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Thread: traveling the lower 48 armed

  1. #1
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    Well I am asking this question for my brother who is a truck driver, he wants to know if he could carry a handgun in the truck with him in a lockbox unloaded? I reallize it most likely will have to be a 10 round magazine to be leagle in the states that restrict magazine size if it is even lawful. so yeah if anybody has any info on this he would be very greatful to you folks. I know he could get a few states consealed carry licences and be covered by and large but he wants to be able to go any place if at all posible.

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    Locked and unloaded is legal per Federal law which allows transport thru any state as long as that state is nothis final destination. This is regardless of any state law, which can not over ride the free passage federal law.

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    I know he could get a few states concealed carry licences and be covered by and large but he wants to be able to go any place if at all possible.
    You don't mention what state your brother is a resident of, but assuming it's WA then a WA permit along with UT and FL will give him very broad coverage. http://handgunlaw.us has a nice facility for creating an individualized carry-permit map based on the licenses you hold, though a little "manual intervention" is needed to compensate for the states that only recognize permits from residents of the issuing states.

    In addition, if he's a resident of WA, ID, NV, or CA, he can also get an Oregon permit (though if he's not, note that OR allows open carry in most places w/o a permit.)

    Otherwise, the federal law that Bear cites will have to suffice (it's 18 USC §926A if you want to look it up.) Unfortunately (and it's a huge caveat!) it only helps if the firearm in question is legal to possess in both the point of origin and the destination. Under any reading of this statute, it won't help him much if he's delivering to some anti-gun place.

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    He could carry a revolver. Near as I can tell no state has restrictions on wheel guns...

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    I can tell you from personal experience that it is impossible to comply with the law in all lower 48 states while driving a truck with a handgun in it. He will sometimes get a NY, NJ, MA, Etc. load where ifhedoes nothave their handgun permithe will be breaking the law. With such a restrictive state beinghis destination, the federal exception would not apply.

    If he wishes to comply with the law he might be better off with a shotgun. IANAL but I do not know of any state that outlaws the possession of a unloaded encased shotgun.

    Otherwise make sure you inform him of the right to refuse a request for asearch. Thisalso applies toD.O.T. inspection officers they can check the inside of the cab for mandatory safety equipment (fire extinguisher, breakdown triangles), but theycan not demand to search throughhis personal stuff. Also he has the right to remain silent if asked by a LEO if there is any weapons in the truck.

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    sv_libertarian wrote:
    He could carry a revolver. Near as I can tell no state has restrictions on wheel guns...
    There are many east coast states (NY, NJ, MA, Etc.) that require a permit from that state to be in possession ofa handgun, revolver or semi-auto does not matter.

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    Bear 45/70 wrote:
    Locked and unloaded is legal per Federal law which allows transport thru any state as long as that state is nothis final destination. This is regardless of any state law, which can not over ride the free passage federal law.
    It may be federal law but some states will arrest you anyhow. Illinois, New York, New Jersey, Main and possibly some others. IllinoisI believe requires a license forthe possession ofammunition. Then there are local regs and jurisdictions to contend with. All states do not have preemption. Some DA's in New York will pursue felony charges just because they can. In Ohio the proximity of the ammo to the gun can get you into trouble. It may not be right but that is the way it is across this great free country of ours.

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    what states excatly would he be illeagle in?

