Order Code IB10112
CRS Issue Brief for Congress
Received through the CRS Web
Gun Control Legislation
in the 108th Congress
Updated July 30, 2003
William J. Krouse
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress

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CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Pro/Con Debate
Gun-Related Statistics
Number of Guns
Criminal Use
Gun Violence and Youth
Suicides, Accidents, and Other Deaths
Self-defense
Recreation
Federal Regulation of Firearms
Federal Regulation of Firearm Transfers
Brady Act Implementation
Federal Firearm Prosecutions
Major Federal Firearm and Related Statutes
Possible Issues for the 108th Congress
CJS Gun Related Provisions
Gun Industry Liability
Concealed Carry
Semiautomatic Assault Weapons Ban
Brady Act Background Checks
Ballistic Imaging
Gun Shows

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Gun Control Legislation in the 108th Congress
SUMMARY
Congress continues to debate the efficacy
government.
They may also criticize the
and constitutionality of federal regulation of
notion of enhancing federal, as opposed to
firearms and ammunition. Since 1934, vari-
state, police powers. Mortality and crime
ous federal laws have been enacted to promote
statistics are often used in the gun control
such regulation. The two most significant
debate. From 1993 to 2000, firearm fatalities
federal statutes controlling firearms held by
from all causes and for all age groups
civilians are the National Firearms Act of
decreased by 28%; for juveniles, they de-
1934 and the Gun Control Act of 1968. The
creased by 53%. The number of homicides
1934 Act established strict registration re-
committed annually with a firearm by persons
quirements and a transfer tax on machine guns
in the 14- to 24-year-old age group increased
and short-barreled long guns. The 1968 Act
by 173% from 1985 to 1993, decreased by
prohibits mail-order and interstate sales of
87% from 1993 to 1999, and increased by 1%
firearms, prohibits transfers to minors and
in 2000. The increase in 2000 can be attrib-
other prohibited persons, and sets forth penal-
uted to firearms-related homicides committed
ties and licensing requirements for manufac-
by offenders in the 18 to 24-year-old age
turers, importers, and dealers. Gun control
group, a 3% increase.
advocates argue that federal regulation of
firearms curbs access by criminals, juveniles,
Several dozen gun control-related pro-
and other “high-risk” individuals. They
posals have been introduced in the 108th
contend that only federal measures can suc-
Congress that represent a variety of positions
cessfully reduce the availability of guns
on federal regulation of firearms. Only two
throughout the nation.
Some seek broad
bills have received significant legislative
policy changes such as near-prohibition of
action. One bill (H.R. 1036), as passed by the
non-police handgun ownership or the registra-
House, would prohibit lawsuits against fire-
tion of all firearm owners or firearms. They
arm manufacturers or dealers for unlawful or
assert that there is no constitutional barrier to
criminal use of their products by other per-
such measures and no significant social costs.
sons. The other bill (S. 253), reported in the
Others advocate less comprehensive policies
Senate, would exempt certain law enforce-
that they maintain would not impede owner-
ment officers from state laws prohibiting the
ship and legitimate firearm transfers.
carry of concealed handguns.
Legislative
debate and action may develop in the follow-
Opposition to federal controls is strong.
ing issue areas as well: (1) extending, making
Gun control opponents deny that federal
permanent, or allowing to expire, the semiau-
policies keep firearms out of the hands of
tomatic assault weapons ban, which sunsets
high-risk persons; rather, they argue, controls
on September 13, 2004; (2) expanding elec-
often create burdens for law- abiding citizens
tronic access to disqualifying records under
and
infringe
upon
constitutional
rights
the Brady criminal background check system;
provided by the Second Amendment. Some
(3) expanding federally-supported ballistic
argue further that widespread gun ownership
imaging to enhance law enforcement efforts;
is one of the best deterrents to crime as well as
and (4) further regulating firearm transfers at
to potential tyranny, whether by gangs or by
gun shows.
Congressional Research Service
˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
The 108th Congress is likely to continue the national debate over the efficacy and
constitutionality of further federal regulation of firearms and ammunition. Several dozen gun
control-related proposals have been introduced that represent a variety of positions on federal
regulation of firearms. Only a handful of bills have received significant legislative action.
One bill (H.R. 1036), as passed by the House, would prohibit law suits against firearm
manufacturers or dealers for unlawful or criminal use of their products by other persons. The
Senate may act on a similar measure (S. 659). The other bill (S. 253), reported in the Senate,
would exempt certain law enforcement officers from state laws prohibiting the carry of
concealed handguns. In addition, the House-passed Commerce-Justice-State appropriations
bill includes provisions that would prohibit ATF from using funding provided under this bill
to require the submission of certain transfer and inventory records from firearm licensees to
ATF, and would prohibit ATF from not renewing firearm licenses for “lack of business.”
BACKGROUND AND ANALYSIS
Pro/Con Debate
Through the years, legislative proposals to restrict the availability of firearms to the
public have raised the following questions: What restrictions on firearms are permissible
under the Constitution? Does gun control constitute crime control? Can the nation’s rates
of homicide, robbery, and assault be reduced by the stricter regulation of firearm commerce
or ownership? Would restrictions stop attacks on public figures or thwart deranged persons
and terrorists? Would household, street corner, and schoolyard disputes be less lethal if
firearms were more difficult and expensive to acquire? Would more restrictive gun control
policies have the unintended effect of impairing citizens’ means of self-defense?
In recent years, proponents of gun control legislation have often held that only federal
laws can be effective in the United States. Otherwise, they say, states with few restrictions
will continue to be sources of guns that flow illegally into restrictive states. They believe
that the Second Amendment to the Constitution, which states 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,”is being misread in today’s modern society. They argue that the
Second Amendment: (1) is now obsolete, with the presence of professional police forces; or
(2) is intended solely to guard against suppression of state militias by the central government
and therefore restricted in scope by that intent; or (3) does not guarantee a right that is
absolute, but one that can be limited by reasonable requirements. They ask why a private
citizen needs any firearm in today’s modern society that is not designed primarily for hunting
or other recognized sporting purposes.
