Gun Control Legislation
William J. Krouse
Specialist in Domestic Security and Crime Policy
March 10, 2010
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 possess
lawfully 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. Although the House leadership attempted to negotiate an end to the impasse over the
District’s gun laws and bring its version of the DC voting rights bill (H.R. 157) to the floor, this
proposal has been tabled for the time being.
Also, in the 111th Congress, Members revisited several other gun control issues that were
previously considered in the 110th Congress. For example, Senator Tom Coburn successfully
amended the Credit CARD Act of 2009 (H.R. 627) with a provision that will 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 Barack Obama signed H.R. 627 into law on
May 22, 2009 (P.L. 111-24). Senator Roger Wicker amended the FY2010 Transportation-HUD
Appropriations bill (H.R. 3288) with language to authorize private persons to carry firearms in
their checked luggage on Amtrak trains. H.R. 3288 became the vehicle for the Consolidated
Appropriations Act, 2010, and the Wicker provision was included in this bill. The President
signed H.R. 3288 into law (P.L. 111-117). The Senate Veterans’ Affairs Committee has reported
the Veteran 2nd Amendment Protection Act (S. 669), which would revamp procedures by which
veterans are adjudicated “mentally incompetent” and, thus, lose their firearms possession
eligibility. The House Committee on Financial Services reported a bill (H.R. 3045; H.Rept. 111-
277) that includes a provision that would prohibit public housing authorities from barring tenants
from possessing firearms. And the Senate Judiciary Committee approved amendments (S. 1132)
to the Law Enforcement Officers Safety Act (LEOSA; P.L. 108-277), which authorizes certain
qualified police officers to carry concealed firearms across state lines.
In addition, in the 111th Congress, an amendment offered by Senator John Thune to the FY2010
Defense Authorization Act (S. 1390) was narrowly defeated that would have provided for national
reciprocity between states regarding the concealed carry of firearms. Several committees have
held congressional hearings on gun trafficking and smuggling across the Southwest border from
the United States to Mexico. The Consolidated Appropriations Act, 2010 (P.L. 111-117), includes
increased funding for Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to investigate
additional gun trafficking cases. Other salient and recurring gun control issues for the 111th
Congress could include (1) denying firearms and explosives to persons watch-listed as known or
suspected terrorists, (2) retaining Brady background check records for approved firearm
transactions to enhance terrorist screening, (3) more strictly regulating certain long-range .50
caliber rifles, (4) further regulating certain firearms previously defined in statute as “assault
weapons,” and (5) requiring background checks for private firearm transfers at gun shows.
Congressional Research Service
Gun Control Legislation
Contents
Legislative Developments ........................................................................................................... 1
Background and Analysis ............................................................................................................ 2
Pro/Con Debate..................................................................................................................... 2
Gun-Related Statistics ........................................................................................................... 3
How Many Guns Are in the United States?...................................................................... 4
How Often Are Guns Used in Homicides?....................................................................... 4
How Often Are Guns Used in Non-lethal Crimes? ........................................................... 5
How Prevalent Are Gun-Related Fatalities?..................................................................... 6
How Often Are Firearms Used in Self-Defense?.............................................................. 7
What About the Recreational Use of Guns? ..................................................................... 8
Federal Regulation of Firearms ................................................................................................... 8
The National Firearms Act (NFA) ......................................................................................... 9
The Gun Control Act of 1968 (GCA) .................................................................................... 9
Firearm Transfer and Possession Eligibility ..................................................................... 9
Licensed Dealers and Firearm Transfers ........................................................................ 10
Private Firearm Transfers .............................................................................................. 10
Brady Handgun Violence Prevention Act............................................................................. 10
Interim Provisions......................................................................................................... 11
Permanent Provisions.................................................................................................... 11
POC and Non-POC States ............................................................................................. 11
Brady Background Check Statistics............................................................................... 11
Legislative Action in the 110th and 111th Congresses .................................................................. 12
Constitutionality of DC Handgun Ban and Related Legislation............................................ 14
DC Council Passes Emergency Law.............................................................................. 14
Legislation Related to DC Gun Laws ............................................................................ 14
DC Council Passes Permanent Legislation .................................................................... 15
DC Voting Rights and Gun Laws in the 111th Congress.................................................. 16
DC Voting Rights Act of 2007....................................................................................... 16
NICS Improvement Amendments Act of 2007..................................................................... 17
Veterans, Mental Incompetency, and Firearms Eligibility..................................................... 18
Mental Defective Adjudications .................................................................................... 19
Veterans, Mental Incompetency, Firearms Eligibility ..................................................... 19
Public Housing and Firearms Possession and Use................................................................ 20
Public Lands and Firearms Possession and Use ................................................................... 20
AMTRAK Passengers and Firearms .................................................................................... 22
Concealed Carry and Reciprocity ........................................................................................ 22
Law Enforcement Officers Safety Acts of 2007 and 2009 .................................................... 23
Senate Health Care Reform Bill and Firearms ..................................................................... 23
Tiahrt Amendment and Firearm Trace Data Limitations....................................................... 24
Firearms Enforcement-Related Funding Bills ...................................................................... 26
ATF Appropriations Budget Request for FY2011 .......................................................... 26
ATF Appropriations for FY2010.................................................................................... 26
ATF Appropriations for FY2008 and FY2009................................................................ 27
Mérida Initiative and Southwest Border Gun Trafficking............................................... 28
Legislative Action in the 109th Congress.................................................................................... 28
Enacted Legislation and Related Amendments .................................................................... 29
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Gun Control Legislation
Protection of Lawful Commerce in Arms Act ................................................................ 29
Disaster Recovery Personal Protection Act of 2006 ....................................................... 30
House Judiciary Committee Considered Gun Bills .............................................................. 30
ATFE Modernization and Reform Act of 2006 .............................................................. 30
Firearms Corrections and Improvements Act ................................................................. 31
Firearm Commerce Modernization Act.......................................................................... 33
NICS Improvement Act of 2005 .................................................................................... 34
Gun Provisions Attached to Funding and Crime Bills .......................................................... 34
District of Columbia Handgun Ban ............................................................................... 34
Sex Offenders and Firearm Possession Eligibility.......................................................... 35
Court Security and LEOSA Amendments ...................................................................... 35
ATF Appropriations for FY2005, FY2006, and FY2007 ................................................ 35
Other Salient Gun Control Legislative Issues............................................................................. 36
Brady Background Checks and Terrorist Watch Lists........................................................... 37
Background Check Fee and Record Retention ............................................................... 37
Terrorist Watch List Checks .......................................................................................... 38
May 2009 GAO Report on NICS-Related Terrorist Watch List Hits ............................... 40
Long-Range .50 Caliber Rifles ............................................................................................ 41
Expired Semiautomatic Assault Weapons Ban ..................................................................... 42
Gun Shows and Private Firearm Transfers ........................................................................... 43
Tables
Table 1. Firearms-Related Murder Victims, 1993-2008................................................................ 5
Table 2. Firearms-Related Deaths for All Ages ............................................................................ 6
Table 3. Firearms-Related Deaths for Juveniles ........................................................................... 7
Table 4. Brady Background Checks for Firearm Transfers and Permits ...................................... 12
Appendixes
Appendix. Major Federal Firearm and Related Statutes ............................................................. 45
Contacts
Author Contact Information ...................................................................................................... 46
Congressional Research Service
Gun Control Legislation
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 possess lawfully 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, 2009.2 Although House leadership attempted to negotiate an 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, this bill has been tabled for the time being.
