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Thread: FOPA Transport?

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    Default FOPA Transport?

    Is there any guidance as to whether ammunition stored in accordance with FOPA § 926A during otherwise legal inter-state transport needs to have been removed from magazines? Authority if so?
    How pissed are you gonna be if you die before the Zombie Apocalypse comes? - - IANAL

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    Default Re: FOPA Transport?

    I can't even find a definition for "unloaded" within the United States Code Chapter 44. Only that ammo and firearm can't be accessible.
    While many claim to support the right, precious few support the practice.

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    Default Re: FOPA Transport?

    Neither could I when doing previous research. That being said, why would anyone balk at so simple a thing as unloading their magazines before taking an interstate trip through potential hostile territory to hedge their legal bet?
    IANAL

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    Default Re: FOPA Transport?

    Quote Originally Posted by tl_3237 View Post
    Neither could I when doing previous research. That being said, why would anyone balk at so simple a thing as unloading their magazines before taking an interstate trip through potential hostile territory to hedge their legal bet?
    Well...how many magazines are we talking about? Your whole stockpile? Dozen? That and the fact that if something happens I would appreciate any advantage I can get. Not all trips are as easy as driving from NY to PA through NJ, longer trips may require loading and unloading multiple times, what if you miss the last rest stop before the next state line?

    The essence of FOPA is immediate accessibility not time to implementation directly...or why not require that they be disassembled as throughly as practical? If you start making statements regarding magazines there is no logical endpoint before a moon clip in the same container as some ammo is a violation....

    ETA: Great this thread now tops the Google results for the question...
    Last edited by emsjeep; January 26th, 2011 at 02:18 AM.
    How pissed are you gonna be if you die before the Zombie Apocalypse comes? - - IANAL

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    Default Re: FOPA Transport?

    While you're pondering the preemption protections under the 1986 FOPA, see if you can work up an argument that anything other than "firearms" are covered.

    What about the ammunition itself? If a state bans possession of hollowpoints under some circumstances, does FOPA preempt that? Where in the language does it say so?

    How about the magazines? If you have 30-round mags, and the state bans all possession of anything over 10 or 15 or 20 rounds, where does the FOPA preempt that?

    § 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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    Default Re: FOPA Transport?

    Quote Originally Posted by GunLawyer001 View Post
    While you're pondering the preemption protections under the 1986 FOPA, see if you can work up an argument that anything other than "firearms" are covered.

    What about the ammunition itself? If a state bans possession of hollowpoints under some circumstances, does FOPA preempt that? Where in the language does it say so?

    How about the magazines? If you have 30-round mags, and the state bans all possession of anything over 10 or 15 or 20 rounds, where does the FOPA preempt that?

    § 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.
    I have enough homework, thank you.

    Unless the magazines are somehow classified as part of the firearm or ammunition, which I see no evidence for, the statute simply doesn't preempt state laws that prohibit such items:
    18 U.S.C. § 926A. Section 926A, both textually and in the words of its sponsor, “confers upon all law-abiding citizens a right to transport their firearms in a safe manner in interstate commerce,” 131 Cong. Rec. S9101-05 (July 9, 1985) (statement of Sen. Hatch). While this section does provide that conflicting state provisions affecting the transportation of firearms will be preempted, this language does not support a finding that Congress intended with this amendment to preclude all state laws affecting firearms.Indeed, § 927 of the Act, which was left intact even after the 1986 amendments, unambiguously expresses Congress's intent not to completely preempt state or local laws that relate to firearms. Section 927 of the Act states that the Act is intended to exist side by side with state laws affecting firearms:Effect on State lawNo provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.

    City of Camden v. Beretta U.S.A. Corp., 81 F. Supp. 2d 541, 549 (D.N.J. 2000)
    In the same light, the statute addresses ammunition very broadly and one would think that preemption would apply.

    More later when it isn't 3AM.
    Last edited by emsjeep; January 26th, 2011 at 03:37 AM.
    How pissed are you gonna be if you die before the Zombie Apocalypse comes? - - IANAL

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    Default Re: FOPA Transport?

    Quote Originally Posted by emsjeep View Post
    I have enough homework, thank you.

    Unless the magazines are somehow classified as part of the firearm or ammunition, which I see no evidence for, the statute simply doesn't preempt state laws that prohibit such items:


    In the same light, the statute addresses ammunition very broadly and one would think that preemption would apply.

