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Bar News - March 22, 2013


Gun Laws in NH and Beyond

By:

The National Instant Criminal Background Check System (NICS) was mandated by the Brady Handgun Violence Prevention Act of 1993 and was implemented in 1998. NICS is used by Federal Firearms Licensees (FFLs) to have the FBI run a criminal background check on a prospective firearms purchaser before completing a sale.

Enacted in 1934, the NFA requires that all rifles and shotguns with barrels shorter than 18 inches, machine guns, silencers, and certain firearms described as "any other weapons" be registered with the Secretary of the Treasury. It also imposed a tax on the manufacture and transfer of NFA weapons.

The Gun Control Act of 1968 cured some constitutional defects of NFA and amended the NFA definition of "firearm" by adding "destructive devices" and expanding the definition of "machine gun."

In 1986, after a bipartisan Senate subcommittee concluded that 75 percent of all ATF prosecutions were "constitutionally improper," the Firearms Owners’ Protection Act (FOPA) was enacted to address ATF abuses. FOPA allowed for interstate sales of rifles and shotguns and for ammunition to be shipped via the US Postal Service. It also removed the record-keeping requirements for ammunition sales, gave federal protection for the interstate transportation of firearms, and prohibited the federal government from creating a registry for non-NFA firearms. FOPA banned private ownership of machine guns that were not registered as of May 19, 1986, but provided that machine guns manufactured and registered before May 19, 1986, could still be privately owned and transferred.

New Hampshire residents can purchase firearms from other New Hampshire residents without any government involvement. If a New Hampshire resident purchases a handgun from another resident, they must possess a NH License to Carry or be "personally known" to the seller.

To buy from an FFL, a New Hampshire resident must be at least 18 years old to purchase a rifle or shotgun and at least 21 years old to purchase a handgun. Part-time residents of New Hampshire can purchase firearms in the state when residing in New Hampshire.

A resident of the state must obtain a License to Carry to possess a concealed, loaded handgun on their person or a loaded handgun in their vehicle. A New Hampshire resident is permitted to openly carry a loaded handgun without a license, and the state does not require that firearms be transported in storage cases.

In New Hampshire, "prohibited persons," who are prohibited from possessing firearms and ammunition, include: convicted felons; fugitives from justice; users of illegal drugs; persons adjudicated as mentally defective or committed to a mental institution; illegal aliens; persons dishonorably discharged from the military; persons who have renounced US citizenship; persons subject to domestic restraining orders; and persons convicted of misdemeanor crimes of domestic violence.

New Hampshire does not prohibit NFA weapons, but federal law controls the registration and regulation of NFA weapons in New Hampshire. In the past, some municipalities have tried to regulate firearms, but the state has preempted political subdivisions from doing so by enacting RSA 159:26.

Other New England States

Laws regulating firearms in Maine and Vermont are similar to those in New Hampshire. In Maine, however, FFLs are required to keep records of all firearms sales. In Vermont, FFLs are required to keep records of all handgun sales.

Vermont does not require a permit to carry a loaded, concealed handgun and it recognizes permits from New Hampshire, Maine and Massachusetts.

Massachusetts is a different story. It is unlawful to transfer any firearm in Massachusetts without the proper Firearms Identification Card (FID), license or permit in place. Massachusetts requires an FID to purchase rifles and shotguns and an additional permit to purchase a handgun.

There are different classes of FID cards for different classes of firearms and firearms components. Although police keep records of transfers, there is no registration of firearms. However, all owners of firearms must be licensed. Massachusetts issues permits to carry loaded, concealed handguns to FID holders, but does not recognize permits from any other state.

With limited exceptions, bringing a firearm into Massachusetts from New Hampshire, Maine or Vermont is a felony that carries a minimum mandatory imprisonment of 18 months. A non-resident may possess a rifle or shotgun in Massachusetts while hunting with a valid hunting license, while at a licensed firing range, or while at an organized gun show. FOPA protects persons traveling through Massachusetts with firearms, as long as the firearms are unloaded and stored in a locked case.

It is unlawful to possess a machine gun in Massachusetts without a license. Licenses for machine guns are issued in limited circumstances to certain police firearms instructors and bona fide collectors.

The City of Boston has additional firearms regulations. To possess or transfer a semi-automatic rifle with a fixed magazine capacity exceeding 10 rounds, any detachable magazine or belt that has a capacity of 10 rounds or more, or one of the more popular semi-automatic rifles (AK-47, AR-15, FN-FAL, FN-FNC, Uzi, etc.), a license must be obtained from the Boston Police Commissioner.

RELATED: Demand for Gun Trusts Surges Amid Record Firearm Sales


William J. Smyth is the owner of Smyth & Associates, P.A. and the New England Gun Law Group, with offices in Hampton, NH, and Kennebunk, Maine. Bill is one of the founding members of GunDocx Lawyers, a national organization of lawyers who study, teach, and practice in the area of firearms law and estate planning for firearms owners. He can be reached at 603-758-1617, bill@smythlaw.net, or through www.smythlaw.net.

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