Gun Control Proposals in the 113th Congress:
Universal Background Checks, Gun
Trafficking, and Military Style Firearms
William J. Krouse
Specialist in Domestic Security and Crime Policy
June 7, 2013
Congressional Research Service
7-5700
www.crs.gov
R42987
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Gun Control Proposals in the 113th Congress
Summary
Congress has debated the efficacy and constitutionality of federal regulation of firearms and
ammunition, with strong advocates arguing for and against greater gun control. The mass
shooting in Newtown, CT, along with other mass shootings in Aurora, CO, and Tucson, AZ, has
restarted the national gun control debate. Members of the 113th Congress could consider a range
of legislative proposals, including several that President Barack Obama has announced his
support for as part of his national gun violence reduction plan. The most salient of the President’s
legislative proposals would (1) require background checks for intrastate firearms transfers
between unlicensed persons at gun shows and nearly any other venue, otherwise known as the
“universal background checks” proposal; (2) increase penalties for gun trafficking; and (3)
reinstate and strengthen an expired federal ban on detachable ammunition magazines of over 10-
round capacity and certain “military style” firearms commonly described as “semiautomatic
assault weapons,” which are designed to accept such magazines.
On March 21, 2013, Senator Harry Reid introduced the Safe Communities, Safe Schools Act of
2013 (S. 649). As introduced, this bill included the language of several bills previously reported
by the Senate Committee on the Judiciary. Those bills included the Stop Illegal Trafficking in
Firearms Act of 2013 (S. 54), the Fix Gun Checks Act of 2013 (S. 374), and the School Safety
Enhancements Act of 2013 (S. 146). However, the Assault Weapons Ban of 2013 (S. 150) was not
included in S. 649. From April 17-18, 2013, the Senate considered S. 649 and nine amendments
that addressed a wide array of gun control issues, ranging from universal background checks to
assault weapons. By unanimous consent, the Senate agreed that adoption of these amendments
would require a 60-vote threshold. All but two of these amendments were rejected. However, a
final vote was not taken on S. 649. This report provides an overview of federal firearms law and
examines these gun control proposals and related amendments. While the House has not
considered any of the gun control proposals debated in the Senate, on May 8, 2013, the House
Committee on Veterans’ Affairs approved a bill, the Veterans 2nd Amendment Protection Act
(H.R. 602), that addresses veterans, mental incompetency, and firearms eligibility.
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Gun Control Proposals in the 113th Congress
Contents
Developments in the 113th Congress ................................................................................................ 1
Sandy Hook Elementary School ................................................................................................ 1
Legislative Action ...................................................................................................................... 1
Senate Committee Action .................................................................................................... 2
Senate Floor Action ............................................................................................................. 2
House Committee Action .................................................................................................... 4
Executive Action ....................................................................................................................... 4
Federal Regulation of Firearms: Background .................................................................................. 6
The National Firearms Act (NFA) ............................................................................................. 6
The Gun Control Act of 1968 (GCA) ........................................................................................ 7
Firearms Transfer and Possession Eligibility ...................................................................... 8
Age Eligibility ..................................................................................................................... 9
Licensed Dealers and Firearms Transfers ........................................................................... 9
Private Firearms Transfers ................................................................................................ 10
Open and Concealed Carry ............................................................................................... 10
National Instant Criminal Background Check System (NICS) Background Checks .............. 12
Universal Background Checks ....................................................................................................... 15
Senate Committee Markup ...................................................................................................... 16
Senate Floor Consideration ..................................................................................................... 16
Manchin-Toomey Amendment .......................................................................................... 16
Grassley GOP Substitute Amendment ............................................................................... 17
Improving Background Checks ..................................................................................................... 17
Senate Committee Markup ...................................................................................................... 19
Senate Floor Consideration ..................................................................................................... 20
Manchin-Toomey Amendment .......................................................................................... 20
Grassley GOP Substitute Amendment ............................................................................... 21
Veterans, Mental Incompetency, and Firearms Eligibility ................................................ 22
Gun Trafficking.............................................................................................................................. 24
ATF Regulation ................................................................................................................. 24
Anatomy of a Firearms Straw Purchase ............................................................................ 25
Federal Prosecutions under 18 U.S.C. Sections 922(a)(6) and 924(a)(1)(A) .................... 27
Gun Trafficking Proposals ....................................................................................................... 29
Senate Committee Markup ................................................................................................ 30
Senate Floor Action ........................................................................................................... 32
Other Gun Trafficking Proposals ...................................................................................... 33
Military Style Firearms .................................................................................................................. 35
Figures
Figure 1. Federal Defendants Charged and Convicted Nationally under 18 U.S.C.
Sections 922(a)(6) and 924(a)(1)(A) .......................................................................................... 28
Figure 2. Federal Sentences Imposed Nationally under 18 U.S.C. Sections 922(a)(6) and
924(a)(1)(A) ................................................................................................................................ 29
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Tables
Table 1. Brady Background Checks for Firearms Transfers and Permits ...................................... 14
Table 2. NICS Improvement Authorizations and Appropriations under P.L. 110-180 .................. 18
Table 3. Expired and Proposed Definitions of Semiautomatic Assault Rifle Compared ............... 36
Table 4. Expired and Proposed Definitions of Semiautomatic Assault Pistol Compared .............. 37
Table 5. Expired and Proposed Definitions of Semiautomatic Assault Shotgun Compared.......... 37
Contacts
Author Contact Information........................................................................................................... 38
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Gun Control Proposals in the 113th Congress
Developments in the 113th Congress
In the 113th Congress, in the wake of the Newtown, CT, tragedy, the Senate has considered
several legislative proposals supported by the Obama Administration that address universal
background checks, gun trafficking, and military style firearms. The House Committee on
Veterans’ Affairs has approved a bill that addresses veterans, mental incompetency, and firearms
eligibility.
Sandy Hook Elementary School
On December 14, 2012, in Newtown, CT, a 20-year-old male entered Sandy Hook Elementary
School and shot 20 first graders and 6 adult staff members to death. He allegedly also shot his
mother to death. According to press accounts, the firearms he used in the shooting included a .223
caliber Bushmaster (M16-style) semiautomatic rifle, and two semiautomatic pistols, a 10mm
Glock and 9mm Sig Sauer.1 These firearms were reportedly owned legally by his mother, and
were registered under Connecticut state law.2 When first responders entered the building, the
gunman, who reportedly suffered from profound mental incapacity, shot himself to death with the
10mm Glock pistol.3 According to a Connecticut State Medical Examiner, the shooter mostly
used the Bushmaster rifle, reloading it with detachable 30-round magazines several times, to
murder the children and staff at Sandy Hook.4 “Dozens and dozens” of spent .223 cartridges were
found at the crime scene, along with additional, unused magazines filled with ammunition.5
Legislative Action
On January 16, 2013, the White House released a document entitled: Now is the Time: The
President’s Plan to Protect our Children and our Communities by Reducing Gun Violence.6 This
plan includes several legislative proposals, the most salient of which would (1) require
background checks for intrastate firearms transfers between unlicensed persons at gun shows and
nearly any other venue (otherwise known as the “universal background checks” proposal); (2)
increase penalties for gun trafficking; and (3) reinstate and strengthen an expired federal ban on
detachable ammunition magazines of over 10-round capacity and certain “military style” firearms
commonly described as “semiautomatic assault weapons,” which are designed to accept such
magazines.7
1 Emily Flitter and Dan Burns, “Connecticut Gunman Had Hundreds of Rounds; Obama to Console Newtown,”
Reuters, December 16, 2012.
2 Ibid.
3 Ibid.
4 Paul Duggan, David A. Fahrenthold, and Steve Vogel, “Obama Speaks at Memorial in Shaken Town,” Washington
Post, December 17, 2012, p. A1 and A11.
5 Ibid.
6 White House, Now is the Time: The President’s Plan to Protect our Children and our Communities by Reducing Gun
Violence, January 16, 2013, http://www.wh.gov/now-is-the-time.
