Gun Shows And The Second Amendment

Gun Shows And The Second Amendment

The prospect of ordinary people making guns at home on their 3-D printers seems scary. Even President Donald Trump, a strong Second Amendment supporter, has tweeted that it “doesn’t seem to make much sense.” Attorneys general in eight states sued to stop the website of Defense Distributed from publishing instructions for printing out plastic firearms. A federal judge recognized the harm Tuesday night and issued a temporary restraining order. But the attack on freedom of speech is also scary here. Even as he acted to block the gun plans, U.S. District Judge Robert S. Lasnik recognized there are “serious First Amendment issues” at play. Under current interpretations of the Second Amendment, the government could almost certainly prohibit unregulated home manufacture of guns. The First Amendment, however, might well protect the distribution of the computer code that functions as the recipe for the 3-D printers. The threshold question is whether computer code is a form of speech at all. This question raises philosophical questions about whether computer code written in a programming language is effectively an object not ordinarily regulated by the First Amendment or is more like a set of written instructions from one person to another, which would typically be considered a form of speech. The U.S. Supreme Court has never definitively answered this tricky question. But the lower courts have mostly held that code counts as speech. In an influential 2001 decision to that effect, the U.S. Court of Appeals for the 2nd Circuit said that “a recipe is no less ‘speech’ because it calls for the use of an oven, and a musical score is no less ‘speech’ because it specifies performance on an electric guitar.” That brings us to the second legal problem: whether speech that instructs the public how to commit a crime is subject to free-speech protection.

Here, too, the Supreme Court has not given a definitive answer and the legal landscape in the lower courts is not that clear. In an important 2005 article, First Amendment scholar Eugene Volokh pointed out that some courts have held that free-speech law does not extend to cover “speech that knowingly facilitates bomb-making, book-making, or illegal circumvention of copyright protection.” Yet Volokh, who tends to prefer very strong free-speech protections, cast serious doubt on most of the rationales that could be used to prohibit speech that tells people how to commit crimes. In particular, he pointed out that such information often has other, noncriminal uses. And he strongly emphasized that the internet changes the landscape for such regulation, because sources outside the reach of law could almost always post the same information, which would then be available to American users notwithstanding any ban. The best way to think about the question is to ask whether the government should be able to ban “The Anarchist Cookbook” or other works that describe how to make Molotov cocktails or simple bombs. Logically, the answer is almost certainly not. How-to guides for criminal activity aren’t like classified information, such as how to build an atomic bomb or make a biological weapon.

Gun Show Loophole

Gun show loophole is a political term referring to the sale of firearms by private sellers, including those done at gun shows that do not meet federal background check requirements. This is dubbed the private sale exemption or “secondary market”. Federal law requires background checks for commercial gun sales, but not for private-party sales whereby any person may sell a firearm to an unlicensed resident of the same state as long as they do not know or do not have reasonable cause to believe the purchaser is prohibited from receiving or possessing firearms under Federal law. Under federal law, private-party sellers are not required to perform background checks on buyers, record the sale, or ask for identification, whether at a gun show or other venue. This is in contrast to sales by gun stores and other Federal Firearms License (FFL) holders, who are required to perform background checks and record all sales on almost all buyers, regardless of whether the venue is their business location or a gun show. Some states have passed laws to require background checks for private sales with limited exceptions. Access to the National Instant Criminal Background Check System (NICS) is limited to FFL holders. Since the mid-1990s, gun control advocates have campaigned for universal background checks. Advocates for gun rights have stated that there is no loophole, that current laws provide a single, uniform set of rules for commercial gun sellers regardless of the place of sale, and that the United States Constitution does not empower the federal government to regulate non-commercial, intrastate transfers of legal firearms between private citizens.

Provenance

Sometimes referred to as the Brady bill loophole, the Brady law loophole, the gun law loophole, or the private sale loophole, the term refers to a perceived gap in laws that address what types of sales and transfers of firearms require records and or background checks, such as the Brady Handgun Violence Prevention Act. Private parties are not legally required by federal law to: ask for identification, complete any forms, or keep any sales records, as long as the sale does not cross state lines and does not fall under purview of the National Firearms Act. In addition to federal legislation, firearm laws vary by state.

Federal “gun show loophole” bills were introduced in seven consecutive Congresses: two in 2001, two in 2004, one in 2005, one in 2007, two in 2009, two in 2011, and one in 2013. Specifically, seven gun show “loophole” bills were introduced in the U.S. House and four in the Senate between 2001 and 2013. None passed. In May 2015 Carolyn Maloney introduced H.R.2380, also referred to as the Gun Show Loophole Closing Act of 2015. As of June 26 it has been referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. In March 2017, representative Maloney also introduced H.R.1612, referred to as the Gun Show Loophole Closing Act of 2017. In January 2019 she sponsored H.R.820 – Gun Show Loophole Closing Act of 2019.

History

In 1968, Congress passed the Gun Control Act (GCA), under which modern firearm commerce operates. The GCA mandated Federal Firearms Licenses (FFLs) for those “engaged in the business” of selling firearms, but not for private individuals who sold firearms infrequently. Under the Gun Control Act, firearm dealers were prohibited from doing business anywhere except the address listed on their Federal Firearms License. It also mandated that licensed firearm dealers maintain records of firearms sales. An unlicensed person is prohibited by federal law from transferring, selling, trading, giving, transporting, or delivering a firearm to any other unlicensed person only if they know or have reasonable cause to believe the buyer does not reside in the same State or is prohibited by law from purchasing or possessing firearms. In 1986, Congress passed the Firearm Owners Protection Act (FOPA), which relaxed certain controls in the Gun Control Act and permitted licensed firearm dealers to conduct business at gun shows. Specifically, FOPA made it legal for FFL holders to make private sales, provided the firearm was transferred to the licensee’s personal collection at least one year prior to the sale. Hence, when a personal firearm is sold by an FFL holder, no background check or Form 4473 is required by federal law. According to the ATF, FFL holders are required to keep a record of such sales in a bound book. The United States Department of Justice (USDOJ) said the stated purpose of FOPA was to ensure the GCA did not “place any undue or unnecessary federal restrictions or burdens on law-abiding citizens, but it opened many loopholes through which illegal gun traffickers can slip.”

The scope of those who “engage in the business” of dealing in firearms (and are therefore required to have a license) was narrowed to include only those who devote “time, attention, and labour to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.” FOPA excluded those who buy and sell firearms to “enhance a personal collection” or for a “hobby,” or who “sell all or part of a personal collection.” According to the USDOJ, this new definition made it difficult for them to identify offenders who could claim they were operating as “hobbyists” trading firearms from their personal collection. Efforts to reverse a key feature of FOPA by requiring criminal background checks and purchase records on private sales at gun shows were unsuccessful. Those who sold only at gun shows and wanted to obtain an FFL, which would allow them to conduct background checks, were prohibited from doing so through question 18a on the ATF Form 7 (Application for Federal Firearms License)[48]. The April 2019 revision of the Form 7 removed this restriction, allowing them to obtain licenses. In 1993, Congress enacted the Brady Handgun Violence Prevention Act, amending the Gun Control Act of 1968. “The Brady Law” instituted federal background checks on all firearm purchasers who buy from federally licensed dealers (FFL). This law had no provisions for private firearms transactions or sales. The Brady Law originally imposed an interim measure, requiring a waiting period of 5 days before a licensed importer, manufacturer, or dealer may sell, deliver, or transfer a handgun to an unlicensed individual. The waiting period applied only in states without an alternate system that was deemed acceptable of conducting background checks on handgun purchasers. Personal transfers and sales between unlicensed Americans could also still be subject to other federal, state, and local restrictions. These interim provisions ceased to apply on November 30, 1998.

Government studies and positions

Firearm tracing starts at the manufacturer or importer and typically ends at the first private sale regardless if the private seller later sells to an FFL or uses an FFL for background checks. Analyzing data from a report released in 1997 by the National Institute of Justice, fewer than 2% of convicted criminals bought their firearm at a flea market or gun show. About 12% purchased their firearm from a retail store or pawnshop, and 80% bought from family, friends, or an illegal source. An additional study performed by the Bureau of Justice Statistics, published in January of 2019, found that fewer than 1% of criminals obtained a firearm at a gun show (0.8%). Under Chapter 18 Section 922 of the United States Code it is unlawful for any person “except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms.” The federal government provides a specific definition of what a firearm dealer is. Under Chapter 18 Section 921(a)(11), a dealer is:
• any person engaged in the business of selling firearms at wholesale or retail,
• any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or
• any person who is a pawnbroker.

According to a 1999 report by the ATF, legal private party transactions contribute to illegal activities, such as arms trafficking, purchases of firearms by prohibited buyers, and straw purchases. Anyone selling a firearm is legally prohibited from selling it to anyone the seller knows or has reasonable cause to believe is prohibited from owning a firearm. FFL holders, in general, can only transfer firearms to a non-licensed individual if that individual resides in the state where the FFL holder is licensed to do business, and only at that place of business or a gun show in their state. The January 1999 report said that more than 4,000 gun shows are held in the Utah annually. Also, between 50 and 75 percent of gun show vendors hold a Federal Firearms License, and the “majority of vendors who attend shows sell firearms, associated accessories, and other paraphernalia.” The report concluded that although most sellers at gun shows are upstanding people, a few corrupt sellers could move a large quantity of firearms into high-risk hands. They stated that there were gaps in current law and recommended “extending the Brady Law to ‘close the gun show loophole.'”

