An important provision of federal law, intended to protect the right of law-abiding gun owners to transport firearms throughout our nation, has been ignored by anti-gun local officials and effectively gutted by the courts. H.R. 4269, introduced by U.S. Reps. Morgan Griffith (R-Va.), Ted Poe (R-Texas) and Bill Owens (D-N.Y.), would rewrite the law to give it the effect Congress intended when it was passed more than 25 years ago.
The provision is a section of federal law (18 U.S.C. § 926A), enacted to guarantee the right of a law-abiding person to transport an unloaded firearm between a location where he or she may legally possess it and a destination where he or she may also legally possess it, regardless of state or local laws that would otherwise apply. Under the current law, the gun must be cased or otherwise not readily accessible.
Most states have never had a problem with this law. However, both before and after enactment of FOPA, gun owners have had serious problems lawfully travelling in two states in particular: New York (especially New York City) and New Jersey. Rather than recognize the intention of Congress to protect the rights of Americans travelling with legally owned firearms, these jurisdictions have used overly restrictive state licensing laws to harass and prosecute travelers. For example:
- In 2004, the Port Authority Police Department (PAPD) arrested John Torraco at LaGuardia Airport for possession of a firearm. Torraco, an attorney and law professor from Florida, had stored his legally owned unloaded handgun in his checked luggage. However, when he declared the firearm to the counter agent (as required by federal law) he was arrested and charged with possession of an unlicensed handgun.
- In 2005, William Winstanley, a New York state resident, was detained at John F. Kennedy International Airport when he attempted to check a handgun in his luggage, again in compliance with the requirements of § 926A. Winstanley was not arrested, but his travel was delayed for several days while he proved that he was in compliance with federal law.
- In 2005, Greg Revell, a Utah resident, was flying through Newark Liberty International Airport to his final destination in Pennsylvania. However, his flight into New Jersey was late, which caused him to miss his connecting flight. Revell was forced to collect his baggage and spend the night in a Newark hotel. When he attempted to recheck his baggage the following morning, he declared the unloaded handgun to the counter agent. PAPD officers arrested Revell for illegal possession of a handgun and ammunition under New Jersey law. Revell spent three days in jail before he was able to make bail.
Each of these gun owners filed a civil rights suit in federal court. However, in each case, the courts interpreted the law in a way that allows local law enforcement officials to detain or arrest travelers who make every effort to comply with federal law, and that deprive the travelers of any effective remedy after the fact. Many other cases have resulted in guilty pleas to reduced charges, civil penalties, and delayed travel.
While cases of inappropriate arrest or detention are most common at the New York City airports, they are not limited to those locations. In Albany, N.Y., detention of gun owners and confiscation of firearms have been reported by persons traveling in full compliance with § 926A. The NRA has been forced to repeatedly warn gun owners that they should avoid using New York or New Jersey airports when traveling.
The clear intent of the law was to ensure that law-abiding persons could transport firearms between two locations where they have a legal right to possess them. However, the refusal of the authorities in some jurisdictions to recognize § 926A, and the limitations placed on its protections by the courts, makes reform of this section necessary.
The new bill would:
- Expand the protections afforded travelers to include “staying in temporary lodging overnight, stopping for food, fuel, vehicle maintenance, an emergency, medical treatment; and any other activity incidental” to the trip.
- Put the burden of proof clearly on the state to show that a traveler did not meet the requirements of § 926A, rather than allow travelers to be arrested and forced to raise § 926A as an affirmative defense.
- Make clear that transportation of both firearms and ammunition is federally protected.
- Make clear that violation of the right to transport firearms is judicially enforceable as a federal civil right, with attorney’s fees available to victorious plaintiffs in civil suits, as well as to defendants who prevail in criminal cases.
Finally, it’s important to understand that this bill is not a national right-to-carry bill intended to protect carrying of guns for self-protection. This is a much more limited reform, intended only to provide real legal protection for people transporting unloaded guns that are cased or otherwise secured against immediate access.
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