Proponents of firearm restrictions have advocated policy changes on specific types of
firearms or components that appear to be useful primarily for criminal purposes or that pose
unusual risks to the public. Fully automatic firearms (i.e., machine guns) and short-barreled
rifles and shotguns have been subject to strict regulation since 1934. Fully automatic
firearms have been banned from private possession since 1986, except for those legally
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owned and registered with the Secretary of the Treasury on May 19, 1986. More recently,
“Saturday night specials” (loosely defined as inexpensive, small handguns), “assault
weapons,” ammunition feeding devices with capacities for more than seven rounds, and
certain ammunition have been the focus of control efforts.
Opponents of gun control vary in their positions with respect to specific forms of
control but generally hold that gun control laws do not accomplish what is intended. They
argue that it is as difficult to keep weapons from being acquired by “high risk” individuals,
even under federal laws and enforcement, as it was to stop the sale and use of liquor during
Prohibition. In their view, a more stringent federal firearm regulatory system would only
create problems for law-abiding citizens, bring mounting frustration and escalation of bans
by gun regulators, and possibly threaten citizens’ civil rights or safety. Some argue that the
low violent crime rates of other countries have nothing to do with gun control, maintaining
instead that multiple cultural differences are responsible.
Gun control opponents also reject the assumption that the only legitimate purpose of
ownership by a private citizen is recreational (i.e., hunting and target-shooting). They insist
on the continuing need of people for effective means to defend person and property, and they
point to studies that they believe show that gun possession lowers the incidence of crime.
They say that the law enforcement and criminal justice system in the United States has not
demonstrated the ability to furnish an adequate measure of public safety in all settings. Some
opponents believe further that the Second Amendment includes a right to keep arms as a
defense against potential government tyranny, pointing to examples in other countries of the
use of firearm restrictions to curb dissent and secure illegitimate government power.
The debate has been intense. To gun control advocates, the opposition is out of touch
with the times, misinterprets the Second Amendment, or is lacking in concern for the
problems of crime and violence. To gun control opponents, advocates are naive in their faith
in the power of regulation to solve social problems, bent on disarming the American citizen
for ideological or social reasons, or moved by irrational hostility to firearms and gun
enthusiasts.
Gun-Related Statistics
Number of Guns. The National Institute of Justice (NIJ) reported in a national
survey that in 1994, 44 million people, approximately 35% of households, owned 192
million firearms, 65 million of which were handguns. Seventy-four percent of those
individuals were reported to own more than one firearm. The Bureau of Alcohol, Tobacco,
and Firearms (ATF) estimates that as of the end of 1996, approximately 242 million firearms
were available for sale to or were possessed by civilians in the United States. That total
includes roughly 72 million handguns (mostly pistols, revolvers, and derringers), 76 million
rifles, and 64 million shotguns.
Most guns available for sale are produced domestically. In recent years, one to two
million handguns were manufactured each year, along with one million rifles and less than
one million shotguns. Annual imports are considerably fewer — from 200,000 to 400,000
handguns, 200,000 rifles, and 100,000 to 200,000 shotguns. Retail prices of guns vary
widely, from $50 or less for inexpensive, low-caliber handguns to more than $1,500 for
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high-quality rifles or shotguns. Data are not available on the number of “assault weapons”
in private possession or available for sale, but estimates prepared in 1989 by a firearms
expert associated with the Smithsonian Institution placed the number of such firearms at that
time in the range of one to four million, less than 3% of the number of guns estimated to
exist in the civilian market.
Criminal Use. Reports submitted by state and local law enforcement agencies to the
Federal Bureau of Investigation (FBI) and published annually in the Uniform Crime Reports
indicate that both the crime rate and the violent crime rate have declined since 1981. Of the
homicides in which the type of weapon could be identified, from 60% to almost 70% have
involved firearms each year. The number of homicides and the proportion involving firearms
have declined in recent years. In 2001 of the 13,752 homicides reported, 63% (8,719) were
committed with firearms.
Of those committed with firearms, 78% (6,790) involved
handguns. From 1993 to1999, the number of firearm-related homicides decreased by an
average rate of nearly 11% annually, for an overall decrease of 49%. In 2000, however,
firearm-related homicides increased to 8,661, about 2%. In 2001, they increased again to
8,719, less than 1%.
The other principal source of national crime data is the National Crime Victimization
Survey (NCVS) conducted by the Bureau of the Census and published by the Bureau of
Justice Statistics. The NCVS database provides some information on the weapons used by
offenders, based on victims’ reports. Based on data provided by survey respondents in
calendar year 2001, BJS estimated that, nationwide, there were 5.7 million violent crimes
(rape or sexual assault, robbery, aggravated assault, and simple assault). Weapons were used
in about 1.5 million of these criminal incidents. Firearms were used by offenders in about
524,000 of these incidents, or roughly 9%.
For further information, see Criminal
Victimization 2001: Changes 2000-2001 with Trends 1993-2001, by Callie Rennison
[http://www.ojp.usdoj.gov/bjs/abstract/cv01.htm].
Gun Violence and Youth. Youth crime statistics have often been used in the gun
control debate. The number of homicides committed annually with a firearm by persons in
the 14- to 24-year-old age group increased sharply from 1985 to 1993; they have declined
since then, but not back to the 1985 level. According to the Bureau of Justice Statistics, from
1985 to 1993, the number of firearm-related homicides committed by 14- to 17-year-olds
increased by 294%, from 855 to 3,371. From 1993 to 2000, the number of firearm-related
homicides committed by persons in this age group decreased by 68%, from 3,371 to 1,084.