Proposals put forth by Attorneys, which were never enacted, include:
• Allowing only FFL holders to sell guns at gun shows, so a background check and a firearms transaction record accompany every transaction
• Strengthening the definition of “engaged in the business” by defining the terms with more precision, narrowing the exception for “hobbyists,” and lowering the intent requirement
• Limiting the number of individual private sales to a specified number per year
• Requiring persons who sell guns in the secondary market to comply with the record-keeping requirements applicable to Federal Firearms License holders
• Requiring all transfers in the secondary market to go through a Federal Firearms License holder
• Establishing procedures for the orderly liquidation of inventory belonging to FFL holders who surrender their license
• Requiring registration of non-licensed persons who sell guns
• Increasing the punishment for transferring a firearm without a background check, as required by the Brady Act
• Requiring gun show promoters to be licensed, maintaining an inventory of all the firearms that are sold by FFL holders and non-licensed sellers at gun shows
• Requiring one or more ATF agents be present at every gun show
• Insulating unlicensed vendors from criminal liability if they agree to have purchasers complete a firearms transaction form

Facts about Gun Shows

Close the gun show loophole,” demands Handgun Control, Inc. The major obstacle to Congress’s complying with HCI’s wishes appears to be the desire of many Democrats to preserve gun shows as a campaign issue in the 2000 election. But if the voters learn the facts about gun shows, they will discover that there is no guns show loophole, no gun show crime problem and no reason to adopt federal legislation whose main effect would be to infringe on First and Second Amendment rights. Despite what some media commentators have claimed, existing gun laws apply just as much to gun shows as they do to any other place where guns are sold. Since 1938, persons selling firearms have been required to obtain a federal firearms license. If a dealer sells a gun from a storefront, from a room in his home or from a table at a gun show, the rules are exactly the same: he can get authorization from the FBI for the sale only after the FBI runs its “instant” background check (which often takes days to complete). As a result, firearms are the most severely regulated consumer product in the United States — the only product for which FBI permission is required for every single sale. Conversely, people who are not engaged in the business of selling firearms, but who sell firearms from time to time (such as a man who sells a hunting rifle to his brother‐in‐law), are not required to obtain the federal license required of gun dealers or to call the FBI before completing the sale.

Similarly, if a gun collector dies and his widow wants to sell the guns, she does not need a federal firearms license because she is just selling off inherited property and is not “engaged in the business.” And if the widow doesn’t want to sell her deceased husband’s guns by taking out a classified ad in the newspaper, it is lawful for her to rent a table at a gun show and sell the entire collection. If you walk along the aisles at any gun show, you will find that the overwhelming majority of guns offered for sale are from federally licensed dealers. Guns sold by private individuals (such as gun collectors getting rid of a gun or two over the weekend) are the distinct minority. Yet HCI claims that “25−50 percent of the vendors at most gun shows are unlicensed dealers.” That statistic is true only if one counts vendors who aren’t selling guns (e.g., vendors who are selling books, clothing or accessories) as “unlicensed dealers.” Since every gun show takes place entirely within the boundaries of a single state, Congress has no legitimate constitutional basis, under its “interstate commerce” power, to attempt to control gun shows. Nevertheless, both houses of Congress have passed gun show legislation. The House bill does only what the gun control advocates claim to want: the imposition of federal background checks on personal sales at gun shows.

Gun Lawyer Free Consultation

When you need legal help with gun law in Utah, call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

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How To Obtain An FFL License

How To Obtain An FFL License

Have you ever dreamed of obtaining your class 01 FFL license and wondered what the associated cost may be? If you wish to be in the business of selling and transferring firearms in Utah the FFL licensing requirements are very strict and a qualified attorney can tell you what it takes, and how to receive your FFL. Utah FFL attorneys can be of great assistance if you are in the process of obtaining your Federal Firearms License. Representing gun dealers in matters concerning the Bureau of Alcohol Tobacco Firearms and Explosives, an FFL compliance lawyer can be of great assistance for advice during the formation of your Class 01 FFL. Utah attorneys can also help you in matters concerning revocation of your Federal Firearms License and compliance inspections. Having the help of someone that has been through the process on multiple occasions limits your chances of being denied.

How Much Does an FFL License Cost

Fees vary depending upon the type of license you are wanting to obtain. Fees range from $30 for a C&R license up to $200 for other types of licenses. These fees are required to paid when you submit your application to the BATFE. The application fees in no way guarantee that your application will be approved. There may also be fees imposed by the State of Utah if you are wishing to start a business.

Federal Firearms License Types

There are 9 different types of licenses that are available and each one gives you different options when it comes to handling, importing, repairing, manufacturing and selling firearms in Utah.

• Class 01 License: Dealer in Firearms Other Than Destructive Devices. The Type 1 FFL License allows you the ability to deal in Title 1 firearms, it also includes Gunsmiths that may take in and repair weapons.

• Class 02 License: Pawnbroker in Firearms Other Than Destructive Devices The type 02 allows pawnbrokers the ability to take in and return to the person who holds the pawn ticket, firearms that they have loaned money on.

• Class 03 License: Collector of Curios and Relics (C&R). The C&R license allows individuals the ability to collect C&R firearms. These firearms must be manufactured 50 years prior to the current date; this does not include newly manufactured replica firearms. With a C&R license you may purchase these collectible firearms and have them shipped directly to your home thus avoiding any FFL transfer fees and background checks. Please note that avoiding the background checks and FFL transfer fees only apply to those firearms that fall within the category of C&R firearms. You cannot purchase modern day firearms with a C&R license.

• Class 06 License: Manufacturer of Ammunition for Firearms. The type 06 allows you to manufacture ammunition ( with the exception of armor piercing rounds) and sell to the general public. You do not need a 06 license if you reload as a hobby, however, you may not sell any ammunition you reload as a hobby to the general public without facing stiff fines and penalties including incarceration.

• Class 07 License: Manufacturer of Firearms Other Than Destructive Devices: The type 07 license allows you to manufacture firearms. It does not however allow you to sell those firearms you have manufactured. It does not allow you to manufacture any firearm that may fall under the guidelines of the National Firearms Act.

• Class 08 License: Importer of Firearms Other Than Destructive Devices. The type 08 license allows you to import title 1 ammunition and firearms from other countries.

• Class 09 License: Dealer in Destructive Devices. The type 09 license allows you the ability to deal in title 1 firearms and those items which are considered destructive devices by the National Firearms Act. It does not include any other items that may be regulated by the act.

• Class 10 License: Manufacturer of Destructive Devices. The type 10 License allows you the ability to manufacture Title 1 firearms, ammunition, ammunition components and destructive devices. It does not include armor piercing rounds or any other items that may be regulated by the National Firearms Act.

• Class 11 License: Importer of Destructive Devices. The type 11 FFL License allows you the ability to import Title 1 firearms, regulated destructive devices and ammunition.

FFL Dealer Requirements

As an FFL holder you must keep strict records of all transactions. Each sale must be recorded and your paperwork will on occasion be audited by the BATFE. You also must be at least 21 years of age with a clean criminal history. A secure environment may also require as well as adhering to any State of Utah, local or community laws, including zoning requirements if required. You must be a legal resident of the United States. If you have served our country in any of the armed services, you must have had an honorable discharge. You must not have been a psychological patient or a user of controlled substances. Getting an FFL license in Utah may enable you to purchase firearms and ammo at dealer prices. This may enable you to start a great new business or hobby. Contact any of our Utah Federal Firearms License Attorneys today to find out what any associated legal cost may be. By law, a firearms dealer must obtain permission from the federal government to sell firearms. Each dealer needs a federal firearms license, or FFL, issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF. To get a license, you must be at least 21 years of age and pass a background check, which investigates your military, medical and criminal background. You must also meet the rules and regulations your state has established for firearm businesses, which includes getting a business license and a seller’s permit.

• Submit written notification to your local police chief of your intentions to become a licensed firearms dealer. Some police departments may have an official notification form for you to complete.

• Obtain a copy of ATF Form 7 (5310.12)

• Complete ATF Form 7 by entering information about your business, including your business name, contact details, tax ID number and zoning description. You must also indicate the type of firearms you intend to sell. For instance, if you plan to sell basic firearms, such as rifles, shotguns, revolvers or pistols, you would select “Type 1.”

• Take your application packet to a local law enforcement agency to get your fingerprints taken. The fee for fingerprinting services will vary by agency.

• Mail your completed ATF form, fingerprints and the required processing fee to the address indicated on the form. The processing fee varies, depending upon the type of firearms you intend to sell. Higher-powered firearms have a higher processing fee. The processing fee for basic firearms was $200, as of November 2012. You must also include with the application a 2-inch by 2-inch front-view photograph taken within six months leading up to your application.

• Wait for the ATF to contact you requesting an in-person interview. You will be notified of the exact interview date. During the interview, a field investigator will ask questions about your business and your intentions as a firearms dealer. The field investigator will notify the ATF of his interview findings and give the red light or green light on issuing you a firearms dealer license. If the investigator approves, you will receive your official dealer’s license in the mail. You should receive your license within 60 days from the date the ATF receives your initial application for licensing.

