Federal law prohibits the purchase and possession of firearms by people who fall within certain categories, such as convicted felons, domestic abusers, and people with specific kinds of mental health histories.1 Although background checks have prevented over 3 million people in these categories from obtaining guns,2 federal law does not generally include other types of people identified by public health researchers as being at a significantly higher risk than the general population of being dangerous, including:
- Those who have been convicted of violent or gun-related misdemeanors.3
- Those with a history of abusing alcohol or drugs.4
- Those convicted of juvenile offenses.5
- Additional people who have suffered from severe mental illness.6
Expanding state laws to cover these categories of individuals would close a glaring gap in federal law that makes it easier for guns to fall into the wrong hands. A 2012 study of the 13 states with the most lenient firearm possession laws found that almost a third of incarcerated gun offenders were not prohibited from buying the crime gun — but would have been prohibited if their states had adopted stricter standards similar to those in place in a number of other states.7 In the 13 states with lenient gun laws, nothing prevented these firearm offenders from legally purchasing their guns.
Expanding certain categories of prohibited persons would improve the background check system and make it more difficult for high-risk individuals to obtain firearms.
High-Risk Groups for Gun Possession
Violent or Gun-Related Misdemeanants
A study in the Journal of the American Medical Association analyzing purchasers of handguns in California found that purchasers with at least one prior misdemeanor conviction were more than seven times as likely as those with no prior criminal history to be charged with a new offense after a handgun purchase.8
Numerous studies have associated alcohol abuse with a person’s tendency to engage in violence and other risky behavior.9 Research demonstrates that alcohol consumption reduces shooting accuracy and impairs judgment about the propriety of using a gun.10 Gun owners are more likely to drink and drive than those with no firearms at home, and those who possess firearms are more likely to have more than 60 drinks per month.11 In addition, heavy alcohol use is more common among firearm owners who keep their guns unlocked and loaded.12 In an average month, an estimated 8.9 to 11.7 million firearm owners binge drink, and among men, deaths from alcohol-related firearm violence equal those from all alcohol-related motor vehicle crashes.13
A body of research shows that the illegal use of controlled substances and involvement in illegal drug markets are strongly associated with a heightened risk of violence.14 While federal law prohibits possession of firearms by any “unlawful user of or addicted to a controlled substance,” records identifying these individuals are rarely reported. For more information, see our summary on Background Check Procedures.
Research also indicates that individuals convicted of offenses at a young age are likely to commit further acts of violence as adults. For example, a study analyzing low-income, minority youth in Chicago found that those who were arrested before age 18 had a 38% higher likelihood of a subsequent felony conviction by age 26 when compared with those who had not been arrested.15
Dangerously Mentally Ill
Federal law prohibits firearm possession by individuals who have been “committed to a mental institution” or “adjudicated as a mental defective.” This prohibition, however, does not include many other individuals known to be dangerously mentally ill.16 A study by Mother Jones of 62 mass shootings between 1982 and 2012 found that 38 of the shooters displayed outward signs of mental health problems prior to the killings.17 For more information, see our Commonsense Solutions Toolkit, How State Laws Can Reduce Gun Deaths Associated with Mental Illness.
Individuals on the Terror Watch List
Federal law does not prohibit suspected terrorists from purchasing or possessing firearms. Individuals on the terror watch list tried to buy guns and explosives 2,477 times between 2004 and 2015. Of those, 2,265 were allowed to make the purchase—more than 91%—because the person did not fall into a prohibited category. The FBI was only able to block 212 of these sales from going through.18 Suspected terrorists have used firearms in a number of high-profile shootings, such as the massacre in November 2009 at Fort Hood, Texas (13 killed and 30 injured).19
Americans broadly support laws to keep guns away from dangerous individuals. A national poll conducted for the New England Journal of Medicine in January 2013 found that strong majorities of Americans support a 10-year prohibition on gun possession for people convicted of the following crimes:
- Any serious crime as a juvenile: 83.1% support (including 80% of gun owners).
- Any two or more crimes involving alcohol or drugs within a 3-year period: 74.8% support (including 70.5% of gun owners).
- Publicly displaying a gun in a threatening manner: 71.1% support (including 71.3% of gun owners).
- Carrying a concealed gun without a permit: 57.8% support (including 49% of gun owners).
- Assault and battery, even if it does not result in serious injury or involve a lethal weapon: 53% support (including 48.5% of gun owners).20
In addition, 74.5% of Americans support laws requiring health care providers to report people who threaten to harm themselves or others to the background check system to prevent them from having a gun for six months.21
A different poll found that both NRA members (82%) and non-NRA member gun owners (86%) support laws prohibiting people on terrorist watch lists from purchasing guns. Sixty-one percent of NRA members and 69% of non-NRA member gun owners strongly support this proposal.22
For information about prohibitions against gun possession by domestic abusers, see our summary on Domestic Violence and Firearms. For information about age restrictions for gun possession, see our summary on the Minimum Age to Purchase and Possess Firearms.
