Possession and Purchase of Firearms (updated June 2022)

This post was original published in 2021 before the U.S. Supreme Court’s June 2022 decision in New York Rifle & Pistol Assoc., Inc. v. Bruen, 597 U.S. ____ (2022). It has been updated to reflect, in part, the new constitutional standard announced in Bruen. A separate post regarding the new state of play for gun regulations will be forthcoming and linked here upon publication.

RAS, June 24, 2022

Wyoming loves guns. Guns love Wyoming. Hunting, sport-shooting, gun collecting, and all things firearms have deep roots in the Cowboy State. According to a December 2015 report by CBS News, for every 1,000 residents in Wyoming, there are 195.7 guns. In total, the report found that there are 114,052 registered firearms in Wyoming compared with a population of 582,658.

Bite-Sized Summary:
1. Federal laws on guns - both the Second Amendment and federal statutes - trump state laws on guns.

2. Federal laws prohibit a person from possessing, receiving, or selling firearms if the person has been convicted of a felony or a misdemeanor crime of domestic violence or if the person is subject to certain restraining orders.
3. The federal bar described in #2 does not apply to antique firearms like black powder rifles or muzzle loaded firearms, or bows of any kinds.

4. Wyoming law only bars people convicted of "violent felonies," including felony interference with a peace officer, from possessing firearms.

Given this deep passion for firearms, one of the top concerns for people charged with crimes in Wyoming is the consequences of their charge and/or conviction on their ability to possess and purchase firearms. This post provides a comprehensive set of information about the relationship between criminal proceedings and gun rights.

I. Federal Supremacy

As with virtually every legal principle in the criminal justice system (like the Fourth Amendment), gun rights are governed by two sets of law: federal law and state law.

Under the Supremacy Clause of Article VI of the United States Constitution, a federal law on a particular topic or subject is binding on all state and local governments so long as Congress acted within its limited powers when enacting the law. State and local laws may supplement or add to the federal law, but they are invalid if they contradict or undermine the federal law. So, when it comes to guns, federal laws prohibiting certain people from possessing or purchasing firearms or that mandate background checks before firearms can be purchased will trump any state or local law that removes these conditions. Simply, federal laws set the floor; state and local laws can add protections, but they cannot go below the federal protections.

In the “battle of the laws,” the federal law wins. So, we start with the relevant federal laws: the Second Amendment and 18 U.S.C. § 922(g).

II. The Second Amendment

The Second Amendment to the United States Constitution reads, in its entirety, as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

At the founding of America, the Bill of Rights, including the Second Amendment, only applied to the federal government and did not place any limits on state governments. In 1833, Chief Justice of the United States Supreme Court John Marshall explained that that the question of whether the Bill of Rights applied to the states was “of great importance” but “not of much difficulty.” See Barron ex rel. Tiernan v. Mayor & City Council of Baltimore, 32 U.S. 243, 247 (1833).

The Second Amendment (and the other rights in the first eight amendments) only restrained the abilities and powers of the federal government from 1776 until around 1868 when the Fourteenth Amendment was ratified and added to the federal constitution. However, the so-called “incorporation” of the Second Amendment as applied to state governments through the Fourteenth Amendment’s due process clause took more than 100 years to be recognized by the courts. In fact, as late as 1894, the United States Supreme Court maintained that the right to bear arms “is not a right granted by the Constitution” and the Second Amendment “means no more than that [the right to bear arms] shall not be infringed by Congress.” See United States v. Cruikshank, 92 U.S. 542, 553 (1875); Miller v. Texas, 153 U.S. 535, 538 (1894).

“In the late 19th century, the United States Supreme Court began to consider whether the Due Process Clause prohibits the States from infringing rights set out in the Bill of Rights. See Hurtado v. California, 110 U.S. 516 (1884) (due process does not require grand jury indictment); Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897) (due process prohibits States from taking of private property for public use without just compensation).” McDonald v. City of Chicago, 561 U.S. 742, 759 (2010). At that time, “the Court explained that the only rights protected against state infringement by the Due Process Clause were those rights ‘of such a nature that they are included in the conception of due process of law.'” Id. (quoting Twining v. New Jersey, 211 U.S. 78, 99 (1908)). Still, through World War II, the Court maintained that the constitutional rights applied to the states were effectively “watered down” when applied against state action. See, e.g., Betts v. Brady, 316 U.S. 455, 473 (1942); Wolf v. Colorado, 338 U.S. 25, 27-28 (1949).

