A federal law meant to legalize interstate travel with firearms covers only travel in a vehicle, not the carrying of guns through an airport terminal, a federal appeals court says.
The U.S. Court of Appeals for the Third Circuit on Sept. 13 found no basis for a suit by a gun-rights group against the Port Authority of New York and New Jersey on behalf of out-of-state gun owners who travel through Newark Liberty International Airport.
The Association of New Jersey Rifle and Pistol Clubs — the NRA's New Jersey affiliate — sought to enjoin the Port Authority from enforcing New Jersey gun-control laws that prohibit possession of a firearm without a permit and possession of hollow-point bullets.
It claimed that enforcement was barred by the federal Firearm Owner's Protection Act (FOPA) and sued to halt it under 42 U.S.C. 1983.
All three judges in Association of New Jersey Rifle and Pistol Clubs v. Port Authority agreed that the case was properly dismissed, but split on the rationale.
The majority — U.S. Circuit Judge Thomas Vanaskie and U.S. District Judge Jed Rakoff of the Southern District of New York, sitting by designation — read the federal law, 18 U.S.C. 926A, as protecting the transport of guns by car, train and aircraft, but not while being carried through a terminal.
The statute allows interstate transport between places where possession of the gun is legal, the gun is unloaded and neither the gun nor ammunition can be "readily accessible or directly accessible from the passenger compartment of such transporting vehicle."
If the vehicle has no compartment separate from the driver's compartment, the gun must be in a locked container.
Rakoff and Vanaskie found further support in the legislative history, noting that the references to vehicles were added to narrow a prior, more expansive version of the law.
"In light of the plain meaning of the statute, fully corroborated by the legislative history, we hold that § 926A benefits only those who wish to transport firearms in vehicles — and not, therefore, any of the kinds of 'transportation' that, by necessity, would be involved should a person represented by the Association wish to transport a firearm by foot through an airport terminal or Port Authority site," Rakoff wrote.
U.S. Circuit Judge Kent Jordan thought that the law created no private right of action. In his view, it was meant only to provide a defense to state prosecution for illegal firearms possession.
The Second Circuit, which addressed the issue in Torraco v. Port Authority, 615 F.3d 129 (2010), did not construe the law as limited to vehicles but found no right to sue under the civil rights law.
In the New Jersey case, Gregg Revell, a Utah gun owner flying from Utah to Allentown, Pa., through Newark, was arrested in 2005. It was legal for him in both those states to possess the gun and hollow-point ammunition packed with the luggage he checked in at the Salt Lake City Airport.
Revell missed his connection in Newark and took his luggage to a hotel overnight. When he tried to check in the next morning for the Allentown flight, he was arrested for violating N.J. gun laws.
He spent 10 days in jail before posting bail and his gun and ammunition were not returned until 2008.
He was a plaintiff with the association when the case was filed in 2006. U.S. District Judge Katharine Hayden threw out his claims. The Third Circuit affirmed in 2010, saying § 926A did not apply because Revell's guns and ammunition were readily accessible to him during his overnight stay in New Jersey.
Revell's due process claims failed because he did not use available state procedure for return of his property. The U.S. Supreme Court denied certiorari.
Hayden later tossed the association's claims too, ruling that § 1983 suits cannot be based on violations of § 926A.
Revell's lawyer, Evan Nappen of Eatontown, says the panel split might help in obtaining en banc review while the inconsistency between the circuits could induce the U.S. Supreme Court to grant certiorari.
The Port Authority declines comment through spokesman Ron Marsico.
Scott Bach, the association's executive director, says the circuit is "in the unique posture of having a completely different interpretation of FOPA than any other court," one that flies in the face of the law's intent and places legal gun owners flying within the circuit at risk.
He adds that the association doesn't "intend to let the decision stand one way or the other."