Gun Control Legislation
William J. Krouse
Specialist in Domestic Security and Crime Policy
May 27, 2009
Congressional Research Service
7-5700
www.crs.gov
RL32842
CRS Report for Congress
P
repared for Members and Committees of Congress
Gun Control Legislation
Summary
Congress has continued to debate the efficacy and constitutionality of federal regulation of
firearms and ammunition, with strong advocates arguing for and against greater gun control. Past
legislative proposals have raised the following questions: What restrictions on firearms are
permissible under the Constitution? Does gun control help reduce violent crime? Would
household, street corner, and schoolyard disputes be less lethal if firearms were more difficult to
acquire? Or, would more restrictive gun control policies diminish an individual’s ability to defend
himself. Speaking to these questions either in whole or part, on June 26, 2008, the Supreme Court
issued its decision in District of Columbia v. Heller and found that the District of Columbia (DC)
handgun ban violated an individual’s right under the Second Amendment to lawfully possess a
firearm in his home for self defense.
In the 110th Congress, pro gun Members of the House of Representatives, who were dissatisfied
with the District’s response to the Heller decision, passed a bill that would have further
overturned provisions of the District’s gun laws. In the 111th Congress, pro gun Members of the
Senate amended the DC voting rights bill (S. 160) with language similar to the House bill
(described above) and passed that bill on February 26, 2009. House leadership, meanwhile, has
reportedly been negotiating to end the impasse over the District’s gun laws and bring its version
of the DC voting rights bill (H.R. 157) to the floor.
Also, in the 111th Congress, Senator Tom Coburn successfully amended the Credit CARD Act of
2009 (H.R. 627) with a provision that would allow people to carry firearms in national parks and
wildlife refuges. The House voted on the Coburn amendment as a separate measure and passed it
as well. President Barrack Obama signed H.R. 627 into law on May 22, 2009 (P.L. 111-24).
Besides the DC handgun ban and firearms in national parks, other salient and recurring gun
control issues for the 111th Congress could include (1) overturning restrictions on the release of
firearm trace data and multiple sales reports, (2) further regulating private firearm transfers at gun
shows, and (3) reinstating and possibly expanding the semiautomatic assault weapons ban.
Although several dozen gun control-related proposals were introduced in recent Congresses, only
a handful of those bills have received significant legislative action. This report provides an
overview of firearms-related statistics and federal law. It also provides an overview on legislative
action in the 109th and 110th Congresses, as well as other issues that have generated significant
congressional interest in the recent past. This report will be updated to reflect legislative action in
the 111th Congress.
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Contents
Legislative Developments ........................................................................................................... 1
Background and Analysis ............................................................................................................ 1
Pro/Con Debate..................................................................................................................... 1
Gun-Related Statistics ........................................................................................................... 2
How Many Guns Are in the United States?...................................................................... 3
How Often Are Guns Used in Homicides?....................................................................... 4
How Often Are Guns Used in Non-lethal Crimes? ........................................................... 4
How Prevalent Is Gun Violence Among Youth?............................................................... 4
How Prevalent Are Gun-Related Fatalities?..................................................................... 5
How Often Are Firearms Used in Self-Defense?.............................................................. 5
What About the Recreational Use of Guns? ..................................................................... 6
Federal Regulation of Firearms ................................................................................................... 6
The National Firearms Act (NFA) ......................................................................................... 7
The Gun Control Act of 1968 (GCA) .................................................................................... 7
Firearm Transfer and Possession Eligibility ..................................................................... 7
Licensed Dealers and Firearm Transfers .......................................................................... 8
Private Firearm Transfers ................................................................................................ 8
Brady Handgun Violence Prevention Act............................................................................... 8
Interim Provisions........................................................................................................... 9
Permanent Provisions...................................................................................................... 9
POC and Non-POC States ............................................................................................... 9
Brady Background Check Statistics............................................................................... 10
System Delayed Transfers ............................................................................................. 10
Systems Availability...................................................................................................... 10
Legislative Action in the 110th and 111th Congresses .................................................................. 11
Constitutionality of DC Handgun Ban and Related Legislation............................................ 11
DC Council Passes Emergency Law.............................................................................. 12
Legislation Related to DC Gun Laws ............................................................................ 12
DC Council Passes Permanent Legislation .................................................................... 13
DC Voting Rights and Gun Laws in the 111th Congress.................................................. 14
DC Voting Rights Act of 2007....................................................................................... 14
NICS Improvement Amendments Act of 2007..................................................................... 14
Veterans, Mental Incompetency, and Firearms Eligibility..................................................... 16
Mental Defective Adjudications .................................................................................... 16
Veterans, Mental Incompetency, Firearms Eligibility ..................................................... 17
Public Housing and Firearms Possession and Use................................................................ 18
Public Lands and Firearms Possession and Use ................................................................... 18
Law Enforcement Officers Safety Act of 2007..................................................................... 19
Tiahrt Amendment and Firearm Trace Data Limitations....................................................... 20
Firearms Enforcement-Related Funding Bills ...................................................................... 21
ATF Appropriations for FY2008 and FY2009 ............................................................... 21
Merida Initiative and Southwest Border Gun Trafficking............................................... 22
Legislative Action in the 109th Congress.................................................................................... 22
Enacted Legislation and Related Amendments .................................................................... 22
Protection of Lawful Commerce in Arms Act ................................................................ 22
Disaster Recovery Personal Protection Act of 2006 ....................................................... 23
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House Judiciary Committee Considered Gun Bills .............................................................. 24
ATFE Modernization and Reform Act of 2006 .............................................................. 24
Firearms Corrections and Improvements Act ................................................................. 25
Firearm Commerce Modernization Act.......................................................................... 27
NICS Improvement Act of 2005 .................................................................................... 27
Gun Provisions Attached to Funding and Crime Bills .......................................................... 28
District of Columbia Handgun Ban ............................................................................... 28
Sex Offenders and Firearm Possession Eligibility.......................................................... 28
Court Security and LEOSA Amendments ...................................................................... 28
ATF Appropriations for FY2005, FY2006, and FY2007 ................................................ 29
Other Salient Gun Control Legislative Issues............................................................................. 30
Brady Background Checks and Terrorist Watch Lists........................................................... 30
Background Check Fee and Record Retention ............................................................... 30
Terrorist Watch List Checks .......................................................................................... 31
Long-Range .50 Caliber Rifles ............................................................................................ 33
Expired Semiautomatic Assault Weapons Ban ..................................................................... 34
Gun Shows and Private Firearm Transfers ........................................................................... 36
Appendixes
Appendix. Major Federal Firearm and Related Statutes ............................................................. 38
Contacts
Author Contact Information ...................................................................................................... 39
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Legislative Developments
Congress has continued to debate the efficacy and constitutionality of further federal regulation of
firearms and ammunition. Although several dozen gun control proposals were introduced in
recent Congresses, only a handful of those bills have received significant legislative action. On
June 26, 2008, however, the Supreme Court issued its decision in District of Columbia v. Heller
and found that the District of Columbia (DC) handgun ban violates an individual’s right under the
Second Amendment to lawfully possess a handgun in his home for self defense.1
In the 110th Congress, pro gun Members in the House of Representatives, who were dissatisfied
with the District’s response to the Heller decision, passed a bill that would further overturn
provisions of the District’s gun laws. In the 111th Congress, pro gun Members of the Senate
amended the DC voting rights bill (S. 160) with language similar to the previously passed House
bill and passed that bill on February 26, 2009. House leadership, meanwhile, has reportedly been
negotiating to end the impasse over the District’s gun laws and bring its version of the DC voting
rights bill (H.R. 157) to the floor.
Also, in the 111th Congress, Senator Tom Coburn successfully amended the Credit CARD Act of
2009 (H.R. 627) with a provision that would allow people to carry firearms in national parks and
wildlife refuges. The House voted on the Coburn amendment as a separate measure and passed it
as well. President Barrack Obama signed H.R. 627 into law on May 22, 2009 (P.L. 111-24).
Besides the DC handgun ban and firearms in national parks, other salient and recurring gun
control issues for the 111th Congress could include (1) overturning the Tiahrt amendment and
restrictions on the release of firearms trace data and multiple sales reports, (2) further regulating
private firearm transfers at gun shows, and (3) reinstating and possibly expanding the
semiautomatic assault weapons ban.
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
1 For legal analysis, see CRS Report CRS Report R40137, District of Columbia v. Heller: The Supreme Court and the
Second Amendment, by Vivian S. Chu.
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be sources of guns that flow illegally into more 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; (2) was intended solely to guard against
suppression of state militias by the central government and therefore restricted in scope by that
intent; and (3) does not guarantee a right that is absolute, but one that can be limited by
reasonable requirements. They ask why in today’s modern society a private citizen needs any
firearm 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 they believe are 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 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 intended 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, and 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, and moved by irrational hostility to firearms and gun enthusiasts.
Gun-Related Statistics
Crime and mortality statistics are often used in the gun control debate. According to a recent
study, however, none of the existing sources of statistics provide either comprehensive, timely, or
accurate data with which to definitively assess whether there is a causal connection between
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firearms and violence.2 For example, existing data do not show whether the number of people
shot and killed with semiautomatic assault weapons declined during the 10-year period (1994-
2004) that those firearms were banned from further proliferation in the United States.3 Presented
below are data on the following topics: (1) the number of guns in the United States, (2) firearm-
related homicides, (3) non-lethal/firearm-related victimizations, (4) gun violence and youth, (5)
gun-related mortality rates, (6) use of firearms for personal defense, and (7) recreational use of
firearms. In some cases, the data presented are more than a decade old but remain the most recent
available.
How Many Guns Are in the United States?
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.4 Seventy-four percent of those individuals were reported to own more than one
firearm.5 According to the ATF, by the end of 1996, approximately 242 million firearms were
available for sale to or were possessed by civilians in the United States.6 That total includes
roughly 72 million handguns (mostly pistols, revolvers, and derringers), 76 million rifles, and 64
million shotguns.7 By 2000, the number of firearms had increased to approximately 259 million:
92 million handguns, 92 million rifles, and 75 million shotguns.8 By 2007, the number of firearms
had increased to approximately 294 million: 106 million handguns, 105 million rifles, and 83
million shotguns.9
In the past, most guns available for sale were produced domestically. In recent years, 1 to 2
million handguns were manufactured each year, along with 1 to 1.5 million rifles and fewer than
1 million shotguns.10 From 2001 through 2007, however, handgun imports nearly doubled, from
711,000 to nearly 1.4 million.11 During the same time period, rifle imports increased from
228,000 to 632,000, and shotgun imports increased from 428,000 to 726,000.12 Retail prices of
guns vary widely, from $75 or less for inexpensive, low-caliber handguns to more than $1,500 for
higher-end, standard-production rifles and shotguns.13 Data are not available on the number of
2 National Research Council, Firearms and Violence: A Critical Review (Washington, 2005), p. 48.
3 Ibid., p. 49.
4 Jens Ludwig and Phillip J. Cook, Guns in America: National Survey on Private Ownership and Use of Firearms, NCJ
165476, May 1999, 12 pp., available at http://www.ncjrs.org/pdffiles/165476.pdf.
5 Ibid.
6 U.S. Department of the Treasury, Bureau of Alcohol, Tobacco & Firearms, Commerce in Firearms in the United
States, February 2000, pp. A3-A5.
7 Ibid., pp. A3-A5.
8 U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Firearms Commerce in the United States
2001/2002, ATF P 9000.4, April 2002, pp. E1-E3.
9 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Annual Firearm
Manufacturing and Export Reports for 2002 through 2007, along with firearms import data provided by the ATF
Firearms and Explosives Import Branch.
10 Ibid.
11 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms and Explosives Import
Branch.
12 Ibid.
13 Ned Schwing, 2005 Standard Catalog of Firearms: The Collector’s Price and Reference Guide, 15th edition (Iola,
Wisconsin, 2005), 1,504 pp.
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“assault weapons” in private possession or available for sale, but one study estimated that 1.5
million assault weapons were privately owned in 1994.14
How Often Are Guns Used in Homicides?
Reports submitted by state and local law enforcement agencies to the FBI and published annually
in the Uniform Crime Reports15 indicate that the violent crime rate has declined from 1981
through 2004; however, the number of homicides and the proportion involving firearms have
increased in recent years. From 1993 to 1999, the number of firearm-related homicides decreased
by an average rate of nearly 10% annually, for an overall decrease of 47%. From 2000 to 2003,
known firearm-related homicides increased by
• 2.0% (to 8,661) in 2000,
• 2.6% (to 8,890) in 2001,
• 7.2% (to 9,528) in 2002, and
• 1.4% (to 9,659) in 2003.
