Vacation travel season is here and Armed Citizens’ Network members are hitting the highways. In states that don’t recognize their carry license, armed citizens are expected to lock up the gun, unloaded and separated from the ammunition, and not readily accessible, as has been the general rule for decades. We ask our Affiliated Attorneys’ help reminding members of gun law pitfalls that could ruin their summer vacation
For this month’s Attorney Question of the Month column, we asked our Affiliated Attorneys this series of questions --
What is the most common mistake visitors from out of state make that leads to violation of one of your state’s gun laws?
Does the “Safe Passage” provision in the 1986 Firearms Owners Protection Act preempt more restrictive state laws like magazine capacity limits if the gun owner is merely driving through the state with the gun locked and inaccessible?
If a traveler possesses high capacity magazines or other things that are legal in the state they came from but are illegal in your state, do they break your state’s laws if they stop at a rest area, to get fuel or to go into a restaurant?
Does the gun owner violate your state’s gun restrictions if, overnighting in a motel or a parked RV, they unlock their gun for protection while they rest?
PO Box 221, South Bend, IN 46624
I primarily practice in Indiana. If it’s legal in your home state and it isn’t a James Bond-style ballistic knife, Batman replica batarang, or Teenage Mutant Ninja Turtles ninja star (or similar), it’s almost certainly legal in Indiana, however and whatever you’re used to doing in regard to carry or storage.
The major difference (that really all travelers to all states should keep in mind, as well), is that the license/permit carry exception you may have in your own state regarding federally designated school zones does not apply when you are not in your home state of residence. So technically you can carry a handgun loaded while visiting IN, but you should route your travel around school zones, where your carry is prohibited by federal law.
For Michigan, while the state lacks constitutional carry, it too is generally far more permissive than most other states, so travelers will mostly be OK relying on their normal habits while visiting.
The largest issue in Michigan may in fact be blade carry. Whereas Indiana has no state preemption on blade laws but also only a few municipalities regulating knife carry, Michigan has a state level knife carry restriction law, in addition to those further restrictions municipalities might impose.
3883 Telegraph Rd., Suite 105, Bloomfield Hills, MI 48302
The biggest mistake most travelers make when carrying concealed to places outside of their own home state is thinking that the laws are identical to their home state. For example, gun free zones are different from state to state. Just because you can have a firearm in certain places in your home state does not make it OK where you are visiting.
Make sure you also understand two other big factors when traveling. First, if you are stopped by the police, do you have a duty to disclose you are carrying a firearm? In some states it’s mandatory; others it’s not necessary. Make sure you know before you go.
Lastly, make sure you are aware of magazine capacity limits. Some places have limits on the capacity of your magazine, and that could not only vary by state but in some places it varies depending on the city you may be visiting. Be safe and know before you go.
Keith G. Langer
Attorney at Law
255 Harvard Lane, Wrentham, MA 02093
What is the most common mistake visitors from out of state make that leads to violation of one of your state’s gun laws?
Thinking their state’s laws are the same as Massachusetts law, and their license, if any, covers them. It doesn’t.
Does the “Safe Passage” provision in the 1986 Firearms Owners Protection Act preempt more restrictive state laws like magazine capacity limits if the gun owner is merely driving through the state with the gun locked away and inaccessible?
FOPA is treated as an affirmative defense; not a preemptive statute. I would not rely upon it to cover “large-cap” magazines.
If a traveler possesses high capacity magazines or other things that are legal in the state they came from but are illegal in your state, do they break your state’s laws if they stop at a rest area, gas station or to go into a restaurant? Does he or she violate your state’s gun restrictions if, overnighting in a motel or a parked RV, they keep their gun accessible for protection while they rest?
They are absolutely NOT covered if they have the gun accessible. Period. If they are passing through, they can invoke FOPA. Of course, the real issue is, “How did the cop know you had the gun(s) and magazine(s)?”
Jerold E. Levine
5 Sunrise Plaza Ste. 102, Valley Stream, NY 11580-6130
Q: What is the most common mistake visitors from out of state make that violates New York gun laws?
A: Traveling through New York by car with a handgun or assault weapon and being stopped by police, and traveling though airports with handguns in luggage.
Half of all the illegal gun possession cases that I see result from a traffic stop. It is the stop which leads to the gun being discovered, so where there is no stop, there is no arrest.
In the northeast, if traveling through Massachusetts, state police generally will stop anyone exceeding the highway speed limit by more than 5 miles per hour (MPH). In New Jersey, a motorist usually can do 10 MPH over the highway limit, and even 15 MPH over commonly is ignored. But, when traveling with guns or other gun-related items, I will not exceed any speed limit by more than 5 MPH, and also I have no gun or hunting-related stickers on my vehicles. Keep in mind, too, that out-of-state license plates are a potential magnet for traffic officers, because a traffic stop might lead to the discovery of a firearm. Traffic officers know some of the differences in state gun laws, so do not give them any overt reason to stop you. Travel by day is better than night simply because there are so many other distractions to gain the attention of traffic officers. Also, the first few days of the month and the last few days are most critical, because it is at these times that traffic officers either are trying to fill-up their monthly ticket quota early, or catch up at the end.
