FOPA transport protection in states of origin/destination - UNLIKELY [A Report]

FOPA transport protection in states of origin/destination - UNLIKELY [A Report]

OVERVIEW

As part of the Firearm Owners Protective Act of 1986 (aka ‘FOPA’), a Federal preemption to state and local laws was established for the interstate transportation of firearms - to wit:

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18 USC §926A - Interstate transportation of firearms
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm 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.

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As many of you know, §926A have been the topic of debate in many threads these past few years (see related threads at bottom). The stimulus for the discussions primarily centered around the question posed by Jerseyites as to the legality of bringing their handguns from NJ to Pa (and return) for the purposes of carry using non-resident licenses issued by a PA reciprocated state - like FL, UT and AZ. It should be recognized that, although the immediate discussion was primarily dealing with NJ <=> Pa trips, the implications are applicable to travel between any of the states, the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone).

As with most laws, the reading differs between individuals and hence seeming ambiguities arise. §926A is no exception. In particular, questions arose as to the meaning of ‘place’ and ‘carry’, when does a trip become ‘interstate’, does §926A convey protection in the states of origin and destination or just the intervening states of the trip, and does §926A protection extend to ancillary equipment which are restricted by state/local law (ex: HP ammo, hi-cap magazines, etc). Though the discussions in those threads have had many twists and turns - the linchpin question narrowed to that highlighted above.

Since such proposed NJ <=> Pa trips fail to qualify for any of NJ statutory exemptions, they are in violation of NJ statutes while the traveler is within NJ’s boundaries and off their property (NJS 2C:39-5b) - the traveler risks a potential NJ felony charge if discovered during the NJ leg of his trip. However, if §926A could be invoked to Federally preempt those NJ statutes, then the proposed NJ <=> Pa trips would potentially acquire a viable affirmative defense to any NJ charges.

In considering §926A’s invokability two camps arose. The distinction between those camps is fairly clear, namely, their respective definition of the ‘place’ where the possession/carry legality is evaluated to determine compliance with the prerequisite "from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm".

One camp concluded that, since they can legally possess and carry about their residence [origin] under NJ statutes (NJS 2C:39-6e) and further since they have a reciprocated license to legally possess/carry in Pa [destination] , they meet the prerequisite based on the perceived plain wording of the statute alone. The other camp (to which I subscribe), having examined some recent Federal court decisions as well as other historical evidence, concluded that ‘place’ refers to the terminus states as a whole; and furthermore that §926A protection applies only to intervening states, i.e. states that are passed through and to the exclusion of the states of origin and destination - if NJ residents can’t legally possess during their travels within NJ then their trip does not qualify for FOPA protection.

For anyone new to the issue, I fervently suggest that you read Re: at a minimum. For a full appreciation of the arguments, evidence and logic attributable to both camps. - see the related threads shown below.

Certainly both camps had legitimate points but, without further documentation, neither side could prevail over the other. Lacking resolution of the issue, I decided to set off on a quest for more authoritative insights on the probable meaning and application of §926A. Little did I know that it would take 21 months and countless hours of composing letters, e-mails, and phone calls to overcome the inertia, bureaucracy and obstinance of several national organizations.

I had promised in some of my previous postings that eventually I would provide PAFOA a report of that quixotic adventure when tangible results were obtained. I now feel that there’s enough progress to fulfill that promise.

Thus far I have results from three nationally recognized sources (listed in chronological order):

1. an attorney with the NRA’s Office of General Counsel;
2. the BATFE;
3. a legislative attorney with the Congressional Research Service (CRS)
( link for those unfamiliar with the CRS.)

I have placed my comments and all pertinent, redacted correspondence for each source in a separate section below for review and further discussion. I also included a collection of additional excerpts for further consideration in an ‘addenda’ as the final section.

For those impatient types who prefer shortcuts, the NRA and BATFE efforts are relatively devoid of any definitive guidance and can be skipped at your option -- I do think they have some value but you’re probably already bored reading this verbose overview. The NRA, though non-definitive, does give some interesting information concerning whether and how an instant court takes judicial notice of other courts in their decisions; the BATFE is the typical bureaucratic rewording of the statutes without any value-added substance or insights. The CRS correspondence is an "on-point" analysis and is a MUST READ.

