Gun law in the United States
In the United States, access to guns is controlled by law under a number of federal statutes. These laws regulate the manufacture, trade, possession, transfer, record keeping, transport, and destruction of firearms, ammunition, and firearms accessories. They are enforced by state agencies and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
In addition to federal gun laws, all state governments and some local governments have their own laws that regulate firearms.
Major federal gun lawsEdit
- National Firearms Act ("NFA") (1934): Taxes the manufacture and transfer of, and mandates the registration of Title II weapons such as machine guns, short-barreled rifles and shotguns, heavy weapons, explosive ordnance, suppressors, and disguised or improvised firearms.
- Federal Firearms Act of 1938 ("FFA"): Requires that gun manufacturers, importers, and persons in the business of selling firearms have a Federal Firearms License (FFL). Prohibits the transfer of firearms to certain classes of persons, such as convicted felons.
- Omnibus Crime Control and Safe Streets Act of 1968 (1968): Prohibited interstate trade in handguns, increased the minimum age to 21 for buying handguns.
- Gun Control Act of 1968 ("GCA"): Focuses primarily on regulating interstate commerce in firearms by generally prohibiting interstate firearms transfers except among licensed manufacturers, dealers and importers.
- Firearm Owners Protection Act ("FOPA") (1986): Revised and partially repealed the Gun Control Act of 1968. Prohibited the sale to civilians of automatic firearms manufactured after the date of the law's passage. Required ATF approval of transfers of automatic firearms.
- Undetectable Firearms Act (1988): Effectively criminalizes, with a few exceptions, the manufacture, importation, sale, shipment, delivery, possession, transfer, or receipt of firearms with less than 3.7 oz of metal content.
- Gun-Free School Zones Act (1990): Prohibits unauthorized individuals from knowingly possessing a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.
- Brady Handgun Violence Prevention Act (1993): Requires background checks on most firearm purchasers, depending on seller and venue.
- Federal Assault Weapons Ban (1994–2004): Banned semiautomatics that looked like assault weapons and large capacity ammunition feeding devices. The law expired in 2004.
- Law Enforcement Officers Safety Act (2004): Granted law enforcement officers and former law enforcement officers the right to carry a concealed firearm in any jurisdiction in the United States, regardless of state or local laws, with certain exceptions.
- Protection of Lawful Commerce in Arms Act (2005): Prevents firearms manufacturers and licensed dealers from being held liable for negligence when crimes have been committed with their products.
Overview of current regulationsEdit
Fugitives, those convicted of a felony with a sentence exceeding 1 year, past or present, and those who were involuntarily admitted to a mental facility are prohibited from purchasing a firearm; unless rights restored. Forty-four states have a provision in their state constitutions similar to the Second Amendment to the United States Constitution, which protects the right to keep and bear arms. The exceptions are California, Iowa, Maryland, Minnesota, New Jersey, and New York. In New York, however, the statutory civil rights laws contain a provision virtually identical to the Second Amendment. Additionally, the U.S. Supreme Court held in McDonald v. Chicago that the protections of the Second Amendment to keep and bear arms for self-defense in one's home apply against state governments and their political subdivisions.
Important events regarding gun legislation occurred in the following years.
In 1791, the United States Bill of Rights were ratified which included the Second Amendment to the United States Constitution which stated that "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
In 1934, with the abundance of gang related crime, such as the Saint Valentine's Day Massacre, the National Firearms Act ("NFA") was signed into law under President Franklin D. Roosevelt's Administration. The NFA is considered to be the first legislation to enforce gun control in the United States, imposing a $200 tax, equivalent to nearly $4,000 in 2019, on the manufacture and transfer of Title II weapons. It also mandated the registration of machine guns, short-barreled rifles and shotguns, heavy weapons, explosive ordnance, suppressors, and disguised or improvised firearms.
In 1939, through the court case United States v. Miller, the Supreme Court of the United States ruled that Congress could regulate interstate selling sawed-off shotguns through the National Firearms Act of 1934, deeming that such a weapon has no reasonable relationship with the efficiency of a well regulated militia.
In 1968, following the spree of political assassinations including: the assassination of John F. Kennedy, the assassination of Robert F. Kennedy, and the assassination of Martin Luther King Jr, President Lyndon B. Johnson, pushed congress for the Gun Control Act of 1968 ("GCA"). It repealed and replaced the FFA, regulated “destructive devices” (such as bombs, mines, grenades, and other explosives), expanded the definition of machine gun, required the serialization of manufactured or imported guns, banned importing military style weapons, and imposed a 21 age minimum on the purchasing of handguns from FFLs. The GCA also prohibited selling of firearms to felons and the mentally ill.