Minimum Age to Purchase & Possess

• Individuals under age 18 may not possess a handgun, sawed-off rifle or shotgun, or fully automatic weapon
• Anyone under the age of 18 may not possess any other firearms unless given permission from a guardian or is with a guardian at the time of possession
• Any firearms possessed by minors at amusement parks but be chained to counters
• Firearms possessed by minors while hunting must have attended a hunter’s safety course or firearms safety course
• Minors may participate in organized competition involving firearms
• A Minor may possess a firearm as long as they are on the property with the owner, a licensee, or with parent/guardian
• Minors may possess firearms as long as they have the proper hunting licenses regardless of whether they are resident or nonresidents
• Those under the age of 14 may possess a firearm as long as they are with an adult
• Anyone applying for a concealed firearms permit must be 21 years or older
• Provisional permits may be issued to any applicants between the ages of 18 and 20 years of age

Background check

• There must be a background check given to anyone transferring firearms
• Firearms dealers must obtain an issued photo ID from anyone receiving firearms

Multiple Purchases & Sales of Firearms

• There is no legal limit on the number of firearms that can be purchased at a time Retention of Sales & Background Check Records
• It is prohibited for the BCI to perform any criminal background check before the firearms transfer for any period of time longer than 20 days after the date of the dealer’s request
• It is not required for dealers to keep records of firearm sales

Waiting Periods

• No amount of time is required before purchasing firearms

Dealer Regulations

• There is no law stating that dealers need a state license

Gun Shows

• There are no regulations for gun shows
Licensing of Gun Owners & Purchasers
• There are no laws in place that require a license for gun owners or purchasers

Assault Weapons

• There are no regulations against assault weapons
Large Capacity Ammunition Magazines
• There are no regulations against large capacity ammunition magazines

Fifty Caliber Rifles

• There are no regulations against fifty caliber rifles
Machine Guns & Automatic Firearms
• The transferring or possession of machine guns is prohibited
• No persons under the age of 18 is permitted to possess a fully automatic weapon including machine guns
• Any machine guns manufactured before May 1986 is prohibited
Permit & Carry Restrictions
Concealed Weapons Permitting in Utah
• A permit must be possessed to carry a concealed firearm both unloaded and loaded
• No permit needs to be present for individuals in their own residence, on their own property, in a vehicle of their lawful possession or in a vehicle with the lawful owners
• No permit is needed for individuals carrying in their legally owned business
• Concealed carry permits may be given to those who are 21 years or older
• Provisional permits may be given to individuals 18 to 20 years of age
• Individuals that have been convicted of a felony or a crime of violence may not receive a carry permit
• Individuals that have been convicted of controlled substance usage, as well as use of narcotics, may not receive a carry permit
• Individuals that have been convicted of domestic violence may not obtain a carry permit
• Individuals that have been legally identified as mentally incompetent may not receive their carry permit
• Any permit given can be revoked upon a reasonable cause from the BCI
• Any persons deemed unstable due to any danger to self or others may get their permit revoked
Miscellaneous
• Concealed carry permits allow persons to carry within the state without regulations unless on elementary or secondary school campuses
• Background checks are mandatory for concealed firearm permits
• Persons not eligible for concealed firearm permits:
• Convicted Felons
• Those convicted of a crime of violence
• Convicted of a crime involving alcohol, controlled substance, or illegal substances
• Any conviction involving domestic abuse
• Persons that have been adjudicated as mentally incompetent
• Residents and nonresidents that carry concealed permits or licenses are permitted within Utah
Open Carrying
• Open carrying of a loaded gun is legal as long as the carrier has a concealed weapons permit
• Anyone can carry an unloaded firearm without permit requirement
Guns in Schools
• Firearms are prohibited on the property of private and public elementary and secondary schools
• Firearms are prohibited on public or private higher education school campuses
• Firearms are prohibited inside any rooms of a preschool or childcare operation

Utah’s law prohibits “qualified civil liability actions,” which are defined as civil or administrative proceedings which “result from the criminal or lawful misuse” of firearms or ammunition. Utah’s law contains the same six exceptions provided by the PLCAA:

• an action brought against someone convicted of “knowingly transfer[ing] a firearm, knowing that such firearm will be used to commit a crime of violence” by someone directly harmed by such unlawful conduct;
• an action brought against a seller for negligent entrustment or negligence per se;
• an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought;]
• an action for breach of contract or warranty in connection with the purchase of the product;
• an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or
• an action commenced by the Attorney General to enforce the Gun Control Act or the National Firearms Act.

A firearms manufacturer or licensed dealer is subject only to liability regarding unlawful misuse of a firearm or of ammunition if injury or death results from an act that constitutes gross negligence, recklessness, or intentional misconduct. In addition, Utah law provides that a person who lawfully designs, manufactures, markets, advertises, transports, or sells firearms or ammunition to the public may not be sued by the state or any of its political subdivisions for the subsequent use, whether lawfully or unlawfully, of the firearm or ammunition, unless the suit is based on the breach of a contract or warranty for a firearm or ammunition purchased by the state or political subdivision.

FFL License Attorney in Utah

When you need legal help with gun law and FFL licensing in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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The Second Amendment In Utah

The Second Amendment In Utah

Utah allows for open carry of unloaded firearms without a concealed firearm permit. “Unloaded” as it applies here, means that there is no round in the firing position (or chamber), and the firearm is at least two “mechanical actions” from firing. As carrying the firearm with the chamber empty, but with a full magazine, meets this definition (the handler must chamber a round, and then pull the trigger), this is a common work around for Utah residents who do not wish to acquire a permit. Without the permit, the firearm must be clearly visible. Utah requires a permit to carry a concealed firearm. With a permit, a person may carry a firearm with a loaded chamber either openly or concealed.

Utah will honor a permit issued by any state or county. Utah does not require concealed carry permit holders to notify police officers of their permit or possession of firearms when stopped by police officers, but the state Bureau of Criminal Identification recommends doing so “for the safety of all involved” and to give the officer “some assurance they are most likely dealing with a law abiding citizen.” Utah law allows for a “Non-Resident” Concealed Firearm Permits to be issued. The Utah Concealed Firearm Permit is valid in thirty-four states across the US. However there are several states that have passed statutes that do not honor a “Non-Resident” permit. For example, Colorado will honor Utah’s permit, but the permittee must be a resident of Utah for his permit to be valid. Utah concealed firearm permits are “shall issue” and will be issued to anyone meeting the requirements. Utah is a “Castle Doctrine” state, in which there is no duty to retreat before use of deadly force, if the person reasonably believes that a perpetrator is going to commit a forcible felony in the habitation, and that the force is necessary to prevent the commission of the felony. Since burglary is itself a forcible felony, it is legal to use deadly force to stop a burglar. In Utah a person may carry firearms in some places not allowed by some other states, including banks, bars, public universities, and state parks. With a permit, you may also carry in schools (K-12). Utah’s Uniform Firearm Laws expressly prohibits public schools from enacting or enforcing any rule pertaining to firearms. Utah requires public schools to allow lawful firearms possession. Online classified websites are a common meeting place for buyers and sellers. One highly utilized internet site was the classified advertising section of news station KSL-TV. However, after the Sandy Hook Elementary School shooting in December 2012, KSL temporarily disallowed sales or advertising of firearms. KSL has yet to rescind their stance.

Prohibited persons

There are two categories of persons who may not possess firearms or dangerous weapons under Utah law. Penalties for weapons possession by category I restricted persons are more severe than the penalties for possession by category II restricted persons.

Category I covers persons who have “been convicted of any violent felony” or are “on probation or parole for any felony” or have been “within the last 10 years an adjudicated delinquent for an offense which if committed by an adult would have been a violent felony”. Under Utah law, “A Category I restricted person who intentionally or knowingly agrees, consents, offers, or arranges to purchase, transfer, possess, use, or have under his custody or control, or who intentionally or knowingly purchases, transfers, possesses, uses, or has under his custody or control any firearm is guilty of a second degree felony.”

Category II covers persons who have “been convicted of or are under indictment for any felony” or have “within the last seven years been an adjudicated delinquent for an offense which if committed by an adult would have been a felony” or are “an unlawful user of a controlled substance” or have “been found not guilty by reason of insanity for a felony offense” or have “been found mentally incompetent to stand trial for a felony offense” or have “been adjudicated as mentally defective as provided in the Brady Handgun Violence Prevention Act” or are “an alien who is illegally or unlawfully in the United States” or have “has been dishonorably discharged from the armed forces” or have “renounced his citizenship after having been a citizen of the United States”. A Category II restricted person who purchases, transfers, possesses, uses, or has under his custody or control any firearm is guilty of a third degree felony under Utah law.

NFA firearms

Under Utah state law, “Any person who transfers in violation of applicable state or federal law a sawed-off rifle, sawed-off shotgun, or fully automatic weapon to a minor is guilty of a third degree felony.”

Carrying Concealed Firearms

Utah is a shall issue state for permits for the concealed carry of firearms. Utah law states “The bureau shall issue a permit to carry a concealed firearm for lawful self defense to an applicant who is 21 years of age or older within 60 days after receiving an application, unless the bureau finds proof that the applicant does not meet the qualifications set forth”. Permits are issued to both Utah residents and non residents. Applicants between 18 and 20 may obtain a provisional permit. Persons convicted of a felony, any crime of violence, any offense involving alcohol, any offense involving the unlawful use of narcotics or other controlled substances, any offense involving moral turpitude, any offense involving domestic violence, or persons found by any court to be mentally incompetent are automatically barred from being issued a permit. Any person barred by state or federal law from possessing a firearm may not be issued a permit. Additionally, “The bureau may deny, suspend, or revoke a concealed firearm permit if it has reasonable cause to believe that the applicant or permit holder has been or is a danger to self or others as demonstrated by evidence”.

Examples of such evidence include “past pattern of behavior involving unlawful violence or threats of unlawful violence” or “past participation in incidents involving unlawful violence or threats of unlawful violence”. In determining whether the applicant or permit holder has been or is a danger to self or others, the bureau may inspect expunged records of arrests and convictions of adults, and juvenile court records. However, Utah law also states that “The bureau may not deny, suspend, or revoke a concealed firearm permit solely for a single conviction for an infraction violation of Title 76, Chapter 10, Part 5, Weapons”. Permit holders may appeal a permit suspension, denial or revocation. Utah law states that “In the event of a denial, suspension, or revocation of a permit, the applicant or permit holder may file a petition for review with the board within 60 days from the date the denial, suspension, or revocation is received by the applicant or permit holder”.