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    irfner wrote:
    Bear 45/70 wrote:
    Locked and unloaded is legal per Federal law which allows transport thru any state as long as that state is nothis final destination. This is regardless of any state law, which can not over ride the free passage federal law.
    It may be federal law but some states will arrest you anyhow. Illinois, New York, New Jersey, Main and possibly some others. IllinoisI believe requires a license forthe possession ofammunition. Then there are local regs and jurisdictions to contend with. All states do not have preemption. Some DA's in New York will pursue felony charges just because they can. In Ohio the proximity of the ammo to the gun can get you into trouble. It may not be right but that is the way it is across this great free country of ours.
    ...and in such a case, any lawyer worth his law degree will get the charges dismissed on the grounds of the federal law. You might even be able to sue the prosecuting authority for legal fees and lost wages. Essentially coming out of it in a "zero sum" situation... possibly even coming out in your favor if you also sue for wrongful arrest and/or imprisonment and violation of civil rights.
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    just_a_car wrote:
    irfner wrote:
    Bear 45/70 wrote:
    Locked and unloaded is legal per Federal law which allows transport thru any state as long as that state is nothis final destination. This is regardless of any state law, which can not over ride the free passage federal law.
    It may be federal law but some states will arrest you anyhow. Illinois, New York, New Jersey, Main and possibly some others. IllinoisI believe requires a license forthe possession ofammunition. Then there are local regs and jurisdictions to contend with. All states do not have preemption. Some DA's in New York will pursue felony charges just because they can. In Ohio the proximity of the ammo to the gun can get you into trouble. It may not be right but that is the way it is across this great free country of ours.
    ...and in such a case, any lawyer worth his law degree will get the charges dismissed on the grounds of the federal law. You might even be able to sue the prosecuting authority for legal fees and lost wages. Essentially coming out of it in a "zero sum" situation... possibly even coming out in your favor if you also sue for wrongful arrest and/or imprisonment and violation of civil rights.
    That may be true but New York district attorneys are seizing guns and prosecuting people trying to check their guns airports. The crime illegally possessing a handgun without a New York license. Even though the out of state citizen followed all federal laws and is allowed to have a gun in a case en route to or from an airport. They are pushing for felony convictions and if you plea bargain down it's goodbye gun and big fines. There have been discussions about this on the general forum. We all agree it is wrong but it is occurring anyhow. If you want to test it I am sure you can search the general forum and find out exactly which airport and district attorney to challenge. Hope you win big!

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    I should preface with: I have not read the discussion on the general forums regarding this.

    I'm certainly disheartened by the fact that defense attorneys are unable to dismiss these charges and/or not plea-out. My guess is that they are court-assigned attorneys and thus push for a plea even when the defendant shouldn't.

    That being said, I don't have the time nor the money to be a test case for this. If I did, I would consider it only once speaking with an attorney to guarantee that I will have competent and aggressive legal defense. Even then, I'd make sure I was not at risk of losing my gun rights.
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    irfner wrote:
    Bear 45/70 wrote:
    Locked and unloaded is legal per Federal law which allows transport thru any state as long as that state is nothis final destination. This is regardless of any state law, which can not over ride the free passage federal law.
    It may be federal law but some states will arrest you anyhow. Illinois, New York, New Jersey, Main and possibly some others. IllinoisI believe requires a license forthe possession ofammunition. Then there are local regs and jurisdictions to contend with. All states do not have preemption. Some DA's in New York will pursue felony charges just because they can. In Ohio the proximity of the ammo to the gun can get you into trouble. It may not be right but that is the way it is across this great free country of ours.
    New York lost the last case of arresting a traveler with a legal handgun. It was the Feds that forced the issue. That was before Heller and now the "no gun" states are in an evenworse position of while trying to enforce their unconstitutional laws. Also a trucker's true departure point and final destination are back at his home, regardless of all the stops in the middle.

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    Right or wrong you now have a felony arrest record. See below.

    Airport Gun Cases
    New York City is home to not one but two major international airports (both in Queens County). New York City is also home to some of the strictest and harshest gun control legislation in the nation. Add to this the fact that the major airlines do very little to make prospective carriers of handguns aware that the Federal regulations with respect to transportation of handguns on airplanes do not govern New York and you have a recipe for serious problems.

    Here is how it works: Passenger lives in a state where gun control laws are not as strict as New York, like say, Texas. In Texas, it is probably illegal not to carry a weapon. Passenger wants to travel by airplane with his gun as he has done a million times before to other southern states. He does everything by the book alerting the airline in advance and checking for the appropriate procedures.

    This time, however, he is traveling to New York City. So this time he actually contacts the airline and asks for instructions. They give him instructions. He follows the instructions. He has all the paperwork, all the licenses, all the everything he needs to be in legal possession of that gun in Texas and probably 23 other states, except unfortunately, New York. The airline information people provide him with the Federal rules about which they are primarily concerned but do not provide him the information about New York State specific rules.