Summary of Federal Law
Federal law establishes the baseline regarding the types of persons who are ineligible to purchase firearms. The federal Gun Control Act of 1968, codified at 18 U.S.C. § 922, generally prohibits the sale of firearms to any person who:
- Has been convicted of, or is under indictment for, a crime punishable by imprisonment for more than one year;23
- Is a fugitive from justice;
- Is an unlawful user of or addicted to a controlled substance;24
- Though certain states have legalized the use of medical and recreational marijuana, it remains illegal under federal law. Therefore, ATF considers people who use marijuana legally under state law unlawful users of a controlled substance.25
- Is underage;26
- Has been adjudicated as a mental defective or committed to a mental institution;27
- Is unlawfully in the United States or has been admitted to the U.S. under a nonimmigrant visa;
- Has been dishonorably discharged from the military;
- Has renounced his or her U.S. citizenship;
- Is subject to a court order restraining him or her from harassing, stalking or threatening an intimate partner, his or her child or a child of a partner, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; or
- Has been convicted of a misdemeanor offense of domestic violence.28
For more information on people prohibited from purchasing or possessing firearms as a result of mental illness or domestic violence, see our summaries on Mental Health Reporting and Domestic Violence and Firearms.
As discussed below, some states have enacted laws prohibiting additional categories of dangerous people from purchasing or possessing guns. Notably, in 2012 the FBI began accepting into the database it uses for firearm purchaser background checks records identifying people prohibited from purchasing or possessing firearms under state, as well as federal, law.29
Summary of State Law
In addition to laws restricting access to firearms by certain categories of people, a number of states have laws intended to help remove firearms from prohibited people and other manifestly dangerous individuals, as described below.
Laws detailed in the summary on Domestic Violence and Firearms identify domestic abusers who are prohibited from possessing or purchasing firearms, and laws detailed in the summary on the Minimum Age to Purchase and Possess Firearms impose age restrictions on the purchase and possession of firearms.
State Laws That Identify the Individuals for Whom Access to Firearms Is Restricted, or Remove Firearms from Dangerous Individuals
|State||Violent or Gun-Related Misdemeanors 30||Dangerously Mentally Ill31||Drug Abusers32||Alcohol Abusers||Juvenile Offenders|
*States that are marked “handguns” only prohibit people in these categories from purchasing or possessing handguns. These people may still legally purchase and possess rifles and shotguns.
Description of State Laws Governing Prohibited Possessors
The federal categories of prohibited purchasers are the prevailing minimum for all states. States may adopt laws prohibiting additional persons from purchasing and/or possessing firearms. Most states incorporate at least some classes of federally prohibited purchasers into their state laws so that they may prosecute violators. This is important because the vast majority of criminal prosecutions occur at the state level. In some cases states apply broader standards than federal law, or designate additional classes of prohibited persons. State provisions that implement or go beyond federal law are described below:
Felons and Misdemeanor Offenders
All states except Vermont broadly restrict access to firearms by felons. Vermont law prohibits firearm possession for those who have been “convicted of a violent crime,” which includes crimes like murder, stalking, and domestic assault.84 Most state laws mirror federal law and apply the standard definition of felony to bar persons convicted of crimes punishable by imprisonment for more than one year. Other states prohibit a broader category of offenders. 25 states and the District of Columbia either specifically prohibit the transfer, purchase or possession of firearms to persons convicted of certain designated misdemeanors, or define the disqualifying offenses to include some misdemeanors. Domestic violence misdemeanors are a common category of disqualifying offenses. For more information, see our summary on Domestic Violence and Firearms.
New Jersey, for example, prohibits firearm purchases by persons who have been convicted of a “crime,” defined as an offense punishable by imprisonment in excess of six months. New York includes specified felonies and “serious offenses” including child endangerment, certain kinds of disorderly conduct, and certain kinds of stalking.
California and Connecticut each have a long list of felonies and violence-related or firearm-related misdemeanors that disqualify people from owning firearms. In 2017, California passed a bill prohibiting hate crime misdemeanants from possessing guns for 10 years.85
In Illinois, felony or misdemeanor convictions within the previous five years for battery, assault, aggravated assault, or violation of an order of protection, in which a firearm was used or possessed, are disqualifying offenses.
Prohibiting Stalkers from Buying or Possessing Firearms or Ammunition
Stalking is a strong predictor of future violence. One study of female murder victims in 10 cities found that 76% of women murdered and 85% who survived a murder attempt by a current or former intimate partner experienced stalking in the year preceding the murder. Under current federal law, individuals convicted of felony stalking offenses are prohibited from accessing guns. But individuals convicted of misdemeanor stalking offenses are not prohibited from accessing guns if the stalking offense was not in the context of a domestic relationship. Nine states86 prohibit stalkers from purchasing or possessing guns. Six states87 prevent people subject to domestic violence restraining orders from possessing guns.