In 1986, contrary to prior gun legislation, the Firearm Owners Protection Act ("FOPA") (1986), passed under the Ronald Reagan administration, enacted protections for gun owners. It prohibited a national registry of dealer records, limited ATF inspections to conduct annual inspections (unless multiple infractions have been observed), allowed licensed dealers to sell firearms at "gun shows" in their state, and loosened regulations on the sale and transfer of ammunition. However the FOPA also prohibited civilian ownership or transfer of machine guns made after May 19, 1986, and redefined "silencer" to include silencer parts.
In 1993, the Brady Handgun Violence Prevention Act, named after a White House press secretary who was disabled during the attempted assassination of Ronald Reagan, was signed into law under the presidency of Bill Clinton. This act required that background checks must be conducted on gun purchases and established a criminal background check system maintained by the FBI.
In 1994, the Violent Crime Control and Law Enforcement Act was signed into law under the presidency of Bill Clinton, which included the Federal Assault Weapons Ban, effectively banned the manufacturing, selling, and possession of specific military-style assault weapons such as AR-15 style rifles and banned high-capacity ammunition magazines that held over 10 rounds. Banned arms that were previously legally possessed were grandfathered. The ban expired in September 2004.
In 2003, the Tiahrt Amendment proposed by Kansas Representative, Todd Tiahrt, limited the ATF to only release information from its firearms trace database to only law enforcement agencies or a prosecutors in connection with a criminal investigation.
In 2005, The Protection of Lawful Commerce in Arms Act was signed into law under the presidency of George W. Bush. This act protected gun manufacturers from being named in federal or state civil suits by those who were victims of crimes involving guns made by that company.
In 2008, the Supreme Court ruled in the case District of Columbia v. Heller that the Second Amendment is an "individual right to possess a firearm unconnected with service in a militia" and struck down Washington D.C.'s handgun ban. But the Supreme Court also stated "that the right to bear arms is not unlimited and that guns and gun ownership would continue to be regulated."
In 2016, the Supreme Court ruled in the case Caetano v. Massachusetts that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding".
The right to keep and bear arms in the United States is protected by the Second Amendment to the U.S. Constitution. While there have been contentious debates on the nature of this right, there was a lack of clear federal court rulings defining the right until the two U.S. Supreme Court cases of District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).
An individual right to own a gun for personal use was affirmed in the landmark District of Columbia v. Heller decision in 2008, which overturned a handgun ban in the federal District of Columbia. In the Heller decision, the court's majority opinion said that the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home."
However, in delivering the majority opinion, Supreme Court Justice Antonin Scalia wrote on the Second Amendment not being an unlimited right:
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
The four dissenting justices argued that the majority had broken prior precedent on the Second Amendment, and took the position that the amendment refers to an individual right, but in the context of militia service.
In the McDonald v. City of Chicago decision in 2010, the Supreme Court ruled that, because of the incorporation of the Bill of Rights, the guarantee of an individual right to bear arms applies to state and local gun control laws and not just federal laws.
The Supreme Court has not ruled on whether the Second Amendment protects the right to carry guns in public for self-defense. Federal appeals courts have issued conflicting rulings on this point. For example, the United States Court of Appeals for the Seventh Circuit ruled in 2012 that it does, saying, "The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside." However, the Tenth Circuit Court ruled in 2013 that it does not, saying, "In light of our nation's extensive practice of restricting citizen's freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment's protections." More recently, the Ninth Circuit Court ruled in its 2016 decision Peruta v. San Diego County that the Second Amendment does not guarantee the right of gun owners to carry concealed firearms in public.
- Citizens of the United States
- Nationals but not citizens of the United States
- Lawful permanent residents of the United States (commonly known as "green card" holders)
- Aliens who have been lawfully admitted to the United States under a non-immigrant VISA if that alien falls under one of the following exceptions:
- admitted into the United States for lawful hunting or sporting purposes
- possesses a lawful hunting license or permit issued by any US state
- an official representative of a foreign government who is accredited to the United States Government or the Government's mission to an international organization having its headquarters in the United States or is en route to or from another country to which that alien is accredited
- an official of a foreign government or a distinguished foreign visitor who has been so designated by the Department of State
- a foreign law enforcement officer of a friendly foreign government entering the United States on official law enforcement business
- has received a waiver from the United States Attorney General as long as the waiver petition shows this would be in the interests of justice and would not jeopardize the public safety under 18 U.S. Code § 922(y)(3)(c)
- non-resident of any US state unless the receipt of firearms are for lawful sporting purposes
Each state has its own laws regarding who is allowed to own or possess firearms, and there are various state and federal permitting and background check requirements. Controversy continues over which classes of people, such as convicted felons, people with severe or violent mental illness, and people on the federal no-fly list, should be excluded. Laws in these areas vary considerably, and enforcement is in flux.