7 Ibid.
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Senate Committee Action
In alignment with the President’s plan, the Senate Committee on the Judiciary approved the
following four gun control-related bills:
• Stop Illegal Trafficking in Firearms Act of 2013 (S. 54), on March 7, 2013, to
establish standalone straw purchasing and gun trafficking prohibitions and
increase related penalties;
• Fix Gun Checks Act of 2013 (S. 374), on March 11, to require background
checks for private firearms transfers, and encourage states to provide the Federal
Bureau of Investigation (FBI) with greater access to records on prohibited
persons for background check purposes; and to authorize additional
appropriations of $100 million annually (FY2014-FY2018) for funding grants to
states to improve access to firearms-related prohibiting records—especially for
persons adjudicated “mentally defective” and persons convicted of misdemeanor
crimes of domestic violence;
• School Safety Enhancements Act of 2013 (S. 146), on March 11, to authorize
annual appropriations of up to $40 million for the next 10 years for the Secure
Our Schools grant program under the Department of Justice (DOJ) Community
Oriented Policing Services (COPS); and
• Assault Weapons Ban of 2013 (S. 150), on March 14, to ban permanently the
further production or importation of certain semiautomatic firearms, as well as
high-capacity magazines.
The votes on universal background checks and assault weapons (S. 374 and S. 150) split down
party lines (10-8). Senator Charles E. Grassley, the committee’s ranking minority Member, voted
for the gun trafficking bill (S. 54), making the vote on that measure 11-7. The school safety bill
(S. 146) was approved by a vote of 14-4.
Senate Floor Action
From April 16-18, 2013, the Senate considered the Safe Communities, Safe Schools Act of 2013
(S. 649). As introduced, this bill included the language of S. 54, S. 374, and S. 146, but it did not
include S. 150. Nevertheless, Senator Dianne Feinstein offered the language of S. 150, the
Assault Weapons Ban of 2013, as an amendment to S. 649. In total, the Senate voted on nine
amendments that addressed a wide array of gun control issues. By unanimous consent, the Senate
agreed that adoption of these amendments would require a 60-vote threshold. All but two of these
amendments were defeated.
• Senators Joe Machin and Patrick Toomey offered an amendment—the Public
Safety and Second Amendment Rights Protection Act of 2013 (S.Amdt. 715)—
that would have required background checks for intrastate (same state) firearms
transfers between unlicensed persons, if the firearms were offered for sale or
trade in some form of public fora (from classified ads to Internet sites, or at gun
shows). Among other provisions, the amendment included several related to
improving firearms-related background checks and veterans’ firearms eligibility
and mental incompetency. The amendment was rejected by a yea-nay vote: 54-46
(Record Vote Number: 97).
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• Senator Charles Grassley offered a “GOP substitute” amendment—the Protecting
Communities and Preserving the Second Amendment Act of 2013 (S.Amdt.
725)—that would have established standalone gun trafficking and straw
purchasing offenses. Like the Manchin-Toomey amendment, the GOP substitute
also included several provisions to improve background checks and addressed
veterans’ firearms eligibility and mental incompetency. Furthermore, it would
have provided a statutory definition for the term “adjudicated mentally
incompetent or committed to a psychiatric hospital.” The amendment was
rejected by a yea-nay vote: 52-48 (Record Vote Number: 98).
• Senator Patrick Leahy offered an amendment—the Stop Illegal Trafficking in
Firearms Act of 2003 (S.Amdt. 713)—that would have established standalone
gun trafficking and straw purchasing provisions, which are very similar to those
in S. 54, as reported. Nevertheless, the amendment was rejected by a yea-nay
vote: 58-42 (Record Vote Number: 99).
• Senator John Cornyn offered an amendment (S.Amdt. 719) that would have
required interstate firearms concealed carry reciprocity, that is, it would have
mandated that states that issued such permits recognize the validity of permits
issued by other states. The amendment was rejected by a yea-nay vote: 57-43
(Record Vote Number: 100).8
• Senator Dianne Feinstein offered an amendment (S.Amdt. 711) that would have
re-imposed and expanded prior law that restricted certain semiautomatic,
military-style firearms commonly referred to as “assault weapons.” The
amendment was rejected by a yea-nay vote: 40-60 (Record Vote Number: 101).
• Senator Richard Burr offered an amendment (S.Amdt. 720) that would have
prohibited the Department of Veterans’ Affairs (VA) from referring veterans and
other beneficiaries who are found to be “mentally incompetent” for fiduciary
purposes to the FBI as persons ineligible to receive, possess, ship, or transfer a
firearm without an order or finding of a judge, magistrate, or other judicial
authority that they are a danger to themselves or others. The amendment was
rejected by a yea-nay vote: 56-44 (Record Vote Number: 102). Similar language
was also included in the Manchin-Toomey amendment and the Grassley GOP
substitute amendment.
• Senator Richard Blumenthal offered an amendment (S.Amdt. 714) that would
have re-imposed and expanded prior law that restricted “large capacity
ammunition feeding devices,” or magazines of greater than 10-round capacity.
The amendment was rejected by a yea-nay vote: 46-54 (Record Vote Number:
103).
• Senator John Barrasso offered an amendment (S.Amdt. 717) that would require a
5% reduction of Community Oriented Policy Services grants to state and local
governments that release information on gun owners—particularly concealed
carry permit holders. The amendment was adopted by a yea-nay vote: 67-30
(Record Vote Number: 104).9
8 For further information, see CRS Report R42099, Federal Laws and Legislation on Carrying Concealed Firearms:
An Overview, by Vivian S. Chu.
9 Ibid.
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• Senator Tom Harkin offered an amendment (S.Amdt. 730) that would expand
certain grant programs related to mental health and substance abuse. The
amendment was adopted by a yea-nay vote: 95-2 (Record Vote Number: 105).
According to the Senate amendment tracking system, there are an additional 20 amendments to S.
649 filed for possible consideration, but it is not clear whether the Senate will resume
consideration of S. 649. For now, the Senate has moved on to other business without taking a
final vote on S. 649. This report includes discussion of most, but not all, of the major provisions
in these amendments; however, it does not include any discussion of the Harkin amendment and
related mental health and substance abuse programs, which arguably fall outside of the scope of
“federal gun control.”
House Committee Action
While the House has not considered any of the wider gun control proposals, such as universal
background checks, debated in the Senate, on May 8, 2013, the House Committee on Veterans’
Affairs approved a bill, the Veterans 2nd Amendment Protection Act (H.R. 602), by voice vote.
Under H.R. 602,
a person who is a beneficiary of disability compensation and pension programs administered
by the VA, who is mentally incapacitated, deemed mentally incompetent, or experiencing an
extended loss of consciousness could not be considered “adjudicated as a mental defective”
for the purposes of federal firearms eligibility determinations, without the order or finding of
a judge, magistrate, or other judicial authority of competent jurisdiction that such person is a
danger to himself or herself or others.
Similar language was included in the Manchin-Toomey, Grassley GOP substitute, and Burr
amendments, which the Senate considered, but rejected. In the past three Congresses, similar
legislation has been considered by either one or both chambers.
Executive Action
On December 20, 2012, President Barack Obama established a Task Force on Gun Violence
under the leadership of Vice President Joseph R. Biden. On January 16, 2013, the Administration
released a plan to reduce gun violence that includes 18 legislative proposals and 23 executive
actions.10 For the purposes of this report, the most salient legislative proposals include the
following:
• require background checks for private firearms transfers at gun shows and any
other venue, or “universal background checks”;
• strengthen and reinstate a ban of semiautomatic assault weapons and magazines
of over 10 rounds (cartridges);
• increase penalties for gun trafficking;
• re-examine and strengthen restrictions on armor piercing ammunition;
10 White House, Now is the Time: The President’s Plan to Protect our Children and our Communities by Reducing Gun
Violence, January 16, 2013, http://www.wh.gov/now-is-the-time.
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• Senate confirmation of Minnesota U.S. Attorney B. Todd Jones as Director of the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); and
• repeal an ATF appropriations rider and strengthen that agency’s authority to deny
importation permits for 50-year-old military surplus firearms that fall under the
regulatory definition of “curio or relic.”11
Other legislative proposals primarily consist of requests for additional funding to
• maintain 15,000 police officers on the streets of the United States, otherwise
known as the COPS (Community Oriented Policy Services) program12 ($4
billion);
• train state, local, tribal, and territorial law enforcement officers in responding to
shootings ($14 million);
• allow the Centers for Disease Control (CDC) to conduct additional research on
the possible nexus between video games, media images, and violence ($10
million);
• expand the National Violent Death Reporting System (NVDRS)13 from 18 to all
50 states;
• improve incentives to encourage states to provide the FBI with prohibiting
records on individuals who fall under the definition of “mental defective” ($50
million); and
• improve school security ($230 million).
