About That Travel Business – Read This First

[Ed: You may have read our recent IGOTD post regarding the misadventures of Tea Party Patriot honcho Mark Meckler who was arrested while trying to check his handgun at LaGuardia. The subsequent comments contained a goodly amount of firmly held beliefs and helpfully intended advice about what Meckler did and didn't do wrong, how the FOPA did and didn't protect him, the color of his tie and plenty of other mostly incorrect information. Sure, we've had posts covering flying with your heaters before. But as Mr. Meckler found out - the hard way - there's more to traveling with a gun than just what happens at the airport. As such, we thought some straight skinny from a, you know, lawyer would be helpful. I know, I feel the same way, but Ralph's a retired lawyer now and he's one of us, so cut him some slack, OK?]

Cunard Lines once claimed that “getting there is half the fun.” The slogan was later appropriated by an airline to pimp air travel. What the airline didn’t explain was that when it comes to flying with firearms, getting there is half the danger.

The feds have rules, the airlines have rules, the airports have rules and the states have rules. They are not necessarily consistent or sensible, but all those rules have one thing in common – the well-meaning but unwary traveler with firearms who messes up even a little can be in a world of hurt.

Nobody who travels with a pet would just show up at the gate with a beloved family friend expecting everything to go off without a hitch, as if by magic. Flying with Fido requires research, planning and the proper gear. A loving pet owner would fuss and fret, make lists, double check and then check again. Likewise, flying with firearms requires at least as much sound preparation.

Let’s start the discussion with a disclaimer. I am a lawyer. I’m retired. You didn’t pay me for my advice and you’re not my client. This isn’t legal advice; it’s just words to the wise, one gunny to another. Got it?

Okay, then. Consider the following hypothetical. Joe, a resident of New Hampshire who has a New Hampshire concealed carry license, wants to visit the old farts folks in Florida. For his own protection, Joe wants to have his trusty Glock 17 by his side. He’s also excited about having a pig hunt on his family’s private land, so he wants to bring his cherry SKS.

Joe did his research. He knows that Florida recognizes his New Hampshire concealed carry license, so Joe will be able to carry his pistol when he arrives in the Sunshine State. Not having a Florida hunting license is no problem. Joe checked the Florida regulations, and it turns out that he can hunt pigs on private land without a Florida hunting license.

Joe visited the TSA’s website and learned the rules. http://www.tsa.gov/travelers/airtravel/assistant/editorial_1666.shtm. He stuffed the two firearms into two lockable aluminum boxes, one for his SKS and another for his pistol. He checked his airline’s regulations. He knows that his airline limits him to seven pounds of ammo even though federal rules allow up to eleven pounds. He’s only bringing 17 rounds of pistol ammo for his Glock, which is one magazine-full, and 20 rounds for his SKS so he’ll have extra for sighting-in.

He weighed the ammo and he’s well under the airline’s weight limit. The ammo is still in the original cardboard boxes, and Joe wrapped them with elastic bands just to be on the safe side. He locked the pistol ammo in the rifle case and the rifle ammo in the pistol case so if a thief stole one or the other, he wouldn’t be able to deploy the guns too easily. He reviewed the Firearms Owners Protection Act, § 926A of which provides that:

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 . . . .

Joe is an honest, law-abiding Joe who wants to do the right thing. And he’s careful, too. He filled up his tank in New Hampshire the night before, so he’d have plenty of gas for the trip. He placed both locked containers in the trunk of his car and set off for Logan Airport in Boston. He allowed himself enough time to get to the airport two hours early, just as his airline recommended. He proceeded through Massachusetts within the speed limits. He didn’t even stop to pee on the way to the airport, despite protests from his prostate. And he may have broken a whole bunch of laws.

WTF?

First of all, FOPA is a trap for the unwary. It requires that the firearm not be “readily accessible.” That’s why Joe placed it in the trunk of his car, in locked boxes. But FOPA is not a federal license to transport arms interstate. In fact, no such license exists. As the NRA warns,

Travelers should be aware that some state and local governments treat this federal provision as an “affirmative defense” that may only be raised after an arrest.

Got that? Joe can claim the benefit of FOPA, but he has to be arrested first, at least in the Third Circuit. The NRA also states that the Third Circuit ruled that FOPA`s protections only apply while the firearm is not readily accessible to the traveler, and that a firearm is readily accessible during a hotel stay.

Note: the holding in the Revell v. Port Authority case referenced above turned on the traveler’s hotel stay because it was unclear whether he had possession and control of the gun while he was sitting in the hotel van. The court conceded that there was no proof that the traveler opened the case when he arrived at the hotel, but everyone agreed that he had the keys.

Massachusetts honors FOPA, so Joe had the right to pass through Massachusetts from New Hampshire to Florida. Had Joe been driving from NH to FL and never stopped in Massachusetts, he’d be golden, but that’s not what happened.