Even if they prove of little value, in the interest of completeness, I chose to post the NRA and BATFE packages - maybe someone can find a nugget of wisdom that I missed. I have also saved a posting place for a 4th source with which I have been in contact and am hoping for some historical and professional insight on the issue.

DISCLAIMER – nothing contained herein should be construed as legal advice by either the source contributors or myself. The information is presented only for purposes of facilitating an individual’s assessing the probability of a favorable court interpretation of §926A in their particular circumstances. Obviously there is no way of guaranteeing how §926A will apply to a specific case being adjudicated (there is little on-point established case law) but a court may indeed use the same historical data and logic to reach the same conclusions as provided herein. As in Alice’s "rabbit hole", the justice system sometimes creates its own distorted version of reality. My only interest here is to fulfill a promise I made to PAFOA almost two years ago as well as present further information for someone intending to rely on §926A protection during a trip between contiguous states - this so they can better assess their risk threshold and proceed accordingly at their delight or peril.



Related PAFOA threads for background:

http://forum.pafoa.org/concealed-ope...yesterday.html

http://forum.pafoa.org/concealed-car...dly-state.html

http://forum.pafoa.org/pennsylvania-...le-hiking.html

http://forum.pafoa.org/concealed-car...hilly-zoo.html

http://forum.pafoa.org/concealed-ope...ate-lines.html

http://forum.pafoa.org/concealed-car...-carrying.html

http://forum.pafoa.org/concealed-ope...ew-jersey.html

http://forum.pafoa.org/general-2/992...-firearms.html

http://forum.pafoa.org/concealed-ope...nresident.html



------ NRA Office of General Counsel ------

At the inception of my quest I had hoped that it would be relatively simple so I penned a letter to the NRA-ILA’s Office of Legislative Counsel (OLC). After over two months of delay and their failure to respond to intermediate correspondences I phoned them to ascertain the status of their reply. They claimed to have lost my correspondence in their recent office move and asked for a faxed copy which I immediately sent. I followed-up with another phone call the next day and was informed that a reply was not to be forthcoming - their policy is that the OLC doesn’t provide legal opinions.

This caused me to elevate the issue to the NRA Office of General Counsel (OGC). Again a long wait and with intermediate nudges but, after three months, finally a response.

Unfortunately it was cursorily prepared and provided nothing dispositive though I did contain some legal research into case law - none of which was directly "on-point". Basically the NRA punted on the core issues. Though I somewhat agree with the quandary as the NRA presents it, I had hoped that more effort would have been expended in researching the historical files and Congressional Record for insights - after all the NRA penned most of the FOPA bill.

Some excerpts of minor note:

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The problem is this: your questions center around the availability of § 926A as a criminal defense. Since § 926A provides a defense to state criminal charges, these sorts of questions can only be answered in binding fashion by state courts, in the context of actual prosecutions, or by the U.S. Supreme Court on appeal.

<snip>

Unfortunately, the only way to definitively know what each state’s courts will say about each of your questions is to wait until we get binding decisions from the appellate courts of each state.

<snip>

Of course ambiguity isn’t unique to section 926A. Many statutes contain some ambiguity, and predicting how courts will resolve those ambiguities is part of what lawyers do. But normally one has at least a handful of on-point cases to help guide such predictions. Even decisions that aren’t formally binding can give insight into the different ways courts might apply a given statute. In the case of § 926A, though, we have almost nothing.

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Correspondence package to/from the NRA (old Comcast link).


Correspondence package to/from the NRA



------ BATFE ------


Failed by the NRA, I then turned to the enforcement/regulatory agency for Title 18 Chapter 44 of the US Code (Firearms) that encompasses FOPA - BATFE.

After six months of stalling I got a response that said less than nothing. Incensed and seeing that my direct communication with BATFE would produce little results, I decided to enlist my Congressman as an intermediary. This tact got some elevation within BATFE but alas the turnaround was slow and useful information remained scarce to non-existent.

Trying to pin BATFE down, I sent a follow-up letter building on my previous questions and their answers (again through my Congressman). Again three months goes by until BATFE responded with a ‘sign-off’ letter saying that many of the issues had to be addressed by the involved states and therefore the questions are beyond their jurisdiction, that I should hire a lawyer, and that they are prohibited from giving individuals legal advice. Though most of their justifications for not providing meaningful answers were patently false, it was obvious that trying to take the matter further up the DOJ chain would be an exercise in futility.