Also, in the 111th Congress, Members have revisited several other gun control issues that were
previously considered the 110th Congress. For example, Senator Tom Coburn successfully
amended the Credit CARD Act of 2009 (H.R. 627) with a provision that will 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 Barack Obama signed H.R. 627 into law on
May 22, 2009 (P.L. 111-24). Senator Roger Wicker amended the FY2010 Transportation-HUD
Appropriations bill (H.R. 3288) with language to authorize private persons to carry firearms in
their checked luggage on Amtrak trains. H.R. 3288 became the vehicle for the Consolidated
Appropriations Act, 2010. The Wicker provision was included in this bill. The President signed
H.R. 3288 into law (P.L. 111-117). The Senate Veterans’ Affairs Committee approved a bill (S.
669) that would revamp procedures by which Veterans are adjudicated “mentally incompetent”
and, thus, lose their firearms possession eligibility. The House Committee on Financial Services
reported a bill (H.R. 3045; H.Rept. 111-277) that includes a provision that would prohibit public
housing authorities from barring tenants from possessing legal firearms as a condition of their
lease. And the Senate Judiciary Committee approved amendments (S. 1132) to the Law
Enforcement Officers Safety Act (LEOSA; P.L. 108-277), which authorizes certain qualified
police officers to carry concealed firearms across state lines.
In addition, in the 111th Congress, an amendment offered by Senator John Thune to the FY2010
Defense Authorization Act (S. 1390) was narrowly defeated that arguably would have provided
for national reciprocity between states regarding the concealed carry of firearms. Another
emerging gun control-related issue for the 111th Congress has been gun trafficking and smuggling
across the Southwest border from the United States to Mexico.3 Several committees have held
hearings on this issue. The Consolidated Appropriations Act, 2010 (P.L. 111-117) includes
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.
2 For further information, see CRS Report R40474, D.C. Gun Laws and Proposed Amendments: An Analysis of Title II
of S. 160 and the District’s Gun Laws, by Vivian S. Chu.
3 For further information, see CRS Report R40733, Gun Trafficking and the Southwest Border, by Vivian S. Chu and
William J. Krouse.
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increased funding for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to
investigate additional gun trafficking cases.4
Other salient and recurring gun control issues for the 111th Congress could include (1) denying
firearms and explosives to persons watch-listed as known or suspected terrorists, (2) retaining
Brady background check records for approved firearm transactions to enhance terrorist screening,
(3) more strictly regulating certain long-range .50 caliber rifles, (4) further regulating certain
firearms previously defined in statute as “assault weapons,” and (5) requiring background checks
for private firearm transfers at gun shows. 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.
Background and Analysis
Pro/Con Debate
Through the years, legislative proposals to restrict the availability of firearms to the public have
raised the following questions: What restrictions on firearms are permissible under the
Constitution? Does gun control constitute crime control? Can the nation’s rates of homicide,
robbery, and assault be reduced by the stricter regulation of firearm commerce or ownership?
Would restrictions stop attacks on public figures or thwart deranged persons and terrorists? Would
household, street corner, and schoolyard disputes be less lethal if firearms were more difficult and
expensive to acquire? Would more restrictive gun control policies have the unintended effect of
impairing citizens’ means of self-defense?
In recent years, proponents of gun control legislation have often held that only federal laws can
be effective in the United States. Otherwise, they say, states with few restrictions will continue to
be sources of guns that flow illegally into 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
4 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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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
firearms and violence.5 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.6 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-related mortality rates,
(5) use of firearms for personal defense, and (6) recreational use of firearms. In some cases, the
data presented are more than a decade old but remain the most recent available.
5 National Research Council, Firearms and Violence: A Critical Review (Washington, 2005), p. 48.
6 Ibid., p. 49.
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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.7 Seventy-four percent of those individuals were reported to own more than one
firearm.8 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.9 That total includes
roughly 72 million handguns (mostly pistols, revolvers, and derringers), 76 million rifles, and 64
million shotguns.10 By 2000, the number of firearms had increased to approximately 259 million:
92 million handguns, 92 million rifles, and 75 million shotguns.11 By 2007, the number of
firearms had increased to approximately 294 million: 106 million handguns, 105 million rifles,
and 83 million shotguns.12
In the past, most guns available for sale were produced domestically. In recent years, 1-2 million
handguns were manufactured each year, along with 1-1.5 million rifles and fewer than 1 million
shotguns.13 From 2001 through 2007, however, handgun imports nearly doubled, from 711,000 to
nearly 1.4 million.14 During the same time period, rifle imports increased from 228,000 to
632,000, and shotgun imports increased from 428,000 to 726,000.15 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.16 Data are not available on the number of “assault
weapons” in private possession or available for sale, but one study estimated that 1.5 million
assault weapons were privately owned in 1994.17
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 Reports18 indicate that the violent crime rate has declined from 1981
through 2004; however, the number of homicides and the proportion involving firearms have
7 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.
8 Ibid.
9 U.S. Department of the Treasury, Bureau of Alcohol, Tobacco & Firearms, Commerce in Firearms in the United
States, February 2000, pp. A3-A5.
10 Ibid., pp. A3-A5.
11 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.
12 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.
13 Ibid.
14 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms and Explosives Import
Branch.
15 Ibid.
16 Ned Schwing, 2005 Standard Catalog of Firearms: The Collector’s Price and Reference Guide, 15th edition (Iola,
Wisconsin, 2005), 1,504 pp.
17 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.
18 Go to http://www.fbi.gov/ucr/ucr.htm.
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increased in recent years. As Table 1shows, the rate of firearms-related murders per 100,000 of
the population decreased from 6.6 for 1993 to 3.6 for 2000. The rate held steady at 3.6 for 2001.
