Carrying Firearms On Aircraft
A client recently asked me whether he could carry a firearm on an
aircraft. As usual, my lawyerly answer was “it depends”. What does it
depend upon? Well, for starters, what type of firearm? Will it be
carried concealed or on the person (e.g. using a concealed carry weapon
“CCW” permit), or will it be in checked luggage? What type of aircraft?
Is it a commercial flight or a private flight? Is the flight interstate
or intrastate? The answers to these questions dictate whether or how
you can transport a firearm on an aircraft.
Probably the best way to look at the issue is to determine where you
will be with the firearm when you board the aircraft: Within a sterile
area of an airport or within a non-sterile area of an airport. Several
different statutes apply to transportation of firearms on aircraft,
depending upon the type of aircraft and aircraft operation and where
you board the aircraft.
Sterile Area
What is a sterile area? U.S. Statute 49 CFR 1540.5 defines it as “a
portion of an airport defined in the airport security program that
provides passengers access to boarding aircraft and to which the access
generally is controlled by TSA, or by an aircraft operator under part
1544 of this chapter or a foreign air carrier under part 1546 of this
chapter, through the screening of persons and property.” This is the
area beyond the security checkpoints and up to and including the gates
to the aircraft. You have to subject yourself and your carry on luggage
to search and inspection (including removing your shoes, walking
through metal detectors etc.) in order to enter the sterile area.
Once within a sterile area, U.S. Statute §1544.219(LEO),§1544.221(LEO w/prisoner), §1544.223(Air Marshal), or §1546.211(foreign air carrier provision for
LEO) or an individual authorized to carry a weapon in a
sterile area under a security program.
Although aircraft using the sterile area may be operated by an airline
or an on-demand charter operator, those aircraft may also be operated
by freight carriers, or in some cases, privately owned aircraft. 49 CFR §1550.5 provides a
“catch-all” expanding the prohibition on possession of firearms to all
operations, not just airlines and charter, boarding or unloading using
the sterile area of an airport. Thus, regardless of the type of
operation, if you have to go through a sterile area to board the
aircraft and you do not fall within one of the exceptions, you will not
be able to carry a firearm with you on your person or in your carry-on
luggage. Period.
However, even if you are prohibited from carrying a firearm with you
onto the aircraft, you may still be able to bring your firearm along in
your checked luggage. U.S. Statute 49 CFR 1540.111(c) applies to the
transportation of firearms within your checked baggage. You may not
transport loaded firearms. However, you may transport unloaded firearms
provided that you declare the firearms to the aircraft operator
(usually by filling out a declaration form), the firearm is unloaded
and locked in a hard-sided container and you are the only one to retain
a key or combination for the lock.
This regulation does not prohibit you from carrying ammunition in your
checked baggage or in the same container as a firearm. Also, each
individual aircraft operator may have differing policies and guidelines
regarding the transportation of unloaded firearms, as well as
ammunition. It is best to check with your aircraft operator well in
advance of your departure date to make sure you know the aircraft
operator’s requirements and procedures and that you will to arrive at
the airport able to comply.
Non-Sterile Area
If you are within a non-sterile area of an airport, the statutes and
regulations do not apply. However, your ability to possess a firearm
will depend upon the type of flying you will be doing as well as the
state law applicable to the airport.
U.S. Statute 49 USC §46505 makes it a crime
subject to fine, imprisoned for not more than 10 years, or both, if a
person “when on, or attempting to get on, an aircraft in, or intended
for operation in, air transportation or intrastate air transportation,
has on or about the individual or the property of the individual a
concealed dangerous weapon that is or would be accessible to the
individual in flight.” Additionally, under 49 USC §46303
“[a]n individual who, when on, or attempting to board, an aircraft in,
or intended for operation in, air transportation or intrastate air
transportation, has on or about the individual or the property of the
individual a concealed dangerous weapon that is or would be accessible
to the individual in flight is liable to the United States Government
for a civil penalty of not more than $10,000 for each violation”.
At first glance, these statutes seem to be very broad and all
encompassing. However, the definitions of “air transportation” and
“intrastate air transportation” as defined in 49 USC §40102 limit the
applicability of these statutes to air carriers. What is an air
carrier? It is an individual or business who provides transportation
for hire either between two states or within one state using a turbojet
aircraft with more than 30 seats. Practically speaking, these
definitions limit the applicability of this statute to the airlines and
charter operators who are either flying between states or operating
larger, turbojet aircraft.