Thirteen months of teeth-pulling with no results -- aargh!

There’s nothing noteworthy in this package -- just bureaucratic tap-dancing and paraphrasing of existing statutes. Posted for completeness:

Correspondence to/from the BATFE. (old Comcast link)

Correspondence to/from the BATFE




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------ Congressional Research Services ------


Having disappointing and dubious results from my first two contacts (NRA and BATFE), I imposed on my Congressman once more and penned a letter for submission to the Congressional Research Service(CRS). You can find more about CRS at their website but in general -

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The Congressional Research Service (CRS) works exclusively for the United States Congress, providing policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation. As a legislative branch agency within the Library of Congress, CRS has been a valued and respected resource on Capitol Hill for nearly a century.

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Finally we received something akin to legal research on the history and meaning of §926A as it applies to the NJ<=>Pa issue. Written by a legislative attorney, it does present a cogent argument along with supporting references which furthers our collective knowledge.

Most notably:

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This memorandum is in response to your request for an analysis of 18 U.S.C. $ 926A, which governs the interstate transportation of firearms. The legislative history, which provides some guidance on how $926A could be interpreted, indicates that: ( 1 ) preemption of state or local firearms transportation laws occurs after leaving one's state of residence and before entering the destination state; (2) an individual must be able to legally possess and transport a firearm under both state and local laws; (3) it is unclear how or if the safe harbor created by $926A includes transportation o firearm accessories which are illegal in one state but not another.

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and

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Representative McCollum stated that the provision applies 'only after individuals leave the boundaries of their State or local jurisdiction,' 132 Cong. Rec.15228( 1986)( statement of Representative McCollum).

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Bear in mind that the historical record relied on for this analysis is the same record that necessarily a court would use to resolve ambiguities of §926A. Furthermore the court would, in all likelihood, employ similar principles and logic to legally interpret that historical record. Nobody can predict with absolute certitude how a case would fare, especially when there is a scarcity of case law, but it would suggest that the odds of obtaining a defense favorable ruling is relatively small.


Correspondence to/from the CRS.


Correspondence to/from the CRS.



----- RESERVED FOR 4TH SOURCE -----

Reserved for input from the 4th source if/when it becomes available.

I have had multiple contacts with an nationally recognized practicing attorney and published author in the field of 2A and Federal Firearm laws. His works have been cited in many lower court decisions as well as those of SCOTUS.

He has assured me he will respond but unfortunately his comments are not yet available, Understanding that his time is severely limited and gratis work must necessarily fall to the bottom of his priority list, I remain hopeful that he can add to the discussion in the near future.



----- Conclusion -----

So what does this all boil down to? Does §926A afford Federal preemption protection while one is in the ‘end’ states (i.e. the state of origin or destination)?

IMO, after considering all the foregoing as well as court dicta and Congressional Record information provided below, it would be highly imprudent for anyone to rely on §926A protection in the states of origin and destination as the probability of successfully prevailing with an §926A defense is highly unlikely.

The fact of the matter is that there is no direct on-point case law. Should you be charged with a firearm transport crime by your state of origin or destination and §926A is your only defense, a trail court has pretty much unfettered ability to rule with any interpretation they may wish to adopt and defend. State courts may or may not apply §926A to their home statutes. If your defense fails then the "most directly available remedial mechanisms for those who are convicted in violation of this statute under the color of state law are direct appeals challenging the criminal conviction in question, and habeas corpus proceedings in both the state and federal courts" Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 136 (2d Cir. 2010).

If my posts do nothing more then give a reader, contemplating the trips under discussion, to give pause and make an informed decision before acting, then I feel that I have a "mission accomplished". When considering any action each of us utilize a personal risk acceptability standard or "comfort zone"; some are willing to push the envelope - others prefer to stay inside the envelope. I hope that the foregoing information is of some value and will be taken under advisement into each individual's risk assessment. Nonetheless, in the final analysis, it is the actor who rightfully or wrongfully makes the final decision and it is he/she that is exposed to any untoward consequences arising from those decisions - proceed as you see fit.

DISCLAIMER (again) – nothing contained herein should be construed as legal advice by either the source contributors or myself. The information is presented only for purposes of facilitating an individual’s assessing the probability of a favorable court interpretation of §926A in their particular circumstances.

