part series on Firearms and Self-defense Law. To reiterate, I am not an attorney and anything written in these articles should not be construed as legal advice. While I have taken a number of law classes and done extensive research, I am not an expert and in no way should be considered one. If you have any questions regarding what I have written or desire legal advice, I recommend you seek a competent firearms and self-defense attorney. Furthermore, if any attorney reads these articles and would like to add their input, please feel free and I will pass on the information in subsequent articles. I only ask that you include legal references with your comments so we may all learn. These articles are intended to help educate current and future gun owners so they can make better and more informed decisions regarding gun ownership and application of force in self-defense.
In this article, we will introduce the legalities of firearm ownership and possession and touch on restriction of use. If you have forgotten what the definition of ownership and possession are, please refer back to the previous article. As I described in the first article, there are three main levels of law; Federal, State, and Local. Laws defining ownership and possession can reside at all three levels while use restrictions are primarily found at the Local level but are also found at the State level. We will start at the top and work down.
At the Federal level, ownership can be divided into age restrictions, “conditional” restrictions, and firearm restrictions. The Gun Control Act of 1968 restricted ownership of shotguns and rifles (long guns) and ammunition to individuals 18 years of age or older. All other firearms are restricted (for example pistols) to individuals 21 years of age or older.
Federal law places conditions on who can purchase a firearm. BATEF Form 4473 asks a number of questions of prospective buyers such as are you under indictment for a felony or are you a fugitive from justice? Other conditions may apply and untruthful answers are illegal. Federal law also specifies that pistol sales across state lines must be facilitated by two FFL’s; one in the originating state and one in the destination state. Long gun sales are not restricted as such. Finally, Federal law prohibits knowingly transferring ownership of a firearm to an unauthorized purchaser. In the case of a private sale, this puts the responsibility on the seller to verify the legality of the sale.
Regarding ownership of various firearms, The Federal Firearms Act of 1934 restricted ownership of automatic weapons, rifles with barrel length under 16 inches and less than 26 inches overall, and shotguns with barrels less than 18 inches and 26 inches overall. These firearms are not illegal to own but the purchaser must submit an application, pay a tax, and successfully pass a background check. Suppressors also fall within this restrictive category.
Although exceptions may exist, ownership of firearms law in North Carolina largely follows the Federal statutes as does Local ordinances.
Federal laws regarding possession largely pertain to interstate transportation of firearms and restrictions on Federal property or Federal Government managed operations. For example, firearms are not allowed to be carried on to airplanes, in Federal Court houses, and on the property of and in Post Offices. Federal law allows transport of firearms across state lines but legal possession is subject to Federal, State, and Local restrictions. When traveling with a firearm, make sure you understand the possession restrictions in each State through which you are traveling.
Possession at the State and Local level is largely driven by posting of “No Firearms” signage and specific restriction to government facilities. For example, firearms are prohibited in courthouses, law enforcement facilities, and Department of Correction facilities. NC State law also restricts possession at certain events such as demonstrations. Local ordinances may further restrict firearm possession at Local government owned facilities.
Possession by minors typically follows Federal law but may be further restricted in various localities. In general, minors are allowed to possess firearms if authorized by and under the supervision of a parent or guardian. However, if a minor acquires a firearm and uses that firearm in an illegal manner, for example bringing the gun to school, the owner of that firearm can be charged with a misdemeanor offence.
Acceptable use of firearms is typically regulated at the local level. The definition of what is a firearm and whether certain firearms may be discharged within the town, city, or county limits differs by across the State. For example, Apex restricts discharge of firearms, air pistols, and bow and arrows whereas Holly Springs restricts discharge of firearms but not air pistols and bows and arrows. Check your local ordinances!
In closing, I want to share some typical questions I get regarding the law in classes and in general conversation. Please understand that there is little in the law that is completely black and white. I use the analogy of the bell curve to illustrate legal opinion. Actions in the tails of the curve are fairly clear. However, the bulk of the curve is where many cases reside. We want our actions to be out on the tails so there is little question regarding the legality of our actions.
Q: Can I teach my children to shoot.
A: Yes, if you are legally allowed to own and possess a firearm and you are supervising your children, your children are legally allowed to possess your firearm.
Q: Can I travel between states with my gun?
A: Federal law provides that if you are legally allowed to possess the firearm in originating location and in the destination location, then you are allowed to transport the firearm through the intervening locations. However, States have various possession laws that may prohibit you from possessing the firearm in that specific location. The “rule of thumb” that I use is to secure the firearm in a locked container and place it in your vehicle outside of your possession (trunk). Then check the local firearms possession laws. If you are not allowed to have possession of your firearms in a particular local, leave it locked in the trunk until you arrive at your destination. It may be different if you have a NC CCH permit and the State has reciprocity with NC.
Q: Can I fly with my gun?
A: Yes, but it must be locked in a hard side container and placed in checked baggage. The firearm must be unloaded and declared at check-in. Review the TSA and airline regulations and procedures for checking firearms. Be aware that if your flight is diverted and you must deplane and take possession of your checked baggage, you may be in violation of a Local possession law. If this happens, my recommendation is to not take possession of your bag and request the airline forward it to your final destination.
Q: Can I buy or sell my gun to another person directly?
A: Federal law allows for private sales between two individuals that are legally allowed to own the said firearm. There may be additional State or Local requirements to the sale. All interstate pistol sales must go through FFL’s in both States. Long gun sales do not have this requirement. Private pistol sales between two individuals within NC require either a Pistol Permit or a NC Concealed Carry permit from the buyer. Long gun sales in NC do not have this requirement. My recommendation is to follow the following process. It creates a paper trail and ensures you are not making an illegal purchase or sale. Write a Bill of Sale. In addition to the standard name, address, etc. record both individuals NC Driver’s License numbers. Also, either attach a NC Pistol Permit or record the buyers NC Concealed Carry Permit number. Each party should retain a copy of the document as proof of legal transfer.
Q: Can I give my child a gun for Christmas?
A: The answer to this has to do with legal ownership and firearms transfer laws. If the individual is legally allowed to own the firearm, then the sale process above must be followed. If the individual is a minor, they may legally possess the firearm but ownership cannot be transferred.
Q: How do I bequeath firearms upon my death?
A: The answer to this question can be quite complex. I recommend you speak with an Estate Attorney that specializes in Firearms Trusts. If you need the name of one, I’m happy to share the name of my attorney. I hope this has given you some things to think about. In subsequent articles we will explore topics such as your right to self-defense and legal use of deadly force, and the criteria for claiming self-defense as a legal defense. If you have friends or know of someone that would benefit from these articles, feel free to pass them along.
Copyright Neblett & Associates 2020