Reciprocity and Reciprocal Carry, Part 6 in a 9 Part Series:
How To Research and Determine a Foreign State’s Law
Carrying a handgun in another state by reciprocity is a big responsibility. The old adage, “Ignorance of the law is no excuse”, is really true. While a judge or jury may ultimately apply the law in such a way that you will not be convicted for a technical violation, given you may not have the mens rea or criminal intent, you should not assume this. Moreover, this would likely occur only after an expensive and gut-wrenching trial in a state where you do not live.
This should be avoided in all circumstances. To accomplish this, you will need to research, understand, and internalize the foreign state’s laws before you engage in reciprocal carry. To some extent, this requires you to learn how to research and think like a lawyer. This blog post is intended to give you several good pointers on how to accomplish this – how to conduct your own legal research and think like a lawyer.
Determining What You Cannot Do, Not What You Can Do.
First, what many non-lawyers do not understand is that in researching legal issues, you do not learn what you can do, but what is prohibited. By assembling a list of all prohibited behaviors, you figure out what you can do by learning what you cannot.
In other words, if not in the penal or otherwise prohibited list you determine, the act or failure to act, is permissible. These prohibitions are largely set out in statutes and cases of the appellate (above trial courts) courts for the particular jurisdiction.
Primary Law: Cases and Statutes.
[PHOTO OF LEGAL BOOK] Second, the statutes and cases on reciprocity and firearms (and every other regulated matter) for a given state are available on a number of free or pay-per-use sites. Findlaw is a good free online resource. The most known and utilized (by attorneys) pay data bases are Westlaw and Lexis. For the most part, these are accessed to iron out specific questions or areas where you find ambiguity that needs clarification.
Also, these two (2) bodies of law (statutes and caselaw) are often referred to as the state’s “primary law.” There are all sorts of other sources for and laws that exist, but primary law is the first place to look to determine most criminal prohibitions.
Official State Resource.
Third, to determine what is prohibited with firearms and carry, the best place to start is with the state’s official resource. The agency assigned licensing and to determine reciprocity in a given state (these vary) will provide some on-line information; that material is the best place to start learning about controlling primary law.
These on-line resources may range from listing the statutes (which might take you a while to find by your own legal research) to more user-friendly questions and answers format or conversational text about substance and application of that state’s law.
Critically, these sources usually provide a current list of states it has reciprocity agreements with. In other words, what foreign state’s licenses it recognizes for reciprocal carry. It may be easy to get lulled into a false sense of security if you have lawfully carried in the foreign state before under reciprocity.
Be aware that the agreements between states for reciprocal carry do not exist in perpetuity. States add and drop off other states over time. For example, on July 1, 2009, Nevada and Florida stopped recognizing each other’s licenses for reciprocal carry.
Authority in State.
Fourth, in most states there is more or less an authority on the carry laws and nuances that everyone must follow. This may be a group, individual or attorney. These resources are invaluable because they typically pull together the primary law, along with other law and custom, and provide a cohesive discussion about what the law means in practical terms for carry, including reciprocal carry considerations.
In Indiana, for instance, what you would ascertain in the book written about its firearm laws is the penal law does not mention concealed versus unconcealed carry with a license. However, that is the custom or practice(i).
In addition, these unique state authorities and resources usually briefly analyze federal restrictions and how they play out in that jurisdiction. Alan Korwin, Publisher, Bloomfield Press, maintains in his on-line store virtually every book, or related publication, written on state and federal law and reciprocity.
If available, whatever format this material is contained in it is worth purchasing or subscribing to. Most of these books are in my library. The caution is, make sure you do a little research to determine if the writer is setting the law out to a reasonable certainty, not advancing an agenda for change in some altered version of the law.
There is a time and place for this advocacy, but being an advocate and arguing for more or less regulation, is far different in nature and purpose than lawfully carrying a handgun in a foreign state for self-defense. Presumably, what you do not want to become is a test case for an anomaly in the law.
By the time you finish up reviewing the official state resource, and available material from someone knowledgeable in that state, you should be getting a uniform sense of what is prohibited. That is the hallmark of comprehensive legal research; multiple sources indicating the same legal requirements. This is known as “multiple source verification.”
If there is an ambiguity, this is a good time to look at the legal databases or consult with an attorney or other well-informed person in that state. Remember, there are no do overs and no margin of error.
AFT State Laws and Published Ordinances on Firearms.
Fifth, a good combination of primary law, to use for multi-source research verification with what you believe the prohibitions are in a given state, is ATFE’s on-line compilation of all state laws and published ordinances. This is available on-line. It is very lengthy because it includes all fifty states.
However, this resource is well organized and put together and can be quickly scanned state by state to use to compare with what you have gathered and determined. The only caveat is it runs two or more years behind current law. While most law changes very slowly, the most current legislative or judicial development may not be contained within this resource.
National Rifle Association.
Sixth, what I do, understanding it is secondary to their job as a lobby group, I sometimes cross -reference the National Rifle Association’s excellent on-line resource for each state’s laws and reciprocity charts. The information you find there should be consistent with your prior research. Again where you find variance or contradictions, this is where additional research or consultation with counsel is necessary.
Firearms Law Deskbook.
Seventh, for individuals who want the best publication available for personal or business purposes on state or federal firearms law, which is the final (and sometimes first) resource I use is Stephen P. Halbrook’s Firearms Law Deskbook, an annual publication with all significant state and federal law, trends, and developments. This is likely beyond individual consumer needs, but I believe it is the definitive work in the field and is available from West, A Thompson Reuters business.
In walking through your research, it is often helpful to make an outline as you go. This will increase your base knowledge and give you a quick-reference while you are carrying a firearm in a foreign state. The benefit of this is because you wrote it, you will better understand it.
With this process, the pieces of the law should start to fit neatly and orderly together like a puzzle. If they do not, then it is probably a sign you do not have a command of that state’s law. If they do, this should give you the comfort level to make the decision to carry in another state without a concern about a corresponding unintended violation of the law.
In summary, through the processes outlined in this blog post, or by using a variation of it, you should be able to quickly determine if the foreign state is reciprocal and, then, ascertain the substance of its criminal laws regarding carrying a handgun. In making an outline as you go along, you will have a quick resource to look to for what ifs you encounter along the way and increase your base knowledge about reciprocal carry generally, making future research that much easier.
This blog post is written for GST (www.gunshowstoday.com) by Bryan L. Ciyou, attorney at law, who practices in Indianapolis, Indiana. It is intended for general educational purposes. In Part 7, the blog turns to what every person carrying in a foreign state must be prepared for – a law enforcement encounter. If this is not a consideration you are willing to entertain, then this should give you great pause in your decision to carry in a reciprocal state.
Disclaimer/Warning: This Blog is not intended to provide legal advice nor a solicitation for legal representation. Specific questions relating to carrying a firearm should be directed to knowledgeable counsel in your state or the state of proposed carry.
(i) Bryan L. Ciyou, Indiana Firearms Law Reference Manual p. (3rd ed. 2010).