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Carriage of Firearms by the Marshal, Deputy 

Marshals, and Judges of the Customs Court

The Marshal and Deputy Marshals of the Customs Court are not authorized by 18 U.S.C. § 3053 to 

carry firearms.

Neither the official duties of the Marshal, as described by 28 U.S.C. § 872 and Rule 19 of the Rules of 

the Customs Court, nor the official duties of the Judges of the Customs Court would appear to 

necessitate the carriage of firearms.

If the Customs Court finds it necessary to rely solely on its Marshal to police its quarters, it would 

probably have inherent authority to authorize the Marshal and Deputies to carry arms; however,

there would be no basis for assuming inherent authority in the Court to authorize possession of arms 

by its Judges.

A state could not constitutionally require a federal official whose duties necessitate carrying firearms to 

obtain a firearms license.

October 3, 1967

MEMORANDUM OPINION FOR THE 

ACTING ASSISTANT ATTORNEY GENERAL

CIVIL DIVISION

This is in response to your request for an informal opinion concerning three 

questions on the carriage of firearms by Judges and Marshals of the Customs 

Court, forwarded to you by Mr. Vance, the chief of the Customs Section. The 

questions, which we understand were raised by the Customs Court itself, are as 

follows:

1. Are the Marshal and Deputy Marshals of the Customs Court within the authorization of 18 U.S.C. § 3053 to carry firearms?

2. Would possession of firearms by the Judges, Marshal, and Deputy

Marshals of the Customs Court be deemed to be in pursuit of their

official duties?

3. Does the Customs Court have power to issue orders authorizing

the possession of firearms by its Judges, Marshal, or Deputy Marshals?

In addition, a related question has been raised indirectly concerning the propriety of subjecting federal officials to state or local licensing requirements involving 

firearms.

In general, our responses to the three questions posed directly are:

1. Section 3053 does not apply to the Marshal and Deputy Marshals

of the Customs Court.
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2. The duties of the Marshal, as described by 28 U.S.C. § 872 and

Rule 19 of the Rules of the Customs Court, would not appear to necessitate carrying firearms as part of official duties. However, if responsibility for the physical protection of the Court is, in fact, part of 

their duties, the Marshal and Deputies might be considered inherently authorized to carry arms, despite the absence of express statutory 

authorization. On the other hand, we see no reasonable basis for concluding that carriage of firearms is necessary to carry out the official 

duties of Judges of the Customs Court.

3. If the Court finds it necessary to rely solely on its Marshal to 

police its quarters, it would probably have authority to authorize the 

Marshal and Deputies to carry arms. But, in our view, there would be 

no basis for assuming inherent authority in the Court to authorize 

possession of arms by its Judges.

The question of the applicability of state firearms licensing laws to federal 

officials involves both issues of constitutional law and policy considerations.

Where federal law expressly authorizes the carrying of arms or where carrying 

arms is essential to the performance of a federal function, any attempt to require 

officials to obtain state licenses would almost certainly be unconstitutional. On the 

other hand, the Administration has, for several years, proposed legislation to 

reinforce local firearms restrictions and encourage further limitations on traffic in

firearms. As a matter of policy, it would seem inappropriate to demand exemption 

from state firearms restrictions in any but the obviously necessary circumstances 

or to encourage noncompliance on the part of federal officials with such state 

laws.

A detailed discussion of these points follows.

I. Application of 18 U.S.C. § 3053

The language of 18 U.S.C. § 3053 expressly authorizes “United States marshals 

and their deputies” to carry firearms. It would appear that the quoted words refer 

to the United States Marshals appointed by the President with the advice and 

consent of the Senate pursuant to 28 U.S.C. § 561 and the Deputies appointed 

pursuant to 28 U.S.C. § 562. These are the officers ordinarily referred to as United 

States Marshals and Deputies. Other special marshals appointed by, and solely 

responsible to, the Judicial Branch are normally designated by the court which 

they serve, e.g., the Marshal of the Supreme Court, the Marshal of the United 

States Court of Appeals for the District of Columbia, the Marshal of the Customs 

Court. Indeed, Rule 19 of the Rules of the Customs Court refers to its Marshal and

United States Marshals in terms which reflect the distinction between them.
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The United States Marshals, while serving as officers of the courts to which 

they are assigned, are likewise law enforcement officers of the Executive Branch.