    Is Passenger careless for not paying closer attention to the rules? Should he have been more careful about making sure that everything would be ok in New York? Absolutely. Unfortunately for Passenger, however, aside from being so careless, he is, the moment the plane lands in New York City, probably guilty of a violent felony offense in New York City (and he has NO LEGAL DEFENSE).

    This scenario, or a version of it, plays itself out fairly frequently in New York City. At Shalley & Murray alone, we have handled quite a few of these sorts of cases and we are but one small new york city criminal law firm. Many people, including celebrities have been caught up in versions of this scenario.

    One might expect that the frequency with which this scenario occurs and the sort of clear absurdity of it would suggest that the District Attorney's Office would routinely treat these cases as they seem to deserve to be treated. The reality, however, is that the District Attorney's Office takes these cases extremely seriously. They can often be quite difficult to "negotiate away".

    One of the difficulties in cases within this general scenario is that the District Attorney's Office has (legally) a very strong case. There is virtually no legal defense to these cases despite how ridiculous it might seem that someone with a license in 23 states who follows all the directions that the FAA and the airlines told him could be guilty of a violent felony offense.

    Therefore, the District Attorney's Office has a great deal of bargaining power when determining how or whether to negotiate. If they choose, they can adopt a hostile "take it or be indicted for a violent felony for which there is a mandatory state prison sentence) approach. This is not to say that they will adopt such a hostile approach. But in negotiating these cases, one must keep in mind that the District Attorney's Office has this over the head of the defendant.

    The one bit of room the Passenger in this scenario has is that he may be able to take advantage of the Grand Jury process in a way that most defendants can not. Defendants facing felony gun possession charges in this circumstance are often good candidates for testifying in the Grand Jury if the case gets that far. The Grand Jury is of course normally not a terribly defendant friendly procedure for a variety of reasons. Furthermore, as I mentioned before, the Passenger in this scenario really hasn't much of a LEGAL defense. So why on earth would Passenger want to testify before the Grand Jury and virtually confess to the crime?

    …because members of the Grand Jury are human beings who are likely to have little use for indicting Passenger for a felony under these sorts of circumstances. It is not uncommon for Grand Jurors in cases such as this to refuse to indict.

    Keep in mind that a decision to testify in the Grand Jury in this sort of situation is a HUGE decision and one that ABSOLUTELY MUST BE MADE ON A CASE BY CASE BASIS WITH AN EXPERIENCED CRIMINAL DEFENSE ATTORNEY. The defendant must understand the risks involved and must understand that his testimony before the Grand Jury under oath is arguably admitting to all of the necessary elements of the crime.

    NOT EVERY GUN CASE, EVEN IF IT IS AN AIRPORT GUN CASE, IS A GOOD CANDIDATE FOR GRAND JURY PRESENTATION. UNDER NO CIRCUMSTANCES SHOULD ANYTHING IN THIS ARTICLE BE TAKEN TO MEAN THAT SHALLEY & MURRAY RECOMMENDS THAT ALL DEFENDANTS IN AIRPORT GUN CASES TESTIFY IN THE GRAND JURY. IN DISCUSSING THE POSSIBILITY OF A GRAND JURY PRESENTATION UNDER THESE CIRCUMSTANCES, I MEAN ONLY TO DESCRIBE THE ONE SMALL AREA OF BARGAINING POWER A DEFENDANT IN SUCH A CIRCUMSTANCE HAS.

    The District Attorney's Office is aware of this risk, but is certainly more than willing to take it if the assistant handling the case believes there is sufficient justification to prosecute the case as a felony.

    In such cases, the hope is that through concerted negotiation a mutually agreeable resolution of the matter would be possible.

    In any event, a person who has been arrested in one of these airport gun cases needs an experienced criminal defense lawyer.








