Chapter 3
Firearm Laws, Regulations, and Ordinances

FEDERAL GOVERNMENT REGULATION OF GUNS

Americans have long debated the issue of federal regulation of firearms. Those in favor of regulation argue that only federal firearm laws can limit access by criminals, juveniles, and other high-risk people, thereby reducing violent crime. Supporters also contend that without federal laws, states with few firearms restrictions will supply guns illegally to states with stiffer restrictions. Opponents of federal involvement advance Second Amendment arguments against any kind of gun control. They also argue that federal gun laws only cause extra burdens for law-abiding citizens who seek to buy and sell firearms.

Up until the 1920s the states made their own decisions about whether and how to regulate firearms. The federal government stepped in following ratification of the Eighteenth Amendment (1919), which made it illegal to manufacture, transport, or sell “intoxicating liquors” in the United States. Known as Prohibition, the ban sparked a national crime wave as gangsters built empires on the illegal manufacture and sale of alcohol. For the first time, crime was seen as a national problem, and people debated solutions at the federal level.

The first federal law regulating firearms was passed in 1927 (18 USC 1715). The law outlawed mailing any firearm other than a shotgun or rifle through the U.S. Postal Service, except for firearms shipped for official law enforcement purposes. This law, which was still in effect as of June 2008, was intended to curb the mail-order business in handguns, and it inspired many states to pass their own regulations regarding the sale and use of handguns. Supporters of the federal law tried to get a law passed forbidding the shipment of handguns across state lines by all commercial carriers, but they failed. Instead, commercial carriers other than the U.S. Postal Service were allowed to carry handguns across state lines.

The next federal regulation was the National Firearms Act of 1934, which was designed to make it more difficult to acquire especially dangerous “gangster-type” weapons such as machine guns, sawed-off shotguns, and silencers. The legislation placed heavy taxes on all aspects of the manufacture and distribution of these firearms and required registration of each firearm through the entire production, distribution, and sales process. This law was still in force, with amendments, as of June 2008.

Ordinary firearms were the subject of the Federal Firearms Act of 1938. The act required any manufacturer or dealer who sent or received firearms across state lines to have a Federal Firearms License (FFL) and to keep a record of the names and addresses of people purchasing firearms. Firearms could not be sent to anyone who was a fugitive from justice or had been convicted of a felony. It became illegal to transport stolen guns from which the manufacturer's mark had been rubbed out or changed. This act was replaced with the passage of the Gun Control Act of 1968.

THE GUN CONTROL ACT OF 1968

The Gun Control Act of 1968 was passed in the wake of the fatal shootings of President John F. Kennedy (1917–1963), Martin Luther King Jr. (1929–1968), and Senator Robert F. Kennedy (1925–1968). It repealed the Federal Firearms Act of 1938 and amended the National Firearms Act of 1934 by adding bombs and other destructive devices to machine guns and sawed-off shotguns as items strictly controlled by the government. Its purpose was to assist federal, state, and local law enforcement agencies in reducing crime and violence.

The Gun Control Act of 1968 had two major sections. Title I required anyone dealing in firearms or ammunition—whether locally or across state lines—to be federally licensed under tough new standards and to keep records of all commercial gun sales. Title I also

prohibited the interstate mail-order sale of all firearms and ammunition, the interstate sale of handguns generally, and the interstate sale of long guns, except under certain conditions. It forbade sales to minors or those with criminal records, outlawed the importation of non-sporting firearms, and established special penalties for the use or carrying of a firearm while committing a crime of violence or drug trafficking. However, Title I did not forbid the importation of unassembled weapons parts, and some individuals and companies were suspected of importing separate firearms parts and then reassembling them into a complete weapon as a means of getting around the law.

Title II, the National Firearms Act (NFA), reenacted the 1934 National Firearms Act and extended the Gun Control Act to cover private ownership of “destructive” devices such as submachine guns, bombs, and grenades. Enforcement of the federal laws became the responsibility of the U.S. Department of the Treasury, which in 1972 created the Bureau of Alcohol, Tobacco, and Firearms (ATF). The ATF has since come under the control of the U.S. Department of Justice and has been renamed the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

Efforts to Amend the Gun Control Act of 1968

After the passage of the Gun Control Act of 1968, Congress found itself under siege from both pro- and anti-gun groups. Firearms owners and dealers complained about ATF enforcement efforts, which seemed to target law-abiding citizens while neglecting criminals with firearms and people selling firearms illegally. Others voiced concern that the act penalized sportsmen. By contrast, those urging tighter control on guns believed the act did not go far enough in keeping firearms out of the hands of criminals. Every Congress from 1968 to 1986 introduced dozens of pieces of legislation to strengthen, repeal, or diminish the requirements of the 1968 act. In 1986 the gun control advocates were successful.

THE FIREARMS OWNERS' PROTECTION ACT OF 1986

In 1986, nearly twenty years after the passage of the Gun Control Act of 1968, Congress passed major legislation amending the 1968 law. The Firearms Owners' Protection Act of 1986, commonly referred to as the Gun Control Act of 1986, was still in effect as of June 2008. However, the battle over this piece of legislation was fierce. David T. Hardy describes in “The Firearm Owners’ Protection Act of 1986: A Historical and Legal Perspective” (Cumberland Law Review, vol. 17, 1986) the reactions of those in favor and those opposed to its passage. Those in favor of the act called its passage “necessary to restore fundamental fairness and clarity to our nation's firearms laws.” Those opposed called it an “almost monstrous idea” and a “national disgrace.” The following sections compare the 1968 act with the present standards under the 1986 act.

Changes Implemented with the Gun Control Act of 1986 and Further Amendments

PROHIBITED PEOPLE . The 1968 legislation identified the categories of people to whom firearms could not be sold by a federally licensed firearms dealer, or FFL. These included convicted felons, drug abusers, and the mentally ill. The 1986 legislation clarified some inconsistencies in the 1968 act and made it unlawful for anyone, whether licensed or not, to sell a gun to a high-risk individual. The definition of the term high risk has been refined over the years and includes groups such as felons, fugitives, illegal aliens, and those subject to a restraining order.

