As part of a project that I’m working on, I’ve been putting together a relatively brief summary of major federal legislation that controls firearms in the United States. So I have to admit that as a result, I have learned a lot. I present this summary for your reading pleasure. First of all, it may be enlightening to some and certainly may help explain why certain things are the way that they are. My ulterior motive is also to have this explanation vetted by folks who probably know more about this than I do. Did I get the details right? Anything I missed? Need to change? As always, your comments are appreciated . . .
The legal aspects of firearms can be very confusing for many people. In both cyberspace and meatspace (the real world) you will find many Second Amendment purists who take the position that the Second Amendment guarantees the right to own, carry and use just about any weapon you please, any place you please. Sadly, this is not the case. As with just about everything else in our lives, firearms are heavily regulated at the federal, state, and sometimes local levels. I begin with the very first firearm law enacted here in the United States – the Second Amendment to the U.S. Constitution.
The Second Amendment
The Second Amendment is part of the Bill of Rights which encompasses the first ten amendments to the Constitution. The 2A is deceptively simple; “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.” According to Wikipedia,
the right to bear arms predates the Bill of Rights; the Second Amendment was based partially on the right to bear arms in English common-law, and was influenced by the English Bill of Rights of 1689. This right was described by Sir William Blackstone as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.
The issue of interpretation revolves around the prefatory clause, “A well-regulated militia being necessary to the security of a free state….” Gun control advocates argue that the right only applies to members of an organized militia while gun rights advocates argue that the militia references all able bodied citizens which at the time of the Constitution were what made up the various state militias.
Both of these groups’ interpretations really are irrelevant because the Constitution is also clear on who gets to interpret its meaning; that responsibility rests with the courts and, most importantly, with the Supreme Court of the United States (SCOTUS). Over the past 200-odd years, there have been four major Supreme Court rulings on the meaning of the Second Amendment.
United States v. Cruikshank, 92 U.S. 542 (1876) – Technically, this case wasn’t about the Second Amendment per se. Rather it dealt with the conviction of white supremacists for killing black freedmen. In its decision, the Supreme Court refused to apply the Bill of Rights to the actions of state governments and specifically said that the First Amendment right to assembly was not intended to limit the powers of state governments to regulate their own citizens. Furthermore, the Second Amendment was binding only upon the Federal government. This decision formed the legal basis of arguments for state laws restricting firearms ownership for decades to come.
United States v. Miller, 307 U.S. 174 (1939) – This is quite possibly the most destructive Supreme Court case to the cause of gun rights in the United States. Miller was convicted of violating the 1934 National Firearms Act by transporting an unregistered short barrel shotgun across state lines. Miller challenged the law as being contradictory to the guarantees of the Second Amendment and won his case at the District Court level. The court found that the registration requirement of the NFA was indeed in violation of the Second Amendment guarantees.
The federal government appealed the case to the Supreme Court which is where the irregularities occurred. Neither the defendant nor his legal counsel ever appeared before the Supremes to argue the case due to financial difficulties and procedural irregularities. You can read the full details in Wikipedia, but suffice to say that when it was over, the Court reversed the District Court’s decision and upheld the legality of the National Firearms Act.
District of Columbia v. Heller, 554 U.S. 570 (2008) – This was a landmark case and the first time that the Supreme Court addressed the Second Amendment since Miller. At the time, the District of Columbia, through the Firearms Control Act of 1975, effectively prohibited private ownership of most firearms within its borders. The plaintiffs challenged the legality of the law and the Supreme Court was only too happy to take a broad look at the Second Amendment. Its decision produced good news for both sides of the debate.
It found that the Second Amendment merely codified a pre-existing right and that the right to keep and bear arms is not tied to service in an organized militia. Furthermore the ownership of guns considered usual and customary is protected under the Second Amendment. On the other hand, it stated that this right is not unlimited. It’s not a right to keep and carry any weapon in any fashion for any purpose. The court stated that reasonable legal restrictions can be imposed, which effectively headed off any attack on the National Firearms Act. Finally, as the District of Columbia is a federal enclave rather than a state, the decision didn’t apply to state governments.
McDonald v. Chicago, 561 U.S. 3025 (2010) – This case was filed against the City of Chicago for its laws effectively prohibiting possession of handguns and heavily restricting the ownership of other firearms. In its decision, the Supreme Court stated that the Second Amendment protections are, in fact, fully applicable to state and local governments and thus completed what the Heller case had started.
Unfortunately, despite these decisions, ambiguity still remains and both gun control and gun rights proponents continue to argue the interpretations of these cases. It’s highly likely that in the next few years, one or more Second Amendment cases will make it before the Supreme Court and further clarity may be provided. It’s important to note however that both the Heller and the McDonald cases were decided by thin 5-4 majorities, meaning that a single change in the makeup of the Court could impact how future cases are decided.