In 2004, firearms-related homicides decreased by 2.8% (to 9,385). In 2005, however, firearms-
related homicides increased by 8.2% (to 10,158). In 2006, firearms-related homicides increased
again by 0.7% (to 10,225), but they decreased by 1.4% in 2007 to 10,086 (according to
preliminary data). In the past 10 years, about half of all homicides for which the cause is known
were handgun-related. Of those homicides, the annual percentage that were firearms-related
ranged from a low of 63% in 2001 to a high of 68% in 2006 and 2007.
How Often Are Guns Used in Non-lethal Crimes?
The other principal source of national crime data is the National Crime Victimization Survey
(NCVS) conducted by the U.S. Census Bureau and published by the Bureau of Justice Statistics
(BJS). 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 2003, BJS
estimated that, nationwide, there were 5.4 million violent crimes (rape or sexual assault, robbery,
aggravated assault, and simple assault). Weapons were used in about 1.2 million of these criminal
incidents. Firearms were used by offenders in about 367,000 of these incidents, or roughly 7%.16
How Prevalent Is Gun Violence Among 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 have not returned to the 1985 level.
According to BJS, 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
14 Christopher S. Koper, Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun
Violence, 1994-2003 (Washington, July 2004), 108 pp.
15 Go to http://www.fbi.gov/ucr/ucr.htm.
16 U.S. Department of Justice, Bureau of Justice Statistics, National Crime Victimization Survey, Criminal
Victimization, 2003, by Shannan M. Catalano, available online at http://www.ojp.usdoj.gov/bjs/pub/pdf/cv03.pdf.
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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 2000.17 More recent statistics for youth have yet to be reported. Although gun-
related violence in schools is statistically a rare event, a DOJ survey indicated that 12.7% of
students age 12 to 19 reported knowing a student who brought a firearm to school.18
How Prevalent Are Gun-Related Fatalities?
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,19 suicides, accidents, and
unknown circumstances.
Firearm fatalities decreased continuously from 39,595 in 1993 to 28,663 in 2000, for an overall
decrease of nearly 28%. Compared with firearm deaths in 2000, such deaths increased by 3.2% in
2001 to 29,573, and increased again by 2.3% in 2002 to 30,242. They decreased by 0.3% in 2003
to 30,136, and decreased again by 1.9% in 2004 to 29,569. Firearm fatalities increased by 3.8% in
2005 to 30,694. Of this 2005 total, 12,682 were homicides or due to legal intervention, 17,002
were suicides, 789 were unintentional (accidental) shootings, and 221 were of unknown cause.20
Of firearms-related deaths in 2005, there were 1,490 juvenile (younger than 18 years old). Of the
juvenile total, 926 were homicides or due to legal intervention, 412 were suicides, 127 were
unintentional, and 25 were of unknown cause. From 1993 to 2001, firearm-related deaths for
juveniles decreased by an average rate of 10% annually, for an overall decrease of 56%. From
2001 to 2002, such deaths increased slightly, by less than 1%.21
How Often Are Firearms Used in Self-Defense?
According to BJS, 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.22 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.23 Another source of information on the use of firearms for self-defense is the National
17 U.S. Department of Justice, Bureau of Justice Statistics, Homicide Trends in the United States, by James Alan Fox
and Marianne W. Zawitz, at http://www.ojp.usdoj.gov/bjs/homicide/teens.htm.
18 For further information, see CRS Report RL30482, The Safe and Drug-Free Schools and Communities Program:
Background and Context, by Edith Fairman Cooper.
19 “Legal interventions” include deaths (in these cases by firearms) that involve legal uses of force (justifiable homicide
or manslaughter) usually by the police.
20 National Vital Statistics System data taken from the Injury Statistics Query and Reporting System (WISQARS),
available at http://www.cdc.gov/ncipc/wisqars/default.htm.
21 Ibid.
22 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Guns and Crime: Handgun
Victimization, Firearm Self Defense, and Firearm Theft, NCJ-147003, April 1994, available at
http://www.ojp.usdoj.gov/bjs/pub/ascii/hvfsdaft.txt.
23 Ibid.
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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.24
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 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, because 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 likely low incidence rate and the inherent limitations of
survey research.
What About the Recreational Use of Guns?
According to NIJ, in 1994, recreation was the most common motivation for owning a firearm.25
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 1994.26 More
recently, the U.S. Fish and Wildlife Service reported that there were more than 14.7 million
persons who were paid license holders in 200327 and, according to the National Shooting Sports
Foundation, in that year, approximately 15.2 million persons hunted with a firearm and nearly
19.8 million participated in target shooting.28
Federal Regulation of Firearms
Two major federal statutes regulate the commerce in, and possession of, firearms: 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. Chapter 44, § 921 et seq.). Supplementing federal law, many state firearm laws are
stricter than federal law. For example, some states require permits to obtain firearms and impose a
24 Gary Kleck, “Armed Resistance to Crime: The Prevalence and Nature of Self Defense with a Gun,” Journal of
Criminal Law and Criminology, vol. 86, issue 1, 1995, available at http://www.guncite.com/gcdgklec.html.
25 Jens Ludwig and Phillip J. Cook, Guns in America: National Survey on Private Ownership and Use of Firearms,
NCJ 165476, May 1999, p. 2.
26 Ibid., p. 3.
27 U.S. Department of the Interior, U.S. Fish and Wildlife Service, National Hunting License Report (December 2,
2004), http://www.nssf.org/IndustryResearch/PDF/CurrLicSales.pdf.
28 American Sports Data, Inc., The SUPERSTUDY of Sports Participation, available at http://www.nssf.org/
IndustryResearch/PDF/HistTrendsParticipation.pdf.
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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 National Firearms Act (NFA)
The NFA 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 and 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 Attorney General) of the production and distribution system from manufacturer to buyer.
The Gun Control Act of 1968 (GCA)
As stated in the GCA, 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.
The GCA, 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 and 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 Attorney General 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.
As amended by the Brady Handgun Violence Prevention Act, 1993 (P.L. 103-159), the GCA
requires background checks be completed for all non licensed persons seeking to obtain firearms
from federal firearms licensees. Private transactions between persons “not engaged in the
business” are not covered by the recordkeeping or the background check provisions of the GCA.
These transactions and other matters such as possession, registration, and the issuance of licenses
to firearm owners may be covered by state laws or local ordinances. For a listing of other major
firearm and related statutes, see the Appendix.
Firearm Transfer and Possession Eligibility
Under current law, there are nine classes of persons prohibited from possessing firearms: (1)
persons convicted in any court of a crime punishable by imprisonment for a term exceeding one
year; (2) fugitives from justice; (3) drug users or addicts; (4) persons adjudicated mental
defectives or committed to mental institutions; (5) unauthorized immigrants and most non
immigrant 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) and (n)).
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Since 1994, moreover, it has been a federal offense for any non licensed person to transfer a
handgun to anyone younger than 18 years old. It has also been illegal for anyone younger than 18
years old 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)).
Licensed Dealers and Firearm Transfers
Under current law, federal firearms 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 FBI through a background check that non licensed persons
are eligible to possess a firearm before subsequently transferring a firearm to them. Licensees
must also verify the identity of non licensed transferees by inspecting a government-issued
identity document (e.g., a driver’s license).
Licensees may engage in interstate transfers of firearms among themselves without conducting
background checks. Licensees may transfer long guns (rifles and shotguns) to out-of-state
residents, as long as the transactions are face-to-face and not knowingly in violation of the laws
of the state in which the unlicensed transferees reside. Licensees, however, may not transfer
handguns to unlicensed out-of-state residents. Transfer of handguns by licensees to anyone
younger than 21 years old is also prohibited, as is the transfer of long guns to anyone younger
than 18 years old (18 U.S.C. §922(b)). Also, licensees are required to submit “multiple sales
reports” to the Attorney General if any person purchases two or more handguns within five
business days.
Furthermore, licensees are required to maintain records on all acquisitions and dispositions of
firearms. They are obligated to respond to ATF agents requesting firearm tracing information
within 24 hours. Under certain circumstances, ATF agents may inspect, without search warrants,
their business premises, inventory, and gun records.
Private Firearm Transfers
Non licensees are prohibited from acquiring firearms from out-of-state sources (except for long
guns acquired from licensees under the conditions described above). Non licensees 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 non licensees 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.29
Brady Handgun Violence Prevention Act
After seven years of extensive public debate, Congress passed the Brady Handgun Violence
Prevention Act of 1993 (P.L. 103-159, the Brady Act)30 as an amendment to the Gun Control Act
29 For further information, see CRS Report RS20957, Internet Firearm Sales, by T. J. Halstead.
30 107 Stat. 1536, November 30, 1993.
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of 1968, requiring background checks for firearm transfers between federally licensed firearm
dealers and non-licensed persons. The Brady Act included both interim and permanent provisions.
Interim Provisions
Under the interim provisions, which were in effect through November 1998, background checks
were required for handgun transfers, and licensed firearm dealers were required to contact local
chief law enforcement officers (CLEOs) to determine the eligibility of prospective customers to
be transferred a handgun. The CLEOs were given up to five business days to make such
eligibility determinations.
Permanent Provisions
Under the Brady permanent provisions, Congress required the Attorney General to establish a
national instant criminal background check system (NICS) by November 1998. In turn, the
Attorney General delegated this responsibility to the FBI. Today, the FBI’s Criminal Justice
Information Services (CJIS) division maintains the NICS. Under the Brady permanent provisions,
federally licensed firearm dealers are required to contact the FBI or state authorities, who in turn
contact the FBI, to determine whether prospective customers are eligible to be transferred a
handgun or long gun. The FBI and state authorities have up to three business days to make such
eligibility determinations. It is notable that federal firearms laws serve as the minimum standard
in the United States. States may choose, and have chosen, to regulate firearms more strictly. For
example, some states require set waiting periods and/or licenses for firearm transfers and
possession.
POC and Non-POC States
Although the FBI handles background checks entirely for some states, other states serve as full or
partial points of contact (POCs) and federal firearms licensees contact a state agency, and the
state agency contacts the FBI for such checks. In 14 states, state agencies serve as full POCs and
conduct background checks for both long gun and handgun transfers. In four states, state agencies
serve as partial POCs for handgun permits, whereas in another four states, state agencies serve as
partial POCs for handgun transfers only. In these eight partial POC states, checks for long gun
transfers are conducted entirely through the FBI. In the 28 non-POC states, the District of
Columbia, and four territories (Guam, Northern Mariana Islands, Puerto Rico, and the Virgin
Islands), federal firearms licensees contact the FBI directly to conduct background checks
through NICS for both handgun and long gun checks.
For state agencies (POCs), background checks may not be as expeditious, but they may be more
thorough, because state agencies may have greater access to databases and records that are not
available through NICS. According to the Government Accountability Office (GAO), this is
particularly true for domestic violence misdemeanor offenses and protective orders.31
31 For further information, see GAO, Gun Control: Opportunities to Close Loopholes in the National Instant Criminal
Background Check System, GAO-02-720, July 2002, p. 27.
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Brady Background Check Statistics
Through calendar year 2005, nearly 70 million background checks for firearm transfer
applications occurred under both the interim and permanent provisions of the Brady Act.32 Of this
number, nearly 1,360,000 background checks, or about 1.9%, resulted in firearm transfers being
denied.33 Under the interim provisions, nearly 13 million firearm background checks (for
handguns) were completed during that four-year period, resulting in 312,000 denials.34 Under the
permanent provisions of the Brady Act, more than 57 million checks were completed, resulting in
over 1 million denials, or a 2% denial rate.35 Nearly 32 million of these checks were completed
entirely by the FBI for non-POC states, the District, and four territories.36 Those checks resulted
in a denial rate of 1.5%.37 More than 25 million checks were conducted by full or partial POC
states.38 Those checks resulted in a higher denial rate of 2.3%.39
System Delayed Transfers
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 two hours. The remaining 20% of delayed transactions took hours or days for the FBI
NICS examiners to reach a final determination.40
In many cases, firearm transfers 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 three business days to determine the outcome of the
charge and, thus, establish the eligibility of the transferee to possess a firearm. The FBI reported
that, from July 2002 through March 2003, the immediate determination rate for NICS increased
to 91%, compared with less than 77% from November 2001 through July 2002.41
Systems Availability
NICS 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,
32 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Background Checks for Firearm
Transfers, 2005, November 2004, p. 1.
33 Ibid.
34 Ibid.
35 Ibid., p. 2.
36 Ibid.
37 Ibid.
38 Ibid.
39 Ibid.
40 For further information, see GAO, Gun Control: Implementation of the National Instant Criminal Background Check
System, GGD/AIMD-00-64, p. 68. (Hereafter cited as GAO, Implementation of NICS.)
41 See National Instant Criminal Background Check System (NICS): 2001/2002 Operational Report, May 2003, p. 8.
(Hereafter cited as NICS 2001/2002 Operational Report.)