----- Addenda -----

State courts can/will take under advisement during their deliberations any related Federal appellant court dicta . Although those below deal with trips with intervening states, they do not bode well for a favorable ruling regarding ‘end’ state inclusion. Consider:

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The federal statute provides, in essence, that anyone may transport, firearms from one state in which they are legal, through another state in which they are illegal, to a third state in which they are legal, provided the firearms are transported in a prescribed, safe manner.

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Coalition of New Jersey Sportsmen v. Florio, 744 F.Supp. 602 (D.N.J. 1990) U.S. District Court, (NJ)

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In essence, § 926A allows a person to transport a firearm and ammunition from one state through a second state to a third state, without regard to the second state's gun laws, provided that the traveler is licensed to carry a firearm in both the state of origin and the state of destination and that the firearm is not readily accessible during the transportation.

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Revell v. Port Auth. of N.Y., N.J., 598 F.3d 128, 134 (3d Cir.2010)

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... 18 U.S.C. § 926A ("Section 926A"), a statute' which allows individuals to transport firearms from one state in which they are legal, through another state in which they are illegal, to a third state in which they are legal, provided that several conditions are met, without incurring criminal liability under local gun laws.

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Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 136 (2d Cir. 2010).



Additionally courts may take notice of entries in the Congressional Record that provide insights on the intent of Congress in passing §926A:

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Senator Howard Metzenbaum described the language of the original version of § 926A, Pub.L. No. 99-308, § 107(a), as "mak[ing] clear that it is the intention of Congress that State and local statutes and regulations shall remain in effect except that in certain narrow circumstances involving travel through one or more States other than the State of residence, a defense is available to prosecutions under State and local gun control laws."

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131 Cong. Rec. S9101-05 (July 9, 1985)(statement of Senator Metzenbaum)

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Representative McCollum stated that the provision applies "only after [individuals] leave the boundaries of their State or local jurisdiction," since §926A applies to the interstate transportation of firearms Representative McCollum furthers stated the provision" does not modify the State or local laws of the place or origin or the jurisdiction where the trip ends in any way."

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"The term carry in this instance is intended to mean the ability to put the firearm in a vehicle and transport it to the place of destination"

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132 Cong. Rec.15228( 1986)( statement of Representative McCollum).



From contemporaneous literature:

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"Upon transmittal of the House bill to the Senate, the Senate passed both it and an amendatory bill, S. 2414, which greatly affected this section. S. 2414 narrowed the right of travel by providing that it was a right "to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearms"; moreover, both firearm and ammunition must not only be not "readily accessible" but also not "directly accessible from the passenger compartment."[494] The restriction to transport to and from areas where the arms might be lawfully possessed was apparently a counter to criticisms that the bill might otherwise bar arrest of the owner in his own state under that state's laws, if he argued he was beginning a permitted transportation."

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17 Cumb. L. Rev. 585-682 (1986); THE FIREARMS OWNERS' PROTECTION ACT: A HISTORICAL AND LEGAL PERSPECTIVE by David T. Hardy



Applicable NJ statutes:

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NJS 2C:39-5. Unlawful possession of weapons.

b. Handguns. Any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same as provided in N.J.S.2C:58-4, is guilty of a crime of the third degree if the handgun is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person. Otherwise it is a crime of the second degree.

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NJS 2C:39-6. Exemptions

e. Nothing in subsections b., c. and d. of N.J.S.2C:39-5 shall be construed to prevent a person keeping or carrying about his place of business, residence, premises or other land owned or possessed by him, any firearm, or from carrying the same, in the manner specified in subsection g. of this section, from any place of purchase to his residence or place of business, between his dwelling and his place of business, between one place of business or residence and another when moving, or between his dwelling or place of business and place where such firearms are repaired, for the purpose of repair. For the purposes of this section, a place of business shall be deemed to be a fixed location.

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RESERVED FOR EXPANSION

This REALLY needs to be a stickie! ;)

That is a lot of work, and it has been a long time in the works. I know you have mentioned it before. Thank you for all your work on this.

Rep sent.

Although we might have hoped for a different result in terms of 2A freedom, I really hope this will accomplish at least 2 things...