Persons with Mental Illness
34 states and the District of Columbia have laws that restrict access to firearms by persons who are mentally ill. While most states use definitions of mental illness similar to the federal Brady Act88 and its implementing regulations, several states have broadened the category of mentally ill persons who are prohibited from purchasing or possessing firearms.89
For example, under federal law, persons who are voluntarily admitted to a mental hospital are not prohibited from possessing firearms.90 The following states have closed this gap by prohibiting firearm purchase or possession by persons who have been voluntarily admitted to a mental hospital within specified time periods: Connecticut (within six months), Illinois (until receiving a certification that he or she is not a danger), Maryland (until receiving “relief” from the firearm disqualification), and the District of Columbia (within five years).91
Several other states define more broadly than federal law those persons who are disqualified from possessing firearms due to mental illness. The following list is not comprehensive.
Illinois includes an extensive list of disqualifying circumstances related to mental illness, including having been a patient in a mental institution, being mentally or developmentally disabled, or being impaired by a mental condition “of such a nature that it poses a clear and present danger to the applicant, any other person or persons or the community.” The phrase “clear and present danger” refers to any person determined by one of a group of designated mental health professionals, school administrators or law enforcement officers to pose a clear and imminent risk of serious physical injury to self or another, or to demonstrate threatening physical or verbal behavior.92 Illinois also provides a process whereby people in these categories can formally seek to have these designations removed.
California law also includes a list of disqualifying factors relating to mental illness, including: communicating a serious threat of violence against an identifiable individual to a licensed psychotherapist or being held for treatment for mental illness for 72 hours, if either event occurred within the last five years. California also provides a process whereby people in these categories can formally seek to have these designations removed.
Maryland law prohibits any person who is suffering from a mental disorder and has a history of violent behavior against others from possessing a firearm unless he or she has received a certification from the Maryland Health Department stating that he or she may possess a firearm.
Hawaii prohibits possession by any person who is or has been diagnosed as having a significant behavioral, emotional, or mental disorder. For more information about mental illness and guns, see our summary on Mental Health Reporting.
Drug and Alcohol Abusers and Misdemeanants
Federal law prohibits persons who are unlawful users of or addicted to a controlled substance from purchasing or possessing firearms. Twenty-nine states and the District of Columbia also prohibit drug abusers, persons convicted of drug-related misdemeanors, and/or persons under the influence of controlled substances from purchasing or possessing some or all firearms. Twenty-one states and the District of Columbia prohibit persons who are alcohol abusers, convicted of alcohol-related misdemeanors, and/or under the influence of alcohol, from purchasing or possessing firearms.
Federal law does not restrict purchases of firearms by persons with juvenile convictions. Twenty-six states prohibit persons with certain juvenile convictions from purchasing or possessing firearms. These laws vary, with some prohibitions ceasing when the person reaches a certain age, and others ceasing after a certain time period has passed.
Federal law does not restrict purchases of firearms by individuals suspected of being involved in terrorist activity or deemed a terrorist by the federal government. In 2013, New Jersey became the first state to enact a law restricting access to firearms by “any person named on the consolidated Terrorist Watch List maintained by Terrorist Screening Center” administered by the FBI.93
Disarming Prohibited Possessors
Federal law does not provide a mechanism for the removal of guns from individuals who have become prohibited from possessing firearms. Most states allow law enforcement to seize firearms when they are discovered in the possession of a person who is in one of the categories listed above. However, only a few states have a procedure for the removal of firearms when individuals become prohibited from possessing them. For more information about this topic, see our page on Disarming Prohibited People.
Many states have a procedure to notify certain domestic abusers about the firearm prohibition or require domestic abusers to surrender firearms when they become prohibited. For further information about such laws, see our summary on Domestic Violence and Firearms. Additional states also require certain other categories of individuals to be notified that they must surrender firearms when they become prohibited from possessing them.94
Removal of Firearms from Individuals Shown to Be Dangerous
California, Connecticut, Indiana, Texas, and Florida provide a procedure by which law enforcement may seize firearms from an individual that the law enforcement officer believes to be dangerous.95 For more information about Connecticut and Indiana’s laws, see the Firearm Removal Laws section of our page on Extreme Risk Protection Orders.