With car travel, non-residents must follow strictly the provisions of the 1986 FOPA federal safe passage provision, because New York makes almost no allowance for non-residents traveling through with a handgun. Assault weapons are almost totally banned and are treated like handguns. Also, there are jurisdictions in New York which routinely violate the federal safe passage provision, and will arrest travelers despite lawful compliance. Avoid New York City, Albany and Buffalo, if at all possible.
Regarding airports, many travelers were known to bring their guns to New York when visiting, and then declare them as checked baggage when they flew home. But nowadays, when a gun is declared at the ticket counter the Port Authority Police are summoned to inquire why the person has a gun. When the police realize that the traveler is not merely making a connecting flight from another airport, and instead has spent time in New York with the gun, the traveler is arrested.
Q: Does FOPA safe passage preempt more restrictive New York laws like magazine capacity limits?
A: No, there is no provision in FOPA related to magazines, and I am not aware of any case law extending the exemption to magazines.
Q: If a traveler possesses high capacity magazines or other things legal in their home state, but illegal in New York, do they break New York laws if stopped at a rest area, gas station, restaurant, or stay overnight at a motel or RV park, and keep their guns accessible while they rest?
A: Yes, they are breaking New York law. The current FOPA requires continuous travel, though I have not heard of anyone being prosecuted for getting gas. My own habit is to get all the gas I need before traveling through bad states, and then not stopping until I reach a good state.
Steven Howard, Esq.
209 N. Walnut, Upper Level, Lansing, MI 48933
Question number one: the biggest mistake most people make is assuming that their state laws are the same as Michigan state laws. Many times they are not. In many states, you do not need a concealed carry permit to have a gun in your passenger compartment of your car or truck. In Michigan, you cannot have a long gun of any kind loaded or unloaded. Many people who drive out with a rifle or shotgun in the back window of their truck find this out the hard way. Here, that is a felony, even if it’s in plain sight. If it’s in plain sight, you’ve just made the cops’ jobs easier.
In other states, having a pistol in the passenger compartment of a car or truck is legal as long as the gun is not concealed upon someone’s person. Here, it’s still a felony, unless you have a concealed carry permit, in which case Michigan has reciprocity with most of the other states that recognize CPLs.
The third problem is knives! Any blade that’s over 3 inches must be worn in plain view, but if it’s over 3 inches and you put it inside the passenger compartment of a car or truck, it’s a felony! Welcome to the People’s Republic of Michigan!
Question number two: a person can drive through any state, regardless of restrictions as long as they don’t make a stop more than overnight, and they’re moving like they have a purpose. Whatever the item is, pistol, rifle, shotgun, or other must be legal in the state that they start out from, and the state they are ending up in. Simply stopping overnight or for a meal or to rest at a rest stop does not constitute a crime.
That being said, at the time of this writing, Michigan has no magazine capacity limits. What I have discussed is the law in the state of Michigan and the federal law. I am not speaking to the law of any other state in the nation or territory.
Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we have a new question for our affiliated attorneys.
Editor’s Note: The devil is in the details but how can you make sure you know all the details? Fortunately, there are good resources. Way back in July of 2011 Massad Ayoob, who travels extensively both to teach and to work in the courts as an expert witness, gave us an interview on this topic (it is still available in the archives at https://armedcitizensnetwork.org/our-journal/2011-journals/958-july-2011-network-journal#traveler) in which he suggested reviewing https://handgunlaw.us/ material on carry license reciprocity as well as gun and weapon laws of each state. Print the pages pertinent to the state(s) you plan to visit and put them in your gun case, especially if you’ll be driving through multiple states, he advised.
If traveling by airline, you’ll be interacting with both the airline you patronize as well as the Transportation Security Administration (TSA) before you ever reach the state you intend to visit. About a year ago, retired law enforcement officer, Internet blogger and instructor Greg Ellifritz, offered advice from his considerable travel experience when he wrote The Definitive Guide To Flying With Guns at https://www.activeresponsetraining.net/flying-with-guns which you will also find useful.
Our May Attorney Question received one final observation, from our Missouri Affiliated Attorney Kevin Jamison. Here are his thoughts on our question about lawsuits for damages–
If a person uses force in self defense, are they likely to be sued for damages? This is a pervasive fear amongst armed citizens many of whom believe that it is a near certainty. What is your opinion?
Have you had a client or clients who were sued after self defense? How did it turn out?
Kevin L. Jamison
2614 NE 56th Ter., Gladstone, MO. 64119-2311
In Missouri, we have a statute that prohibits lawsuits in a matter determined to be self defense. The statute does not say who makes this determination but I have personal experience that it works. The statute awards attorney fees to the prevailing party. This does not stop the usual suspects. Lawsuits are crafted to claim that self defense was negligent. In one, the claimed negligence was that the homeowner did not put up a “no trespassing” sign so the burglar would know he was not allowed to break into the house. The insurance company settled this which I think only encourages bad behavior.
We asked a follow up question: You mentioned that the law doesn’t specify who should determine an incident was self defense so no lawsuit allowed – does that decision fall to judges usually?
I have seen it used when prosecutors do not prosecute on grounds of self defense. Of course the defendant can ask for a hearing and let the judge decide. The attorney may have to educate the judge on this statute. Such a hearing exposes the defendant to cross-examination and the plaintiff/prosecutor now knows the defense case. Judges don’t like to make such decisions. I don’t do such hearings and will not unless I have an exceptionally good case.