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Gun law in the United States

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This article is about federal gun laws. For state and local gun laws, see Gun laws in the United States by state.

Firearm legal topics of the
United States
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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.[1] 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.

The right to keep and bear arms is protected by the Second Amendment to the United States Constitution.

Major federal gun laws

Most federal gun laws are found in the following acts:[2][3]

Overview of current regulations

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.[4][5] Additionally, the U.S. Supreme Court held in McDonald v. Chicago (2010) 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.[6]

History

Important events regarding gun legislation occurred in the following years.[7]

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 federal 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 1938, President Franklin D. Roosevelt signed the Federal Firearms Act of 1938 ("FFA") into law, requiring that all gun related businesses must have a Federal Firearms License (FFL).

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 2010, the Supreme Court ruled in the case McDonald v. Chicago that the Second Amendment is incorporated and thus applies against the states.

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".

Second Amendment

The right to keep and bear arms in the United States is protected by the Second Amendment to the U.S. Constitution.[8] 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.[9] 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.[10][11]

The four dissenting justices argued that the majority had broken prior precedent on the Second Amendment,[12] and took the position that the amendment refers to an individual right, but in the context of militia service.[13][14][15][16]

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.[17]

The Supreme Court has not ruled on whether the Second Amendment protects the right to carry guns in public for self-defense.[18] 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."[19] 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."[20] 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.[21]

Eligible people

The following are eligible to possess and own firearms within the United States,[22][23] though further restrictions apply:

  1. admitted into the United States for lawful hunting or sporting purposes
  2. possesses a lawful hunting license or permit issued by any US state
  3. 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
  4. an official of a foreign government or a distinguished foreign visitor who has been so designated by the Department of State
  5. a foreign law enforcement officer of a friendly foreign government entering the United States on official law enforcement business
  6. 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)[29]
  7. non-resident of any US state unless the receipt of firearms are for lawful sporting purposes[30]

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,[31] and people on the federal no-fly list, should be excluded.[32][33] Laws in these areas vary considerably, and enforcement is in flux.

Prohibited persons

The Gun Control Act of 1968 prohibits certain classes of people from buying, selling, using, owning, receiving, shipping, carrying, possessing or exchanging any firearm or ammunition.[1][34] Those prohibited include any individual who:

These categories are listed on ATF Form 4473 – Firearms Transaction Record background check form.[39] According to the US Sentencing Commission, approximately 5,000 to 6,000 prohibited people a year are convicted of receiving or possessing a firearm.[40] In 2017, over 25.2 million background checks were performed.[41]

Manufacturers

Under United States law, any company or gunsmith which in the course of its business manufactures guns or gun parts, or modifies guns for resale, must be licensed as a manufacturer of firearms.[42]