The Administration’s 23 executive actions, under the plan, range from directing the Attorney
General to work with U.S. Attorneys to ensure that firearms-related criminal cases are prosecuted
to directing the CDC to research the causes and prevention of gun violence.14
11 For FY1996 and every fiscal year after, Congress has included a limitation on the ATF salaries and expenses
appropriation that prohibits that agency of changing the regulatory definition of “curios or relics.” This provision was
in response to an ATF proposal to amend the definition of “curio or relic,” because of concerns about the volume of
surplus military firearms that could be imported into the United States. ATF has consistently opposed the importation
of certain World War II era, surplus military firearms.
12 For further information on COPS, see CRS Report RL33308, Community Oriented Policing Services (COPS):
Background and Funding, by Nathan James.
13 For FY2002, Congress appropriated funding for CDC to establish the NVDRS, a system that has been built upon a
pilot program sponsored by private foundations and coordinated by the Harvard School of Public Health’s Injury
Control Research Center.
The NVDRS aims to create a comprehensive individual-level data set in each state that links data
from medical examiners and coroners, police departments, death certificates, and crime labs on
each death—resulting from violence (homicide, suicide, unintentional firearms-related deaths, and
undetermined causes).
See National Research Council, Firearms and Violence: A Critical Review (Washington, DC: 2005), p. 33.
14 For FY1997-FY2012, Congress has included a provision in the Departments of Health and Human Services, Labor,
and Education appropriations that has prohibited that agency from spending any appropriated funding to “advocate or
promote gun control.” This rider is known as the “Dickey amendment,” for the Member, Representative Jay Dickey,
who attempted to redirect $2.6 million away from a CDC firearms injury program during committee markup or the
FY1997 Departments of Labor, Health and Human Services (HHS), and Education Appropriations bill (H.R. 3755).
While the Dickey amendment was rebuffed (6-8), the committee chairman, Representative Robert L. Livingston,
inserted into the reported bill the following limitation on the CDC salaries and expenses appropriation language: “That
(continued...)
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This report does not focus on the President’s plan in its entirety. Rather, this report provides an
overview of federal firearms laws as a basis for examining the three most salient legislative
proposals included in the President’s plan. Those proposals would (1) require background checks
for intrastate firearms transfers between unlicensed persons at gun shows and nearly any other
venue, otherwise known as the “universal background checks” proposal; (2) increase penalties for
gun trafficking; and (3) reinstate and strengthen an expired federal ban on detachable ammunition
magazines of over 10-round capacity and certain “military style” firearms commonly described as
“semiautomatic assault weapons,” which are designed to accept such magazines.
Federal Regulation of Firearms: Background
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 firearms laws are stricter
than federal law. For example, some states require permits to obtain firearms and impose a
waiting period for firearms transfers. Other states are less restrictive, but state law cannot preempt
federal law. Federal law serves as the minimum standard in the United States.
The National Firearms Act (NFA)
The NFA was originally designed to make it difficult to obtain types of firearms perceived to be
especially lethal or to be the chosen weapons of “gangsters,” most notably machine guns and
short-barreled long guns. This law also regulates firearms, other than pistols and revolvers, which
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.
Machine guns—or fully automatic firearms—have been banned from private possession since
1986, except for those legally owned and registered with the Secretary of the Treasury as of May
(...continued)
none of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention
may be used to advocate or promote gun control.” Report language noted further:
The bill [H.R. 3755] contains a limitation to prohibit the National Center for Injury Prevention and
Control at the Centers for Disease for Disease Control from engaging in any activities to advocate
or promote gun control. The CDC may need to collect data on the incidence of gun related
violence, but the Committee does not believe that it is the role of the CDC to advocate or promote
policies to advance gun control initiatives, or to discourage responsible private gun ownership. The
Committee expects research in this area to be objective and grants to be awarded through an
impartial peer review process. (H.Rept. 104-659, p. 49.)
This limitation was first enacted as part of the Omnibus Consolidated Appropriations Act, 1997 (P.L. 104-208;
September 30, 1996; 110 Stat. 3009, 3009-244). For FY2012, Congress expanded this limitation so that it applies to all
HHS funding in addition CDC in the Consolidated Appropriations Act, 2012 (P.L. 112-74; November 18, 2012; 125
Stat. 786, 1086 (Section 218), 1110 (Subsection501(c)). The Administration’s plan maintains that research on the
causes of gun violence does not constitute “advocacy,” and such research would not be in violation of the Dickey
amendment. For further information, see “Current Appropriations Provisions Regarding Domestic Gun Control,” CRS
Congressional Distribution Memorandum, February 7, 2013. Available upon request.
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19, 1986.15 According to one estimate, as of November 2007, there were approximately 182,600
machine guns available for transfer to civilians in the United States based upon an audit of the
ATF-maintained National Firearms Registry and Transfer Record (NFRTR).16 Under the NFA, a
machine gun is defined as:
any weapon which shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a single function of the
trigger. The term also includes the frame or receiver of any such weapon, any part designed
and intended solely and exclusively, or combination of parts designed and intended, for use
in converting a weapon into a machinegun, and any combination of parts from which a
machinegun can be assembled if such parts are in the possession or under the control of a
person.17
To deal in NFA firearms, a person is required to be a federally licensed gun dealer (federal
firearms licensee, or “FFL”) under the Gun Control Act of 1968 (described below) and also be a
special occupational taxpayer (SOT) under the NFA. Class I SOTs are importers of NFA firearms;
Class II SOTs are manufacturers of NFA firearms; and Class III SOTs are dealers. NFA firearms
are often referred to as Class III weapons, for Class III dealers. The NFA imposes a $200
manufacturing tax and a $200 transfer tax each time a firearm is transferred from an unlicensed
individual.18 For non-tax exempt transfers, ATF places a tax stamp on the tax paid transfer
document upon the transfer’s approval. The transferee may not take possession of the firearm
until he holds the approved transfer document. Private persons, who are not otherwise prohibited
by law, may acquire an NFA firearm in one of three ways:
• a registered owner of an NFA firearm may apply for ATF approval to transfer the
firearm to another person residing in the same state or to a FFL in another state;
• an individual may apply to ATF for approval to make and register an NFA
firearm (except machine-gun); or
• an individual may inherit a lawfully registered NFA firearm.
It is a felony to receive, possess, or transfer an unregistered NFA firearm. Such offenses are
punishable by a fine of up to $250,000, imprisonment for up to 10 years, and forfeiture of the
firearm and any vessel, vehicle, or aircraft used to conceal or convey the firearm.19 To the extent
it can be known, legally registered NFA machine guns are rarely, if ever, used in crime.
The Gun Control Act of 1968 (GCA)
As stated in the GCA, the purpose of federal firearms 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
15 P.L. 99-308, §102(9); 100 Stat. 449, 452-453; codified at 18 U.S.C §922(o)(1).
16 John Brown, “182,619—Is That All There Is,” Small Arms Review, vol. 13, no. 9, June 2010, p. 22.
17 26 U.S.C. §5845(b).
18 Transfers of NFA-covered firearms incur a tax of $200 except for those classified as “any other weapon,” which are
taxed at a reduced $5 rate. Certain NFA firearm transfers are tax-exempt. They include transfers to a lawful heir from
an estate; transfers between federal firearms licensees, who are also SOTs; and transfers of “unserviceable firearms.”
19 26 U.S.C §§5861(d) and (j); 26 U.S.C §5872; 49 U.S.C §§781-788.
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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. Under
the GCA, the term “firearm” means:
any weapon (including a starter gun) which will or is designed to or may readily be
converted to expel a projectile by the action of an explosive; (b) the frame or receiver of any
such weapon; (c) any firearm muffler or firearm silencer; or (d) destructive device. Such
term does not include an antique firearm.20
The GCA, as amended, contains the principal federal restrictions on domestic commerce in
firearms 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 (Brady Act; P.L. 103-159), the
GCA requires background checks be completed for all unlicensed 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 firearms owners may be covered by state laws or local ordinances.
Firearms Transfer and Possession Eligibility
Under current law, there are nine classes of persons prohibited from shipping, transporting,
receiving, or possessing firearms or ammunition:
• persons convicted in any court of a crime punishable by imprisonment for a term
exceeding one year;
• fugitives from justice;
• unlawful users or addicts of any controlled substance as defined in Section 102 of
the Controlled Substances Act (21 U.S.C. §802));
• persons adjudicated as “mental defective” or committed to mental institutions;21
20 18 U.S.C. §921(a)(3).
21 Under 27 C.F.R. Section 478.11, the term “adjudicated as a mental defective” is defined to include
a determination by a court, board, commission, or other lawful authority that a person, as a result of
marked subnormal intelligence or a 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. Sections 850a, 876(b).
This definition was promulgated by an ATF final rule (Federal Register, vol. 62, no. 124, June 27, 1997, p. 34634).
