Table of Contents

About the author
ABOUT THE AUTHOR Bryan L. Ciyou is a trial and appellate attorney at the Indianapolis law firm of Ciyou & Dixon, P.C. He earned his BA with distinction and graduated through the honors program, along with his JD,... Read More

Where is the Law?

I. Introduction

The law is dynamic and varies from place to place and over the course of time; yet it is created and developed, within the relatively uniform, highly stable, and structured State and Federal legal systems.

How law is made (and who may make it), and particularly the enforcement and prosecution of criminal matters, must be understood by the Reader in order to reach the requisite level of competence as to lawful reciprocal carry. The GLBS Guide provides a depth of coverage on reciprocal carry and on potential criminal implications associated with ignorance on the topic.

In addition, as Your base knowledge increases, You will likely want to delve into firearms’ civil and regulatory and ordinance matters. The GLBS Guide, consistent with connecting the proverbial legal dots, provides some material in this chapter for Your future use as You advance Your study.

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II. The Components of (Recipe for) Law-Making

Laws (including firearms laws) are made to meet, actual or perceived, public needs. Assuming a law is passed (by the legislative branch) and signed into law (by the executive branch), it only has to pass Constitutional muster (as decided by judicial branch) to stay on the books, unless it sunsets like the 1994 to 2004 Assault Weapons Ban. These are the three (3) branches of government accounting for all laws.

Because public policy and constitutionality factor into gun laws, they are analyzed:

A. Public Policy

At the fundamental level, social, political and/or economic policy matters drive lawmaking.

Thus, determining the policy the law attempts to effectuate may drive the analysis of any given legal question, from changing the law to its application.

Mandatory Seat Belt Laws. A classic example of public policy resulting in laws is demonstrated by the policy underpinning mandatory seat belt laws – the need to preserve life. Simply put, seat belts work in keeping occupants restrained in a motor vehicle in a crash, thereby reducing injury and preserving life. There is little debate about the myriad of benefits from wearing a seat belt or that seat belt laws have saved lives. A permutation of this hypothetical aptly demonstrates the difficulty that any proposal to repeal mandatory seat belt laws would face, hence highlighting how policy drives law (or does not do so). Given the statistics on lives saved by seat belts, it would likely have little legislative momentum; the social, political and economic benefits are too great. Who would support it with a countervailing policy, and what would that policy be?

However, the more that reasonable men and women differ on the merits of a policy, and firearms certainly fits the bill as it has several policy “camps,” the more complex the legal analysis becomes: some policy groups firmly believe that guns cause crime; and that if firearms, particularly handguns, were more regulated or prohibited, crime would decrease.

On the other hand, other policy camps strongly embrace the reasoning that a firearm is but a tool to effectively commit crimes, and that in the absence of easily obtained firearms, some other deadly weapon would replace the role that firearms play.

This camp believes the actual issue is societal acceptance of violent crime as a fixed and unchanging component of American life, which is masked by focusing on firearms regulation. Inasmuch, this camp believes that law-abiding citizens should be able to possess firearms to protect themselves.

The reason for the complexity in analysis should now be apparent: there are many laws and exceptions to the laws. Why? With hotly contested and competing policies, different policy groups fund public awareness programs and, by lobbying politicians, they push for lawmaking consistent with their views. However, after this lawmaking occurs (if it does), a different policy group may be successful in obtaining an exception to the law through passage of another law that cuts away at the authority of the prior law.

In other words, under sway of policy and/or advocacy groups, the legislatures and/or Congress adopt statutes, which, when signed into law, are then applied, enforced, and developed by State or Federal courts by case law. Ultimately, these evolve with society, for better or worse. This creates layer upon layer of legal complexity that must be peeled back like the proverbial onion to decide what the law is in a particular place.

This is an inefficient legal model. However, this is the model our society envisioned and contracted for by the Founding Fathers vis-à-vis the United States (and States’) Constitution. The legal system flowing therefrom ensures the fundamental legal concepts such as Due Process. Above all, freedom.