Here are Joe’s FOPA problems: Joe didn’t just pass through Massachusetts, he traveled to Massachusetts, where he stopped without benefit of a Massachusetts license. Then, he removed the guns from his trunk. Say it ain’t so, Joe!

FOPA’s right of interstate safe passage may well have ended when his automobile journey ended in Massachusetts. FOPA did not give Joe the right to transport guns in Massachusetts, only through it from one state to another. There is a big difference. Joe couldn’t claim that his stop was either accidental or instantaneous, either one of which might have helped if he kept his hands off the guns. But no, Joe’s stop was both planned and lengthy. Strike One.

Nothing in FOPA allowed Joe to carry the guns in his hands, period. They had to stay in the trunk. The locked boxes don’t help Joe’s case, since he had the keys. So Joe’s firearms became “readily accessible” when he removed them from his trunk, when FOPA only applies to guns that are not readily accessible. Strike Two.

Let’s assume for the sake of argument that Joe’s FOPA rights ended when he parked his car at Logan Airport and he took possession of the guns when he grabbed them for check-in. Without FOPA’s safe harbor to rely on, Joe was required to comply with Massachusetts law. Massachusetts has its own “peaceable journey” statute, but it’s restrictive. Under Massachusetts law, a person licensed elsewhere can carry an unloaded long gun in a locked trunk “in or through the commonwealth.” Handguns are a different story, though.

Section 131G: Any person who is not a resident of the commonwealth may carry a pistol or revolver in or through the commonwealth for the purpose of taking part in a pistol or revolver competition or attending any meeting or exhibition of any organized group of firearm collectors or for the purpose of hunting; provided, that such person is a resident of the United States and has a permit or license to carry firearms issued under the laws of any state, district or territory thereof which has licensing requirements which prohibit the issuance of permits or licenses to persons who have been convicted of a felony or who have been convicted of the unlawful use, possession or sale of narcotic or harmful drugs; provided, further, that in the case of a person traveling in or through the commonwealth for the purpose of hunting, he has on his person a hunting or sporting license issued by the commonwealth or by the state of his destination.

Joe’s in trouble because of the rifle, too.

Section 129C: No person, other than a licensed dealer or one who has been issued a license to carry a pistol or revolver or an exempt person as hereinafter described, shall own or possess any firearm (note: under Massachusetts law, a “firearm” is a handgun), rifle, shotgun or ammunition unless he has been issued a firearm identification card by the licensing authority pursuant to the provisions of section one hundred and twenty-nine B.

Uh-oh. Joe was just going to the airport, not an IDPA shoot. And since he wanted to hunt hogs on his peeps’ private land, he didn’t need a Florida hunting license, so he didn’t have one. And he doesn’t have an FID for that rifle or a Massachusetts handgun license, either. Strike three.

But wait, there’s more. And it’s all bad. Logan Airport is in Boston, and Boston has its own rules. And one of them is: it’s illegal to possess an SKS in Boston, even though it’s legal in the rest of the Commonwealth. Ain’t that a kick in the nuts?

Oh, and that Glock 17, with its “high capacity feeding device” that holds more than ten rounds? That’s a violation of the Commonwealth’s “assault weapons” ban. Strikes Four and Five.

Enough of the law school exercises. My head is spinning, and probably so is yours. I think we can all agree that Joe tried to do the right thing, and the Commonwealth might agree with us. The forgiving authorities just might relieve Joe of his guns and let Joe go on his peaceful way. Or maybe not.

In the New Jersey case, the traveler was arrested and held overnight. Eventually, the charges were dismissed, but the poor guy forfeited his gun (not his gun rights). Despite what people think they know, Massachusetts is way more 2A friendly New Jersey. Well okay, that’s damning with faint praise. The main thing is, if the Commonwealth actually chose to prosecute Joe, he’d be screwed.

Joe would need to hire a good lawyer and spend about twenty large fighting the case. Among other defenses, his lawyer would interpose the famous “pure heart and empty head” defense and in the end, Joe would probably be allowed to plead to a non-gun misdemeanor. He’d pay a handsome fine, his firearms would be forfeited to the smelter and his case would be filed. A year later, his record would be wiped, so Joe would end up a poorer but wiser man and might even retain his gun rights. Or he’d hire a not-so-good lawyer and do at least a year of mandatory jail time.

There are lessons to be learned from this intellectual exercise.

First, there’s FOPA. Placing too much reliance on FOPA is a ticket to prison. The statute’s “peaceable journey” provision reflects the fed’s power over interstate commerce. That power does not extend to intrastate commerce. There may not be a bright line separating interstate commerce from intrastate commerce, and to please all the fans of the 10th Amendment, FOPA is being narrowly construed. So why would anyone rely on FOPA to save their ass from arrest and imprisonment?