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    but is it not still against federal law to charge people for their airplane landing in N.Y? I mean what if the plane was deverted to N.Y to land for some reason? if they were to charge me with a crime that the federal government said was illeagle to do so they would have to remove the conviction from my brothers record right? I imagine if they would not remove it you could sue the state of N.Y for slander and a few other things I am pretty sure.


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    The thing Irfner posted seems quite correct if your destination is NYC, and perhaps also if it's elsewhere in the state. But NY goes completely beyond their legal authority if they do this to anyone transiting. (Their moral authority is already completely shot the moment they do this to any law-abiding citizen, but then you all already knew that.)

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    New York is charging you even if you are just passing through and your destination is some other state, not New York. Some DAs in New York will charge you if your plane is diverted to a New York airport. As soon as you retrieve your firearm in their eyes you are a criminal subject to arrest. They will be waiting for you at baggage claim. Federal law says you can carry to or from an airport etc. but New York doesn't care they are charging people anyway.

    I just posted this as a warning for anyone traveling to or flying into a New York airport. Be very careful or have a really good attorney and plenty of cash. Also as New York gets away with this I am sure other areas such as Boston might want to start trying as well.

    I would very much like to see them sued and loose their pants but so far they have been pretty successful.

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    Right, Irfner. To clarify, when I said "correct" I didn't mean just or fair, but rather in compliance with federal law as it current stands. Heinous as it may be, being arrested at JFK for coming to NY with a handgun in your luggage appears to comport with US statute law. (Whether it's constitutional is another, different, question, and one we can hope may have a more freedom-oriented answer in the near future.)

    But arresting people who are merely transiting NY with firearms carried in compliance with 18 USC §926A is frankly illegal and unconstitutional, and how they manage to get away with it repeatedly certainly boggles my mind.

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    Also in answer to scoobydoo6906 driving through New York can also be a problem. It is my understanding that when driving into New York state you are required to check your handgun at the border. You can pick it up on your way out. If you are just passing through or leave by some other route then to bad for you. I haven't verified this but it sounds like their attitude. I would also be very careful checking a hand gun with New York authorities. I have heard that sometimes you have to prove ownership when picking the gun up. It seems to me like they are just looking for a way to harass people.

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    I planned out my next road trip to Kentucky and found a route that I can carry holstered the entire trip.

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    Bear 45/70 wrote:
    irfner wrote:
    Bear 45/70 wrote:
    Locked and unloaded is legal per Federal law which allows transport thru any state as long as that state is nothis final destination. This is regardless of any state law, which can not over ride the free passage federal law.
    It may be federal law but some states will arrest you anyhow. Illinois, New York, New Jersey, Main and possibly some others. IllinoisI believe requires a license forthe possession ofammunition. Then there are local regs and jurisdictions to contend with. All states do not have preemption. Some DA's in New York will pursue felony charges just because they can. In Ohio the proximity of the ammo to the gun can get you into trouble. It may not be right but that is the way it is across this great free country of ours.
    New York lost the last case of arresting a traveler with a legal handgun. It was the Feds that forced the issue. That was before Heller and now the "no gun" states are in an evenworse position of while trying to enforce their unconstitutional laws. Also a trucker's true departure point and final destination are back at his home, regardless of all the stops in the middle.
    I would like to agree with you on that theory. It was what I thought when I first read the Federal law. However all the legal analyses I have read only allow stops in the non-permissive states that are necessarily incident to travel. This would include stops for fuel, food, and maybe sleep if necessary for safety.

    However this is basically an affirmative defense. Where the defendant is required to prove that his destination is somewhere where it is legal for him to have the firearm.
    For a truck driver he would show his Bill of Lading. If the BOL was from say Virgina to Vermont he would be okay if he did not make any unnecessary stops in MD, NJ, NY, or MA. However if it was from VA to NY then the court would consider NY as his destination. In over the road truck driving it is common not to know where you are going next until after you deliver your last load. Also, you could be laid over until the next dayto get your next load.

