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

[tl_3237]

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




-------------------------------------------------------------------------------------------------------------------------