From 2002 though 2008, it has oscillated between a high of 3.9 for 2006 and a low of 3.6 for
2008.
Table 1. Firearms-Related Murder Victims, 1993-2008
Rate per 100,000
Estimated Firearms-
Rate per 100,000
Year Murder
Victims
of the Population
Related Murder Victimsa
of the Population
1993 24,530 9.5
17,076
6.6
1994 23,305 9.0
16,318
6.3
1995 21,597 8.2
13,790
5.2
1996 19,645 7.4
13,261
5.0
1997 18,208 6.8
12,335
4.6
1998 16,974 6.3
11,014
4.1
1999 15,522 5.7
10,117
3.7
2000 15,586 5.5
10,203
3.6
2001 16,037 5.6
10,139
3.6
2002 16,229 5.6
10,841
3.8
2003 16,528 5.7
11,037
3.8
2004 16,148 5.5
10,665
3.6
2005 16,740 5.6
11,363
3.8
2006 17,030 5.7
11,542
3.9
2007 16,929 5.6
11,496
3.8
2008 16,272 5.4
10,883
3.6
Source: CRS compilation of FBI crime statistics reported annual y in the Uniform Crime Reports, 1993-2008.
a. The number of firearms-related murder victims was estimated by applying the percentage of firearms-
related murders for which the cause of death was known to the number of all reported murder and
nonnegligent homicide victims for which the cause was known or unknown.
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%.19
19 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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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 are
presented in five categories: homicides, legal interventions,20 suicides, accidents, and unknown
circumstances. For these categories, the data are presented below for 1993 through 2006 in two
tables, one for all deaths and the other for juvenile deaths.
Table 2. Firearms-Related Deaths for All Ages
1993-2006
Legal
Total
Year Homicides
Interventions Suicides Accidents Unknown
Deaths %
change
1993 18,253 318 18,940
1,521
563 39,596
1994 17,527 339 18,765
1,356
518 38,506 -2.8%
1995 15,551 284 18,503
1,225
394 35,958 -6.6%
1996 14,037 290 18,166
1,134
413 34,041 -5.3%
1997 13,252 270 17,566
981 367 32,437 -4.7%
1998 11,798 304 17,424
866 316 30,709 -5.3%
1999 10,828 299 16,599
824 324 28,875 -6.0%
2000 10,801 270 16,586
776 230 28,664 -0.7%
2001 11,348 323 16,869
802 231 29,574 3.2%
2002 11,829 300 17,108
762 243 30,243 2.3%
2003 11,920 347 16,907
730 232 30,137 -0.4%
2004 11,624 311 16,750
649 235 29,570 -1.9%
2005 12,352 330 17,002
789 221 30,695 3.8%
2006 12,791 360 16,883
642 220 30,897 0.7%
Source: National Center for Health Statistics.
As Table 2 shows, firearm fatalities decreased continuously from 39,595 in 1993 to 28,664 in
2000, for an overall decrease of nearly 28%. Compared with firearm deaths in 2000, such deaths
increased by 3.2% in 2001 to 29,574, and increased again by 2.3% in 2002 to 30,243. They
decreased by 0.3% in 2003 to 30,137, and decreased again by 1.9% in 2004 to 29,570. Firearm
fatalities increased by 3.8% in 2005 to 30,694, and increase again in 2006 by 0.7% to 30,897. Of
the 2006 total, 13,151 were homicides or due to legal intervention, 16,883 were suicides, 642
were unintentional (accidental) shootings, and 220 were of unknown cause.21
20 “Legal interventions” include deaths (in these cases by firearms) that involve legal uses of force (justifiable homicide
or manslaughter) usually by the police.
21 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.
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Table 3. Firearms-Related Deaths for Juveniles
1993-2006
Legal
Total
%
Year Homicides
Interventions
Suicides Accidents Unknown Deaths
change
1993 1,975 16 832 392 76 3,292
1994 1,912 20 902 403 81 3,319
0.8%
1995 1,780 16 836 330 72 3,035
-8.6%
1996 1,473 9 720 272 49 2,524
-16.8%
1997 1,308 7 679 247 43 2,285
-9.5%
1998 1,045 17 648 207 54 1,972
-13.7%
1999 1,001 9 558 158 50 1,777
-9.9%
2000 819 15 537 150 23 1,545
-13.1%
2001 835 6 451 125 16 1,434
-7.2%
2002 872 7 423 115 26 1,444
0.7%
2003 805 8 377 102 25 1,318
-8.7%
2004 868 6 384 105 22 1,386
5.2%
2005 921 5 412 127 25 1,491
7.6%
2006 1,082 14 371 102 24 1,594
6.9%
Source: National Center for Health Statistics.
As Table 3 shows, there were 1,594 juvenile (younger than 18 years old) firearms-related deaths
in 2006. Of the juvenile total, 1,096 were homicides or due to legal intervention, 371 were
suicides, 102 were unintentional, and 24 were of unknown cause. From 1993 to 2001, juvenile
firearm-related deaths 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%. They increased for the
next three years, for 2002 through 2006 by 5% to 7%.22
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.23 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.24 Another source of information on the use of firearms for self-defense is the National
Self-defense Survey conducted by criminology professor Gary Kleck of Florida State University
in the spring of 1993. Citing responses from 4,978 households, Dr. Kleck estimated that handguns
22 Ibid.
23 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.
24 Ibid.
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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.25
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.26
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 1994.27 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 200328 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.29
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
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.
25 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.
26 Jens Ludwig and Phillip J. Cook, Guns in America: National Survey on Private Ownership and Use of Firearms,
NCJ 165476, May 1999, p. 2.
27 Ibid., p. 3.
28 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.
29 American Sports Data, Inc., The SUPERSTUDY of Sports Participation, available at http://www.nssf.org/
IndustryResearch/PDF/HistTrendsParticipation.pdf.
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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)).
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
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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.30
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)31 as an amendment to the Gun Control Act
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.
30 For further information, see CRS Report RS20957, Internet Firearm Sales, by T. J. Halstead.
31 107 Stat. 1536, November 30, 1993.
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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.32
Brady Background Check Statistics
From calendar year 1994 through 2008, more than 97.1 million background checks for firearm
transfer or permit applications occurred under both the interim and permanent provisions of the
Brady Act. Of this number, nearly 1.8 million background checks, or about 1.8%, resulted in
32 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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firearm transfers being denied. Under the interim provisions, 12.7 million firearm background
checks (for handguns) were completed during that four-year period, resulting in 312,000 denials.
