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62 lots, in some states (e.g., Georgia and Washington) a statute provides that firearms are not banned on an airport drive or in a general parking area. Assuming that firearms are not prohibited, a person carrying a firearm to an airport and leaving it in a parking lot is more likely to be violating state law if the person does not have a license to carry a firearm in those states that require a license to carry a firearm or to carry a concealed firearm, and if the firearm is loaded, not out of sight, and/or not secured in the vehicle in the precise manner required by state law. Section V demonstrates that at least 16 states ban the carrying of a firearm by private individuals in public buildings altogether or allow local govern- mental authorities to post signs banning firearms. In some states, a person licensed to carry a firearm is prohibited from carrying a firearm in a public building. Two airports that responded to the survey reported that pursuant to their stateâs statute, they had posted signs prohibiting firearms or concealed firearms in the airport. As seen in Section VI, in regard to state laws that are specific to airports, numerous states have statutes prohibiting firearms in airport terminals and/or on other airport property. Eleven airports located in seven states reported that they prohibit the open car- rying of firearms in the airport. Based on state stat- utes, airport responses to the survey, and airport rules and regulations, it appears that at least 11 states and at least one airport in 12 more states ban firearms in airport terminals. Moreover, at least 13 states prohibit the carrying of concealed firearms in airports. Section VII discusses state laws that generally prohibit the possession of a firearm by individuals convicted of a felony or other serious crime, persons under the age of 21 (or under 18 in some states), anyone under the influence of alcohol or illegal drugs, or anyone possessing a firearm that is illegal under state law. Anyone coming within one of the foregoing categories and carrying a firearm in an airport or elsewhere obviously would be violating state law. Section VIII discusses state laws that permit pri- vate establishments to post signs prohibiting fire- arms on the premises, including firearms carried by persons having a license to carry a concealed fire- arm. Judge Richard Posner expressed the view in Moore v. Madigan that there could be a salutary reduction in the carrying of firearms in public if more private entities prohibited the carrying of fire- arms on their premises. Most commercial airports likely have bars and res- taurants that serve alcohol for consumption on the premises. As discussed in Section IX, numerous state statutes prohibit a person, including in some states a deliberate deprivation of life, liberty, or property, or at least âdeliberate indifference.ââ662 Conclusion Because state laws apply statewide, including to airports, the digest discusses state statutes that apply to an individual carrying a firearm from the time the individual departs for an airport by private or public transportation until the individual arrives at the screening checkpoint prior to entry to the sterile area of an airport terminal. As discussed in Section II, although the Supreme Courtâs decision in Heller recognizes a constitutional right under the Second Amendment to carry a fire- arm in the home, questions remain concerning the constitutionality of gun control laws that restrict or prohibit the carrying of firearms in places outside the home. Because the courts are applying a test of intermediate scrutiny, rather than strict scrutiny, it presently appears that most gun control laws are presumptively constitutional. Indeed, federal and state courts since Heller have upheld a wide variety of gun control laws. On the other hand, in some recent cases the courts have held that a state may not completely ban the carrying of a firearm outside the home. Nevertheless, a court has not held that a state may not ban the pos- session of firearms in an airport. There is some com- mentary and two cases that support the proposition that an airport is a sensitive place within the mean- ing of Heller where firearms may be prohibited with- out violating the Second Amendment. When a person departs for an airport by private or public transportation while possessing a firearm, unless the person is knowledgeable of state firearms laws that apply to the travel, which may be inter- state, the person could be violating a stateâs firearms laws. Whether the person is violating state law depends on a number of factors, such as whether the firearm is loaded, whether a person has a permit to carry a firearm or to carry a concealed firearm, or whether part of a trip is by public transportation, all of which are discussed in Section III. As explained in Section IV, on arriving at an air- port parking facility or other public or private park- ing facility, an individual may be in violation of state law if a firearm is left in the vehicle. Although there are states that prohibit firearms in publicly owned or leased parking facilities or in airport parking lots, it appears that in most states it is lawful to have a fire- arm in a vehicle in a public or private parking lot. Some states allow private owners or lessors of park- ing facilities to ban firearms. Although some airports reported that firearms are banned in their parking 662 Froomkin, supra note 623, at 1053 (citation omitted).
