Posted on May 21, 2012
Click here to see current summaries of all fifty states’ laws in this area.
The following material has been updated from the Law Center’s February 2008 edition of Regulating Guns in America – An Evaluation and Comparative Analysis of Federal, State and Selected Local Gun Laws.
Non-powder guns, including BB, air and pellet guns, expel a projectile (usually made of metal or hard plastic) through the force of air pressure, CO2 pressure, or spring action. Non-powder guns are distinguished from firearms, which use gunpowder to generate energy to launch a projectile. Because non-powder guns are designed to discharge a projectile, often at a high speed and with significant force, they should not be confused with toy guns.
The Centers for Disease Control and Prevention have compiled national data on non-powder gun injuries which illustrate the inherent danger of these weapons:
- 2005 – 19,675 people injured, including 14,052 children age 19 or younger
- 2006 – 25,580 people injured, including 17,325 children age 19 or younger.1
From July 1993 to July 2003, non-powder guns caused 40 deaths nationwide.2 Although injury rates for non-powder guns appear to have declined significantly since the early 1990’s, non-powder guns are becoming more powerful and more accurate, and are often designed to appear almost indistinguishable from firearms.3
According to one study, there are an estimated 3.2 million BB/pellet guns sold in the U.S. each year.4 Numerous studies have documented the potentially severe or lethal nature of penetrating injuries from BB/pellet gunshots, especially those to the abdomen, chest, eye, and head of a child.5
Summary of Federal Law
There are no federal laws regulating the transfer, possession or use of non-powder guns. However, the Consumer Product Safety Commission (CPSC) has taken the position that non-powder guns and ammunition fall within its regulatory authority.6 Hence, non-powder guns are subject to generalized statutory limitations involving “substantial product hazard[s]” and articles that create “a substantial risk of injury to children.”7 However, the written standards that the CPSC relies on with respect to non-powder guns are voluntary standards.8
Federal law blocks states from prohibiting the sale of traditional BB or pellet guns, but explicitly allows states to prohibit the sale of these weapons to minors.9 Courts have interpreted these provisions to allow states to impose other regulations on the sale of traditional BB or pellets guns so long as the regulations fall short of prohibitions on sale.10
SUMMARY OF STATE LAWS REGULATING NON-POWDER GUNS
(This summary was last updated October 15, 2012.)
States that Regulate the Transfer, Use or Possession of Non-Powder Guns
States that Define All Non-Powder Guns as Firearms
States that Treat Certain Non-Powder Guns as Firearms
States that Define Non-Powder Guns as Dangerous or Deadly Weapons
States that Impose Age Restrictions on Possession, Use, or Transfer of Non-Powder Guns
District of Columbia
States that Explicitly Regulate Possession of Non-Powder Guns on School Grounds
Description of State Laws Regulating Non-Powder Guns
Nineteen states and the District of Columbia regulate the transfer, possession or use of non-powder guns to some degree. Although additional regulations exist, non-powder gun regulations can generally be broken down into the following categories:
1. Defining All Non-Powder Guns as Firearms: New Jersey and Rhode Island take this approach, which generally ensures that all non-powder guns are kept out of the hands of children (absent direct adult supervision), and that felons and other individuals prohibited from possessing firearms are similarly barred from possessing non-powder guns.
2. Treating Certain Non-Powder Guns as Firearms: Illinois and Michigan define high-power and/or large caliber non-powder guns as firearms. Illinois excludes from the definition of firearms non-powder guns of .18 caliber or less and non-powder guns with a muzzle velocity of less than 700 feet per second. Michigan excludes the following non-powder guns from the definition of firearms: smooth bore rifles or handguns designed and manufactured exclusively for propelling BB’s, not exceeding .177 caliber by gas or air .
3. Defining Non-Powder Guns as Dangerous Weapons: Connecticut, Delaware and North Dakota list some or all non-powder guns as dangerous weapons. However, dangerous weapon laws tend to be much less comprehensive than laws regulating firearms. In Connecticut, it is unlawful to carry a dangerous weapon, although various exceptions exist for BB guns.34 It is also unlawful to transport a dangerous weapon in a vehicle without a permit. Delaware prohibits possession of dangerous weapons, which are defined to include certain large caliber BB or air guns. North Dakota applies enhanced penalties for the improper use or possession of dangerous weapons.