They are regularly responsible for delivering convicted persons to prison and have 

been called upon to protect individuals against armed attack. They are authorized 

to arrest persons violating the laws of the United States and it is in connection with 

this authorization that the permission to carry firearms is granted by 18 U.S.C. 

§ 3053. Accordingly, it would appear that 18 U.S.C. § 3053 is intended to apply 

only to the United States Marshals and Deputies who serve as law enforcement 

officers of the executive branch and would not cover the Marshal of the Customs

Court, who is solely an officer of that court.

II. Relationship of Firearms to the Official Duties of the 

Court and Its Marshal

As outlined in 28 U.S.C. § 872 and Rule 19 of the Customs Court, the duties of 

the Marshal are to attend the Court, serve and execute its process and orders, 

disburse funds, take charge of transportation requests, notify the appropriate 

United States Marshal of the time and place of sessions when the Court is on 

circuit, and perform such other duties as may be assigned by the Court. These 

would not appear to be law enforcement duties of the type which would necessarily require the carrying of firearms. It is true that process serving may, at times,

become hazardous. Yet federal law does not authorize the carrying of firearms by 

every person authorized to serve process under Rules 4 and 45 of the Federal 

Rules of Civil Procedure or to serve summons or subpoenas under Rules 4 and 17 

of the Federal Rules of Criminal Procedure. Carrying firearms would not appear to 

a necessary element of process serving or of any of the other specific duties of the

Marshal of the Customs Court.

On the other hand, if the Marshal and his Deputies are assigned official duties 

of a protective or law enforcement nature, carrying firearms could be a necessary 

element of those duties. For example, the special police assigned by the General 

Services Administration (“GSA”) to protect public buildings pursuant to 40 U.S.C. 

§ 318 carry firearms, and GSA is expressly authorized to furnish the arms and 

ammunition to them (40 U.S.C. § 490(a)(2)). The White House Police (3 U.S.C. 

§ 202), the Capitol Police (40 U.S.C. § 210), and the Smithsonian Guards (40 

U.S.C. § 193t) are authorized, either directly or indirectly, to carry arms. The 

Supreme Court Police, although not expressly authorized to carry arms by statue 

(see 40 U.S.C. §§ 13f, 13n), do in fact carry firearms while engaged in the duty of 

protecting the Court and court building. Policing duties of this type ordinarily 

involve carrying firearms and if the Marshal of the Customs Court is required to 

perform such functions, then, we believe carrying firearms might be said to be a

part of his official duties.

In general terms, the official duty of the Judges of the Customs Court is to hear 

and determine matters involving the customs laws. This is, of course, a judicial 
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293

function. It does not involve policing or law enforcement in the commonly 

understood meaning of those terms. In our view, there would be little, if any, basis 

for asserting that the carrying of firearms is a necessary or normal element in the

performance of the official duty of the Judges of the Customs Court. Federal laws 

do not specifically authorize the carrying of firearms by any federal judges and, in 

modern times at least, we know of no proposal that the carriage of arms be 

considered a normal element of federal judicial office.

Undoubtedly there may be instances in which a federal judge requires the 

protection of arms and these instances may be directly related to the performances 

of his official duties. However, it seems to us that the need for such protection, 

while perhaps incidental to the judicial office, is not a basic element of the office 

itself. Carrying a gun, even for self-protection, is not, it seems to us, part of the 

official duties of a federal judge. Accordingly, unless there are some special duties 

of the Customs Court necessitating firearms of which we are unaware, carrying a 

gun would not appear to involve the performance of an official duty on the part of 

a judge of that court.