In the early 1960s, the tide began to turn. On June 15, 1964, some seventh months after JFK was assassinated, the United States Supreme Court shed its “watered-down, subjective version” of the Bill of Rights when applied to the states. See Malloy v. Hogan, 378 U.S. 1, 10-11 (1964). The Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Id. at 10. Over time, the Court began to overrule earlier decisions that determined that certain rights did not apply to the states.

The United States Supreme Court did not directly address the question of whether the Second Amendment applies to the states until June 2010. See McDonald, 561 U.S. at 767. In a decision in the case of Otis McDonald versus the City of Chicago, the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right to bear arms against the states. See McDonald, 561 U.S. at 791.

So – with all of that important constitutional history out of the way – just what the hell does the Second Amendment mean, legally, for your right to keep and bear arms?

Contrary to what the new-age legal quacks may tell you, the Second Amendment does not provide an unlimited right to “keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” District of Columbia v. Heller, 554 U.S. 570, 626 (2008).

“Like most rights, the right secured by the Second Amendment is not unlimited. [T]he right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

Justice Antonin Scalia, writing for the majority of the United States Supreme Court in D.C. v. Heller on June 26, 2008.

As the late renowned jurist, Justice Antonin Scalia described, while “the Second Amendment conferred an individual right to keep and bear arms” for traditionally lawful purposes like self-defense and defense of the home, “the right was not unlimited, just as the First Amendment’s right of free speech was not.” The Second Amendment does not “protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.” See id. at 594. Justice Scalia was careful to note that the Court’s recognition that the Second Amendment protects an individual’s right to keep and bear arms should not be taken to “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 626-27. In fact, the Second Amendment does not prevent the federal or state government from prohibiting individuals from keeping and bearing certain kinds of weapons, including “dangerous and unusual weapons” or weapons that were not “in common use.” Id. at 627.

So, the Second Amendment confers a right to all individuals to keep and bear arms. And state governments must respect this right to the same extent as the federal government. However, the right to keep and bear arms is not absolute and the federal, state, and local government may enact laws that limit the ability of a person to possess or purchase a firearm.

Until June 2022, the United States Supreme Court had given virtually no guidance on how to figure out if a law limiting gun rights is constitutional. That task had been effectively delegated to lower courts. Those courts had come up with a two-step test:

1. Does the law target “conduct within the scope of the Second Amendment’s protections”? That is, does the law regulate or prohibit activities that were traditionally protected by the Second Amendment such as keeping arms to defend one’s home. If so, the law implicates the Second Amendment and the court must evaluate its impact to determine if it is constitutional (e.g., move on to step 2).
2. If yes to Question 1, then the court must “consider the nature of the conduct being regulated and the degree to which the challenged law burdens the right.” For example, if a law only regulates the “time, place, and manner” in which a person may exercise her Second Amendment rights, then the court will uphold the law if there is a “reasonable fit” between the restriction imposed and the interest the law is designed to protect.

See generally Post-Heller Second Amendment Jurisprudence, Congressional Research Service (updated March 25, 2019).

However, on June 23, 2022, the United States Supreme Court issued its decision in New York State Rifle & Pistol Assoc., Inc. et al. v. Bruen, 597 U.S. ____ (2022), wherein it discarded the second step of this two-step test, writing that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct”–legislatures may not simply posit that a gun regulation “promotes an important interest”; instead, “the government must demonstration that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Bruen, slip op. at 8. The full Bruen opinion can be read here:

I will write more about Bruen and the U.S. Senate’s new gun regulation bill in a separate post.

III. 18 U.S.C. § 922(g) – It shall be unlawful for certain people to possess, receive, or purchase “firearms” or “ammunition”

So, we know that federal law trumps state law on guns and that the Second Amendment allows the federal, state, and local government to regulate a person’s exercise of their Second Amendment rights within reason. That leads us to look at the federal law that restricts a person’s right to keep and bear arms based upon a criminal conviction or related proceeding: 18 U.S.C. § 922(g).