Texas enacted a law in 2013 that authorizes a law enforcement officer who takes a dangerously mentally ill person into custody for emergency transportation to a mental health facility to seize any firearms in the person’s possession. The law enforcement agency may retain the firearms for up to 30 days (longer if the person has been involuntarily committed to a mental health facility).96
California’s law is similar to the law in Texas, except that California requires, rather than simply authorizes, law enforcement to seize firearms in this situation.97 In 2018, Florida adopted a similar law authorizing law enforcement officers to seize firearms and ammunition from people being taken into custody for an involuntary mental health examination.98
More specifically, New York now requires a mental health professional to report a person for whom he or she is currently providing treatment services if the mental health professional determines that the person is likely to engage in conduct that would result in serious harm to self or others. Law enforcement must then determine whether the person is licensed to possess a handgun and, if so, revoke the license. The person is then required to surrender any firearms in his or her possession; if he or she fails to do so, any law enforcement officer may seize them.99
Illinois also enacted a law in 2013 involving the reporting of dangerous people, revocation of gun licenses, and surrender or seizure of firearms. In Illinois, the initial reporting requirement applies not just to mental health professionals, but to certain school administrators and law enforcement officials as well.100 Illinois law is similar to New York law, with clearly dangerous people becoming ineligible to purchase a firearm, their licenses being revoked, and their guns being surrendered or seized.
Other Risk Based Removal Laws
In addition, several states have laws, generally referred to as Extreme Risk Protection Orders (or Gun Violence Restraining Orders), which allow law enforcement officers or family members to petition a court to have firearms temporarily removed from an individual that poses an immediate risk of harm to self or others. For more information on this type of law, see our summary on Extreme Risk Protection Orders.
Finally, a number of states authorize or require law enforcement officers to remove firearms from the scene of a domestic violence incident, in certain circumstances. For more information, see our summary on Domestic Violence and Firearms. For more information about restricting access to firearms by the dangerously mentally ill, see our summary on Mental Health Reporting.
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.
- At a minimum, categories of prohibited purchasers are as extensive as federal law to allow state or local prosecution of violators (Hawaii and Tennessee incorporate all federal categories by reference).
- Access to firearms is restricted for persons with convictions for violent, firearm-related, and other serious misdemeanors, such as hate crimes (25 states, District of Columbia).
- Access to firearms is restricted for people who are dangerous because of mental illness, including people reported as dangerous to themselves or others (California, Illinois, New York, Washington) and people who have been involuntarily hospitalized (California, Connecticut, Illinois).
- Access to firearms is restricted for persons subject to a domestic violence restraining order101 (California, New York, Pennsylvania).
- Access to firearms is restricted for persons who are drug abusers and/or misdemeanants (29 states, District of Columbia).
- Access to firearms is restricted for persons who are alcohol abusers and/or offenders (21 states, District of Columbia).
- Access to firearms is restricted for persons with certain juvenile convictions (26 states).
- Access to firearms is restricted for persons under certain ages102 (California).
- Selling or transferring a firearm to a person who is prohibited from possessing firearms is prohibited103 (California).
- A state agency tracks armed individuals who have become prohibited from possessing firearms (California, Hawaii, Massachusetts) and these individuals must surrender their firearms soon after (Connecticut – 2 business days, Hawaii- 30 days, Massachusetts – without delay); if a prohibited person fails to surrender firearms, law enforcement must seize them (Hawaii).
- A law enforcement officer may seize firearms from a person shown to be dangerous (California, Connecticut, Indiana, Texas).