The 1996 enactment of the Lautenberg Amendment to the Gun Control Act of 1968 expanded the group of people prohibited from legally obtaining a gun. The Lautenberg Amendment made it a felony for anyone convicted of the misdemeanor crime of domestic violence (e.g., assault or attempted assault on a family member) to ship, transport, possess, or receive firearms or ammunition. There was no exception for military personnel engaged in official duties. The amendment also made it a felony for anyone to sell or issue a firearm or ammunition to a person with such a conviction. The Lautenberg Amendment was ruled unconstitutional in 1999, but that ruling was reversed two years later. As of June 2008, the Lautenberg Amendment was still in force.

The Omnibus Consolidated and Emergency Supplemental Appropriations Act for 1999 also amended the Gun Control Act of 1968, prohibiting aliens admitted under a nonimmigrant visa from obtaining firearms. This included people traveling temporarily in the United States, those studying in the United States who maintained a residence abroad, and some foreign workers. Exceptions included people entering the United States for lawful hunting or sporting purposes, official representatives of a foreign government, and foreign law enforcement officers from friendly foreign governments who entered the United States on official business. In addition, the U.S. attorney general had the authority to waive the prohibition on submission of a petition by an alien.

INTERSTATE SALES . Under the 1968 act it was unlawful to sell or deliver a firearm to anyone from another state, except for long guns (rifles and shotguns), which could be sold to residents of contiguous (bordering) states with laws allowing such sales. Interstate over-the-counter sales of long guns by those licensed to sell them became legal as long as the laws of both states permitted them.

In May 2006 Representative Phil Gingrey (1942–; R-GA) introduced the Firearms Commerce Modernization

Act (H.R. 1384). This bill would allow individuals to buy handguns, as well as rifles or shotguns, from licensed dealers in another state, subject to a background check requirement. This bill never became law. (See Representative Gingrey's testimony in Chapter 10.)

PURCHASING FIREARMS AND AMMUNITION . The Gun Control Act of 1968 stated that firearms and ammunition could be purchased only on the premises of a federal firearms licensee and that FFLs were required to record all firearms and ammunition transactions. The 1986 law made the purchase of ammunition and gun components by mail legal, as it had been before the Gun Control Act of 1968. Under the new law, firearms dealers were required to keep records only of armor-piercing ammunition sales. Establishments selling only ammunition (no firearms) would not have to be licensed, thus allowing stores that previously may not have carried ammunition because of licensing requirements to do so.

The Treasury and General Government Appropriations Act of 2000 amended the Gun Control Act to require that former firearms owners who pawned their weapon must undergo a background check when they sought to redeem the weapon.

CARRYING A GUN BETWEEN JURISDICTIONS . The 1968 act did not address the effects of state and local regulations concerning intrastate (within a state) transportation of weapons. The 1986 act made it legal to transport any legally owned gun through a jurisdiction where it would otherwise be illegal, provided the possession and transporting of the weapon were legal at the point of origin and the point of destination. In addition, the gun needed to be unloaded and placed in a locked container or in the trunk of a vehicle during transport.

FEDERAL CRIMES . The 1968 legislation prohibited the carrying or use of a firearm during or in relation to a federal crime of violence. In addition, anyone convicted of such a crime would be subject to a minimum penalty over and above any sentence received for the primary offense. The 1986 act added serious drug offenses to the category of prohibited crimes, and it doubled the existing penalty for use of a machine gun or a gun equipped with a silencer.

FORFEITURE OF FIREARMS AND AMMUNITION. Before 1986 any firearm or ammunition involved in, used, or intended to be used in violation of the Gun Control Act or other federal criminal law could be taken away from the gun owner. However, under the Gun Control Act of 1986, forfeiture is no longer automatic. For some offenses, a willful element must be demonstrated; for others, “knowledge” of an offense is enough. In the case of a firearm being “intended for use” in a violation, “clear and convincing evidence” of the intent must be shown. In addition, only specified crimes now justify forfeiture, including crimes of violence, drug-related offenses, and certain violations of the Gun Control Act. In all cases forfeiture proceedings must begin within 120 days of seizure, and the court will award attorney fees to the owner if the owner wins the case.

CRIMINAL PENALTIES. The 1968 law stated that a demonstration of “willfulness” was not needed as an element of proof of violation of any provision of the act, whereas the Gun Control Act of 1986 required proof of “willful” violations and/or “knowing” violations to prosecute. The 1986 act also reduced licensee record-keeping violations from felonies to misdemeanors.

LEGAL DISABILITIES. Under the 1968 law, any person who had been convicted of a crime and sentenced to prison for more than one year was restricted from shipping, transporting, or receiving a firearm and could not be granted an FFL. State pardons could not erase the conviction for federal purposes. However, a convicted felon could make a special request to the secretary of the treasury to be allowed to possess a firearm. The secretary of the treasury had to certify that the possession of a firearm by the convicted felon was not contrary to public interest and safety and that the applicant did not commit a crime involving a firearm or violate federal gun control laws.

Under the 1986 act, however, state pardons can erase convictions for federal purposes, unless the person is specifically denied the right to possess or receive firearms. The act allows those who violated the law to appeal—even those whose crime involved the use of a firearm or the violation of federal gun control laws.

MACHINE GUN FREEZE. The National Firearms Act of 1934 imposed production and transfer taxes, as well as registration requirements, on firearms typically associated with criminal activity. These restrictions applied specifically to machine guns (automatic weapons that discharge many bullets with one pull of the trigger); destructive devices such as bombs, missiles, and grenades; and firearm silencers. The definition of a machine gun included “any combination of parts designed and intended for use in converting a weapon to a machine gun.”

The Firearms Owners’ Protection Act of 1986 made it “unlawful for any person to transfer or possess a machine gun” unless it was manufactured and legally owned before May 19, 1986. In addition, the definition was revised to include any combination of parts “designed and intended solely and exclusively for use in conversion.” By refusing to review a lower court's decision in Farmer v. Higgins (907 F.2d 1041 [1990]), the U.S. Supreme Court upheld the ban on machine gun ownership.

