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Carrying Firearms On Aircraft

by: Greg Reigel

Carrying Firearms On Aircraft

© 2004 Reigel & Associates, Ltd./Aero Legal Services. All rights reserved.

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 49 CFR 1540.111(a) applies. This regulation prohibits carriage of a weapon on your person or accessible carry-on luggage if security screening was required before boarding of the aircraft. Thus, if you have to pass through a security screening checkpoint to enter a sterile area, firearms are prohibited within the sterile area and on board aircraft that you board from a sterile area.

The regulation provides exceptions for law enforcement officers (LEO's) required to carry firearms or other weapons while in the performance of law enforcement duties at the airport, for individuals authorized to carry a weapon in accordance with "http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?type=simple;c=ecfr;cc=ecfr;sid=d33fd093da2e85a2d673d761109627b3;idno=49;region=DIV1;q1=weapon;rgn=div5;view=text;node=49%3A8.1.3.7.10#49:8.1.3.7.10.3.10.10"target="_blank">§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.