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• unauthorized immigrants and nonimmigrant visitors (with exceptions in the latter
case, which have changed—effective July 9, 2012—as described below);
• persons dishonorably discharged from the U.S. Armed Forces;
• persons who have renounced their U.S. citizenship;
• persons under court-order restraints related to harassing, stalking, or threatening
an intimate partner or child of such intimate partner; and
• persons convicted of a misdemeanor crime of domestic violence.22
In addition, there is a 10th class of persons prohibited from shipping, transporting, or receiving
firearms or ammunition:
• persons under indictment in any court of a crime punishable by imprisonment for
a term exceeding one year.23
It also unlawful for any person to sell or otherwise dispose of a firearm or ammunition to any of
the prohibited persons enumerated above, if the transferor (seller) has reasonable cause to believe
that the transferee (buyer) is prohibited from receiving those items.24
Age Eligibility
Federal firearms licensees are prohibited from transferring a long gun or long gun ammunition to
anyone less than 18 years of age, or a handgun or handgun ammunition to anyone less than 21
years of age.25 Since 1994, moreover, it has been a federal offense for any unlicensed person to
transfer a handgun or handgun ammunition to anyone less than 18 years of age. It has also been
illegal for anyone under 18 years of age to possess a handgun or handgun ammunition (there are
exceptions to this law related to employment, ranching, farming, target practice, and hunting).26
Licensed Dealers and Firearms Transfers
Persons who are federally licensed to be engaged in the business of manufacturing, importing, or
selling firearms are known as “federal firearms licensees (FFLs).” Under current law, FFLs may
ship, transport, and receive firearms that have moved in interstate and foreign commerce. FFLs
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. FFLs
must also verify the identity of non-licensed transferees by inspecting a government-issued
identity document (e.g., a driver’s license).
(...continued)
It is noteworthy that it is possible for individuals to become eligible after being disqualified under §922(g)(4). For
example, under the enacted NICS improvement amendments, VA beneficiaries who have been determined to be mental
defectives 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.
22 18 U.S.C. §922(g).
23 18 U.S.C. §922(n).
24 18 U.S.C. §922(d).
25 18 U.S.C. §922(b)(1).
26 18 U.S.C. §922(x).
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FFLs 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. FFLs, however, may not transfer handguns
to unlicensed out-of-state residents.27 Since 1986, there have been no similar restrictions on the
interstate transfer of ammunition. Furthermore, a federal firearms license is not required to sell
ammunition; however, such a license is required to either manufacture or import ammunition.
Also, since 1986, FFLs are statutorily authorized to do business temporarily away from their
licensed premises, at properly organized gun shows or at events sponsored by any national, state,
or local organization devoted to the collection, competitive use, or other sporting use of firearms
in the communities that are located in their state, as long as those gun shows and events are held
in the state in which their licensed premises are located.28 In addition, FFLs are statutorily
required to submit “multiple sales reports” to the Attorney General if any person purchases two or
more handguns within five consecutive business days. As described below, FFLs are required to
maintain records on all acquisitions and dispositions of firearms. They are obligated to respond to
ATF agents requesting firearms tracing information within 24 hours. Under certain circumstances,
ATF agents may inspect, without search warrants, their business premises, inventory, and gun
records.
Private Firearms Transfers
Unlicensed persons are generally prohibited from acquiring firearms from out-of-state sources
(except for long guns acquired from FFLs under the conditions described above).29 Unlicensed
persons are also prohibited from transferring firearms to anyone who they have reasonable cause
to believe are not residents of the state in which the transaction occurs.30 In addition, since 1986 it
has been a federal offense for non-licensees to knowingly transfer a firearm or ammunition to
prohibited persons.31 It is also notable that firearms or ammunition transfers initiated through the
Internet are subject to the same federal laws as transfers initiated in any other manner.32
Open and Concealed Carry
For the most part, federal law did not address open or concealed carry of firearms until 2004.33
And yet, in recent Congresses, proposals have been offered that address the carrying of firearms
on public lands, in either an open or concealed fashion, as well as the issue of interstate concealed
carry reciprocity. For example, Congress passed the Law Enforcement Officers Safety Act of
2004 (P.L. 108-277). This law provides qualified active and retired law enforcement officers with
interstate concealed firearms carry privileges. Although this law supersedes state level
prohibitions on concealed carry that would otherwise apply to law enforcement officers, it does
27 18 U.S.C. §922(b)(3).
28 18 U.S.C. §923(j).
29 18 U.S.C. §922(a)(3).
30 18 U.S.C. §922(a)(5).
31 18 U.S.C. §922(d).
32 For further information, see CRS Report R42687, Internet Firearm and Ammunition Sales, by Vivian S. Chu.
33 For further information, see CRS Report R42099, Federal Laws and Legislation on Carrying Concealed Firearms:
An Overview, by Vivian S. Chu.
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not override any federal laws. Nor does the law 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.
In addition, the Credit CARD Act of 2009 (P.L. 111-24) includes a provision that allows private
persons to carry firearms in national parks and wildlife refuges, as long as such firearms open or
concealed carry is in compliance with state and local laws (effective February 22, 2010).
Congress has also considered related proposals to (1) require agencies that manage federal public
lands to facilitate access to and use of those lands for the purposes of recreational fishing,
hunting, and shooting with certain exceptions set out in statute (e.g., national security, public
safety, or resource conservation);34 and (2) prohibit the Secretary of the Army from banning
individuals from firearms possession, including an assembled or functional firearm, while
traveling through or visiting water resources development projects (e.g., reservoirs at Corps-
operated dams and inland waterways) managed by the Army Corps of Engineers.35
Congress, moreover, has considered other proposals, such as the amendment (S.Amdt. 719) to S.
649 offered by Senator Cornyn, which would have mandated an increased level of reciprocity
among states that have laws that allow civilians to carry handguns in a concealed fashion. 36
However, under a unanimous consent agreement that required a 60-vote threshold for passage, the
Senate rejected this amendment by a yea-nay vote: 57 - 43 (Record Vote Number: 100).
As background, 38 states, most recently Wisconsin, have enacted “shall issue” concealed carry
laws, meaning permits are issued to all eligible applicants.37 Ten states have enacted more
restrictive “may issue” laws, meaning state and/or local authorities have discretion whether to
issue permits.38 In those states, applicants usually must demonstrate a need to carry a concealed
handgun to the authorities. At one end of the spectrum, Alaska, Arizona, Wyoming, and Vermont
allow concealed carry without a permit.39 At the other end, Illinois and the District of Columbia
34 For further information, see CRS Report R42569, Hunting, Fishing, and Recreational Shooting on Federal Lands:
H.R. 4089 and Related Legislation, coordinated by Kristina Alexander.
35 For further information, see CRS Report R42602, Firearms at Army Corps Water Resources Projects: Proposed
Legislation and Issues for Congress, by Nicole T. Carter.
36 For historical context, in the 111th Congress, on July 22, 2009, the Senate considered an amendment (S.Amdt. 1618)
offered by Senator John 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). In turn, the 112th Congress revisited
the issue of concealed carry and national reciprocity. On October 25, 2011, the House Judiciary Committee ordered
reported the National Right-to-Carry Reciprocity Act of 2011 (H.R. 822) by a vote (19-11) that was nearly split down
party lines following several days of contentious markup. On November 10, 2011, the Judiciary Committee filed a
report on H.R. 822 (H.Rept. 112-277). On November 16, 2011, the House considered and passed H.R. 822, amended,
by a recorded vote: 272-154 (Roll no. 852).
37 Wisconsin’s concealed carry permit went into effect on November 1, 2011. “Shall issue” states include Alaska,
Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, 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, Wisconsin, and Wyoming.
38 Alabama and Connecticut are “may issue” states that are considered to be more permissive than other “may issue”
states. Those states include California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and
Rhode Island.
39 Alaska and Arizona issue permits to residents who seek to carry concealed firearms in other states that extend
(continued...)
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allow no concealed carry of firearms by civilians. With regard to interstate reciprocity, a handful
of states have “recognition” statutes that recognize any state-issued concealed carry permit. Other
states have “open” statutes that allow any resident of the United States, without regard to state
residency, to apply for a concealed carry permit. Still other states have “hybrid” statutes that
include elements of both the recognition and open statutes. Contiguous “shall issue” states often
extend reciprocity to one another. However, some “shall issue” states have opted not to extend
reciprocity to other “shall issue” states for a variety of reasons, even though they might have
extended reciprocity to arguably more restrictive “may issue” states. The end result is a
complicated array of state laws that arguably makes it challenging for an individual to discern his
legal ability to carry a concealed firearm in another state.
