Federal Laws

How a Federal “Safe Harbor” Law Helps You Transport a Firearm

No two states have the same laws, and the differences between states can be dramatic. Permit reciprocity and other differences between state regulation of firearms can create a difficult landscape for firearm owners to navigate. In 1968, and again in 1986, Congress set out to help hunters, travelers, and other firearm owners who were getting arrested for merely transporting firearms through restrictive states. To help simplify the complex web of state firearm laws, Congress passed the 1986 Firearm Owners Protection Act (“FOPA”) as part of Senate Bill 2414. One of the stated functions of FOPA was “to permit the interstate transportation of unloaded firearms by any person not prohibited by Federal law from such transportation regardless of any State law or regulation.” As Senator McCollum explained the law’s purpose at the time:
“This [law] is designed to be a “safe harbor” for interstate travelers. No one is required to follow the procedures set forth to section 926A, but any traveler who does cannot be convicted of violating a more restrictive State or local law in any jurisdiction through which he travels. Thus, section 926A will be valuable to the person who either knows he will be traveling through a jurisdiction with restrictive laws or is unfamiliar with the various laws of the jurisdiction he will be traversing. Many times people traveling in interstate commerce can unwittingly find themselves in violation of all kinds of technical requirements for possession of firearms. These laws and ordinances vary considerably”. 132 Cong. Rec. H4102-04 (daily ed. June 24, 1986)
This specific “safe harbor” provision of the law, often referred to as the “McClure-Volkmer Rule,” provides some protection for gun owners transporting firearms through restrictive states, subject to strict requirements.

Plain Language Explanation: When traveling through restricted states, such as states that do not honor your concealed firearm permit or otherwise allow you to possess a firearm, federal law still provides a safe harbor for you to transport your firearm in your vehicle, but you need to abide by specific rules. To ensure compliance with the above federal law, you must abide by the following five requirements:

1. You must be able to legally possess the firearm at your place of departure and your place of destination.
2. The firearm(s) you are transporting must not be prohibited in the state(s) you are transporting through.
3. The firearm(s) must be completely unloaded prior to entering a restrictive state.
4. The firearm(s) and ammunition must be stored separately (i.e. separate containers).
5. The firearm(s) and ammunition must be stored so they are not readily or directly accessible from the passenger compartment of the vehicle.

The unloaded firearm must be in the trunk of your vehicle, if you have a trunk. If your vehicle does not have a trunk, the completely unloaded firearm must be locked in a hard-sided container. The firearm may not be in the glove box or center console. Place the locked case as far away as possible from your position in the driver’s seat. Place the ammunition is a separate location than the firearm, also as far as possible from your position in the driver’s seat.
Only the firearm must be locked in a case, but you can also lock the ammunition in a separate case if you desire.
Remember, if your vehicle has a trunk, both the firearm(s) and the ammunition must be stored in the trunk, and it is recommended that they be stored in separate containers. If your vehicle does not have a trunk, then your firearms must be locked in a hard-sided container, and both the firearm(s) and ammunition must be stored as far as possible from your position in the driver’s seat.
Once the above five steps have been satisfied, you are entitled under federal law to lawfully transport a firearm in your vehicle through a restricted state. Some states do not require you to complete all of the above steps, but some do. New York, Maryland, New Jersey, and California, for example, are responsible for nearly every case on the books dealing with this law, and those states often prosecute gun owners aggressively. To ensure you are given safe harbor, make certain you always follow these five steps.

Finally, this law only provides safe harbor while actively transporting firearms/devices that are not otherwise prohibited in the restrictive state. This means you will need to know what firearms/devices are prohibited in the states you are traveling through, and you will also need to ensure that you are only transporting, and not vacationing in the restrictive states. These two issues are covered in more detail below.

What About Transporting High-Capacity Magazines, Silencers, “Assault Weapons” or Other Prohibited Items Through a State?