- A procedure exists to remove firearms from people identified as dangerous by mental health professionals (Illinois, New York), school administrators, or law enforcement officials (Illinois).
- A procedure exists to allow law enforcement officials and family members of a person in crisis to petition a court for an “Extreme Risk Protective Order,” which would allow for the temporary removal of firearms from an individual found to be a significant danger to self or others (California, Washington).
- Individuals on the consolidated Terrorist Watch List, maintained by the FBI, are prohibited from purchasing or possessing firearms (New Jersey).
- 18 U.S.C. § 922(d), (g). ⤴︎
- Jennifer Karberg, et al., “Background Checks for Firearm Transfers, 2015—Statistical Tables,” US Department of Justice: Bureau of Justice Statistics, November 2017, https://www.bjs.gov/content/pub/pdf/bcft15st.pdf. ⤴︎
- Mona A. Wright and Garen J. Wintemute, “Felonious or Violent Criminal Activity That Prohibits Gun Ownership Among Prior Purchasers of Handguns: Incidence and Risk Factors,” 69 J. Trauma (2010): 948, https://www.ncbi.nlm.nih.gov/pubmed/20440225, Garen J. Wintemute, et al., “Subsequent Criminal Activity among Violent Misdemeanants Who Seek to Purchase Handguns: Risk Factors and Effectiveness of Denying Handgun Purchase,” 285 JAMA (2001): 1019, https://www.ncbi.nlm.nih.gov/pubmed/11209172. ⤴︎
- Consortium for Risk-Based Firearm Policy, Guns, Public Health, and Mental Illness: An Evidence-Based Approach for State Policy (Dec. 2013), http://efsgv.wpengine.com/wp-content/uploads/2014/10/Final-State-Report.pdf. ⤴︎
- K. Vittes et al., “Legal Status and Source of Offenders’ Firearms in States with the Least Stringent Criteria for Gun Ownership,” 19 Inj. Prev. (2013): 26, https://www.ncbi.nlm.nih.gov/pubmed/22729164; see also Suh-Ruu Ou et al., “Childhood Predictors of Young Adult Male Crime,” 32 Child Youth Serv. Rev. (Aug. 2010): 1097, http://www.ncbi.nlm.nih.gov/pubmed/20657803. ⤴︎
- Consortium for Risk-Based Firearm Policy, supra, note 4 at 10-11. ⤴︎
- K. Vittes et al., “Legal Status and Source of Offenders’ Firearms in States with the Least Stringent Criteria for Gun Ownership,” 19 Inj. Prev. (2013): 26, https://www.ncbi.nlm.nih.gov/pubmed/22729164. ⤴︎
- Garen J. Wintemute, “Prior Misdemeanor Convictions As A Risk Factor For Later Violent And Firearm-Related Criminal Activity Among Authorized Purchasers Of Handguns,” 280 JAMA (1998): 2083, http://jamanetwork.com/journals/jama/fullarticle/188297; Garen J. Wintemute, et al., “Subsequent Criminal Activity among Violent Misdemeanants Who Seek to Purchase Handguns: Risk Factors and Effectiveness of Denying Handgun Purchase,” 285 JAMA (2001): 1019, https://www.ncbi.nlm.nih.gov/pubmed/11209172. ⤴︎
- Garen J. Wintemute, “Alcohol misuse, firearm violence perpetration, and public policy in the United States.”, Prev. Med. (Apr. 2015), https://www.ncbi.nlm.nih.gov/pubmed/25937594; Garen J. Wintemute, Broadening Denial Criteria for the Purchase and Possession of Firearms: Need, Feasibility, and Effectiveness, in Reducing Gun Violence in America (Daniel W. Webster ed., Johns Hopkins University Press, 2013), 77, 82, http://www.jhsph.edu/research/centers-and-institutes/johns-hopkins-center-for-gun-policy-and-research/resources/digtal_update_Webster_Vernick.pdf; K. Vittes et al., “Legal Status and Source of Offenders’ Firearms in States with the Least Stringent Criteria for Gun Ownership,“ 19 Inj. Prev. (2013): 26, https://www.ncbi.nlm.nih.gov/pubmed/22729164; Mona Wright et al., “Felonious or Violent Criminal Activity That Prohibits Gun Ownership Among Prior Purchasers of Handguns: Incidence and Risk Factors,“ 69 J. Trauma (2010): 948, http://journals.lww.com/jtrauma/Abstract/2010/10000/Felonious_or_Violent_Criminal_Activity_That.37.aspx?trendmd-shared=0. ⤴︎
- Brendan Carr, “A Randomized Controlled Feasibility Trial of Alcohol Consumption and the Ability to Appropriately Use a Firearm,” 15 Inj. Prev. (2009): 409, https://www.ncbi.nlm.nih.gov/pubmed/19959734. ⤴︎
- Garen J. Wintemute, “Association Between Firearm Ownership, Firearm-Related Risk and Risk Reduction Behaviors and Alcohol-Related Risk Behaviors,“ 17 Inj. Prev. (2011): 422, http://injuryprevention.bmj.com/content/17/6/422. ⤴︎
- Id. ⤴︎
- Garen J. Wintemute, “Alcohol misuse, firearm violence perpetration, and public policy in the United States.”, Prev. Med. (Apr. 2015), https://www.ncbi.nlm.nih.gov/pubmed/25937594. ⤴︎