As shown in Table 4, under the permanent provisions of the Brady Act (December 1998 through
2008), more than 84.3 million checks were completed, resulting in nearly 1.5 million denials, or a
1.7% denial rate. Nearly 48.2 million of these checks were completed entirely by the FBI for non-
POC states, the District, and four territories. Those checks resulted in a denial rate of 1.4%.
Nearly 36.2 million checks were conducted by full or partial POC states.33 Those checks resulted
in a higher denial rate of 2.2%.
Table 4. Brady Background Checks for Firearm Transfers and Permits
1994-2008
Total annual
Non-POC
POC
Year
checks
Denials FBI
checks
S&L
checks denialsa
denialsb
1998 893,127
18,647
507,000
386,127
8,836
9,811
1999 8,621,315
204,455
4,538,000
4,083,315
81,000
123,455
2000 7,698,643
153,087
4,260,270
3,438,373
66,808
86,279
2001 7,957,926
150,500
4,291,926
3,666,000
64,500
86,000
2002 7,805,792
135,973
4,248,893
3,556,899
60,739
75,234
2003 7,831,146
126,181
4,462,801
3,368,345
61,170
65,011
2004 8,083,809
125,842
4,685,018
3,398,791
63,675
62,167
2005 8,277,873
131,916
4,952,639
3,325,234
66,705
65,211
2006 8,612,201
134,442
5,262,752
3,349,449
69,930
64,512
2007 8,658,245
135,817
5,136,883
3,521,362
66,817
69,000
2008 9,900,711
147,080
5,813,249
4,087,462
70,725
76,355
Total
84,340,788 1,463,940
48,159,431
36,181,357 680,905 783,035
Source: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=pbse&sid=13.
Notes: On November 30, 1998, the interim provisions of the Brady Handgun Violence Prevention Act (P.L.
103-159) ended, and the permanent provisions were implemented when the FBI stood up the National Instant
Criminal Background Check System (NICS).
a. In non-point of contact (non-POC) states, federal firearms licensees contact the FBI directly to conduct
NICS background checks.
b. In point of contact (POC) states, federal firearms licenses contact a state agency and, in turn, the state
agency contacts the FBI to conduct NICS background checks.
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 (H.R. 6691) to overturn
33 Ibid.
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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 attempted to
negotiate an end to the impasse over the District’s gun laws and bring its version of the DC voting
rights bill (H.R. 157) to the floor; however, this bill was tabled.
In response to the tragic events at Virginia Tech on April 16, 2007, and other shootings, the 110th
Congress also passed, and the President signed, a bill (P.L. 110-180) designed to strengthen Brady
background checks for firearm transfers.
The 111th Congress has revisited several issues that were previously considered in the 111th
Congress. For example, in the 110th Congress, 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 the 111th Congress,
however, the Credit CARD Act of 2009 (P.L. 111-24) was successfully amended with a provision
that authorizes private persons to carry firearms in national parks and wildlife refuges.
In the 110th Congress, the Senate Veterans’ Affairs Committee approved a bill (S. 2969) that was
amended to include a provision that would have revamped procedures by which Veterans are
adjudicated “mentally incompetent” and, thus, lose their firearms eligibility. In the 111th
Congress, the Senate Veterans’ Affairs Committee has reported stand-alone legislation that would
address this issue (S. 669).
In the 110th Congress, the House passed legislation (H.R. 6216) that would have prohibited public
housing authorities from barring tenants from possessing legal firearms as a condition of their
lease. In the 111th Congress, the House Committee on Financial Services has reported a bill that
includes a similar provision (H.R. 3045).
In the 110th Congress, the Senate Judiciary Committee reported legislation (S. 376) 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. In
the 111th Congress, the Senate Judiciary Committee reconsidered and approved these amendments
(S. 1132) again. 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 (P.L. 110-161). Despite the permanency of these limitations, Congress modified the
language of these limitations and included them in the FY2010 and FY2011 Commerce, Justice,
Science, and Related Agencies Appropriations Acts (P.L. 111-8 and P.L. 111-117).
Also, in the 111th Congress, an amendment to the FY2010 Defense Authorization Act (S. 1390)
was narrowly defeated that arguably would have provided for national reciprocity between states
regarding the concealed carry of firearms. On the other hand, an amendment to the FY2010
Transportation-HUD Appropriations bill (H.R. 3288) was enacted in the Consolidated
Appropriations Act, 2010 (P.L. 111-117). Within one year of enactment, this provision will
authorize private persons to carry firearms in their checked luggage on Amtrak trains. Moreover,
several congressional committees have held hearings on gun trafficking and smuggling across the
Southwest border from the United States to Mexico. The Consolidated Appropriations Act, 2010
(P.L. 111-117), provided increased funding for ATF to investigate additional gun trafficking cases.
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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 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
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.34
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).35 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”;
34 For legal analysis, see CRS Report R40137, District of Columbia v. Heller: The Supreme Court and the Second
Amendment, by Vivian S. Chu.
35 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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• 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
• 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.36 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).37
Mayor Adrian Fenty signed the FCAA into law on January 28, 2009 (L17-0372). 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.38
36 Keith Perine and Seth Stern, “House Democrats Plan Vote To Roll Back D.C. Gun Laws,” CQ Today Online News,
August 5, 2008.
37 For further information on these bills, as well as the Ensign amendment, see CRS Report R40474, D.C. Gun Laws
and Proposed Amendments: An Analysis of Title II of S. 160 and the District’s Gun Laws, by Vivian S. Chu.
38 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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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 (L17-0388). It was transmitted to
Congress on February 4, 2009. Because the bill includes penalty provisions, Congress had 60
legislative days to review this bill under the DC Home Rule Act. Among other things, this
permanent legislation amends the DC code to
• 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.
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).39 While the House leadership attempted to negotiate
an end the impasse over the DC gun laws and bring its version of the DC voting rights bill (H.R.
157) to the floor, this bill was ultimately tabled.40
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.41 Rather than vote on the motion, debate on H.R. 1433 was postponed indefinitely.
39 For more information, see CRS Report R40474, D.C. Gun Laws and Proposed Amendments: An Analysis of Title II
of S. 160 and the District’s Gun Laws, by Vivian S. Chu.
40 Edward Epstein and Michael Teitelbaum, “Hoyer Expresses Optimism About Chance D.C. Vote Bill Will Come to
Floor,” CQ Today, March 24, 2009.
41 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.
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NICS Improvement Amendments Act of 200742
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:
• 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;43
• 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;44
• 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.45 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).
42 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.
43 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).
44 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.
45 Jonathan Weisman, “Democrats, NRA Reach Deal on Background-Check Bill,” Washington Post, June 10, 2007, p.
A02.
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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.