1) That those whose travels are covered by this research will use it to stay out of legal trouble;

and,

2) That those who are unhappy with it's restrictions can join the legal battles in the various legislatures to remove such restrictions that they fell are onerous and unconstitutional.

Thank you!


ETA... Wow, that was fast! Thanks to the whichever mod has already made this a stickie!
.

Great job. Thanks for all the hard work. Rep sent.

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Originally Posted by tl_3237

As with most laws, the reading differs between individuals and hence seeming ambiguities arise. §926A is no exception. In particular, questions arose as to the meaning of ‘place’ . . . when does a trip become ‘interstate’

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It is one thing to describe the character of exchange on posts relating to this topic, and to summarize or excerpt court cases on the matter which may trend against our wishful thinking. It's another thing to introduce ambiguity where none exists, and what will follow is that people will take away notions of statutory construction from this portion of the post, where they should not.

If every statute has legislative intent and congressional records attached to them, they are no less statutes themselves. So are they statutes or are they not?

I will update this post with cases later when I have more time. For the rest of it, thank your for your contribution, tl_3237.

Damn fine job.

great work ... rep sent

The equivalent of NJ FOA...and their thoughts...

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...The other camp (to which I subscribe), having examined some recent Federal court decisions as well as other historical evidence, concluded that ‘place’ refers to the terminus states as a whole...

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Question for the lawyers (or anyone else who, while not a lawyer, can provide some insight):

http://codes.lp.findlaw.com/uscode/18/I/44/921 appears to be the relevant definitions section for § 926A. It defines "firearm" but not "place". However, it contains this definition:

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(2) The term "interstate or foreign commerce" includes commerce
between any place in a State and any place outside of that State,
or within any possession of the United States (not including the
Canal Zone) or the District of Columbia, but such term does not
include commerce between places within the same State but through
any place outside of that State. The term "State" includes the
District of Columbia, the Commonwealth of Puerto Rico, and the
possessions of the United States (not including the Canal Zone).

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This clearly indicates that, at least in this definition, "place" need not refer to a state as a whole. Otherwise it would not be possible to have "commerce between places within the same State". Does this imply that the "any place" language in the FOPA need not be read to refer to states as wholes, but rather to places within states?

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Originally Posted by twency

Question for the lawyers (or anyone else who, while not a lawyer, can provide some insight):

http://codes.lp.findlaw.com/uscode/18/I/44/921 appears to be the relevant definitions section for § 926A. It defines "firearm" but not "place". However, it contains this definition:


This clearly indicates that, at least in this definition, "place" need not refer to a state as a whole. Otherwise it would not be possible to have "commerce between places within the same State". Does this imply that the "any place" language in the FOPA need not be read to refer to states as wholes, but rather to places within states?

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That was addressed in my report. You'll also note, if you read the enclosures from BATFE, that they continually parroted 921 but didn't expand on it meaning or application, if any, to 926A.

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Originally Posted by tl_3237

That was addressed in my report. You'll also note, if you read the enclosures from BATFE, that they continually parroted 921 but didn't expand on it meaning or application, if any, to 926A.

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I don't see the 921 definition of "interstate commerce" discussed in the report insofar as the text directly posted here, but I do see the question/discussion in the attached BATFE docs. As you note, the BATFE response is clear as mud, and doesn't really answer the question.

December 3rd I'll be asking this question at the NJ2AS monthly meeting to Evan Nappen. I will print out this sticky and let him review it and I will ask my questions as well, and bring back what ever information I can.

here is a VERY simple question...

if FOPA ONLY applies to the states in between the origin and destination...

then it would be logical to assume that the ONLY time you could transport a handgun in the originating state (in this case NJ) is when within the exempted destinations..

in NJ that means range.. gun shop.. etc..

if that were in fact true.. and ANY other transport was a crime.. and FOPA does NOT cover you while traveling in your state of origin.. then why are people allowed to fly out of NJ with handguns ALL the time... because it would be irrelevant as to if you were going to PA.. FL.. or WV.. again that is assuming that it is assuming FOPA does not protect in the ALL the states traveled through..

now if of course it DOES protect.. then flying out of NJ with a gun makes perfect sense.. but you can't have it both ways.. it either protects or does not protect in the home state.. the destination would be moot..