4. Regulating Non-Powder Guns with Respect to Minors: Most states that regulate non-powder guns do so by prohibiting transfers to children or by prohibiting/limiting where the guns can be possessed or used, although the restrictions are often inapplicable with parental consent or adult supervision. Depending on the state, the term “child” is defined as being anywhere from under 18 years of age to under 12 years of age. A number of states also criminalize the use or possession of non-powder guns on or near school property, or provide that such use or possession shall be grounds for expulsion.
EXEMPLARY LOCAL LAW
New York City35
New York City prohibits the sale or possession of any air pistol or air rifle (defined as any instrument in which the propelling force is air or a spring) without an appropriate license. Persons who are licensed by the city to sell air pistols and rifles may do so only if they deliver the weapons to a location outside the city. Within the city, air pistol and rifle licensees may sell air pistols and rifles to each other. In addition, the use of air pistols and rifles in connection with “an amusement licensed by the department of consumer affairs” or at a shooting range is permitted. Air pistol or rifle dealers must keep records detailing the name and address of each purchaser and the place of delivery for each sale.
FEATURES OF COMPREHENSIVE LAW REGULATING NON-POWDER GUNS
The features listed below are intended to provide a framework from which policy options may be considered and debated. The Law Center has not attempted to include every provision or every creative approach identified in the analysis above, nor have we addressed appropriate exceptions so that the regulation does not produce unintended consequences. A jurisdiction considering modifying existing, or developing new legislation in this area should consult with counsel to ensure its legal sufficiency and compatibility with existing codes and statutes, as appropriate.
• Strict limits are imposed on the possession and sale of non-powder guns within the jurisdiction (New York City)
• If the sale and possession of non-powder guns are permitted within the jurisdiction, the most comprehensive approach is to define all non-powder guns as firearms, so that restrictions on purchase and possession by minors, felons and other prohibited purchasers will apply (New Jersey, Rhode Island)
• Alternatively, with respect to high-power and large caliber non-powder guns only:
o all high-power and large caliber non-powder guns are defined as firearms, so that restrictions on purchase and possession by minors, felons and other prohibited persons will apply (Illinois, Michigan)
o all transfers of high-power and large caliber non-powder guns are required to be made through a licensed firearms dealer, and the dealer is required to report all transfers to law enforcement
o there is a registration mechanism for owners of high-power and large caliber non-powder guns
• Minors are prohibited from possessing non-powder guns unless under direct adult supervision
- National Center for Injury Prevention and Control, U.S. Centers for Disease Control and Prevention, Web-based Injury Statistics Query and Reporting System (WISQARS) Nonfatal Injury Reports 2005 and 2006, at http://webapp.cdc.gov/sasweb/ncipc/nfirates2001.html. [↩]
- Jennifer E. Keller et al., Air-Gun Injuries: Initial Evaluation and Resultant Morbidity, 70 Am. Surgeon 484, 484 (June 2004). [↩]
- Ann Marie McNeill & Joseph L. Annest, The Ongoing Hazard of BB and Pellet Gun-Related Injuries in the United States, 26 Annals Emergency Med. 187, 191-92 (Aug. 1995); Press Release, U.S. Consumer Product Safety Commission, CPSC Chairman Challenges Toy Industry To Stop Producing Look-Alike Guns (Oct. 17, 1994), at http://www.cpsc.gov/CPSCPUB/PREREL/PRHTML95/95009.html. [↩]