National Firearms Act of 1934
The National Firearms Act (NFA) was passed in reaction to the St. Valentine’s Day Massacre of 1929 in which seven mobsters were gunned down in a Prohibition-era gang fight. The killers used Thomson Machine Guns on full auto as was fairly common during the era. The NFA was intended to strictly regulate the ownership and transfer of certain types of weapons. Under the act, all weapons and other that met the definitions of NFA items had to be registered with the NFA Registry. Over time the specific list of things regulated by the NFA evolved and today regulated items include:
- Machine Guns
- Short Barreled Rifles (Barrel less than 16” or overall length less than 26”)
- Short Barreled Shotguns (Barrel less than 18” or overall length less than 26”)
- Silencers (Suppressors)
- Destructive Devices (generally things that go boom plus some large caliber guns)
- Any Other Weapon (catch-all for things that don’t fit other categories)
Any time a new NFA device was manufactured, it had to be recorded in the NFA registry and its ownership tracked. The record identifying the NFA item was updated whenever that NFA item changed hands. Most transfers are subject to a fee of $5 for an Any Other Weapon transfer or $200 for the other categories. Ironically, legislators in 1934 thought that the $200 transfer tax would be enough to effectively shut down the transfer of NFA items because a $200 transfer fee in 1934 would be approximately $3,500 in today’s dollars. This would certainly put a crimp on transfers. However, it’s good to know that Congress wasn’t much more effective at their jobs back in 1934 than they are today and the NFA never included a clause to index the transfer tax to inflation. While $200 isn’t exactly a drop in the bucket, today it’s nowhere near the obstacle to transfers that it was in 1934.
The NFA is often referred to as Title II, and NFA items are referred to as Title II Weapons (and sometimes Class III weapons). The term Title II refers to the placement of NFA Provisions within the United States Code. Although it came much later, the Gun Control Act (GCA) of 1968 (which created the federal Firearms Licensing program and codified a number of gun laws) is Title I of the U.S. Firearms Laws. The GCA incorporated and re-defined portions of the NFA which in turn became Title II of the Firearms Laws. The Class refers to the type of Special Occupancy Tax (SOT) license that a dealer holds. A Class I is an importer, Class II, a manufacturer, and Class III, a dealer in NFA restricted devices.
Gun Control Act of 1968
Like the NFA, The Gun Control Act (GCA) was passed in reaction to acts of violence. In this case is was the murders of the Kennedy brothers (John and Robert) as well as Malcom X and Martin Luther King Jr. The GCA is what first defined the classes of people to whom it is illegal to transfer firearms; felons, drug users, people who have been adjudicated mentally defective, illegal aliens, etc. For a complete list, see a form 4473.
The GCA created the federal Firearms Licensing system and mandated that sales of firearms across state lines had to pass through at least one FFL. Up until this point, anyone could order a firearm from a catalog and have it shipped directly to their door. It further defined the minimum age to purchase a gun as 18 years for rifles and shotguns and 21 years for handguns. The FFL system mandated that any person or company who was in the business of buying, selling, or making firearms (for resale) required a license.
The GCA limited the importation of military surplus rifles into the United States by applying a “sporting purposes” test. Rifles that did not meet the “sporting purposes” test criteria could not be imported without replacing a certain number of foreign parts with domestically manufactured ones (more on this in a bit). Only hunting and competitive target shooting were viewed as “sporting purposes” by the BATFE, thus foreign made fully automatic weapons such as the AK-47, or H&K MP5 were effectively barred from import as of 1968. Semi-automatic versions of these weapons were able to be imported until the Semi-Automatic Import Ban of 1989. The GCA mandated that all firearms manufactured or imported by FFL holders after October 22, 1968 had to bear a serial number. The one exception was for firearms manufactured by an individual who did not hold a manufacturing FFL. Firearms manufactured by such people did not need a serial number.
Firearms Owners Protection Act of 1986
The Firearms Owners Protection Act of 1986 (FOPA) was intended to do a lot of good things for gun owners. First of all, since the creation of the FFL system, the ATF had been accused of significant regulatory overreach in their efforts to “control” firearm transfers. FOPA set out to more narrowly define the framework within which the ATF had to operate. FOPA also removed the restriction on ammunition shipments through the U.S. Postal service, permitted long gun transfers across state lines, and enabled a gun owner who was traveling through multiple states to transport their firearms through states where they did not have a permit provided that they legally could possess the firearm at their points of origin and destination.