That said, despite its glaring shortfalls at times, it is, arguably, the best, most advanced system any organized, post-industrial society has implemented to date. Without the rule of law, our society would not exist in its present form. Without our current system, the freedom we experience would be diminished.

B. Constitutional Limits

Despite the great power of the people to advance and/or change policy, effectuated by the legislative branch, as checked and balanced by the executive branch (veto power) and judiciary (trial courts generally), there are outer limits on the policy-to-statute legislative process and, ultimately, the legal system’s enforcement and refinement of these laws.

Statutory law and case decisions — all law for that fact — are constrained by, and must operate within, constitutional parameters. These boundaries are set forth in the United States Constitution and the states’ constitutions. These are supreme sources of law from which all laws emanate, meaning they must not be abridged.

As a general rule, constitutional boundaries and thresholds are not reached in lawmaking of the Legislature or Congress, or routine enforcement by the Judiciary, even in firearms cases. However, on occasion, even routine legal matters exceed constitutional limits. This is exactly the case with the Heller [] and the McDonald [] cases.

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III. Civil and/or Criminal Violations of the Law

When laws are adopted, they are either civil or criminal. Broadly, civil violations are remedied with monetary award. Criminal violations may also result in a monetary fine, but its significance is in the potential loss of freedom by incarceration and/or removal of certain constitutional rights, such as the right to vote (or right to bear arms as with a felony conviction).

The ultimate arbitrator of a violation of state and/or federal civil and/or penal law is a judge or jury. For purposes of the GLBS Guide, state coverage is limited in scope generally to crimes that could occur because of variances in carry laws between reciprocal states under local, state and federal law.

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IV. Sources of the Law

With the policy identified, if necessary and presupposing the constitutionality of the lawmaking thereupon, civil and, to some extent, criminal law is generated and developed through a number of other sources.

Primary law, namely the state and federal criminal statutes, being the most severe risk in reciprocal carry, is the focus of the GLBS Guide. This is a concern of the majority of Readers with reciprocal carry. And again, however, there are other laws from local ordinances to hunting laws that might dictate something penal or civil by act or omission in carrying under reciprocity.

In executing and enforcing civil, and to some extent, criminal statutes, or the broad policies they seek to foster, the law requires regulation in specific contexts. This is accomplished through precise rule-making by administrative arms of government. The Legislature and/or Congress, as legislative bodies, are too small to accomplish this task. Among other things, these legislative bodies lack the time and technical expertise to do so. For this reason, both create administrative bodies to consider, draft, and adopt rules and regulations, by statutory delegation of authority. Such administrative agencies may even have some responsibilities for defining the elements of a criminal offense.

For this reason, vast quantities of law are found in administrative codes. Administrative bodies of law must, thus, be considered to ensure a complete legal analysis of any given issue. The ATFE’s regulations are a good example, as well as the administrative codes of each state.

In addition, within this complicated mix, under state law, some local units of government are empowered to adopt ordinances that are also laws to consider and comply with. Inasmuch, firearms laws may be embodied within any or all of the following sources of law:

A. Federal

  • United States Constitution and Amendments
  • SCOTUS Decisions (U.S. Supreme Court)
  • United States Circuit Courts’ Decisions
  • Congress Criminal or Civil Statutes Codified in the U.S. Code
  • Regulatory Bodies’ Regulations Published in the Code of Federal Regulations (CFR)

B. State

  • Constitution and Amendments
  • Appellate Court Decisions
  • Legislative Criminal or Civil Statutes Codified
  • Regulatory Bodies’ Regulations Published in the state administrative codes
  • Local Ordinances

In states without state-based preemption or limited preemption, Readers must comply with local ordinances, which may vary widely and are difficult to locate. Nevertheless, by following this hyperlink [] You can access the ATFE publication of all local ordinances published in the Federal Register. You can also look to some of the recognized databases that compile and house local ordinances [].

