“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. Then, the unexpected happened. Their flight was diverted to a state where transporting a handgun in luggage is illegal, and taking possession of the bag containing the firearm is a criminal offense.
What could the traveler do to avoid becoming a victim of that state’s gun laws?
Safe Passage Provision
According to the Safe Passage provision in the Firearm Owners’ Protection Act, 18 U.S.C. § 926A, any person who is not otherwise prohibited from possessing a firearm is entitled to transport a firearm from any place where he or she may lawfully possess a firearm, to any other place where he or she 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 interstate while transporting their firearm—so long as the gun owner can lawfully possess the firearm in their state of origin and in their destination state, they have a legal defense in any firearms-hostile state they may pass through.
Additionally, the traveler must not cease “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 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 would more than likely lose that protection. At that point, you become subject to the laws of the state you’re in.
So, you should be fine if you fly, right?
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 securely boxed or included within a hard-sided case containing an unloaded 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 License to Carry 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, a flight complication forces the aircraft to land in the notoriously gun-unfriendly region of New York City. You do not have a license for your firearm there, nor does law enforcement in New York City recognize your Pennsylvania License to Carry. The airline is going to put you in a hotel overnight until the flight back to Philadelphia the following morning, 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’ll find local law enforcement officers watching and waiting to move in and 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 yet.
The next day, you head back to the airport for your flight and repeat the procedure of presenting your firearm to the ticket agent upon check-in. You are in possession of a firearm without the proper New York license. The gate agent calls the police and you are placed under arrest. To make matters worse, New York City considers a handgun loaded when the ammunition is in close proximity. The State of New York asserts you had a loaded gun—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.
So, what should you do if your plane is diverted and you are asked to retrieve your luggage containing 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.
Know the Law
Traveling with a firearm can present some unique challenges for gun owners, 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 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.
A good reason to take one change of clothing in a backpack along with the usual computing device and medications/toiletries. That way one neither has to take possession of, nor to even touch, one’s checked luggage. Better to endure a few wrinkles than a real problem. “Be as wise as serpents and as innocent as doves.”
This seems like entrapment, and I would love to see these shenanigans judged by the Supreme Court.
Can I fly home to California with my shotguns? One has a pistol grip..
And that is why my locked gun case is the only thing in that suitcase.
Very good article!
I had a very similar situation When flying home last summer. Our flight home out of Philadelphia was cancelled and we had to drive to Baltimore to get on a flight home. Knowing Maryland has much stricter gun laws I called both Baltimore state police and BWI airport police to insure I wouldn’t be arrested when checking my bags.
During our trip we also visited family in New Jersey. Again I called NJ state police to insure I was following necessary guidelines.
I found in all instances the authorities were very helpful and willing to assist. Always be proactive and call ahead to the authorities where you’re traveling.
Good article. I transported two locked gun cases from OKC to DCA. I checked the gun laws online first. At the airport I declared them with the agent and showed my ID. The airlines tagged them as firearms and when I got to DCA (Northern Virginia) I had to show ID to claim them in the baggage office. Note that you CANNOT open the case in the airport and need to go straight to transportation. In the scenario described the author is correct in that you should go to the baggage office and ask the airline to forward the bags to your destination. Sounds complicated but it is actually quite straightforward.
I went to Alaska from Southern California in May of this year for a bear hunt. I obtained and carried a valid CBP form 4457 along with my passport. The possibility of my flight being diverted to Canada, where I would need those documents, was the reason. Fortunately, the flight was without problems.
I asked you to write about this very topic in response to a video a couple of months ago and you addressed the exact scenario I described!
Great article, provides useful information that I and most people would never think of should this situation occur. Diverted flights are a reality. The reality is the FOPA is false security of safe passage in the very states/localities that it is needed most, it needs to be reformed and include serious criminal/civil penalties against state/local governments that persecute otherwise law-abiding gun owners.
This describes a diverted flight. What if you are driving through some hostile jurisdictions in your RV? It is your temporary domicile with license plates from your home state. What about if you are a full time RVer traveling through a hostile state? Personally I prefer not to spend my money in draconian states and I don’t go there.
