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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.

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).

The private right to keep and bear arms is protected by the Second Amendment of the United States Constitution. This protection became legally explicit when 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 being required to show "proper cause" to be granted a concealed carry license, but allowed states to enforce "shall-issue" permitting where applicants must satisfy certain objective criteria such as passing a background check. It also 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. In United States v. Rahimi (2024), this test was refined as the Court upheld federal laws restricting gun rights from those accused of domestic violence and said that lower courts should not seek exact comparisons when reviewing the historical tradition but rather look at similar analogues and general principles.[2]

Major federal gun laws

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Gun show, in the U.S.

Most federal gun laws are found in the following acts:[3][4]

Overview of current regulations

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Fugitives, those convicted of a felony with a sentence exceeding one 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.[5][6] 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.[7] 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.[8]

History

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See also: History of concealed carry in the U.S.

Important events regarding gun legislation occurred in the following years.[9]

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.[10][11] 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.[10][12] 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.[10][11] In fact, "...homicides continued to diminish each year for eleven years straight [after the repeal of Prohibition]."[10][12]

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
 
After the 2004 expiration of the Federal Assault Weapons Ban, the firearms industry embraced the AR-15's political and cultural significance for marketing.[13] Almost every major gunmaker produces its own version, with ~16 million Americans owning at least one.[13]

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

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The right to keep and bear arms in the United States is protected by the Second Amendment to the U.S. Constitution.[14] 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.[15] 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.[16][17]

The four dissenting justices argued that the majority had broken prior precedent on the Second Amendment,[18] and took the position that the amendment refers to an individual right, but only in the context of militia service.[19][20][21][22]

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.[23]

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.[24][25] 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."[26] 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."[27] 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.[28]

Eligible people

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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.[29] "NICS" is the FBI's National Instant Background Check System.

The following are eligible to possess and own firearms within the United States,[30][31] 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)[37]
  7. non-resident of any US state unless the receipt of firearms are for lawful sporting purposes[38]

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,[39] and people on the federal no-fly list, should be excluded.[40][41] Laws in these areas vary considerably, and enforcement is in flux.

Prohibited persons

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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][42] Those prohibited include any individual who:

These categories are listed on ATF Form 4473 – Firearms Transaction Record background check form.[47] 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.[48] In 2017, over 25.2 million background checks were performed.[49]

Manufacturers

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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.[50] These regulations do not apply to manufacturers of kit components and non-firearms like so-called "80% receivers".[51][better source needed]

