Gun law in the United States

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In the United States, the right to keep and bear arms is modulated by a variety of state and federal statutes. These laws generally regulate the manufacture, trade, possession, transfer, record keeping, transport, and destruction of firearms, ammunition, and firearms accessories. [1] They are enforced by state, local and the federal agencies which include the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

Contents

The private right to keep and bear arms is protected by the Second Amendment of the United States Constitution. This protection was not legally explicit until the U.S. Supreme Court ruled in District of Columbia v. Heller (2008) that the Amendment defined and protected an individual right, unconnected with militia service. A subsequent holding in McDonald v. City of Chicago (2010) ruled that the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and thereby applies to state and local laws. In New York State Rifle & Pistol Association, Inc. v. Bruen (2022) the Court struck down New York's "may issue" policy of granting concealed carry licenses, and further held that any regulation of firearms in the United States is presumed unconstitutional unless the state can prove it is rooted in the country's text, history, and tradition.

Major federal gun laws

Gun show, in the U.S. Houston Gun Show at the George R. Brown Convention Center.jpg
Gun show, in the U.S.

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-five 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, 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] In New York State Rifle & Pistol Association, Inc. v. Bruen , the Supreme Court ruled that states could not require "proper cause" or a "special need" when issuing a license for concealed carry. [7]

History

Important events regarding gun legislation occurred in the following years. [8]

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, the National Firearms Act (NFA) was signed into law under President Franklin D. Roosevelt's Administration in an effort to curb prohibition-era violence. [9] [10] Between 1920 and 1933 the homicide rate in the United States had been rising year-over-year as an example of the unintended consequences of passing Prohibition into law, and the concomitant violence associated with making illegal a widely in-demand product. [9] [11] The NFA is considered to be the first federal legislation to enforce gun control in the United States, imposing a $200 tax, equivalent to approximately $3,942 in 2022, 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. When Prohibition was ultimately repealed in 1933, and the monopoly on alcohol maintained by organized crime was ended, there was a significant decline in the homicide rate. [9] [10] In fact, "...homicides continued to diminish each year for eleven years straight [after the repeal of Prohibition]." [9] [11]

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 the 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.

History of concealed carry laws Right to Carry, timeline.gif
History of concealed carry laws
After the 2004 expiration of the Federal Assault Weapons Ban, the firearms industry embraced the AR-15's political and cultural significance for marketing. Almost every major gunmaker produces its own version, with ~16 million Americans owning at least one. 1990- AR-15 production as percentage of guns produced in US.svg
After the 2004 expiration of the Federal Assault Weapons Ban, the firearms industry embraced the AR-15's political and cultural significance for marketing. Almost every major gunmaker produces its own version, with ~16 million Americans owning at least one.

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".

In 2022, the Supreme Court ruled in the case New York State Rifle & Pistol Association, Inc. v. Bruen "that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home" and that "the State’s [may-issue] licensing regime violates the Constitution."

Second Amendment

The right to keep and bear arms in the United States is protected by the Second Amendment to the U.S. Constitution. [13] 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 landmark 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 Heller, which overturned a handgun ban in the federal District of Columbia. [14] 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. [15] [16]

The four dissenting justices argued that the majority had broken prior precedent on the Second Amendment, [17] and took the position that the amendment refers to an individual right, but only in the context of militia service. [18] [19] [20] [21]

In McDonald, 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. [22]

The Supreme Court ruled that the Second Amendment protects the right to carry guns in public for self-defense in New York State Rifle & Pistol Association, Inc. v. Bruen in 2022. [23] [24] Previously, federal appeals courts had 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." [25] 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." [26] 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. [27]

Eligible people

Household firearm ownership rate by U.S. state in 2016 Household Firearm Ownership Rate by U.S. state.svg
Household firearm ownership rate by U.S. state in 2016
U.S. gun sales have risen in the 21st century, peaking in 2020 during the COVID-19 pandemic. "NICS" is the FBI's National Instant Background Check System. 2000- Gun sales and NICS firearm background checks - U.S.svg
U.S. gun sales have risen in the 21st century, peaking in 2020 during the COVID-19 pandemic. "NICS" is the FBI's National Instant Background Check System.