2084 was reportedly divided and uneven, however.46 Citing privacy and cost issues related to the
NICS amendments, Senator Coburn reportedly placed a hold on that legislation.47
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)48 and was
found to be a “danger to himself or others would have his gun rights taken away ... forever.”49
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.” 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.
In the 111th Congress, Senator Burr reintroduced his bill as S. 669, and the Senate Committee on
Veterans Affairs reported this bill (S.Rept. 111-27) on June 16, 2009. Representative Jerry Moran
introduced a similar bill (H.R. 2547).
46 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.
47 Seth Stern, “Coburn Blocks Gun Background-Check Bill, Citing Concerns About Privacy, Spending,” CQ Today,
September 25, 2007.
48 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.
49 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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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).
This definition of “mental defective” was promulgated by the ATF in a final rule published on
June 27, 1997.50 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).51 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.52 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.”53
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.54 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.55 This determination process is still followed
today at the VA.56
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.57
50 Federal Register, vol. 62, no. 124, June 27, 1997, p. 34634.
51 Federal Register, vol. 61, no. 174, September 6, 1996, p. 47095.
52 Ibid.
53 Personal communication with Compensation and Pension Program staff, Department of Veterans Affairs, July 9,
2008.
54 Ibid.
55 Ibid.
56 Ibid.
57 For further information on the treatment of mental illness and substance abuse for the purposes of gun control, see
(continued...)
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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 2000.58 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
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.
Public Housing and Firearms Possession and Use
On July 9, 2008, the House passed a bill (H.R. 6216) that would have made changes related to the
administration of the public housing program 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.59 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.
In the 111th Congress, the Committee on Financial Services reported the Section 8 Voucher
Reform Act of 2009 (H.R. 3045; H.Rept. 111-277) on July 23, 2009. In committee markup,
Representative Prince successfully amended the bill with language that would prevent authorities
from prohibiting firearms in public housing on July 9, 2009.
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. 1067) that allows private persons to carry firearms in
national parks and wildlife refuges (effective February 22, 2010). This amendment passed by 67
(...continued)
Donna M. Norris, M.D., et al., “Firearm Laws, Patients, and the Roles of Psychiatrists,” American Journal of
Psychiatry, August 2006, pp. 1392-1396.
58 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.
59 Seth Stern, “House to Try Again on Public Housing Bill,” CQ Today, July 8, 2008.
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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 Barack
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)60 and Fish and Wildlife Service (FWS)61 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
personal protection. Although 48 states have “concealed carry” laws, only 24 of those states
reportedly allow concealed handguns to be carried in state parks.62
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.63 While the initial comment period was
scheduled to end on June 30, 2008, it was extended until August 8, 2008.64 DOI reported
receiving approximately 90,000 comments on those proposed regulations. Final regulations were
issued on December 10, 2008.65 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.66 On March 20,
the NRA filed a notice to appeal in Federal District Court in opposition to the preliminary
injunction.
Senator Coburn 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.67 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).
60 36 Code of Federal Regulations Part 2.
61 50 Code of Federal Regulations Part 27.
62 Warren Richey, “Bid to Allow Guns in National Parks,” Christian Science Monitor, August 19, 2008, p. 3.
63 73 Federal Register 23388.
64 73 Federal Register 39272.
65 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.
66 Juliet Eilperin and Del Quentin Wilber, “Judge Blocks Rule Permitting Concealed Guns in U.S. Parks,” Washington
Post, March 20, 2009, p. A09.
67 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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AMTRAK Passengers and Firearms
On September 16, 2010, Senator Roger Wicker amended the FY2010 Transportation-HUD
Appropriations bill (H.R. 3288) with language to authorize private persons to carry firearms and
ammunition in their checked luggage on Amtrak trains. The Wicker amendment (S.Amdt. 2366)
passed by a yea-nay vote, 68-30 (Record Vote Number: 279). On September 17, 2010, the Senate
passed this bill. Later, H.R. 3288 became the vehicle for the Consolidated Appropriations Act,
2010. Conferees retained the Wicker language in the conference agreement (H.Rept. 111-366),
and the President signed H.R. 3288 into law (P.L. 111-117) on December 16, 2009. Section 159 of
the act requires Amtrak, with Transportation Security Administration, to report to Congress
(within six months of enactment—June 16, 2010) on proposed guidance and procedures to
implement a “checked firearms program.” The reported guidance and procedures are to be
implemented within one year of enactment. The act requires further that checked firearms be
placed in a locked, hard-sided container, and that passenger planning to carry firearms in their
luggage declare their intentions to Amtrak at the time they make their reservations or within 24
hours of departure. Similar requirements are set out for placing ammunition in checked luggage.
Concealed Carry and Reciprocity
On July 22, 2009, the Senate considered an amendment (S.Amdt. 1618) offered by Senator Thune
to the FY2010 Defense Authorization Act (S. 1390) that would have arguably provided for
national reciprocity between states regarding the concealed carry of firearms. By agreement, the
amendment needed 60 votes to pass, but it was narrowly defeated by a recorded vote, 58-39.
Senator Thune introduced a similar bill, the Respecting States Rights and Concealed Carry
Reciprocity Act of 2009 (S. 845).
As background, the issue of concealed carry under state law can be divided into four categories:
(1) no permit required, (2) mandatory or shall issue, (3) discretionary or may issue, and (4) no
concealed carry permitted. In Alaska and Vermont, state law allows concealed carry without a
permit (no permit required). Thirty-five states have “shall issue” laws, in that the state issues the
permit as long as the applicant meets the eligibility criteria.68 Eleven states are “may issue” states,
in that the state has the discretion whether to issue the permit.69 Wisconsin and Illinois state laws
prohibit the concealed carry of firearms by civilians under any circumstance.
Many states with concealed carry laws have extended concealed carry privileges, or reciprocity,
to the residents of other states. According to the NRA, however, those concealed carry laws are
often very technical and subject to change. Moreover, there are no national eligibility criteria, or
training standards regarding concealed carry. Although the Thune amendment did not address the
issue of national standards, it would have required “may issue” states arguably to honor the
permits issued by “shall issue” states. By extension, it would have also required “shall issue” and
68 Shall issues states include Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas,
Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New
Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina,
South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming.
69 May issue states include Alabama, Connecticut, and Iowa. The following states are restrictive may issue states:
California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island.
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“may issue” states to honor the eligibility of all residents of Alaska and Vermont to carry
concealed firearms in their states, as long as those persons were not otherwise prohibited from
possessing firearms. Other concealed carry reciprocity bills introduced in the 110th Congress
include H.R. 226, H.R. 861, H.R. 1520, S. 3207 and S. 388.