- Educational Fund to Stop Gun Violence, Guns, Public Health, and Mental Illness: An Evidence-Based Approach for State Policy (Dec. 2013), http://efsgv.wpengine.com/wp-content/uploads/2014/10/Final-State-Report.pdf. ⤴︎
- Suh-Ruu Ou et al., “Childhood Predictors of Young Adult Male Crime,” 32 Child Youth Serv. Rev. (Aug. 2010): 1097, http://www.ncbi.nlm.nih.gov/pubmed/20657803. ⤴︎
- Educational Fund to Stop Gun Violence, Guns, Public Health, and Mental Illness: An Evidence-Based Approach for State Policy (Dec. 2013), http://efsgv.wpengine.com/wp-content/uploads/2014/10/Final-State-Report.pdf. ⤴︎
- Mark Follman, Mass Shootings: Maybe What We Need Is a Better Mental-Health Policy, Mother Jones (Nov. 9, 2012), http://www.motherjones.com/politics/2012/11/jared-loughner-mass-shootings-mental-illness. ⤴︎
- Government Accountability Office, Update on Firearm and Explosives Background Checks Involving Terrorist Watch List Records, Letter from Diana C. Maurer, Director, Homeland Security and Justice Issues, Mar. 7, 2016, http://www.feinstein.senate.gov/public/index.cfm/files/serve?File_id=F53C4195-430D-4D8D-ACDE-1EC53E97D0FA&SK=EF4E6FF4158FFA49E570234A3DE8E438. ⤴︎
- Everytown for Gun Safety, Closing the Terror Gap in Gun Background Checks, https://everytownresearch.org/documents/2015/09/closing-terror-gap-gun-background-checks.pdf. ⤴︎
- Colleen L. Barry et al., “Perspective: After Newtown — Public Opinion on Gun Policy and Mental Illness,“ 368 New Eng. J. Med. (March 21, 2013): 1077-1081, http://www.nejm.org/doi/full/10.1056/NEJMp1300512?query=featured_home&&. ⤴︎
- Id. ⤴︎
- Dr. Frank Luntz/Word Doctors for Mayors Against Illegal Guns, America’s Gun Owners Support Common Sense Gun Laws(Dec. 2009): 11, http://gunvictimsaction.org/wp-content/uploads/2011/01/Luntz_Poll_Slides.pdf. ⤴︎
- The term “crime punishable by imprisonment for a term exceeding one year” does not include: 1) any federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or 2) any State offense classified by the laws of the state as a misdemeanor and punishable by a term of imprisonment of two years or less. 18 U.S.C. § 921(a)(20). The term also does not apply to certain situations where the person has had his or her eligibility restored. Id. ⤴︎
- A federal regulation issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) defines “unlawful user of or addicted to any controlled substance” and states “An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year.” 27 C.F.R. § 478.11. ⤴︎
- See Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016); Arthur Herbert, “Open Letter to all Federal Firearms Licensees,” Bureau of Alcohol, Tobacco, Firearms and Explosives, September 21, 2011, https://www.atf.gov/firearms/docs/open-letter/all-ffls-sept2011-open-letter-marijuana-medicinal-purposes/download. ⤴︎
- Additional information about the federal age restrictions for the purchase and possession of firearms is contained in our summary on the Minimum Age to Purchase and Possess Firearms. ⤴︎
- Regulations issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) define “[a]djudicated as a mental defective” to include persons who have been determined to be a danger to themselves or to others, or who lack the mental capacity to contract or manage their own affairs. 27 C.F.R. § 478.11. The regulations further define “[a]djudicated as a mental defective” to include those persons found insane by a court in a criminal case, those persons found incompetent to stand trial, and those persons found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. §§ 850a, 876b. Id. ATF regulations define “[c]ommitted to a mental institution” to mean involuntary commitment. 27 C.F.R. § 478.11. The Obama administration has begun the process to update these regulations. See Amended Definition of “Adjudicated as a Mental Defective” and “Committed to a Mental Institution”, 79 Fed. Reg. 774 (proposed January 7, 2014) (to be codified at 27 C.F.R. § 478.11). ⤴︎
- 18 U.S.C. § 922(b)(1), (d), (x)(1). ⤴︎
- Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Department of Justice, National Instant Criminal Background Check System (NICS) Operations 2012, http://www.fbi.gov/about-us/cjis/nics/reports/2012-operations-report. ⤴︎
- This list does not include states like Virginia whose firearm prohibition for misdemeanants only applies to drug misdemeanants. Those states are included under drug abusers. ⤴︎