It always amuses me that the first person who says “I’d never trust my life to a Taurus / Chinese shotgun / any caliber that doesn’t start with a 4 / Russian ammunition / a revolver with only 5 rounds” or whatever, and who despises federal authorities, would be the first person to trust his freedom to FOPA. That makes no sense.

Instead, think of FOPA as a hall pass and a defense against criminal charges when transporting firearms in the manner required while on a peaceable journey, without stopping.

Consider also that FOPA reaffirms the authority of airlines to transport firearms for travelers without either of them breaking the law. The traveler’s guns are inaccessible because they’re in the hold of the airplane. Even if the plane were to land for refueling in Newark (for example), the traveler would be off the hook because the guns are safely tucked away as FOPA requires. Even changing planes in an antigun jurisdiction causes no problems, since the guns are “checked through” to their final destination and the traveler would not have access to them until his arrival.

There have been situations where passengers have been stranded with their guns in an antigun jurisdiction and were in violation of local laws the minute they took their guns off the baggage carousel. In the Revell case, the Third Circuit offered helpful advice for those travelers. It said:

Section 926 clearly requires the traveler to part ways with his weapon and ammunition during travel; it does not address this type of interrupted journey or what the traveler is to do in this situation. Stranded gun owners like Revell have the option of going to law enforcement representatives at an airport or to airport personnel before they retrieve their luggage. The careful owner will do so and explain his situation, requesting that his firearm and ammunition be held for him overnight. While this no doubt adds to the inconvenience imposed upon the unfortunate traveler when his transportation plans go awry, it offers a reasonable means for a responsible gun owner to maintain the protection of Section 926 and prevent unexpected exposure to state and local gun regulations.

Personally, I would not go to law enforcement authorities. I would go to the airline that dumped me in the midst of heater-hating heathens and I’d make them take control of my guns until I could be on my way again.

I’m all about 2A, but this article isn’t a polemic so please, firebrands, do what you want and save your 2A arguments for the judge. I’m sure he or she will be as enlightened as I would be. I’ve heard the arguments before, I agree with many of them, and hell, I even wrote some of them. This article is about making the journey one that’s safe from prosecution, not how to fight a case.

Here are my suggestions. Take ‘em or leave ‘em. If you choose instead to keep your local lawyer in Rolex watches and Mercedes automobiles, who am I to argue?

For travelers who are going to and from an airport in the jurisdiction where they are licensed, without leaving that jurisdiction, FOPA doesn’t apply and isn’t even needed. Their local license is all the hall pass they require. They should download the airline’s regulations and the local airport regulations. If they follow them faithfully, all should be right with the world. For example, I have an unrestricted carry license in Massachusetts, and when I fly from Logan to Florida, where I am also licensed, I check a gun. It’s just not a big deal if it’s done right.

Travelers who must travel from their licensed home through enemy territory by car, common carrier or Amtrak should be safe if the firearms are locked away in an inaccessible cargo hold and the owner does not stop or take possession of the firearms until he arrives at a destination where his possession is legal. The wise traveler will check the applicable Amtrak and common carrier regulations beforehand.

Drivers should also check local statutes for every state they will be passing through. Some states have liberal “peaceable journey” statutes. I sometimes drive through Rhode Island, where I am not licensed. Rhode Island law prohibits concealed carry by anyone without a RI license. However, Lil Rhody grants an exemption for – holy moly! — concealed carry in a vehicle if the owner is licensed by any other state “provided the person is merely transporting the firearm through the state in a vehicle or other conveyance without any intent on the part of the person to detain him or herself or remain within the state of Rhode Island.” No locked box is required.

There’a another provision of RI law that allows me to transport an unloaded gun in my trunk if I’m going to the Rhode Island gun range. But combining the two is a felony. I cannot carry concealed on my way to the range, and I cannot transport a gun if I intend to stop off in Rhode Island.

Big trouble, however, lies at airports within enemy territory. A well-intentioned auto traveler can accidentally screw up and never be discovered. The same cannot be said at airports where disclosure is a necessary part of checking the guns. So, the first question that an owner should ask himself or herself in such a situation is “why am I checking a gun?”

Why indeed? According to the ATF, “a person may ship a firearm to himself or herself in care of another person in the State where he or she intends to hunt or engage in any other lawful activity. The package should be addressed to the owner. Persons other than the owner should not open the package and take possession of the firearm.”

Joe could have gone to his local UPS office (not a UPS store). After checking and complying with the UPS regulations, he could have shipped his guns to himself, care of Mom and Dad. His gear would have been waiting for him when he arrived in Florida, and he’d be dining on wild boar right now.

Given the airlines’ luggage charges, it might be no more expensive to ship them via UPS. To top it all off, I personally would rather trust my expensive firearms to UPS than to any commercial airline. But that’s just me.