It is important to understand that, although this federal law allows you to transport some firearms through restrictive states, it may not allow you to transport items that are prohibited under state law, such as “high-capacity magazines” or “assault weapons” (as these terms have been defined by restrictive states). In one of the few cases that addressed this specific question, the court ruled that the federal law discussed above does not prohibit states from enforcing bans on large capacity magazines or bans on other weapons, like “assault weapons.”

Specifically, the court warned that:

Meaning, if the item you are transporting is prohibited in the state through which you plan on transporting it, the federal law discussed in this section may not protect you. As such, it is essential that you know the laws of the states through which you will be transporting your firearms.

How Long Can I Be in a State and Still Be Considered “Transporting?”

Remember, this law only relates to transporting through a state, not vacationing there. If you are visiting a restrictive state for a prolonged period of time, such as a vacation, the federal law discussed in this section will not offer you safe harbor. You will need to verify what is required by the state where you will be visiting prior to transporting your firearm for a prolonged stay.

So how long can you be in a state and still be considered “transporting?” There is no solid answer to this question, as the law does not provide a time threshold. In one of the only cases dealing with this specific question, a man named Paul Guisti was arrested for having an unloaded .45–caliber pistol in a locked safe inside the living quarter of his boat. At the time of his arrest, he was navigating in the waters just off the shore of New York. Paul had skippered his boat from his home in Florida, along the eastern seaboard to New York, and then planned on returning to Florida, prior to being arrested. Given that Paul was acting as more of a tourist than a transporter while in New York, federal law did not protect him from prosecution. While upholding Paul’s conviction, the court noted Paul was not transporting his gun interstate, but rather, admitted he was traveling along the Eastern seaboard and docking in various states for undefined periods of time. This is more of a tourist activity. The court reasoned as follows:

Although it doesn’t provide a clear answer on what timeframe would be considered transporting, it is clear the courts will look into the facts of each case to determine if you are a tourist or a transporter. In other words, if you plan on visiting Disneyland, staying multiple days to see the sights, or doing other tourist related activities, you should not plan on having the protection of federal safe harbor law.

What About Vehicles Without Trunks, Like Single-Cab Pickups or Motorcycles?

There are no known court cases addressing specific vehicle types. Congress did include an exception for vehicles lacking a trunk, such as pickup trucks or motorcycles. For these, the firearm must “be contained in a locked container other than the glove compartment or console.” While debating how exactly someone should transport the firearm on their motorcycle, the Senate records state:

Because the law is not explicitly clear, the best available advice is to make the firearm as inaccessible as possible to you in the driver’s or rider’s position, ensuring that the firearm you are transporting is locked inside a hard-sided container, and the ammunition is stored separately from the firearm.

Each year the Transportation Security Administration (TSA) catches approximately 4,500 firearms at checkpoints in commercial airports. The vast majority of these firearms are accidentally, or negligently, transported by gun owners who either didn’t know the laws or weren’t careful enough in complying with them.

If you are planning on traveling with your firearm through a commercial airport, it is essential to know how to do so lawfully. Below, we will discuss the steps required to transport a firearm and ammunition, with instructions for before departing as well as once you arrive.

Transporting a Firearm: 

Instructions Prior to Departing for the Airport:

1. All firearms, firearm parts (including magazines, clips, bolts, and firing pins), and replica firearms—including firearm replicas that are toys— are prohibited in carry-on baggage. As such, you must transport all of these items in checked baggage only. Rifle scopes, however, are permitted in carry-on and checked baggage.
2. Firearms must be unloaded. Remove the magazine from any firearms even though the magazine may be unloaded. Under federal law (49 C.F.R. § 1540.5) a firearm may be considered “loaded” if the firearm has a live round of ammunition, or any component thereof, in the chamber or cylinder or in a magazine inserted in the firearm.
3. The firearm(s) must be locked inside a hard-sided container. The container must completely secure the firearm(s) from being accessed from any side. Locked cases that can be easily opened, or pried open on any side, are not permitted. Be aware that the manufacturer’s container the firearm was purchased in may not adequately secure the firearm under these regulations.
4. You may use any brand or type of mechanical lock to secure your firearm case, including TSA-recognized locks. You are not, however, required to use TSA-branded locks.
5. The checked suitcase does not need to be locked, although it is advisable, but the case containing the firearm must be locked. You may check your encased firearm inside of a larger suitcase, or as its own checked baggage.