Consider All Sources of Law that May Apply in Reciprocal Carry. Make no mistake about the focus of the GLBS Guide. While it addresses determining reciprocity and state and federal penal law that might be commonly triggered in doing so, all of these (other) sources of law may apply to Your reciprocal carry, particularly private property, hunting, and local ordinances. It is for this reason hyperlinks are provided for Your educational use in assessing this and what additional information You may need.


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V. Private Regulations

In addition to the foregoing sources’ restrictions, there are private restrictions placed on firearms under property and contract law (these rights are constitutional in nature). For instance, a landowner may lease his/her property with contractual exceptions, stated in the lease, prohibiting firearms. Failure to follow this lease term by the tenant (lessee) might result in the landlord (lessor) bringing a civil action for breach of contract under property and contract law.

In some states, a violation of private rules may not result in a penal violation, but it nonetheless exposes civil liability. On the other hand, in other states, a failure to comply with posted private restrictions is a criminal act and there may be a duty to tell any private party with a possessory interest in the property that You are carrying a handgun. Failure to do so may result in ejection from the property and/or arrest.

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The means through which all these statutes, cases, rules, regulations, and agreements are enforced is by state and federal criminal and civil courts. In addition, there are administrative proceedings associated with administrative laws of the states and Code of Federal Regulation (“CFR”).

Limits of Summary Description of Law-Making to Enforcement. The structure and operation of the state or federal legal system (each comprised of executive, legislative and judicial branches) could be the topic of an entire manual (and is). The GLBS Guide is not intended to address the minutia of this process and, thus, this Chapter is drastically simplified. Nonetheless, an understanding of the lawmaking process, and the legal system in which it operates through enforcement, globally aids the understanding of firearms law and compliance therewith for all Readers with reciprocal carry or otherwise.

A. State Law

1. Criminal Law

Under state criminal codes, criminal acts, including firearms matters related to reciprocal carry, are investigated by state and/or local law enforcement officers (“LEOs”). County prosecutors, district attorneys, or their equals determine whether to charge and commence action by filing a document (an information) or by seeking a grand-jury indictment. This is done in the county where the alleged crime occurred.

In such situations, the state is the victim and it brings the case against the defendant for violation of the relevant penal statute(s). The defendant may be represented by private counsel or by a public defender.

There is a constitutional right to legal representation in criminal cases, or certain quasi-criminal cases, despite lack of financial means. Criminal cases are typically decided by (or anticipated to be decided by) a jury.

2. Civil

As a general rule, civil litigation is brought by the “plaintiff(s)” against the “defendant(s)” (other terms are “petitioner” and “respondent”). However, the government, such as by the Attorney General, may also bring a case as a plaintiff and the state or local government may sue as a plaintiff and be sued as a defendant.

The county court system in which the case is filed is decided by a more technical issue of preferred venue, and generally is proper where a majority of defendants live, where the property in question is located, or where the act or omission occurred.

The theory of a civil case may be in law or in equity (or both), invoking statutory law, case law and/or common law. Typically, private lawyers handle these cases. Unlike in a criminal case, in civil cases there is no general right to counsel.

Depending upon the type of matter, there may be a right to a jury trial. If not, a judge hears the case in what is referred to as “a bench trial.” A bench trial may result in a judgment rendered for the plaintiff in a monetary award or, alternatively, a defense verdict in which the defendant is deemed not guilty and no monies are awarded. There are a number of variations on this trial procedure.

Reciprocal Carry. A question as to the validity of a Readers’ license, or revocation proceedings, and/or return of a handgun confiscated under reciprocal carry would likely be deemed civil in nature and handled in this way or by administrative hearing.

B. Federal: Criminal and Civil

The federal legal system largely follows the same path. The legal parlance varies, however. With regard to firearms, the matters are usually investigated by the ATF or FBI. An AUSA, who works for the Department of Justice, headed by the U.S. Attorney General, and who is the prosecutor, then decides whether to charge the matter or seek an indictment.