Under the Cornyn amendment, if enacted, a permit holder from state A would be able to travel to
state B with a concealed handgun as long as state B had a concealed carry law, no matter which
type (“shall” or “may” issue). The permit holder from state A would be required to comply with
all other laws in state B, with the exception of the laws governing eligibility for and issuance of
concealed carry permits. Several issues could arise, however. First, the amendment makes no
allowance for the difference between more permissive “shall issue” and more restrictive “may
issue” state laws. Therefore, the amendment could be viewed as an imposition by “shall issue”
states over “may issue” states. Depending upon the circumstances, the amendment could also be
viewed as an imposition by some “shall issue” states over other “shall issue” states, depending
upon differences in their respective concealed carry laws. For example, some “shall issue” states
have good moral character clauses as part of their eligibility requirements, others do not. Some
require “live fire” training prior to permit issuance, others do not. Some require a mental health
evaluation, others do not. Several states issue permits to persons 18 years of age, while most
states require applicants to be 21 years of age.
Also related to concealed carry, Senator John Barrasso offered an amendment (S.Amdt. 717) that
would require the Attorney General to make a 5% reduction in Community Oriented Policy
Services grants to state and local governments that release information on gun owners—
particularly concealed carry permit holders. The amendment was adopted by a yea-nay vote: 67-
30 (Record Vote Number: 104).
National Instant Criminal Background Check System (NICS)
Background Checks
On November 30, 1998, the FBI activated the National Instant Criminal Background Check
System (NICS) to facilitate firearms-related background checks, when the permanent provisions
of the Brady Act became effective. Through NICS, FFLs conduct background checks on non-
licensee applicants for both handgun and long gun transfers.
As part of NICS checks, the system will respond to an FFL or state official with a NICS
Transaction Number (NTN) and one of three outcomes: (1) “proceed” with transfer or
permit/license issuance, because a prohibiting record was not found; (2) “denied,” indicating a
prohibiting record was found; or (3) “delayed,” indicating that the system produced information
that suggested there could be a prohibiting record. Under the last outcome, a firearms transfer
(...continued)
reciprocity to residents of Alaska.
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may be “delayed” for up to three business days while NICS examiners attempt to ascertain
whether the person is prohibited.40 At the end of the three-day period, an FFL may proceed with
the transfer at his discretion if he has not heard from the FBI about the matter. The FBI,
meanwhile, will continue to work the NICS adjudication for up to 90 days, during which the
transaction is considered to be in an “open” status. If the FBI ascertains that the person is not in a
prohibited status at any time during the 90 days, then the FBI will contact the FFL through NICS
with a proceed response. If the person is subsequently found to be prohibited, the FBI will inform
ATF and a firearms retrieval process will be initiated.
Under no circumstances is an FFL informed about the prohibiting factor upon which a denial is
based. Under the Brady background check process, however, a denied person may challenge the
accuracy of the underlying record(s) upon which his denial is based. He would initiate this
process by requesting (usually in writing) the reason for the denial from the agency that
conducted the NICS check (the FBI or POC). The denying agency has five business days to
respond to the request. Upon receipt of the reason and underlying record for the denial, the denied
person may challenge the accuracy of that record. If the record is found to be inaccurate, the
denying agency is legally obligated to correct that record.
As with other screening systems, particularly those that are name-based, false positives occur as a
result of Brady background checks, but the frequency of these misidentifications is unreported.
Nevertheless, the FBI has taken steps to mitigate false positives. In July 2004, DOJ issued a
regulation that established the NICS Voluntary Appeal File (VAF), which is part of the NICS
Index (described above). DOJ was prompted to establish the VAF to minimize the inconvenience
incurred by some prospective firearms transferees (purchasers) who have names or birth dates
similar to those of prohibited persons. So as not to be misidentified in the future, these persons
agree to authorize the FBI to maintain personally identifying information about them in the VAF
as a means to avoid future delayed transfers. Current law requires that NICS records on approved
firearm transfers, particularly information personally identifying the transferee, be destroyed
within 24 hours.41
40 Accessing Records in the System, 28 C.F.R. §25.6.
41 For FY1999 and every year thereafter, Congress has included a provision in the annual CJS appropriations acts that
prohibits DOJ from using appropriated funds to levy a fee for NICS firearms-related background checks. This
provision was crafted to counter a Clinton Administration proposal to levy a $5 fee for such checks. For FY2004 and
every year thereafter, along with the fee prohibition, Congress has included a provision that requires the FBI to destroy
background check records on persons who are eligible to receive firearms within 24 hours. This provision was
originally part of the FY2004 Tiahrt amendment, known for its sponsor Representative Todd Tiahrt, and was crafted in
response to a 90-day audit log that was maintained by the FBI during the Clinton Administration for audit and other
purposes. In the Consolidated and Further Continuing Appropriations Act, 2012 (P.L. 112-55; November 18, 2011; 125
Stat. 552, 632), Congress inserted futurity language (“hereafter”) in this provision that appears to make it permanent
law.
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Table 1. Brady Background Checks for Firearms Transfers and Permits
1998-2010
Total Annual
POC
POC
Year
Checks Denials
FBI
Checks
Checksa FBI
Denialsa
Denialsb
1998c 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
2009 10,764,237 150,013
6,083,428
4,680,809 67,324 82,689
2010 10,404,563 152,850
6,037,394
4,367,169 72,659 80,191
Total 105,509,588 1,766,803
60,280,253
45,279,335
820,888
945,915
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. S&L Checks = State & Local Checks.
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.
c. Background checks were essential y only conducted for a month (December) during calendar year 1998.
Under the GCA, there is also a provision that allows the Attorney General (previously, the
Secretary of the Treasury) to consider petitions from a prohibited person for “relief from
disabilities” and have his firearms transfer and possession eligibility restored.42 Since FY1993,
however, a rider on the ATF annual appropriations for salaries and expenses has prohibited the
expenditure of any funding provided under that account on processing such petitions.43 While a
prohibited person arguably could petition the Attorney General, bypassing ATF, such an
42 18 U.S.C. §925(c). See also Relief from Disabilities Under the Act, 27 C.F.R. §478.144.
43 For FY1993, see P.L. 102-393; 106 Stat. 1732 (1992). For FY2012, see P.L. 112-55; 125 Stat. 552, 609 (November
18, 2011). The FY2012 limitation provides: “That none of the funds appropriated herein shall be available to
investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c).”
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alternative has never been successfully tested. As a result, the only way a person can reacquire his
lost firearms eligibility is to have his civil rights restored or disqualifying criminal record(s)
expunged or set aside, or to be pardoned for his crime.
As shown in Table 1, under the permanent provisions of the Brady Act (December 1998 through
2010), more than 105.5 million checks were completed, resulting in nearly 1.8 million denials, for
a denial rate of 1.7%. More than 60.3 million of these checks were completed entirely by the FBI
for non-point of contact (non-POC) states, the District of Columbia, and four territories. Those
checks resulted in a denial rate of 1.4%. Nearly 45.3 million checks were conducted by full or
partial point of contact (POC) states. Those checks resulted in a higher denial rate of 2.1%.
Universal Background Checks
As noted above, the President’s plan to reduce gun violence includes a legislative proposal to
require “universal background checks.” Under current law, intrastate transfers between unlicensed
persons, who are not “engaged in the business” of dealing in firearms “as a regular course of ...
business with the principal objective of livelihood and profit,” are not covered by the
recordkeeping or the background check provisions of the GCA. Nevertheless, such private
transactions and other matters such as possession, registration, and the issuance of licenses to
firearms owners may be covered by state laws or local ordinances.
Proponents of greater gun control view the fact that unlicensed persons engaging in intrastate
firearms transfers are not subject to the recordkeeping and background check requirements of the
GCA as a “loophole” in the law, particularly within the context of gun shows. This circumstance
arguably flowed from two developments. One, in 1986, Congress amended the GCA to allow
FFLs to transfer firearms to unlicensed persons at gun shows located within the state of their
business;44 however, prohibitions on interstate transfers still applied. Two, in 1994, Congress
passed the “Brady Act” and amended the GCA to require background checks be completed for all
unlicensed persons seeking to obtain firearms from FFLs. As described above, in November
1998, the FBI brought NICS online to facilitate firearms background checks whenever an FFL
transfers a firearm to an unlicensed person. However, federal law does not require background
checks for intrastate (in-state) firearms transfers between unlicensed persons.