THE LAW ENFORCEMENT OFFICERS’ PROTECTION ACT OF 1986

The Law Enforcement Officers’ Protection Act of 1986 also amended the 1968 Gun Control Act. This act banned the manufacture or importation of certain varieties

of armor-piercing ammunition. Called “cop-killers,” these bullets are capable of penetrating police officers’ bullet-proof vests. The law defined the banned ammunition as handgun bullets made of specific hard metals: tungsten alloys, steel, brass, bronze, iron, beryllium copper, or depleted uranium. (Standard ammunition is made from lead.) It also decreed that the licenses of dealers who knowingly sold such ammunition should be revoked.

In 1994 the Violent Crime Control Act broadened the ban to include other metal-alloy ammunition. Both laws limit the sale of such bullets to the U.S. military or to the police.

The legislation banning armor-piercing ammunition was politically significant because it polarized two traditionally allied groups: police officers and the National Rifle Association of America (NRA). The NRA had long assisted in training police officers in marksmanship. The police saw the ammunition ban as a personal issue, because the cop-killer bullets were intended to harm them. A police lobby, the Law Enforcement Steering Committee (LESC), was formed to get this and other legislation passed. The NRA opposed the legislation as originally written because, it said, the legislation would have also banned most of the types of ammunition used for hunting and target shooting. The final version of the legislation exempted bullets made for rifles and sporting purposes.

THE UNDETECTABLE FIREARMS ACT OF 1988

Highly publicized aircraft hijackings in the 1980s led to the passage of the Undetectable Firearms Act of 1988, also known as the “plastic gun” law. It banned the manufacture, import, sale, transfer, or possession of a plastic firearm. The act also stated: “If the major parts of the firearms do not permit an accurate X-ray picture of the gun's shape, the firearm is [also defined as] a plastic firearm, even if the firearm contains more than 3.7 ounces of electromagnetically detectable metal.” Even though no such plastic firearms were yet being manufactured in the United States, Congress began hearings in 1986 to determine if such weapons represented a danger to airline passengers if used by terrorists.

The NRA called the proposed legislation unnecessary and the first step toward a total ban on handguns. The lobbying efforts of police officers on the LESC convinced the U.S. attorney general Edwin Meese III (1931–) that plastic weapons posed an unacceptable hazard to public safety and that this bill was a necessary piece of legislation. The ban was renewed and made permanent in December 2003.

THE “TOY GUN LAW,” 1988

A law requiring that a “toy, look-alike, or imitation firearm shall have as an integral part, permanently affixed, a blaze orange plug inserted in the barrel of such toy, look-alike, or imitation firearm” was passed as Section Four of the Federal Energy Management Improvement Act of 1988. The law provided for alternative markings if the orange plug could not be used.

Ending Sales of Look-Alike Toy Guns

By November 1994 three major toy retailers announced that they would stop selling toy guns designed to look like real guns, because the look-alikes had led to tragic consequences. In two separate incidents, a thirteen-year-old boy was shot and killed and a sixteen-year-old boy was seriously wounded when police mistook their look-alike toy guns for real weapons. Kay-Bee Toy Stores, Toys “R” Us, and Bradlees decided to stop selling these guns, even though the sale of them had generated almost $250 million.

A report by the New York Police Department showed that realistic-looking toy guns had been used in 534 felonies up until October 1994. In 2004, after a city council investigation found that 20% of all toy and discount stores in the city were still selling the realistic-looking toy guns, the New York City mayor Michael Bloomberg (1942–) announced a renewed effort to eliminate the guns from local stores’ shelves. In 2005 the retail stores CVS and Kmart were levied large fines for selling dark-colored toy guns. In April 2008 the chain store Party City was accused by the New York City Department of Consumer Affairs of having hundreds of dark-colored, realistic-looking toy guns on its store shelves for sale. An investigation was ongoing as of June 2008.

THE GUN-FREE SCHOOL ZONES ACT, 1990

Congressional passage of the Gun-Free School Zones Act, which was part of the Crime Control Act of 1990, stipulated that it was unlawful for anyone to knowingly possess firearms in school zones. Considered quite strict, the law made it illegal to carry even unloaded firearms in an unlocked case or bag while on public sidewalks in designated school zones. This applied to the sidewalk in front of the firearm owner's residence as well, if that portion of the walkway was within 1,000 feet (305 m) of the grounds of any public or private school—whether or not school was in session. Gun control advocates thought the legislation was needed to send a message to teachers and law enforcement personnel that the federal government was behind them in the effort to get guns out of schools.

Gun rights advocates condemned this attempt to restrict their rights. The act was challenged as unconstitutional and was struck down by the Supreme Court in United States v. Lopez (514 U.S. 549 [1995]). The Court upheld state and local authority in the regulation of

schools and ruled that Congress had exceeded its power in passing the original act. In response to the Court's ruling, Congress approved a slightly revised version of the Gun-Free School Zones Act in 1996. The focus of the act was changed from possessing a firearm in a school zone to possessing a firearm “that has moved in or that otherwise affects interstate or foreign commerce” in a school zone.

THE BRADY HANDGUN VIOLENCE PREVENTION ACT, 1993

In 1981 a mentally disturbed young man named John Hinckley Jr. (1955–)—armed with a handgun—shot and seriously wounded the presidential press secretary James B. Brady (1939–) during an assassination attempt on President Ronald Reagan (1911–2004). After the attempt, Hinckley was quickly apprehended, placed in custody, tried, and found not guilty by reason of insanity. As of June 2008, he remained confined in a mental facility. His violent act was the impetus behind the Brady Handgun Violence Prevention Act, which was passed by Congress in November 1993 after years of debate.