Law Enforcement Officers Safety Acts of 2007 and 2009
The Senate Judiciary Committee approved a bill (S. 1132) that would amend the Law
Enforcement Officers Safety Act (P.L. 108-277). This law authorized certain qualified active-duty
and retired law enforcement officers to carry concealed firearms across state lines. The
amendments would (1) clarified that certain AMTRAK and executive branch law enforcement
officers are eligible for concealed carry privileges under P.L. 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. Judiciary Committee chair,
Senator Leah, introduced S. 1132. In the House, Representative Randy Forbes introduced a
similar measure (H.R. 3752).
Previously, the Senate Judiciary Committee reported a similar bill (S. 376; S.Rept. 110-150) on
September 5, 2007. This bill was also introduced by Senator Leahy. Representative Forbes
introduced a similar bill (H.R. 2726). The language of S. 376 was incorporated into S. 2084, the
School Safety and Law Enforcement Improvement Act of 2007, when that bill was reported on
September 21, 2007 (S.Rept. 110-183). In the 109th Congress, the Senate amended H.R. 1751, the
Court House Security Improvement Act of 2006, with similar LEOSA provisions and passed that
measure.
Senate Health Care Reform Bill and Firearms
On November 20, 2009, Gun Owners of America (GOA) sent out an “action alert” urging its
membership to oppose a Senate health care reform proposal released on November 18, 2009. The
GOA argued that the Senate proposal, along with other enacted provisions of law, would have
required doctors to provide “gun-related health data” to a computerized national health
information network.70 With such information, the GOA maintained that the federal government
would deny individuals the ability to obtain a firearm or firearms permit. Of particular concern
for the GOA were mental health records. Another concern raised by GOA was the possibility that
insurance providers under the Senate proposal would have been required or prompted to raise
premiums for persons who exhibited arguably “unhealthy behaviors,” such as firearms
ownership.
Although the Senate proposal included provisions to amend the Health Insurance Portability and
Accountability Act (HIPAA) that addressed electronic data transaction standards for national
health information sharing purposes to facilitate eligibility determinations and health care plan
enrollments, it did not include any provisions that would have directly required the national
collection of “gun-related health data.” Without a clear directive, it is debatable whether the
Department of Health and Human Services (HHS) would have undertaken such data collection on
firearms ownership and possession given other provisions in current law, albeit in different
70 Shalaigh Murray, “Public Option at Center of Debate; Democratic Dissent Reid Must Find Compromise to Pass
Health-Care Bill,” Washington Post, November 23, 2009, p. A01.
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statutory contexts, that prohibit the establishment of a registry of privately held firearms or
firearm owners.71 Dr. David Blumenthal, the National Coordinator for Health Information
Technology at HHS, said that the current system does not include a database into which such
information could be fed, nor are there plans to create one.72 Blumenthal added that “we don’t
want to do it and it’s not authorized.”73
Nor did the Senate proposal include any provisions that would have required or prompted
insurance providers to raise premiums on gun owners. On the other hand, the Senate legislation
did include provisions that would have codified and amended HIPAA wellness program
provisions that would have addressed employer-based incentives for healthy behavior to reduce
health care costs. Arguably, these provisions would not have precluded the Secretary of Health
and Human Services from promulgating regulations that addressed risks associated with firearms
ownership, possession, use, and storage. However, if proposed, such regulations would have
likely been tested in administrative and judicial review as to their impact on Second Amendment
rights.
Senate legislators included a new provision in their Patient Protection and Affordable Care
proposal, which the Senate passed as an amendment to H.R. 3590 on December 24, 2009.74 This
provision would prohibit any wellness and health promotion activity sponsored under the
amendment from requiring the disclosure or collection of any information about the presence or
storage of a lawfully possessed firearm or ammunition in the residence or on the property of an
individual, or the lawful use, possession, or storage of a firearm or ammunition by an individual.
The provision also states that nothing in the bill would be construed to authorize any data
collection on the lawful ownership, possession, use, or storage of firearms or ammunition, or to
maintain records on individual ownership or possession of a firearm or ammunition. In addition,
with regard to any health insurance to be provided under the bill, this provision would prohibit
providers from increasing premium rates; denying coverage; or reducing or withholding
discounts, rebates, or rewards for participation in a wellness program because of an individual’s
lawful ownership, possession, use, or storage of a firearm or ammunition. Finally, under the data
collection activities to be authorized under the bill, the provision states that no individual would
be required to disclose any information relating to the lawful ownership, possession, use, or
storage of a firearm or ammunition.
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
71 In the Brady Handgun Violence Prevention Act (P.L. 103-159, November 30, 1993, 107 Stat. 1542), Congress
included a provision (§ 103(i)) that prohibits any department, agency, officer, or employee of the United States from
establishing a registration system with respect to firearms, firearm owners, or firearm transactions/dispositions that
would use records generated by the National Instant Criminal Background Check System (NICS).
72 Peter Overby, “A Vote For Health Care, A Vote Against Gun Rights?,” National Public Radio, November 25, 2009.
73 Ibid.
74 See proposed section 2717 as included in section 1001 and amended by section 10101 in the Senate-passed H.R.
3590.
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• 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.75 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.
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.76 Despite the permanency of these limitations, Congress has
modified the language of these limitations and included them in the FY2010 and FY2011
Commerce, Justice, Science (CJS), and Related Agencies Appropriations Acts (P.L. 111-8 and
P.L. 111-117).
75 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.
76 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.
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Firearms Enforcement-Related Funding Bills77
The 110th and 111th Congresses have considered legislation that either funds the ATF or authorizes
increased appropriations for that law enforcement agency. 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.
ATF Appropriations Budget Request for FY2011
The President’s FY2011 budget request includes $1.163 billion for ATF, an increase of $42.2
million, or 3.8%, compared to the FY2010-enacted appropriation. Proposed increases (over base)
include $11.8 million for Project Gunrunner78 and $1.2 million for Emergency Support Function
#13 (ESF 13), the Public Safety and Security Annex to the National Response Framework
(NRF).79 The NRF sets broad responsibilities and lines of authority for federal agencies in the
event of a national emergency or major disaster. Under the NRF, the Attorney General is
responsible for ESF-13, which entails all hazards law enforcement planning and coordination for
the entire United States and its territories. The Attorney General, in turn, has delegated his
responsibility for ESF-13’s implementation to the ATF.
ATF Appropriations for FY2010
For FY2010, the Administration has requested $1.121 billion and 5,025 full-time equivalent
(FTE) positions for ATF, or $66.6 million and 68 FTE positions more than the amounts
appropriated for FY2009 ($1.054 billion and 4,957). Of the difference, $23.6 million and 22 FTE
positions are base adjustments. For Southwest border enforcement, the FY2010 request includes a
budget enhancement of $18 million to support Project Gunrunner and $25 million for the new
National Center for Explosives Training and Research Center (NCETR). Compared to the enacted
FY2009 level of funding, the FY2010 request would provide a 4.9% increase.