Restrictions of Concealed Carry

Even with a carry permit, carrying a concealed firearm is not allowed in any church that notifies the State of Utah and makes public notice. A church must, by state law, make annual notice of this intent to prohibit firearms from their “houses of worship”.

Penalties for concealed carrying without permit

Carrying a concealed firearm without a permit is a class B misdemeanor if the firearm is unloaded (No round in the chamber), and is a class A misdemeanor if the firearm is loaded (Has a round in the chamber). A person who carries concealed a sawed-off shotgun or a sawed-off rifle is guilty of a second degree felony under Utah law. If an unlawfully carried concealed firearm is used in the commission of a violent felony, and the person is a party to the offense, the person is guilty of a second degree felony.
Concealed Carry Permit Reciprocity
Utah recognizes any firearm carry permit issued by any state of the United States, or any political subdivision thereof. As of September 1, 2019 36 States recognize the Utah Permit (two of them require that the permit holder reside in Utah) and 14 States do not recognize the Utah Permit.
Concealed carry on private property
Any person eligible to possess a firearm may carry that firearm, either concealed or unconcealed, in their own home or property, or on any private property with the consent of the property owner. Utah law allows concealed firearm permit holders (CFP), including teachers with a CFP, to carry a concealed firearm on any public school premises.
Specific crimes with firearms
Carrying a firearm with the intent to unlawfully assault another is a class A misdemeanor under Utah law. Drawing or exhibiting a firearm in an angry and threatening manner, or unlawfully using a dangerous weapon in a fight or quarrel in the presence of two or more persons is a class A misdemeanor. This law does not apply when firearms are properly used in self-defense. Negligently discharging a firearm in a manner that disturbs the peace or could damage or harm public or private property is a class B misdemeanor. Discharging a firearm in a manner that significantly endangers any person, or discharging a firearm into any habitable structure is third degree felony. If bodily injury to any person results from such negligent discharge, the offense can be elevated/enhanced to a second or first degree felony, depending upon the severity of the bodily injury or harm caused by the negligent discharge. Any person who carries a firearm while under the influence of alcohol or a controlled substance is guilty of a class B misdemeanor.

Right to keep and bear arms in state constitution

Article I, Section 6, of the Constitution of the State of Utah provides that: “The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms.”

State Right to Bear Arms in Utah

Article I, § 6 of the Utah Constitution, as originally drafted (in effect from 1896 until 1984), provided: “The people have the right to bear arms for their security and defense, but the Legislature may regulate the exercise of this right by law.” The Supreme Court of Utah interpreted this language to allow the state legislature to regulate firearms extensively. Article I, § 6 was amended in 1984. It now states that “[t]he individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms.”

The Second Amendment Preservation Act is Constitutional

Representative Brian Greene, in an effort to support the individual right to keep and bear arms, has sponsored House Bill 114, titled the “Second Amendment Preservation Act.” This bill upholds both the U.S. and Utah Constitutions, each of which declare that this right “shall not be infringed.” HB114 simply strengthens state code to stipulate exactly how that such an infringement will be dealt with.

Specifically, the bill:

• affirms that it is the exclusive authority of the legislature to adopt and enact any and all laws, orders, rules, or regulations regarding the manufacture, transfer, possession, ownership, and use of firearms exclusively within Utah;

• provides that any federal action which purports to impose limitations on firearms contrary to the Second Amendment of the Constitution of the United States, or the Constitution or laws of the State of Utah, is unenforceable in Utah;

• creates a penalty for any enforcement of federal laws contrary to Utah laws or the United States or Utah Constitutions; and

• allows the attorney general to defend state officers, employees, and citizens prosecuted under certain federal laws.

Critics have pounced on this proposal, claiming that it is unconstitutional to pass a law in violation of a federal statute. For their support, they point to the legislative review note on HB114, authored by a staff attorney, which appears at first blush to substantiate their concerns. But this legislative note is incorrect and misleading, and therefore merits a response.

Does HB114 violate the Supremacy Clause?

Attorneys disagree all the time. It’s what they’re employed to do. Judges also disagree, often overturning lower judges’ decisions, or even reversing decisions made by judges in the same court. This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. Obviously, the language regarding treaties is not relevant to this issue. But leaving out the portion of the clause that specifies which federal laws are supreme is highly misleading to the legislators tasked with determining whether or not the pass the bill. In fact, the omitted portion of this clause is the very reason HB114 exists at all! Many believe that federal gun laws are not made “in pursuance of” the Constitution, and are therefore unconstitutional.

Therefore, state legislatures may interpose themselves between such unlawful mandates and their citizens to protect them from unconstitutional federal overreach. This is substantiated by a significant number of statements made in debates during the framing and ratification of the Constitution. The legislative attorney’s incorrect interpretation of the Supremacy Clause, which relies upon omitting three important words from the text of the Constitution, was something that was actually considered by the framers of the document. A small number of them proposed what would be known as the “Virginia Plan” for the Constitution, one of its primary parts being the authorization of veto power by the federal government over all state laws. That plan was not approved. The legislative note further argues that, “While this legislation limits itself to wholly intrastate conduct, it is not beyond the reach of Congress’s power under the Commerce Clause of the United States Constitution.” The reach of Congress’s power can only be justified to the extent that is based upon its constitutionally-delegated powers. The Commerce Clause states that, “[The Congress shall have Power] to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

So what does it mean to “regulate”?

Whether it means to micro-manage, as has recently been concluded in numerous Supreme Court cases, or to “make regular” (ensuring commerce flows freely), as some have argued, is ultimately irrelevant. This clause is restricted both by the prevailing colonial definition of “commerce,” which was mercantile trade and not anything indirectly connected to it, as well as being limited to commerce “among” (and not within) the several states. In other words, even if Congress had been constitutionally conferred the authority to prohibit or mandate certain forms of commerce (which is a highly contestable point), they could only do so when such commerce moved (or was clearly going to move) from one state to another. It is illogical to conclude that the framers of the Constitution generally consented to a national government which could regulate, mandate, or prohibit economic activity within a family or community or state. As the legislative note explains, however, there is “long-standing interpretation” by the Supreme Court which has allegedly authorized Congress to micro-manage any economic activity, whether it is interstate (“among the several States”) or intrastate (wholly within a single state). It is illegal in Utah for a person under the influence of alcohol or a controlled substance to carry a dangerous weapon. Unfortunately, this result criminalizes some legitimate situations in which a person should still retain the right to carry and use a firearm.

Second Amendment Lawyer Free Consultation

When you need legal help with gun law in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Firearm Purchasing Requirements

Gun Control Act Of 1968

Laws imposing minimum age requirements for the possession and purchase of firearms are intended to decrease access to firearms by young people and, correspondingly, to decrease the number of suicides, homicides, and unintentional shootings among that population. Given that young people are at elevated risk of engaging in violent behaviors against themselves or others, these laws have the potential to protect a particularly vulnerable group.

Minimum Age for Gun Possession

Subject to limited exceptions, federal law prohibits the possession of a handgun or handgun ammunition by any person under the age of 18.15 Federal law provides no minimum age for the possession of long guns or long gun ammunition. Federal law provides exceptions for the temporary transfer and possession of handguns and handgun ammunition for specified activities, including employment, ranching, farming, target practice and hunting. Several states impose minimum age requirements that extend beyond those contained in federal law. Those laws generally fall into four categories:
• Laws imposing a stricter minimum age for handgun or firearm purchases than federal law;
• Laws imposing a minimum age for all long gun purchases, from licensed or unlicensed sellers;
• Laws imposing age requirements for possession of handguns that are stricter than federal law; and
• Laws imposing a minimum age for possession of long guns.
Although federal law prohibits licensed dealers from selling long guns to persons under 18, there is no federal regulation of the sale of long guns by unlicensed dealers to minors. Similarly, while federal law prohibits handgun sales by licensed dealers to persons under 21, unlicensed dealers are prohibited only from selling handguns to persons under 18. Many states have imposed a minimum age for the purchase of all firearms, including both handguns and long guns, regardless of whether they are purchased from a licensed firearms dealer. Licensing laws ensure that gun owners have passed a background check before they purchase a gun. In contrast to states which require a background check at the point of sale of a firearm, licensing laws typically require an in-person application at law enforcement agencies, which provides an additional safeguard against fraud or inaccuracies that could allow dangerous individuals to obtain guns. Licensing laws that require periodic renewal can also reduce gun crimes by helping law enforcement confirm that a gun owner remains eligible to possess firearms and facilitating the removal of firearms from people who become ineligible. Furthermore, licensing laws can help to empower safe and responsible gun ownership. Many states will only issue or renew license after an applicant has completed a safety training course and firearm safety tests showing that the applicant knows relevant gun laws and how to safely load, fire, and store a gun.

