Firearm Owners Protection Act

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The Firearm Owners' Protection Act (FOPA), Pub.L. 99–308, 100 Stat. 449, enacted May 19, 1986, codified at 18 U.S.C. § 921 et seq., is a United States federal law that revised many provisions of the Gun Control Act of 1968.

Federal Firearms License regulatory reform[edit]

Under the Gun Control Act of 1968, the Bureau of Alcohol, Tobacco and Firearms, now the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) was given wide latitude on the enforcement of regulations pertaining to Federal Firearms License (FFL) holders. Allegations of abuse by ATF inspectors soon arose from the National Rifle Association (NRA) and certain targeted Federal firearms licensees.

In the Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, Second Session (February 1982), a bipartisan subcommittee (consisting of 3 Republicans and 2 Democrats) of the United States Senate investigated the Second Amendment and reported its findings. The report stated:

The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.[1]

It concluded that seventy-five percent of ATF prosecutions were "constitutionally improper", especially on Second Amendment issues.[2]

The Firearm Owners Protection Act of 1986 addressed the abuses noted in the 1982 Senate Judiciary Subcommittee report. Among the reforms intended to loosen restrictions on gun ownership were the reopening of interstate sales of long guns on a limited basis, legalization of ammunition shipments through the U.S. Postal Service (a partial repeal of the Gun Control Act), removal of the requirement for record keeping on sales of non-armor-piercing ammunition, and federal protection of transportation of firearms through states where possession of those firearms would otherwise be illegal (See: 18 USC § 926A http://www.law.cornell.edu/uscode/text/18/926A ). However, the Act also contained a provision that banned the sale of machine guns manufactured after the date of enactment to civilians, restricting sales of these weapons to the military and law enforcement. Thus, in the ensuing years, the limited supply of these arms available to civilians has caused an enormous increase in their price, with most costing in excess of $10,000. Regarding these fully automatic firearms owned by private citizens in the United States, political scientist Earl Kruschke said "approximately 175,000 automatic firearms have been licensed by the Bureau of Alcohol, Tobacco, and Firearms (the federal agency responsible for administration of the law) and evidence suggests that none of these weapons has ever been used to commit a violent crime."[3]

The gun rights movement lobbied Congress to pass the FOPA to prevent the abuse of regulatory power — in particular, to address claims that the ATF was repeatedly inspecting FFL holders for the apparent purpose of harassment intended to drive the FFL holders out of business (as the FFL holders would constantly be having to tend to ATF inspections instead of to customers).

The Act mandated that ATF compliance inspections can be done only once per year. An exception to the "once per year" rule exists if multiple record-keeping violations are recorded in an inspection, in which case the ATF may do a follow-up inspection. The main reason for a follow-up inspection would be if guns could not be accounted for.

Ban on the manufacture of new machine guns[edit]

As debate for FOPA was in its final stages in the House before moving on to the Senate, Rep. William J. Hughes (D-N.J.) proposed several amendments including House Amendment 777 to H.R. 4332 [4] that would ban a civilian from ownership or transfer rights of any assault rifle, defined as a firearm with selective fire capabilities which was not registered as of May 19, 1986. The amendment also held that any such weapon manufactured and registered before the May 19 cutoff date could still be legally owned and transferred by civilians. Specifically, FOPA restricts the transfer and possession of machine guns except for “transfers to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof." The ATF, as a representative of the United States and with authority from the National Firearms Act, can authorize the transfer of a machine gun to an unlicensed civilian. An unlicensed individual may acquire machine guns, with ATF approval, from its lawful owner residing in the same state as the individual. The transferor must file an ATF application, which must be completed by both parties to the transfer and executed under penalties of perjury, and pay a $200 transfer tax to ATF. The application must include detailed information on the firearm and the parties to the transfer. The transferee must certify on the application that he or she is not disqualified from possessing firearms on grounds specified in law. He or she must submit with the application (1) two photographs taken within the past year; (2) fingerprints; and (3) a copy of any state or local permit or license required to buy, possess, or acquire machine guns. An appropriate (local) law enforcement official must also certify whether he or she has any information indicating that the firearm will be used for other than lawful purposes or that possession would violate state or federal law. Anyone acquiring a machine gun must, as part of the registration process, pass an extensive Federal Bureau of Investigation criminal background investigation. If ATF denies an application, it must refund the tax. Gun owners must keep approved applications as evidence of registration of the firearms and make them available for inspection by ATF officers.[5]