U.S. Statute 49 CFR §1550.7 is a more specific
“catch-all” that applies to aircraft weighing more than 12,500 pounds
and where the aircraft’s operation is not otherwise subject to the
statutes and regulations addressed above. This regulation requires that
an operator “must conduct a search of the aircraft before departure and
screen passengers, crewmembers, and other persons and their accessible
property (carry-on items) before boarding”, regardless of whether
boarding and loading occurs from a sterile area.
Another regulation that affects your ability to carry a firearm on a
flight operated by a charter operator is
14 CFR §135.119. Under this
regulation “no person may, while on board an aircraft being operated by
a certificate holder, carry on or about that person a deadly or
dangerous weapon, either concealed or unconcealed. Section 135.119 does
not apply to LEO’s or to “Crewmembers and other persons authorized by
the certificate holder to carry arms”. Thus, although this regulation
appears to limit the possession of firearms, if the charter operator
grants you permission, either directly or within its operations
specifications, you would be exempt from this regulation and able to
carry firearms subject to any other applicable statutes or regulations.
Finally, if you are flying in a private aircraft that is not being
operated by a common carrier from one state to another, and no other
statutes apply to your flight, you will still be subject to 18 USC §926A regarding the
interstate transportation of firearms which states that “any person who
is not otherwise prohibited by this chapter from transporting,
shipping, or receiving a firearm shall be entitled to transport a
firearm for any lawful purpose from any place where he may lawfully
possess and carry such firearm to any other place where he may lawfully
possess and carry such firearm if, during such transportation the
firearm is unloaded, and neither the firearm nor any ammunition being
transported is readily accessible or is directly accessible from the
passenger compartment of such transporting vehicle”.
This statute allows you to transport firearms between states subject to
the statute’s conditions: that you can lawfully possess the firearm at
your points of departure and arrival, and the firearm is unloaded and
inaccessible during the trip. However, what if you are a CCW permit
holder and you want to carry concealed between states? Well,
fortunately 18 USC §927 states that Section
926A does not pre-empt applicable state law. Thus, if you can lawfully
carry a concealed weapon in the state in which you board the aircraft
and in the state in which you land, you are not subject to the unloaded
and inaccessible restrictions of Section 926A.
For operations of private aircraft within one state, you will only be
subject to the laws of the state within which you are operating. You
will need to review your state’s statutes to determine whether they
impose any restrictions on possession of firearms within non-sterile
areas of airports. You will also need to be familiar with the airports
you will be visiting to determine whether each airport has any
restrictions (e.g. posting to prohibit concealed carry etc.).
Conclusion
What does all this mean? Well, for the majority of people traveling on
commercial aircraft, the ability to transport firearms on the aircraft
is severely restricted. In almost all cases, unless you are flying in a
private aircraft, carrying firearms with you on an aircraft, either on
your person or in your carry-on luggage, is prohibited.
You may still bring firearms and ammunition with you on a flight, but
they will need to be unloaded and contained in a locked case within
your checked luggage in compliance with your airline or aircraft
operator’s policies. Your best bet is to check with your airline or
aircraft operator ahead of time to make sure you know and can comply
with their policies for transporting firearms. With a little planning
and preparation, it can be done.
If you are flying on a charter aircraft that weighs less than 12,500
pounds, you can only carry firearms with the operator’s permission and
as long as you can lawfully do so at both your departure and arrival
airports.
For those of you who fly in private aircraft and carry firearms with
you, knowing the areas at an airport within which you can and cannot
possess a firearm will help you avoid accepting a clearance or taxiing
to an area within which possession of firearms is prohibited. So long
as you remain outside of airport sterile areas, your possession of
firearms will only be subject to the laws of the state in which you are
flying.
As always, fly safe and, especially if you are carrying firearms, fly
smart.
About the Author
Greg is an aviation attorney, author and holds a
commercial pilot certificate with instrument rating. His practice
concentrates on aviation litigation, including insurance matters and
creditor’s rights, FAA certificate actions and aviation related
transactional matters. He can be reached via e-mail at
greigel@aerolegalservices.com or check out his website at www.aerolegalservices.com.
© 2004 Reigel
& Associates, Ltd./Aero Legal Services. All
rights reserved.
|