- This list does not include states that only prohibit mentally ill individuals from possessing firearms if they have been found not guilty by reason of insanity or incompetent to stand trial in a criminal case. ⤴︎
- A “Yes” is given for any state that restricts firearm access to drug abusers, misdemeanants, and/or persons under the influence of controlled substances. A “Yes” is not given to states, such as South Dakota and Washington, that only prohibit drug users from possessing firearms if they have been convicted of a felony drug offense. ⤴︎
- Ala. Code § 13A-11-72. ⤴︎
- Alaska Stat. § 11.61.200. ⤴︎
- Ariz. Rev. Stat. §§ 13-904(A)(5), (H), 13-3101(A)(7), 13-3102(A)(4), 13-3113. ⤴︎
- Ark. Code §§ 5-73-103, 5-73-132. ⤴︎
- Cal. Penal Code §§ 23515, 29800-30010; Cal. Welf. & Inst. Code §§ 8100, 8101, 8103, 8105. ⤴︎
- Colo. Rev. Stat § 18-12-108. ⤴︎
- Conn. Gen. Stat. §§ 29-36k, 29-36n, 29-38c, 53a-217, 53a-217c. ⤴︎
- Del. Code tit. 11, § 1448, tit. 24, § 903. ⤴︎
- D.C. Code §§ 7-2502.02 – 7-2502.03, 7-2502.08, 22-4503. ⤴︎
- Fla. Stat. §§ 790.23, 790.233, 790.235, 790.065, 394.463(2)(d). ⤴︎
- Ga. Code §§ 16-11-131. ⤴︎
- Haw. Rev. Stat. § 134-7. ⤴︎
- Idaho Code § 18-3316. ⤴︎
- 405 Ill. Comp. Stat. 5/1-116, 405 Ill. Comp. Stat 5/6-103.1 – 6-103.3, 430 Ill. Comp. Stat. 65/1.1, 2, 4, 8 – 8.2, 9 – 9.5. ⤴︎
- Ind. Code §§ 35-47-2-7, 35-47-4-1, 35-47-4-5, 35-47-4-6, 35-47-14-1 – 35-47-14-9. ⤴︎
- Iowa Code §§ 724.15, 724.26. ⤴︎
- Kan. Stat. §§ 21-6301(a)(10), (13), 21-6304. ⤴︎
- Ky. Rev. Stat. §§ 237.070, 527.040. ⤴︎
- La. Rev. Stat. § 14:95.1. ⤴︎
- Me. Rev. Stat. tit. 15, § 393. ⤴︎
- Md. Code Ann., Pub. Safety §§ 5-101, 5-133, 5-133.3, 5-205, 5-206. ⤴︎
- Mass. Gen. Laws ch. 140, §§ 129B, 129C, 129D, 131, 131E, 131F. ⤴︎
- Mich. Comp. Laws §§ 28.422, 28.426, 750.224f. ⤴︎
- Minn. Stat. §§ 518B.01, 609.224, 609.2242, 609.749, 624.713, 624.719. ⤴︎
- Miss. Code §§ 97-37-5, 97-37-13. ⤴︎
- Mo. Rev. Stat. § 571.070. ⤴︎
- Mont. Code §§ 45-8-313. ⤴︎
- Neb. Rev. Stat. § 28-1206. ⤴︎
- Nev. Rev. Stat. § 202.360. ⤴︎
- N.H. Rev. Stat. §§ 159:3, 173-B:5. ⤴︎
- N.J. Stat. §§ 2C:1-4, 2C:39-7, 2C:58-3. ⤴︎
- N.M. Stat. § 30-7-16. ⤴︎
- N.Y. Penal Law §§ 265.00, 265.01, 400.00; N.Y. Crim. Proc. Law §§ 330.20, 380.96; N.Y. Mental Hygiene Law § 9.46. ⤴︎
- N.C. Gen. Stat. §§ 14-402, 14-404, 14-415.1, 14-415.3, 14-269.8. ⤴︎
- N.D. Cent. Code § 62.1-02-01. ⤴︎
- Ohio Rev. Code § 2923.13. ⤴︎
- Okla. Stat. tit. 21, §§ 1283, 1289.10, 1289.12. ⤴︎
- Or. Rev. Stat. §§ 166.250(1)(c), 166.270, 166.470. ⤴︎
- 18 Pa. Cons. Stat. § 6105. ⤴︎
- R.I. Gen. Laws §§ 11-47-5, 11-47-6, 11-47-7. ⤴︎
- S.C. Code §§ 16-23-30, 23-31-1040. ⤴︎
- S.D. Codified Laws §§ 22-14-15, 22-14-15.1, 22-14-15.2. ⤴︎
- Tenn. Code §§ 39-17-1307, 39-17-1316, 39-17-1321. ⤴︎
- Tex. Penal Code §§ 46.04, 46.06(a)(3), Tex. Health and Safety Code § 573.001, Tex. Crim. Proc. Code Art. 18.191. ⤴︎
- Utah Code § 76-10-503(1)-(3). ⤴︎
- Va. Code §§ 18.2-308.1:1 – 18.2-308.1:5, 18.2-308.2-18.2-308.2:01(b). ⤴︎
- Wash. Rev. Code §§ 9.41.010, 9.41.040, 9.41.171, 9.41.175, 71.05.182.. ⤴︎
- W. Va. Code § 61-7-7. ⤴︎
- Wis. Stat. §§ 51.20 (13)(cv), 51.45(13)(i)(1), 54.10(3)(f)(1), 55.12(10)(a), 941.29. ⤴︎
- Wyo. Stat. §§ 6-8-102, 6-8-404. ⤴︎
- In 2010, Wyoming enacted a “Firearms Freedom Act” purporting to exempt from federal regulation any firearm manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming. The Act prohibits possession of such firearms by certain mentally ill individuals. ⤴︎
- 13 V.S.A. §§ 4017, 5301. ⤴︎
- 2017 Ca. AB 785; Cal Pen Code § 29805. ⤴︎
- California, Cal. Penal Code §§ 29805, 646.9;
- Connecticut, Conn. Gen. Stat. § 53a-217, 53a-181d;
- Hawaii, Haw. Rev. Stat. Ann. § 134-1, 134-7(b);
- Minnesota, Minn. Stat. § 609.749, subd. 8(a)-(c) (This prohibition lasts for 3 years, but can be increased to last up to the respondent’s lifetime if a firearm was used during commission of the stalking.);
- New York, N.Y. Penal Law §§ 265.00(17)(b), 265.01(4), 120.45, 120.50. (Applies only to long guns. However N.Y. Penal Law §§ 400.00(1) prohibits the issuance of a license to carry handguns to these misdemeanants, effectively prohibiting the possession of handguns as well.);
- North Dakota, N.D. Cent. Code § 62.1-02-01(b), 12.1-17-07.1. (Required only if misdemeanor was committed with a dangerous weapon; the prohibition lasts for five years.);
- Oregon, Or. Rev. Stat. § 166.255(1)(c), 163.732, effective 1/1/19;
- Pennsylvania, 18 Pa. Cons. Stat. Ann. § 6105(b), 2709.1;
- Rhode Island, R.I. Gen. Laws §§ 11-47-5(a)(4)(ii), 11-52-4.2. (Applies only to cyberstalking).