The House-passed bill (H.R. 2847; H.Rept. 111-149) would provide ATF with $1.106 billion for
FY2010, or a 3.5% increase,80 but 1.3% less than the FY2010 request. Report language indicates
that this amount includes the following budget increases: nearly $18 million to combat gun
trafficking on the Southwest border and $10 million for ATF Violent Crime Impact Teams, which
are ATF-lead inter-agency task forces dedicated to reducing violent crime and illegal gang
activity. However, the committee recommendation does not include $25 million for Phase Two of
77 For further information, see CRS Report RL34514, The Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF): Budget and Operations, by William J. Krouse.
78 For further information on Operation Gunrunner, see CRS Report R40733, Gun Trafficking and the Southwest
Border, by Vivian S. Chu and William J. Krouse.
79 For more information, see CRS Report RL34758, The National Response Framework: Overview and Possible Issues
for Congress, by Bruce R. Lindsay.
80 This percent difference reflects a $14 million supplemental appropriation that was enacted after the House passed
H.R. 2847. Prior to the supplemental and when the House passed H.R. 2847, the percent difference was a 4.9% increase
as compared to the FY2009 enacted level.
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the NCETR project.81 Although the committee supports this endeavor, fiscal constraints prompted
the committee to dedicate limited resources to Southwest border, anti-gun trafficking efforts.82
The Senate-reported bill (also H.R. 2847; S.Rept. 111-34) would provide ATF with the same
amount as requested by the Administration. As noted in report language, the committee
recommendation includes a total of $61 million to combat gun trafficking on the Southwest
border, including an increase of $18 million for Project Gunrunner, as requested by the
Administration.83 Report language also conveys the committee’s support for the National
Integrated Ballistic Information Network (NIBIN) and directs ATF to ensure that ballistic-
imaging technology is routinely upgraded and made available to state and local law enforcement.
The Senate recommendation, unlike the House (as described below), includes $6 million for ATF
construction account to complete Phase Two of the NCETR project.
For ATF, Congress appropriated $1.121 billion in the Consolidated Appropriations Act, 2010
(H.R. 3288). The President signed this bill into law on December 16, 2009 (P.L. 111-117).84 This
act provides an amount that is equal to the Administration’s request. This amount is $52.5 million
more than the final FY2009-enacted amount, or an increase of 4.9%. Conference report language
(H.Rept. 111-366) indicates that the act includes $18 million for Project Gunrunner, the same
amount requested by the Administration. In addition, the act also included $10 million to increase
the Violent Crime Impact Team program, $6 million for construction (phase two) of the NCETR,
and $1.5 million to complete ATF headquarters construction projects.
ATF Appropriations for FY2008 and FY2009
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, and another $14 million for ATF in the Supplemental Appropriations Act, 2009
(P.L. 111-32), bringing the total enacted FY2009 budget for the agency to $1.068 billion, or a
5.6% increase compared with the FY2008 enacted level.
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
81 The Administration’s FY2010 request for the NCETR included $19 million for the ATF salaries and expenses
account and $6 million for the ATF construction account.
82 U.S. House of Representatives, Committee on Appropriations, Commerce, Justice Science, and Related Agencies
Appropriations Bill, 2010, H.Rept. 111-149, p. 66.
83 U.S. Congress, Senate Committee on Appropriations, Subcommittee on Commerce, Justice, Science, and Related
Agencies, Departments o Commerce and Justice, and Science and Related Agencies Appropriations Bill, 2010,
committee print, 111th Cong., 2nd sess., June 25, 2009, p. 68.
84 The conference report on the bill includes provisions for six of the seven FY2010 appropriations: Transportation-
HUD; Commerce-Justice-Science; Financial Services; Labor-HHS; Military Construction-VA; and State-Foreign
Operations. The Defense appropriations bill, H.R. 3326, was passed separately.
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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
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 NIBIN.
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.
Mérida 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 Mérida
Initiative,85 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. In the 111th Congress, similar bills have been introduced
(S. 205, H.R. 495, H.R. 1448, and H.R. 1867).
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
85 For further information, see CRS Report RS22837, Mérida Initiative: U.S. Anticrime and Counterdrug Assistance for
Mexico and Central America, by Clare Ribando Seelke.
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(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).86 This legislation (S. 397) was very similar to a bill considered in the 108th
Congress.87 P.L. 109-92 prohibits certain types of lawsuits against firearm manufacturers and
dealers to recover damages related to the criminal or unlawful use of their products (firearms and
ammunition) by other persons.88 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.89 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
86 119 Stat. 2095, October 26, 2005.
87 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.
88 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.
89 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.
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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).90 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
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.91 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.92
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
90 120 Stat. 1391, October 4, 2006.
91 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).
92 120 Stat. 1391, § 557.
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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
(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 2005.93 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,”94 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
93 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.
94 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.
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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.95
Codification of Firearms Trace Data Limitations96
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
ATF appropriations language since FY2004.97 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.98
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.”99 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.
95 Sewell Chan, “15 Mayors Meet in New York to Fight Against Gun Violence,” New York Times, April 26, 2006, p.
A18.
96 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.
97 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.
98 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).
99 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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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
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
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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
May 18, 2006, but no further action was taken on this bill.100 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.101 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.
100 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.
101 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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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
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
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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).102 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
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) denying firearms
and explosives to persons watch-listed as known or suspected terrorists, (2) retaining Brady
background check records for approved firearm transactions to enhance terrorist screening, (3)
102 Federal statutes regulating explosives commerce in the United States were enacted under Title XI of the Organized
Crime Control Act of 1970 (OCCA; P.L. 91-452). These statutes are codified, as amended, at Chapter 40, 18 U.S.C. §
841 et seq. They were significantly amended by the Safe Explosives Act (SEA; P.L. 107-296) to require that all persons
who receive explosives first acquire a license or permit from ATF. Prior to the SEA amendments, federal law only
required persons who transferred or shipped firearms in interstate or foreign commerce to acquire a “user permit.”
Person who imported, manufactured, or dealt in firearms were required to acquire an explosives license, as is the case
today under current law. In addition, SEA requires that any “responsible persons” or “employees,” who are authorized
by a license- or permit-holding employer to possess explosives, submit “identifying information” to the Attorney
General for background checks, so that federal authorities (the FBI and ATF) can verify that those persons are not
prohibited from possessing explosives under federal law.