- M. H. Nguyen et al., Trends in BB/Pellet Gun Injuries in Children and Teenagers in the United States, 1985-99, 8 Injury Prevention 185, 185 (2002). [↩]
- Id. [↩]
- See 15 U.S.C. § 2052(a)(5)(E)(exempting firearms from the definition of “consumer product” subject to the authority of the Commission); Rev. Rul. 67-453, 1967-2 C.B. 378 (stating that air rifles and air pistols are not part of that exemption); CPSC Advisory Opinion No. 127; CPSC Safety Alert: BB Guns Can Kill, (January 11, 2012) at http://www.cpsc.gov/CPSCPUB/PUBS/5089.pdf, CPSC, Recall Alert: Air Rifles Recalled by Air Venturi Due to Ability to Fire With Safety Switch On (April 18, 2012) (Recalling certain air rifles because, “The safety switch can be overcome by pulling the trigger with force, allowing the rifle to fire, resulting in a serious injury or death”). [↩]
- 15 U.S.C. §§ 1274(c)(1), (2), and (e); 2064. The CPSC has taken at least one enforcement action against a manufacturer of a non-powder gun on the grounds that the gun created a “substantial product hazard” and “a substantial risk of injury” to children. See Daisy Manufacturing Co; Complaint, 66 Fed. Reg. 56,082 (Nov. 6, 2001) (alleging that non-powder guns manufactured by Daisy Manufacturing Co. present a substantial product hazard and a substantial risk of injury to children); Daisy Manufacturing Company Provisional Acceptance of Settlement Agreement and Order, 68 Fed. Reg. 68,876 (Dec. 10, 2003) (accepting on behalf of the Consumer Product Safety Commission a consent agreement that imposed a series of labeling requirements on non-powder guns). [↩]
- 15 U.S.C. § 2056(b)(1); see also S.K. Presnell, Comment: Federal Regulation of BB Guns: Aiming to Protect Our Children, 80 N.C.L.Rev. 975, 1015 (2002). [↩]
- 15 U.S.C. § 5001(g)(ii). [↩]
- See Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Christie, 2010 U.S. Dist. LEXIS 59139 (D. N.J. 2010) (upholding the application of New Jersey’s one-gun-a-month law to BB guns), State v. Rackis, 755 A.2d 649 (N.J. Sup. 2000) (upholding the application of New Jersey’s permitting requirement to BB guns). But see Coalition of New Jersey Sportsmen v. Florio, 744 F. Supp. 602 (D.N.J. 1990) (holding that New Jersey’s assault weapon ban could not be applied to the sale of BB guns). [↩]
- Cal. Penal Code §§ 171.7, 626.10, 16250, 16700, 19910-19915, 20150-20180; Cal. Gov’t Code § 53071.5. [↩]
- Colo. Rev. Stat. §§ 22-33-102(4)(b), 22-33-106(1)(d)(I). [↩]
- Conn. Gen. Stat. §§ 29-38, 53-206(a), 53a-3(6), 53a-217b. [↩]
- Del. Code Ann. tit. 11, §§ 1445, 1457. [↩]
- D.C. Mun. Regs. tit. 24, §§ 2301 – 2302. [↩]
- Fla. Stat. Ann. § 790.22. [↩]
- 430 Ill. Comp. Stat. 65/1.1, 720 Ill. Comp. Stat. 5/24.8-0.1 – 8-6. [↩]
- Me. Rev. Stat. tit. 17-A, § 554. [↩]
- Mass. Gen. Laws ch. 269, §§ 12A, 12B. [↩]
- Mich. Comp. Laws §§ 750.222(d), ), 752.891. [↩]
- Minn. Stat. §§ 609.66, 624.7181. [↩]
- Miss. Code Ann. § 97-37-17(4), (5). [↩]
- N.H. Rev. Stat. Ann. § 193:13. [↩]
- N.J. Stat. Ann. §§ 2C:39-1(f), 2C:39-5b, 2C:39-6e. [↩]
- N.Y. Penal Law § 265.05 [↩]
- N.C. Gen. Stat. §§ 14-316, 14-269.2. [↩]
- N.D. Cent. Code §§ 12.1-01-04, 62.1-01-01(1). [↩]
- Okla. Stat. tit. 21, § 1283. [↩]
- 18 Pa. Cons. Stat. § 6304. [↩]
- R.I. Gen. Laws § 11-47-2(3). [↩]
- Va. Code Ann. §§ 15.2-915.4, 22.1-277.07. [↩]
- Wash. Rev. Code Ann. § 9.41.280(1)(e). [↩]
- Wis. Stat. § 948.61. See also In the Interest of Michelle A.D., 512 N.W.2d 248 (Wis. Ct. App. 1994) (finding that a BB gun is a dangerous weapon). [↩]
- Other states, such as Illinois and Minnesota, also restrict the carrying of BB guns in public places. California prohibits displaying a BB gun in a public place, with certain exceptions. [↩]
- New York, N.Y., Admin. Code § 10-131(b). [↩]