Mistaken Carry in Federal Park Visitor’s Center. A mistake a Reader could make that would land them in federal criminal court would be to inadvertently carry into a visitor’s center of a National Park. While state law may allow carry in other parts of the National Park with a license, a visitor’s center is a federal facility, and it is a criminal act to carry within the confines of these places.

A trial, if it occurs, is in the United States District Court. As with state court, there is a right to legal counsel. Appeals are taken to the United States Court of Appeals for the Circuit, as a matter of right, and then, if discretionary certiorari is granted, to the Supreme Court of the United States.

As it relates to civil matters, violations of federal civil statutes (such as civil rights) may be brought in federal court; and certain state-based legal matters (federal question or diversity of citizenship, respectively) may be filed in federal court if the parties live in different states and certain threshold damages ($75,000.00) are alleged. Civil appeals track essentially the same process as that for criminal cases.

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VII. Federal and State Age Requirements Regarding Firearms

There are several laws regarding how old You must be in order to purchase or carry firearms, and these laws are often confusing. There are certain things You may do at 18 and other that require You to be 21, and these can vary from state to state. Federal law requires that You be at least 18 to buy long guns or ammunition for long guns from an FFL, and 21 to buy handguns or handgun ammunition from an FFL, or to purchase NFA items. Federal law generally prohibits people under the age of 18 from owning or possessing handguns, except under adult supervision. States enact their own laws governing how old You must be to obtain a CCP or buy guns in private transfers, and these laws differ from state to state. A private transfer is a sale between two residents of the same state such as friends, when neither of the parties holds an FFL. In many states, You only have to be 18 to purchase handguns and handgun ammunition from private parties.

In addition, several states such as Indiana allow You to obtain a CCP as soon as You turn 18. Note that most states require You to be 21 to carry a handgun, and include this as a requirement for reciprocity. For example, if state A issues CCPs at age 18 and state B only issues them at age 21, a 20-year-old with a valid CCP from state A could not carry in state B even if the two states have a reciprocity agreement. Likewise, many states allow You to open carry handguns at age 18, even if they don’t allow concealed carry until You turn 21.

Some states have stricter rules, for example in New York You must be 21 to even possess a handgun, while Illinois and Washington D.C. generally require You to be 21 in order to obtain a permit to purchase or possess any firearm, even long guns. States with assault weapon bans often require You to be 21 to possess an “assault weapon”, even if You only have to be 18 to obtain or possess other long guns.

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Firearm laws are changing almost constantly, but most gun laws can be categorized into several distinct patterns, and understanding these trends makes it much easier to make sense of the changing legal landscape. As a rule of thumb, every type of new gun law falls into one of two overarching categories: laws that expand gun rights, and laws that restrict them. There are several distinct trends within both categories. By and large, there is a trend in conservative states such as Texas to expand gun rights (such as by broadening the scope of who can carry guns, where they can be carried, and when force can be used in self-defense), and another trend in liberal states such as New York to pass restrictions on gun ownership (such as assault weapon bans, universal background checks, and restrictions on magazine capacity). In the political debate, these two positions (and the states that adopt them) are generally referred to as being “pro-gun” or “anti-gun” (though many proponents of laws restricting firearms prefer the terms “pro-gun safety” or “pro-gun control” to “anti-gun”). Both sides of the political spectrum have been pushing their states to one extreme or the other with very little common ground. There are a few exceptions to these broad trends, generally when restrictive laws in liberal states get struck down in court. For example, the ability to carry firearms has expanded even in liberal states such as Illinois, and absolute bans on handguns have been repeatedly nullified by courts since the 2008 Heller decision.

Pro-gun laws generally fall into one of three categories (each of which may be comprised of several related trends): Laws that expand who can carry guns, laws that expand where guns can be carried, and laws that expand when lethal force may be used in self-defense. A prime example of the first trend is the steady expansion of several types of laws allowing people to carry guns on their person. As of 2013, every state now issues a CCP, and while some states make these permits hard to get, the general trend has been towards making it easier to get a permit by adopting “shall issue” laws which mandate that a CCP must be issued to any applicant who is not legally prohibited from owning guns. In an expansion of who can carry guns a rapidly growing number of states now allow “open carry”, i.e., carrying a firearm openly in plain view like police officers do. Currently most states allow open carry in some form.