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that in the first year of NICS operation, the FBI had achieved its system availability goal of 98%
for four months. System availability for the remaining eight months averaged 95.4%.42 The FBI
reports that NICS service availability was increased to 99% in FY2001 and FY2002.43 During
consideration of legislation in the 106th Congress to extend the Brady Act background check
provisions to all firearm transfers at gun shows, the capacity of NICS to instantaneously
accomplish these checks became a major stumbling block to enactment.
Legislative Action in the 110th and 111th Congresses
In the 110th Congress and in the wake of the Supreme Court decision in District of Columbia v.
Heller that the DC handgun ban violated an individual’s right under the Second Amendment to
possess a handgun, the House of Representatives passed legislation to overturn certain related DC
gun laws. Some Members of Congress maintained that the DC Council had not changed its laws
to adequately reflect the “spirit” of the Supreme Court’s decision. In the 111th Congress, pro gun
Members of the Senate amended the DC voting rights bill (S. 160) with a similar amendment and
passed that bill on February 26, 2009. House leadership, meanwhile, has reportedly been
negotiating to end the impasse over the District’s gun laws and bring its version of the DC voting
rights bill (H.R. 157) to the floor. Also, in the 111th Congress, the Credit CARD Act of 2009 (H.R.
627; P.L. 111-24) was successfully amended with a provision that would allow people to carry
firearms in national parks and wildlife refuges.
The 110th Congress also passed, and the President signed, a bill designed to strengthen Brady
background checks for firearm transfers as a response to the tragic events at Virginia Tech on
April 16, 2007, and other shootings. The Senate Judiciary Committee approved a bill that would
have revamped procedures by which Veterans are adjudicated “mentally incompetent” and, thus,
lose their firearms eligibility. The House passed legislation that would have prohibited public
housing authorities from barring tenants from possessing legal firearms as a condition of their
lease. The Senate leadership prevented consideration by that body of a proposal that would have
overturned federal regulations prohibiting the possession of loaded and concealed firearms in
National Parks and Wildlife Refuges.
In addition, the Senate Judiciary Committee reported legislation that would have amended the
Law Enforcement Officers Safety Act (P.L. 108-277), a law that gives concealed carry privileges
to certain qualified active-duty and retired law enforcement officers. Furthermore, Congress
reconsidered and made permanent certain funding limitations placed on the ATF that restrict the
release of firearm trace and multiple handgun sales report data. Many of these firearms-related
matters could reemerge in the 111th Congress.
Constitutionality of DC Handgun Ban and Related Legislation
On June 26, 2008, the Supreme Court issued its decision in District of Columbia v. Heller on the
constitutionality of a DC gun law that banned handguns for 32 years, among other things. Passed
by the DC Council on June 26, 1976, the DC handgun ban required that all firearms within the
District be registered, all owners be licensed, and prohibited the registration of handguns after
42 See GAO, Implementation of NICS, p. 94.
43 See NICS 2001/2002 Operational Report, p. 6.
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September 24, 1976. In a 5-4 decision, the Supreme Court found the handgun ban to be
unconstitutional, because it violated an individual’s right under the Second Amendment to
possess a handgun in his home for lawful purposes such as self defense.44
DC Council Passes Emergency Law
On July 15, 2008, the DC Council passed a temporary, emergency law that allowed residents
through a registration/certificate process to keep a handgun in their home as long as that firearm
had a capacity of fewer than 12 rounds of ammunition and was not loadable from a magazine in
the handgrip, which in effect limited legal handguns under the temporary law to revolvers as
opposed to semiautomatic pistols. The emergency law also continued to require that handguns be
kept unloaded or disassembled or trigger locked, unless an attack in a home was imminent or
underway. Pro gun groups immediately criticized the Council’s emergency law for not being in
the “spirit” of the Supreme Court’s decision, because it continued to ban semiautomatic pistols
and did not fully roll back the trigger lock requirement. Since the initial emergency law was
passed, the DC Council has passed several other pieces of similar temporary, emergency laws
related to the Heller decision. These laws include new firearms-related provisions that were also
included in permanent legislation passed by the DC Council that is described below.
Legislation Related to DC Gun Laws
Several pro gun Members of Congress were dissatisfied with the DC Council’s temporary law.
On July 24, 2008, Representative Mike Ross filed a motion to discharge the Rules Committee
from consideration of H.Res. 1331, a resolution that would have provided for the consideration of
a bill to restore Second Amendment rights in the District of Columbia (H.R. 1399).45 This bill was
similar to previous bills introduced by Representative Mark Souder and Senators Kay Bailey
Hutchison and Orrin Hatch in previous congresses. Representative Ross introduced H.R. 1399 in
the 110th Congress for himself and Representative Souder on March 27, 2007, and Senator
Hutchison introduced a companion measure (S. 1001) on March 28, 2007.
In the 110th Congress, Representative Travis Childers introduced a similar bill (H.R. 6691) on
July 31, 2008. All three bills would have amended the DC Code to
• limit the Council’s authority to regulate firearms;
• remove semi-automatic firearm that can fire more than 12 rounds without
manually reloading from the definition of “machine gun”;
• amend the registration requirements so that they do not apply to handguns, but
only to sawed-off shotguns, machine guns, and short-barreled rifles;
• remove restrictions on ammunition possession;
• repeal requirements that DC residents keep firearms in their possession unloaded
and disassembled, or bound by a trigger lock;
• repeal firearm registration requirements generally; and
44 For legal analysis, see CRS Report R40137, District of Columbia v. Heller: The Supreme Court and the Second
Amendment, by Vivian S. Chu.
45 Under the Home Rule Act (P.L. 93-198), Congress has reserved for itself the authority to legislate for the District.
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• repeal certain criminal penalties for possessing or carrying unregistered firearms.
Representatives John Dingell, John Tanner, and Mike Ross reportedly negotiated an agreement
with the House leadership to consider H.R. 6691 in early September.46 H.R. 6691 included
language that stated as a congressional finding that DC officials “have indicated their intention to
continue to unduly restrict law firearm possession and use by citizens of the District.” H.R. 6691
also included a provision that would have allowed DC residents to purchase firearms from
federally licensed gun dealers in Virginia and Maryland.
On September 9, 2008, the House Oversight and Government Reform Committee held a hearing
on the possible effects of H.R. 6691 might have on the District. On the same day, Representative
Eleanor Holmes Norton introduced H.R. 6842, a bill that would have required the DC Mayor and
Council to ensure that regulations were promulgated that would have been consistent with the
Heller decision. On September 15, 2008, the House Oversight and Government Reform
Committee reported H.R. 6842 (H.Rept. 110-843). On September 17, 2008, however, the House
amended H.R. 6842 with the text of H.R. 6691 and passed the Childers’ bill.
DC Council Passes Permanent Legislation
On December 16, 2008, the DC Council passed the Firearms Control Amendment Act of 2008
(FCAA; B17-0843) and the Inoperable Pistol Amendment Act of 2008 (IPAA; B17-0593).47
Mayor Adrian Fenty signed the FCAA into law on January 28, 2009. This bill was transmitted to
Congress on February 10, 2009. From the day of transmittal, Congress had 30 legislative days to
review this bill under the DC Home Rule Act (according to the District of Columbia). Among
other things, this law amends the DC code to
• adopt the federal definition of “machine gun,” which does not include
semiautomatic pistols;
• prohibit the possession and registration of “assault weapons” and rifles capable
of firing .50 caliber Browning Machine Gun (BMG) rounds; and
• require that all firearms made after January 1, 2011 be microstamped.48
Many provisions of this law, including the assault weapons ban and the microstamping
provisions, were modeled after California state law.
Mayor Fenty signed IPAA into law on January 16, 2009. It was transmitted to Congress on
February 4, 2009. Because the bill includes penalty provisions, Congress has 60 legislative days
to review this bill under the DC Home Rule Act. Among other things, this permanent legislation
amends the DC code to
46 Keith Perine and Seth Stern, “House Democrats Plan Vote To Roll Back D.C. Gun Laws,” CQ Today Online News,
August 5, 2008.
47 For further information on these bills, as well as the Ensign amendment, see CRS Report R40474, D.C. Gun Laws
and Proposed Amendments: A Comparative Analysis of S.Amdt. 575 and the District’s Gun Proposals, by Vivian S.
Chu.
48 Microstamping is an emerging technology by which a firearm’s serial number is engraved microscopically with a
laser onto the breech face or firing pin of a firearm. When the firearm is fired, the serial number is “stamped” upon the
cartridge casing. If a microstamped cartridge is subsequently recovered at a crime scene, the firearm’s serial number
could potentially yield additional leads for law enforcement.
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• criminalize the possession of inoperable firearms;
• criminalize the discharge of firearms;
• prohibit carrying a rifle or shotgun;
• allow for the transportation of firearms under the same conditions as permitted
under federal law; and
• change the waiting period to purchase a firearm from 48 hours to 10 days.
According to the District of Columbia, this legislation is expected to become law on May 21,
2009, unless Congress acts to overturn this bill.
DC Voting Rights and Gun Laws in the 111th Congress
On February 26, 2009, Senator John Ensign successfully amended (S.Amdt. 576) the District of
Columbia House Voting Rights Act of 2009 (S. 160) by a yea-nay vote of 62-36 (Record Vote
Number 72) with language that would overturn certain DC guns laws and prevent the District
from legislating in these areas in the future. The Senate passed this bill on the same day by a yea-
nay vote of 61-37 (Record Vote Number 73). Reportedly, the House leadership has negotiated to
end the impasse over the DC gun laws and bring its version of the DC voting rights bill (H.R.
157) to the floor.49
DC Voting Rights Act of 2007
Foreshadowing the contentiousness of the DC gun ban issue, Representative Lamar Smith had
previously scuttled the District of Columbia House Voting Rights Act of 2007 (H.R. 1433) on
March 22, 2007, when he offered a motion to recommit the bill to the House Oversight and
Government Reform Committee for consideration of an amendment to repeal portions of the DC
handgun ban.50 Rather than vote on the motion, debate on H.R. 1433 was postponed indefinitely.
NICS Improvement Amendments Act of 200751
In the wake of the VA Tech tragedy, the 110th Congress passed legislation to improve firearms-
related background checks. The Senate amended and passed the NICS Improvement Amendments
Act of 2007 (H.R. 2640) following lengthy negotiations, as did the House, on December 19,
2007, clearing that bill for the President’s signature. President Bush signed this bill into law on
January 8, 2008 (P.L. 110-180). The enacted NICS amendments:
49 Edward Epstein and Michael Teitelbaum, “Hoyer Expresses Optimism About Chance D.C. Vote Bill Will Come to
Floor,” CQ Today, March 24, 2009.
50 Jonathan Allen, “Gun-Rights Gambit Sidetracks D.C. House Vote,” CQ Today, March 22, 2007; and for further
information on H.R. 1433, see CRS Report RL33830, District of Columbia Voting Representation in Congress: An
Analysis of Legislative Proposals, by Eugene Boyd.
51 As described in greater detail above, the National Instant Criminal Background Check System (NICS) is
administered by the FBI, so that federally licensed gun dealers can process a background check to determine a
customer’s eligibility to possess a firearm before proceeding with a transaction.
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• strengthen a provision in the Brady Handgun Violence Prevention Act (P.L. 103-
159) that requires 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;
• require states, as a condition of federal assistance, to make available to the
Attorney General certain records that would disqualify persons from acquiring a
firearm for inclusion in the FBI-administered National Instant Criminal
Background Check System (NICS), particularly those records related to
convictions for misdemeanor crimes of domestic violence and persons
adjudicated as mentally defective;52
• require states, as a condition of federal assistance, as well as federal agencies like
the Department of Veterans Affairs (VA), to establish administrative relief
procedures under which a person who has been adjudicated mental defective
could apply to have his firearms possession and transfer eligibility restored;53
• authorize additional appropriations for grant programs to help states, courts, and
local governments establish or improve automated record systems; and
• prohibit the FBI from collecting any fees for such background checks.
H.R. 2640 was introduced by Representative Carolyn McCarthy and co-sponsored by
Representative John Dingell. As passed by the House, by a voice vote, on June 13, 2007, H.R.
2640 reportedly reflected a compromise between groups favoring and opposing greater gun
control.54 The Senate Judiciary Committee approved similar, but not identical, NICS
improvement amendments as part of the School Safety and Law Enforcement Improvement Act
of 2004 on August 2, 2007, and reported this bill on September 21, 2007 (S. 2084; S.Rept. 110-
183).
The Senate Judiciary Committee included four other measures in S. 2084. With some
modification, those measures included the School Safety Improvements Act (S. 1217), the Equity
in Law Enforcement Act (S. 1448), the PRECAUTION Act (S. 1521), the Terrorist Hoax
Improvements Act (S. 735), and the Law Enforcement Officers Safety Act of 2007 (LEOSA, S.