    So, as I see it is very unlikely that a court of law located in a state like New York would consider the Federal Interstate Firearms Transportation law as a general permit for a truck driver to be exempt from state and local laws.While he isout on the road traveling around the country for weeks or months at a time. No matter where he stops or for how long. This would be like allowing anyone with a RV to travel around the country for months at a time stopping to sightsee in NY for a week, and claim they are exempt from NY handgun laws because the departure and destination point of their RV is their home driveway.

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    vmaxanarchist wrote:
    Bear 45/70 wrote:
    irfner wrote:
    Bear 45/70 wrote:
    Locked and unloaded is legal per Federal law which allows transport thru any state as long as that state is nothis final destination. This is regardless of any state law, which can not over ride the free passage federal law.
    It may be federal law but some states will arrest you anyhow. Illinois, New York, New Jersey, Main and possibly some others. IllinoisI believe requires a license forthe possession ofammunition. Then there are local regs and jurisdictions to contend with. All states do not have preemption. Some DA's in New York will pursue felony charges just because they can. In Ohio the proximity of the ammo to the gun can get you into trouble. It may not be right but that is the way it is across this great free country of ours.
    New York lost the last case of arresting a traveler with a legal handgun. It was the Feds that forced the issue. That was before Heller and now the "no gun" states are in an evenworse position of while trying to enforce their unconstitutional laws. Also a trucker's true departure point and final destination are back at his home, regardless of all the stops in the middle.
    I would like to agree with you on that theory. It was what I thought when I first read the Federal law. However all the legal analyses I have read only allow stops in the non-permissive states that are necessarily incident to travel. This would include stops for fuel, food, and maybe sleep if necessary for safety.

    However this is basically an affirmative defense. Where the defendant is required to prove that is destination is somewhere where it is legal for him to have the firearm.
    For a truck driver he would show his Bill of Lading. If the BOL was from say Virgina to Vermont he would be okay if he did not make any unnecessary stops in MD, NJ, NY, or MA. However if it was from VA to NY then the court would consider NY as his destination. In over the road truck driving it is common not to know where you are going next until after you deliver your last load. Also, you could be laid over until the next dayto get your next load.

    So, as I see it is very unlikely that a court of law located in a state like New York would consider the Federal Interstate Firearms Transportation law as a general permit for a truck driver to be exempt from state and local laws.While he isout on the road traveling around the country for weeks or months at a time. No matter where he stops or for how long. This would be like allowing anyone with a RV to travel around the country for months at a time stopping to sightsee in NY for a week, and claim they are exempt from NY handgun laws because the departure and destination point of their RV is their home driveway.
    Actually, by Federallaw truckers have to stop after so many hours on the road, sohe can pretty much justify stopping most times for fuel, meals or required down time.

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    Bear 45/70 wrote:
    Actually, by Federallaw truckers have to stop after so many hours on the road, sohe can pretty much justify stopping most times for fuel, meals or required down time.
    I agree that would be a good argument for sleep stops in a non-permissive state. However it still doesn't fix the problem of having a Bill of Lading destination in a non-permissive state.

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    I have no desire to be a trucker but if I were...

    I would get a combination operated safe, install it permanently somewhere in the truck that is non-visible, unload the pistol and put it in the safe during trips to NY, MA, where-ever, and if they ask what is in the safe, NOYDB. They can't search without a warrant, they can't get a warrant without probable cause, refusal to consent is not probable cause. Unless you are doing something else illegal there is no way they can ever look inside that lock box legally.

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    heresolong wrote:
    I have no desire to be a trucker but if I were...

    I would get a combination operated safe, install it permanently somewhere in the truck that is non-visible, unload the pistol and put it in the safe during trips to NY, MA, where-ever, and if they ask what is in the safe, NOYDB. They can't search without a warrant, they can't get a warrant without probable cause, refusal to consent is not probable cause. Unless you are doing something else illegal there is no way they can ever look inside that lock box legally.
    I like that idea best, yet.

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    One minor detail,



    Is your brother running his own rig IE owner operator, or is he driving a rig owned and leased by a company?



    If he is driving for some one there is the problem of company policy forbidding position of weapons while operating company vehicles. If that’s the case getting caught = fired.


    My 2 cents

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