Is an Airsoft Gun a ‘Firearm’?
Straightforwardly, “firearm” is defined as “[a]nything which expels a missile by combustion of gunpowder (or a similar substance), from a pistol to a cannon.”[1] To put it another way, a firearm is, therefore, “a weapon that ‘expels a projectile by action of an explosion’…”.[2]
Therefore, on the straightforward, Federal-level definition, an Airsoft gun is not generally classified as a firearm in the narrow sense.[3]
“Federal laws actually have more to say on the subject. Although there is no state law restricting age on the purchase of these kinds of toy guns, federal law restricts the sale of airsoft guns and BB guns to persons over the age of 18. However, there are no age restrictions on the use of airsoft rifles or BB guns. Anyone can use them under a parent’s supervision. Registration does not apply to these kinds of toy guns, either, so there are no waiting periods or background checks. Federal trade laws stipulate that all airsoft rifles manufactured in other countries for sale in the United States be equipped with blaze orange tips, identifying them as toy guns. All U.S. made airsoft rifles manufactured for sale inside the U.S. also come equipped with blaze orange tips. However, there are certain exceptions to these laws. For instance, airsoft rifles or BB guns which use compressed air, compressed gas, or spring action are technically exempted from these rules, although many manufacturers comply anyway. Another obscure federal law mandates the removal of the trademark of a company if they do not have a licensing agreement with the manufacturer. If you would like to know more about these kinds of federal laws and regulations, I suggest contacting U.S. Congressman, Adrian Smith or U.S. Sen. Deb Fischer, or U.S. Sen. Ben Sasse.
“… Nevertheless, nothing even remotely resembling a gun should ever be brought to school or enter onto school grounds. This action would likely land a person in handcuffs, scare students and teachers, and it would probably even get that person’s name negatively plastered all over the national news media. 3) You cannot hunt game with an airsoft gun or a BB gun or a pellet gun. Nebraska hunting regulations administered through the Game and Parks Department stipulates which kinds of weapons can be used for hunting each type of game, including deer, rabbits, squirrels, pheasants, etc. 4) Another thing you should think about is that you can be held libel for any kind of damage caused by your use of an airsoft gun or a BB gun. For instance, if you shoot out someone else’ eye or put a hole through someone else’s mailbox, you become the responsible party. Therefore, airsoft guns and BB guns should be used with extreme caution and be used only on private property where there is minimal risk of doing any kind of physical harm to another person or doing some kind of unwanted property damage. 5) In the event of playing paintball, participants should wear all …the appropriate protective gear, including helmets, goggles, shin guards, etc. My [advice] is to have lots of fun with your airsoft gun, but handle it the same way as you would any other kind of firearm, shoot it only in designated paintball courses or ranges which are specifically designed for using these kinds of weapons, and transport it the same way you would any other firearm. ”[4]
Some kinds of air guns have actually been used to kill people. Consider this statement from the New York Times: “In 2010, a 5-year-old girl died after she was accidentally shot with an air rifle by a 10-year-old relative in the South Texas town of Freer.”[5]
Are Airsoft Guns Legal?
At the level of Federal law, Airsoft guns are generally legal. They may not be purchased by anyone younger than 18 years of age, but they may be fired (responsibly, on private property) by minors, provided that the minors have the permission of their parents or guardians. There is some question as to whether or not Airsoft guns must have orange tips. Some “replica” guns are required to have them, but other forms of “BB guns” are not so required. The fact is, however, that most Airsoft guns are manufactured with orange tips.
At the level of state law, again, Airsoft guns are generally legal. Some state statutes enact various restrictions. For instance, some states prohibit Airsoft guns from being carried onto schoolyards or other “educational properties.” For an introduction, see my “Guide to U.S. Airsoft Laws.” [work in progress – check back!]
Things really get tricky at the level of municipal laws or ordinances. Interested parties themselves really need to investigate local laws in your borough, city, town, township, etc. Check with your aldermen, city or county councilpersons, clerks, police officers, sheriffs, and so on.
Also, be forewarned that some home-owners associations or subdivisions may further curtail Airsoft usage. You should further consult your community’s bylaws or indentures.
Can A Person Be Charged With a Crime for Carrying an Airsoft Gun?
It depends! In part, it depends on the criminal charge. One possibility would be that having an Airsoft gun might be constitute the charge known as illegal gun “possession.” Since an Airsoft gun is not (per se) a firearm, seemingly, possession of one would not constitute criminal “firearm possession” in many jurisdictions.