376). Support for the NICS improvement and the LEOSA amendments (described below) in S.
52 Under 27 CFR 478.11, the term “adjudicated as mental defective” includes a determination by a court, board,
commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness,
incompetency, condition, or disease (1) is a danger to himself or others, or (2) lacks the mental capacity to manage his
own affairs. The term also includes (1) a finding of insanity by a court in a criminal case and (2) those persons found
incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b
of the Uniform Code of Military Justice, 10 U.S.C. §850a, 876(b).
53 Federal law authorizes the Attorney General to consider applications from prohibited persons for relief from
disqualification (18 U.S.C. §925(c)). Since FY1993, however, Congress has attached an appropriations rider on the
ATF salaries and expenses account that prohibits the expenditure of any funding under that account to process such
applications.
54 Jonathan Weisman, “Democrats, NRA Reach Deal on Background-Check Bill,” Washington Post, June 10, 2007, p.
A02.
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2084 was reportedly divided and uneven, however.55 Citing privacy and cost issues related to the
NICS amendments, Senator Coburn reportedly placed a hold on that legislation.56
In addition, some opposition to NICS improvement amendments had coalesced around an
assertion made by Larry Pratt of Gun Owners of America that, under these amendments, any
veteran who was or had been diagnosed with Posttraumatic Stress Disorder (PTSD)57 and was
found to be a “danger to himself or others would have his gun rights taken away ... forever.”58
Under current law, however, any veteran or other VA beneficiary who is adjudicated or
determined to be mental defective, because he poses a danger to himself or others, or is incapable
of conducting his day-to-day affairs, is ineligible to possess a firearm. A diagnosis of PTSD in
and of itself is not a disqualifying factor for the purposes of gun control under the NICS
improvement amendments or previous law. Under the enacted NICS improvement amendments,
VA beneficiaries who have been determined to be mental defective could appeal for
administrative relief and possibly have their gun rights restored if they could demonstrate that
they were no longer afflicted by a disqualifying condition.
Veterans, Mental Incompetency, and Firearms Eligibility
On June 26, 2008, in full committee markup, Senator Burr successfully amended the Veterans’
Medical Personnel Recruitment and Retention Act of 2008 (S. 2969) with language that would
have provided that “a veteran, surviving spouse, or child who is mentally incapacitated, deemed
mentally incompetent, or experiencing an extended loss of consciousness shall not be considered
adjudicated as a mental defective” for purposes of the Gun Control Act, “without the order or
finding of a judge, magistrate, or other judicial authority of competent jurisdiction that such
veteran, surviving spouse, or child is a danger to him or herself or others.”
Mental Defective Adjudications
Under 27 CFR §478.11, the term “adjudicated as a mental defective” includes a determination by
a court, board, commission, or other lawful authority that a person, as a result of marked
subnormal intelligence, or mental illness, incompetency, condition, or disease (1) is a danger to
himself or others, or (2) lacks the mental capacity to manage his own affairs. The term also
includes (1) a finding of insanity by a court in a criminal case and (2) those persons found
incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant
to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. §§850a, 876(b).
55 David Rogers, “Democrats Stall on Gun-Records Bill: Despite Support, Background-Check Measure Staggers in
Senate Amid Infighting,” Wall Street Journal, September 21, 2007, p. A6.
56 Seth Stern, “Coburn Blocks Gun Background-Check Bill, Citing Concerns About Privacy, Spending,” CQ Today,
September 25, 2007.
57 PTSD is an anxiety disorder that can occur after one has been through a traumatic event. Symptoms may manifest
soon after the trauma, or may be delayed. For further information, see U.S. Department of Veterans Affairs, National
Center for Posttraumatic Stress Disorder, Fact Sheet, available at
http://www.ncptsd.va.gov/ncmain/ncdocs/fact_shts/fs_what_is_ptsd.html.
58 Larry Pratt, “Veterans Disarmament Act To Bar Vets From Owning Guns,” September 23, 2007, available at
http://www.prisonplanet.com/articles/september2007/230907Disarmament.htm.
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This definition of “mental defective” was promulgated by the ATF in a final rule published on
June 27, 1997.59 In the final rule, the ATF noted that the VA had commented on the “proposed
rulemaking” and had correctly interpreted that “adjudicated as a mental defective” includes a
person who is found to be “mentally incompetent” by the Veterans Benefit Administration
(VBA). Under veterans law, an individual is considered “mentally incompetent” if he or she lacks
the mental capacity to contract or manage his or her own affairs for reasons related to injury or
disease (under 38 CFR § 3.353).60 In a proposed rulemaking, the ATF opined that the inclusion of
“mentally incompetent” in the definition of “mental defective” was wholly consistent with the
legislative history of the 1968 Gun Control Act.61 Reportedly, the VA could have been the only
federal agency that had promulgated a definition like “mentally incompetent” that overlapped
with the term “mental defective.”62
Veterans, Mental Incompetency, Firearms Eligibility
In November 1998, the VBA provided the FBI with disqualifying records on 88,898 VA
beneficiaries, whom VA rating specialists had determined to be “mentally incompetent” based on
medical evidence that they were incapable of managing their own affairs.63 Thus, a fiduciary (or
designated payee) was appointed for them. During the determination process, beneficiaries were
notified that the VA was proposing to rate them “mentally incompetent,” and they were able to
submit evidence to the contrary if they wished.64 This determination process is still followed
today at the VA.65
The Veterans Medical Administration has not submitted any disqualifying records on VA
beneficiaries to the FBI for inclusion in NICS for any medical/psychiatric reason (like PTSD),
unless those veterans had been involuntarily committed under a state court order to a VA medical
facility because they posed a danger to themselves or others. In those cases, the state in which the
court resides would submit the disqualifying record to the FBI, if such a submission would be
appropriate and permissible under state law.66
Nevertheless, the decision by the VA to submit VBA records on “mentally incompetent” veterans
to the FBI for inclusion in the NICS mental defective file generated some degree of controversy
in 1999 and 2000.67 Critics of this policy underscored that veterans routinely consented to
mentally incompetent determinations so that a fiduciary (designated payee) could be appointed
for them. Those critics contended that to take away a veteran’s Second Amendment rights without
59 Federal Register, vol. 62, no. 124, June 27, 1997, p. 34634.
60 Federal Register, vol. 61, no. 174, September 6, 1996, p. 47095.
61 Ibid.
62 Personal communication with Compensation and Pension Program staff, Department of Veterans Affairs, July 9,
2008.
63 Ibid.
64 Ibid.
65 Ibid.
66 For further information on the treatment of mental illness and substance abuse for the purposes of gun control, see
Donna M. Norris, M.D., et al., “Firearm Laws, Patients, and the Roles of Psychiatrists,” American Journal of
Psychiatry, August 2006, pp. 1392-1396.
67 John Dougherty, “VA Give FBI Health Secrets: Veterans’ Records Could Block Firearms Purchases,” WorldNet
Daily.com, June 22, 2000; and “VA Defends Vets’ Records Transfers to NICS System,” New Gun Week, vol. 35, issue
1650, July 10, 2000, p. 1.
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his foreknowledge was improper. They also pointed out that no other federal agencies were
providing similar disqualifying records to the FBI. This controversy subsided, but it reemerged
when Congress considered the NICS improvement amendments (described above). Also, as of
April 30, 2008, VA records made up about one-fifth (or 21.0%) of all the 552,800 federal and
state records in the NICS mental defective file. Senator Burr introduced a bill, the Veterans 2nd
Amendment Protection Act (S. 3167), that would have achieved the same ends as his amendment
to S. 2969.
Public Housing and Firearms Possession and Use
On July 9, 2008, the House passed legislation that would have made changes related to the
administration of the public housing program (H.R. 6216) administered by the Department of
Housing and Urban Development (HUD) through local public housing authorities (PHAs). The
bill includes a provision that would have prohibited the HUD Secretary from accepting as
reasonable any management or related fees charged by a PHA for enforcing any provision of a
lease agreement that requires tenants to register firearms that are otherwise legally possessed, or
prohibits their possession outright. On the other hand, the bill would have allowed PHAs to
terminate the lease of any tenant who was found illegally using a firearm.
The gun-related provision in H.R. 6216 reportedly reflected a compromise.68 The original
language restricting fees for enforcing gun restrictions was included in a motion to recommit
offered during floor debate on a similar public housing bill (H.R. 3521). That bill was not
approved by the House, but was sent back to the House Financial Services Committee for further
consideration. A new version of the public housing bill (H.R. 5829) was introduced that included
language from the motion to recommit, but it did not include the lease termination proviso, and
the bill received no further consideration.
Public Lands and Firearms Possession and Use
In the 111th Congress, Senator Tom Coburn successfully amended the Credit CARD Act of 2009
(H.R. 627) with a provision (S.Amdt. 1058) that would allow people to carry firearms in national
parks and wildlife refuges. This amendment passed by 67 to 29 (Record Vote Number: 188) on
May 12, 2009. Under H.Res. 456, the House voted on the Coburn amendment as a separate
measure and passed it by a vote of 279 to 147. President Barrack Obama signed H.R. 627 into
law on May 22, 2009 (P.L. 111-24).
Previously, in the 110th Congress, during consideration of a public land bill (S. 2483), Senator
Coburn offered, but later withdrew, an amendment (S.Amdt. 3967) that would have overturned
federal regulations that prohibit visitors to parks and wildlife refuges managed by the National
Park Service (NPS)69 and Fish and Wildlife Service (FWS)70 from possessing operable and loaded
firearms. While these regulations were last revised substantively in 1981 and 1983, similar
firearm restrictions were promulgated in the 1930s in an effort to curb poaching and other illegal
activities. There are exceptions for hunting and marksmanship under current law. Since the 1980s,
however, many states have passed laws that allow persons to carry concealed handguns for
68 Seth Stern, “House to Try Again on Public Housing Bill,” CQ Today, July 8, 2008.
69 36 Code of Federal Regulations Part 2.
70 50 Code of Federal Regulations Part 27.
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personal protection. Although 48 states have “concealed carry” laws, only 24 of those states
reportedly allow concealed handguns to be carried in state parks.71
On April 30, 2008, at the urging of pro-gun Members of Congress in part, the Department of
Interior (DOI) published proposed regulations that would authorize the possession of loaded and
concealed firearms, as long as carrying those firearms in that fashion would be legal under the
laws of the states where the public lands are located.72 While the initial comment period was
scheduled to end on June 30, 2008, it was extended until August 8, 2008.73 DOI reported
receiving approximately 90,000 comments on those proposed regulations. Final regulations were
issued on December 10, 2008.74 Those regulations took effect on January 9, 2009. However, on
March 19, a U.S. District Judge issued a preliminary injunction on the regulations in a lawsuit
brought by three groups: the Brady Campaign to Prevent Gun Violence, the National Parks
Conservation Association, and the Coalition of National Park Service Retirees.75 On March 20,
the NRA filed a notice to appeal in Federal District Court in opposition to the preliminary
injunction.
Senator Coburn had also introduced a bill, the Protecting Americans from Violent Crime Act of
2008 (S. 2619), that was very similar to his proposed amendment and DOI’s proposed
regulations. Supporters of those proposals pointed to a reported rise in illegal activities and
violent crime on public lands. Opponents argued that the risk of a violent crime encounter in
National Parks and Wildlife Refuges was negligible.76 They argued further that allowing others to
carry loaded and concealed handguns on their person would make them less safe. In the 111th
Congress, similar measures were introduced by Representative Doc Hastings and Senator Mike
Crapo (H.R. 1684/S. 816).
Law Enforcement Officers Safety Act of 2007
On September 5, 2007, the Senate Judiciary Committee reported the Law Enforcement Officers
Safety Act of 2007 (S. 376; S.Rept. 110-150). This bill was introduced by Senator Leahy, Chair of
the Judiciary Committee. Representative Forbes introduced a similar bill (H.R. 2726). As
described above, the language of S. 376 was incorporated into S. 2084 when that bill was
reported on September 21, 2007 (S.Rept. 110-183). That language would have amended the Law
Enforcement Officers Safety Act (LEOSA, P.L. 108-277), which authorizes certain qualified
active-duty and retired police officers to carry concealed firearms across state lines.
The Senate-reported LEOSA amendments would have (1) clarified that certain AMTRAK and
executive branch law enforcement officers are eligible for concealed carry privileges under P.L.
71 Warren Richey, “Bid to Allow Guns in National Parks,” Christian Science Monitor, August 19, 2008, p. 3.
72 73 Federal Register 23388.
73 73 Federal Register 39272.
74 Department of the Interior, National Park Service, “General Regulations for Areas Administered by the National
Park Service and the Fish and Wildlife Service,” 73 Federal Register 74966-74972, December 10, 2008.
75 Juliet Eilperin and Del Quentin Wilber, “Judge Blocks Rule Permitting Concealed Guns in U.S. Parks,” Washington
Post, March 20, 2009, p. A09.