In the 113th Congress, several proposals have been introduced that would require background
checks for private, intrastate firearms transfers between unlicensed persons at gun shows or any
other venue. These proposals would require an unlicensed transferor (seller) to engage the
services of an FFL, who would conduct a NICS check on the unlicensed transferee (buyer). FFLs
facilitating such transfers would also be required to maintain a record of all transfers in a bound
volume, as well as individual transfers on a form prescribed by the Attorney General. For
example, Senator Frank Lautenberg and Representative Carolyn McCarthy have introduced
similar but separate proposals to require background checks for firearms transfers between
unlicensed persons at gun shows (S. 22 and H.R. 141). Representative James P. Moran included a
provision that would require background checks for firearms transfers between unlicensed
persons at any venue in the NRA Members’ Gun Safety Act of 2013 (H.R. 21), as did
Representative McCarthy in the Fix Gun Checks Act (H.R. 137).
44 18 U.S.C. §923(j),
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Senate Committee Markup
On March 11, 2013, the Senate Committee on the Judiciary approved and ordered reported the
Fix Gun Checks Act of 2013 (S. 374). This bill too would require background checks for private
firearms transfers. It would re-designate 18 U.S.C. Section 922(t), the permanent NICS
background check provisions, Section 922(s), and amend Section 922(t) to read:
Beginning on the date 180 days after the date of enactment of this subsection, it shall be
unlawful for any person who is not licensed under this chapter [44; 18 USC §921 et seq.] to
transfer a firearm to any person who is not licensed under this chapter, unless a licensed
importer, licensed manufacturer, or licensed dealer has first taken possession of the firearm
for the purpose of complying with subsection (s). Upon taking possession of the firearm, the
licensee shall comply with all requirements of this chapter as if the licensee were transferring
the firearm from the licensee’s inventory to the unlicensed transferee.
Exceptions are made for bona fide gifts between spouses, parents and their children, siblings, or
grandparents and grandchildren; inheritance and similar operations of the law; as well as
temporary transfers in the home of a private person, for hunting and sporting purposes,
inheritance, and examination and evaluation. The bill would require that the Attorney General, or
his designee, set a maximum fee that a federal firearms licensee could charge for conducting such
a background check for “private party” firearms transfers.45 Private persons who transfer a
firearm in violation of this provision would face a fine and possible imprisonment for not more
than one year. The language of S. 374 has been included in the Safe Communities, Safe Schools
Act of 2013 (S. 649).
Senate Floor Consideration
During consideration of S. 649, the Senate debated and voted upon two amendments that were
offered in lieu of the universal background check provisions included in S. 374, as reported, and
S. 649, as introduced. Known for their chief sponsors, those amendments included the Manchin-
Toomey and Grassley GOP substitute amendments.
Manchin-Toomey Amendment
Senators Manchin and Toomey offered an amendment (S.Amdt. 715 ) that, among other
provisions, included a universal background check requirement. However, under a unanimous
consent agreement that required 60 votes for passage, the Senate rejected the amendment by a
yea-nay vote: 54-46 (Record Vote Number: 97). Like S. 649 and S. 374, the Manchin-Toomey
amendment would have required that intrastate (same state) firearms transfers between unlicensed
persons (private transfers) be processed through FFLs and, thus, it would have required a
background check on the recipient (transferee/buyer). By comparison, the amendment would
have required background checks for private transfers under a narrower set of circumstances than
under S. 649 (as introduced) and S. 374 (as reported). Those narrower circumstances would have
been limited to transfers between unlicensed persons at either a “gun show or event,” or “pursuant
45 Also of note, ATF has issued an open letter to FFLs on facilitating background checks for private party transfers, and
updated procedures for FFLs who voluntarily facilitate background checks for private transfers. These documents are
posted at http://www.atf.gov/regulations-rulings/procedures/031513-open-letter-atf-procedure-2013-1.pdf, and
http://www.atf.gov/regulations-rulings/procedures/031513-procedure-2013-1.pdf.
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to advertisement, posting, display or other listing on the Internet or other publication by the
transferor of his intent to transfer, or the transferee of his intent to acquire, the firearm.”
Correspondingly, the amendment would have required the Attorney General to issue regulations
covering “voluntary background checks” to provide FFLs with guidelines on how to conduct
checks on behalf of unlicensed persons.
It is also notable that Representatives Peter King and Mike Thompson have introduced the Public
Safety and Second Amendment Rights Act of 2013 (H.R. 1565), a bill that is nearly identical to
the Manchin-Toomey amendment.
Grassley GOP Substitute Amendment
Although the GOP substitute amendment (S.Amdt. 725) offered by Senator Grassley did not
include universal background check provisions, it did include a provision that would have
provided FFLs with a statutory authorization to perform “voluntary background checks” for third
parties. Under current practice, FFLs perform such checks for third parties by treating the
firearms in question as if they had come into their inventory, but federal statute does not directly
address such a scenario, and, to date, neither the FBI nor ATF has promulgated any regulations
providing FFLs with direct authorization for such “third party” background checks; however, ATF
has provided guidance in a January 16, 2103, open letter to FFLs and updated March 15, 2013,
procedures.46 Like the Manchin-Toomey amendment, the GOP substitute amendment was
rejected by a yea-nay vote: 52-48 (Record Vote Number: 98).
Improving Background Checks
In the wake of the Virginia Tech tragedy,47 the 110th Congress passed the NICS Improvement
Amendments Act of 2007 (P.L. 110-180).48 This act includes provisions designed to encourage
states, tribes, and territories (states) to make available to the Attorney General certain records
related to persons who are disqualified from acquiring a firearm, particularly records related to
domestic violence misdemeanor convictions and restraining orders, as well as mental health
adjudications. To accomplish this, the act establishes a framework of incentives and disincentives,
whereby the Attorney General is authorized to either waive a grant match requirement or reduce a
law enforcement assistance grant depending upon a state’s compliance with the act’s goals of
bringing firearms-related disqualifying records online.
Under P.L. 110-180, Congress authorized the Attorney General to make additional grants to states
to improve further electronic access to records, including court disposition and corrections
records, which are necessary to fully facilitate NICS background checks. Under the act, the
Attorney General is required to report annually to Congress on federal department and agency
compliance with the act’s provisions. Because DOJ’s Bureau of Justice Statistics (BJS)
administers this program, the BJS Director is required to report annually on the progress that
states are making in providing reasonable estimates of the number of firearms-related
46 Available at http://www.atf.gov/sites/default/files/assets/pdf-files/open_letter_3-15_revised_for_drupal2.pdf.
47 On April 16, 2007, a student at Virginia Polytechnic Institute and State University shot 32 people to death and
wounded many others.
48 P.L. 110-180; January 8, 2008; 121 Stat. 2559.
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disqualifying records that they have jurisdiction over, as well as the number of those records that
have been made accessible to the FBI for NICS background check purposes.49 BJS has designated
this grant program the “NICS Act Record Improvement Program (NARIP),” although
congressional appropriations documents simply refer to it as “NICS improvement.”
As shown in Table 2, Section 103(e) of the act included an authorization for appropriations for
FY2009 through FY2013. The act directs that the grants provided under this authorization be
made “in a manner consistent” with National Criminal History Improvement Program (NCHIP).50
The act also requires that between 3% and 10% of each grant be allocated for a relief from
disabilities program for persons adjudicated mentally defective. Also, as shown in Table 2,
Section 301(e) of the act included an additional authorization for appropriations for the same
fiscal to improve state court computer systems to improve timeliness of criminal history
dispositions. Under both authorizations, up to 5% of all grants may be set aside to provide
assistance to tribal governments.
Table 2. NICS Improvement Authorizations and Appropriations under P.L. 110-180
(dollars in millions)
Fiscal Year
Section 103(e)
Section 301(e)
Actual Appropriation
FY2009 125
62.5 10.000
FY2010 250
125.0 20.000
FY2011 250
125.0 16.567
FY2012 125
62.5 5.000
FY2013 125
62.5 12.000
Total 875 437.5 63.567
As an additional incentive, Section 102 of P.L. 110-180 also provides that on January 8, 2011, any
state that provides at least 90% of disqualifying records is eligible for a waiver of the 10% match
requirement under NCHIP for two years.51 To be eligible for the waiver, as well as Section 103
grants, states are required to provide BJS with a reasonable estimate of the number of NICS-
related disqualifying records that they hold within 180 days of enactment (July 6, 2008).
