Much needed improvements to FOPA introduced in Congress

Representative Morgan Griffith (R-VA)

Introduced by Representative Morgan Griffith (R-VA) and co-sponsored by Representatives Bill Owens (D-NY) and Ted Poe (R-TX), House Bill HR 4269 would make several much needed improvements to the interstate-transportation portion of the Firearm Owners’ Protection Act.

The Firearm Owners’ Protection Act, or FOPA, was passed in 1986 in response to numerous reported instances of gun dealers being harassed by the Bureau of Alcohol, Tobacco, and Firearms (ATF).  In addition to the regulatory reform of the ATF, FOPA also addressed a number of other issues including machine gun ownership, registration, background checks, and interstate transportation of firearms.

At the time of its passage, the bill was known as the McClure-Volkmer Act after the bi-partisan duo who sponsored the legislation; Senators Harold Volkmer (D-MO) and Jim McClure (R-ID).  Writing at the Volokh Conspiracy blog, Dave Kopel once called FOPA “one of the most far-reaching laws ever enacted by Congress to safeguard constitutional rights.”

The interstate transportation portion of FOPA was designed to protect innocent gun owners who might happen to travel through a state with draconian gun control laws while in lawful possession of firearms.  In order to enjoy the “safe passage” protections of FOPA, which are codified at 18 U.S.C. § 926A, a gun owner must meet the following requirements:

  • The firearm must be unloaded
  • The firearm must in a locked container
  • The container cannot be within easy reach of the vehicles passengers
  • The journey must start in a state where the person can legally possess and carry the firearm
  • The journey must end in a state where the person can legally possess and carry the firearm
  • It must be an uninterrupted journey (only gas and bathroom stops)

For example, you would be protected by FOPA if you were transporting an unloaded firearm in a locked case out of your reach through Maryland on a journey from Virginia to Pennsylvania but you would lose FOPA protection if you stopped in Maryland to visit family or decided to have Maryland be the end point of your journey.

It sounds simple enough right?  But despite the relatively straightforward requirements and the clear congressional intent to protect otherwise innocent gun owners from onerous transportation laws, New York and New Jersey both have a history of ignoring FOPA and subjecting innocent gun owners to malicious prosecution.

HR 4269 attempts to remedy this by making the following changes to 18 U.S.C. § 926A:

  • Defining the travel thus protected as specifically including “temporary lodging overnight, stopping for food, fuel, vehicle maintenance, an emergency, medical treatment, and any other activity incidental to the transport.”  This would seem to overturn the disastrous ruling from the 3rd Circuit in Gregg C. Revell v. Port Authority of New York and New Jersey
  • In the case of prosecution, places the burden on the state to prove “beyond a reasonable doubt, that the conduct of the person did not satisfy the conditions” protected by the statute instead of requiring the gun owner to prove the elements as an affirmative defense.
  • Makes it clear that both firearms and ammunition are thus protected

But from a legal perspective, I believe the most important change that HR 4269 will make to 18 U.S.C. § 926A is to affirmatively create a cause of action against any person, state, or political subdivision of a state who deprives a gun owner of the safe passage rights granted by 18 U.S.C. § 926A.  Even better, any plaintiff winning in such a suit may also be granted “reasonable attorney’s fees” insuring that plaintiffs will not have trouble finding attorneys willing to handle their cases.

But none of this will happen if HR 4269 doesn’t pass.  You need to take action today.  Contact your representative at (202) 225-3121 and urge them to support HR 4269!

© 2012, John Pierce. All rights reserved.


About John Pierce

Monachus Lex is written by Virginia attorney John Pierce. John is a life-long gun rights advocate, an NRA certified instructor and co-founder of the nationwide gun rights group OpenCarry.org.

He has an undergraduate degree in Computer Information Systems, an MBA from George Mason University and is a 2012 Honors Graduate of Hamline University School of Law in St. Paul, MN.

Professionally, John is a member of the American Bar Association Second Amendment Civil Rights Litigation Subcommittee and his writings have been published by the ABA Civil Rights Litigation Committee and the ABA Minority Trial Lawyer Committee.

In addition, his open carry advocacy has been featured on Nightline and The Daily Show With Jon Stewart.
This entry was posted in Abuse of Discretion, Abuse of Power, Gun Control, New Jersey, New York, State Laws, Travel. Bookmark the permalink.

4 Responses to Much needed improvements to FOPA introduced in Congress

  1. Be sure to add that the amendment should include the repeal of 18 USC 922 (o).

    Also, call your Senators and insist that the repeal of 18 USC 922 (o) be added to the Senate side of the bill.

  2. Pingback: Much needed improvements to FOPA introduced in Congress - M14 Forum

  3. Don LaRue says:

    It will never happen on 18 USC 922 (o)…The best hope for that will be the Firearm Freedom Act case out of Montana. A firearm made in a state that stays in the state is outside Congress’ Commerce powers…Pay the $200 tax and then make your Made In Montana machine gun. I read the Revell case out of New York….His weapon was readily accessible when he went to the hotel to stay the night. This took him outside the protection of FOPA….according to the 3rd Circuit Court of circus clowns. Thats an interesting conclusion, considering that if in a truck, one can have the firearm in a locked case on the passenger seat which is just as readily accessible as a firearm in a locked case…inside a suitcase, sitting next to the bed in a hotel….Of course, the clowns couldn’t figure that one out.

  4. Pingback: SayUncle » FOPA Improvements

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