From 1985 to 1993, firearm-related homicides committed by 18- to 24-year-olds
increased by 142%, from 3,374 to 8,171. From 1993 to 1999, firearm-related homicides
committed by persons in this age group decreased by 39%, from 8,171 to 4,988. They
increased by 3% to 5,162 in 2000. For further information, see Homicide Trends in the
United
States,
by
James
Alan
Fox
and
Marianne
W.
Zawitz,
at
[http://www.ojp.usdoj.gov/bjs/homicide/teens.htm].
Although gun-related violence in schools is statistically a rare event, a Department of
Justice survey indicated that 12.7% of students age 12 to 19 reported knowing a student who
brought a firearm to school. For further information, see CRS Report RL30482, The Safe
and Drug-Free Schools and Communities Program: Background and Context, by Edith
Fairman Cooper.
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Suicides, Accidents, and Other Deaths. Firearm fatalities have decreased
continuously since 1993. The source of national data on firearm deaths is the publication
Vital Statistics, published each year by the National Center for Health Statistics. Firearm
deaths reported by coroners in each state are presented in four categories: homicides and
legal intervention, suicides, accidents, and unknown circumstances. In 2000, a total of
28,663 firearm deaths occurred, according to such reports. Of this total, 11,071 were
homicides or due to legal intervention; 16,586 were suicides; 776 were unintentional
(accidental) shootings; and 230 were of unknown cause. From 1993 to 2000, firearm-related
deaths decreased by an average rate of nearly 5% annually, for an overall decrease of nearly
28%. Also in 2000, there were 1,544 juvenile (under 18 years of age) deaths attributed to
firearms. Of the juvenile total, 834 were homicides or due to legal intervention; 537 were
suicides; 150 were unintentional; and 23 were of unknown cause. From 1993 to 2000,
firearm-related deaths for juveniles have decreased by an average rate of 10% annually, for
an overall decrease of 53%.
Self-defense. According to the Bureau of Justice Statistics, NCVS data from 1987
to 1992 indicate that in each of those years, roughly 62,200 victims of violent crime (1% of
all victims of such crimes) used guns to defend themselves. Another 20,000 persons each
year used guns to protect property. Persons in the business of self-protection (police officers,
armed security guards) may have been included in the survey. Another source of information
on the use of firearms for self-defense is the “National Self Defense Survey” conducted by
criminology professor Gary Kleck of Florida State University in the spring of 1993. Citing
responses from 4,978 households, Dr. Kleck estimated that handguns have been used 2.1
million times per year for self-defense, and that all types of guns have been used
approximately 2.5 million times a year for that purpose, during the 1988-1993 period.
Why do these numbers vary by such a wide margin? Law enforcement agencies do not
collect information on the number of times civilians use firearms to defend themselves or
their property against attack. Such data have been collected in household surveys. The
contradictory nature of the available statistics may be partially explained by methodological
factors. That is, these and other criminal justice statistics reflect what is reported to have
occurred, not necessarily the actual number of times certain events occur. Victims and
offenders are sometimes reluctant to be candid with researchers. So, the number of criminal
incidents can only be estimated, making it difficult to state with certainty the accuracy of
statistics such as the number of times firearms are used in self-defense. For this and other
reasons, criminal justice statistics often vary when different methodologies are applied.
Survey research can be limited, since it is difficult to produce statistically significant
findings from small incident populations. For example, the sample in the National Self-
Defense Survey might have been too small, given the low incidence rate and the inherent
limitations of survey research.
Recreation. According to the National Institute of Justice (NIJ), in 1994 recreation
was the most common motivation for owning a firearm. There were approximately 15
million hunters, about 35% of gun owners, in the United States and about the same number
and percentage of gun owners engaged in sport shooting in 1994. The U.S. Fish and Wildlife
Service reported that 31.6 million persons purchased hunting licenses or permits in 1993 and,
according to the National Sporting Goods Association, in that year approximately 18.5
million persons took part in firearms sporting activities.
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Federal Regulation of Firearms
As stated in the Gun Control Act of 1968, as amended (P.L. 90-618; Title 18, United
States Code, Chapter 44), the purpose of federal firearm regulation is to assist federal, state,
and local law enforcement in the ongoing effort to reduce crime and violence. In the same
act, however, Congress also stated that the intent of the law is not to place any undue or
unnecessary burdens on law-abiding citizens in regard to the lawful acquisition, possession,
or use of firearms for hunting, trapshooting, target shooting, personal protection, or any other
lawful activity.
Indeed, issues related to federal firearm regulation currently under debate generally
revolve around the following questions. One, who should be ineligible to possess firearms?
Two, what types of firearms are appropriate for statutorily enumerated lawful firearm
activities? Three, when, where, and how is it appropriate to check persons seeking to acquire
a firearm for possession eligibility?
Federal Regulation of Firearm Transfers. Under current law, federal firearm
licensees (hereafter referred to as licensees) may ship, transport, and receive firearms that
have moved in interstate and foreign commerce. Licensees are currently required to verify
with the Federal Bureau of Investigation (FBI) through a background check that nonlicensed
persons are eligible to possess a firearm before subsequently transferring a firearm to them.
Licensees must also verify the identity of nonlicensed transferees by inspecting a
government-issued identity document, e.g., a driver’s license.
Under current law, there are 9 classes of persons prohibited from possessing firearms:
1) persons convicted in any court of a crime punishable by imprisonment for a term
exceeding 1 year; 2) fugitives from justice; 3) drug users, or addicts; 4) persons adjudicated
mental defectives, or committed to mental institutions; 5) unauthorized immigrants and
nonimmigrant visitors; 6) persons dishonorably discharged from the Armed Forces; 7) U.S.
citizenship renunciates; 8) persons under court-order restraints related to harassing, stalking,
or threatening an intimate partner or child of such intimate partner; and 9) persons convicted
of misdemeanor domestic violence (18 U.S.C. § 922(g)).