“Interim Brady”: The Five-Day Waiting Period

The Brady Handgun Violence Prevention Act (commonly referred to as the Brady law), which went into effect February 28, 1994, established a national five-day waiting period for a person to purchase a handgun. This waiting period allowed time for local law enforcement officers to conduct background checks on handgun purchasers for mental instability or criminal records. The waiting time also provided a cooling-off period to reduce gun-related crimes of passion. Provisions for a waiting period and for background checks by local law enforcement officials were interim measures of the Brady law that could be dropped after a computerized national instant criminal identification system was developed. Such a system became operational in the United States in 1998.

Before 1998, within the first day of the waiting period, licensed firearms dealers were required to send a copy of the purchaser's sworn statement to the chief law enforcement officer where the purchaser resided. The purchaser was asked many questions, including whether he or she was a fugitive from justice, addicted to drugs, illegally in the United States, or convicted of a crime. The dealer could complete the sale after five business days unless the police notified the dealer that the sale would violate the law. It also required police to respond within twenty business days to any request for a written explanation of a request denial. If the sale was not denied, local law enforcement officials were required to destroy the sworn statement and any other record of the transaction within twenty business days.

In 1997 the Brady law's interim provision requiring law enforcement officers to conduct background checks was ruled unconstitutional by the Supreme Court; consequently, gun purchasers were no longer required to fill out the Brady Handgun Purchase Form. However, the five-day waiting period remained in place until November 30, 1998, when it expired. It was replaced by a mandatory computerized criminal background check by the National Instant Check System (NICS) before any firearm purchase from a federally licensed firearms dealer.

People Who May Not Purchase Firearms under the Brady Law

The Brady law prohibits firearms sales to any person who:

• Is charged with a crime punishable by imprisonment for more than one year or has been convicted of such a crime
• Is a fugitive from justice
• Is an unlawful user of a controlled substance
• Has been judged mentally ill or has been committed to a mental institution
• Has renounced U.S. citizenship
• Is subject to a court order restraining him or her from harassing, stalking, or threatening an intimate partner or a child
• Has been convicted of domestic violence
• Is an illegal alien
• Has been dishonorably discharged from the military

“PERMANENT BRADY”: THE NICS

On November 30, 1998, the five-day waiting period for handgun purchasers was replaced by NICS, which was designed to quickly screen purchasers of both handguns and long guns (rifles and shotguns). As a result, all federally licensed firearms dealers must verify the identity of a customer and receive authorization for the sale from the NICS, which usually takes less than a minute. This is a permanent provision of the Brady law.

How does the NICS work? Under the NICS, FFLs call a toll-free telephone number and provide information on prospective firearms buyers. The Federal Bureau of Investigation (FBI) checks the NICS, which consists of three databases containing more than forty million criminal history records and other prohibiting records (e.g., a history of drug addiction). In 2007 the system conducted over 11.1 million background checks, the largest number since the system was instituted. (See Figure 3.1.) By March 31, 2008, the NICS had processed 86.2 million background checks. From 2000 through 2005 the number of background checks conducted each year remained

relatively constant at 10% of the total conducted. The number increased to 12% in 2006 and to 13% in 2007. The summer months generate the lowest number of checks until August, and then the number of checks increases steadily through December.

In many states some or all inquiries are directed to the state's designated point of contact (POC), which will then conduct a background check through the NICS. In states without a designated POC, gun dealers contact the FBI directly, and the FBI runs the check through the NICS. Figure 3.2 shows the components of the national firearm check system and how the NICS fits into the system. (The firearm transferee is the person buying the gun. The federal firearm licensee is the person licensed to sell the gun.) The FFL must initiate a background check on the person wanting to buy a gun. Depending on the state, the FFL does this by contacting either the NICS directly or a state-designated POC. In these POC states, the states act as intermediaries between the FFLs and the NICS.

As of December 31, 2005, the NICS Operations Center provided full service to federal firearms licensees

in twenty-nine states, five territories, and one district. (See Figure 3.3.) Thirteen states acted as “full” POC states and conducted their own background checks via the NICS. The rest of the states were “partial” POC states, serving as intermediaries between the FFLs and the NICS only for certain types of guns.

Table 3.1 lists the checking agencies (FBI or state POC checking agency) for each state at the end of 2006 for handguns, long guns, and pawn redemptions. A purchase check refers to the NICS. Under the NICS, as previously described, the agency responds immediately or as soon as possible. This is the minimum check that is required by federal law. However, some states have their own background checking systems and permit statutes besides the NICS. The Bureau of Justice Statistics (BJS) indicates in Background Checks for Firearm Transfers, 2006, Statistical Tables (March 2008, http://www.ojp.us doj.gov/bjs/pub/html/bcft06st/table/bcft06st02.htm) that purchase permit systems “require a buyer to obtain, after a background check, a government-issued document such as a permit, license, or identification card that must be presented to a seller in order to receive a firearm.” Checks under these systems may take up to thirty days. The BJS also explains that an “exempt carry permit is a state concealed weapons permit, issued after a background check, that exempts the holder from a new check at the time of purchase under an ATF ruling or state law.” Exempt carry permits usually expire after a certain length of time.

The NICS must always take place when a person wants to purchase a firearm. When the NICS is initiated, one or more of the following things can happen:

• No disqualifying information is found (the search takes thirty seconds or less) and the transaction can proceed immediately.
• The transaction is briefly delayed because it is necessary for the FBI to look outside the NICS for data.
• The FBI contacts state or local law enforcement for information because it is not possible to conduct an NICS check electronically. The FBI has three business days to complete its background check. If the check cannot be completed in three days, the transaction may still occur, even though potentially disqualifying information might exist in the NICS. This is called a default proceed transaction. The dealer does not, however, have to complete the sale, and the FBI will continue to review the case for two more weeks. If disqualifying information is discovered after three business days, the FBI then contacts the dealer to find out whether the gun was transferred (sold) under the default proceed rule.
• The dealer may transfer a gun to a prohibited person in a default proceed situation. The FBI may later notify local law enforcement agencies and the ATF in an attempt to retrieve the gun and take appropriate action, if any, against the buyer.
• The NICS check returns disqualifying information on the buyer and the transfer is denied.