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more strictly regulating certain long-range .50 caliber rifles, (4) further regulating certain firearms
previously defined in statute as “assault weapons,” and (5) requiring background checks for
private firearm transfers at gun shows.
Brady Background Checks and Terrorist Watch Lists103
On November 5, 2009, U.S. Army Major Nidal Malik Hasan allegedly shot 13 persons to death
and wounded over 30 at Fort Hood, TX. Prior to the shootings, Hasan had corresponded by e-
mail with a radical Muslim imam, Anwar al-Aulaqi, whom U.S. authorities have long suspected
of having substantial ties to al-Qaeda.104 Although Federal Bureau of Investigation (FBI)
counterterrorism agents were aware of those communications,105 it is unclear at what level Hasan
was being scrutinized by the FBI. If he had been the subject of a full counterterrorism
investigation, FBI policy would have required that he be watch-listed.106 Depending on the
sequence of events, had Hasan been watch-listed, there is a possibility that the background check
performed at the time of his firearms purchase would have alerted FBI counterterrorism agents to
that transfer and they might have taken steps to prevent the shootings.
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.107
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, 1998.108 The
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
103 For further information, see CRS Report RL33011, Terrorist Screening and Brady Background Checks for
Firearms, by William J. Krouse.
104 Carrie Johnson, Spencer C. Hsu, and Ellen Nakashima, “Hasan Had Intensified Contact with Cleric: FBI Monitored
E-mail Exchanges Fort Hood Suspect Raised Prospect of Financial Transfers,” Washington Post, November 21, 2009,
p. A01.
105 Philip Rucker, Carrie Johnson, and Ellen Nakashima, “Hasan E-mails to Cleric Didn’t Result in Inquiry; Suspect in
Fort Hood Shootings Will Be Tried in Military Court,” Washington Post, November 10, 2009, p. A01.
106 U.S. Department of Justice, Office of Inspector General, Audit Division, Federal Bureau of Investigation’s Terrorist
Watchlist Nomination Practices, Audit Report 09-25, May 2009, p. 11.
107 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).
108 63 Federal Register 58303.
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of information about lawful firearm transfers for certain audit purposes.109 On January 22, 2001,
DOJ promulgated a final rule that allowed such records to maintained for up to 90 days.110
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, 2001.111
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.112
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.
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.113 Upon learning of this practice, however, then
109 NRA v. Reno (No. 99-5270, 216 F. 3d 122; 2000 U.S. App. Lexis 15906).
110 66 Federal Register 6470.
111 66 Federal Register 35567.
112 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.
113 Fox Butterfield, “Justice Dept. Bars Use of Gun Checks in Terror Inquiry: FBI Wants to See Files,” New York
(continued...)
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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.114 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 DOJ appropriations to require the destruction of those records
within 24 hours. A similar requirement was enacted for each subsequent fiscal year, FY2005
through FY2010.
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.115 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.116
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.
Then Senator Joseph Biden and Senator Frank Lautenberg requested that GAO report on these
new NICS operating procedures.117 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-
(...continued)
Times, December 6, 2001, p. A1.
114 Subparagraph 103(i) of P.L. 103-159 (107 Stat. 1542).
115 For further information, see CRS Report RL32366, Terrorist Identification, Screening, and Tracking Under
Homeland Security Presidential Directive 6, by William J. Krouse.
116 Dan Eggen, “FBI Gets More Time on Gun Buys,” Washington Post, November 22, 2003, p. A05.
117 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.
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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.118 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.119
Several related pieces of legislation were introduced that are related to NICS operations and
terrorist watch lists in the 109th Congress. 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. 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 the No Fly, No Buy Act (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 reflected a legislative proposal
made by the Department of Justice.120 Representative King introduced an identical measure (H.R.
2074). Senator Lautenberg introduced a separate measure (S. 2935) that would have authorized
the Attorney General to retain firearm transfer records on persons who were suspected terrorists
or their supporters, but who have been transferred a firearm. In the 111th Congress, Senator
Lautenberg and Representative King reintroduced a proposal (S. 1317/H.R. 2159) that is similar
to S. 1237, and Representative McCarthy reintroduced the No Fly, No Buy Act (H.R. 2401).
Senator Lautenberg has also introduced a bill (S. 2820) that authorizes any federal or state
officials to maintain any NICS records that resulted in a terrorist watch list hit for a minimum of
10 years. This bill would also authorize the FBI to maintain NICS records on approved firearms
transfers for not less than 180 days.
May 2009 GAO Report on NICS-Related Terrorist Watch List Hits
In a recent report on NICS-related terrorist watch list hits, the Government Accountability Office
(GAO) found that from February 2004 through February 2009, there were
118 Ibid., p. 9.
119 Ibid., p. 26.
120 Michael Luo, “U.S. Proposal Could Block Gun Buyers Tied to Terror,” New York Times, April 27, 2007.
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• 963 valid NICS background checks that resulted in valid terrorist watch list hits
and, of those checks, about 90% (865) were allowed to proceed and a firearms or
explosives transfer was possibly made;
• however, only one proceed out of the 865 involved an explosives-related
background check; and
• of the 10% that resulted in denials (98), the denials were based on felony
convictions, illegal immigration status, fugitive from justice status, and the
unlawful use of, or addicted to, a controlled substance. All of these denials
involved firearms, as opposed to explosives.121
Long-Range .50 Caliber Rifles122
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
“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)123 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 Act124 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,
121 U.S. Government Accountability Office, Firearm and Explosive Background Checks Involving Terrorist Watch List
Records, GAO-09-125R, May 21, 2009, p. 8.
122 For further information, see CRS Report RS22151, Long-Range Fifty Caliber Rifles: Should They Be More Strictly
Regulated?, by William J. Krouse.
123 26 USC, Chapter 53, §5801 et seq.
124 18 USC, Chapter 44, §921 et seq.
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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.
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.125 There were
similar definitions for pistols and shotguns that were classified as semiautomatic assault
weapons.126 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.127 Under current
125 18 U.S.C. § 921(a)(30)(B).
126 18 U.S.C. § 921(a)(30)(C) and (D).
127 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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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.
1805) that would have extended the ban for 10 years, but the Senate did not pass this bill.128 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.
128 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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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
not pass this bill.129 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). In the 111th Congress, Senator Lautenberg and Representative
Castle reintroduced similar measures that would require background checks for private firearm
transfers at guns shows (S. 843 and H.R. 2324).
129 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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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.130
• 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
130 See CRS Report RL31143, Firearms Prohibitions and Domestic Violence Convictions: The Lautenberg
Amendment, by T. J. Halstead.
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