Though they are not nearly as dangerous as traditional firearms, there are serious risks associated with using non-powder and toy guns. Proposals to reduce the risks associated with these devices have been opposed by the gun lobby.
Non-powder guns, including BB, air, and pellet guns, expel projectiles (usually made of metal or hard plastic) through the force of air pressure, CO2 pressure, or spring action. Though they are different from firearms, which use gunpowder to generate energy to launch a projectile, they are inherently dangerous weapons which can injure or kill. Because these guns are often marketed toward children, non-powder firearms have been shown to cause particular harm in pediatric populations, with injuries often requiring medical treatment.1 Additionally, the Consumer Product Safety Commission reports that BB guns and pellet rifles cause an average of at least four deaths per year.2
Toy guns is a generic term that encompasses a wide range of non-firing firearm replicas, from imitation firearms to gun-like toys (including cap pistols and water guns) that are marketed to children. Since some toy guns can be mistaken for actual firearms, federal law requires that certain of these “lookalike” firearms be visually differentiable from real firearms.
In addition to the dangers that can occur when non-powder guns are fired, both non-powder and toy guns can be dangerous because they may be mistaken for firearms—which can create confusion for law enforcement, and in some cases, lead to tragic results.3
- Between 2015 and 2018, police shot 146 people brandishing non-powder and toy firearms.4
- The gun lobby has pushed back against attempts by legislators to regulate the appearance of non-powder and toy guns to reduce these deadly mistakes.5
Summary of Federal Law
Although there are no federal laws regulating their transfer, possession, or use, non-powder guns are, unlike firearms, regulated by the Consumer Product Safety Commission (CPSC).6 Hence, non-powder guns are subject to generalized statutory limitations involving “substantial product hazard[s]” and articles that create “a substantial risk of injury to children.”7 The CPSC has not adopted specific mandatory regulations in this area, although the BB gun industry has adopted voluntary standards regarding non-powder guns.8
Federal law prevents states from prohibiting the sale of traditional BB or pellet guns, but explicitly allows states to prohibit the sale of these weapons to minors.9 Courts have interpreted these provisions to allow states to impose other regulations on the sale of traditional BB or pellet guns so long as the regulations fall short of prohibitions on sale.10
Additionally, federal law regulates the design of “lookalike firearms,” which include “toy guns, water guns, replica nonguns, and air-soft guns firing nonmetallic projectiles.”11 Every lookalike firearm must: (1) have a permanently affixed blaze orange plug inserted in the firearm’s barrel, (2) have a similar marking on the exterior of the barrel, (3) be constructed entirely of transparent or translucent materials, or (4) be covered in certain bright colors.12 This federal law supersedes any state or local law which provide for markings or identification that are inconsistent with these requirements.13
Summary of State Law
The following jurisdictions regulate the transfer, possession, or use of non-powder guns to some degree:14
District of Columbia19
Description of State Laws Regulating Non-powder Guns
Although additional regulations exist, non-powder gun regulations can generally be broken down into the following categories:
- Defining All Non-powder Guns as Firearms: New Jersey and Rhode Island take this approach, which generally ensures that all non-powder guns are kept out of the hands of children (absent direct adult supervision) and that felons and other individuals prohibited from possessing firearms are similarly barred from possessing non-powder guns.39
- Treating Certain Non-powder Guns as Firearms: Illinois and Michigan define high-power and/or large caliber non-powder guns as firearms. Illinois excludes from the definition of firearms non-powder guns of .18 caliber or less and non-powder guns with a muzzle velocity of less than 700 feet per second. Michigan excludes the following non-powder guns from the definition of firearms: smooth bore rifles or handguns designed and manufactured exclusively for propelling BBs, not exceeding .177 caliber by gas or air.
- Defining Non-powder Guns as Dangerous Weapons: Connecticut, Delaware, and North Dakota list some or all non-powder guns as dangerous weapons. However, dangerous weapons laws tend to be much less comprehensive than laws regulating firearms. In Connecticut, it is unlawful to carry a dangerous weapon, although various exceptions exist for BB guns.40 It is also unlawful to transport a dangerous weapon in a vehicle without a permit. Delaware prohibits possession of dangerous weapons, which are defined to include certain large caliber BB or air guns. North Dakota applies enhanced penalties for the improper use or possession of dangerous weapons.
- Regulating Non-powder Guns with Respect to Minors: Most states that regulate non-powder guns do so by prohibiting transfers to children or by prohibiting or limiting where the guns can be possessed or used, although the restrictions are often inapplicable with parental consent or adult supervision. Depending on the state, the term “child” is defined as being anywhere from under 18 years of age to under 12 years of age. A number of states also criminalize the use or possession of non-powder guns on or near school property, or provide that such use or possession shall be grounds for expulsion.
States that Impose Age Restrictions on Possession, Use, or Transfer of Non-Powder Guns
For relevant citations, see list of jurisdictions that regulate non-powder guns above.