Figure 3.4 shows the reasons the NICS denies (disqualifies) gun transfers. Of the offenses cited in the criminal histories of applicants, felony convictions represent the highest proportion in these federal (FBI) denials. Other reasons for rejection due to criminal record include substance abuse and crimes of domestic violence. Among the noncriminal reasons for rejection of a firearm purchase application are status as an illegal alien, a dishonorable discharge from the U.S. armed forces, and an individual's renunciation of U.S. citizenship.

Default proceed transactions are a matter of particular concern because potentially disqualifying information on a gun buyer may well exist. This sometimes occurs when information about a person's recent arrest or conviction has not been entered into the national database.

Figure 3.5 shows an annual comparison of NICS activity for 2003 through 2005. This graph of activity, along with the similar graph shown in Figure 3.1, demonstrates that the system has been used on a predictable

and consistent basis. Peak season for background checks is September through December, the hunting and holiday seasons. In National Instant Criminal Background Check System (NICS): Operational Report 2003–2004 (January 2005, http://www.fbi.gov/hq/cjisd/nics/ops_report2003-2004/ ops_report2003-2004.pdf), the FBI notes that during the 2001 peak season, especially after the September 11, 2001, terrorist attacks on the United States, NICS transactions were substantially higher than in previous and subsequent years.

Comparing Permit Denials under Interim and Permanent Brady Periods

Table 3.2 presents permit rejection data for 1994 through 2006. The table divides the information into the rejection rates during the “interim period” (1994–98; an average rate of 2.4%) and the “permanent Brady” period (1998–2006; an average rate of 1.8%). The interim period in Table 3.2 includes the years of the five-day waiting period, and the permanent Brady period includes the years from the inception of the NICS to 2006. In the

permanent Brady years, the denial rate was initially close to that of the Brady interim period at 2.2% in 1998 and 2.4% in 1999, but the rate fell steadily and remained at 1.6% from 2003 through 2006.

Permit Denials under Permanent Brady

From the establishment of the Brady law through 2006, 78.5 million applications for firearm transfers were subjected to background checks. (See Table 3.2.) About 1.5 million applications were denied, with the primary reason being a felony indictment or conviction. Table 3.3 shows the categories of denial data from 1999 through 2006 and for 2006 alone. It also shows denials by checking agency. The data represent attempted purchases from licensed firearms dealers only; they do not indicate whether rejected purchasers later obtained a gun through other legal or illegal means, or how many applications were rejected because of inaccurate information in the files of background checkers.

From the beginning of December 1998 through 2006, 65.8 million checks were processed—28.6 million through state and local agencies and 37.2 million directly through the FBI NICS section. (See Table 3.4.) Denial rates were lower in 2006 than the average denial rates from December 1998 through 2006 except for purchase permits issued by state and local agencies. State regulations to obtain a purchase permit must be followed even with the NICS check, because NICS checks do not override state laws. All state regulations must be followed.

Impact of the Brady Law on Gun Violence

Philip J. Cook and Jens Ludwig examine in “The Effects of the Brady Act on Gun Violence” (Bernard E. Harcourt, ed., Guns, Crime, and Punishment in America, 2003) the impact of the Brady law on gun violence. They conclude, “We do not find evidence that the background-check requirement of the Brady Act has reduced lethal violence or affected the choice of weapons by killers. The Brady Act may have reduced firearm suicides among older Americans, the population at highest risk for suicide,

although this decline is at least partially offset by some increase in non-gun suicides.…Our analysis of the Brady Act highlights the difficulty of reducing gun violence in America through regulation of the primary market without some change in policy toward secondary-market transfers.”

Controversies over Brady Provisions

Major ongoing Brady law controversies center on four issues:

1. The elimination of the five-day waiting period, beginning November 30, 1998
2. The length of time the FBI can retain records of gun transactions
3. The provision of the law that exempts certain people from background checks
4. The regulation of sales at gun shows (the “gun-show loophole”)

ELIMINATION OF THE WAITING PERIOD. The elimination of the waiting period is probably the thorniest issue connected to the Brady law. Gun control advocates support legislation to establish a minimum three-day waiting period. Gun rights advocates claim that twenty-four hours is adequate. Gun control advocates maintain that a longer waiting period allows local police to search records that might not be in the NICS and that a waiting requirement of at least three days allows a “cooling-off” period, thereby preventing many crimes of passion. They worry that the speed of the background checks may help some of the targets to evade the Brady law. This could happen if state and local records have not made it into the national database; for example, the NICS may miss individuals who have only recently been convicted of crimes. However, some states have mandatory waiting periods that must be respected before a person can purchase a firearm.

RETENTION OF RECORDS. Soon after the NICS started operations in 1998, the NRA filed a lawsuit arguing, among other things, that records relating to a background check should be immediately destroyed to prevent the formation of a central registry of gun buyers—a registry the NRA considers an invasion of privacy. The Department of Justice noted that the records would be kept, generally, for ninety days but for no more than six months to conduct audits to make sure gun dealers were following the law and to check for identity fraud and other abuses of the system. In July 2000 the federal court of appeals in the District of Columbia upheld in NRA v. Reno (No. 99-5270) the legality of the regulation, allowing the FBI to conduct periodic security audits of NICS records. In June 2001 the Supreme Court declined to hear the NRA's appeal of that decision, thereby allowing the lower court's decision to stand.

Only days later U.S. attorney general John D. Ash-croft (1942–), a gun rights advocate and the head of the Department of Justice, proposed destroying the critical NICS audit records within one business day. Congress asked the U.S. General Accounting Office (GAO; now the U.S. Government Accountability Office) to investigate the implications of such a quick destruction of records. In July 2002 the GAO published Gun Control: Potential Effects of Next-Day Destruction of NICS Background Check Records (http://www.gao.gov/new.items/ d02653.pdf). The GAO stated that 97% of the guns retrieved from illegal purchasers who had been incorrectly approved to buy guns from July 2001 to January 2002 would not have been detected under the attorney general's one-day destruction plan.