In the morning hours of April 10, 1986, the House held recorded votes on three amendments to FOPA in Record Vote No's 72, 73, and 74. Recorded Vote 72 was on H.AMDT. 776, an amendment to H.AMDT 770 involving the interstate sale of handguns; while Recorded Vote 74 was on H.AMDT 770, involving primarily the easing of interstate sales and the safe passage provision. Recorded Vote 74 was the controversial Hughes Amendment that called for the banning of machine guns. Rep. Charles Rangel (D-N.Y.), at the time presiding as Chairman over the proceedings, claimed that the "amendment in the nature of a substitute, as amended, was agreed to." However, after the voice vote on the Hughes Amendment, Rangel ignored a plea to take a recorded vote and moved on to Recorded Vote 74 where the Hughes Amendment failed.[6][7] The bill, H.R. 4332, as a whole passed in Record Vote No: 75 on a motion to recommit. Despite the controversial amendment, the Senate, in S.B. 49, adopted H.R. 4332 as an amendment to the final bill. The bill was subsequently passed and signed on May 19, 1986 by President Ronald Reagan to become Public Law 99-308, the Firearms Owners' Protection Act.

"Safe Passage" provision[edit]

One of the law's provisions was that persons traveling from one place to another cannot be incarcerated for a firearms offense in a state that has strict gun control laws if the traveler is just passing through (short stops for food and gas), provided that the firearms and ammunition are not immediately accessible, that the firearms are unloaded and, in the case of a vehicle without a compartment separate from the driver’s compartment, the firearms are located in a locked container.[8]

Under this provision, someone driving from Virginia to a competition in Vermont with a locked hard case containing an unloaded handgun and a box of ammunition in the trunk could not be prosecuted in New Jersey or New York City for illegal possession of a handgun provided that the individual did not stop in New Jersey or New York for an extended period of time.

See 18 USC § 926A http://www.law.cornell.edu/uscode/text/18/926A

Registry prohibition[edit]

The Act also forbade the U.S. Government agency from keeping a registry directly linking non-National Firearms Act firearms to their owners, the specific language of this law (Federal Law 18 U.S.C. 926 (http://www.law.cornell.edu/uscode/text/18/926) being:

No such rule or regulation prescribed [by the Attorney General] after the date of the enactment of the Firearms Owners Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or disposition be established. Nothing in this section expands or restricts the Secretary's authority to inquire into the disposition of any firearm in the course of a criminal investigation.

Nevertheless, the ATF Firearms Tracing System (FTS) contains hundreds of millions of firearm tracing and registration records, and consists of several databases:

1. Multiple Sale Reports. Over 460,000 (2003) Multiple Sales reports (ATF F 3310.4 - a registration record with specific firearms and owner name and address - increasing by about 140,000 per year). Reported as 4.2 million records in 2010.[9]
2. Suspect Guns. All guns suspected of being used for criminal purposes but not recovered by law enforcement. This database includes (ATF's own examples[citation needed]), individuals purchasing large quantities of firearms, and dealers with improper record keeping. May include guns observed by law enforcement in an estate, or at a gun show, or elsewhere.[citation needed] Reported as 34,807 in 2010. [9]
3. Traced Guns. Over 4 million detail records from all traces since inception.[9] This is a registration record which includes the personal information of the first retail purchaser, along with the identity of the selling dealer.
4. Out of Business Records. Data is manually collected from paper Out-of-Business records (or input from computer records) and entered into the trace system by ATF. These are registration records which include name and address, make, model, serial and caliber of the firearm(s), as well as data from the 4473 form - in digital or image format. In March, 2010, ATF reported receiving several hundred million records since 1968.[10]
5. Theft Guns. Firearms reported as stolen to ATF. Contained 330,000 records in 2010.[9] Contains only thefts from licensed dealers and interstate carriers (optional).[9] Does not have an interface to the FBI's National Crime Information Center (NCIC) theft data base, where the majority of stolen, lost and missing firearms are reported.[citation needed]

National Background Check[edit]

The Brady Handgun Violence Prevention Act of 1993 created a national background check system to prevent firearms sales to prohibited persons. In order to comply with the prohibition on a Federal registry of non-NFA items, background check records are legally required to be destroyed after 24 hours.