Licensees may engage in interstate transfers of firearms between themselves without
conducting background checks. While they may transfer long guns (rifles or shotguns) to
out-of-state residents, as long as there are in-person meetings and such transfers would not
knowingly be in violation of the laws of the state in which the nonlicensed transferees reside,
they may not transfer handguns to unlicensed out-of-state residents. Transfer of handguns
by licensees to anyone under 21-years-of-age is prohibited, as is the transfer of long guns to
anyone under 18-years-of-age (18 U.S.C. § 922(b)). Also, licensees are required to submit
a “multiple sales reports” to the Attorney General of the Treasury if any person purchases
two or more handguns within 5 business days.
Furthermore, licensees are required to maintain records on all acquisitions and
dispositions of firearms. They are obligated to respond to Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATFE) agents requesting firearm tracing information within 24
hours. Under certain circumstances, ATFE agents may inspect, without search warrants,
their business premises, inventory, and records.
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Nonlicensees are prohibited from acquiring firearms from out-of-state sources (except
for long guns acquired from licensees under the scenario described above). Nonlicensees are
also prohibited from transferring firearms to any persons who they have reasonable cause
to believe are not residents of the state in which the transaction occurs. In addition, since
1986, it has been a federal offense for nonlicensees to knowingly transfer a firearm to
prohibited persons. It is also notable that firearm transfers initiated through the Internet are
subject to the same federal laws as transfers initiated in any other manner. (For further
information, see CRS Report RS20957, Internet Firearm Sales, by T.J. Halstead.)
Finally, since 1994, it has been a federal offense for any nonlicensed person to transfer
a handgun to anyone under 18-years-of-age. It has also been illegal for anyone under 18
years-of-age to possess a handgun (there are exceptions to this law related to employment,
ranching, farming, target practice, and hunting) (18 U.S.C. § 922(x)).
Brady Act Implementation. According to the Bureau of Justice Statistics, since the
implementation of the Brady Act on February 29, 1994, through calender year (CY) 2001,
nearly 38 million firearm background checks were completed, resulting in 840,000 denials
(an overall 2.2% denial rate). During the interim period of the Brady Act (phase I), from
February 1994 through November 1998, there was a waiting period of up to 5 days for
handgun transfers in states without instant check systems. Nearly 13 million firearm
background checks were completed, resulting in 312,000 denials. Note: Brady background
check statistics through CY2002 are given below for the FBI, but not state agencies.
The permanent provisions (phase II) of the Brady Act became effective on November
30, 1998. As part of phase II, the Federal Bureau of Investigation rolled out the National
Instant Criminal Background Check System (NICS). Through NICS, under the permanent
Brady provisions, background checks are conducted of applicants for both hand and long gun
transfers. In 26 states, federal firearm licensees contact the FBI to conduct background
checks through NICS.
Through CY2002, the FBI had completed nearly 36 million
background checks for firearm transfer applications. Of this number, nearly 282,000
background checks, or about 2%, resulted in firearm transfers being denied. Of these checks,
nearly 58% of denials occurred because the applicant was a felon or was under felony
indictment. The next most common reason for denial, about 14% of cases, was a domestic
violence misdemeanor conviction. In addition, protective orders accounted for 4% of
denials. For further information on phase II of the Brady Act, see National Instant Criminal
Background Check System (NICS): 2001/2002 Operational Report (Washington, May 2003),
p. 5, [http://www.usdoj.gov/opa/pr/2003/May/nics_opreport.pdf].
In 24 states, state agencies serve as points of contact (POCs) and conduct background
checks for handgun transfers. In 14 states, state agencies serve as POCs and conduct
background checks for both long gun and handgun transfers. In 10 states, state agencies
serve as POCs for handgun transfers only. In POC states, federal firearm licensees contact
the state agency, and the state agency contacts the FBI. In non-POC states, federal firearm
licensees contact the FBI directly through the NICS system. During phase II, State POCs
completed roughly the same number of background checks with a 2% denial rate. Between
November 1998 and December 2002, the FBI estimates that 563,000 firearm transfers have
been denied by the Bureau and state agencies, combined.
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For state agencies (POCs), background checks may not be as expeditious, but they may
be more thorough, since state agencies may have greater access to databases and records that
are not available through NICS. According to GAO, this is particularly true for domestic
violence misdemeanor offenses and protective orders. See GAO Report GAO-02-720, Gun
Control: Opportunities to Close Loopholes in the National Instant Criminal Background
Check System (Washington, July 2002), p. 27.
NICS eligibility determination rates – how expeditiously the system makes eligibility
determinations, have been controversial. According to GAO, about 72% of the NICS checks
handled by the FBI resulted in immediate determinations of eligibility. Of the remaining
28% that resulted in a non-definitive response, neither a “proceed” nor a denial, 80% were
turned around within 2 hours. The remaining 20% of delayed transactions took hours or days
for the FBI NICS examiners to reach a final determination. In many cases these sales were
delayed because there was an outstanding charge without a final disposition against the
person seeking to purchase the firearm. Such cases necessitate that the FBI examiners
contact local or state authorities for additional information. Under current law, the FBI is
authorized to delay the sale for 3 business days in order to determine the outcome of the
charge and, thus, establish the eligibility of the transferee to possess a firearm. For further
information, see GAO Report GGD/AIMD-00-64, Gun Control: Implementation of the
National Instant Criminal Background Check System (Washington, February 2000) p. 68.
The FBI reports that, from July 2002 through March 2003, the immediate determination rate
for NICS increased to 91%, as compared to just under 77% from November 2001 through
July 2002. (See NICS 2001/2002 Operational Report, p. 8.)
NICS system availability — how regularly the system can be accessed during business
hours and not delay legitimate firearm transfers — has also been a source of complaint.
GAO found, however, that in the first year of NICS operation, the FBI had achieved its
system availability goal of 98% for 4 months. System availability for the remaining 8
months averaged 95.4%. (See GAO Report GGD/AIMD-00-64, Implementation of NICS,
p. 94.) The FBI reports that NICS service availability has been increased to 99% in FY2001
and FY2002. (See NICS 2001/2002 Operational Report, p. 6.)