The following are eligible to possess and own firearms within the United States, [29] [30] 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) [36]
  7. non-resident of any US state unless the receipt of firearms are for lawful sporting purposes [37]

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, [38] and people on the federal no-fly list, should be excluded. [39] [40] 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] [41] Those prohibited include any individual who:

These categories are listed on ATF Form 4473 – Firearms Transaction Record background check form. [46] According to the US Sentencing Commission, approximately 5,000 to 6,000 prohibited persons are convicted of unlawfully receiving or possessing a firearm each year. [47] In 2017, over 25.2 million background checks were performed. [48]

Manufacturers

Under United States law, any company or gunsmith which in the course of its business manufactures firearms of finished frames and receivers, or modifies firearms for resale, must be licensed as a manufacturer of firearms. [49] These regulations do not apply to manufacturers of kit components and non-firearms like so-called "80% receivers". [50]

See also

Related Research Articles

<span class="mw-page-title-main">Second Amendment to the United States Constitution</span> 1791 amendment protecting the right to keep and bear arms

The Second Amendment to the United States Constitution protects the right to keep and bear arms. It was ratified on December 15, 1791, along with nine other articles of the Bill of Rights. In District of Columbia v. Heller (2008), the Supreme Court affirmed for the first time that the right belongs to individuals, for self-defense in the home, while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding "the possession of firearms by felons and the mentally ill" or restrictions on "the carrying of dangerous and unusual weapons". In McDonald v. City of Chicago (2010) the Supreme Court ruled that state and local governments are limited to the same extent as the federal government from infringing upon this right. New York State Rifle & Pistol Association, Inc. v. Bruen (2022) assured the right to carry weapons in public spaces with reasonable exceptions.

<span class="mw-page-title-main">National Firearms Act</span> 1934 US law regulating firearms including machine guns

The National Firearms Act (NFA), 73rd Congress, Sess. 2, ch. 757, 48 Stat. 1236 was enacted on June 26, 1934, and currently codified and amended as I.R.C. ch. 53. The law is an Act of Congress in the United States that, in general, imposes an excise tax on the manufacture and transfer of certain firearms and mandates the registration of those firearms. The NFA is also referred to as Title II of the federal firearms laws, with the Gun Control Act of 1968 ("GCA") as Title I.

United States v. Cruikshank, 92 U.S. 542 (1876), was a landmark decision of the United States Supreme Court ruling that the U.S. Bill of Rights did not limit the power of private actors or state governments despite the adoption of the Fourteenth Amendment. It reversed the federal criminal convictions for the civil rights violations committed in aid of anti-Reconstruction murders. Decided during the Reconstruction Era, the case represented a major defeat for federal efforts to protect the civil rights of African Americans.

<span class="mw-page-title-main">Gun politics in the United States</span> Political concern

Gun politics is defined in the United States by two primary opposing ideologies concerning the private ownership of firearms. Those who advocate for gun control support increasingly restrictive regulation of gun ownership; those who advocate for gun rights oppose increased restriction, or support the liberalization of gun ownership. These groups typically disagree on the interpretation of the text, history and tradition of the laws and judicial opinions concerning gun ownership in the United States and the meaning of the Second Amendment to the Constitution of the United States. American gun politics involves these groups' further disagreement concerning the role of firearms in public safety, the studied effects of ownership of firearms on public health and safety, and the role of guns in national and state crime.

United States v. Miller, 307 U.S. 174 (1939), was a landmark decision of the Supreme Court of the United States that involved a Second Amendment to the United States Constitution challenge to the National Firearms Act of 1934 (NFA). The case is often cited in the ongoing American gun politics debate, as both sides claim that it supports their position.

Concealed carry, or carrying a concealed weapon (CCW), is the practice of carrying a weapon in public in a concealed manner, either on one's person or in close proximity. CCW is often practiced as a means of self-defense. Following the Supreme Court's NYSRPA v. Bruen (2022) decision, all states in the United States were required to allow for concealed carry of a handgun either permitlessly or with a permit, although the difficulty in obtaining a permit varies per jurisdiction.

<span class="mw-page-title-main">Firearm Owners Protection Act</span> 1986 United States federal gun control law

The Firearm Owners' Protection Act (FOPA) of 1986 is a United States federal law that revised many provisions of the Gun Control Act of 1968.

<span class="mw-page-title-main">National Instant Criminal Background Check System</span> U.S. system for determining if prospective firearms or explosives buyers are eligible to buy

The National Instant Criminal Background Check System (NICS) is a background check system in the United States created by the Brady Handgun Violence Prevention Act of 1993 to prevent firearm sales to people prohibited under the Act. The system was launched by the Federal Bureau of Investigation (FBI) in 1998. Under the system, firearm dealers, manufacturers or importers who hold a Federal Firearms License (FFL) are required to undertake a NICS background check on prospective buyers before transferring a firearm. The NICS is not intended to be a gun registry, but is a list of persons prohibited from owning or possessing a firearm. By law, upon successfully passing the background check, the buyer’s details are to be discarded and a record on NICS of the firearm purchase is not to be made, though the seller as a FFL holder is required to keep a record of the transaction.