Two years later, under an amendment sponsored by Representative Todd Tiahrt (1951–; R-KS), the FBI was mandated to destroy the NICS audit records of a gun sale within twenty-four hours of allowing the gun sale to proceed. The amendment was approved as part of legislation that provided funding for the Departments of

Commerce, Justice, and State and made it illegal for the agency to report on sales of multiple handguns and gun trace statistics.

In April 2008 Senator Frank Lautenberg (1924–; DNJ) introduced the Preserving Records of Terrorist and Criminal Transactions Act of 2008 (S. 2935) to the U.S. Senate. This bill would require the FBI to retain records of approved firearm transactions for at least 180 days. If a background check revealed someone suspected of terrorist activity, the FBI would be required to retain the record for at least ten years.

EXEMPTION FROM BACKGROUND CHECKS. The Brady law exempts gun buyers from NICS background checks if they have a state permit to carry a concealed weapon (known as right-to-carry permits or shall-issue permits), if they have a state license to possess or purchase firearms, or if they have a firearms identification card exempt from NICS. The NRA's Institute for Legislative Action lists in “Compendium of State Firearms Laws” (February 2007, http://www.nraila.org/media/misc/compendium.htm) state firearms laws and whether they allow NICS exemptions. (See Table 3.5.)

As of 2006 thirty-six states issued permits to carry a concealed handgun. (See Figure 3.6.) Two states (Vermont and Alaska) do not require a permit for adults who are legally allowed to possess a firearm. However,

Alaska issues permits for reciprocity among shall-issue states but does not require them in Alaska. Alabama, Connecticut, and Iowa have statutes that are not completely shall-issue; these states typically issue permits to carry concealed firearms to people who would qualify for a permit in a shall-issue state. Ten states generally do not allow people to carry concealed handguns in public areas or allow only limited permits.

GUN SHOW REGULATION . The background-check requirement on potential gun buyers applies to federally licensed gun dealers, manufacturers and importers, and pawnshop brokers. People who are not gun dealers and cannot be described as “engaged in the business” of selling firearms do not have to be licensed by the federal government to sell guns, nor do they need to perform background checks on their buyers. This means that someone who is not a gun dealer but who offers a gun or guns for sale at gun shows or flea markets, through classified ads, or through personal sale is not subject to the Brady law. Legislation was introduced in Congress in 2001, 2002, 2004, and 2007 seeking to close this gun-show loophole, but the legislation did not advance. Senators Lautenberg and John Reed (1949–; D-RI) introduced such legislation again in January 2008 (S. 2577). According to Ben DuBose, in “Senators Aim to Close Gun-Show Loophole” (Los Angeles Times, February 1, 2008), as of February 2008 fifteen states had closed the gun-show loophole and now require background checks for gun purchases at gun shows.

THE VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994

Banning Assault Weapons

Federal laws have banned the possession of automatic-fire guns (machine guns) since 1934 and their importation and manufacture for private use since 1986. A machine gun

shoots a stream of bullets when the trigger is pulled, instead of a single shot.

In 1989 a semiautomatic firearm was used by Patrick Purdy to kill five children at an elementary school in Stockton, California. This type of firearm shoots only one bullet each time the trigger is pulled, but the shooter does not have to do anything to “ready” the next shot; therefore, the shooter can fire as fast as he or she can pull the trigger. Some semiautomatic guns can be converted to automatic firearms.

In response to Purdy's crime, several states passed laws banning the sale and possession of semiautomatic weapons. It also led to the passage of the Violent Crime Control and Law Enforcement Act of 1994. This act banned the manufacture, transfer, or possession of semi-automatic firearms but did not outlaw such firearms lawfully possessed before its enactment.

According to the act, banned weapons are defined as guns with a detachable magazine (ammunition holder) and two or more of the following: a bayonet lug (a metal mount for a thrusting knife), a flash suppressor, a protruding pistol grip, a folding stock (which allows the gun to be stored in a smaller space), and a threaded muzzle (used to attach other devices). The act also banned the making or sale of “large-capacity” ammunition magazines capable of holding more than ten rounds (bullets). The federal law listed nineteen types of banned semiautomatic firearms, including the Uzi, the TEC-9, the Street Sweeper, and their copycats, all of which are often referred to as “assault weapons.” The definition of this term is not clear-cut, but an assault weapon is most frequently defined as a semiautomatic rifle,

shotgun, or pistol with a combination of any or all the characteristics and accessories banned by the Violent Crime Control Act.

The act exempted at least 650 different sporting rifles. It was legal under this law to buy the accessories to convert these semiautomatic guns to automatic firearms, but the conversion itself was against federal law.

Even though the Violent Crime Control Act had several different provisions pertaining to guns, the focus of the debate over its passage was a proposed ban on semiautomatic military-style weapons. Pro-gun forces repeatedly stressed that the use of the term assault weapons to describe the weapons banned under the law was misleading. They complained that the legislation was intended to ban military-style weapons but actually encompassed some ordinary rifles used in hunting and target shooting—weapons that are seldom used to commit crimes.

The semiautomatic assault weapons ban expired on September 13, 2004, despite broad support for its renewal; as of June 2008 it had not been renewed. Chapter 8 includes a discussion of public opinion regarding the ban on assault weapons. Chapter 9 offers congressional testimony about renewing the assault weapons ban.

Banning Juveniles from Possessing Handguns or Ammunition

The 1994 Violent Crime Control Act also prohibited the possession of a handgun or ammunition by a juvenile under eighteen years of age. In addition, it prohibited the sale or private transfer of a handgun or ammunition to such a juvenile. Exemptions included cases in which the juvenile temporarily used the handgun for employment, with the permission of the owner, such as in ranching or farming where predatory animals often kill livestock. Other exemptions included using a handgun for target practice, hunting, or a course of instruction on the safe and lawful use of a handgun. Minors who were members of the U.S. armed forces or the National Guard were also exempt from this regulation.