Federal Firearm Prosecutions. Regarding enforcement of the Brady Act, from
November 1998 through June 2000, the FBI referred 134,522 Brady-related cases to the
ATF, and 37,926 of these cases were referred to ATF field offices for investigation.
According to ATF, in FY2000 there were 1,485 defendants charged with firearm-related
violations as a result of NICS checks under Brady. Of these defendants, 1,157 were charged
with providing falsified information to federal firearm licensees (18 U.S.C. § 922(a)(6));
another 86 were persons ineligible to posses firearms under the domestic violence gun ban
(18 U.S.C. §§ 922(g)(8) and (9)); and 136 were convicted felons (18 U.S.C. § 922(g)(1)).
According to the Bureau of Justice Statistics, however, federal firearm prosecutions
decreased by 19% from 1992 to 1996, they leveled off through 1997, and increased in 1998
and 1999. The decline in federal prosecutions can be attributed in part to a Supreme Court
decision (Bailey v. United States (516 U.S. 137, 116 S.Ct. 501)) that limited the use of the
charge of using a firearm during a violent or drug-related offense (18 United States Code, §
924(c)).
See Federal Firearm Offenders, 1992-98 (with Preliminary Data for 1999)
(Washington, June 2000), at [http://www.ojp.usdoj.gov/bjs/pub/pdf/ffo98.pdf].
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Major Federal Firearm and Related Statutes. Two major federal statutes
regulate the commerce in firearms, or their ownership: the National Firearms Act of 1934 (26
U.S.C. § 5801 et seq.) and the Gun Control Act of 1968, as amended (18 U.S.C. Ch. 44, §
921 et seq.). The National Firearms Act was originally designed to make it difficult to obtain
types of firearms perceived to be especially lethal or to be the chosen weapons of
“gangsters,” most notably machine guns and short-barreled long guns. This law also
regulates firearms, other than pistols or revolvers, that can be concealed on a person (e.g.,
pen, cane, and belt buckle guns). It taxes all aspects of the manufacture and distribution of
such weapons. And, it compels the disclosure (through registration with the Secretary of the
Treasury) of the production and distribution system from manufacturer to buyer.
The Gun Control Act of 1968, as amended, contains the principal federal restrictions
on domestic commerce in small arms and ammunition. The statute requires all persons
manufacturing, importing, or selling firearms as a business to be federally licensed; prohibits
the interstate mail-order sale of all firearms; prohibits interstate sale of handguns generally,
sets forth categories of persons to whom firearms or ammunition may not be sold (such as
persons under a specified age or with criminal records); authorizes the Secretary of the
Treasury to prohibit the importation of non-sporting firearms; requires that dealers maintain
records of all commercial gun sales; and establishes special penalties for the use of a firearm
in the perpetration of a federal drug trafficking offense or crime of violence. Transactions
between persons “not engaged in the business” are not covered by the Act.
These
transactions and other matters such as possession, registration, and the issuing of licenses to
the owners of firearms may be covered by state laws or local ordinances. It also prohibits
federal firearm licensees from selling or delivering a rifle or shotgun to a person under 18
years of age, or a handgun to a person under 21 years of age.
Supplementing federal law, many state firearm laws are stricter than federal law. For
example, some states require permits to obtain firearms and impose a waiting period for
firearm transfers. Other states are less restrictive, but state law cannot preempt federal law.
Federal law serves as the minimum standard in the United States.
The following principal changes have been enacted to the Gun Control Act since 1968.
! The “Firearms Owners Protection Act,” McClure-Volkmer Amendments
(P.L. 99-308, 1986) eases certain interstate transfer and shipment
requirements for long guns, defines the term “engaged in the business,”
eliminates some record-keeping requirements, and bans the private
possession of machine guns not legally owned prior to 1986.
! The “Armor Piercing Ammunition” Ban (P.L. 99-408, 1986, amended in
P.L. 103-322, 1994) prohibits the manufacture, importation and delivery of
handgun ammunition composed of certain metal substances and certain full-
jacketed ammunition.
! The Federal Energy Management Improvement Act of 1988 (P.L. 100-615)
requires that all toys or firearm look-alikes have a blazed orange plug in the
barrel, denoting that it is a non-lethal imitation.
! The Undetectable Firearms Act (P.L. 100-649, 1988), also known as the
“plastic gun” legislation, bans the manufacture, import, possession, and
transfer of firearms not detectable by security devices.
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! The Gun-Free School Zone Act of 1990 (P.L. 101-647), as originally
enacted, was ruled unconstitutional by the U.S. Supreme Court (United
States v. Lopez, 514 U.S. 549 (1995), April 26, 1995). The Act prohibited
possession of a firearm in a school zone (on the campus of a public or
private school or within 1,000 feet of the grounds). In response to the
Court’s finding that the Act exceeded Congress’s authority to regulate
commerce, the 104th Congress included a provision in P.L. 104-208 that
amended the Act to require federal prosecutors to include evidence that the
firearms “moved in” or affected interstate commerce.
! The Brady Handgun Violence Prevention Act, 1993 (P.L. 103-159) requires
that background checks be completed on all nonlicensed person seeking to
obtain firearms from federal firearm licensees.
! The Violent Crime Control and Law Enforcement Act of 1994 (P.L.
103-322) prohibits the manufacture or importation of semiautomatic assault
weapons and large capacity ammunition feeding devices (for a 10-year
period). In the case of high capacity ammunition feeding devices, the ban
on importation applies to those devices manufactured after September 1994.
This Act provides an exception for the transfer, sale, or possession of
semiautomatic assault weapons and large capacity ammunition feeding
devices lawfully possessed on the date of enactment. This Act also bans the
sale or transfer of handguns and handgun ammunition to, or possession of
handguns and handgun ammunition by, juveniles (under 18 years of age)
without prior written consent from the juvenile’s parent or legal guardian;
exceptions related to employment, ranching, farming, target practice, and
hunting are provided. In addition, the Act disqualifies persons under court
orders related to domestic abuse from receiving a firearm from any person
or possessing a firearm. It also enhances penalties for the criminal use of
firearms and makes other changes to existing law.
