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  1. #1
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    Default 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:

    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.
    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:

    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.
    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




    -------------------------------------------------------------------------------------------------------------------------
    Last edited by tl_3237; July 26th, 2015 at 10:22 AM. Reason: Rehosting files from Comcast to MS OneDrive
    IANAL

  2. #2
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    Default Re: FOPA transport protection in states of origin/destination - UNLIKELY [A Report]

    ------ 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 -
    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.
    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:

    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.
    and

    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).
    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:

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

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

    ... 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.
    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:

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

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



    From contemporaneous literature:

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



    Applicable NJ statutes:

    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.
    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.
    Last edited by tl_3237; July 26th, 2015 at 10:23 AM. Reason: Rehosting files from Comcast to MS OneDrive
    IANAL

  3. #3
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    Default Re: FOPA transport protection in states of origin/destination - UNLIKELY [A Report]

    RESERVED FOR EXPANSION
    IANAL

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

    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!
    .
    Last edited by Curmudgeon; July 3rd, 2011 at 12:55 PM.
    While many claim to support the right, precious few support the practice.

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

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

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

    Quote Originally Posted by tl_3237 View Post
    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’
    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.
    Last edited by MDJschool; July 3rd, 2011 at 01:59 PM.

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

    Damn fine job.

    "I would rather be exposed to the inconveniences attending too much liberty
    than to those attending too small a degree of it."~Thomas Jefferson, 1791
    Hobson fundraiser Remember SFN Read before you Open Carry

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

    great work ... rep sent

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

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

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

    ...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...
    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:
    (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).
    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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