On the other hand, if an Airsoft gun were displayed as if it were real (for instance, in the commission of another crime or in a threatening act), then things would be relevantly different. If an Airsoft gun were brandished during a robbery (or attempted robbery), for example, one blogger opines: “at the charging stage, evidence that an air gun was used is probably sufficient to provide probable cause to charge armed robbery, unless the available evidence conclusively shows that the air gun in question was benign enough to fall below the dangerousness threshold. But the state may not be able to sustain a conviction without evidence of the weapon’s destructive capabilities, particularly if it is – or is described as – an airsoft or a BB gun rather than a pellet gun.”[6]
Be Safe! Airsoft Guns Can Look Like Real Guns
America’s “newspaper of record,” the New York Times, carried a heartbreaking story in the opening days of 1987. According to the article: “Just after midnight over the school holidays last month, three San Francisco police officers responded to a silent alarm indicating that someone had entered a local high school. A few minutes later a 15-year-old high school student lay dying in a darkened hallway, shot by one of the officers, who had seen the youth pointing a gun at him. What the teen-ager was armed with turned out to be a pellet gun that was also a highly realistic reproduction of a .357 Magnum Colt Python pistol. …”.[7]
The same article went on to say: “In New York City, about a dozen such look-alike guns have been recovered annually since 1984 in incidents involving assaults on police officers alone…”.[8]
More recently, in 2012, the New York Times reported: “In recent years, dozens of police officers in Texas, California, Maryland, Florida and elsewhere have shot children and adults armed with what they believed were handguns but that were determined later to be BB guns or other types of air pistols. In addition, the gun replicas have killed or injured thousands of children around the country in cases in which the victims were accidentally shot by relatives or friends. …In 2007, 2008 and 2009, a total of 124 people, including 23 children and teenagers aged 18 and younger, were killed in Texas from accidents involving BB guns, pellet guns and other types of firearms that do not use gunpowder, according to data supplied by the Texas Department of State Health Services. Those figures do not include deaths stemming from police confrontations with people armed with air pistols. No agency tracks the frequency of those shootings.”[9]
The case of a thirteen-year-old Ohio resident Tyre King made national and international news in 2016. “Tyre was killed by a Columbus police officer who was responding to a report of armed robbery. Police said King used a BB gun that resembled a genuine firearm to rob a Columbus resident of $10. …[A]n officer fired ‘multiple’ times after Tyre reached for a BB gun in his waistband. He was pronounced dead at a hospital soon after.”[10]
“Fake guns don’t kill people. But that doesn’t matter much to police officers when someone points a very real-looking imitation weapon at them. Even the most experienced officers have trouble distinguishing a facsimile firearm from the real deal. Matters only get worse when an officer has just a fraction of a second to react, a suspect is moving or visibility is poor—or all of the above. Such circumstances can lead to tragedy…
“Since the late 1980s it’s been a federal offense ‘for any person to manufacture, enter into commerce, ship, transport or receive any toy, look-alike, or imitation firearm unless such firearm contains, or has affixed to it, a marking approved by the Secretary of Commerce.’ An orange safety tip at the end of the barrel of some guns was adopted to help officers recognize a fake, but it can be removed or tampered with fairly easily.
“Since 2011, officers have shot and killed at least six people brandishing real-looking fake guns. Research by The Associated Press found that, over the last two decades, at least 25 deaths nationwide involved look-alike guns mistaken by police for actual firearms. The recent shooting deaths have led a growing number of state legislatures to consider their own regulation of fake guns.”[11]
For more information about the laws in your state, see my:
“Guide to U.S. Airsoft Laws” [work in progress – stay tuned!]
Notes:
[1] Douglas Harper, ed., “Firearm,” Online Etymology Dictionary, <https://www.etymonline.com/word/firearm>.
[2] Jeff Welty, “Air Guns,” North Carolina Criminal Law [blog], Nov. 9, 2011, <https://nccriminallaw.sog.unc.edu/air-guns/>.
[3] So says Giffords.org, the watchdog website founded by U.S. Representative Gabrielle “Gabby” Giffords (D, Arizona), who was shot by a disgruntled constituent in 2011. “Because non-powder guns expel projectiles (usually made of metal or hard plastic) through the force of air pressure, CO2 pressure, or spring action, they are different from firearms, which use gunpowder to generate energy to launch a projectile.” (SOURCE)
[4] Steve Erdman, State Senator, Nebraska.
[5] Manny Fernandez, “Texas Death Offers Grim Reminder That Gun Replicas Can Fool Police,” New York Times, Jan. 8, 2012, <http://www.nytimes.com/2012/01/09/us/teenagers-death-a-reminder-of-gun-replicas-dangers.html>.
[6] Jeff Welty, “Air Guns,” North Carolina Criminal Law [blog], Nov. 9, 2011, <https://nccriminallaw.sog.unc.edu/air-guns/>.
[7] Katherine Bishop, “Toy Guns: A Real and Growing Problem for Police,” New York Times, Jan. 25, 1987, <https://www.nytimes.com/1987/01/25/us/toy-guns-a-real-and-growing-problem-for-police.html>.
[8] Ibid.
[9] Fernandez, loc. cit.
[10] “‘Our Kids Can’t Play With Toy Guns’: Tyre King Police Shooting a Painful Reminder,” Guardian (U.K.), Sept. 20, 2016, <https://www.theguardian.com/us-news/2016/sep/20/tyre-king-columbus-ohio-police-shooting>.
[11] Kevin Frazzini, “Fracas Over Fakes,” State Legislatures, Dec. 2016, p. 8, <http://www.ncsl.org/Portals/1/Documents/magazine/articles/2016/SL_1216-Trends.pdf>.