This was very informative! Wow reading this along with reply’s sent me in the right direction of communication with law Inforcement ahead of time before the airlines calls them and only pack your secured weapon and ammunition – properly secured from the weapon in checked bags👍
Just an interesting story. I traveled by air from Florida with 5 checked Cases of firearms to Boston Logan Airport. I am licensed in MA so no worries.
However in Boston after deboarding, I asked where I could claim my firearms thinking I would meet with at the very least a TSA Agent to claim my firearms.
TO my surprise, they were on the conveyer belt going around and around by themselves unattended as everyone had already claimed thier baggage before I made my way after looking for security to ask where my cases if firearms would be.
There was absolutely no security or precautions taken by the airport to secure the firearms or make certain that I was the rightful owner. Anyone could have grabbed 20+ firearms that were not even yet registered in MA. !
Similar thing happened to me. I traveled to Logan for a shooting competition and had my guns in a big bright yellow Pelican case. There it was, circling the baggage claim. And I can’t remember which leg of the trip (or if it was both ways), but they labeled my case with a tag that said firearms enclosed. I was shocked because it wasn’t what I was used to. This was about 10 years ago
As far as a personal vehicle being regarded a domicile, better ask one of the attorneys.
When I planned a long road trip through many states and intended to visit a large industrial surplus store in Chicago, I called the police there before my trip and was told that if I was coming to Chigago, it would be correct to disassemble the pistol into several parts specifically separating the barrel, frame, unloaded magazine, and ammunition, and keep them each in a different container and well separated in the vehicle so that it could not be said that I was carrying a firearm, only parts. That was a decade ago and these days I would ask a program attorney first.
I second the comment that the police officer was very helpful. It sure seems like “Boss Hogg” trap-style situations can happen, but the thing is, ultimately it is the traveler’s responsibility.
When I signed up to take my gun training in Nevada at Front Sight, they gave me instructions I have found that works for me by car. The hand gun is packed in one place and the amination in another. Being I had never fired a handgun in my life I did not worry about the gun being handy. I put it in a bag which was placed behind the drivers seat and the amination in the trunk area of the car in a suit case.. The magazine was with the gun and unloaded. It was the same on the way home as I still was not licensed.
Now that I am licensed the extra amination in a special piece of luggage and the gun is in the front of the car with me unless I am entering a unfriendly gun state and then it goes in the back separated from the amination. I would pack them separately if boarding any kind of public transportation.
Another problem: federal courts have ruled 926A creates an affirmative defense (like the statute of limitations and in some states, self-defense), i.e., “tell it to the judge.” So even if you are arrested and the police know of 926A, you cannot sue them for false arrest. They had probable cause to believe a state law was violated, and don’t have to rule out an affirmative defense.
By law, you must place the card inside your case after signing it. More importantly, if an agent attempts to label the outside of the case in such a way that clearly marks it as containing a firearm, inform them Federal law prohibits this: 18 USC Sec. 922(e),
When was this law enacted? I haven’t flown with my guns in about 10 years but when I flew out of Boston and Dallas (I can’t remember which leg of the trip) they put a big tag on the outside that said firearms enclosed. And like one of the other commenters I saw my big yellow Pelican case circling the baggage claim (at both destinations actually).
Good article, but I am confused. Your scenario states you live in Pennsylvania and have a legal CCW permit issued from there. You travel to Georgia and, on the return trip home to Pennsylvania, you are diverted to New York where you are forced to spend the night (which is out of your control). You say the federal Safe Passage Act does not cover you because your travel did not end in a state where it was legal for you to possess a firearm. Of course it does. You are going home. Your travel itinerary was from your home in Pennsylvania to Georgia and back home to Pennsylvania. What if I am traveling on vacation and I pass through a state that does not honor my CCW permit, the weapon is unloaded and locked in my luggage, and I spend a week in that state during my vacation? My vacation/travel plans still ends when I get home. Please comment on this. Thanks!