Implementing New Regulations for Obtaining FFLs

Even before the changes that came when the 1994 Violent Crime Control Act was implemented, the ATF realized that it needed to strengthen the procedures for obtaining an FFL. Between late 1992 and early 1993 news stories, such as Josh Sugarmann's “Gun Market Is Wide Open in America” (Christian Science Monitor, April 23, 1993), revealed just how easy it was to get an FFL. The charge for a three-year license was a mere $30, and the only check on the buyer was a short computer criminal history query. As a result of the publicity, the ATF indicates in Firearms Commerce in the United States 2001/2002 (April 2002) that the number of FFL applications and FFLs issued per year rose dramatically, peaking in 1993. In that year there were 283,193 active federal firearms licensees.

The ATF took steps to curtail the number of active FFLs. The Brady law raised the fee to $200 for a three-year license and $90 for a three-year renewal. In March 1994 the ATF sent out new application forms requiring each applicant to submit fingerprint cards and a photograph. These new regulations, as well as an extra step to ensure that the person applying for an FFL complied with state and local laws, was included as part of the Violent Crime Control Act. The act also required each licensee to report the theft or loss of a firearm within forty-eight hours.

In Federal Firearms Licensees: Various Factors Have Contributed to the Decline in the Number of Dealers (March 1996, http://www.gao.gov/archive/1996/gg96078.pdf), the GAO states that since 1994, due to the revisions in the law, the number of licensed firearms dealers and the number of license applications dropped sharply. According to the ATF, in Firearms Commerce in the United States 2001/2002, that decline is reflected in the number of active FFLs in 1993 (283,193), compared to 1996 (124,286). However, the decline appeared to level off beginning in 1997, with the overall numbers of licenses stabilizing

between fiscal years 1997 (106,710) and 2001 (104,840).

Figure 3.7 shows the number of active FFLs each year from 2002 to 2007. In 2005 the total active FFLs equaled the total active FFLs in 1997, and in 2006 and 2007 the number of active FFLs increased. In 2007 there were 109,643 active FFLs. It is interesting to note, however, that the number of active Type 3 FFLs (collector's licenses) has increased since 2002, whereas the number of active commercial FFLs has decreased.

There are eleven types of FFLs, including the Type 3—collector of curio and relic firearms license. Many of the types of FFLs are specific to importers and manufacturers of firearms, their components, and their ammunition. The Type 1 FFL is for a dealer or gunsmith, and the Type 2 FFL is for a pawnbroker who deals in guns.

The gun control education organization Violence Policy Center (VPC) monitors FFL data and reports on the number of Type 1 licenses issued. The VPC reports in An Analysis of the Decline in Gun Dealers: 1994 to 2007 (August 2007, http://www.vpc.org/studies/dealers07.pdf) that on a national scale, the number of Type 1 FFLs dropped 79% between 1994 and 2007. California experienced

the greatest percentage drop in dealers (89%) and the largest decrease in actual numbers of dealers, dropping from 20,148 in 1994 to 2,120 in 2007. (See Table 3.6.) The VPC also notes that in 1992 the United States had more gun dealers than gas stations, but by 2007 only five states did: Alaska, Idaho, Montana, Oregon, and Wyoming.

Other Provisions of the Violent Crime Control Act

The Violent Crime Control Act imposed stiffer penalties for using a gun during a violent crime or drug felony. Amendments to the act and policies enacted by the ATF prohibited the possession of firearms by people guilty of domestic abuse. It also tightened rules and regulations for firearms dealers.

GUN LAWS PASSED IN RESPONSE TO SEPTEMBER 11, 2001

Some new gun laws were passed in the wake of the September 11, 2001, terrorist attacks on the United States. In November 2002 Congress passed the Arming Pilots against Terrorism Act, which allows airline pilots to carry

handguns in the cockpit. The Law Enforcement Officers Safety Act, signed into law in 2004, allows off-duty or retired police officers with firearms training to travel the country with a concealed weapon.

GUN LAWS PASSED IN RESPONSE TO THE VIRGINIA TECH MASSACRE

The NICS Improvement Amendments Act of 2007 was signed into law by President George W. Bush (1946–) in January 2008. This legislation mandates that information that would prohibit individuals from possessing or purchasing firearms be transmitted from state and local governments and federal agencies to the NICS. States would receive financial assistance to do this work and would receive penalties if they did not do it.

The law was enacted in response to Seung-Hui Cho's (1984–2007) shooting rampage on April 16, 2007, at Virginia Polytechnic Institute and State University (Virginia Tech) in Blacksburg, Virginia. Cho had been ordered by a judge to receive mental health treatment, but that information was never entered into the NICS database. It would have disqualified Cho from purchasing the two guns he used to kill thirty-two students and teachers, and then himself. Even though this law had been proposed in Congress since 2002, it never became law until after the Virginia Tech tragedy.

STATE FIREARMS CONTROL LAWS

The Brady Campaign to Prevent Gun Violence annually publishes state “report cards” that rank states according to the strength or weakness of their gun laws. The state scorecard rankings for 2007 are shown in Table 3.7. Each state can earn up to one hundred points, the highest and best number. States earn points based on their gun control laws. States with many and strong comprehensive gun control laws earn the most points. States with few effective gun control laws earn low scores.

Table 3.7 shows that the states having the most effective gun control laws, according to the Brady Campaign evaluation, were (from highest to lowest) California, New Jersey, Connecticut, Massachusetts, Maryland, New York, Rhode Island, and Hawaii. The lowest-ranked states were Kentucky and Oklahoma. Nearly three-quarters (74%) of states scored under twenty points.

In “America's Gun Laws: How Did Your State Score?7#x201D; (February 5, 2008, http://www.bradycampaign.org/blog/2008/02/05/state-scorecards/), Paul Helmke (1948–), the president of the Brady Campaign, lauds California, the state that ranked number one in the evaluation. He explains that “ranking first in the nation, [California] has laws such as mandatory background checks on all firearm purchases, a “one-handgun-a-month” law to stop bulk purchases that feed the illegal gun market, and other effective

laws that help prevent gun trafficking. What's more, California further strengthened its laws last year by enacting legislation to help police identify crime guns by using new “microstamping” technology. This legislation gives law enforcement a powerful investigative tool to solve more gun crimes and apprehend more armed criminals and gang members by identifying a gun used in crime—even without the gun.’