Studies show that these attributes of licensing laws can lead to significant reductions in both gun homicides and gun suicides.
• When Connecticut passed a licensing law, its firearm homicide rate decreased by 40% and its firearm suicide rate decreased by 15%.
• Conversely, when Missouri repealed its licensing law, its firearm homicide rate increased by 25% and its firearm suicide rate increased by 16%.
• A study of licensing laws across 80 large urban counties found that these laws are associated with an 11% decrease in firearm homicides.
Licensing laws also help to prevent gun trafficking and the diversion of guns to criminals.
Who’s restricted from purchasing or possessing firearms?
Fugitives, people deemed a danger to society and patients involuntarily committed to mental institutions are among those who may not purchase firearms. People with prior felony convictions that include a prison sentence exceeding one year, or misdemeanors carrying sentences of more than two years, are also prohibited from purchasing firearms. Federal law also blocks the sale of guns to people who have been found guilty of unlawfully possessing or using controlled substances within the past year. This includes marijuana, which, though legalized in many US states, remains illegal under federal law. Other restrictions apply to people who have been issued restraining orders by courts to prevent harassment, stalking or threatening; people who have renounced their citizenship; dishonorably discharged military personnel; unauthorized migrants; and people temporarily visiting the US on non-immigrant visas,
Does the federal or state government regulate firearms?
The Second Amendment serves as the legal basis for the “right of the people to keep and bear arms.” Though state and local governments regulate whether residents may, for example, carry guns in public, laws regulating who may receive or possess guns are set out at the federal level. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), a division of the Department of Justice, administers the GCA. The ATF also regulates the standards for issuing licenses to gun vendors. Shotguns, rifles, machine guns, firearm mufflers and silencers are regulated by the National Firearms Act of 1934. The purchase of semi-automatic weapons is legal in most states, as are automatic weapons made before 1986.
Who may sell firearms?
Like handgun owners, dealers interested in obtaining a Federal Firearms License (FFL) must be at least 21 years of age. They must have premises for conducting business and must alert a local law enforcement official at the time of submitting their applications to the federal bureau that regulates firearms. Just like gun owners, they must fulfill the same criteria regarding their history of prior convictions and mental state. The license fee costs $200 (€170) for an initial three-year period and $90 for each subsequent three-year-long renewal. Selling firearms online also falls under these regulations. Although the purchase may be paid for online, the gun itself must be shipped to a registered FFL holder, who then conducts the necessary background check before handing the firearm over to its owner. However, the law is unclear on what constitutes selling guns for profit. Any individual may sell firearms without a license if his or her motive isn’t to make profit for livelihood through repeated and regular sales.
Is a background check required to purchase a firearm?
The amendment to the 1968 Gun Control Act known as the Brady Handgun Violence Prevention Act of 1993 requires holders of FFLs to conduct a background check. Potential firearm purchasers fill out a federal form known as the ATF 4473, which checks for prior convictions and other red flags. FFL holders then use the information provided on the form in the background check. States may decide whether the background check is carried out solely by the FBI’s National Instant Criminal Background Check System (NICS) or a combination of the NICS and state agency information. Roughly 30 states rely solely on the NICS. Estimated to take under 10 minutes by phone or online, the check gives the FFL holder an immediate answer: approve, delay or deny. A delay indicates the need for further research for three business days, after which point FFL holders can act at their own discretion if the research proves inconclusive. The Brady law, however, does not apply to someone who is obtaining a firearm from an individual without an FFL.

Do states require permits to carry firearms?

Most states require permits to carry handguns. Concealed carry and open carry vary by state. Some states allow residents to carry handguns without permits. By contrast, virtually no state requires a permit to carry rifles and shotguns. Utah requires people carrying rifles and shotguns to bring along a form of ID or firearms identification. The law on selling, receiving and possessing firearms is clear. Yet not every individual providing the gun in a transfer requires an FFL, which in turn means that not every buyer is legally subject to a background check. This potentially enables guns to fall into the hands of users who might otherwise not be allowed to own a firearm. According to the ATF, anyone can sell a gun without an FFL from their home, online, at a flea market or at a gun show as long as he or she is not conducting the sale as part of regular business activity. One example would be someone who sells a firearm from his or her personal collection. Others who are exempt include those giving guns as gifts. Only individuals whose “principal motive” is to make a profit via sale must obtain an FFL. Commonly referred to as the “gunshow loophole,” this ambiguity also explains how a purchase can occur without a background check and without breaking the law. A gun may also be purchased on behalf of a third party as long as it is a gift and as long as the recipient does not violate federal restrictions on gun ownership to the best of the gift giver’s knowledge. The same applies to the general transfer of guns. Children younger than 18 may possess guns that were given to them by parents or guardians as gifts provided that they have written permission. Though there are many ways to obtain guns illegally — through gun trafficking, theft and “straw purchases” — there are thousands of avenues for legal sales. Gun shows often feature a mix of exhibitors selling guns, ammunition, holsters, targets and other items. Some are federally licensed dealers who must follow the same regulations as if they were operating out of a store. But gun shows are also frequented by private collectors who set up tables to buy, sell and trade guns. These sales do not require a federal license if they’re made between two people in the same state. And they don’t require a background check. This exception to the background check system is commonly known as the “gun show loophole,” and there have been several unsuccessful attempts in Congress to close it.

Utah’s Gun Control Laws

• Utah does not require a permit to possess a rifle, shotgun or handgun, and no permit is required to buy one.
• A criminal background check is required if a gun is purchased from a licensed dealer.
• Utah do need a permit to carry a concealed weapon. With those permits, Utah can openly carry a fully loaded firearm anywhere that is not listed as off-limits. A permit is not required to keep a gun inside a vehicle.
• Guns are not allowed in courthouses, mental health facilities, correctional facilities, airports, and houses of worship that have given notice they are not allowed.
• They are also not allowed in places that are prohibited federally, including most federal properties like post offices and rented federal offices.
• On land managed by the Bureau of Land Management, firearms are allowed based on the legal carry rules of the state, except in areas posted as no firearms allowed.
• Carrying a loaded firearm on a public street is not allowed without a permit, and it is illegal to carry a concealed firearm without a concealed carry permit.
• A gun that is unloaded and “securely” put away is not considered a “concealed weapon” though, and does not require a permit.
• Utah permits for concealed firearms are honoured in some neighbouring states, including Nevada, Arizona, Wyoming and Idaho, but not in others, including California and New Mexico.
• Cities, towns and other local governments are not allowed to create their own regulations regarding gun ownership or firearms, unless specifically approved by the state legislature.
• Utah does not prohibit the possession or transfer of machine guns, although people younger than 18 cannot own any fully automatic weapon. It is a felony to sell or transfer a gun to a minor.

Firearm Carry Laws

There are two ways firearms are carried in Utah, concealed carry and open carry. The names are self descriptive with an open carried firearm being visible to everyone and a concealed carry firearm being hidden from view. No federal law has ever covered the issuance of permits to carry firearms in the Utah. It has been left to all the 50 individual states in the US to determine how they will issue permits or if a permit is even required to openly or conceal carry firearms. All states will allow in theory the carry of firearms. However, there are some states that make the application process so difficult that in practice a regular citizen is banned from having a handgun. These states are usually the ones that have a “May Issue” policy.

Concealed carry laws are mostly grouped into three categories or issue policies. Up until recently there was four categories but the fourth category “No Issue” has all but been banned from the Utah by court rulings that it was unconstitutional. The three other categories are:

• Unrestricted: Does not require a permit to carry a firearm and is often referred to as Constitutional Carry.

• Shall Issue: Requires a permit to carry a firearm. Applicant only has to meet the requirements set by law such as minimum age, training, background checks etc.

• May Issue: Again a carry permit is required but laws can be restrictive and in some states impossible to comply with. Often an applicant will be asked to demonstrate a justifiable need for a permit to be issued. It is left to the discretion of law enforcement as to whether a permit to carry will be issued and a few states such as Hawaii will refuse to issue a permit to anyone.

The May Issue states are slowly disappearing with court rulings against their gun policies. The laws vary greatly for each state with states that do not have an open carry law or require a permit to an outright ban on open carry. In the states that have no open carry law you will often find that the local authorities have ordinances in place to regulate the open carrying of firearms. Permits to purchase a firearm are required in some states. These permits can just cover handguns or be extended to long guns and ammunition in the more restrictive states. Utah requires a buyer to have a FOID card to purchase any firearm or ammunition although lately they have allowed concealed carry permits to be used for purchases. But the buyer must still have been issued a FOID card. Other states will also often allow a concealed carry license to be used as a purchase permit. Background checks are required by federal law on all persons purchasing a firearm from a licensed dealer. To facilitate these checks the FBI maintains a database where all requests are processed through called the NICS (National Instant Criminal Background Check System).

Stand Your Ground Laws

Stand Your Ground, commonly known as “Castle Doctrine” laws that permit a person to defend themselves with deadly force and with no duty to retreat have been enacted in 27 states. These laws vary from state to state in the conditions that it may be used such as the degree of retreat, places covered and if there is any non lethal force required before using deadly force. Most of these laws will have some of the following conditions:

• An attempt to forcibly and unlawfully enter an occupied vehicle, business or residence.

• The intruder cannot have been provoked by the occupants of the home.

• There must be a reasonable belief by the occupants of the home the intruder will cause death or serious bodily harm to them. There are a few states that allow stand your ground laws to be used for less serious felonies such as burglaries or arson.

• The intruder is required by most of these laws to be acting unlawfully.

• These laws cannot be used against law enforcement officers who are legally carrying out their duties. Such as when they are forcibly entering a premises to arrest a person.