<span class="mw-page-title-main">Open carry in the United States</span> Practice of carrying a visible firearm in some US states

In the United States, open carry refers to the practice of visibly carrying a firearm in public places, as distinguished from concealed carry, where firearms cannot be seen by the casual observer. To "carry" in this context indicates that the firearm is kept readily accessible on the person, within a holster or attached to a sling. Carrying a firearm directly in the hands, particularly in a firing position or combat stance, is known as "brandishing" and may constitute a serious crime, but is not the mode of "carrying" discussed in this article.

District of Columbia v. Heller, 554 U.S. 570 (2008), is a landmark decision of the Supreme Court of the United States. It ruled that the Second Amendment to the U.S. Constitution protects an individual's right to keep and bear arms—unconnected with service in a militia—for traditionally lawful purposes such as self-defense within the home, and that the District of Columbia's handgun ban and requirement that lawfully owned rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock" violated this guarantee. It also stated that the right to bear arms is not unlimited and that certain restrictions on guns and gun ownership were permissible. It was the first Supreme Court case to decide whether the Second Amendment protects an individual right to keep and bear arms for self-defense or whether the right was only intended for state militias.

<span class="mw-page-title-main">Gun laws in California</span> Californias gun law

Gun laws in California regulate the sale, possession, and use of firearms and ammunition in the state of California in the United States.

McDonald v. City of Chicago, 561 U.S. 742 (2010), was a landmark decision of the Supreme Court of the United States that found that the right of an individual to "keep and bear arms", as protected under the Second Amendment, is incorporated by the Fourteenth Amendment and is thereby enforceable against the states. The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller (2008) as to the scope of gun rights in regard to the states.

Nunn v. State, 1 Ga. 243 (1846) is a Georgia Supreme Court ruling that a state law ban on handguns was an unconstitutional violation of the Second Amendment to the United States Constitution. This was the first gun control measure to be overturned on Second Amendment grounds.

Nor is the right involved in this discussion less comprehensive or valuable: "The right of the people to bear arms shall not be infringed." The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!

<span class="mw-page-title-main">Gun laws in North Carolina</span> North Carolinas gun law

Gun laws in North Carolina regulate the sale, possession, and use of firearms and ammunition in the U.S. state of North Carolina.

People v. Aguilar, 2 N.E.3d 321, was an Illinois Supreme Court case in which the Court held that the Aggravated Unlawful Use of a Weapon (AUUF) statute violated the right to keep and bear arms as guaranteed by the Second Amendment. The Court stated that this was because the statute amounted to a wholesale statutory ban on the exercise of a personal right that was specifically named in and guaranteed by the United States Constitution, as construed by the United States Supreme Court. A conviction for Unlawful Possession of a Firearm (UPF) was proper because the possession of handguns by minors was conduct that fell outside the scope of the Second Amendment's protection.

In the United States, the right to keep and bear arms is a fundamental right protected by the Second Amendment to the United States Constitution, part of the Bill of Rights, and by the constitutions of most U.S. states. The Second Amendment declares:

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.

<i>Peruta v. San Diego County</i>

Peruta v. San Diego, 824 F.3d 919, was a decision of the United States Court of Appeals for the Ninth Circuit pertaining to the legality of San Diego County's restrictive policy regarding requiring documentation of "good cause" that "distinguish[es] the applicant from the mainstream and places the applicant in harm's way" before issuing a concealed carry permit.

<span class="mw-page-title-main">Privately made firearm</span> Firearm made by a private individual

A privately made firearm is a legal term for a firearm produced by a private individual as opposed to a corporate or government entity. The term "ghost gun" is used mostly in the United States by gun control advocates, but it is being adopted by gun rights advocates and the firearm industry because of recent regulations adopted by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), abbreviated NYSRPA v. Bruen and also known as NYSRPA II or Bruen to distinguish it from the 2020 case, is a landmark decision of the United States Supreme Court related to the Second Amendment to the United States Constitution. The case concerned the constitutionality of the 1911 Sullivan Act, a New York State law requiring applicants for a pistol concealed carry license to show "proper cause", or a special need distinguishable from that of the general public, in their application.

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  44. United States v. Torres, 911 F.3d 1253 PD-icon.svg 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....").
  45. Rehaif v. United States , 139 S. Ct. 2191 PD-icon.svg This article incorporates text from this source, which is in the public domain ., 2194 (2019); United States v. Singh, 979 F.3d 697 PD-icon.svg 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 PD-icon.svg This article incorporates text from this source, which is in the public domain . (9th Cir. January 19, 2021); United States v. Mora-Alcaraz, No. 19-10323 PD-icon.svg This article incorporates text from this source, which is in the public domain . (9th Cir. January 21, 2021).
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