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Originally Posted by vladtepes

here is a VERY simple question...

if FOPA ONLY applies to the states in between the origin and destination...

then it would be logical to assume that the ONLY time you could transport a handgun in the originating state (in this case NJ) is when within the exempted destinations..

in NJ that means range.. gun shop.. etc..

if that were in fact true.. and ANY other transport was a crime.. and FOPA does NOT cover you while traveling in your state of origin.. then why are people allowed to fly out of NJ with handguns ALL the time... because it would be irrelevant as to if you were going to PA.. FL.. or WV.. again that is assuming that it is assuming FOPA does not protect in the ALL the states traveled through..

now if of course it DOES protect.. then flying out of NJ with a gun makes perfect sense.. but you can't have it both ways.. it either protects or does not protect in the home state.. the destination would be moot..

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^^^ Great question! It was something I was thinking about too. It seems that the much of the "you can't" crowd's reasoning on why FOPA doesn't cover us is based on the definition of "place" in §926. I didn't see it clearly defined in the original poster's post.

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Originally Posted by vladtepes

here is a VERY simple question...

if FOPA ONLY applies to the states in between the origin and destination...

then it would be logical to assume that the ONLY time you could transport a handgun in the originating state (in this case NJ) is when within the exempted destinations..

in NJ that means range.. gun shop.. etc..

if that were in fact true.. and ANY other transport was a crime.. and FOPA does NOT cover you while traveling in your state of origin.. then why are people allowed to fly out of NJ with handguns ALL the time... because it would be irrelevant as to if you were going to PA.. FL.. or WV.. again that is assuming that it is assuming FOPA does not protect in the ALL the states traveled through..

now if of course it DOES protect.. then flying out of NJ with a gun makes perfect sense.. but you can't have it both ways.. it either protects or does not protect in the home state.. the destination would be moot..

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Very good point, and duly noted...I will also add this to my question to Nappen.

I have to wonder, if "place" really does mean "state a a whole," why didn't they just say that?

I don't see how "place" could possibly be construed to mean anything other than the common dictionary definition. Saying that "place" means "State" is like saying that "Dog" means "any mammalian quadruped" when passing a law that regulates transportation of "dogs."

Quote:

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Originally Posted by ehidle

I have to wonder, if "place" really does mean "state a a whole," why didn't they just say that?

I don't see how "place" could possibly be construed to mean anything other than the common dictionary definition. Saying that "place" means "State" is like saying that "Dog" means "any mammalian quadruped" when passing a law that regulates transportation of "dogs."

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The quotes from the Congressional record provided certainly gives compelling evidence to the 'place = state' interpretation, IMO.

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Originally Posted by tl_3237

The quotes from the Congressional record provided certainly gives compelling evidence to the 'place = state' interpretation, IMO.

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I don't disagree. However, it's bone-headedly stupid, or an intentional ambiguity designed to trip people up, or both, you know, because the State would never write laws to be so intentionally confusing or misleading for the purpose of creating more offenders.

Quote:

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Originally Posted by ehidle

I don't disagree. However, it's bone-headedly stupid, or an intentional ambiguity designed to trip people up, or both, you know, because the State would never write laws to be so intentionally confusing or misleading for the purpose of creating more offenders.

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I'm still stuck on how in 921 it's possible to have "commerce between places within the same State" though.

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Originally Posted by twency

I'm still stuck on how in 921 it's possible to have "commerce between places within the same State" though.

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If "place" means "the whole state," then there can't be commerce between "places" because there could not be more than one place within the state between which to have commerce.

There can't be more than one distinct "place" within a state if one "place" already encompasses the entire state. There's nothing left.

These yahoos obviously never took an English class...

An old PAFOA posting of an exchange with the MD AG office that further lends further credence that FOPA may not convey protection in the state of origin/destination.

http://forum.pafoa.org/concealed-car...ml#post1389168

Analogous to the situation with NJ residents.

Just returned from the NJ2AS meeting with Evan Nappen as our guest speaker. It was both amazing and informative.

Now for our question. For starters Evan said there is *NO* case study on this topic, none. But he goes on further to say that all though it's a grey area, Federal Preemption and FOPA would cover you. Also said that your home in NJ is the legal place of possession. We went on to speak about flying out of NJ as well. NO problem as long as you call the airline your flying with, copy their criteria and make a copy of it and bring it with you.

