Federalism and State Licensing – Who has Authority over Issuing the Georgia Firearms License?
By Matt Knighten
There have been a few Probate Court Judges that are confused about what Federal laws, regulations, or rules have control or precedence over State laws regarding the issuance of a license to carry a firearm. This confusion has extended to the issue of purchasing a firearm and whether Georgia’s firearms license and temporary renewal license qualify as an exemption to the federal law requiring background checks of purchasers of firearms in retail transactions. Below, this article will provide as much detail as necessary to clarify such confusion.
This article is divided into two main sections for the convenience of the reader. The first section covers issues pertaining to the issuance of a Georgia firearms license, which allows a Georgia resident to carry a revolver or pistol (open or concealed) outside of his home, car, or place of business. The second section covers the issues regarding purchasing a firearm. This article does not address the debate regarding what is or is not allowed under the Second Amendment or state constitution. Rather, this article is only regarding the current law as it is or was recently on the books, and the history of what lead to the loss and recovery of Georgia’s exemption from the federal background check requirement.
Section 1. CARRY
(A) Federal and State Authority Generally
It is currently the authority of each state to regulate the carry of firearms within their borders however they see fit (many have this stated in their state constitution). 1 The only overriding federal law allowing carry of firearms is the Firearm Owner’s Protection Act of 1986 (FOPA), which permits transportation across state borders (interstate travel). 2 This law facilitates travel from one state that allows firearm carry, through a state that may restrict it, with the destination being a state that allows it. This Federal law applies to firearms that are unloaded, cased, and locked in the automobile trunk and preempts local laws in conflict (TSA has similar regulations for transportation on aircraft). The state and/or local firearms laws regarding carrying apply when any firearm (handgun, rifle, or shotgun) is carried on or about the person, or placed where it is readily accessible in a vehicle. There are federal laws and regulations restricting carry within a state. Most of those are limited to prohibiting carry while on federally owned property (post office, national parks) and a non-enforced law restricting carry on school property. Other than those few federal exceptions, the State and local laws on firearm carry are govern.
(B) State Regulation
Currently, 27 states allow firearms to be openly carried without a license. 3 2 states do not require any license at all to carry a concealed firearm. 36 states are “shall issue” (meaning if you meet certain criteria you will be granted a license), 4 11 states are “may issue” (the issuing agency has discretion),5 and 2 states do not issue a carry permit under any circumstances. 6 Of the two states that do not issue licenses to carry concealed, one of those states, Wisconsin, permits the carry of a firearm openly with no licensing requirement.
The States, either by their own law or by agreement through their Attorneys General (AG agreement is called reciprocity) can honor another state’s permit as its own. This honoring of another state’s permit (or AG reciprocity) is a matter left to the individual states and is not subject to any federal oversight or control (bills at the federal level that would allow universal reciprocity throughout the nation have been introduced but not yet been passed). To see which states Georgia currently honors, and which states will honor a Georgia license, visit http://www.georgiapacking.org/gflr.php
(C) Georgia’s License
Georgia is a shall-issue state (regardless of what the president of the Georgia Council of Probate Court Judges seems to think). Georgia’s license is required to carry a pistol or revolver openly or concealed, with few exceptions. The Georgia Legislature has defined the criteria a person must meet to be eligible for a Georgia Firearms License (found in OCGA § 16-11-129)
7 and also has created laws limiting how one may carry (OCGA §§ 16-11-126 and 16-11-128) and places where one may or may not carry (OCGA §§ 16-11-127, 16-11-127.1, 16-11-127.2, 16-12-123, 16-12-127, and others). Georgia expressly pre-empted any local government from creating any places off-limits. Georgia’s pre-emption statute is found in OCGA § 16-11-173).
The Georgia Firearms License (GFL) is applied for and issued by the probate court judge located in the county in which the applicant resides, and it is valid for 5 years (16-11-129(a)). The law breaks down the license into 5 separate categories:
(1) New License (applicant never had a GFL before or it has been expired a long time),
(2) Renewal License (applicant’s current license is about to or has recently expired),
(3) Temporary Renewal License (16-11-129(i), which is valid for only 90 days, to be used while waiting for a Renewal License application to be processed),
(4) a Replacement License for a lost/stolen/damaged 5 year new or renewal license (16-11-129(e)), and
(5) a retired LEO license (16-11-129(h), which is for retired Law Enforcement Officers).
