Gun Laws in the United States
With the United States surpassing 200 mass shootings[1] in this year alone, the conversations around gun restrictions and regulations are hitting a fever pitch. Do you know laws the United States has regarding gun ownership? Does the United States Constitution defend the right to own guns? The Second Amendment, the right to bear arms, is one of the most well-known and quoted amendments to the United States Constitution, what have gun laws looked like throughout America’s history? In this blog, we hope to give you a basic understanding of the history of gun laws.
What are federal gun laws?
The Second Amendment, ratified in 1791, states: “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.”[2] There has been much debate about whether this amendment protects the individual, private right to own guns, or if it is a right that is to only be exercised in the form of a militia. The Constitution Center’s website offers an interpretation along with links to resources in the media library on the second amendment. You can learn more here. Cornell Law School’s Legal Information Institute also offers background and history on the second amendment, which can be accessed here.
The next piece of legislation for guns wasn’t passed until 1934, with the National Firearms Act. This act taxed the making and transfer of firearms and required firearms to be registered with the Secretary of the Treasury. The Introduction to the NFA handbook details the history of the act, stating that it was enacted to curtail gangland crime during the 1930’s, citing the St. Valentine’s Day Massacre as an extreme example of why the law was necessary.
In 1939, the Supreme Court heard a case, United States v. Miller, enforcing the NFA, where a sawed-off double barrel shotgun was used in transport in interstate commerce. The appellee maintained the NFA violated their second amendment right to bear arms. the Supreme Court unanimously found that “the Second Amendment does not guarantee an individual the right to keep and bear a sawed-off double-barrel shotgun.”[3]
Much of the Federal Firearms Act (FFA) of 1938 was repealed and replaced by the Gun Control Act of 1968. Following the assassinations of Dr. Martin Luther King, Jr., John F. Kennedy and Robert Kennedy, this law was pushed to be enacted. It has stricter licensing and regulation of the firearms industry, prohibitions against certain persons, and delegated the Alcohol and Tobacco Tax Division (ATTD) to enforce the act.
In 1986, Congress passed the Firearm Owners Protection Act (FOPA) , which amended the definitions of “silencer” and “gun dealer” and amended the transfer and sales of machine guns. Using HeinOnline, a database that is available remotely to our customers, I found a law review that discussed FOPA. This act is characterized as having brought fairness and clarity to gun ownership, but also conflicted against Supreme Court rulings.
Brady Handgun Violence Prevention Act of 1993 was named after White House Press Secretary James, Brady, who was shot and permanently disabled during an assassination attempt on President Ronald Reagan. This law amended the Gun Control Act of 1968 by imposing a 5 day waiting period for the sales of handguns. It also established the National Instant Criminal Background Check System (NICS), which is maintained by the FBI. It has done more than 3 million background checks since its inception in1998.[4]
The Violent Crime Control and Law Enforcement Act of 1994 temporarily banned 19 military style assault weapons from 1994-2004. The bill can be read in its entirety here and a fact sheet is available here. This ban has not been renewed.
The Tiarht amendments, sponsored by Todd Tiarht (R. Kansas), were attached to the US Department of Justice appropriations bill of 2003 that fund the Bureau of Alcohol, Tobacco, Firearms and Explosives. The amendments (ATF) from releasing firearm data to the public and provide protections for gun dealers[5] through this confidentially of records.[6]
Further protection to gun owners and manufacturers was provided with the 2005 Protection of Lawful Commerce in Arms Act. This act prohibits causes of action, or lawsuits, against manufacturers by those who were victims of that manufacturer’s products. The law seeks to also to prevent unreasonable burdens on interstate and foreign commerce.
District of Columbia v. Heller, heard by the Supreme Court in 2008, again addressed second amendment rights and seemed to diverge from the precedent set in United States v. Miller in 1939. In this 5-4 opinion, the Supreme Court found “the ban on registering handguns and the requirement to keep guns in the home disassembled or nonfunctional with a trigger lock mechanism violate the Second Amendment.
The bill, H.R.1446 – Enhanced Background Checks Act of 2021, has been passed by the house In March of 2021, but is currently stalled in the senate. This bill revises background check requirements and increases the waiting period from 3 days to 10 days.
Also upcoming, 120 days after its publication in the Federal Register on August 24, is the ATF’s “ghost” gun final rule. One of the changes this rule brings is requiring serial numbers on guns that are 3d printed, to reduce the prevalence of “ghost” guns or guns that are untraceable. You can find out more on ATF’s website and also see the rule in the online Federal Register.
We invite you to continue the research into gun laws in the United States- by performing keyword searches on our HeinOnline database, or looking up other major cases in our caselaw database Westlaw or Lexis. Westlaw also as a Firearms Law Deskbook. Information about which databases are available remotely can be found here. Search our online catalog for titles concerning gun laws or second amendment rights, like The Founders’ Second Amendment: Origins of the Right to Bear Arms.
Written by: Jenna Pontious, Public Services Librarian
[1] https://www.gunviolencearchive.org/reports/mass-shooting
[2] https://constitution.congress.gov/constitution/amendment-2/
[3] https://www.oyez.org/cases/1900-1940/307us174
[4] https://www.fbi.gov/services/cjis/nics
[5] https://giffords.org/lawcenter/gun-laws/policy-areas/other-laws-policies/tiahrt-amendments/