63 firearm or to carry a concealed firearm and the personâs identity. A holder of a license is required to display his or her license, as well as identifica- tion, upon the request or demand of a law enforce- ment officer. Section XIV covers federal statutes that apply to the possession of firearms in airports or on airport property and other issues of federal concern. Fed- eral law prohibits firearms at a screening check- point and in the sterile area of an airport. TSA is authorized to impose an administrative penalty when an individual possesses a firearm at a secu- rity checkpoint or in the sterile area of an airport. The digest also discusses the FFDOP, the inter- state transportation of firearms, whether 18 U.S.C. Â§ 926A applies to the transportation of firearms by air or only by vehicle, and the Undetectable Firearms Act of 1988. Section XV discusses whether airports could be the subject of a claim arising out of a personâs posses- sion of a firearm in an airport terminal or on other airport property based on a state statute or an air- port rule banning the carrying of firearms. As for tort claims, some airports reported that as government- owned entities they have immunity to claims in their state under a tort claims act or similar legislation. Some state statutes provide that airports are immune from claims that arise out of a personâs car- rying of a firearm in an airport or for prohibiting the carrying of firearms in an airport or on other airport property. Airports and air carriers may be immune pursuant to a state statute to claims by ticketed indi- viduals who refused to be searched prior to boarding and thus were not allowed to board a flight. Finally, Section XV also discusses whether there are potential Bivens claims against federal officials or employees or Â§ 1983 claims against state or local governments or their officials or employees based on an airportâs prohibiting an individual from carrying a firearm in an airport. As for Bivens claims against federal officials and employees, even if the courts recognize a Bivens claim for a constitutional viola- tion, such claims are likely to be treated as claims against the United States under the FTCA. There are several obstacles to Bivens and Â§ 1983 claims, including the defense of qualified immunity. A threshold, likely dispositive issue presently, how- ever, is that there is no case holding that prohibiting a person from carrying a firearm in an airport vio- lates the Constitution. For example, it is not enough in a Â§ 1983 action for a plaintiff to allege a violation of the plaintiff âs constitutional rightsâit must be shown that the constitutional right allegedly vio- lated was clearly established at the time of the alleged violation. person having a license to carry a concealed weapon, from carrying a firearm into an establishment that sells liquor, beer, or wine for consumption on the premises. In some states, there may be an exception for restaurants that earn more than a designated percentage of their revenue from the sale of food. Section X discusses a wide variety of state stat- utes that ban disorderly conduct or the creation of a public nuisance. When an individual is carrying a firearm in an airport or shows one in an airport parking lot, depending on the circumstances, the individual could be violating a state statute, such as one that prohibits brandishing a firearm, creating a hazard to others, interfering with a transportation facility, or violating another statute regulating pub- lic conduct. On the other hand, there is statutory authority and case precedent in some states that the mere possession of a firearm is insufficient for a charge of disorderly conduct. As demonstrated in Section XI, when an individ- ual applies for a state license to carry a firearm or to carry a concealed firearm, there are usually numer- ous conditions that an applicant must satisfy prior to the issuance of a license. After a license is issued, the licensee is obligated to remain in full compliance with all conditions on which the license was granted. If there is a violation of a condition, the statutes gen- erally provide that a license will be revoked. In some states, however, as soon as an individual no longer satisfies one or more conditions for a license, the license is revoked automatically. Also discussed in Section XI is that when a per- son holds a valid license to carry a firearm or to carry a concealed firearm in another state, in some states the out-of-state license is recognized auto- matically by the State in which an individual is traveling. Elsewhere, a state official, such as the state attorney general, is empowered to enter into reciprocity agreements with other states to enable licensees to carry a firearm in the states that are parties to the agreements. As for state preemption, covered in Section XII, although the research did disclose a few exceptions, in most states the state laws that regulate firearms preempt any local regulation of firearms that is more restrictive than state law. A few state statutes are airport-specific and preempt any local regula- tion of firearms in airports, as well as publicly owned or operated buildings. As discussed in Section XIII, when a law enforce- ment officer observes an individual carrying, or suspects that an individual is carrying, a firearm in an airport, in general an officer may make rea- sonable inquiries of the person, examine the fire- arm, and verify both the personâs license to carry a