Another recent trend is the growth of “constitutional carry” laws, which refers to the legal carrying of a concealed handgun without a license or permit. Many states already allow open carry without a permit; constitutional carry refers specifically to laws allowing permitless concealed carry. In constitutional carry states, a firearm owner may legally carry a concealed handgun without needing a permit. Many states only require a permit to carry a handgun concealed, but not openly. Constitutional carry states do not require a permit for either. The exact nature of these laws can vary between states, so You should always read up on the specific laws of a state before carrying there without a permit. Constitutional carry began in Vermont and is now legal in several states.

The next big trend is the expansion of places where You can legally carry firearms, such as at work or on college campuses. A growing number of states have laws that protect Your right to carry firearms at work, mainly the right to keep a gun in Your car while parked on Your employer’s property. A common example of this is the law recently passed in Tennessee that makes it illegal for employers to punish, fire, or reprimand employees for having firearms legally stored in their private vehicle. Utah and Texas have also recently adopted laws allowing people with a CCP to carry on the campus of any public university. These types of laws generally work by prohibiting employers or schools from adopting or enforcing strict no-gun policies: while carrying a gun at Your work or college may not be illegal in many states, You could be fired or expelled for having a gun, while laws like the one in Texas protect You from being punished for having a gun in a legal manner.

Another example of laws expanding where You can legally carry firearms is the possibility for a National Reciprocity Act, which has been proposed several times before, but now stands a decent chance of passing into law. Critics of the current state-based reciprocity system fear that gun owners crossing state lines with legally registered firearms can land in prison due to the current patchwork of laws. Recently, lawmakers have sought to standardize reciprocity with the National Reciprocity Act of 2017. In its current form, the Act would amend the federal criminal code to permit individuals who are allowed to carry guns in their home states to exercise the rights in any other state that allows concealed carry. Despite its uniform application, the Act does not restrict state and local governments’ ability to decide where citizens may or may not carry firearms. It essentially extends the same rights to a non-resident who lawfully carries in their home state the same rights afforded to lawfully carrying state residents. Similarly, the Law Enforcement Officers Safety Act of 2004 resembles both national reciprocity and constitutional carry. It allows police officers (and retired police officers, provided they served for at least 10 years and were discharged in good standing) to carry a concealed weapon in any state or jurisdiction in the U.S. without a permit, regardless of local laws. National Reciprocity would have a similar effect; by allowing people with a valid carry permit issued in one state to carry a concealed weapon in all other states, even states with stricter gun laws.

The National Reciprocity Act is aimed at providing legal gun owners the ability to travel freely between states without having to worry about conflicting state codes or onerous civil suits. Additionally, the Act specifies that a qualified individual who lawfully carries a concealed firearm in another state is not subject to the federal prohibition on possessing a firearm in a school zone. Along with provisions to open up more federal land for hunting, the Act reinforces the existing reciprocity that exists for National Parks and National Wildlife Refuges, but would also lift the ban on firearms on federal lands managed by the Army Corps of Engineers.

Another pro-gun trend is the expansion of self-defense laws. More states have been adopting “castle doctrine” or “stand Your ground” laws, which expand when and where people can use deadly force in self-defense. These types of laws have been in the political spotlight recently due to several high-profile cases (most notably the shooting of Trayvon Martin in Florida). “Castle doctrine” and “stand Your ground” laws explicitly state that people do not have a duty to retreat from an attacker, and may use deadly force if they reasonably believe it necessary to prevent death or serious injury. “Castle Doctrine” laws have been around for over a century, so the recent trend has been towards “stand Your ground” laws. These types of laws are very similar; the difference is that Castle Doctrine only applies to Your home or property (some states extend it to Your place of business or car), whereas “stand Your ground” laws expand upon that and say You have no duty to retreat from an attack that occurs in public. Think of “stand Your ground” laws as a broader version of the castle doctrine that expands Your right of self-defense beyond Your property.