! Federal Domestic Violence Gun Ban (the Lautenberg Amendment, in the
Omnibus Consolidated Appropriations Act for FY1997, P.L. 104-208)
prohibits persons convicted of misdemeanor crimes of domestic violence
from possessing firearms and ammunition. The ban applies regardless of
when the offense was adjudicated: prior to, or following enactment. It has
been challenged in the federal courts, but these challenges have been
defeated. (See CRS Report RL31143, Firearms Prohibitions and Domestic
Violence Convictions: The Lautenberg Amendment, by T.J. Halstead.)
! The Omnibus Consolidated and Emergency Appropriations Act, 1999 (P.L.
105-277), requires all federal firearm licensees to offer for sale gun storage
and safety devices. It also bans firearm transfers to, or possession by, most
nonimmigrants, and those nonimmigrants who have overstayed the terms of
their temporary visa.
! The Treasury, Postal and General Government Appropriations Act (P.L.
106-58) requires that background checks be conducted when former firearm
owners seek to redeem a firearm that they sold to a pawnshop.
! The Homeland Security Act of 2002 (P.L. 107-296) establishes a Bureau of
Alcohol, Tobacco, Firearms and Explosives by transferring the law
enforcement functions, but not the revenue functions, of the former Bureau
of Alcohol, Tobacco and Firearms from the Department of the Treasury to
the Department of Justice.
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Possible Issues for the 108th Congress
Several dozen gun control-related proposals have been introduced in the 108th Congress
that represent a range of positions on federal regulation of firearms. Only handful of bills
have received significant legislative action. A bill, as passed by the House, would prohibit
law suits against firearm manufacturers or dealers for unlawful or criminal use of their
products by other persons. The Senate may act of a similar measure. The other bill, reported
in the Senate, would exempt certain law enforcement officers from state laws prohibiting the
carry of concealed handguns.
In addition, the House-passed Commerce-Justice-State
appropriations bill includes provisions that would prohibit ATF from using funding provided
under this bill to require the submission of certain transfer and inventory records from
firearm licensees, and would prohibit ATF from not renewing firearm licenses for “lack of
business.” Legislative debate and action may develop in the following issue areas as well:
(1) extending, making permanent, or allowing to expire, the semiautomatic assault weapons
ban, which sunsets on September 13, 2004; (2) expanding electronic access to disqualifying
records under the Brady criminal background system; (3) expanding federally-supported
ballistic imaging to enhance law enforcement efforts; and (4) further regulating firearm
transfers at gun shows.
CJS Gun Related Provisions. During full committee markup, several gun-related
provisions limiting the authority of the Bureau of Alcohol, Tobacco, Firearms (ATF), and
Explosives were accepted as amendments to the Bureau’s salaries and expenses account in
the Commerce, Justice, State (CJS) and the Judiciary appropriations bill (H.R. 2799), which
was passed by the House on July 23, 2003. One provision would prohibit the use of any ATF
funding under this bill for the purposes of acquiring certain firearm transfer records from
federal firearm licensees pursuant to 18 U.S.C. § 923(g)(5), unless such a request was part
of a criminal investigation. In FY2000, the ATF issued “demand letters” to 41 federal
firearm licensees who allegedly did not respond to crime gun trace requests by the ATF in
a timely manner. Current law requires that they do so within 24 hours. The demand letters,
which are analogous to administrative subpoenas, directed the licensees in question to turn
over 3 years of transfer records, and to continue doing so until they were found to be in
compliance.
In U.S. District Court for the District of Maryland, ATF’s practice of issuing demand
letters was challenged on several grounds, including the ground that amassing such records
would conflict with 18 U.S.C. § 926(a), which prohibits any registration system of firearms,
owners, or transaction/disposition records. While the District Court originally sided with the
plaintiffs (RSM, Inc.), that ruling was overturned by the 4th Circuit Court of Appeals on June
6, 2001. In a limited holding, the 4th Circuit Court found that the ATF had not exceeded its
authority (See RSM, Inc. v. Buckles, 94 F. Supp. 2d 692 (D. Md. 2000), rev’d, 254 F.3d 61
(4th Cir. 2001)). Notwithstanding this court case, this limitation could be interpreted as
preventing ATF from issuing demand letters in FY2004. While no federal firearm licensees
are currently under demand letters for the purposes described above, the ATF relies on the
same authority to issue demand letters to licensees who have 15 or more firearms that are
traced back to their businesses that were used in crimes shortly after purchase – specifically
used firearms. Moreover, the ATF relies on that authority to acquire data used to compile
the annual firearms import and manufacturing report, among other things. Other provisions
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would possibly prohibit ATF from using funding under this bill to require licensees to
conduct physical inventories of their businesses, or to deny an application for, or the renewal
of, a license for “lack of business activity.”
Gun Industry Liability. The House has passed the Protection of Lawful Commerce
in Arms Act (H.R. 1036) on April 9, 2003. This bill, previously reported by the House
Committee on the Judiciary on April 7 (H.Rept. 108-59), would prohibit certain types of law
suits against firearm manufacturers and dealers to recover damages related to the criminal
or unlawful use of their products (firearms or ammunition) by other persons. The Senate
may consider a similar measure (S. 659).
(For further information, see CRS Report
RS21486, Protection of Lawful Commerce in Arms Act, H.R. 1036, 108th Congress: Legal
Analysis, by Henry Cohen.)