Gun Control Act (codified at 18 U.S.C. § 922(g),(n),(d)) makes it unlawful for certain categories of people to ship, transport, receive, or possess firearms or ammunition, to include any person:
- convicted in any court of a "crime punishable by imprisonment for a term exceeding one year";
- who is a fugitive from justice;
- any person under indictment for a "crime punishable by imprisonment for a term exceeding one year"
- who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act, codified at 21 U.S.C. § 802);
- who has been adjudicated as a mental defective or has been committed to any mental institution;
- who is an undocumented immigrant;
- who has been discharged from the Armed Forces under dishonorable conditions;
- who has renounced his or her United States nationality/citizenship;
- who is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner; or
- who has been convicted of a misdemeanor crime of domestic violence
The above categories are addressed on the ATF Firearms Transaction Record 4473 background check form. According to the US Sentencing Commission, approximately 5,000 to 6,000 people a year are convicted of receiving or possessing a firearm against one of the prohibitions above. In 2017, over 25.2 million actual background checks were performed in total.
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- Scalia, Antonin (June 26, 2008). "District of Columbia et al. v. Heller, Certiorari to the United States Court of Appeals for the District of Columbia Circuit, No. 07–290. Argued March 18, 2008" (PDF): 2. Retrieved February 25, 2013. Cite journal requires
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- Linda Greenhouse (2008-06-27). "Justices Rule for Individual Gun Rights". The New York Times. Retrieved 2008-06-27.
- See "District of Columbia v. Heller: The Individual Right to Bear Arms" (PDF) (comment), Harvard Law Review, Vol. 122, pp. 141–142 (2008): "Justice Stevens filed a dissenting opinion, agreeing with the majority that the Second Amendment confers an individual right, but disagreeing as to the scope of that right. ... Justices Souter, Ginsburg, and Breyer joined Justice Stevens's opinion."
- Bhagwat, A. (2010). The Myth of Rights: The Purposes and Limits of Constitutional Rights. New York: Oxford University Press. pp. 16–17. ISBN 9780195377781.
Justice Stevens begins his opinion by conceding Justice Scalia's point that the Second Amendment right is an 'individual' one, in the sense that '[s]urely it protects a right that can be enforced by individuals.' He concludes, however, that all of the historical context, and all of the evidence surrounding the drafting of the Second Amendment, supports the view that the Second Amendment protects only a right to keep and bear arms in the context of militia service.
- Bennett, R.; Solum, L. (2011). Constitutional originalism : A Debate. Ithaca, NY: Cornell University Press. p. 29. ISBN 9780801447938.
In both dissents, the clear implication is that if the purpose of the Second Amendment is militia—related, it follows that the amendment does not create a legal rule that protects an individual right to possess and carry fire arms outside the context of service in a state militia.
- Schultz, D.A. (2009). Encyclopedia of the United States Constitution. New York: Infobase Publishing. p. 201. ISBN 9781438126777.
Justice John Paul Stevens argued that the debate over the Second Amendment was not whether it protected an individual or collective right but, instead, over the scope of the right to bear arms.
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- Liptak, Adam (April 15, 2013). "Justices Refuse Case on Gun Law in New York", The New York Times. Retrieved February 15, 2015.
- Long, Ray; Sweeney, Annie; Garcia, Monique (December 11, 2012). "Concealed Carry: Court Strikes Down Illinois' Ban", Chicago Tribune. Retrieved February 15, 2015.
- Associated Press (February 23, 2013). "Court Finds No Right to Conceal a Firearm", The New York Times. Retrieved February 15, 2015.
- Nagourney, Adam; Eckholm, Erik (June 9, 2016). "2nd Amendment Does Not Guarantee Right to Carry Concealed Guns, Court Rules", The New York Times. Retrieved June 9, 2016.
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- alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.") (emphasis added); Matter of D-K-, This article incorporates text from this source, which is in the public domain. 25 I&N Dec. 761, 765-66 (BIA 2012); see also Matter of Campos-Torres, This article incorporates text from this source, which is in the public domain. 22 I&N Dec. 1289 (BIA 2000) (en banc) (regarding a firearm violation); Matter of Serna, This article incorporates text from this source, which is in the public domain.20 I&N Dec. 579, 584 (BIA 1992) (same); Matter of Granados, This article incorporates text from this source, which is in the public domain. 16 I&N Dec. 726 (BIA 1979) (same). ("The terms 'admission' and 'admitted' mean, with respect to an
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BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court.See also 8 C.F.R. 1003.1(g) ("Decisions as precedents.") (eff. 2018) This article incorporates text from this source, which is in the public domain.
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- "18 U.S. Code § 922 – Unlawful acts". LII / Legal Information Institute. Retrieved 2 November 2017.
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- misdemeanor and punishable by a term of imprisonment of two years or less...."); see also 18 U.S.C. § 927 ("Effect on State law"). does not include—(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or (B) any State offense classified by the laws of the State as a
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- See generally United States v. Torres, ___ F.3d ___, No. 15-10492 (9th Cir. Jan. 8, 2019); see also ("An illegal alien ... is any alien ... who is in the United States unlawfully....").
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