District of Columbia
States that Explicitly Regulate Possession of Non-Powder Guns on School Grounds
For relevant citations, see list of jurisdictions that regulate non-powder guns above.
Selected Local Law
New York City
New York City prohibits the sale or possession of any air pistol or air rifle (defined as any instrument in which the propelling force is air or a spring) without an appropriate license. Persons who are licensed by the city to sell air pistols and rifles may do so only if they deliver the weapons to a location outside the city or the transferee has an air pistol or rifle license. However, the use of air pistols and rifles in connection with “an amusement licensed by the department of consumer affairs” or at a shooting range is permitted. Air pistol or rifle dealers must keep records detailing the name and address of each purchaser and the place of delivery for each sale.41
Key Legislative Elements
The features listed below are intended to provide a framework from which policy options may be considered. A jurisdiction considering new legislation should consult with counsel.
- Strict limits are imposed on the possession and sale of non-powder guns within the jurisdiction (New York City).
- If the sale and possession of non-powder guns are permitted within the jurisdiction, the most comprehensive approach is to define all non-powder guns as firearms, so that restrictions on purchase and possession by minors, felons, and other prohibited purchasers will apply (New Jersey, Rhode Island).
- Alternatively, with respect to high-power and large caliber non-powder guns only:
- All high-power and large caliber non-powder guns are defined as firearms, so that restrictions on purchase and possession by minors, felons, and other prohibited persons will apply (Illinois, Michigan).
- All transfers of high-power and large caliber non-powder guns are required to be made through a licensed firearms dealer, and the dealer is required to report all transfers to law enforcement.
- There is a registration mechanism for owners of high-power and large caliber non-powder guns.
- Minors are prohibited from possessing non-powder guns unless under direct adult supervision.
- M Veenstra, et al., “Nonpowder Firearms Cause Significant Pediatric Injuries,” Journal of Trauma and Acute Care Surgery 78, no. 6 (2015). See also, Krystin Miller, et al., “Pediatric Sports– and Recreation–Related Eye Injuries Treated in US Emergency Departments,” Pediatrics 141, no. 2 (2018). ⤴︎
- “CPSC Safety Alert: BB Guns Can Kill,” U.S. Consumer Product Safety Commission, January 1, 2012, http://www.cpsc.gov/cpscpub/pubs/5089.pdf. From July 1993 to July 2003, non-powder guns caused at least 40 deaths nationwide. Jennifer E. Keller, et al., “Air-Gun Injuries: Initial Evaluation and Resultant Morbidity,” American Surgeon 70, no.6 (2004): 484. ⤴︎
- U.S. Consumer Product Safety Commission, “CPSC Chairman Challenges Toy Industry to Stop Producing Look-Alike Guns,” US Consumer Product Safety Commission, October 17, 1994, https://www.cpsc.gov/newsroom/news-releases/1995/cpsc-chairman-challenges-toy-industry-to-stop-producing-look-alike-guns. ⤴︎
- Calculated by Giffords Law Center using the Washington Post’s Fatal Force database, which tracks fatal shootings of civilians by police. “Fatal Force,” The Washington Post, last accessed July 30, 2019, https://wapo.st/2ZoZ5g4. ⤴︎
- Susan Ferriss, “Fatal Texas Shooting Highlights Struggle to Regulate Replica Guns,” The Center for Public Integrity, May 19, 2014, https://publicintegrity.org/education/fatal-texas-shooting-highlights-struggle-to-regulate-replica-guns/; “Words You Can’t Say,” This American Life, February 2, 2018, https://www.thisamericanlife.org/637/words-you-cant-say. ⤴︎