18 U.S.C. § 922 (as well as its sibling statutes 18 U.S.C. § 921 and 18 U.S.C. § 924) is a long and convoluted statute. For our purposes, the key provision is 18 U.S.C. § 922(g), which prohibits certain kinds of people from “possessing” or “receiving” any “firearm or ammunition.”

Here’s the full list:

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

(2) who is a fugitive from justice;

(3) who 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) who has been adjudicated as a mental defective or who has been committed to a 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 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) who is subject to a court order that—(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;(B) 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; and(C)(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) who has been convicted in any court of a misdemeanor crime of domestic violence,

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g) (current through March 2021)

What’s this beast mean?

Simply, if you have been convicted of any felony or any “misdemeanor crime of domestic violence,” or you are subject to a restraining order (also called an “order of protection”) sought by “an intimate partner” or the child of “an intimate partner,” you cannot possess, receive, or purchase firearms or ammunition.

Now for some explainers.

A. “Firearms” or “Ammunition”

First, 18 U.S.C. § 922(g) restricts felons, people with certain misdemeanors, and people under restraining orders/orders of protection from possessing, receiving, or purchasing “firearms” and “ammunition.” “Firearms” and “ammunition” are not loose or vague terms. They are defined by law as follows:

The term “firearm” means:

• (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;
• (B) the frame or receiver of any such weapon;
• (C) any firearm muffler or firearm silencer; or
• (D) any destructive device.

See 18 U.S.C. § 921(a)(3).

“Destructive device” means an explosive, incendiary, or poison gas bomb, grenade, rocket with a propellant charge more than 4 ounces, missile having an explosive or incendiary charge of more than 1/4 ounce, mine, or similar device. See 18 U.S.C. § 921(a)(4).

The term “firearm” does not include so-called “antique firearms,” which are any firearm manufactured on or before 1898 or any replica of such a firearm. See 18 U.S.C. § 921(a)(16)(A)-(B). There are extra conditions for “replicas” of antique firearms. See 18 U.S.C. § 921(a)(16)(B). The replica must not be “designed or redesigned for using rimfire or conventional centerfire fixed ammunition.” Id. The replica must use “rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade.” Id.

“Antique firearms” also include “any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition.” See 18 U.S.C. § 921(a)(16)(C).

The term “antique firearm” does not include any weapon which “incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.” See 18 U.S.C. § 921(a)(16)(C).

In short, federal law does not prohibit restricted individuals from possessing, receiving, or selling unmodified black powder rifles. For a general overview of black powder and other muzzle loading firearms, check out this article from gunsandammo.com and this one from Pew Pew Tactical.

Moreover, the federal law concerning “firearms” does not include in it bows, cross-bows, and the like. So, a restricted person can still possess bows and cross-bows.

Federal law does not prohibit felons, individuals with domestic battery/assault misdemeanors, or individuals subject to certain restraining orders from possessing: black powder or muzzle loaded firearms, bows, or cross-bows.

See 18 U.S.C. § 921

B. What’s a “Felony”?

A felony is any crime punishable by more than one (1) year of incarceration. You do not need to have served a year or more in prison to be a felon. You could serve no time at all and be placed on probation, but still be a felon. The only question is: does the crime you were convicted of carry a potential punishment of more than one year of incarceration? If yes, no more guns for you.

C. What’s a “Misdemeanor Crime of Domestic Violence”?

A misdemeanor crime of domestic violence is a more complicated question. Strap in. This one is what we call in the biz a real “humdinger.” For example, it refers to a “subparagraph (C)” that does not even exist. Just a real fun time for us lawyers.