To use the law occupants must be legally in the building or vehicle. If they are a fugitive or helping another fugitive then they cannot defend themselves with deadly force. In addition to Utah’s firearm statutes, federal gun laws also regulate gun ownership, mostly by restricting the kinds of guns a person may legally own. As noted above, the Second Amendment does allow citizens to own certain firearms, but courts have allowed the government, both state and federal, to place some restrictions on the types of firearms people can own, who may purchase them, and how they can be purchased. In cases where federal and state laws overlap, federal law is always superior. Therefore, Utah gun owners are also subject to the Brady Handgun Violence Prevention Act and the National Firearms Act.
Utah Concealed Carry Permit

Requirements For Utah Concealed Carry Permit

Standard Permit
• Must be at least 21 years of age.
• Proof of good character.
• Completed a firearms familiarity course certified by BCI.
• Has not been convicted of a felony.
• Has not been convicted of any crime of violence.
• Has not been convicted of any offense involving the use of alcohol.
• Has not been convicted of any offenses involving the unlawful use of narcotics or other controlled substances.
• Has not been convicted of any offenses involving moral turpitude.
• Has not been convicted of any offense involving domestic violence.
• Has not been adjudicated by a court of a state or of the United States as mentally incompetent, unless the adjudication has been withdrawn or reversed.
• Is qualified to purchase and possess a firearm.
• Federal Law Requirements

Provisional Permit For Utah Concealed Carry

Persons aged between 18–21 can obtain a provisional permit. Apart from the age, the requirements are the same as those for a standard permit. These permits are also issued to non-residents. However, there are a number of states that will not honor the provisional permit as the required age to carry concealed is 21 in these states.

Firearms Purchase Requirements Free Consultation

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question – especially if it is about gun law – call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Firearms Owners Protection Act

Firearms Owners Protection Act

On May 19, 1986, the Firearms Owners’ Protection Act (FOPA) was signed into law. The first comprehensive redraft of the federal firearm laws since 1968, FOPA was predictably lauded as “necessary to restore fundamental fairness and clarity to our Nation’s firearms laws” and damned as an “almost monstrous idea” and a “national disgrace.” The controversy was not limited to the rhetorical. Seven years passed between FOPA’s introduction and its Senate vote; the House vote required passage of a discharge petition only the eighth to succeed in the last twenty-six years. FOPA’s impact, however, is not limited to the Gun Control Act, nor even to federal statutes. By expressly exempting interstate transportation of firearms from the reach of many state firearm laws, it affects state proceedings as well. A detailed comprehension of FOPA is thus essential to an understanding of both federal and state firearm laws. Unfortunately, such a comprehension is not easily achieved. FOPA reflects not a simple, single legislative decision, but a complex series of compromises, many of which are only partially reflected in the record. Even where the record is complete, it is rarely clear. The House bill that ultimately became FOPA is supported by a report, but the report explains not why FOPA should have been adopted, but rather, why it ought to have been rejected.

Pre-1986 Federal Firearms Laws

Nationalization of Firearm Regulation: The National Firearms Act of 1934 and Federal Firearms Act of 1938. Firearms and weapons control statutes are by no means a legislative novelty. The first handgun ban was enacted in 1837, restrictions on sale or carrying of handguns were commonplace by the turn of the century, and the National Conference of Commissioners on Uniform State Laws spent seven years in the 1920s preparing a uniform state act on the subject. Nonetheless, prior to 1934, the sole federal statute on the subject was a 1927 ban on use of the mails to ship firearms concealable on the person. The late 1920s and early 1930s brought, however, a growing perception of crime both as a major problem and as a national one. Public officials did much to support the perception; the mobility of the automobile enabled criminals, in those pre-police radio days, to move between jurisdictions before police units could generally be alerted; such criminal gangs found the sub machinegun (a fully automatic, shoulder-fired weapon utilizing automatic pistol cartridge) and sawed-off shotgun deadly for close-range fighting. The resulting quest for law enforcement solutions approached the incredible.

Expansion of National Firearms Laws: The Gun Control Act of 1968

The National Firearms Act and Federal Firearms Act formed the backdrop for the next major federal firearms legislation, the two statutes known collectively as the Gun Control Act of 1968. As is often the case, the dry legal history of that Act covers a complex legislative reality. In the post-war years, domestic firearms manufacturers encountered heavy competition from home hobbyists who converted inexpensive imported military arms into hunting and target rifles. “Mail order houses” imported such arms for a pittance and resold them to a national market. Domestic arms manufacturers saw their sporting markets undercut and began pressing for protective measures. Protests to the State and Defense Departments over issuance of surplus import licenses yielded little result. The industry then sought a legislative remedy and in 1958 secured passage in the House of a rider to the Mutual Security Act that would have barred virtually all surplus arms imports. The National Rifle Association took issue with the manufacturers and strongly opposed the amendment. The Senate, citing possible violations of the General Agreement on Trades and Tariffs, limited the restriction to re-importations of American arms, a restriction which prevailed in conference. After this failure, the firearms manufacturers approached Senator Dodd, with arguments and suitable tribute was introduced in August 1963 and had extremely limited scope.

Prohibited Persons

S. 1-90 would have barred firearms receipt by fugitives from justice and persons under indictment for, or convicted of, a crime punishable by imprisonment exceeding one year, a term defined to exclude antitrust, unfair trade, and similar infractions. These provisions were, in the main, borrowed from the Federal Firearms Act, which, however, applied this bar only to sales in interstate commerce. S. 1-90 would have allowed persons convicted of such violations–other than violations of the federal firearms laws to apply for an administrative “relief from disabilities,” by which Treasury, upon proof of good character, might restore the right to own or deal in firearms. The latter provision was taken from a 1965 amendment to the Federal Firearms Act, sponsored by Dodd to deal with the problems of a firearms manufacturer. Additionally, under S. 1-90, dealers would have been barred from selling rifles or shotguns to persons under eighteen years of age, or any other firearms to persons under twenty-one years of age, and they would have been generally forbidden to sell any firearm to those whom they knew or should have known “could not lawfully purchase or possess in accord with applicable laws, regulations or ordinances of the State” or locality in which the transferee resided.

Dealer Licensing

S. 1-90 would have required persons “engaged in the business” of firearms dealing to obtain licenses. This was an expansion of the Federal Firearms Act, which required licensing only if the person “engaged in the business” and shipped or received firearms in interstate commerce. While the Federal Firearms Act licenses were issued upon request, and revoked only upon criminal conviction, S. 1-90 provided that the Secretary “may” issue such licenses and must deny them if the applicant was “by reason of his business experience, financial standing, or trade connections, not likely to commence business operations.” Persons who had wilfully violated the Act or who lacked “business premises'” were likewise denied a license. Dealers were obliged to maintain records fixed by regulation, and their premises were open to inspection at will during business hours.

Interstate Sales

The Federal Firearms Act barred interstate sales between non-prohibited persons only when the buyer’s state required, and the buyer lacked, a license to purchase. S. 1-90 drew a line between “long arms” (shotguns and rifles) and other firearms (primarily handguns). Persons who were not licensed dealers could purchase handguns only in their state of residence. Residents of different states could sell each other rifles and shotguns so long as the receipt did not violate state or local law at the buyer’s place of residence. Dealer “mail order sales” of any firearms were barred by a provision barring a licensee from shipping firearms or ammunition to a non-licensee in interstate commerce.

National Firearms Act Weapons

The National Firearms Act required licensing of all machineguns, silencers, and short-barrelled rifles and shotguns. S. 1-90 would have imposed similar restrictions on “destructive devices,” including bombs, grenades, and firearms with a bore over .50 caliber. Sales of National Firearms Act weapons and destructive devices by a licensed dealer required an affidavit of approval from the chief law enforcement officer of the purchaser’s jurisdiction, and interstate transportation of such arms would have required approval by the Secretary.

Importation

S. 1-90 would have barred firearms imports subject to a few exceptions, the most important being rifles, shotguns, and non-military handguns “generally recognized as suitable for or readily adaptable to sporting purposes.” The day before S. 1-90’s introduction, Senator McClellan introduced S. 917, “The Safe Streets and Crime Control Act of 1967.” In committee, the bill was renamed “The Omnibus Crime Control and Safe Streets Act of 1967” and a new Title IV, dealing with firearms, was added. Title IV tracked S. 1-90 in all but a few details; it did not, for example, prohibit mail order sale of rifles and shotguns, nor place minimum age limits on their purchasers. After lengthy debate, the Senate passed S. 917 with several amendments. One amended the exemption for “antique” firearms, which were not subject to the Act, advancing the cut-off date to 1898 from the committee’s 1870 cut-off. A second changed the prohibition on dealer’s sales in violation of state or local law or ordinance. Under the amendment, the dealer’s obligation was to avoid sales barred by state law or a “published ordinance,” the latter being one determined by the Secretary of the Treasury (the Secretary) to be relevant to purposes of the Act and so published in the Federal Register. A third amendment was more significant and, regrettably, less well thought out. It amended S. 917 to add a new title VII, which prohibited certain persons not only from receiving, but also from possessing firearms. The list of prohibited persons did not, however, tally with that in Title IV. To Title IV’s list of convicted felons and fugitives from justice, Title VII added persons given a dishonourable discharge by the military, those judicially adjudged “mentally incompetent,” those who had renounced their citizenship, those who were aliens unlawfully within the state., or those who were acting in the course of employment of any of the other classes. Nor did the discrepancy end there: Title IV had defined a felon as one convicted of a crime punishable by more than one year’s imprisonment, excluding certain business-related offenses, while Title VII simply used the term “felony.” Title IV excepted from this class a person given “relief from disability”; Title VII excepted a person pardoned and “expressly authorized” to own firearms. The Senate substituted S. 917, with these amendments, for the House-passed version of the bill, and the House accepted the Senate version. Thus did Titles IV and VII become law.

