by Attorney Eric D. PuryearA Federal law, the Firearms Owners’ Protection Action (FOPA), provides a safe harbor for the interstate transportation of firearms as set forth in 18 U.S.C. § 926A:
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, 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: Provided,That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.
This safe harbor law means that a person who is transporting a firearm from any place where they can lawfully possess that firearm to any other place where they can lawfully possess that firearm, and who has the firearm stored in the manner set forth above, has a defense against prosecution under a state or local law that would otherwise make that transportation unlawful.
In order to rely upon the FOPA safe harbor when transporting a firearm in a vehicle, a person must have the gun unloaded, and not readily accessible, as more fully set forth above. The safest approach to take is to have the firearm broken down in a non-functioning state, in a locked case, in the trunk of the vehicle, with any ammunition stored in a separate locked case.
Unfortunately, many state prosecutors will still file charges and leave it up to the accused to defend against the charge by arguing that FOPA protects them from being convicted. The issue of whether FOPA is an affirmative defense (something the accused has to raise at trial) or a complete bar to prosecution is not fully settled. As such, FOPA provides a useful safe harbor but may not protect a gun owner from having to deal with prosecution by an overzealous anti-gun prosecutor.
Gun laws can be rather complex, and it is a sad fact that many prosecutors take an unreasonably harsh approach to unintentional and minor violations of gun laws. Properly handling gun-related cases is vital, as a felony conviction can result in a person losing their gun rights.