To further encourage compliance, Section 104 of P.L. 110-180 includes a schedule of
discretionary and mandatory reductions in Byrne Justice Assistance Grants (JAG)52 for states that
do not provide certain percentages of disqualifying records:
49 See U.S. Department of Justice, Report to Congress Pursuant to the NICS Improvement Amendments Act of 2007
(P.L. 110-180), July 1, 2010.
50 Under the Brady Act (P.L. 103-159), Congress authorized a grant program known as the National Criminal History
Improvement Program (NCHIP), the initial goal of which was to improve electronic access to firearms-related
disqualifying records, particularly felony conviction records. For further information, see Department of Justice, Office
of Justice Programs, Bureau of Justice Statistics, National Criminal History Program (NCHIP): Improving Criminal
History Records for Background Checks, 2005, July 2006.
51 For FY2005-FY2010, BJS invoked its discretionary authority to increase the match requirement to 20%. For
FY2011, BJS reportedly reduced the match requirement to 10%, the percentage match requirement set out under the
Crime Identification Technology Act (CITA; P.L. 105-251); CRS conversation with BJS on March 7, 2011.
52 For further information, see CRS Report RS22416, Edward Byrne Memorial Justice Assistance Grant (JAG)
Program, by Nathan James.
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• for a two-year period (January 8, 2011, through January 8, 2013), the Attorney
General may withhold up to 3% of JAG funding from any state that provides less
than 50% of disqualifying records;
• for a five-year period (January 8, 2013, through January 8, 2018), the Attorney
General may withhold up to 4% of JAG funding from any state that provides less
than 70% of disqualifying records; and
• after January 8, 2018, the Attorney General is required to withhold 5% of JAG
funding from any state that provides less than 90% of disqualifying records.
The Attorney General’s assessment of a state’s progress is to be based upon the reasonable
estimates that the state itself is required to provide under the act for the purposes of implementing
the Section 103 grants and the Section 102 NCHIP waiver (discussed above).53 The act also
allows the Attorney General to waive the mandatory 5% cuts if a state provides substantial
evidence that it is making reasonable compliance efforts.
Senate Committee Markup
The Senate-reported Fix Gun Checks Act of 2013 (S. 374), sponsored by Senator Charles
Schumer, would authorize appropriations of $100 million annually for FY2014-FY2018 to assist
state and tribal governments with activities related to providing the FBI with greater accessibility
to records on prohibited persons. For example, grants provided under this provision could be used
for the following purposes:
• creating electronic systems, which provide accurate and up-to-date information
that is directly related to NICS checks, including court disposition and
corrections records;
• assisting states in establishing or enhancing their own capacities to perform NICS
background checks;
• supplying accurate and timely information to the Attorney General concerning
final dispositions of criminal records to databases accessed by NICS;
• supplying accurate and timely information to the Attorney General and FBI—
solely for NICS checks—concerning the identity of persons who are prohibited
from obtaining a firearm because they have been adjudicated as mental defective
or committed to mental institutions;
• supplying accurate and timely court orders and records of misdemeanor crimes of
domestic violence for inclusion in federal and state law enforcement databases
used to conduct NICS background checks; and
53 As of July 1, 2010, 41 states and 1 territory had provided estimates to DOJ. As of December 31, 2009, 68 federal
departments or agencies had also responded to a DOJ survey related to their obligations under P.L. 110-180. Twenty-
two reported possessing no disqualifying information. Twenty-three reported possessing secondary disqualifying
information (e.g., employment background check investigative results). Ten agencies claimed to create and possess
disqualifying information. And, ATF was reviewing those claims to determine whether that information was relevant to
a NICS background check. Fourteen agencies needed further clarification from DOJ. See U.S. Department of Justice,
Report to Congress Pursuant to the NICS Improvement Amendments Act of 2007 (P.L. 110-180), July 1, 2010, pp. 5-6.
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• collecting and analyzing data needed to demonstrate levels of state compliance
with the act.
In addition, S. 374 would amend P.L. 110-180 to adjust the timeline of JAG grants as follows for
states that do not provide greater access to prohibiting records:
• for a two-year period following the regulatory implementation of the
reauthorized NARIP program, the Attorney General would be authorized to
withhold up to 3% of JAG funding from any state that provides less than 50% of
disqualifying records;
• for the next three-year period, the Attorney General would be authorized to
withhold up to 4% of JAG funding from any state that provides less than 70% of
prohibiting records; and
• thereafter, the Attorney General would be required to withhold 5% of JAG
funding from any state that provides less than 90% of prohibiting records.
In addition, S. 374 would amend the Brady Act (P.L. 103-159) to include federal courts under the
provisions that require all federal agencies to provide the FBI with access to any and all
prohibiting records.
Although not related to background checks, S. 374 would also require all persons to report to the
Attorney General a missing or stolen firearm with 24 hours of discovery.54 Under current law,
only FFLs are subject to such a requirement, and they are required to report to ATF such missing
or stolen firearms within 48 hours of discovery.55 The language of S. 374 has been included in the
Safe Communities, Safe Schools Act of 2013 (S. 649).
Senate Floor Consideration
The Senate considered two amendments that would have addressed improving background
checks, although both were rejected. Both of these amendments would have also addressed
veterans’ firearms eligibility and mental incompetency, as would have an amendment offered by
Senator Burr.
Manchin-Toomey Amendment
The Manchin-Toomey amendment (S.Amdt. 715 ) would have amended P.L. 103-159 (the Brady
Act) to authorize appropriations for NCHIP at $100 million annually for FY2014-FY2017. It
would have also amended P.L. 110-180 (the NICS Improvement Amendments Act of 2007) to
establish a new plan that states would be required to implement regarding providing records on
prohibited persons to the FBI, or face reductions in their JAG funding. The amendment’s plan
would have addressed
• NICS accessibility to all prohibiting records,
• establishing qualitative and quantitative benchmarks for evaluative purposes, and
54 Proposed 18 U.S.C. §922(aa).
55 18 U.S.C. 923(g)(6).
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• possible JAG reductions for not meeting those benchmarks.
For example, states that did not meet benchmarks would have faced a 10% reduction in JAG
funding in year one, an 11% reduction in year two, a 13% reduction in year three, and a 15%
reduction in year four. Moreover, if a state failed to submit such a plan to the Attorney General, it
would have faced those reductions immediately, whereas if the states had submitted plans, the
Attorney General would be given discretion whether to make those reductions, even when the
states had not met established benchmarks.
The Manchin-Toomey amendment would have also amended P.L. 110-180 to re-shape the NARIP
program and authorize appropriations of $100 million annually for FY2014-FY2017 for this
program. Under the amendment, grant funding could have been used to
• carry out assessments of the needs of states and state court systems;
• implement policies, systems, and procedures for the automation and submission
of records on prohibited persons;
• create electronic systems to allow for the submission of such records;
• allow states to perform their own background checks; and
• develop and maintain disability relief programs.
A year from enactment, any state that did not implement a disability relief program would have
faced the following reductions in JAG grant funding: 10% for year one, 11% for year two, 13%
for year three, and 15% for year four. The amendment would have also required that states match
any $1 in grant funding with $3 in state funding for assessments. It would have mandated further
that all grant funding be used to improve records accessibility for NICS. Like P.L. 110-180, it
would have continued to reserve up to 5% of total available funding for Indian tribal
governments. As noted, the amendment was rejected.
Grassley GOP Substitute Amendment
By comparison, Senator Grassley offered the GOP substitute amendment (S.Amdt. 725) that
would have also amended P.L. 110-180 to re-shape the NARIP program. Among other provisions,
it would have authorized appropriations of $20 million annually for FY2013-FY2017 for this
program, and it would have refocused the grant program on mental health records exclusively. In
lieu of “adjudicated mental defective,” it would have substituted the term, “mentally
incompetent” in both 18 U.S.C. §922(d) and (g), and would have amended the GCA to define
“has been adjudicated mentally incompetent or has been committed to a psychiatric hospital,”
“order or finding,” and “psychiatric hospital.” These definitions and other language would have
arguably narrowed the scope of whom, and under what circumstances, a federal or state agency
could refer a record on an individual to the FBI for inclusion in the NICS mental defective file.
This language is nearly identical to the NICS Reporting Improvement Act of 2013 (S. 480),
which was introduced by Senator Lindsey Graham.