- See 15 U.S.C. § 2052(a)(5)(E) (exempting firearms from the definition of “consumer product” subject to the authority of the Commission); Rev. Rul. 67-453, 1967-2 C.B. 378 (stating that air rifles and air pistols are not part of that exemption); CPSC Advisory Opinion No. 127; CPSC Safety Alert: BB Guns Can Kill, (Jan. 1, 2012), http://www.cpsc.gov/CPSCPUB/PUBS/5089.pdf; CPSC Recall Alert: Air Rifles Recalled by Air Venturi Due to Ability to Fire With Safety Switch On (Apr. 18, 2012), http://www.cpsc.gov/en/Recalls/2012/Air-Rifles-Recalled-by-Air-Venturi-Due-to-Ability-to-Fire-With-Safety-Switch-On (Recalling certain air rifles because “[t]he safety switch can be overcome by pulling the trigger with force, allowing the rifle to fire, resulting in a serious injury or death.”). ⤴︎
- 15 U.S.C. §§ 1274(c)(1), (2), and (e); 2064. The CPSC has taken at least one enforcement action against a manufacturer of a non-powder gun on the grounds that the gun created a “substantial product hazard” and “a substantial risk of injury” to children. See Daisy Manufacturing Co; Complaint, 66 Fed. Reg. 56,082 (Nov. 6, 2001) (alleging that non-powder guns manufactured by Daisy Manufacturing Co. present a substantial product hazard and a substantial risk of injury to children); Daisy Manufacturing Company Provisional Acceptance of Settlement Agreement and Order, 68 Fed. Reg. 68,876 (Dec. 10, 2003) (accepting on behalf of the Consumer Product Safety Commission a consent agreement that imposed a series of labeling requirements on non-powder guns). ⤴︎
- See ASTM Subcommittee on Standards, American Society for Testing and Materials, Standard Consumer Safety Specification for Non-Powder Guns, http://www.astm.org/Standards/F589.htm; ASTM Subcommittee on Standards, American Society for Testing and Materials, Standard Consumer Safety Specification for Non-Powder Gun Projectiles and Propellants, http://www.astm.org/Standards/F590.htm. See also S.K. Presnell, Comment: Federal Regulation of BB Guns: Aiming to Protect Our Children, 80 N.C. L. Rev. (2002), 975, 1001. ⤴︎
- 15 U.S.C. § 5001(g)(ii). ⤴︎
- See Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Christie, 2010 U.S. Dist. LEXIS 59139 (D. N.J. 2010) (upholding the application of New Jersey’s one-gun-a-month law to BB guns); State v. Rackis, 755 A.2d 649 (N.J. Super. Ct. App. Div. 2000) (upholding the application of New Jersey’s permitting requirement to BB guns). But see Coal. of N.J. Sportsmen v. Florio, 744 F. Supp. 602 (D. N.J. 1990) (holding that New Jersey’s assault weapon ban could not be applied to the sale of BB guns). ⤴︎
- 15 U.S.C. § 5001(c). ⤴︎
- 15 U.S.C. § 5001(b); 15 C.F.R. § 272.1 et seq. ⤴︎
- 15 U.S.C. § 5001(g). ⤴︎
- This summary only addresses non-powder guns. The Law Center has not completed an analysis of state and local laws governing toy and/or imitation firearms. ⤴︎
- Cal. Penal Code §§ 171.7, 626.10, 16250, 16700, 19910-19915, 20150-20180; Cal. Gov’t Code § 53071.5. ⤴︎
- Colo. Rev. Stat. §§ 22-33-102(4)(b), 22-33-106(1)(d)(I). ⤴︎
- Conn. Gen. Stat. §§ 29-38, 53-206(a), 53a-3(6), 53a-217b. ⤴︎
- Del. Code Ann. tit. 11, §§ 1445, 1457. ⤴︎
- D.C. Mun. Regs. tit. 24, §§ 2301 – 2302. ⤴︎
- Fla. Stat. Ann. § 790.22. ⤴︎
- 430 Ill. Comp. Stat. 65/1.1, 720 Ill. Comp. Stat. 5/24.8-0.1 – 8-6. ⤴︎
- Me. Rev. Stat. tit. 17-A, § 554. ⤴︎
- Mass. Gen. Laws ch. 269, §§ 12A, 12B. ⤴︎
- Mich. Comp. Laws §§ 750.222(d), ), 752.891. ⤴︎
- Minn. Stat. §§ 609.66, 624.7181. ⤴︎
- Miss. Code Ann. § 97-37-17(4), (5). ⤴︎
- N.H. Rev. Stat. Ann. § 193:13. ⤴︎
- N.J. Stat. Ann. §§ 2C:39-1(f), 2C:39-5b, 2C:39-6e. ⤴︎
- N.Y. Penal Law §§ 265.05, 265.06. ⤴︎
- N.C. Gen. Stat. §§ 14-316, 14-269.2, 153A-130. ⤴︎
- N.D. Cent. Code §§ 12.1-01-04(6), 62.1-01-01(1). ⤴︎
- Okla. Stat. tit. 21, § 1283. ⤴︎
- 18 Pa. Cons. Stat. § 6304. ⤴︎
- R.I. Gen. Laws § 11-47-2(3). ⤴︎
- S.D. Codified Laws § 13-32-7. ⤴︎
- Va. Code Ann. §§ 15.2-915.4, 22.1-277.07. ⤴︎
- Wash. Rev. Code Ann. § 9.41.280(1)(e). ⤴︎
- Wis. Stat. § 948.61. See also In the Interest of Michelle A.D., 512 N.W.2d 248 (Wis. Ct. App. 1994) (finding that a BB gun is a dangerous weapon). ⤴︎
- See also State v. Fleming, 724 N.W.2d 537 (Minn. Ct. App. 2006) (finding a BB gun fell within the definition of “firearm”. ⤴︎
- Other states, such as Illinois and Minnesota, also restrict the carrying of BB guns in public places. California prohibits displaying a BB gun in a public place, with certain exceptions. ⤴︎
- New York, N.Y., Admin. Code § 10-131(b). ⤴︎