Concealed Carry. On March 26, 2003, the Senate Committee on the Judiciary
reported S. 253 (S.Rept. 108-29), a bill that would exempt certain current and former law
enforcement officers from state laws prohibiting the carry of concealed handguns. As current
federal statute does not address this issue, concealed carry of firearms has traditionally been
a matter of state law. In states that allow concealed carry, there are two types of laws: “may
issue” and “shall issue.” States with discretionary, or “may issue,” laws leave the decision
to issue or deny permits with the issuing authority (usually the state police). States with non-
discretionary, or “shall issue,” laws require that permits be issued to applicants who meet
certain criteria. Representative Randy Cunningham reintroduced a similar measure (H.R.
218). In the 107th Congress, Representative Cunningham brought a concealed carry for law
enforcement bill (also H.R. 218) to the House floor under a discharge position, but this bill
was narrowly defeated on November 13, 2001.
Semiautomatic Assault Weapons Ban. Congress banned for ten years the
possession, transfer, or further domestic manufacture of semiautomatic assault weapons and
high capacity ammunition feeding devices (detachable magazines that hold more than 10
rounds) that were not legally owned or available prior to September 13, 1994. Even before
the ban, the Administration of George H.W. Bush had halted the importation of some of
these firearms under existing legal authority provided by the 1968 Gun Control Act. The
Clinton Administration halted the importation of additional firearms, which were not
technically semiautomatic assault weapons, but had been modified to overcome the
importation ban, under the determination that they were unsuitable for sporting purposes.
Semiautomatic assault weapons that were legally owned prior to the ban are not restricted
and can be transferred under applicable federal and state laws.
Semiautomatic firearms, including semiautomatic assault weapons, fire one round per
pull of the trigger. Statute classifies a rifle as a semiautomatic assault weapon, if it is able
to accept a detachable magazine, and includes two or more of the following five
characteristics: (1) a folding or telescoping stock; (2) a pistol grip; (3) a bayonet mount; (4)
a muzzle flash suppressor or threaded barrel capable of accepting such a suppressor; or (5)
a grenade launcher. Different, but similar, definitions are provided for semiautomatic assault
weapons that are shotguns or pistols (18 U.S.C. § 921(a)(30)). It is illegal to assemble a
semiautomatic assault weapon from legally or illegally obtained parts. The semiautomatic
assault weapons ban will expire on September 13, 2004.
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Many firearm manufacturers have modified the design of firearms that were classified
as semiautomatic assault weapons, so they no longer meet the statutory definition of an
assault weapon. It is not uncommon today to hear references to pre-ban and post-ban assault
weapons, the latter having been modified and, hence, not subject to the ban. As a result, it
is likely that some proposals to extend or make permanent the semiautomatic assault
weapons ban may also include provisions to expand the list of certain makes and models of
firearms that are statutorily enumerated as banned semiautomatic assault weapons. For
example, a proposal (S. 1034) introduced by Senator Dianne Feinstein would make the ban
permanent, as would a proposal (H.R. 2038) introduced by Representative Carolyn
McCarthy. The latter measure, however, would also expand the list of banned semiautomatic
assault weapons. Senator Frank Lautenberg introduced a proposal (S. 1431) that would
modify the ban and make it permanent. Others, opposed to the ban, have argued that the
statutorily defined characteristics of a semiautomatic assault weapon are largely cosmetic,
and that these weapons are potentially no more lethal than other semiautomatic firearms that
are designed to accept a detachable magazine and are equal or superior in terms of ballistics
and other performance characteristics.
Assault rifles were originally developed to provide a lighter infantry weapon that could
fire more rounds, more rapidly (increased capacity and rate of fire). To increase capacity of
fire, detachable, self-feeding magazines were developed. These rifles were usually designed
to be fired in fully automatic mode, meaning that once the trigger is pulled, the weapon
continues to fire rapidly until all the rounds in the magazine are expended, or the trigger is
released. In close-quarters combat, these weapons could be fired in a low slung position.
Often these rifles were designed with a “select fire” feature that allowed them to be fired in
short bursts, e.g., three rounds per pull of the trigger, or in semiautomatic mode, i.e, one
round per pull of the trigger, as well as in fully automatic mode.
Under current law, any firearm, including “assault weapons,” that can be fired in fully
automatic mode or in multi-round bursts are classified as “machine guns,” and must be
registered with the federal government under the National Firearms Act of 1934.
Furthermore, it is illegal to assemble a machine gun with legally or illegally obtained parts.
The population of legally owned machine guns has been frozen since 1986, and they are not
covered by the semiautomatic assault weapons ban. According to firearms experts, there are
about 177,000 machine guns available in the civilian market; about 22,000 of these machine
guns are owned by law enforcement agencies. According to a survey of 203,300 state and
federal prisoners in 1997, who had been armed during the commission of the crimes for
which they were incarcerated, fewer than 1 in 50, or less than 2%, used, carried, or possessed
a fully automatic or semiautomatic assault weapon. For further information, see Firearm
Use by Offenders, by Caroline Wolf Harlow [http://www.ojp.usdoj.gov/bjs/pub/pdf/fuo.pdf].
Brady Act Background Checks. During the 107th Congress, the House passed a
bill to expand electronic access to disqualifying records under the National Instant
Background Check System (NICS) on July 23, 2002. This bill, “Our Lady of Peace Act”
(H.R. 4757), was introduced by Representative Carolyn McCarthy. Among other things, this
proposal would (1) amend the Brady Handgun Violence Prevention Act to require federal
agencies to provide, and the Attorney General to secure, any government records with
information relevant to determining the eligibility of a person to receive a firearm for
inclusion in NICS; (2) require states to make available to the Attorney General certain
records that would disqualify persons from acquiring a firearm, particularly those records that
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relate to convictions for misdemeanor crimes of domestic violence and persons adjudicated
as mentally defective; and (3) authorize appropriations for grant programs to assist states,
courts, and local governments in establishing or improving such automated record systems.
No further action was taken on H.R. 4757, before the 107th Congress adjourned. In the 108th
Congress, Senator Daschle has introduced the Justice Enhancement and Domestic Security
Act of 2003 (S. 22), which includes the Our Lady of Peace Act (Title V, Subtitle B).