- California, Cal. Penal Code § 646.91(c)(4)(B);
- Florida, Fla. Stat. § 790.401(3)(b), (c)(10); (4)(c). This is an Extreme Risk Protection Order (ERPO), however in Florida, stalking can be a justification for seeking an ERPO;
- Nebraska, R.R.S. Neb. § 28-311.09, 28-1206. This is a harassment protective order. However, Nebraska’s description of stalking includes harassment as an integral component: “Any person who willfully harasses another person or a family or household member of such person with the intent to injure, terrify, threaten, or intimidate commits the offense of stalking. § 28-311.03”;
- Virginia, Va. Code Ann. § 18.2-308.1:4, 18.2 – 60.3. This protective order is issued when the respondent is convicted of stalking;
- West Virginia, W. Va. Code § 53-8-7(a)(2)(A)(ii), (d)(1)(F), 53-8-4(a)(2), 61-2-9a. Authorized if: a weapon was used or threatened to be used in the commission of the offense predicating the petitioning for the order, the respondent has violated any prior order as specified under this article, or the respondent has been convicted of an offense involving the use of a firearm;
- Wisconsin, Wis. Stat. § 813.125(4)(a)(2), 940.32. This is a Harassment protection order. Wisconsin’s definition of harassment includes stalking: Wis. Stat. § 813.125(1)(am)(1).
- 18 U.S.C. § 922. ⤴︎
- Even under state laws defining mental illness more broadly than federal law, states may not properly report mental health records to agencies conducting background checks. Additional information on the availability of mental health records for background checks is contained in our summary on Mental Health Reporting. ⤴︎
- 27 C.F.R. § 478.11. ⤴︎
- Florida enacted a law in 2013 that treats a person as federally prohibited from possessing firearms if a judge or magistrate has classified him or her as a danger based on the fact that he or she was voluntarily committed and the examining physician certified that a petition for involuntary commitment would have been filed if the person had not consented to treatment. 2013 Fla. HB 1355 (Approved by the Governor June 28, 2013), amending Fla. Stat. § 790.065. ⤴︎
- In Illinois, no person may acquire or possess any firearm or ammunition without a valid FOID card. Upon request by the Illinois Department of State Police (DSP), applicants must sign a release waiving any right to confidentiality and requesting disclosure to the DSP of “limited mental health institution admission information” from another state, the District of Columbia or a foreign country. No mental health treatment records may be requested. The information must be destroyed within one year of receipt. 430 Ill. Comp. Stat. 65/4(a)(3). ⤴︎
- N.J. Stat. § 2C:58-3(c)(9). ⤴︎
- Colorado requires the Department of Corrections to notify certain inmates upon discharge that they are prohibited from possessing firearms. Colo. Rev. Stat § 18-12-108. West Virginia requires any person who has been adjudicated as a mental defective or involuntarily committed to a mental institution to be “duly notified” that he or she must surrender any firearms he or she owns. W. Va. Code § 61-7-7. ⤴︎
- In 2009, Alabama amended its law regarding emergency situations to generally authorize a law enforcement officer to disarm an individual if the officer reasonably believes that it is immediately necessary for the protection of the officer or another individual. The officer must return the firearm to the individual before discharging that individual unless the officer arrests that individual for a crime or seizes the firearm as evidence or, at the discretion of the officer, the individual poses a threat to himself or herself or to others. Ala. Code § 31-9-10(d)(2). ⤴︎
- Tex. Health and Safety Code § 573.001, Tex. Crim. Proc. Code Art. 18.191. ⤴︎
- Cal. Welf. & Inst. Code §§ 8102. ⤴︎
- Fla. Stat. §394.463(2)(d). ⤴︎
- N.Y. Mental Hygiene Law § 9.46, N.Y. Penal Law § 400.00. ⤴︎
- 405 Ill. Comp. Stat 5/6-103.3, 430 Ill. Comp. Stat. 65/8, 9, 9.5. ⤴︎
- Additional information about laws governing prohibitions on firearm purchase and possession by domestic abusers is contained in our summary on Domestic Violence and Firearms. ⤴︎
- Additional information about laws governing minimum age to purchase and possess firearms is contained in our summary on the Minimum Age to Purchaser and Possess Firearms. ⤴︎
- Additional information about laws limiting sales to prohibited individuals is contained in our summary on Trafficking & Straw Purchasing. ⤴︎