“Excuse me, is this your bag? Come with me, you’re under arrest!”
The nightmare began with an unsuspecting traveler, who did their duty to secure their handgun before boarding the flight, until the unexpected happened… Their flight was diverted to a state where transporting a handgun was illegal and they could now be considered a criminal.
What could the traveler do to make sure they avoid becoming a victim of a state’s gun laws?
Safe Passage Provision
According to the Safe Passage provision in the Interstate Transportation of Firearms law, 18 U.S. Code § 926A, any person who is not otherwise prohibited from possessing a firearm is entitled to transport a firearm from any place where he may lawfully possess a firearm, to any other place where he may lawfully possess a firearm, if during such transportation, the firearm is unloaded and neither the firearm, nor any ammunition being transported, is readily accessible. This federal law works to protect law-abiding gun owners who choose to travel from one state to another, while transporting their firearm.
Additionally, the traveler must be identified as “traveling.” Although there is no legal definition of traveling, the courts have provided some guidance:
Generally, if a person stops somewhere for too long, they are no longer considered to be “traveling,” and will lose the Safe Passage protection. Stopping for gas on the way to the airport or for restroom breaks, does not disqualify you from the “traveling” protection, but if you stay overnight, or stop and visit people along the way, you could already be considered to have reached your destination. You would then lose legal protections and fall under the laws of the state in which you stopped.
So, you should be fine if you fly, right?
Not necessarily…
It is standard procedure that a passenger cannot board a plane with a firearm in their carry-on, but TSA has its own set of rules for transporting firearms in your checked baggage, which include:
- The firearm must be unloaded;
- The firearm must be in a locked, hard-sided container, and only YOU should retain the key, unless TSA personnel requests the key to open the firearm container to ensure compliance with TSA regulations;
- The ammunition must be placed in the manufacturer’s packaging, but may be secured in the same hard-sided container as the firearm; and
- You must declare the firearm at the check-in counter and allow the agent to inspect the firearm, to ensure it is unloaded and the ammunition is properly secured.
Here’s where a law-abiding gun owner can get caught in a legal snare:
Suppose you are flying back home to Philadelphia, after visiting your family in Georgia. You have a valid Pennsylvania firearm permit that is also recognized in Georgia, and you properly secured your firearm and ammunition according to TSA regulations, as well as having declared the firearm upon check-in. No problem so far. The flight departs, and you are headed home.
However, there is a flight complication forcing the aircraft to land in the notoriously gun-hostile state of New York. You do not have a license for your firearm there, nor does New York recognize your Pennsylvania license. The airline is going to put you in a hotel overnight until they can put you on a flight back to Philadelphia, so you go to baggage claim to retrieve your luggage.
Imagine one of two possible scenarios:
If you retrieve your bag containing a firearm, you find local law enforcement officers watching and waiting to move-in to arrest you for your illegal possession of a firearm.
But even if the police were not watching, and you retrieve your baggage, you are not out of the woods.
The next day, you head back to the airport for your flight to Philadelphia and repeat the procedure you did in Atlanta, presenting your firearm to the ticket-agent upon check-in, as required by law. You are now in possession of a firearm, without the proper New York license. The gate-agent calls the police, and you are then placed under arrest. To make matters worse, New York courts hold that a handgun is loaded when “the ammunition is in close proximity.” That means, even though you followed the TSA instructions, unloaded the gun and put the ammunition in your luggage, New York asserts you had a loaded gun, which is considered a Violent Felony with a maximum sentence of 15 years and a minimum sentence of 3.5 years.
But, what about the Safe Passage Provision?
The Safe Passage provisions of federal law do not offer you any protection from the state’s prosecution in this situation – your travel did not end in a state where it was legal for you to possess your firearm.
What should you do if your plane is diverted, and you are asked to retrieve your luggage while transporting a firearm?
DO NOT take possession of your luggage!
Instead, insist the airline hold your luggage in a secure location, or forward it on to your final destination.
Here is another situation that can ensnare an otherwise law-abiding gun owner.
Imagine two of two possible scenarios:
A resident of Pennsylvania wanted to fly to Florida and take their firearm with them. They had a valid Pennsylvania license, and a reciprocity agreement with Florida. The Safe Passage law would allow for such transportation, so long as TSA rules were followed. However, the man opted to catch a direct flight to Florida out of neighboring New Jersey. Rather than a flight originating in Pennsylvania, with two connecting flights. When he presented his baggage with the firearm at the check-in counter, he was arrested for possessing a firearm without a New Jersey license.
Know the Law
Traveling with a firearm can present some unique challenges for a law-abiding gun owner, but it is not impossible. It is the duty of a traveler to know the laws of the states they will be traveling to.
When in doubt, do not claim your baggage if your plane is diverted to a gun-hostile state, or one that does not recognize your home-state issued firearm license.
Individual airlines may have additional requirements, so it is best to check with them before heading to the airport. For more information about what to do if your plane has been diverted, contact U.S. LawShield and ask to speak to an Independent Program Attorney.
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