Enactment of the Firearms Owners’ Protection Act

One of the last House amendments to the Gun Control Act added section 101, declaring that “it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law abiding citizens with respect to the acquisition, possession, or use of firearms.” Enacting FOPA nearly two decades later, the Congress expressly found that “additional legislation is required to reaffirm the intent of the Congress, as expressed in section 101 of the Gun Control Act.” Between the two statements lay eighteen years of experience and a seven-year legislative gestation period whose intricacies rivalled those of the Gun Control Act itself. Enforcement of the Gun Control Act was initially delegated to the Alcohol and Tobacco Tax Division of the Internal Revenue Service, which had previously enforced the National Firearms Act and Federal Firearms Act. In 1969, this agency became the Alcohol, Tobacco, and Firearms Division; three years later it achieved full bureau status as the Bureau of Alcohol, Tobacco and Firearms (BATF). To the stresses of growth was added the virtual collapse of BATF’s traditional duties of enforcing the alcohol taxes. Almost forty percent of BATF’s manpower was directed at a law enforcement problem that had all but vanished. The agency response was a series of heavily publicized projects to demonstrate a potential for firearms operations. Agents and supervisors were implicitly or explicitly assigned quotas and older agents were increasingly replaced with younger, more zealous operatives. Pressure for results, coupled with extremely loose control, led to stringent enforcement of the Gun Control Act’s provisions. This was hardly the first time a statute with broad enforcement powers had been pushed to the limit but BATF’s victims were typically appealing citizens and were represented by relatively well-connected organizations. Even so, the opening skirmish came not over law enforcement, but over the Gun Control Act’s creation of a secretarial power to require submission of reports by licensees. BATF’s attempt to use this power to require manufacturers, importers, and wholesalers to report firearm transfers for agency data processing led to a credibility-damaging legislative fight and prohibitory riders on Treasury appropriations.

Dealer Licensing

A dealer’s license would be required of anyone “whose time, attention and labour is occupied by dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of an inventory or [sic] firearms.” Persons making occasional sales or selling all or part of a “personal collection” were expressly excluded.

Interstate Sales

Sales to non-residents by dealers and non-dealers alike would be allowed unless receipt of the firearm by the purchaser “would be in violation of any published ordinance or law of the state or locality where such person resides.”

Prohibited Persons

Inconsistencies between Title VII and Title IV prohibitions would be resolved by repealing Title VII and merging its prohibited person classes with those of Title IV. The result would be a single set of provisions barring possession or receipt by, and sale or transfer (by dealer and non-dealer alike) to a list of prohibited classes. The bar on possession by felons would be narrowed to those convicted of certain “disabling crimes” defined as violations of twenty-three chapters of the United States Code “or any similar crime.” Persons under indictment were not included within the proscription, nor were persons with convictions “set aside or expunged.”

Enforcement

Criminal prosecution would require proof of a wilful violation. Forfeiture would require conviction; any verdict other than guilty, or failure to prosecute within 120 days of seizure, would require return of the seized property. Only firearms named and “individually identified” as involved in or used in (not “intended” to be used in) a wilful violation would be subject to forfeiture. License revocation would be barred if criminal charges were filed and the licensee was not convicted. Attorneys’ fees “shall” be allowed to victorious claimants in forfeiture actions and “may” be allowed in other actions in which the court finds charges were without foundation, or brought vexatiously, frivolously or in bad faith.

Records

Warrantless inspection of the premises of a licensee would be allowed only when reasonable grounds existed to believe evidence of a violation of the chapter might be found.

Rulemaking

A minimum of ninety days’ public notice would be required; “One-House Veto” provisions were established. No rule could require records to be transferred to a federal or state facility, or establish a system of firearm registration.

Mandatory Sentencing

The Gun Control Act’s additional sentence (technically, an additional offense) for use or unlawful carrying of a firearm in a federal crime would be made mandatory on first offense, rather than on second.

Interstate Transportation

Any state law or regulation prohibiting the transfer of a firearm in interstate commerce through the state “provided that the firearm is unloaded and not readily accessible” would be rendered null and void. These original forms of FOPA saw no legislative action in the Ninety-sixth Congress. A successor, S. 1030, was introduced in the Ninety-seventh Congress. S. 1030 as introduced contained several significant changes from S. 1862. First, S. 1030 added a prefatory statement of purpose, citing the objective of protecting individual rights under the second, fourth, fifth, ninth and tenth amendments along with rights granted under the Privacy Act, and adding a finding that the purposes of the Gun Control Act had been thwarted by harassment of law-abiding citizens. A second, substantive change completely restructured treatment of “prohibited persons.” S. 1862’s attempt to define specific “disabling” offenses was dropped, and the Gun Control Act’s broad inclusion of non-business felonies was retained, together with its bar on receipt (but not possession) by those under indictment.

Gun Lawyer Free Consultation

When you need legal help with a gun, machinegun, or firearm in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Criminal Vs Civil Penalties For Firearms Injuries

Criminal Vs Civil Penalties For Firearms Injuries

A firearm-related injury is defined as a gunshot wound or penetrating injury from a weapon that uses a powder charge to fire a projectile. This definition includes gunshot injuries sustained from handguns, rifles, and shotguns but excludes gunshot wounds from air-powered, gas-powered, BB and pellet guns, as well as non-penetrating injuries associated with firearms (e.g., “pistol whipping”).

Who is at risk for a firearm-related injury?

Rates of fatal and nonfatal firearm injuries are not distributed equally in the population. Age, gender, and race/ethnicity are among some of the factors that distinguish population groups most at risk of a firearm injury.

Gunshot injuries

Gunshot injuries occur when someone is shot by a bullet or other sort of projectile from a firearm. Peace time gunshot injuries occur in a variety of different situations – criminal and terrorist incidents (including shots fired by law enforcement agents), attempted suicides as well as unintended firearm ‘accidents’ (both civilian and amongst the armed forces). Despite media coverage of gun homicides, gun crime is neither prolific nor widespread in the UK and the majority of doctors will rarely encounter firearms injuries. Expertise usually resides with military surgical services or pooled within regional trauma centres.

Mechanism of injury

There are many different types of bullets but the most common type is composed of a lead core with some type of casing. On striking, the projectile element may travel at speeds of up to 1,500 metres/second, dependent on the ammunition and type of gun. The most important factors in causing significant injury or death are their placement and projectile path. The head and torso are the most vulnerable areas, with incapacitation due to CNS disruption or massive organ destruction and hemorrhage. The extent of tissue and organ trauma will depend on terminal ballistics, which are influenced by the type of bullet, its velocity and mass as well as the physical characteristics of the penetrated tissue.

Injury is inflicted in a number of ways:
• Firstly, the projectile crushes structures along its track, similar to other forms of penetrating injury. Temporary cavitations causes shearing and compression, sometimes tearing structures (as with solid abdominal viscera) or stretching inelastic tissue (the brain is particularly susceptible), analogous to blunt trauma. As tissues recoil and hot gases dissipate, soft tissue collapses inwards with the permanent cavity being the resultant defect. Bullets which display greater yaw will be associated with increased temporary cavitations.

• Secondly, kinetic energy transfer occurs during retardation of the bullet and this may cause damage outside the tract.
Factors influencing the efficiency of kinetic energy transfer include:
• Kinetic energy of a body which is proportional to mass and velocity.
• Projectile’s deformation and fragmentation.
• Entrance profile and path travelled through the body.
• Biological characteristics of the transit tissues.
Projectiles tend to be classified as low-velocity (<300 hm/second) or high-velocity (>300 hm/second). Those with higher velocity may be expected, on this basis, to dissipate more energy into surrounding tissue as they slow and cause more tissue damage but this is only a very approximate guide. This ‘kinetic energy dump’ theory is controversial, since high-velocity injuries are frequently less extensive than would be predicted and fragmentation appears to be the most effective mechanism for wounding rather than yawing or other mechanisms for slowing high-velocity rounds quickly.

Secondary contamination.

Interpretation of fatal gunshot wounds in post-mortem is fraught and requires expert attention.

Prevention

Body armour offers some protection against injury from high-velocity weapons but has considerable limitations. The protection offered is graded I to IV. By and large, I and II will protect against handguns but assault rifles and other high-power weapons require ceramic tiles to give grade III or IV. Like mediaeval armour they are rather heavy and cumbersome.

Gun control

Moderating the injury and death caused by the violent use of guns is a very valid public health issue. The right to bear arms in the USA is enshrined in its constitution and has been ardently and effectively protected by the National Rifle Association, whilst the UK has some of the strictest gun control laws in the world. The massacre of school children and their teachers in Dunblane caused public outcry and subsequent legislation to impose even tougher restrictions on the legal owners of handguns, although there is little evidence that this has saved any lives. Amnesties allowing people to hand in illegal firearms often produce impressive responses but those who hand weapons in are unlikely to use them. During the month-long firearms amnesty in April 2003, over 43,000 guns were surrendered in England and Wales and 3,393 in Scotland.

Although many states divide the crime of murder into first and second degree murder laws, the Beehive State only has murder and aggravated murder. Aggravated murder carries heavier penalties and includes the crime of murder in addition to other elements that make it a more serious crime. The following is a brief summary of Utah murder laws.

Utah Murder Laws

Murder is causing the death of another person under any of the following circumstances:

Intentionally or knowingly

While committing an obviously dangerous act with the intent of causing serious bodily injury Knowingly engaging in conduct which creates a grave risk of death to another person and under circumstances which evidence a depraved indifference to human life. While engaged in the commission, attempted commission, or immediate flight from the commission or attempted commission of a select felony or as party to any of those felonious crimes. Recklessly causing the death of a peace officer or uniformed military service member while committing or attempting to commit assault against a peace officer or uniformed military service member or while interfering with a peace officer who is making a lawful arrest

Aggravated murder is intentionally or knowingly causing the death of another person under any of the following circumstances:

• While the defendant is in jail or a correctional institution
• The act caused the murder or attempted murder of two or more
• While knowingly creating a great risk of death to two or more
• While committing or attempting to commit aggravated robbery, robbery, rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy upon a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, child abuse, aggravated sexual assault, aggravated arson, arson, aggravated burglary, burglary, aggravated kidnapping, kidnapping, or child kidnapping.