See also

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References

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  1. ^ a b "Summary of Federal Firearms Laws" (PDF). U.S. Dept. of Justice. September 2010. Retrieved January 19, 2021.
  2. ^ Howe, Amy (June 21, 2024). "Supreme Court upholds bar on guns under domestic-violence restraining orders". SCOTUSBlog. Archived from the original on June 25, 2024. Retrieved June 21, 2024.
  3. ^ "Federal Gun Control Legislation – Timeline". Infoplease.com. Retrieved November 14, 2013.
  4. ^ "Crime Control: The Federal Response". Policyalmanac.org. Archived from the original on April 19, 2014. Retrieved November 14, 2013.
  5. ^ Volokh, Eugene (2006). "State Constitutional Right to Keep and Bear Arms Provisions". UCLA School of Law. Retrieved November 23, 2011.
  6. ^ "New York Civil Rights – Article 2 – § 4 Right to Keep and Bear Arms". Law and Legal Research. March 30, 2010. Retrieved November 23, 2011.
  7. ^ Liptak, Adam (June 28, 2010). "Justices Extend Firearm Rights in 5-to-4 Ruling", New York Times. Retrieved February 21, 2015.
  8. ^ "New York Gun Carry Ban Unconstitutional, Supreme Court Rules in FPC-Supported Case; Court Addresses "Scrutiny" for Second Amendment Litigation". Firearms Policy Coalition. June 23, 2022. Retrieved June 30, 2022.
  9. ^ Gray, Sarah (February 22, 2018). "Here's a Timeline of the Major Gun Control Laws in America". Time. Time. Retrieved April 17, 2019.
  10. ^ a b c d "Prohibition-Era Gang Violence Spurred Congress To Pass First Gun Law". www.npr.org. National Public Radio (NPR). Retrieved February 4, 2022.
  11. ^ a b Burrus, Trevor (January 30, 2013). "How Shameful Policies Increase America's Gun Violence". www.huffpost.com. The Huffington Post. Retrieved February 4, 2022.
  12. ^ a b Stooksberry, Jay (August 8, 2016). "Want to Stop Gun Violence? End The War On Drugs". fee.org. Foundation for Economic Education. Retrieved February 4, 2022.
  13. ^ a b Frankel, Todd C.; Boburg, Shawn; Dawsey, Josh; Parker, Ashley; Horton, Alex (March 27, 2023). "The gun that divides a nation". The Washington Post. Archived from the original on March 27, 2023. Frankel et al. credit: "Source: National Shooting Sports Foundation and Bureau of Alcohol, Tobacco, Firearms and Explosives." Frankel et al. quote: "The shift began after the 2004 expiration of a federal assault weapons ban that had blocked the sales of many semiautomatic rifles. A handful of manufacturers saw a chance to ride a post-9/11 surge in military glorification while also stoking a desire among new gun owners to personalize their weapons with tactical accessories."
  14. ^ Folajtar v. Attorney General, No. 19-1687, at *6 (3d Cir. November 24, 2020)
  15. ^ Greenhouse, Linda (June 27, 2008). "Justices Rule for Individual Gun Rights", The New York Times. Retrieved February 15, 2015.
  16. ^ 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)
  17. ^ 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.
  18. ^ Linda Greenhouse (June 27, 2008). "Justices Rule for Individual Gun Rights". The New York Times. Retrieved June 27, 2008.
  19. ^ See "District of Columbia v. Heller: The Individual Right to Bear Arms" (PDF) Archived January 11, 2014, 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."
  20. ^ 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.
  21. ^ 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.
  22. ^ 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.
  23. ^ Liptak, Adam (June 28, 2010). "Justices Extend Firearm Rights in 5-to-4 Ruling", The New York Times. Retrieved February 15, 2015.
  24. ^ Liptak, Adam (April 15, 2013). "Justices Refuse Case on Gun Law in New York", The New York Times. Retrieved February 15, 2015.
  25. ^ "New York gun rights case before Supreme Court with massive consequences". July 23, 2021.
  26. ^ Long, Ray; Sweeney, Annie; Garcia, Monique (December 11, 2012). "Concealed Carry: Court Strikes Down Illinois' Ban", Chicago Tribune. Retrieved February 15, 2015.
  27. ^ Associated Press (February 23, 2013). "Court Finds No Right to Conceal a Firearm", The New York Times. Retrieved February 15, 2015.
  28. ^ 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.
  29. ^ ● Gun sale data from Brownlee, Chip (December 31, 2023). "Gun Violence by the Numbers in 2023". The Trace. Archived from the original on January 28, 2024.
    ● NICS firearm check data downloaded via link at "NICS Firearm Background Checks: Month/Year" (PDF). FBI.gov. Federal Bureau of Investigation. January 2024. Archived (PDF) from the original on January 29, 2024.
  30. ^ "U.S.C. Title 18 – Crimes and Criminal Procedure". www.govinfo.gov.
  31. ^ "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 November 2, 2017.   This article incorporates text from this source, which is in the public domain.
  32. ^ "Gun Conviction and Immigration Law". Michigan Criminal Attorneys Blog. December 8, 2017. Retrieved March 31, 2022.
  33. ^ Matter of H-N-, 22 I&N Dec. 1039   This article incorporates text from this source, which is in the public domain., 1040-45 (BIA 1999) (en banc).
  34. ^ 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   This article incorporates text from this source, which is in the public domain., 765-66 (BIA 2012).
  35. ^ "18 U.S. Code § 922 – Unlawful acts". LII / Legal Information Institute.
  36. ^ "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? | Bureau of Alcohol, Tobacco, Firearms and Explosives". www.atf.gov. Retrieved March 19, 2024.
  37. ^ "18 U.S. Code § 922 – Unlawful acts". LII / Legal Information Institute. Retrieved November 2, 2017.
  38. ^ "27 CFR 478.29a - Acquisition of firearms by nonresidents". www.govregs.com. Retrieved March 19, 2024.
  39. ^ Taylor, Jessica (February 2, 2017). "House Votes To Overturn Obama Rule Restricting Gun Sales To The Severely Mentally Ill". Npr.org. Retrieved November 2, 2017.
  40. ^ "Holloway v. Garland".
  41. ^ "Folajtar v. Barr".
  42. ^ https://www.atf.gov/firearms/identify-prohibited-persons   This article incorporates text from this source, which is in the public domain.
  43. ^ Holloway v. Attorney General, 948 F.3d 164   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.
  44. ^ https://www.deadiversion.usdoj.gov/21cfr/21usc/802.htm Archived November 27, 2018, at the Wayback Machine   This article incorporates text from this source, which is in the public domain.
  45. ^ United States v. Torres, 911 F.3d 1253   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....").
  46. ^ Rehaif v. United States, 139 S. Ct. 2191   This article incorporates text from this source, which is in the public domain., 2194 (2019); United States v. Singh, 979 F.3d 697   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   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   This article incorporates text from this source, which is in the public domain. (9th Cir. January 21, 2021).
  47. ^ https://www.atf.gov/firearms/docs/4473-part-1-firearms-transaction-record-over-counter-atf-form-53009/download   This article incorporates text from this source, which is in the public domain.
  48. ^ https://www.ussc.gov/research/quick-facts/section-922g-firearms   This article incorporates text from this source, which is in the public domain.
  49. ^ NICS Firearm Background Checks, November 30, 1998 – October 31, 2020   This article incorporates text from this source, which is in the public domain.
  50. ^ "Firearms – Frequently Asked Questions – Manufacturers". ATF.gov. 2015. Archived from the original on July 10, 2014. Retrieved February 24, 2015.
  51. ^ Dan Zimmerman (July 1, 2023). "Federal Judge Throws Out ATF's Frame or Receiver Rule That Redefined What Constitutes a Firearm". TTAG.com. TTAG. Retrieved July 4, 2023.
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