The reasons why a new or renewal GFL will not be granted are listed in 16-11-129(b). For the probate court to know whether an applicant falls into one of the ineligibility categories, the law provides that the applicant must fill out an application at the Probate Court and proceed to the local designated law enforcement agency to be fingerprinted. The local law enforcement agency must then check the National Instant Check System (NICS lists the people federally prohibited from purchasing firearms) pursuant to O.C.G.A. § 16-11-129(d)(1) and send a copy of the fingerprints (electronically or on hard cards) to the Georgia Crime Information Center (GCIC is a state wide check) and the FBI’s NCIC (nation wide check) pursuant to O.C.G.A. § 16-11-129(d)(2). The probate judge is to request that the local law enforcement agency return an “appropriate report” to the probate judge. O.C.G.A. § 16-11-129(d)(1) and (2). In 2007 the Georgia Court of Appeals decided that “notify” and “report” are 2 seperate operations and that only the GBI or FBI investigatory processes are valid as a reason for the probate court to take longer than the 60 days stated in the law.
(E) Temporary Renewal License
Such checks are not needed for a Temporary Renewal License. The renewal applicant need only request one and pay $1 to receive one, assuming the judge does not know (or is not made aware) of a reason why the applicant is ineligible O.C.G.A. § 16-11-129(i).
(F) Replacement License
Those checks are also not needed for a Replacement License. The lost/damaged/stolen license must be reported within 48 hours and once reported the court must replace it at a cost of $5. For lost or stolen licenses the court must also inform law enforcement. O.C.G.A. § 16-11-129(e).
It is the sole discretion of the state to decide if they want to license individuals to carry and if so they must decide whatever criteria they determine is best. It is a violation of state’s rights for the federal government to interfere with whatever process the state has created, and there is currently no interference from the federal government in state firearms licensing laws. The federal government does, however, impose background check requirements on firearms purchasers at the retail level, but it exempts purchasers holding a firearms license meeting certain requirements.
Section 2. PURCHASE
Under the federal law regarding firearm purchases from federally licensed dealers (FFL – Federal Firearms License), the person purchasing a firearm must submit to a check of the National Instant Check System (NICS), which they must pass before the firearm can be purchased. This is done by filling out a Federal form and the dealer then either calls in the information or sends it over the internet. 8
Federal law allows an exemption to that NICS check when purchasing a firearm if a state’s licensing system meets certain criteria, 18 U.S.C. § 922 (t)(3), which basically says a purchaser must present a state firearm carry/purchase license to the FFL at the time of purchase, which:
is valid for 5 years or less,
had a NICS check performed and passed during the license application process, and
is denied to anyone prohibited from possessing firearms under federal, state, or local law.
The federal regulation on NICS exemption is 27 C.F.R. § 478.102(d)(1)). The BATFE from time to time reviews the licensing laws of each state to determine if they qualify for this exemption.
(A) Georgia’s License Lost Its NICS Exemption in 2005
The BATFE in October of 2005 issued a letter to all Georgia FFL’s following a re-evaluation of Georgia’s licensing process and found it no longer qualified as NICS exempt. 9 The letter notes that when the the BATFE determined that Georgia’s license qualified as exempt in 1998, it was because “Georgia conducted background checks through NICS prior to the issuance or renewal of these permits, and denied a permit to anyone prohibited under Federal, State, or local law.”
The problems the BATFE gave were reviewed by Georgia’s Council of Probate Court Judges, although it is unclear why, as the probate courts have no policy role in determining anything regarding the process for issuing firearms licenses. Rather, as explained above, the process is dictated by statute, and the probate court’s job is simply to follow the law. In the November 05 issue of the newsletter, The Gavel, lists the issues identified by the BATFE:
1. State law does not require that a permit and a renewal permit be denied to all persons prohibited under Federal from possessing a firearm.
2. State law does not require a NICS check be conducted before a renewal permit is issued. While the State has a written policy to conduct NICS checks on renewal, a policy does not satisfy the Brady law requirements.
3. Lack of confirmation that Immigration and Customs Enforcement (ICE) databases checks are being conducted on non-U.S. citizens.
4. Temporary renewal licenses do not meet the requirements to be a NICS alternative, because no background check is required before they are issued.