18 U.S.C. § 921(a)(33)(A) defines “misdemeanor crime of domestic violence” for purposes of 18 U.S.C. § 922(g). I won’t repeat this statute in full, but here’s the basic nuts and bolts:

• The crime must be punishable by less than one (1) year of incarceration (i.e., not a felony)
• The crime must require the defendant to have:
  • used or attempted to use physical force, or
  • threatened use of a deadly weapon
• The defendant must be:
  • a current or former spouse of the victim,
  • the parent of the victim,
  • the guardian of the victim,
  • a person with whom the victim shares a child in common,
  • a person who is cohabiting with or has cohabited with the victim
    • “Cohabitation” is not defined by the federal statutes–GREAT! Some frustrated courts have basically just said the person has to live with or have lived with the victim in a marriage-like or romantic relationship for most days out of the week. See United States v. Ladouceur, 578 Fed. Appx. 430, 432-34 (5th Cir. 2014). Relevant evidence would be keeping clothes and personal items at the victim’s home (or vice versa) as well as possessing a key to the home.

There’s some other minutiae, but that’s the gist. And it’s a mess. The rule of thumb is: convictions for domestic battery, domestic assault, and child abuse will do the trick in almost every case. So, that’s your big takeaway.

D. Subject to a Court Order Sought by an “Intimate Partner”

The last big category that will bar you from possessing or purchasing firearms is restraining orders or orders of protection against you by an “intimate partner” or the child of an “intimate partner.” So, what the hell is an “intimate partner”?

It’s not just your girlfriend or boyfriend or the guy or gal you sleep with from time to time. A person is your “intimate partner” for purposes of 18 U.S.C. § 922(g)’s bar on your gun rights if that person is:

• your spouse
• your former spouse
• a parent of one or more of your children
• an individual who does or has cohabited with you

See 18 U.S.C. § 921(a)(32).

And that’s all. So, if you’ve only slept with the person or gone on a couple dates, then that person ain’t your “intimate partner.” If you married the person, had a kid with the person, or lived with the person for almost any length of time, then that person will count.

As to what court orders are we talking about? If the order says don’t talk to or otherwise contact the person, then it applies.

IV. Wyoming Law on Firearms

Wyoming’s firearms laws are very different than their federal counterparts. To start with, the Wyoming Constitution, which was adopted in 1889 (before Wyoming even was admitted to the Union), codifies the state constitutional right to bear arms as follows:

“The right of citizens to bear arms in defense of themselves and of the state shall not be denied.” See Article 1, Section 24 of the Wyoming Constitution.

Wyoming statutes only criminalize the use or possession of a firearm by a person who has been convicted of a “violent felony” or felony interference with a peace officer. See Wyo. Stat. Ann. § 6-8-102(a). “Violent felony” is defined by Wyoming law as: murder, manslaughter, kidnapping, sexual assault in the first or second degree, robbery, aggravated assault, strangulation of a household member, aircraft hijacking, arson in the first or second degree, aggravated burglary, sexual abuse of a minor in the first or second degree, and a third or subsequent domestic battery. See Wyo. Stat. Ann. § 6-1-104(a)(x).

No misdemeanor can restrict your gun rights under Wyoming law (though the federal law will trump if you have a qualifying misdemeanor).

You can wear or carry a concealed firearm without a permit or license for doing so if you meet certain statutory criteria. See Wyo. Stat. Ann. § 6-8-104(a)(iv).

Wyoming even has a series of statutes on its books that declare the right to keep and bear arms is a “fundamental right” under state law. See Wyo. Stat. Ann. § 6-8-401(a). These laws attempt to exempt certain intra-state firearms transactions and activities from applicable federal laws. See Wyo. Stat. Ann. § 6-8-404 through 406. The constitutionality of these state exemption laws is dubious.

So, bottom line is: Wyoming state law affords a huge amount of latitude towards gun rights. Though the state law really is ineffectual in the face of the contrary and more exacting federal law.

And, Wyoming farms out the background checks completed by federal firearms licensees during any firearm purchase to the FBI’s National Instant Criminal Background Check System (NICS). The NICS relies on federally collected data. So, the federal firearms laws work hand-in-glove with virtually all of Wyoming’s commercial firearms retailers, effectively declawing Wyoming’s liberal stance on firearms. C’est la vie.

*******

So, what’s all this mean for guns in Wyoming? In short, Wyoming’s laws are as gun-friendly as they get in the United States. But, they don’t really matter since the federal law trumps. And the federal law is complex and stingy.

If your gun rights are restricted by federal law, you’re not completely out of luck. There are methods to restoring your gun rights in some circumstances: expungement. But that’s for the next post.