76 CRS compilation of FBI Uniform Crime Reports data show that from 2002 through 2006 there were 15 murders and
non-negligent homicides reported by the FWS and 48 reported by the NPS. However, FWS reports all crimes
encountered by its agents, whether or not they occurred on refuge land. It is difficult to determine how many of the 15
murders occurred on refuges.
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108-277, (2) reduced the length of service criterium for eligibility under that law from 15 to 10
years, and (3) clarified other provisions of the law related to certification and credentialing. In the
109th Congress, the Senate amended H.R. 1751 with similar LEOSA provisions and passed that
measure.
Tiahrt Amendment and Firearm Trace Data Limitations
Representative Todd Tiahrt offered an amendment that placed several funding restrictions and
conditions on ATF and the FBI during full committee markup of the FY2004 DOJ appropriations
bill (H.R. 2799). While modified, those restrictions were included in the Consolidated
Appropriations Act, 2004 (P.L. 108-199). Amended to the ATF appropriations every year since
(FY2005-FY2008) and with language making them permanent law, the Tiahrt restrictions
• prohibit the use of any funding appropriated for ATF to disclose firearm trace or
multiple handgun sales report data for any purpose other than supporting “bona
fide” criminal investigation or agency licensing proceeding,
• prohibit the use of any funding appropriated for ATF to issue new regulations that
would require licensed dealers to conduct physical inventories of their
businesses, and
• require the next-day destruction of approved Brady background check records.
Of these limitations, the first dealing with disclosure of firearm trace or multiple handgun sales
report data was and is probably the most contentious. A coalition of U.S. mayors, including New
York City Mayor, Michael Bloomberg, maintain that they should have access to such data in
order to identify out-of-state federally licensed gun dealers who wittingly or unwittingly sell large
numbers of firearms to illegal gun traffickers.
For FY2008, the Tiahrt limitation on firearm trace and multiple handgun sales report data was the
source of debate, when the Senate CJS Appropriations Subcommittee did not include this
limitation in its draft bill. Senator Richard Shelby amended the FY2008 CJS appropriations bill
(which became S. 1745) with similar, but modified, limitations in full committee markup. Similar
language was included in the House-passed CJS appropriations bill (H.R. 3093), and was
included in the Consolidated Appropriations Act, 2008 (P.L. 110-161; H.R. 2764), into which the
CJS appropriations were folded.77 The modified FY2008 limitation included new language that
authorizes ATF to
• share firearms trace data with tribal and foreign law enforcement agencies and
federal agencies for national intelligence purposes;
• share firearms trace data with law enforcement agencies and prosecutors to
exchange among themselves; and
• release aggregate statistics on firearms traffickers and trafficking channels, or
firearms misuse, felons, and trafficking investigations.
77 For further information, see CRS Report RS22458, Gun Control: Statutory Disclosure Limitations on ATF Firearms
Trace Data and Multiple Handgun Sales Reports, by William J. Krouse.
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The FY2008 limitation, however, continues to prohibit the release of firearms trace data for the
purposes of suing gun manufacturers and dealers. Moreover, the limitation includes the phrase,
“in fiscal year 2008 and thereafter,” which makes the limitation permanent law according to the
Government Accountability Office.78
Firearms Enforcement-Related Funding Bills
The 110th Congress has considered legislation that either funds the ATF or authorizes increased
appropriations for that law enforcement agency.
ATF Appropriations for FY2008 and FY2009 79
The ATF enforces federal criminal law related to the manufacture, importation, and distribution of
alcohol, tobacco, firearms, and explosives. ATF works both independently and through
partnerships with industry groups, international, state and local governments, and other federal
agencies to investigate and reduce crime involving firearms and explosives, acts of arson, and
illegal trafficking of alcohol and tobacco products.
From FY1999 to FY2008, Congress increased ATF appropriations from $541.6 million to nearly
$1.008 billion, an increase of 86%. The FY2008 funding includes $984.1 million for salaries and
expenses and $23.5 million for construction. For the same 10 years, with some fluctuation, ATF
staffing increased from 3,969 to 4,880 full-time equivalent (FTE) positions, a 23% increase.
Despite increased funding, the acting ATF Director, Michael Sullivan, recently testified before
Congress that ATF was currently operating under a $37 million shortfall, as funding for ATF
salaries and expenses was not increased for FY2008. Meanwhile, Congress provided an
additional $4 million in the Supplemental Appropriations Act, 2008 (P.L. 110-252) for ATF
operations in Iraq.
For FY2009, the Administration requested $1.028 billion and 4,942 FTE positions for ATF
salaries and expenses, or $44 million and 62 FTE positions more than the amounts appropriated
for FY2008 ($984 million, not counting the $4 million supplemental). According to ATF, the
FY2009 request would be allocated among ATF budget decision units in the following amounts:
$740 million (72%) for firearms compliance and investigations, $267.2 million (26%) for arson
and explosives investigations, and $20.6 million (2%) for alcohol and tobacco diversion.
The House Appropriations Committee reported an FY2009 Commerce, Justice, Science, and
Related Agencies (CJS) appropriations bill (H.R. 7322) that would have provided $1.054 billion
million for ATF, $70 million (4.6%) more than the FY2008 enacted level and $26 million (2.6%)
more than the FY2009 request. House report language indicated that the House bill would have
provided an increase of $5 million for “Project Gunrunner,” a southwest border initiative to
reduce illegal gun trafficking from the United States to Mexico. The Senate-reported bill (S.
3182) would have provided $1.043 billion, $35 million (3.5%) more than the FY2008 enacted
78 U.S. Government Accountability Office, “Bureau of Alcohol, Tobacco, Firearms, and Explosives—Prohibition in the
2008 Consolidated Appropriations Act,” July 15, 2008, available at
http://www.gao.gov/decisions/appro/316510.pdf.
79 For further information, see CRS Report RL34514, The Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF): Budget and Operations, by William J. Krouse.
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level and $15 million (1.5%) over the FY2009 request. Senate report language indicated that the
Senate bill would have provided an increase of $15.0 million to expand ATF’s Violent Crime
Impact Teams. Both House and Senate report language expressed the committees’ continued
support of ATF’s National Integrated Ballistic Information Network.
ATF operated under two continuing resolutions that funded the bureau at its FY2008 level
through March 11, 2009. Congress then passed the Omnibus Appropriations Act, 2009 (H.R.
1105), which the President signed into law (P.L. 111-8) on March 11, 2009. The Omnibus
included $1.054.2 million for the ATF, the same as the House-reported bill and 1.1% more than
the Senate-reported bill. The amount for the ATF is 4.2% greater than the FY2008 enacted
appropriation and 2.6% greater than the FY2009 request. It includes an increase of not less than
$5 million of Project Gunrunner. The American Recovery and Reinvestment Act of 2009 (P.L.
111-5) includes $40 million for grants to support state and local law enforcement along the
southern border or in High-Intensity Drug Trafficking Areas (HIDTA), of which $10 million is to
be transferred to ATF for Project Gunrunner.
Merida Initiative and Southwest Border Gun Trafficking
On the southwest border with Mexico, firearms violence has spiked sharply in recent years as
drug trafficking organizations have reportedly vied for control of key smuggling corridors into the
United States. In March 2008, President Felipe Calderón called on the United States to increase
its efforts to suppress gun trafficking from the United States into Mexico. As part of the Merida
Initiative,80 the House passed a bill (H.R. 6028) that would authorize to be appropriated over
three years, for FY2008 through FY2010, a total of $73.5 million to increase ATF resources
dedicated to stemming illegal gun trafficking into Mexico. Similar authorizations were included
in S. 2867, H.R. 5863, and H.R. 5869.
Legislative Action in the 109th Congress
In the 109th Congress, gun control-related legislative action included (1) passage of two laws; (2)
the approval of four bills by the House Judiciary committee, one of which the House passed; and
(3) consideration of several amendments to, and provisions in, appropriations and crime
legislation.
Enacted Legislation and Related Amendments
Protection of Lawful Commerce in Arms Act
The 109th Congress reconsidered and passed the Protection of Lawful Commerce in Arms Act
(P.L. 109-92).81 This legislation (S. 397) was very similar to a bill considered in the 108th
Congress.82 P.L. 109-92 prohibits certain types of lawsuits against firearm manufacturers and
80 For further information, see CRS Report RS22837, Merida Initiative: U.S. Anticrime and Counterdrug Assistance for
Mexico and Central America, by Colleen W. Cook and Clare Ribando Seelke.
81 119 Stat. 2095, October 26, 2005.
82 In the 108th Congress, the House passed a similar “gun industry liability” bill (H.R. 1036). The Senate considered a
similar bill (S. 1805) and amended it with several gun control provisions, but this bill did not pass.
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dealers to recover damages related to the criminal or unlawful use of their products (firearms and
ammunition) by other persons.83 The Senate passed S. 397 on July 29, 2005, by a recorded vote of
65-31 (Recorded Vote Number 219). The House Judiciary Committee had previously reported a
similar bill (H.R. 800; H.Rept. 109-124) on June 14. The House considered and passed the
Senate-passed bill (S. 397) by a recorded vote of 283-144 (Roll no. 534) on October 20, 2005.
It is notable that several amendments passed by the Senate in the 108th Congress were also
reconsidered and passed—for example, an amendment offered by Senator Herb Kohl requiring
that a child safety lock be provided with newly transferred handguns, and another offered by
Senator Larry Craig increasing penalties for using armor-piercing handgun ammunition in the
commission of a crime of violence or drug trafficking. However, other amendments related to
assault weapons or gun shows that were passed by the Senate in the previous Congress were not
considered. It is notable that House-passed legislation (H.R. 5672) included a provision that
would have blocked implementation of the child safety lock provision sponsored by Senator
Kohl.
Child Safety Locks and Handguns
As described above, P.L. 109-92 includes a provision that requires a child safety lock be provided
with newly transferred handguns.84 The House passed an amendment, offered by Representative
Marilyn Musgrave, to the FY2007 DOJ appropriations bill (H.R. 5672) that would have
prohibited the expenditure of any funding provided under that bill for the purposes of enforcing
the child safety lock provision in P.L. 109-92. The House passed H.R. 5672 on June 29, 2006.
The Senate reported H.R. 5672, but no further actions was taken on that bill.
Armor-Piercing Ammunition
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. As described above, P.L. 109-92 includes
provisions that (1) increase penalties for using armor-piercing handgun ammunition in the
commission of a crime of violence or drug trafficking and (2) require the Attorney General to
submit a report (within two years of enactment) on “armor-piercing” ammunition based on certain
performance characteristics, including barrel length and amount of propellant (gun powder).
Disaster Recovery Personal Protection Act of 2006
In the Department of Homeland Security Appropriations Act, 2007 (P.L. 109-295), Congress
included a provision (§ 557) that amends the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. § 5207).85 This enacted provision prohibits federal officials from
seizing or authorizing the seizure of any firearm from private persons during a major disaster or
emergency, if possession of that firearm was not already prohibited under federal or state law. It
83 For further information, see CRS Report RS22074, Limiting Tort Liability of Gun Manufacturers and Gun Sellers:
Legal Analysis of P.L. 109-92 (2005), by Henry Cohen.
84 In addition, 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.
85 120 Stat. 1391, October 4, 2006.
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also forbids the same officials from prohibiting the possession of any firearm that is not otherwise
prohibited. Also, the law bans any prohibition on carrying firearms by persons who are otherwise
permitted to legally carry such firearms, because those persons are working under a federal
agency, or the control of an agency, providing disaster or emergency relief.
Section 557 of P.L. 109-295 is very similar to bills (H.R. 5013/S. 2599) that were introduced by
Representative Bobby Jindal and Senator David Vitter. Those bills addressed firearms seizures
that occurred in New Orleans after Hurricane Katrina.86 On July 13, 2006, the Senate passed a
related amendment, offered by Senator David Vitter, to the Department of Homeland Security
appropriations bill (H.R. 5441) by a recorded vote of 68-32 (Record Vote Number 191), and the
Senate passed that bill on the same day. On July 25, 2006, the House Committee on
Transportation and Infrastructure ordered reported H.R. 5013 (H.Rept. 109-596), and the House
passed that bill on the same day by a recorded vote of 322-99 (Roll no. 401). While H.R. 5013
received no further action, the language of the Vitter amendment was included in P.L. 109-295, as
described above.87
House Judiciary Committee Considered Gun Bills
The House Judiciary Crime, Terrorism and Homeland Security Subcommittee approved four
firearms-related bills, which were subsequently considered by the full committee. Two of those
bills were ordered reported. One was passed by the House.