Ballistic Imaging. Linking crime scenes by ballistically imaging and comparing
crime scene evidence has been instrumental in the ongoing investigation of a string of
shootings in the Washington, DC, metropolitan area during the Fall of 2002. Such linkages
were made by the Bureau of Alcohol, Tobacco, Firearms and Explosives with the National
Integrated Ballistics Information Network (NIBIN), a nationally interconnected, computer-
assisted ballistics imaging system used by forensic firearm examiners to obtain computerized
images of the unique marks made on bullets and/or cartridge cases when fired. As an
investigative tool, ballistics imaging complements crime gun tracing. Through crime gun
tracing, federal investigators can assist state and local law enforcement agencies in solving
firearms-related crime by, among other things, identifying suppliers of multiple-crime guns,
and gun trafficking patterns.
Legislative proposals were introduced in the 107th Congress that would have required
that all newly manufactured and imported handguns be ballistically imaged. Proponents
believe that these measures, if enacted, would significantly increase federal capacity to trace
crime guns. Such measures could be controversial, however, since some gun control
opponents may view such developments as a first step towards a national firearms registry,
which they oppose. Opponents argue further that such a ballistics registry will serve little
purpose in tracing illegally obtained firearms. At present, the participation of federal, state,
and local law enforcement agencies in NIBIN is restricted by law to the ballistic images
associated with crime guns only. Supporters of stronger federal firearm regulations, many
of whom may favor a national firearms registry, are likely to support ballistically imaging
newly manufactured and imported firearms.
New proposals introduced in the 108th Congress may call for ballistically imaging long
guns as well, since a long gun was used in the Fall 2002 string of shootings in the
Washington area. For example, H.R. 24, introduced by Representative Xavier Becerra,
would require firearm manufactures and importers to ballistically image the cartridge and
bullet of all firearms before being transferred to licensed dealers. Similar legislation was
introduced by Representative Robert Andrews (H.R. 776) and Senator Herb Kohl (S. 469).
In addition, the Justice Enhancement and Domestic Security Act of 2003 (S. 22) includes
similar ballistic imaging provisions. (For further information, see CRS Report RL31040,
National Integrated Ballistics Information Network (NIBIN) for Law Enforcement, William
C. Boesman and William J. Krouse.)
Gun Shows. Federal law does not regulate gun shows specifically. Federal law
regulating firearms transfers, however, is applicable to such transfers at gun shows. Federal
firearm licensees – those licensed by the federal government to manufacture, import, or deal
in firearms – are required to conduct background checks on non licensed persons seeking to
obtain a firearm from them, by purchase or exchange. Conversely, non licensed persons –
those persons who transfer firearms, but who do not meet the statutory test of being “engaged
in the business” – are not required to conduct such checks. To some, this may appear to be
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an incongruity in the law. Why should licensees be required to conduct background checks
at gun shows, and not non licensees? To others, opposed to further federal regulation of
firearms, it may appear to be a continuance of the status quo, i.e., non-interference by the
federal government into private firearm transfers within state lines. On the other hand, those
seeking to increase federal regulation of firearms may view the absence of background
checks for firearm transfers between non licensed/private persons as a loophole in the law
that needs to be closed. A possible issue for Congress is whether federal regulation of
firearms should be expanded to include private firearm transfers at gun shows and other
similar venues.
Among gun show-related proposals, there were two basic models. The first, which
passed the Senate in the 106th Congress, is known by its sponsor in the 106th Congress,
Senator Frank Lautenberg. Several members introduced variations of the Lautenberg
proposal in the 107th Congress. The second is based on a proposal (S. 890) introduced in the
107th Congress by Senators John McCain and Joseph Lieberman. Both proposals address
several questions. In the 108th Congress, Representative John Conyers – ranking minority
member of the Judiciary Committee – introduced H.R. 260, which is similar to the
Lautenberg proposal. In addition, Senator Daschle introduced the Justice Enhancement and
Domestic Security Act of 2003 (S. 22), which includes gun show language that is similar to
the Lautenberg proposal. Other proposals may be introduced to prohibit further federal
regulation of private firearm transfers at gun shows that are conducted within state lines.
Nonetheless, the issues associated with greater regulation of firearm transfers at gun shows
include:
! How would the term “gun show” be defined? The Lautenberg proposal
defines a gun show as any event at which 50 or more firearms are offered for
sale or transfer and there are not less than 10 vendors. Instead of gun show,
the McCain/Lieberman proposal uses the term “special firearms event,”
defining it as any event at which 75 or more firearms are offered for sale or
transfer.
! Should gun show promoters/special firearms event operators be required to
register with the Secretary of the Treasury? Both bills would require
promoters/operators to register with the Secretary of the Treasury. Unlike
the Lautenberg proposal, the McCain/Lieberman proposal would also
require frequent operators who organize two or more of these events in a 6-
month period to be licensed, and it would require both frequent and
infrequent operators to submit ledgers of nonlicensed vendors before and
after each event to the Secretary of the Treasury.
! Should all firearms transactions at gun shows be conducted by federal
firearm licensees, or should a special licensee be responsible for conducting
NICS checks for nonlicensees? The Lautenberg proposal adopts the former
approach, the McCain/Lieberman, the latter. Also, the McCain/Lieberman
proposal would prohibit special licensees from displaying firearms for sale
or transfer at events where they are designated to conduct background
checks for nonlicensees.
! How many days should the FBI be given to complete background checks at
gun shows? The Lautenberg proposal does not address this issue, leaving
in place the current statutory 3 business day delayed sale. In contrast, the
McCain/Lieberman proposal would establish a certification process by
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which states could opt for a maximum 24-hour delayed sale, when 95% of
the state’s disqualifying records (criminal and otherwise) going back 30
years are made available online.
For further information on gun shows, see Gun Shows: Brady Checks and Crime Gun
Traces (Washington: January 1999).
See: [http://www.atf.treas.gov/], click on
“Publications.”
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