There were numerous scenario's ask about this topic. Also there was about another 35 people getting their Non resident Florida permits processed that night as well. So I pointed out what should they know about Transporting out of and back to NJ......Bottom line is if and when a case study does happen, he'd win that case.

Quote:

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Originally Posted by Tequila Sunrise

Just returned from the NJ2AS meeting with Evan Nappen as our guest speaker. It was both amazing and informative.

Now for our question. For starters Evan said there is *NO* case study on this topic, none. But he goes on further to say that all though it's a grey area, Federal Preemption and FOPA would cover you. Also said that your home in NJ is the legal place of possession. We went on to speak about flying out of NJ as well. NO problem as long as you call the airline your flying with, copy their criteria and make a copy of it and bring it with you.

There were numerous scenario's ask about this topic. Also there was about another 35 people getting their Non resident Florida permits processed that night as well. So I pointed out what should they know about Transporting out of and back to NJ......Bottom line is if and when a case study does happen, he'd win that case.

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nice to see someone as respected as Nappen basically agreeing with everything I said.. almost word for word..

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Originally Posted by vladtepes

nice to see someone as respected as Nappen basically agreeing with everything I said.. almost word for word..

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Yes but, having said that this is still NJ and most likely "IF" something were to happen, you run into a police who doesn't know the laws you*MAY* need his services. So what Tl says is not far fetched and is most likely which way the Police and the State would try to go. Evan Nappen is also the attorney who represented Brian Akins. *So again Joining a PA. shooting range should be on the to do list*, and follow the Interstate guidelines to the T. I heard this right from the horses mouth so it's not hear say to *ME*......As added insurance (which gun owners need here) I purchased his revised book as well, so if anybody has any questions in the future (NJ) post them and I'll look them up and report back. He spoke and answered questions for about 3 1/2 hours....it was free, but priceless. Many other speakers on slate Alan Gura being one of many. Hey we're trying like hell over here.....

*my opinion*

Okay - having gotten a "wild hair....." can I ask your thoughts on THIS scenario?

Spent the weekend hiking and camping with my son on the Appalachian trail. This is kind of neat in the respect the entire trail is close to 2100 miles in length! My thought (before I get too much older) was to take 6 months and hike the entire thing (probably less than a 1% chance of doing so, but lest ask the "thoughts" anyway).

It starts in Georgia (covered by reciprocity with my PA, NH, and FL licenses). Goes through TN(ok), NC(ok), WV(ok), VA(ok), MD(NO WAY), PA(obviously ok), NJ(Communist), NY(again communist), CT (have to get a license), MA(have to get a license), VT(ok), NH(licensed), then ME(ok - I think on one of mine).

So <<if>> I start my trek in GA (knowing this will take 6 months to walk it) and head through "off limits states", what protections if any would you venture to guess a hiker would have (note: before the flames start, Im pretty confident I wouldnt carry in MD, NJ or NY unless there was a total collapse of government).

I think the only difference is the MODE of transportation, and yes, walking would entail a few stops (inadvertently however) in hostile territory. Thoughts?

FOPA protection (18 USC 926A) only applies to VEHICULAR transport. It would be impossible to comply with it's transport methodology while afoot.

When I retired in NY state and moved to Pennsylvania with my possessions (including firearms, ammunition, reloading equipment and components, i.e., a few pounds of powder and several thousand primers) I bypassed my usual route through New Jersey. I mapped out a route from NY Route 17 to US Route 209 through the Delaware Water Gap and continued on legally to my new home. Stuff happens, and an encounter with police in Jersey with a van full of firearms and ammo is not a good idea.

Thanks for sharing.

Just a quick new link to a letter that TL3237 mentioned in his second sticky post (the original link seems to have gone belly up!):

http://www.handgunlaw.us/documents/doj_doc_nyc_air.pdf

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Originally Posted by Jhaydeno

Just a quick new link to a letter that TL3237 mentioned in his second sticky post (the original link seems to have gone belly up!):

http://www.handgunlaw.us/documents/doj_doc_nyc_air.pdf

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Thanks.

Would also like to add on a related note of a 3rd Circuit decision regarding 926A protection when traveling to the airport which seems counter to the linked letter. The decision does not reference the letter so I don't think it was introduced at trial and thus not subject to the 3rd Circuit's consideration.