Instructions Upon Arrival at the Airport:

1. Immediately make your way to the baggage check counter, you may not use a kiosk or self-service checking service to check your luggage.
2. Upon arriving at the counter, verbally declare that you have a firearm in your suitcase. “I have an unloaded firearm locked in a case inside this piece of checked luggage” or similar statement will suffice.
3. The airline employee will then ask you to sign a certification declaring under penalty of federal law that the firearms are unloaded and locked inside a hard sided case. That signed certification, generally in the form of an orange 3x5 card.
4. The airline will then direct you on how TSA will process your luggage. This may involve a manual TSA inspection, or an electronic scan, but generally will not take more than fifteen minutes.
5. Only you should retain the key or combination to the lock unless TSA personnel request the key to open the firearm container to ensure compliance with TSA regulations. If the key is requested, it should be returned to you upon completion of the inspection.
6. TSA will then take custody of your firearms and you may proceed to the security checkpoint.

Keep in mind, bringing an unloaded firearm, ammunition, or even replica firearms to the security checkpoint all have potential criminal and civil penalties. Once you enter the secure checkpoint queue (the line), the crime has already been committed.

If you are traveling internationally with a firearm in checked baggage, please check the U.S. Customs and Border Protection website for information and requirements prior to travel.

49 C.F.R. § 1540.111

Transporting Ammunition: 

Ammunition is prohibited in carry-on baggage, but may be transported in checked baggage. Firearm magazines and ammunition clips, whether loaded or empty, must be securely boxed or included within a hard-sided case containing an unloaded firearm. Ammunition may be transported in the same hard-sided, locked case as a firearm if it has been packed as described above. You cannot use firearm magazines or clips for packing ammunition unless they completely enclose the ammunition. A round of ammunition will not be considered exposed if it has an exposed primer. Firearm magazines and ammunition clips, whether loaded or empty, must be boxed or included within a hard-sided, locked case.

Small arms ammunition, including ammunition not exceeding .75 caliber and shotgun shells of any gauge, may be carried in the same hard-sided case as the firearm. Most airlines will limit the amount of ammunition that may be possessed to a maximum of 11 pounds (5 kgs) per container or customer.

There are three different categories of states with regard to police encounters. We call them “duty to inform states,” “quasi-duty to inform states,” and “no duty to inform states.”

Duty To Inform States 

Some states impose a legal duty upon permit holders that requires them to inform a police officer of the presence of a firearm whenever they have an official encounter, such as a traffic stop. These states are called “duty to inform” states. In these states you are required by law to immediately, and affirmatively, tell a police officer if you have a firearm in your possession. As a quick reference, the duty to inform states at the time of publishing this guide are as follows:

• Alaska (Alaska Stat. Ann. §11.61.220)
• Arkansas (Code Ark. R. 130.00.8-3.2(a))
• Hawaii* (Haw. Rev. Stat. Ann. § 134-9.2(b))
• Louisiana (La. Stat. Ann. § 40:1379.3(I)(2))
• Maine* (Me. Rev. Stat. tit. 25, § 2003-A)
• Michigan (Mich. Comp. Laws Ann. § 28.425f)
• Nebraska (Neb. Rev. Stat. Ann. § 28-1202.04)
• New Jersey (N.J. Stat. Ann. § 2C:58-4.4(b))
• North Carolina (N.C. Gen. Stat. Ann. §14-415.11)
• North Dakota* (N.D. Cent. Code Ann. § 62.1-04-04)
• Texas* (Tex. Gov’t Code Ann. § 411.205)
• Washington D.C. (D.C. Code Ann. § 7-2509.04)

*State-specific requirements include variations from quasi to immediate duty to inform for different situations.