ATFE Modernization and Reform Act of 2006
H.R. 5092 was introduced by Representative Howard Coble, chair of the House Judiciary
Subcommittee on Crime, Terrorism, and Homeland Security, and Representative Robert Scott, the
subcommittee’s ranking Minority Member, on April 5, 2006. Among other things, the bill would
have amended Gun Control Act provisions governing the suspension and revocation of federal
licenses for firearms dealers, manufacturers, and importers by establishing a graduated scale of
fines and penalties for administrative violations. For serious violations, however, revocation
would have remained an option. It would have also barred ATF from initiating administrative
enforcement actions for violations that are more than five years old, except for cases involved the
intentional obstruction of discovery of such violations by the licensee.
Proponents for this proposal argue that these provisions would allow federal firearms licensees
greater opportunity to address non-substantive recordkeeping issues that under current law could
have led to the revocation of their licenses. Opponents argue that relaxing such provisions would
weakened ATF authority and efforts to reduce the number of “kitchen table top” dealers, who
were not substantively engaged in the business and, hence, ineligible for such licenses. H.R. 5092
was approved by the Crime subcommittee on May 3, 2006. The House Judiciary Committee
ordered this bill reported on September 7, and a written report was filed on September 21
86 Regarding those seizures, the National Rifle Association (NRA) and others maintained that state “emergency
powers” do not trump the Second Amendment right to keep and bear arms. The NRA and the Second Amendment
Foundation filed a joint lawsuit in federal court seeking injunctive relief from those seizures. Pursuant to a court order,
New Orleans authorities were directed to cease seizing firearms from citizens, who had otherwise committed no
criminal violations, and to return already confiscated firearms. NRA v. Nagin, Civil Decision No. 05-20,000 (E.D. La.
September 23, 2005).
87 120 Stat. 1391, § 557.
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(H.Rept. 109-672). The House passed this bill on September 26, 2006, by a recorded vote of 277-
131 (Roll no. 476), but no further action was taken on this bill.
ATF Operations at Richmond Area Gun Shows
H.R. 5092 included provisions that would have required the DOJ’s Office of Inspector General to
conduct a study of ATF firearms enforcement operations at gun shows and would have required
the Attorney General to establish guidelines governing such future operations. The House
Judiciary Crime subcommittee held two oversight hearings examining ATF firearms enforcement
operations at guns shows in Richmond, Virginia, in 2005.88 ATF agents reportedly provided state
and local law enforcement officers with confidential information from background check forms
(ATF Form 4473s), so that those officers could perform residency checks on persons who had
otherwise legally purchased firearms at those gun shows. Questions were also raised as to
whether ATF agents had profiled gun purchasers at those gun shows on the basis of race,
ethnicity, and gender.
In addition, according to testimony heard from both gun show participants and organizers, as well
as ATF officials, firearms were seized from some of the gun purchasers, and some of those
seizures might have been illegal. ATF officials conceded that those Richmond area gun show
operations “were not implemented in a manner consistent with ATF’s best practices,”89 and that
guidance had subsequently been provided to ATF field offices on such matters.
Firearms Corrections and Improvements Act
H.R. 5005 was introduced by Representative Lamar Smith on March 16, 2006. It was the topic of
a hearing held by the House Judiciary Subcommittee on Crime, Terrorism, and Homeland
Security on March 28, 2006. This bill was approved by the subcommittee on May 18, 2006. The
House Judiciary Committee began considering this bill on September 7 and ordered it reported on
September 13, 2006. However, a written report was never filed, and no further action was taken
on this bill. It is notable that H.R. 5005 included several provisions related to firearms trace data
and multiple handgun sales reports that are opposed by mayors in several major cities.90
Codification of Firearms Trace Data Limitations91
Of the provisions in H.R. 5005, Section 9 was the most controversial. It would have codified
limitations on the disclosure of firearms trace data and multiple handgun sales reports for any
purpose other than a bona fide criminal investigation. Similar limitations were included in the
88 U.S. Congress, House of Representatives, Committee on the Judiciary, Subcommittee on Crime, Terrorism, and
Homeland Security, Oversight Hearing on the “Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) Parts
I & II: Gun Show Enforcement,” February 15 and 28, 2006.
89 Testimony of ATF Assistant Director for Field Operations Michael R. Bouchard, U.S. Congress, House of
Representatives, Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, Oversight
Hearing on the “Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) Part ll: Gun Show Enforcement,”
109th Cong., 2nd sess., February 28, 2006.
90 Sewell Chan, “15 Mayors Meet in New York to Fight Against Gun Violence,” New York Times, April 26, 2006, p.
A18.
91 For further information, see CRS Report RS22458, Gun Control: Statutory Disclosure Limitations on ATF Firearms
Trace Data and Multiple Handgun Sales Reports, by William J. Krouse.
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ATF appropriations language since FY2004.92 Proponents for Section 9 contend that the business
records of federal firearms licensees should be confidential. They argue that access to these
records is only authorized under federal law for the purposes of conducting ATF trace requests in
order to solve crimes. They argue further that it was never intended that firearm trace data should
be used to support civil public nuisance lawsuits against firearms manufacturers and dealers, such
as a lawsuit pursued by New York City.93
Opponents of Section 9, like Mayor Bloomberg, counter that every tool is needed to “crackdown”
on irresponsible gun dealers by analyzing firearm trace data on a regional and national basis, so
that federal, state, and local law enforcement authorities can be informed of the source and
market areas for “crime guns.”94 They contend further that Section 9, if enacted, would have
precluded such analysis. Senator Robert Menendez and Representative Steven R. Rothman
introduced identical bills (S. 2460/H.R. 5033) to repeal the FY2006 appropriations limitation on
ATF sharing firearms trace data and multiple handgun sales reports. Senator Charles Schumer
introduced a similar bill (S. 2629) and has reintroduced that bill (S. 77) in the 110th Congress.
Multiple Handgun Sales Report Restrictions
Regarding multiple handgun sales, section 7 of H.R. 5005 would have eliminated a provision that
provides for the transfer of multiple handgun sale reports made by gun dealers to the Attorney
General to state and local law enforcement authorities. Proponents argue that state and local
authorities have mishandled such confidential records and often ignore certain certification
requirements set out in the Gun Control Act. Opponents counter that those reports often lead to
illegal gun traffickers and without them vital leads would go undiscovered.
Gun Dealer Out-of-Business Records
Section 8 of H.R. 5005 would have prohibited the Attorney General from electronically retrieving
the records of gun dealers who had gone out of business by name or any personal identification. It
is notable that “out-of-business” records have been converted from paper to a digital format at the
ATF National Tracing Center. Proponents argue that such a prohibition would protect the privacy
of former federal firearms licensees, and that the prohibition would not extend to searches of
those records by firearms serial number. Opponents counter that, if available, those records
should be analyzed further to uncover wider patterns of gun trafficking and other illegal activities.
Importation of Machine Gun Parts Kits and Other Matters
Section 3 of H.R. 5005 would have lifted restrictions on the possession, transfer, and importation
of machine guns, and certain other shotguns and rifles, for contractors providing national security
services to the United States government and training related to such services, and for
manufacturers for test, research, design, and development purposes. Section 10 would have
92 For FY2004, the limitation on the use of ATF firearm trace data was inserted into the ATF appropriations language
by an amendment offered by Representative Todd Tiahrt in full committee markup.
93 For further information, see City of New York v. Beretta U.S.A., No. 00-CV-3641, 2006 U.S. Dist. LEXIS 24452
(E.D.N.Y. April 27, 2006).
94 Sewell Chan, “15 Mayors Meet in New York to Fight Against Gun Violence,” New York Times, April 26, 2006, p.
A18.
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relaxed importation restrictions on barrels, frames, and receivers for firearms other than handguns
for repair and replacement parts. Those proposals are generally supported by Class III gun dealers
who are licensed under the National Firearms Act of 1934 to deal in machine guns and other
destructive devices, which are more tightly regulated under federal law than other firearms.
Codification of Brady Background Check Fee Prohibition
Finally, section 5 of H.R. 5005 would have codified a limitation in the DOJ appropriations acts
for the past eight years (FY1999 through FY2006) that prohibits the Attorney General from
charging any tax or fee for any background check made for the purposes of determining firearms
possession/transfer eligibility. In the 110th Congress, the House-passed H.R. 2640 and Senate-
reported S. 2084 would also codify the background check fee prohibition.
Firearm Commerce Modernization Act
H.R. 1384 was introduced by Representative Phil Gingrey on March 17, 2005. This bill would
have amended the Gun Control Act to allow federal firearms licensees to transfer any firearm to
out-of-state residents as long as those transfers complied with the laws of both states, that is, the
laws of the state in which the licensee’s business was located and the laws of the state in which
the licensee’s customer resided. Under current law, licensees are permitted to transfer long guns
to out-of-state residents only if such transfers are made in person (face-to-face). H.R. 1384 would
have allowed federal firearms licensees to transfer handguns to out-of-state residents as well.
In addition, H.R. 1384 would have allowed federal firearms licensees to transfer any firearm to
other federal firearms licensees at out-of-state gun shows or similar events as long as those
transfers complied with the laws of both states. Under current law, federal firearms licensees are
permitted to display and take orders for firearms at out-of-state gun shows, but they must return
to their business locations to initiate the subsequent transfers of those firearms.
Proponents argue that this proposal would eliminate federal requirements on shipping such
firearms interstate and reduce the risk that such firearms would be stolen during shipment.
Opponents counter that relaxing existing federal requirements regarding the interstate transfer of
handguns could necessitate dual-state background checks. In addition, in the view of the
proposals opponents, the relaxation of these requirements could be exploited by illegal firearms
traffickers. H.R. 1384 was approved in subcommittee markup on May 18, 2006, but no further
action was taken on this bill.
NICS Improvement Act of 2005
H.R. 1415 was introduced by Representative Carolyn McCarthy and co-sponsored by
Representative John Dingell. Among other things, this proposal would have (1) amended 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) established incentives to
states to make available to the Attorney General certain records that would disqualify persons
from acquiring a firearm, particularly those records that relate to convictions for misdemeanor
crimes of domestic violence and persons adjudicated as mentally defective; and (3) authorized
appropriations for grant programs to help states, courts, and local governments establish or
improve such automated record systems. H.R. 1415 was approved in subcommittee markup on
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May 18, 2006, but no further action was taken on this bill.95 Representative McCarthy
reintroduced this bill (H.R. 297) in the 110th Congress. As described above, a modified bill (H.R.
2640) was introduced and passed by the House on June 13, 2007. Congress passed this bill, and it
was enacted (P.L. 110-180).
Gun Provisions Attached to Funding and Crime Bills
Gun control-related provisions were either included in, or amended to, appropriations and crime
legislation in the 109th Congress.
District of Columbia Handgun Ban
Representative Souder reintroduced a bill to overturn the District of Columbia (DC) handgun ban
(H.R. 1288), which was previously passed by the House.96 Senator Hutchison introduced a
companion measure (S. 1082). In addition, during consideration of the FY2006 DC
appropriations bill (H.R. 3058), the House passed an amendment offered by Representative Mark
Souder that would have prohibited the use of funding provided under that bill to enforce the DC
code’s trigger lock requirement on June 30, 2005, by a recorded vote: 259-161, 1 present (Roll
no. 349). Although there was some support in the Senate for including a similar provision in the
funding bill considered by that body, such a provision was not included in P.L. 109-115, the
omnibus funding measure into which the FY2006 DC appropriations bill was folded.
Sex Offenders and Firearm Possession Eligibility
The Children’s Safety Act of 2005 (H.R. 3132) was amended on September 14, 2005, to include a
provision that would have prohibited the transfer or possession of a firearm to or by a person
convicted of a sex offense against a minor. This amendment was offered by Representative
Jerrold Nadler. H.R. 3132 was passed by the House on the same date, but no further action was
taken on this bill. During consideration of H.R. 5005, however, the House Judiciary Committee
amended that bill with language of the Nadler amendment.
Court Security and LEOSA Amendments
The House-passed Secure Access to Justice and Court Protection Act of 2005 (H.R. 1751) was
amended on November 9, 2005, by Representative Steve King to include a provision that would
have authorized any federal judge, magistrate, U.S. Attorney, or any DOJ officer who represents
the United States in a court of law to carry firearms for self-defense. Similar provisions were
included in the House-passed Adam Walsh Child Protection Act of 2006 (H.R. 4472), but they
95 During the 107th Congress, the House passed a similar bill entitled Our Lady of Peace Act (H.R. 4757), but no further
action was taken on it before that Congress adjourned. In the 108th Congress, Senator Daschle introduced the Justice
Enhancement and Domestic Security Act of 2003 (S. 22), which included the Our Lady of Peace Act (Title V, Subtitle
B), and Senator Charles Schumer introduced a similar bill (S. 1706). Neither bill was acted on, however, in the 108th
Congress.