Conversely, there has been a growing movement among more liberal states to restrict gun ownership, especially after the Sandy Hook shooting in 2012. Common trends are expansion of assault weapons bans, limits on “high-capacity” magazines (these are often part of a larger assault weapons ban), and universal background checks. Assault weapon bans (AWB) have been around since the ‘90s, and many states model theirs after the federal assault weapons ban that was in place from 1994 to 2004. AWBs typically try to restrict or ban semi-automatic rifles such as the AR15. California recently tightened their AWB by expanding the definition of what constitutes a prohibited “assault weapon” and requiring that assault weapons be registered within a certain timeframe or risk being confiscated. The most common anti-gun trend is the expansion of laws that restrict magazine capacity and ban “high-capacity” magazines (usually means magazines capable of holding more than 10 rounds, although the specifics vary from as low as 7 in New York to 15 in Colorado and New Jersey). The final trend is the adoption of universal background check policies. These laws are aimed at closing the so called “gun show loophole” by requiring that all gun sales go through a licensed dealer, who conducts a background check on the buyer for a nominal fee. In states with universal background checks all sales between private parties (such as between friends or between people who meet and arrange the sale online) must go through a licensed dealer and conduct a background check before the buyer may take possession of the firearm. Note that transfers/gifts between family members are often exempt from these requirements, but the details of who counts as family (i.e., immediate relatives only, or a broader definition including aunts/cousins etc.) vary from state to state.

Another pro-gun trend involves the removal of restrictions placed on suppressors by the NFA. At the federal level, lawmakers have proposed the Hearing Protection Act, which removes suppressors from the regulatory scheme of the NFA, which requires a $200 tax stamp and an exhaustive background check that can take 6-10 months. Under the Hearing Protection Act, suppressors would be regulated like ordinary firearms, meaning they would have to be purchased from an FFL and would require passing an ordinary background check. If successful, suppressors would essentially be regulated as a firearm.

The reduction of restrictions on suppressors has garnered much support from gun owners and hunters who appreciate suppressors’ ability to mute the sound of gunfire to a point where hearing damage is limited, as well as reducing noise pollution from shooting ranges, which can be a concern especially if the shooting range is located in or near a city. While the proposed legislation addresses a safety hazard long cited by gun owners and hunters as an unnecessary danger, opponents argue that increasing accessibility to suppressors is a threat to public safety. Congress is expected to vote on this sometime in the winter of 2017 or early 2018, although an exact date has not yet been set.

One final related trend, at least in the state of New York, has been increased regulation of toy guns. In recent years, New York has passed laws requiring that all toy guns (generally meaning props, imitations, and look-a-likes, not airsoft, pellet, or BB guns) must be painted in bright color or made of transparent plastic, so they can be easily identified as toys, and not confused with real firearms. This is intended to reduce accidental shootings where police or bystanders mistake a toy gun for a real gun and shoot the person wielding it, such as the shooting of Tamir Rice. Many states have some laws like this on the books, such as requiring toy guns to have a bright orange barrel tip, and some have more detailed laws governing the appearance of toy guns to make them appear visually distinct from real guns.

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IX. Conclusion

With reciprocal carry, the biggest risk is unknowingly violating a federal criminal law, such as school zones, applied differently by overlapping state coverage, violating a federal property restriction, or by differences between state penal laws. The more You understand about who makes law, where laws are reduced to written form, and how laws are enforced, the more You will see commonalities. Thus, the better You will be at strict compliance, which is what is sometimes expected by law enforcement. Ultimately, every choice in life is a risk, and so too is the decision to engage in reciprocal carry. The GLBS Guide hopefully helps reduce this risk of the diversity in laws among the 50 states.

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Table of Contents

About the author
ABOUT THE AUTHOR Bryan L. Ciyou is a trial and appellate attorney at the Indianapolis law firm of Ciyou & Dixon, P.C. He earned his BA with distinction and graduated through the honors program, along with his JD,... Read More