There was nothing the probate court judges could do in 2005, because only the General Assembly can change statutes and the Assembly did not meet again until January of 2006. 10
(B) Georgia’s License Regains it Exemption in 2006
As noted above, probate courts cannot change statutes. The General Assembly, however, passed a bill in 2006 aimed at regaining Georgia’s lost NICS exemption at point of purchase.. The bill was HB 1032, and it was successful in regaining Georgia’s NICS exemption. 11 HB 1032 added federal exemptions to firearm purchases to the exemptions for a GFL, it added the requirement to pass a NICS check, and it added a section requiring alien applicants to pass ICE checks. Those amendments addressed issues 1-3 from the Gavel, but not 4. Temporary Renewal Licenses were not touched in HB 1032.
In addition to the amendments recited above, HB 1032 went beyond the requirements of NICS exemption. The bill also required all renewal applicants to re-submit fingerprints to NCIC and GCIC, which was not a requirement of the BATFE. Indeed, fingerprinting is not a requirement at all, even upon initial application (2 states currently do not require fingerprint checks for a firearm license, but are NICS exempt: KY, MT).
HB 1032 became law on July 1st 2006. On that same day the BATFE sent out another letter to FFL’s advising them that the GFL was once again exempt from NICS at purchase. 12 This exemption was recognized by the BATFE in spite of the fact that Georgia’s provisions for issuance of a temporary renewal license remained in effect, unamended by the bill.
Once HB 1032 went into effect, almost every probate court in the state of Georgia refused to issue either a Temporary Renewal License or a Replacement License, claiming that because these licenses do not require a background check, then they are therefore invalid. Although the law, O.C.G.A. § 16-11-129(i) required probate courts to issue temporary licenses, the probate courts, urged by the Council of Probate Court Judges, simply made a decision to blatantly violate the law. Many probate courts explained to disappointed applicants that “federal law” barred them from issuing the temporary renewal license. That is simply wrong, as the BATFE can not invalidate what the licensing statute allows or commands. Rather, the BATFE can merely grant or rescind the NICS exemption.
Probate courts do not have the power/authority/discretion to decide whether or not they should follow Georgia law or ignore it and go by NICS exemption guidelines. In determining how to process a firearms application, the probate courts can only follow Georgia law. It is up to Georgia’s legislature to decide how an application should be processed, and that process is stated in the law and is the only thing the probate courts can follow. GCO has been active in forcing the probate courts to follow the process provided in the licensing statute, O.C.G.A. § 16-11-129, and it has experienced great success, since the recalcitrant probate court judges have, for the most part, been unwilling to appear in court and explain their refusal to follow the procedure that state law so clearly commands. It is the probate court’s duty to follow state law, and it is the BATFE’s job to determine whether that law meets the NICS exemption guidelines and therefore grant or rescind the exemption.
BATFE, following the passage of HB 1032, made the decision that Georgia’s licensing procedure qualifies for the NICS exemption without any changes to Georgia’s law regarding temporary renewal licenses and replacement licenses. Therefore, any action by the probate judges in refusing to issue temporary renewal licenses and replacement licenses, fails to address a practical problem of Georgia’s license losing its exemption. This problem does not exist. In addition, the probate court’s refusal is a blatant violation of state law, and it should not be tolerated.
Copyright 2007 GeorgiaCarry.Org Inc.
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1 Georgia Constitution: Paragraph VIII. Arms, right to keep and bear. The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.
2 FOPA is found in 18 USC § 926A.
3 See www.opencarry.org
4 This includes Alaska, a state in which no license is necessary to carry concealed, but licenses are available anyway on a shall issue basis for those wishing to apply.
5 This includes three states in which licenses are almost always issued, and 8
states in which licensing is more restricted.
6 See NRA-ILA map for the current list, http://www.nraila.org/images/rtcmaplg.jpg, as new states are becoming “shall issue” almost every year
7 Georgia Code Online is located at http://w3.lexis.com/hottopics/gacode
8 NICS, aka the Brady Act is found under 18 USC 922 (t)
9 Open letter to Georgia FFL’s http://www.atf.gov/firearms/101705georgia-openletter-ffls.pdf
10 The Gavel, November 05, page 8 http://www.georgiacourts.org/councils/probate/nov2005.pdf
12 Open letter to Georgia FFL’s http://www.atf.gov/firearms/070106georgiaffl-openletter.pdf