Clarification of prohibited persons[edit]

The older Gun Control Act of 1968 prohibits firearms ownership in the US by certain broad categories of individuals thought to pose a threat to public safety. However, this list differed between the House and the Senate versions of the bill, and led to great confusion. This list was later augmented, modified, and clarified in the Firearm Owners Protection Act of 1986. The 1986 list is:

  • Anyone who has been convicted in any court of a felony punishable by imprisonment for a term exceeding one year, excluding those crimes punishable by imprisonment related to the regulation of business practices, whose full civil rights have not been restored by the State in which the firearms disability was first imposed. [11] [12]
  • Anyone who is a fugitive from justice.
  • Anyone who is an unlawful user of or addicted to any controlled substances.
  • Anyone who has been adjudicated as a mental defective or has been involuntarily committed to a mental institution.
  • Any alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa. The exception is if the nonimmigrant is in possession of a valid hunting license issued by a US state and/or has been granted a waiver from the Attorney General.
  • Anyone who has been discharged from the Armed Forces under dishonorable conditions.
  • Anyone who, having been a citizen of the United States, has renounced his or her citizenship.
  • Anyone that is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner. (Added in 1996, with the Lautenberg Amendment.)
  • Anyone who has been convicted of a misdemeanor crime of domestic violence. (Added in 1996, with the Lautenberg Amendment)[13]
  • A person who is under indictment or information for a crime (misdemeanor) punishable by imprisonment for a term exceeding two years cannot lawfully receive a firearm. Such person may continue to lawfully possess firearms obtained prior to the indictment or information, and if cleared or acquitted can receive firearms without restriction.

These provisions are stated in the Federal Form of questions on Federal Form 4473.

In 1999, a U.S. District Court judge ruled that the Lautenberg Amendment, 18 U.S.C. § 922(g)(8), violated the Second and Fifth Amendments to the United States Constitution, and was therefore unconstitutional, in United States of America v. Timothy Joe Emerson,[14]

This decision was subsequently reversed by the Fifth Circuit Court of Appeals two years later; see U.S. v. Emerson.[15] The Supreme Court did not grant certiorari, a necessary first step for further examination by the Supreme Court. Therefore, the 5th Circuit Court of Appeals ruling that overturned the domestic violence ban stands, but is binding on federal courts only in Louisiana, Mississippi, and Texas.

See also[edit]

References[edit]

  1. ^ Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1-58160-254-5.
  2. ^ "Gun Law News: Firearm Owners Protection Act of 1986". 
  3. ^ Kruschke, Earl R. (1995). Gun control: a reference handbook. Santa Barbara, Calif: ABC-CLIO. p. 85. ISBN 0-87436-695-X. 
  4. ^ "Library of Congress Record". Library of Congress. 
  5. ^ Rose, Veronica: SUMMARY OF STATE AND FEDERAL MACHINE GUN LAWS http://www.cga.ct.gov/2009/rpt/2009-R-0020.htm
  6. ^ "Federal Firearms Law Reform Act of 1986: Roll Vote No. 74". Congressional Record (WestLaw Research) 132: H1741–06. 1986. Retrieved June 9, 2010 
  7. ^ Davidson, Osha Gray (1998). Under fire: the NRA and the battle for gun control. University of Iowa Press. p. 77. ISBN 978-0-87745-646-9. 
  8. ^ US CODE: Title 18,926A. Interstate transportation of firearms
  9. ^ a b c d e "IACP/LEIM eTRACE-FTS". BATFE (The IACP). 2010-06-03. p. 38. Retrieved 2010-12-16. 
  10. ^ http://www.atf.gov/publications/factsheets/factsheet-national-tracing-center.html
  11. ^ USAM Chapter 9 - CRM 2452; "USAM Chapter 9 - CRM 2452". 
  12. ^ United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990); "United States v. Cassidy". 
  13. ^ "FinalOctober2000TAL10022000.fm" (PDF). Retrieved 2008-09-06. 
  14. ^ 46 F. Supp. 2d 598 (N.D. Tex. 1999); "United States vs. Timothey Joe Emerson". Law.umkc.edu. Retrieved 2008-09-06. 
  15. ^ 270 F.3d 203 (5th Cir. 2001); "FindLaw | Cases and Codes". Caselaw.lp.findlaw.com. Retrieved 2008-09-06.