See also

References

  1. ^ a b "Summary of Federal Firearms Laws" (PDF). U.S. Dept. of Justice. September 2010. Retrieved January 19, 2021.
  2. ^ "Federal Gun Control Legislation – Timeline". Infoplease.com. Retrieved 2013-11-14.
  3. ^ "Crime Control: The Federal Response". Policyalmanac.org. Archived from the original on 2014-04-19. Retrieved 2013-11-14.
  4. ^ Volokh, Eugene (2006). "State Constitutional Right to Keep and Bear Arms Provisions". UCLA School of Law. Retrieved November 23, 2011.
  5. ^ "New York Civil Rights – Article 2 – § 4 Right to Keep and Bear Arms". Law and Legal Research. March 30, 2010. Retrieved November 23, 2011.
  6. ^ Liptak, Adam (June 28, 2010). "Justices Extend Firearm Rights in 5-to-4 Ruling", New York Times. Retrieved February 21, 2015.
  7. ^ Gray, Sarah. "Here's a Timeline of the Major Gun Control Laws in America". time.com. Time. Retrieved 2019-04-17.
  8. ^ Folajtar v. Attorney General, No. 19-1687, at *6 (3d Cir. Nov. 24, 2020)
  9. ^ Greenhouse, Linda (June 27, 2008). "Justices Rule for Individual Gun Rights", The New York Times. Retrieved February 15, 2015.
  10. ^ 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}}: Cite journal requires |journal= (help)
  11. ^ Cooper, Matthew (January 19, 2013). "Why Liberals Should Thank Justice Scalia for Gun Control: His ruling in a key Supreme Court case leans on original intent and will let Obama push his proposals". National Journal. National Journal Group. Archived from the original on January 7, 2014. Retrieved January 6, 2014.
  12. ^ Linda Greenhouse (2008-06-27). "Justices Rule for Individual Gun Rights". The New York Times. Retrieved 2008-06-27.
  13. ^ See "District of Columbia v. Heller: The Individual Right to Bear Arms" (PDF) Archived 2014-01-11 at the Wayback Machine (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."
  14. ^ 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.
  15. ^ 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.
  16. ^ 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.
  17. ^ Liptak, Adam (June 28, 2010). "Justices Extend Firearm Rights in 5-to-4 Ruling", The New York Times. Retrieved February 15, 2015.
  18. ^ Liptak, Adam (April 15, 2013). "Justices Refuse Case on Gun Law in New York", The New York Times. Retrieved February 15, 2015.
  19. ^ Long, Ray; Sweeney, Annie; Garcia, Monique (December 11, 2012). "Concealed Carry: Court Strikes Down Illinois' Ban", Chicago Tribune. Retrieved February 15, 2015.
  20. ^ Associated Press (February 23, 2013). "Court Finds No Right to Conceal a Firearm", The New York Times. Retrieved February 15, 2015.
  21. ^ 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.
  22. ^ "U.S.C. Title 18 – Crimes and Criminal Procedure". www.govinfo.gov.
  23. ^ "May a nonimmigrant alien who has been admitted to the United States under a nonimmigrant visa possess a firearm or ammunition in the United States?". Atf.gov. Bureau of Alcohol, Tobacco, Firearms and Explosives. Retrieved 2 November 2017. Public Domain This article incorporates text from this source, which is in the public domain.
  24. ^ Jack v. Barr, 966 F.3d 95 Public Domain This article incorporates text from this source, which is in the public domain., 96 (2d Cir. 2020); Flores-Abarca v. Barr, 937 F.3d 473 Public Domain This article incorporates text from this source, which is in the public domain. (5th Cir. 2019); Matter of Campos-Torres, 22 I&N Dec. 1289 Public Domain This article incorporates text from this source, which is in the public domain., 1290 (BIA 2000) (en banc); Matter of Pichardo, 21 I&N Dec. 330 Public Domain This article incorporates text from this source, which is in the public domain. (BIA 1996) (en banc); Matter of Granados, 16 I&N Dec. 726 Public Domain This article incorporates text from this source, which is in the public domain. (BIA 1979).
  25. ^ Matter of H-N-, 22 I&N Dec. 1039 Public Domain This article incorporates text from this source, which is in the public domain., 1040-45 (BIA 1999) (en banc).
  26. ^ 8 U.S.C. § 1101(a)(13)(A) ("The terms 'admission' and 'admitted' mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer."); Matter of D-K-, 25 I&N Dec. 761 Public Domain This article incorporates text from this source, which is in the public domain., 765-66 (BIA 2012).
  27. ^ "18 U.S. Code § 922 – Unlawful acts". LII / Legal Information Institute.
  28. ^ May a nonimmigrant alien who has been admitted to the United States under a nonimmigrant visa possess a firearm or ammunition in the United States? Public Domain This article incorporates text from this source, which is in the public domain.
  29. ^ "18 U.S. Code § 922 – Unlawful acts". LII / Legal Information Institute. Retrieved 2 November 2017.
  30. ^ https://www.govregs.com/regulations/title27_chapterII_part478_subpartC_section478.29a US Code of Federal Regulations – Title 27 – Chapter II – Subpart C – 478.29a – acquisition of firearms by nonresidents Public Domain This article incorporates text from this source, which is in the public domain.
  31. ^ "House Votes To Overturn Obama Rule Restricting Gun Sales To The Severely Mentally Ill". Npr.org. Retrieved 2 November 2017.
  32. ^ https://www.scotusblog.com/case-files/cases/holloway-v-rosen/
  33. ^ https://www.scotusblog.com/case-files/cases/folajtar-v-barr/
  34. ^ https://www.atf.gov/firearms/identify-prohibited-persons Public Domain This article incorporates text from this source, which is in the public domain.
  35. ^ Holloway v. Attorney General, 948 F.3d 164 Public Domain This article incorporates text from this source, which is in the public domain., 169 (3d Cir. 2020); 18 U.S.C. § 921(a)(20); 18 U.S.C. § 927.
  36. ^ https://www.deadiversion.usdoj.gov/21cfr/21usc/802.htm Public Domain This article incorporates text from this source, which is in the public domain.
  37. ^ United States v. Torres, 911 F.3d 1253 Public Domain This article incorporates text from this source, which is in the public domain., 1255 (9th Cir. 2019); 8 U.S.C. § 1365(b) ("An illegal alien ... is any alien ... who is in the United States unlawfully....").
  38. ^ Rehaif v. United States, 139 S. Ct. 2191 Public Domain This article incorporates text from this source, which is in the public domain., 2194 (2019); United States v. Singh, 979 F.3d 697 Public Domain This article incorporates text from this source, which is in the public domain. (9th Cir. 2020) ("B1/B2 nonimmigrant visa holders do not automatically qualify for § 922(y)(2)'s exception and, by a plain reading of the statute, are subject to the prohibition on gun possession."); United States v. Gear, No. 19-10353 Public Domain This article incorporates text from this source, which is in the public domain. (9th Cir. Jan. 19, 2021); United States v. Mora-Alcaraz, No. 19-10323 Public Domain This article incorporates text from this source, which is in the public domain. (9th Cir. Jan. 21, 2021).
  39. ^ https://www.atf.gov/firearms/docs/4473-part-1-firearms-transaction-record-over-counter-atf-form-53009/download Public Domain This article incorporates text from this source, which is in the public domain.
  40. ^ https://www.ussc.gov/research/quick-facts/section-922g-firearms Public Domain This article incorporates text from this source, which is in the public domain.
  41. ^ NICS Firearm Background Checks, November 30, 1998 – October 31, 2020 Public Domain This article incorporates text from this source, which is in the public domain.
  42. ^ "Firearms – Frequently Asked Questions – Manufacturers". ATF.gov. 2015. Archived from the original on July 10, 2014. Retrieved February 24, 2015.
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