If you find yourself in one of the “duty to inform” states, you must affirmatively inform an officer if you have a firearm. Failure to inform the officer while in one of these states can result in a criminal charge and suspension of your carry permit. As an example of what a duty to inform law looks like, consider what Michigan’s law requires:

An individual licensed under this act to carry a concealed pistol and who is carrying a concealed pistol or a portable device that uses electro-muscular disruption technology and who is stopped by a peace officer shall immediately disclose to the peace officer that he or she is carrying a pistol or a portable device that uses electro-muscular disruption technology concealed upon his or her person or in his or her vehicle.

Mich. Comp. Laws Ann. § 28.425f

When informing an officer that you have a firearm in your possession, we recommend following these four steps:

1. Keep your hands visible at all times. If you are in a vehicle, place your hands on the steering wheel until you have informed the officer of the presence of the firearm and fully complied with his or her instructions.
2. Advise the officer that you have a valid concealed firearm permit and there is a firearm in your vehicle/possession.
3. Advise the officer of the location of the firearm.
4. Comply fully with all instructions given by the officer. Do not reach for your weapon, your permit, or do anything that might be interpreted as reaching for your weapon. Keep your hands visible unless instructed to do otherwise.

Quasi-Duty To Inform States 

In addition to the above “duty to inform states,” some states have “quasi duty to inform” laws. These laws generally require that a permit holder have his/her permit in their possession and surrender it upon the request of an officer. The specific requirements of these laws will vary from state to state. It is important to note that being required to give an officer your permit once it is asked of you (quasi-duty to inform) and being required to affirmatively tell an officer you have a firearm without being prompted (duty to inform) are two very different legal requirements.

As an example of what a quasi-duty to inform law looks like, consider Arizona’s law:

A permittee who carries a concealed weapon, who is required by § 4-229 or 4-244 to carry a permit and who fails to present the permit for inspection on the request of a law enforcement officer commits a violation of this subsection and is subject to a civil penalty of not more than $300.

Ariz. Rev. Stat. Ann. § 13-3112

Unlike Michigan’s law, Arizona does not require someone to immediately and affirmatively inform the officer they have a firearm, unless the officer asks.

No Duty To Inform States 

The final category of states are classified as “no duty to inform” states. In these states there are no laws that require a gun owner to affirmatively inform an officer if they have a firearm. Additionally, there are also no laws that require them to respond or provide a permit if asked about the presence of a firearm.

Other Things To Know Regarding Police Encounters

Are You Required To Respond When Asked About Firearms?

It is important to note that if you are in a “no duty to inform state,” failure to inform an officer or respond when asked if you have a firearm does not constitute probable cause to search a vehicle. (United States v. Robinson, 814 F.3d 201, 210 (4th Cir. 2016)). In fact, the courts have repeatedly held that a person who is approached by law enforcement is free not to entertain the encounter when the officer does not otherwise have an adequate basis to detain or arrest the person. An unwillingness to communicate with law enforcement is not a basis to initiate a detention. (Fla. v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)).

What Are Stop and Identify Laws?

Even if you are not legally obligated to inform the officer of your firearm, that doesn’t mean you are not legally required to communicate other information to the officer. Information you may be required to convey could include your name, date of birth, or address. At the time of this publishing, 25 states have “stop and identify” laws. These laws authorize police to lawfully order people whom they reasonably suspect of committing a crime to state their name and sometimes provide photo identification or their date of birth. These laws do not, by themselves, require the disclosure of firearms.

Although it is not the focus of this topic, if you desire to be fully informed about police encounter laws, you should verify each particular state’s “stop and identify” laws prior to traveling.

Even if Not Required, Should You Inform an Officer of Your Firearm?

Knowing one is generally not required to inform an officer about a firearm in “no duty to inform” states, the question often arises of whether one should inform an officer. The answer is maybe. Obviously, it is highly encouraged to be courteous and respectful when interacting with law enforcement. However, there are a few points of consideration related to informing an officer about a firearm that you should be aware of.