The Institute for Legislative Action lists in “Compendium of State Firearms Laws” state laws and constitutional

provisions relating to the purchase, ownership, and use of firearms as of February 2007. (See Table 3.5.) Most states have laws prohibiting the possession of explosive weapons, machine guns, and short-barrel firearms. Some states, such as Texas and Vermont, have outlawed the use of silencers.

Laws differ dramatically from state to state and just as sharply from county to county and town to town. In fact, state laws sometimes have little bearing on local gun regulations. For example, New York state laws, by themselves, do not tell the whole story of the firearms restrictions placed on someone living in New York City, which has additional restrictions on the use and possession of guns.

To illustrate, Mayor Bloomberg announced in July 2006 four new laws to address the city's problem of illegal guns. Bloomberg worked with mayors from other cities and towns as well to address this problem. In April 2006 Bloomberg, in partnership with the Boston mayor Tom Menino (1942–), met with thirteen other mayors to work together on reducing gun crime in their cities using legal, political, and media strategies. Diane Card-well reports in “Bloomberg Cast as Enemy No. 1 of Gun Rights” (New York Times, June 4, 2007) that by June 2007 the coalition called Mayors against Illegal Guns consisted of 225 leaders of towns and cities across the United States. An example of the coalition's work, according to Jeremy W. Peters in “Mayors and Wal-Mart Back Gun Sales Plan” (New York Times, April 15, 2008), is the April 2008 agreement with Wal-Mart to track the sale of firearms more closely, an agreement that would not only help the mayors fight gun crime in their cities but also in their states and even in the nation.

Even though gun laws vary among states, all states had a waiting period for handgun purchases in the first five years after passage of the 1993 interim Brady law—they either complied with the federal waiting period of five business days or had alternative requirements. After interim Brady and as of February 2007 all states had instant background checks, but some had waiting periods as well. Furthermore, fifteen states plus the District of Columbia required permits or licenses to purchase handguns and five states and the District of Columbia required permits for long guns. (See those states designated by an X in Table 3.5.)

Registration, which is not required by federal law, is a record of the transfer or ownership of a specific firearm. As of February 2007, only five states (California, Hawaii, Illinois, Michigan, and New York) and the District of Columbia required registration for handguns. (See Table 3.5.) Six states and the District of Columbia required registration for long guns, but some cities and towns required registration of handguns and long guns.

Banning Firearms

As of February 2007, eight states and the District of Columbia had laws prohibiting certain weapons. (See Table 3.5.) In some states, various local jurisdictions prohibited certain firearms.

Since 1977 residents of the District of Columbia have not been able to acquire handguns legally. However, handguns that were registered before the ban could be reregistered. The District of Columbia also banned semi-automatic firearms with magazines capable of holding more than twelve rounds. In 2004 U.S. House of Representatives Republicans of the 108th Congress proposed legislation to repeal most of the District of Columbia's gun control laws. The District of Columbia Personal Protection Act was passed in the House but died in the Senate. The bill was introduced in the 109th Congress, but it died in both chambers. The most recent version is H.R. 1399, which was introduced into the House on March 8, 2007. As of June 2008, the bill had not made it out of subcommittee and appeared to be dead.

Concealed Weapons

All states and the District of Columbia have some type of concealed-carry laws. As of February 2007, thirty-five states had a shall-issue permit system, which makes it easy for almost anyone to carry a hidden gun. (See those states designated by an R in Table 3.5.) Three states had a permissive may-issue system (designated with an M), and eight states had a more restrictive may-issue system (designated by an L); both are based on the discretion of local authorities. In four states and the District of Columbia (designated by a D), concealed carrying is prohibited.

Table 3.8 shows state policies regarding concealed weapons permits relative to the Brady background check. In Alaska, for example, concealed weapons permits qualify as alternatives to the background check requirements of the Brady law. A concealed weapons permit must be valid under state law to qualify as an alternative to a Brady check. Regardless of any dates shown on the chart, concealed weapons permits qualify as alternatives to the background check for no more than five years from the date of issuance.

Carrying Firearms Openly

Even though few people exercise the option to openly carry firearms, twenty-six states and the District of Columbia had laws prohibiting this action as of February 2007. (See states designated by an X in Table 3.5.) In addition, local ordinances prohibited open carrying in parts of Kansas and Ohio. In Colorado, municipalities could prohibit open carrying in government buildings if a sign was posted to that effect. Arkansas bans carrying a firearm “with a purpose to employ it as a weapon against a person.” Tennessee forbids carrying “with the intent to

go armed,” and Vermont outlaws the carrying of a firearm “with the intent or purpose of injuring another.” California prohibits the carrying of any loaded firearms.

Minors

In the 1990s Americans became concerned with what the U.S. surgeon general called an epidemic of youth

violence. In Youth Violence : A Report of the Surgeon General (January 2001, http://www.surgeongeneral.gov/library/youthviolence/default.htm), the surgeon general describes the sharply rising arrest rates of young people for violent crimes between 1983 and 1993–94. It also notes that juvenile homicides increased 65% between 1987 and 1993. The number of older juveniles killed with firearms accounted for nearly all the growth.

Even though arrest rates later declined, the surgeon general explains that some states passed tougher laws prohibiting juveniles from possessing firearms and/or punishing those who supplied them with guns. These state laws are besides the federal law that prohibits FFLs from selling or delivering handguns to people under the age of twenty-one (18 U.S.C. 922[b][l]) and the federal law that prohibits people under the age of eighteen from possessing handguns (18 U.S.C. Sect. 922[x]). Federal law allows the sale of handguns to people between the ages of eighteen and twenty-one at gun shows, unless specifically prohibited by state law.

LOCAL ORDINANCES

Many laws regulating guns are local ordinances passed by town, city, and county governments. Most of these statutes regulate the sale of weapons, restricting who can buy firearms and imposing waiting periods on firearms purchases.