In essence the decision states that your FOPA protection ONLY EXTENDS to firearms when they are properly secured in a vehicle for transport. Once you remove them from said vehicle the FOPA protection expires. Hence, while you possess your firearms while afoot, there is no FOPA protection and you cannot invoke it as a defense for conduct otherwise illegal in the airport's host state. In essence this would make, with few exceptions, conditions impossible to utilize an NJ airport if you take possession of the firearms during check-in or from baggage claim. It would not affect those transiting through NJ on connecting flights if the firearms remain in possession of the airlines. It also prevents NJ residents from originating/terminating air travel in NJ unless they meet an exemption under NJ statutes.

Some poignant excerpts from
ASSOCIATION OF NEW JERSEY RIFLE AND PISTOL CLUBS INC., Appellant, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, and SCOTT ERICKSON No. 12-3621 Filed: September 13, 2013

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makes clear that the transportation the statute protects must occur in a "transporting vehicle."

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It follows from this plain meaning that an ambulatory plaintiff who intends to transit through Newark Airport is outside the coverage of the statute.

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In light of the plain meaning of the statute, fully corroborated by the legislative history, we hold that section 926A benefits only those who wish to transport firearms in vehicles—and not, therefore, any of the kinds of "transportation" that, by necessity, would be involved should a person like those represented by the Association wish to transport a firearm by foot through an airport terminal or Port Authority site.

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It may be beneficial to note there is a push at the federal level to revise FOPA and help fight the abuses of rights by NY & NJ. HR 131 makes it clear that law enforcement and municipalities can be sued for violations of FOPA.

http://gunfreezone.net/wordpress/ind...fangs-in-fopa/

From the article:

A person who is deprived of any right, privilege, or
immunity secured by this section, section 926B or 926C, under color of
any statute, ordinance, regulation, custom, or usage of any State or
any political subdivision thereof, may bring an action in any
appropriate court against any other person, including a State or
political subdivision thereof, who causes the person to be subject to
the deprivation, for damages and other appropriate relief.
``(2) The court shall award a plaintiff prevailing in an action
brought under paragraph (1) damages and such other relief as the court
deems appropriate, including a reasonable attorney's fee.''.

HR131 would also expand the transport protection to travel afoot. This is particularly important because of the 3rd circuit ruling (see post#31) which made the initiating of air travel to/from NJ/Pa/DE airports, while possessing a firearm, subject to local/state laws. The ruling, though not effective outside those states, serves as a precedent that could be adopted by other circuits.

I engage in interstate travel transporting firearms several times a year. I know this is more then the law requires, but this is my routine:

Travel plans - avoid anti-gun states even if it adds on to drive time.

Permits - even though my carry permit might not be recognized in a state I still keep it on me.

Documents - print out of federal transport law, copies of receipts and background checks for each firearm, proof of my destination (usually hotel confirmation), print out of event I will be attending to use firearms.

Transit - all guns in separate locked cases, usually partially disassembled, and with trigger locks. Magazines are all unload and in a separate locked container. Ammo is in a separate locked container in original boxes (although I try to buy at the destination when available).

Also, keep in mind you will only have a problem if you attract police attention to yourself. Go the speed limit and obey traffic laws and you are 95% of the way to avoiding starting any problems.

I have only had one police encounter where I was throughly questioned about my firearms (I was involved in an accident, other guys fault). This was in upstate New York. The cop was very anti-gun and was trying to get me on anything. I'm not sure if he couldn't get a supervisor's approval to make an arrest or if an on call DA declined. I know he tried to get someone to give him the OK. I was not violating the law. I was able to demonstrate that I was protected by federal law and all my guns were clean. I know for certain part of the reason he was unable to get approval was because I had extensive documentation and had everything separate and locked. That made the optics of the case a very hard one. It would have looked like they were trying to "get" a law abiding gun owner (which they were). They didn't want to have to deal with that.

Being prepared might not stop you from getting unlawfully arrested (although in some jurisdictions that read the federal law to be a affirmative defense police might have probable cause to make the arrest and it might not be an unlawful arrest), but if you do get into trouble it will help you out not only in the courts but in the court of public opinion. Most DA's are political animals and most know a bad looking case when they see it. Don't make it easier for anti-gun cops and DA's to get you.