III. Power of the Customs Court to Authorize Firearms

The statutes relating to the Customs Court authorize it to assign the powers and 

duties of its Marshal (28 U.S.C. § 872), and to exercise the same powers as a 

district court with respect to preserving order (28 U.S.C. § 1581). Taken together, 

these provisions might be used as a basis for authorizing the Marshal and his 

Deputies to carry firearms, if it could be established that carrying arms is reasonably related to the protection of the Court in the performance of its duties. Moreover, a good argument could be made to support the view that a court has inherent 

power to take any necessary and proper action to police and protect its quarters 

and need not have any statutory basis for taking such action.

It must be noted that the authority to carry arms has ordinarily been granted 

expressly by statute, even with respect to those whose need to carry guns seems 

obvious: e.g., FBI agents (18 U.S.C. § 3052), and prison employees (18 U.S.C. 

§ 3050). Where express statutory authority is lacking, however, regulations have 

authorized the carrying of firearms, see, e.g., 19 C.F.R. § 23.33(c) (1967), which 

authorizes customs officers to carry firearms and cites 19 U.S.C. § 1581, which 

imposes law enforcement duties on customs officers. The validity of such a

regulation does not appear to have been questioned.

It is our view that if the Marshal and Deputy Marshals of the Customs Court 

are assigned policing or law enforcement duties, the Court would probably have 

authority to authorize them to carry arms. As a practical matter, however, we see 

no need for policing duties to be imposed on the Marshal or his Deputies. In 

general, the obligation to provide guard service and armed protection for federal 

agencies, including courts, throughout the country is imposed on the General

Services Administration. 40 U.S.C. §§ 285, 318. Of course, where the federal 
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294

agency is quartered in a building under state, municipal or private ownership it is 

sometimes necessary to make other arrangements. But it seems to us that arrangements for policing the present or the future quarters of the Customs Court should 

be handled through GSA rather than by the Court itself.

Enforcement of the orders and contempt authority of the Court might, of 

course, require arms depending upon the circumstances. However we do not have 

sufficient facts to indicate whether this presents a real problem and necessitates an 

order or regulation authorizing the carriage of firearms by the Marshal and his 

Deputies.

With respect to the Judges of the Customs Court, we are not aware of any 

reasonable basis for the court to authorize by regulation the carrying of firearms.

As noted above, this does not appear to be related to the performance of the 

judicial office.

IV. Compliance with State Law

It may be stated as a general principle that a state may not impose restrictions 

on the federal government or its officers in connection with official government 

business. In Johnson v. Maryland, 254 U.S. 51 (1920), the Supreme Court held 

that the state could not impose license requirements on federal employees driving 

Post Office trucks. The Court concluded that the licensing requirement would be

an impermissible burden on the performance of a federal function. Id. at 57. 

Similarly, it has been held that an internal revenue officer on his way to make an 

arrest could not be convicted of speeding in violation of local laws when speed 

was necessary to the performance of his duty. City of Norfolk v. McFarland, 145 

F. Supp. 258 (E.D. Va. 1956).

On the other hand, the Court noted in Johnson that federal officers and employees are not immune from all state laws and that state law must be complied with 

unless there is a superseding federal law or the state law interferes with the 

performance of a federal function. 254 U.S. at 56–57.

With respect to the carriage of firearms, it seems clear, although there appear to 

be no federal court decisions directly in point, that a state could not constitutionally require a license of a person authorized by federal law to carry a firearm. Nor, 

in our opinion, could a license be required of a federal official whose duties

necessitate carrying arms, even if there is no express federal statute authorizing 

arms. It seems equally clear, however, that employment by the federal government, in and of itself, does not automatically exempt a federal officer or employee 

from state licensing requirements respecting firearms.

As a matter of policy, it is our view that the federal government should not 

insist upon or request exemption from state firearms laws except in those instances 

where it is obviously necessary. The Administration, and particularly the Departments of Treasury and Justice, have urged stricter controls on interstate traffic in

firearms, federal support and assistance in the enforcement of state laws on 
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295

firearms, and stronger state laws on the subject. It would be inconsistent with the 

publicly announced policy on gun controls to urge any broader exemption from 

state law with respect to federal officers and employees than is necessary to carry 

out the functions of the federal government.

FRANK M. WOZENCRAFT

Assistant Attorney General

Office of Legal Counsel