Can my stalker buy a gun?

February 20, 2013 2:29 PM

So, this guy who has been stalking me for several years is not Brady-disqualified because we never had a domestic relationship, and he's not a felon. I already have a protective order. I'd like to know if he's disqualified from owning and buying firearms for some other reason related to his mental health or criminal history. Is there an easy way to find out whether or not somebody else is allowed to buy guns in the United States? I'm a lawyer but I don't know this.
posted by steinwald to Law & Government (14 answers total)

Here is the relevant provision from the Gun Control Act of 1968:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person - (1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year (2) is a fugitive from justice; (3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); (4) has been adjudicated as a mental defective or has been committed to any mental institution; (5) who, being an alien - (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26))); (6) who (!2) has been discharged from the Armed Forces under dishonorable conditions; (7) who, having been a citizen of the United States, has renounced his citizenship; (8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that - (A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and (B)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or (9) has been convicted in any court of a misdemeanor crime of domestic violence.

So, your stalker is going to be able to buy a gun. Like you, IAAL but of course IANYL.
posted by Tanizaki at 2:37 PM on February 20, 2013

Depending on what state he lives in, there are more restrictive laws in some states as well.
posted by Lame_username at 2:43 PM on February 20, 2013

I'm so sorry you are dealing with this. But if it were me, I would assume the worst. Even if he is not legally able to buy a gun, there may be many illegal avenues.
posted by Glinn at 2:46 PM on February 20, 2013 [3 favorites]

IANAL but someone who has researched intimate partner violence law as an academic.

State statutes based on the protective order may restrict such things as being able to carry concealed and some other types of firearm activities. It depends on the state, obviously, and enforcement varies widely.

A domestic violence group or activist org. like this one might be your best bet for a summary of relevant laws. Being a lawyer, it may be more straightforward for you. But for me, I found the overlapping laws and enforcement provisions very confusing.
posted by pantarei70 at 2:48 PM on February 20, 2013

Best answer: There is no way for the public to verify whether someone can buy a gun. It's a matter of checking what you know about them against applicable laws and regulations.

Unless this guy has a felony conviction, he can probably get one. Being the subject of a protective order doesn't figure into it.
posted by valkyryn at 4:16 PM on February 20, 2013

Like Glinn says above, unfortunately you should expect the worst. Buying from a licensed gun dealer may require background checks, but there are also illegal gun purchase avenues as well as gun shows --- and many states have loopholes that permit gun show sales with no background checks.

Sorry.
posted by easily confused at 4:33 PM on February 20, 2013

Response by poster: No way for the public to look this up? Well, OK. I guess that answers my question. Thanks.
posted by steinwald at 4:37 PM on February 20, 2013

Plus, he can buy a gun from an individual, probably at a gun show, and there will be no questions asked.
posted by theora55 at 5:13 PM on February 20, 2013

He can easily buy a gun at a gun show or in another informal setting if he really wanted to, regardless of the law in his jurisdiction; you should assume he has access to one. Stay safe. Sorry you have to deal with this.
posted by zdravo at 9:18 PM on February 20, 2013

Response by poster: Just for the record, it's possible that one of the other subsections in the law Tanizaki quoted would apply. Immigration status issues? Committed to a mental institution? Maybe. I don't know.

Of course I'll be careful anyway. Thanks.
posted by steinwald at 9:12 AM on February 21, 2013

I have absolutely no knowledge of the law on this, but I did see recently in Baltimore that a football player was required to surrender all of his firearms after his girlfriend filed a court order.

If you have a history of stalking, and this person breaking restraining orders et cet, it might be possible depending on the state law that he could have to divest of any firearms.

http://www.baltimoresun.com/sports/ravens/bal-suggs-required-to-surrender-several-firearms-last-month-after-domestic-case--20121206,0,5234565.story
posted by forkisbetter at 10:55 AM on February 21, 2013

as long as it has been issued by a judge at a hearing He can not legally buy a gun and if he does then he committed a federal felony punishable by up to 10 years in jail.

Here is the ATF link.

He can purchase a gun from a private individual (someone who is not a federally licensed firearm dealer-the only people who can legally operate a business as a gun dealer) without a background check, but that does not make the purchase legal, he would still be guilty of the crime (although he would also have the gun). In fact, merely possessing a gun and/or ammunition as a prohibited person means you are guilty of the crime.

All that being said, protective/restraining orders are really only good for prosecuting the offender after they have done whatever they have done so please stay safe.
posted by bartonlong at 6:25 PM on February 21, 2013

Response by poster: Nah, bartonlong, I'm not a qualifying "intimate partner". I wish that law applied. Thanks though.
posted by steinwald at 4:59 AM on February 22, 2013

Which state are you in? At least in Texas, protective orders routinely contain provisions that prohibit the person subject to the order from possessing a firearm. See Texas Code of Criminal Procedure 17.292(c)(3)(4).

http://law.onecle.com/texas/criminal-procedure/17.292.00.html

I understand that many states have similar provisions. It all depends on what your state's protective order law provides for and what the judge actually ordered in your particular protective order.

As for determining whether someone is eligible to own a firearm, as far as I'm aware, there's no national database of people "eligible" to buy a firearm. If you try to buy a gun from a firearms dealer and not a private individual, the dealer is going to run a criminal background check on you to determine if you're eligible for purchase under the Gun Control Act that Tanizaki quoted from and applicable state law.
posted by saslett at 9:46 AM on February 23, 2013