96 In the 108th Congress, the House passed a bill (H.R. 3193) introduced by Representative Souder that would have
repealed the “DC handgun ban” and other limitations on firearms possession on September 29, 2004 by a recorded
vote: 250-171, 1 present (Roll no. 477). A similar measure was introduced in the Senate (S. 1414) by Senator Orrin
Hatch.
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were not included in the Senate-passed version of this bill, which was subsequently passed in the
House and signed into law by the President (P.L. 109-248). Representative Phil English
introduced a similar bill (H.R. 4477) as well.
The Senate, in turn, amended H.R. 1751 with an amendment in the nature of a substitute, and
passed that bill on December 6, 2006. The Senate-passed version included similar provisions
regarding firearms and federal judicial officials, as well as amendments to the Law Enforcement
Officers Safety Act (LEOSA, P.L. 108-277) that would have clarified and expanded this law,
which gives concealed carry privileges to qualified on-duty and retired law enforcement officers.
Other House-passed provisions, however, related to mandatory minimum sentences and the death
penalty were not included in the Senate bill, and no further action was taken on H.R. 1751.
In the 110th Congress, as described above, similar provisions that would authorize certain federal
judicial officials to carry firearms for self-defense were not included in the Senate-passed court
security bill (S. 378), nor were they included in the House-passed bill (H.R. 660). Regarding
LEOSA, however, Senator Leahy has included amendments to that Act in a stand-alone measure
(S. 376), which was reported by the Judiciary Committee (S.Rept. 110-150) on September 5,
2007. The provisions of S. 376 were also folded into S. 2084 in the reported version of that bill
(S.Rept. 110-183).
ATF Appropriations for FY2005, FY2006, and FY2007
For FY2005, Congress appropriated $882 million for ATF (P.L. 108-447; P.L. 109-13). According
to DOJ, this amount funded 5,073 positions, including 2,446 agents and 785 industry operations
investigators and industry operations specialists, as well as 1,842 other positions. For FY2006,
Congress appropriated nearly $936 million for ATF. This amount reflects certain department - and
government-wide rescissions in P.L. 109-108 and P.L. 109-148, as well as supplemental
appropriations. This amount funded 5,128 positions, including 2,509 agents and 797 industry
operations investigators and industry operations specialists, as well as 1,822 other positions.
For FY2007, the Administration requested $860 million for ATF; Congress provided $984 million
in the FY2007 Continuing Resolution (P.L. 110-5). This amount is anticipated to fund 5,148
positions, including 2,502 agents and 797 industry operations investigators and specialists, as
well as 1,849 other positions. For FY2008, the Administration’s request includes $1.014 billion
and 5,032 positions for ATF (a net reduction of 116 positions, compared with FY2007). The
Senate-passed CJS appropriations bill (S. 1745) includes $1.049 billion for ATF’s FY2008
appropriation, an increase of $35 million over the Administration’s budget request and $65
million more than the FY2007 appropriation. The House-passed CJS appropriations bill (H.R.
3093) would provide the same amount as requested by the President, $30 million more than the
FY2007 appropriation.
Proposed Explosives User Fee
The Administration’s FY2007 request was based on a legislative proposal that would have
authorized an explosives user fee for criminal background checks required under the Safe
Explosives Act (P.L. 107-296). The Administration projected that this fee would have generated
$120 million in off-setting receipts in FY2007 for ATF. The House-passed DOJ appropriations
bill (H.R. 5672; H.Rept. 109-520) would have provided $950 million. The Senate-reported bill
(H.R. 5672; S.Rept. 109-280) would have provided $985 million. The House bill included a
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provision that would have authorized an explosives fee that was projected to generate $30 million
in off-setting receipts. The Senate bill did not include a similar provision. No final action was
taken on H.R. 5672, and no provision was included in the FY2007 Continuing Resolution for
such a fee. Furthermore, the Administration’s FY2008 request did not call for such a fee.
ATF Authorizations for Appropriations
In the Violence Against Women and Department of Justice Reauthorization Act of 2005 (P.L. 109-
162), Congress authorized to be appropriated for ATF the following amounts: $924 million for
FY2006, $961 million for FY2007, $999 million for FY2008, and $1.039 billion for FY2009.
Also, on May 11, 2005, the Gang Deterrence and Community Protection Act of 2005 (H.R. 1279)
was amended with a provision offered by Representative Diane Watson that would have
authorized additional appropriations to hire 100 agents and 100 inspectors at ATF to be assigned
to new “High-Intensity Gang Activity Areas.” The House subsequently passed H.R. 1279, but no
further action was taken on this bill.
Other Salient Gun Control Legislative Issues
Other salient firearm-related issues that continue to receive attention include (1) retaining Brady
background check records for approved firearm transactions to enhance terrorist screening, (2)
more strictly regulating certain long-range .50 caliber rifles, (3) further regulating certain firearms
previously defined in statute as “assault weapons,” and (4) requiring background checks for
private firearm transfers at gun shows.
Brady Background Checks and Terrorist Watch Lists97
Background Check Fee and Record Retention
Beginning in FY1999, Congress has prohibited the collection of any fee for firearms-related
background checks made through the FBI-administered NICS in DOJ appropriations.98 Beginning
in FY2004, that provision also included language (originally added by the Tiahrt amendment) to
require the next-day destruction of approved background check records. The issue of approved
Brady background check record retention has been contentious since the inception of the FBI-
administered NICS, because a provision in the Brady Act (§ 103(i)) prohibits the establishment of
any electronic registry of firearms, firearm owners, or approved firearm transactions and
dispositions.
Nevertheless, under Attorney General Janet Reno, DOJ proposed a rule that would have allowed
such records to be maintained for up to six months for audit purposes on October 30, 1998.99 The
97 For further information, see CRS Report RL33011, Terrorist Screening and Brady Background Checks for Firearms,
by William J. Krouse.
98 In the 110th Congress, the House-passed H.R. 2640 and Senate-reported S. 2084 include provisions that would
permanently codify the NICS fee prohibition (see discussion of the NICS Improvement Amendments Act of 2007
above). For FY2008, such a prohibition is also included on an annual basis in the House-passed and Senate-reported
CJS appropriations bills (H.R. 3093/S. 1745).
99 63 Federal Register 58303.
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NRA challenged this proposed rule in federal court, arguing that retaining the approved records
was tantamount to a temporary registry. On July 11, 2000, the United States Court of Appeals for
the District of Columbia found that nothing in the Brady Act prohibited the temporary retention
of information about lawful firearm transfers for certain audit purposes.100 On January 22, 2001,
DOJ promulgated a final rule that allowed such records to maintained for up to 90 days.101
Attorney General John Ashcroft opposed this rule, however, and DOJ proposed another rule that
called for the next-day destruction of those files on July 6, 2001.102
In July 2002, meanwhile, GAO reported that under Attorney General Reno, the FBI had
conducted “non routine” searches of the NICS audit log for law enforcement agencies to
determine whether a person, whom subsequent information showed was a prohibited person, had
been transferred a firearm within the previous 90 days. The FBI informed GAO that such
searches were routinely conducted but were a “secondary benefit” given that the audit log was
maintained primarily to check for system “accuracy, privacy, and performance.” In addition,
GAO reported that the next-day destruction of records would “adversely affect” other NICS
operations, including firearm-retrieval actions, NICS audit log checks for previous background
checks, verifications of NICS determinations for federal firearms licensees, and ATF inspections
of federal firearms licensees’ record keeping.103
Despite those adverse affects, opponents of greater federal gun control viewed the non-routine
use of NICS records as beyond the scope of authority given the Attorney General under the Brady
Act. As described below, GAO reported that DOJ took steps to minimize the adverse affects of
the next-day destruction of those records, but in the wake of the September 11, 2001, terrorist
attacks, additional issues regarding Brady background checks emerged.
Terrorist Watch List Checks
Historically, terrorist watch list checks were not part of the Brady background check process,
because being a suspected or known terrorist was and is not a disqualifying factor for firearm
transfer/possession eligibility under federal or state law. As is the case today, to determine such
eligibility, FBI-NICS examiners check three databases maintained by the FBI. They include the
National Crime Information Center (NCIC), the Interstate Identification Index (III), and the NICS
index. The NICS index includes disqualifying records on persons (1) dishonorably discharged
from the armed forces, (2) adjudicated mentally defective, or (3) convicted of certain serious
immigration violations. The III includes criminal history records for persons arrested and
convicted of felonies and misdemeanors. The NCIC includes law enforcement hot files on
fugitives and persons subject to restraining orders, among other persons. NCIC also includes a
“hot file” known as the Violent Gang and Terrorist Offender File (VGTOF). Prior to the 9/11
attacks, this file included limited information on known or suspected terrorists and gang
members. NICS examiners were not informed of VGTOF hits, as such information was not
considered relevant to determining firearms transfer/possession eligibility.
100 NRA v. Reno (No. 99-5270, 216 F. 3d 122; 2000 U.S. App. Lexis 15906).
101 66 Federal Register 6470.
102 66 Federal Register 35567.
103 For further information on these issues, see GAO, Gun Control: Potential Effects of Next-Day Destruction of NICS
Background Check Records, GAO-02-653, July 2002.
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Following the 9/11 attacks, FBI officials reportedly searched approved firearm transaction records
in the then NICS 90-day audit log for 186 illegal alien detainees. Two were found to have been
improperly cleared to be transferred firearms.104 Upon learning of this practice, however, then
Attorney General Ashcroft barred the FBI from searching the NICS audit log, maintaining that
the Brady Act prohibited the use of NICS as an electronic registry of firearms, dispositions, or
owners.105 Advocates of greater gun control opposed this shift in policy, arguing that law
enforcement and counterterrorism officials ought to have access to NICS records to further
ongoing terrorist and criminal investigations. As described above, however, gun rights advocates
successfully amended the FY2004 Justice appropriations to require the destruction of those
records within 24 hours. A similar requirement was enacted for FY2005 and FY2006 as well. It
was also been included in the House-passed and Senate-reported versions of the FY2007 DOJ
appropriations bill (H.R. 5672).
In February 2002, DOJ initiated a NICS transaction audit to determine whether prohibited aliens
(non-citizens) were being improperly transferred firearms. As part of this audit, NICS procedures
were changed, so that NICS examiners were informed of VGTOF hits. Under Homeland Security
Presidential Directive 6, moreover, the Administration initiated a broad-based review of the use of
watch lists, among other terrorist identification and screening mechanisms.106 In September 2003,
the FBI-administered Terrorist Screening Center (TSC) was established and work was begun to
improve and merge several watch lists maintained by U.S. government into a consolidated
Terrorist Screening Database (TSDB). One of these “watch lists” was VGTOF. As part of those
efforts, TSDB lookout records from other agency watch lists were downloaded into VGTOF,
growing that file from 10,000 to more than 140,000 records. Effective February 2004, the FBI
officially changed its NICS operating procedures to inform NICS examiners of VGTOF hits for
known and suspected terrorists.107
Under the new procedures in non-Point of Contact (non-POC) states, NICS staff validate
terrorism-related VGTOF hits by contacting TSC staff. The latter have greater access to
identifiers in terrorist files, with which known and suspected terrorists can be more positively
identified. In full and partial POC states, the law enforcement officials that conduct firearms-
related background checks under the Brady Act contact TSC staff directly. In the case of valid
hits, NICS staff delay the transactions for up to three business days and contact the FBI
Counterterrorism Division to allow field agents to check for prohibiting factors. If no prohibiting
factors are uncovered within this three-day period, NICS staff anonymize the transaction record
by deleting the subject’s identifying information. The firearms dealers may proceed with the
transaction at their discretion, but FBI counterterrorism officials continue to work the case for up
to 90 days. If they learn of a prohibiting factor within that 90-day period, they are able to contact
the NICS unit and de-anonymize the transaction record by filling in the subject’s identifying
fields. At the end of 90 days, if no prohibiting factor has been found, all records related to the
NICS transaction are destroyed.
104 Fox Butterfield, “Justice Dept. Bars Use of Gun Checks in Terror Inquiry: FBI Wants to See Files,” New York
Times, December 6, 2001, p. A1.
105 Subparagraph 103(i) of P.L. 103-159 (107 Stat. 1542).
106 For further information, see CRS Report RL32366, Terrorist Identification, Screening, and Tracking Under
Homeland Security Presidential Directive 6, by William J. Krouse.