    More later when it isn't 3AM.
    IMO 926A does not apply to ammunition. I base this not only on the fact that there is nothing in the language or anything I found in my research that would suggest otherwise but we also have the sister statutes 926B and 926C (aka LEOSA) which were changed in the last few months to specifically INCLUDE ammo. This gives credence to my conclusion considering that LEOSA's 'firearms' preemption did not previously extend to ammo and Congress specifically modified it at the behest of LEO groups. Since there was never any attempt to change the similar language of 926A its logical to conclude that it still suffers from the lack of ammo coverage shortcoming.

    Magazines are another issue. For example, if a state justifies determining a loaded magazine = loaded gun because it considers the magazine as part of the gun (even if removed from the receiver) then they would have a very hard time arguing that a magazine is not covered under 926A, IMO.
    IANAL

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    Default Re: FOPA Transport?

    Quote Originally Posted by tl_3237 View Post
    Magazines are another issue. For example, if a state justifies determining a loaded magazine = loaded gun because it considers the magazine as part of the gun (even if removed from the receiver) then they would have a very hard time arguing that a magazine is not covered under 926A, IMO.
    To take it a step further, if a magazine containing a single round is in the glove compartment and this "loads" the gun locked in a safe in the trunk (e.g., Ohio), do you lose FOPA protection because it requires that the gun be "unloaded?" If the state definition of "loaded" prevails because the Feds have no such definition, seems you'd arguably be screwed. In any case I wouldn't sign up to be a test case -- especially in the states most likely to bust you over this.

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    Default Re: FOPA Transport?

    Quote Originally Posted by donm View Post
    To take it a step further, if a magazine containing a single round is in the glove compartment and this "loads" the gun locked in a safe in the trunk (e.g., Ohio), do you lose FOPA protection because it requires that the gun be "unloaded?" If the state definition of "loaded" prevails because the Feds have no such definition, seems you'd arguably be screwed. In any case I wouldn't sign up to be a test case -- especially in the states most likely to bust you over this.
    New York, for example, considers loaded to be the simultaneous act of possessing an operable weapon and a quantity of ammunition which can be used to discharge it.


    Ohio has its own statutes that are moderately similar, they require, in part, that for purposes of transportation a firearm not be “ready at hand.”

    State v. Davis, 849 N.E.2d 47 (Ohio App. 2006).

    For purposes of compliance with the state statute, an unloaded pistol with a loaded magazine next to it in the same locked container was in violation, while a revolver with the cylinder removed in a zippered pouch with loose rounds of ammunition was not.

    State v. Beasley, 446 N.E.2d 154, 154 (Ohio 1983).


    Ohio seems to focus on operability rather than access...so it doesn't really help...
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    Default Re: FOPA Transport?

    Quote Originally Posted by donm View Post
    To take it a step further, if a magazine containing a single round is in the glove compartment and this "loads" the gun locked in a safe in the trunk (e.g., Ohio), do you lose FOPA protection because it requires that the gun be "unloaded?" If the state definition of "loaded" prevails because the Feds have no such definition, seems you'd arguably be screwed. In any case I wouldn't sign up to be a test case -- especially in the states most likely to bust you over this.
    Let's assume the loaded magazine is NOT in the glove box since that alone would disqualify you from FOPA transport protection but is instead properly stowed per 18 USC 926A.
    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.
    The intent of Congress was to remove the problematic issues attached to multi-state travels and the plethora of differing firearm laws in the traversed jurisdictions. Thus it would be reasonable to assume that 926A's 'unloaded' would follow that of some standardized Federal definition as opposed to varying as a function of the individual state where a prosecution was taking place - to do otherwise would frustrate 926A's intent. Unfortunately, though the terms 'loaded'/ 'unloaded' are used in many Federal statutes and case law, what is lacking are formalized legal definitions. There are, however, several cases from the Federal district and appeal circuit courts that indicate that a loaded magazine, other then in the firearm, does not render the firearm 'loaded'. From those reading I conjecture that the Federal courts would look at the situation you pose as an 'unloaded' firearm.

    As to the FOPA transport protection (926A) applying in spite of a different state interpretation for loaded magazines remember that 926A is only an affirmative defense in STATE court. Basically you admit to violating a state firearm law but raise the Federal statute as a tolling of same. To be successful you must convince the STATE court to certify the applicable of 926A and that's where there's an uncertainly. Should you fail to garner that certification, upon conviction and unsuccessful STATE appeals, you could reasonably expect a favorable assignment of 926A protection once you enter the Federal appellant system - IMO.
    IANAL

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