A potential outcome of informing an officer that you have a firearm is that the officer might then have the ability to perform what is called a Terry stop or a Terry frisk (called the “Terry doctrine”). The Terry doctrine stems from a 1968 Supreme Court case, Terry v. Ohio. In Terry, the United States Supreme Court held that an officer may perform a protective frisk and search pursuant to a lawful stop when the officer reasonably believes a person is “armed and presently dangerous to the officer or others” (392 U.S. 1, 24, 88 S.Ct. 1868, 20 L. Ed. 2d 889 (1968)). This also gives the officer authority to temporarily disarm the permit holder “in the interest of officer safety.” The Court did caution that a search “is a serious intrusion upon the sanctity of the person” and should not be taken lightly. Still, the basis for the search itself is largely left up to the officer’s discretion once he is made aware of the presence of a weapon.

This issue was recently highlighted in a 4th Circuit Court of Appeals case, United States v. Robinson. In Robinson, the court extended the Terry doctrine further than it previously had. In its ruling, the court ruled that not only does disclosing a firearm serve as a waiver of your Fourth Amendment rights, but also ruled firearms are “categorically dangerous” and thus merit a warrantless search/frisk:

…an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene… It is also inconsequential that the passenger may have had a permit to carry the concealed firearm. The danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon, not from any illegality of the weapon's possession.

United States v. Robinson, 846 F.3d 694, 696 (4th Cir. 2017)

As Judge Wynn ominously wrote in his concurring opinion to that case, “…those who chose to carry firearms sacrifice certain constitutional protections afforded to individuals who elect not to carry firearms.”

It is always recommended that you remain calm and respectful while interacting with law enforcement. Police officers, by and large, support the shooting sports community and are members of it themselves. We strongly encourage everyone to treat law enforcement with respect. With a proper understanding of the law, however, you can treat someone respectfully without waiving your constitutional rights.

When buying or selling a firearm, both federal and state laws must be followed. The laws regarding the private party purchase/sale of firearms vary greatly by state, and those laws are covered in more detail under the individual state law pages of this database. Federal laws related to private sales (e.g. firearms sold by persons other than federally licensed firearm dealers or “FFLs”) are discussed below.

TO WHOM MAY YOU SELL / GIVE A GUN?

Under 18 U.S.C. § 922(a)(5), a private party may sell a firearm to a resident of the same state if two conditions are met: (1) the seller and buyer must be residents of the same state, and (2) the seller must not know or have reasonable cause to believe that the buyer is prohibited from receiving or possessing firearms under federal law, as outlined in 18 U.S.C. § 922(g). 

Likewise, a person may only acquire a firearm within the person’s own state, except that he or she may purchase or otherwise acquire a rifle or shotgun in person at an FFL’s premises in any state, provided the sale complies with state laws applicable in the state of sale and the state where the purchaser resides. See 18 U.S.C. § 922(a)(3) and (5); § 922(b)(3); 27 C.F.R. § 478.29 and § 478.30.

FEDERAL LAW ON SELLING FIREARMS (18 U.S.C. § 921, § 922, § 923)

Under the Gun Control Act of 1968, any person who is “engaged in the business” of selling firearms must be a federally licensed firearm dealer (FFL).  One is "engaged in the business” of selling firearms if he or she "devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms." FFLs have several duties they must fulfill prior to selling a firearm, including performing a background check and maintaining meticulous records of all sales.

Excluded from the federal requirements (and thus, the federal recordkeeping/background checks) are private parties who “make occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sell all or part of his personal collection of firearms."

Thus, under federal law, a private party is not required to perform a background check, inspect a purchaser's identification, or keep a record of the sale of a firearm. However, state laws may impose such a duty.

LEGAL UPDATE: On April 10, 2024, the U.S. Attorney General signed a final rule that changed how the ATF interprets private party firearm sales (ATF Rule 2022R-17F). The rule more expansively defines who would be considered “Engaged in the Business” as a dealer in firearms. Under the new rule, if you are included within the broader definition of one who is "Engaged in the Business" of selling firearms, you must be a federally licensed firearm dealer. You can read more about the ATF’s interpretation of the new rule by clicking here.