• The murder was a result of child abuse, child kidnapping, rape of a child, object rape of a child, sodomy of a child, sexual abuse, or aggravated sexual abuse of a child and the defendant was acting with reckless indifference to human life and a major participant in the underlying crime.

• While abusing or desecrating a dead human body
• In order to avoid or prevent an arrest or assist in an escape
• For pecuniary gain
• Through a hired third party
• Upon a prior conviction of a particularly violent crime such as aggravated murder, attempted aggravated murder, murder, attempted murder, aggravated assault, mayhem, kidnapping, rape, forcible sodomy, sodomy of a child, aggravated sexual assault, aggravated arson, aggravated burglary, aggravated robbery, felony discharge of a firearm, or any other crime which would constitute one of the above offenses if convicted in Utah.

• In retaliation against a person for acting as a witness or providing evidence or to disrupt/hinder law enforcement or a governmental function

• The defendant knew/should have known the victim was a public official, a candidate for public office, officer, jailer, prison official, firefighter, judge, court official, or juror and the victim was on duty or the murder was related to the victim’s position
• By means of a destructive device such as a bomb which was planted, hidden, or concealed or a weapon of mass destruction
• While assuming control of an aircraft, train, or other public conveyance through threat or force with the intent of redirecting or exerting control over the conveyance or obtaining something of value for release of the conveyance, passengers, or crew members
• By using a poison or any lethal substance
• The victim was used as a shield or for ransom or held as a hostage
• The murder was especially heinous, atrocious, cruel, or completed in an exceptionally depraved manner
• The defendant dismembered, mutilated, or disfigured the victim’s body in a manner demonstrating the actor’s depravity of mind
• The victim was under 14 years of age (and not an unborn child)
Defenses

If the defendant had reasonable belief of a legal justification or excuse for his or her conduct under the circumstances, then the crime may be reduced from murder to man-slaughter or from attempted murder to attempted manslaughter. An example is if the defendant was acting under extreme emotion disturbance (a.k.a. heat of passion) at the time of the killing.

Penalties

Murder is a first-degree felony punishable by life imprisonment and up to $10,000 in fines.
Aggravated murder is punishable by death or life imprisonment. If the death penalty is sought, it is a capital felony. Otherwise, it is a first-degree felony.

When is it a Crime to Fire or Shoot a Gun in Utah

Compared to many other states, Utah has lenient gun laws. However, certain gun-related offenses are still subject to very harsh penalties if a defendant is convicted. One example of such a crime is felony discharge of a firearm, which can lead to many years of prison time in addition to financially devastating criminal fines. A conviction of this offense will also lead to the loss of the defendant’s gun privileges. However, before discussing the criminal penalties, it is vital to explain how this offense is defined under Utah’s criminal laws. As a defendant, it’s important that you have a clear understanding of the actions you are being accused of committing. Felony discharge of a firearm is defined by Utah Code § 76-10-508.1. This statute does not apply to people who fire a gun: For professional or lawful purposes (e.g. practicing at a shooting range, hunting with an appropriate permit, going through a training exercise for police officers). In lawful self-defense. In the lawful defense of other people. Where applicable, the above exceptions may be raised as legal defenses to charges alleging felony discharge of a firearm. The statute also does not apply to people who fire weapons from a highway area or a vehicle, a crime which is charged under a different statute (Utah Code § 76-10-508). Outside of these exceptions, it is generally a felony to fire a gun in Utah, be it a shotgun, handgun, rifle, or other type of firearm.

What Are the Penalties for a Felony Weapons Crime in Utah?

As the name of the offense makes clear, discharging a firearm in Utah is generally a felony unless the person is charged with a lesser offense or has a legal justification for shooting, such as acting in self-defense. A felony is a much more serious type of crime than a misdemeanor, not only in terms of the penalties that can be imposed by Utah’s District Courts, but also in terms of the stigma around felonies. While misdemeanors may not necessarily raise alarms for employers, a felony record often leads to discrimination when seeking jobs, loans, and other opportunities. Additionally, a felony will cause greater loss of rights and privileges, including the loss of your gun privileges. There are three types of felonies in Utah: third degree felonies (which are one step above misdemeanors), second degree felonies, and first degree felonies, which have the most severe penalties. Felony discharge of a firearm can receive any of these classifications. It is a first degree felony when firing the weapon results in “serious bodily injury,” defined as an injury that creates permanent disfigurement, long-term loss of a body part or function, or major risk of death. It is a second degree felony when the shot results in less severe injuries. It is a felony of the third degree when the defendant fires the gun: In any person’s direction, if the defendant knows or has cause to believe that someone’s safety could be jeopardized. In the direction of a person or a “habitable structure” (such as a house, apartment, trailer, boat, or airplane), if the defendant acts with “intent to intimidate or harass.” In the direction of a car, truck, or other vehicle, if the defendant acts with “intent to intimidate or harass.” The criminal penalties for each type of felony are described below.

Utah Third Degree Felony Penalties

Sentence — 3 years minimum, up to 5 years
Fine — Up to $5,000
Utah Second Degree Felony Penalties
Sentence — 3 years minimum, up to 15 years
Fine — Up to $10,000
Utah First Degree Felony Penalties
Sentence — 5 years to life in prison
Fine — Up to $10,000
If you are convicted, you will become what is known as a “restricted person,” meaning you will be prohibited from buying, using, or possessing a firearm.

Free Consultation With A Firearms Lawyer

When you need legal help with a civil or ciriminal firearms matter in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Domestic Violence and Gun Ban

Domestic Violence and Gun Ban

In the United States, federal law prohibits domestic violence offenders from purchasing, owning, or using guns. Domestic violence gun laws vary somewhat from state-to-state, some stricter and some less strict, but all states must accept the basic federal rules. The domestic violence offender gun ban requires one of two things:

  1. That the abuser has been convicted of a domestic violence felony/misdemeanor.
  2. That the victim has a restraining order against the abuser.

If you are a victim of domestic violence, please read ahead to understand how you can keep guns out of your abuser’s hands. Deadly weapons are frequently used to threaten and potentially injure victims in domestic violence cases (sometimes out of revenge for having contacted the authorities). Understanding the domestic violence gun laws may help protect you and your family from harassment and future violence.

Did the Abuser Commit a Domestic Violence Misdemeanor?

The domestic violence offender gun ban is a permanent ban (on purchasing, owning, or using a gun) if the abuser has been convicted of a domestic violence misdemeanor. But what is a domestic violence misdemeanor?

A domestic violence misdemeanor involves the use or attempted use of physical violence or force, or the threatened use of a deadly weapon, against a person who is in a close personal relationship with the abuser (for example, a spouse, parent, girlfriend or boyfriend). Basically, if the abuser was convicted of a crime for threatening or committing violence against a close relative or significant other, then it’s highly likely that this conviction would count as a domestic violence misdemeanor. If you know the state in which the abuser was convicted, you can also try contacting the district attorney’s office to confirm whether the abuser was involved in a domestic violence misdemeanor.

One of the benefits of a domestic violence misdemeanor gun ban is that the ban applies to abusers in law enforcement, the military, and government employment in which guns are issued. Because of this, domestic violence misdemeanor offenders who are in these positions may get fired — if they are banned from using a gun, then they cannot perform their duties. If you are a victim and you know that your abuser has been convicted of a domestic violence misdemeanor but is working in a job where a gun has been issued, please contact your local police. The abuser could still pose a danger to you and your family with a workplace-issued gun.

Did You Get a Restraining Order?

If you’ve gotten a final restraining order or an order of protection against the abuser, you may be able to prevent the abuser from purchasing, owning, or using a gun for as long as the order lasts. The restraining order has to meet certain requirements, however:

  • The abuser has to be close to you in some way – they should be a current or ex-spouse, the mother or father of your child, or have lived with you at some point.
  • The abuser should have been notified about the restraining order hearing so that they get a chance to attend.
  • The restraining order should specifically prohibit behavior that threatens or creates a fear of physical injury (and should identify the abuser as a threat to the victim’s or child’s physical safety).

Keep in mind that, unlike with domestic violence misdemeanors, the restraining order gun ban does not apply if your abuser is in law enforcement, the military, or government employment in which guns are issued as part of the official duties of the position. State laws vary, however, so please explore your available options with a qualified local attorney. To help you determine if the language of your particular restraining order qualifies for the gun ban, contact a local attorney or a helpline such as the National Center on Protection Orders.

What to Do if You Think the Abuser Has a Gun

Once you determine that you have a) a restraining order, or are sure that b) the abuser was convicted of a domestic violence misdemeanor or felony, contact local law enforcement and let them know the reason why you believe the gun ban applies. Law enforcement will then investigate the situation. The important thing is that you determine whether there’s a strong possibility of a gun ban in your case. The police can sort out the details. Contacting a domestic violence attorney or legal aid group is also a good option, whether for guidance on what to do legally or simply to receive counseling.

The domestic violence offender gun ban is a useful tool for protecting you and your family. The gun ban removes a potentially deadly weapon from the hands of your abuser and sends a clear message: you have the law and local law enforcement authorities on your side.

Free Initial Consultation with a Lawyer in Utah

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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