107 Dan Eggen, “FBI Gets More Time on Gun Buys,” Washington Post, November 22, 2003, p. A05.
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Then Senator Joseph Biden and Senator Frank Lautenberg requested that GAO report on these
new NICS operating procedures.108 In January 2005, GAO reported that in a five-month period—
February 3, 2004 through June 30, 2004—NICS checks resulted in an estimated 650 terrorist-
related record hits in VGTOF. Of these, 44 were found to be valid. As noted above, however,
being identified as a known or suspected terrorist is not grounds to prohibit a person from being
transferred a firearm under current law. As a consequence, 35 of these transactions were allowed
to proceed, 6 were denied, one was unresolved, and 2 were of an unknown status.109 GAO
recommended that the Attorney General should (1) clarify what information generated by the
Brady background check process could be shared with counterterrorism officials and (2) either
more frequently monitor background checks conducted by full and partial POC States that result
in terrorism-related VGTOF hits, or allow the FBI to handle such cases.110
Several related pieces of legislation were introduced that are related to NICS operations and
terrorist watch lists. The Terrorist Apprehension and Record Retention Act of 2005 (S. 578/H.R.
1225), introduced by Senator Lautenberg and Representative John Conyers, would have required
that the FBI, along with appropriate federal and state counterterrorism officials, be notified
immediately when the NICS indicated that a person seeking to obtain a firearm was a known or
suspected terrorist. Furthermore, the proposal would have (1) required that the FBI coordinate the
response to such occurrences, (2) authorized the retention of all related records for at least 10
years, and (3) allowed federal and state officials access to such records.
In addition, Representative Peter King introduced H.R. 1168, a bill that would have required the
Attorney General to promulgate regulations to preserve records of terrorist - and gang-related
record hits during such background checks until they were provided to the FBI. Representative
Carolyn McCarthy introduced H.R. 1195, a bill that would have made it unlawful for anyone to
transfer a firearm to a person who was on the “No Fly” lists maintained by the Transportation
Security Administration. In the 110th Congress, Representative McCarthy reintroduced this
measure (H.R. 1167). Also, Senator Lautenberg introduced a bill (S. 1237) that would authorize
the Attorney General to deny the transfer of firearms or the issuance of firearms and explosives
licenses to known or suspect terrorists. The language of S. 1237 reportedly reflects a legislative
proposal made by the Department of Justice.111 Representative King introduced an identical
measure (H.R. 2074). More recently, Senator Lautenberg has introduced a separate measure (S.
2935) that would authorize the Attorney General to retain firearm transfer records on persons who
are suspected terrorists or their supporters, but who have been transferred a firearm.
Long-Range .50 Caliber Rifles112
In the 109th Congress, legislation was introduced to regulate more strictly certain .50 caliber
rifles. Some of these rifles are chambered to fire a relatively large round originally designed for
the Browning Machine Gun (BMG) and have been adopted by the U.S. military as long-range
108 For further information, see GAO, Gun Control and Terrorism: FBI Could Better Manage Firearm-Related
Background Checks Involving Terrorist Watch List Records, GAO-05-127, January 2005, 38 pp.
109 Ibid., p. 9.
110 Ibid., p. 26.
111 Michael Luo, “U.S. Proposal Could Block Gun Buyers Tied to Terror,” New York Times, April 27, 2007.
112 For further information, see CRS Report RS22151, Long-Range Fifty Caliber Rifles: Should They Be More Strictly
Regulated?, by William J. Krouse.
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“sniper” rifles. Gun control advocates argue that these firearms have little sporting, hunting, or
recreational purpose. They maintain that these rifles could be used to shoot down aircraft, rupture
pressurized chemical tanks, or penetrate armored personnel carriers. Gun control opponents
counter that these rifles are expensive, cumbersome, and rarely, if ever, used in crime.
Furthermore, they maintain that these rifles were first developed for long-range marksmanship
competitions and then adopted by the military as sniper rifles.
The Fifty Caliber Sniper Weapons Regulation Act of 2005 (S. 935), introduced by Senator Dianne
Feinstein, would have amended the National Firearms Act (NFA)113 to regulate “.50 caliber sniper
weapons” in the same fashion as short-barreled shotguns and silencers, by levying taxes on the
manufacture and transfer of such firearms and by requiring owner and firearm registration. In the
110th Congress, Senator Feinstein has introduced a similar measure (S. 1331).
The other proposal introduced by Representative James Moran, the 50 Caliber Sniper Rifle
Reduction Act (H.R. 654), would have also amended the NFA to include those weapons but
would have also amended the Gun Control Act114 to effectively freeze the population of those
weapons legally available to private persons and to prohibit any further transfer of those firearms.
In other words, H.R. 654 would have grandfathered in existing rifles but would have banned their
further transfer. Consequently, the proposal would have eventually eliminated those rifles all
together from the civilian gun stock. It would have been likely that covered .50 caliber rifles
would have had to be destroyed or handed over to the ATF as contraband when the legal firearm
owner died or wanted to give up the firearm. H.R. 654 included no compensation provision for
rifles destroyed or handed over to the federal government.
Furthermore, both proposals (S. 935 and H.R. 654) would have defined “.50 caliber sniper
weapon” to mean “a rifle capable of firing center-fire cartridge in .50 caliber, .50 BMG caliber,
any other variant of .50 caliber or any metric equivalent of such calibers.” Many rifles, and even
some handguns, are chambered to fire .50 caliber ammunition, meaning the projectile is about
one-half inch in diameter. Opponents of this legislation note that this definition was very broad
and would have likely covered .50 caliber rifles that would not be considered “long-range” or
“sniper” rifles. The .50 BMG caliber round, on the other hand, is an exceptionally large cartridge
(projectile and casing), which was once used almost exclusively as a heavy machine gun round.
Representative Moran also offered an amendment to the FY2006 Department of Commerce
appropriations bill (H.R. 2862) that would have prohibited the use of funding provided under that
bill to process licenses to export .50 caliber rifles, but that amendment was not adopted by the
House.
Expired Semiautomatic Assault Weapons Ban
In 1994, Congress banned for 10 years the possession, transfer, or further domestic manufacture
of semiautomatic assault weapons (SAWs) and large capacity ammunition feeding devices
(LCAFDs) that hold more than 10 rounds that were not legally owned or available prior to the
date of enactment (September 13, 1994). The SAW-LCAFD ban expired on September 13, 2004.
113 26 USC, Chapter 53, §5801 et seq.
114 18 USC, Chapter 44, §921 et seq.
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The SAW ban statute classified a rifle as a semiautomatic assault weapon if it was able to accept a
detachable magazine and included 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.115 There were
similar definitions for pistols and shotguns that were classified as semiautomatic assault
weapons.116 Semiautomatic assault weapons that were legally owned prior to the ban were not
restricted and remained available for transfer under applicable federal and state laws.
Opponents of the ban argue that the statutorily defined characteristics of a semiautomatic assault
weapon were largely cosmetic, and that these weapons were potentially no more lethal than other
semiautomatic firearms that were designed to accept a detachable magazine and were equal or
superior in terms of ballistics and other performance characteristics. Proponents of the ban argue
that semiautomatic military-style firearms, particularly those capable of accepting large capacity
ammunition feeding devices, had and have no place in the civilian gun stock.
During and following World War II, assault rifles were 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. Often these rifles were also 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. Semiautomatic firearms by
comparison, including semiautomatic assault weapons, fire one round per pull of the trigger.
According to a 1997 survey of 203,300 state and federal prisoners 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 semiautomatic assault weapon or machine gun.117 Under current
law, any firearm that can be fired in fully automatic mode or in multi-round bursts is classified as
a “machine gun” 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 were not covered by the semiautomatic assault weapons ban.
In the 108th Congress, proposals were introduced to extend or make permanent the ban, whereas
other proposals were made to modify the definition of “semiautomatic assault weapon” to cover a
greater number of firearms by reducing the number of features that would constitute such
firearms, and expand the list of certain makes and models of firearms that are statutorily
enumerated as banned. A proposal (S. 1034) introduced by Senator Dianne Feinstein would have
made the ban permanent, as would have a proposal (H.R. 2038/S. 1431) introduced by
Representative Carolyn McCarthy and Senator Frank Lautenberg. The latter measure, however,
would have modified the definition and expanded the list of banned weapons. Senator Feinstein
also introduced measures that would have extended the ban for 10 years (S. 2109/S. 2498). In
addition, on March 2, 2004, the Senate passed an amendment to the gun industry liability bill (S.
115 18 U.S.C. § 921(a)(30)(B).
116 18 U.S.C. § 921(a)(30)(C) and (D).
117 For further information, see Firearm Use by Offenders, by Caroline Wolf Harlow, at
http://www.ojp.usdoj.gov/bjs/pub/pdf/fuo.pdf.
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1805) that would have extended the ban for 10 years, but the Senate did not pass this bill.118 In the
109th Congress, Senator Dianne Feinstein introduced a bill that would have reinstated previous
law for 10 years (S. 620). Representative McCarthy and Senator Lautenberg reintroduced their
bills to make the ban permanent (H.R. 1312/S. 645).
In the 110th Congress, Representative McCarthy reintroduced a similar proposal (H.R. 1022) and
another measure (H.R. 1859) that would prohibit the transfer of a semiautomatic assault weapon
with a large capacity ammunition feeding device, among other things. Representative Mark
Steven Kirk introduced the Assault Weapons Ban Reauthorization Act of 2008 (H.R. 6257).
Senator Biden included provisions to reauthorize the ban in the Crime Control and Prevention Act
of 2007 (S. 2237).
Gun Shows and Private Firearm Transfers
Federal law does not regulate gun shows specifically. Federal law regulating firearm transfers,
however, is applicable to such transfers at gun shows. Federal firearms 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 firearms 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 an incongruity in the law. Why, they ask, 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 are two basic models. The first model is based on a bill
(S. 443) that was introduced in the 106th Congress by Senator Lautenberg, who successfully
offered this proposal as an amendment to the Senate-passed Violent and Repeat Juvenile Offender
Act (S. 254). Several members introduced variations of the Lautenberg bill in the 107th Congress.
In the 108th Congress, Representative Conyers—ranking minority member of the Judiciary
Committee—introduced H.R. 260, which was very similar to the Lautenberg bill. In addition,
former Senator Daschle introduced the Justice Enhancement and Domestic Security Act of 2003
(S. 22), which included gun show language that was similar to the Lautenberg bill.
The second model is based on a bill (S. 890) introduced in the 107th Congress by Senators
McCain and Lieberman. In the 108th Congress, Senators McCain and Reed introduced a bill (S.
1807), which was similar to S. 890. In the 108th Congress, on March 2, 2004, the Senate passed
an amendment offered by Senator McCain to the gun industry liability bill (S. 1805) that would
have required background checks for private firearm transfers at gun shows, but the Senate did
118 For further information, see CRS Report RL32077, The Assault Weapons Ban: Legal Challenges and Legislative
Issues, by T. J. Halstead, and CRS Report RL32585, Semiautomatic Assault Weapons Ban, by William J. Krouse.
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not pass this bill.119 In the 109th and 110th Congresses, Representative Michael Castle reintroduced
this bill as the Gun Show Loophole Closing Act of 2005 (H.R. 3540 and H.R. 96). Senator
Lautenberg reintroduced his gun show proposal as the Gun Show Background Check Act 2008
(S. 2577). Previously, Senator Biden had included similar provisions in the Crime Control and
Prevention Act of 2007 (S. 2237).
119 For further information, see CRS Report RL32249, Gun Control: Proposals to Regulate Gun Shows, by William J.
Krouse and T.J. Halstead.
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Appendix. Major Federal Firearm and Related
Statutes
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-a-likes 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, amended by P.L. 108-174,
2003), also known as the “plastic gun” legislation, bans the manufacture, import,
possession, and transfer of firearms not detectable by security devices.
• 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 non licensed person seeking to obtain
firearms from federal firearms licensees.
• The Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103-322)
prohibited the manufacture or importation of semiautomatic assault weapons and
large capacity ammunition feeding devices for 10 years. The Act also bans the
sale or transfer of handguns and handgun ammunition to, or possession of
handguns and handgun ammunition, by juveniles (younger than 18 years old)
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 increased penalties for the criminal use of firearms. The assault
weapons ban expired on September 13, 2004.
• 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
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Gun Control Legislation
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.120
• The Omnibus Consolidated and Emergency Appropriations Act, 1999 (P.L. 105-
277), requires all federal firearms licensees to offer for sale gun storage and
safety devices. It also bans firearm transfers to, or possession by, most non
immigrants, and those non immigrants 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.
• Law Enforcement Officers Safety Act of 2004 (P.L. 108-277) provides that
qualified active and retired law enforcement officers may carry a concealed
firearm. This Act supersedes state level prohibitions on concealed carry that
would otherwise apply to law enforcement officers, but it does not override any
federal laws. Nor does the Act supersede or limit state laws that permit private
persons or entities to prohibit or restrict the possession of concealed firearms on
their property or prohibit or restrict the possession of firearms on any state or
local government property, installation, building, base, or park.
Author Contact Information
William J. Krouse
Specialist in Domestic Security and Crime Policy
wkrouse@crs.loc.gov, 7-2225
120 See CRS Report RL31143, Firearms Prohibitions and Domestic Violence Convictions: The Lautenberg
Amendment, by T. J. Halstead.
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