While FOPA certainly did a lot of good, a less favorable amendment was proposed by New Jersey Democrat (big surprise there) William J. Hughes. In 1968 the GCA had effectively eliminated the importation of foreign-made fully automatic weapons as none of them could pass the sporting purposes clause. Domestically produced full auto weapons could still be procured (subject to tax and registration under the NFA). The Hughes amendment sought to change all of that and prohibited the purchase of any domestic full auto weapons manufactured after May 19, 1986.
The main impact of the Hughes amendment has been the creation of a finite pool of machine guns that can be transferred to non-military or LEO personnel. Under the basic law of supply and demand, with the supply effectively capped, prices on legally transferred machines guns have dramatically risen to the point where supply and demand are in equilibrium. A fully automatic version of a semi-automatic gun such as an AR-15 doesn’t cost that much more to make. A newly manufactured fully automatic Colt AR-15 might cost a police department $1,500 – $2,000. A non-LEO/Military buyer however, must procure an AR-15 manufactured prior to 1986 and legally registered under the NFA. Since such guns are rather scarce, that twenty five year old Colt AR-15 commands prices in excess of $18,000.
Semi-Automatic Rifle Import Ban (18 USC 925(d)(3)) (1989)
This ban was imposed as a result of the 1989 murder of five children at the Cleveland Elementary School in Stockton, CA by a deranged drifter wielding an AK-47 pattern semi-automatic rifle. In March of 1989, the Bush Administration temporarily suspended the import of most foreign-made semi-automatic rifles. The ban was made permanent in July of 1989. The “sporting purposes” GCA exception remained, but the meaning of “sporting purpose” is somewhat nebulous. The guidance that we do have is a list of features, which if present on your foreign made rifle or shotgun could disqualify it from being considered sporting purpose weapons. Features include:
- Can accept a large capacity magazine
- Is equipped with a folding or telescoping stock
- Has a pistol grips (thumb hole stocks however are okay)
- Can mount a bayonet
- Either has a flash suppressors or flash hider or has the capacity to accept one, which means a threaded barrel is a problem
- Includes an integrated military-style bipod
- Come with a grenade launcher
- Is equipped with night sights
Unlike Assault Weapons Ban laws, the list above is not purely proscriptive. Simply having one or more of the features does not automatically disqualify the gun from being “sporting,” but obviously the more features on the list it has, the less likely the BATFE will consider qualifying for the sporting clause. It is also important to note that some types of weapons such as Saiga shotguns might be considered under the sporting exemption if they are imported in certain configurations that lack most of the features above. If however, you take your “sporting legal” Saiga and start adding some of the features above back into it, you might create an illegal weapon and run afoul of the BATFE.
18 USC 922(r)
The astute reader is no doubt aware that despite the semi-automatic import ban, AK-47 pattern rifles, AK-74s, and many other foreign-made rifles are still sold in the United States. You may have wondered how that is possible. Actually, it’s fairly easy. Title 18, Section 922r of the United States Code defines twenty specific parts that may be found on an imported long gun. U.S. importers must replace some of these parts with domestically manufactured equivalents so that in the end, no more than ten parts from the list below are of foreign manufacture. These parts are:
- Frames, receivers, receiver castings, forgings or stampings
- Barrel extensions
- Mounting blocks (trunions)
- Muzzle attachments
- Bolt carriers
- Operating rods
- Gas pistons
- Trigger housings
- Butt stocks
- Pistol grips
- Forearms, hand guards
- Magazine bodies
Not every gun has all of these components, and in fact the last three are related to magazines, not to the guns themselves. AK-47s for example have 16 of these parts, Saiga, FAL, and SKS firearms have 17. This means that at least 6 parts on the AK-47 and 7 on the others must be replaced with U.S. products. If you purchase a new AK-47, Saiga, SKS, or some another foreign long gun, the importer will have already made the replacements for you. If, however, you order a parts kit and plan to build a rifle yourself, then you need to make sure you know the origin of all of the parts in the kit and that your finished gun has no more than 10 foreign parts from the list above.
Brady Handgun Violence Prevention Act of 1993
The Brady Handgun Violence Prevention Act was also passed in response to firearm violence. In this case, it was the attempted assassination of President Ronald Reagan in 1981 which left his press secretary, James Brady, paralyzed for life. The Brady Bill as it was called formally created the system of background checks prior to the transfer of a weapon by and FFL.
Prior to the Brady Bill, FFL holders were required to inquire as to a prospective gun purchaser’s background, but there was no way to verify that the prospective purchaser was telling the truth. The Brady Bill changed that by requiring a prospective purchaser to submit to a criminal background check. Initially the bill mandated a multi-day waiting period during which the FFL would communicate with local law enforcement to vet the buyer, but in 1998, the National Instant Criminal Background Check System (NICS) came online and permitted near instant background checks. In addition to mandating background checks, The Brady Bill also codified the list of individuals restricted from firearm ownership into what we have today on the Form 4473.