Also, the GOP substitute, beginning 180 days after enactment, would have required the Attorney
General to reduce JAG grant funding by 5% annually for states that have not provided prohibiting
records to the FBI on at least 90% of persons “adjudicated mentally incompetent” or “committed
to a psychiatric hospital,” and by 10% annually following five years from enactment for the same
reasons. It would have amended P.L. 103-159 (Brady Act) and required federal courts to provide
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records on persons prohibited from possessing firearms for reasons related to mental
incompetency and commitment to the FBI for inclusion in NICS. And, it would have required
federal agencies to report annually to Congress on the number of records they submit to NICS. As
noted, the amendment was rejected.
Veterans, Mental Incompetency, and Firearms Eligibility
It is noteworthy that, when Congress considered the NICS Improvement Amendments Act of
2007 (P.L. 110-180), some opposition to the underlying bill coalesced around an assertion that,
under those amendments, any veteran who was or had been diagnosed with Posttraumatic Stress
Disorder (PTSD)56 and was found to be a “danger to himself or others would have his gun rights
taken away ... forever.”57 However, a diagnosis of PTSD in and of itself is not a disqualifying
factor for the purposes of gun control under the NICS improvement amendments, previous law, or
current law. The Veterans’ Medical Administration has rarely, if ever, submitted any disqualifying
records on VA medical care recipients to the FBI for inclusion in NICS for any
medical/psychiatric reason (like PTSD). While veterans with PTSD or any other condition, who
have been involuntarily committed under a state court order to a VA medical facility because they
posed a danger to themselves or others, are ineligible to ship, transport, receive, or possess a
firearm or ammunition under federal law, the Veterans’ Medical Administration would not make a
related referral about that ineligibility to the FBI. Instead, 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.58
Also, under the GCA, there is a provision that allows the Attorney General (previously, the
Secretary of the Treasury) to consider petitions from a prohibited person for “relief from
disabilities” and have his firearms transfer and possession eligibility restored.59 Since FY1993,
however, a rider on the ATF annual appropriations for salaries and expenses has prohibited the
expenditure of any funding provided under that account on processing such petitions.60 As a
result, except for as provided under P.L. 110-180, the only way a person can reacquire his lost
firearms eligibility is to have his civil rights restored or disqualifying criminal record(s) expunged
or set aside, or to be pardoned for his crime. Consequently, prior to P.L. 110-180, a mental
defective-related NICS referral by the VA to the FBI related to PTSD or any other condition could
have been considered a life-long prohibiting factor with regard to firearms eligibility.
56 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, http://www.ncptsd.va.gov/ncmain/ncdocs/fact_shts/
fs_what_is_ptsd.html.
57 Larry Pratt, “Veterans Disarmament Act To Bar Vets From Owning Guns,” September 23, 2007,
http://www.prisonplanet.com/articles/september2007/230907Disarmament.htm.
58 For further information on the treatment of mental illness and substance abuse for the purposes of gun control, see
Donna M. Norris, M.D., et al., “Firearm Laws, Patients, and the Roles of Psychiatrists,” American Journal of
Psychiatry, August 2006, pp. 1392-1396.
59 18 U.S.C. §925(c). See also Relief from Disabilities Under the Act, 27 C.F.R. §478.144.
60 For FY1993, see P.L. 102-393; 106 Stat. 1732 (1992). For FY2012, see P.L. 112-55; 125 Stat. 609 (2011). The
FY2012 limitation provides “that none of the funds appropriated herein shall be available to investigate or act upon
applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c).” For FY2013, see P.L. 113-6; 127
Stat. 248 (2013).
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Under P.L. 110-180, Congress included provisions that require the VA to inform veterans and
other beneficiaries (surviving spouses and dependents) beforehand that by having a fiduciary
appointed on their behalf they will be considered “mentally incompetent” and, as a consequence,
will lose their firearms eligibility under federal law. In addition, the act requires the VA to
establish a process under which veterans or other beneficiaries who have been deemed mental
incompetent may file for administrative relief and possibly have their gun rights restored if they
are able to demonstrate that they are no longer afflicted by a disqualifying condition. The act
makes the same requirement of any other federal agency that makes such a referral to the FBI. As
a condition of federal assistance, the same requirement is made of states as well.
According to the Bureau of Justice Statistics, as of June 1, 2012, there were 153,298 files in the
NICS mental defective file, which had been referred to the FBI by the VA. Those VA files
accounted for 99.3% of mental defective files (154,458) referred to the FBI by any federal
department or agency. In the view of some Members of Congress, it is probably questionable that
other federal agencies, such as the Social Security Administration, that provide similar disability
and income maintenance benefits to persons who are mentally incapacitated, refer relatively few,
if any, firearms-related disqualifying records about beneficiaries whom they serve to the FBI.
Moreover, there are other individuals in the U.S. population who are similarly incapacitated due
to their age-related infirmities or mental disabilities, but in many cases there are no mechanisms
for state or local authorities to make similar referrals to the FBI. As a consequence, even with the
changes put in place by P.L. 110-180, those Members of Congress may view the VA’s continued
referral of firearms-related disqualifying records on veterans who have had a fiduciary appointed
on their behalf, but who had not behaved in a threatening or dangerous manner, to be an
unwarranted indignity placed on individuals who had served their country honorably in the
Armed Forces.
Other Members of Congress would maintain that the VA has dutifully complied with the law and
that public safety is enhanced by making those referrals to the FBI. They might also argue that
opposition to the VA policy waned between November 1998 and the 2007 congressional debate,
demonstrating that veterans who were “adjudicated mental defective” rarely, if ever, sought to
acquire and were subsequently denied firearms in a manner that could be described as an
injustice. Those Members would likely underscore that, in their view, the VA’s current policy does
not diminish national recognition of those veterans’ honorable service. Rather, the VA’s policy has
been implemented to protect those veterans and others from the harm that might result if they
acquired a firearm and used it improperly due to reasons possibly related to their mental
incompetency.
During Senate consideration of S. 649, the GOP substitute amendment would have amended
veterans law to prohibit the VA from turning records on veterans or other beneficiaries who had
been deemed mentally incompetent to the FBI for inclusion in NICS without “the order or finding
of a judge, magistrate, or other judicial authority of competent jurisdiction that such person is a
danger to himself or herself, or others.” Similar language was included in the Manchin-Toomey
amendment. And, Senator Richard Burr offered a similar amendment (S.Amdt. 720), but the
Senate rejected it by a yea-nay vote: 56-44 (Record Vote Number: 102). Also, on May 8, 2013,
the House Committee on Veterans Affairs approved by voice vote a bill—the Veterans 2nd
Amendment Protection Act (H.R. 602)—that includes similar provisions.61
61 Related proposals were acted upon in either one or both chambers in the 110th, 111th, and 112th Congresses.
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Gun Trafficking
Criminal “gun trafficking” essentially entails the movement or diversion of firearms from legal to
illegal markets.62 Therefore, it follows that the entire GCA is arguably a statutory framework
designed to combat gun trafficking domestically, particularly interstate gun trafficking.63 ATF has
developed a nationwide strategy to reduce firearms trafficking and violent crime by preventing
convicted felons, drug traffickers, and juvenile gang members from acquiring firearms from gun
traffickers.64 Gun trafficking cases include, but are not limited to, the following activities:
• straw purchasers or straw purchasing rings;
• trafficking in firearms by corrupt federally licensed gun dealers;
• trafficking in firearms by unlicensed dealers (i.e., persons who deal in firearms
illegally as the principal source of their livelihood);
• trafficking in stolen firearms; and
• trafficking of secondhand firearms acquired from unlicensed persons at gun
shows, flea markets, and other private venues.65
Unlike other forms of contraband, almost all illegal firearms used criminally in the United States
were diverted at some point from legal channels of commerce.66 ATF works to reduce firearms-
related crime with two approaches, industry regulation and criminal investigation.
ATF Regulation
ATF regulates the U.S. firearms industry by inspecting FFLs to monitor their compliance with the
GCA and NFA, and to prevent the diversion of firearms from legal to illegal channels of
commerce. Despite its crime-fighting mission, ATF’s business relationships with the firearms
62 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Project Gunrunner: The
Southwest Border Initiative, ATF P 3317.6, March 2009, available at http://www.atf.gov/publications/download/p/atf-
p-3317-6.pdf.
It is noteworthy that in 2006 the U.S. Sentencing Commission amended its guidelines to include the following
definition: “firearms trafficking” occurred if an offender, “regardless of whether anything of value was exchanged,”
engaged in the following activities: (1) transported, transferred, or otherwise disposed of two or more firearms to
another individual, or received two or more firearms with the intent to transport, transfer, or otherwise dispose of
firearms to another individual; and (2) knew or had reason to believe that such conduct would result in the transport,
transfer, or disposal of a firearm to an individual (a) whose possession or receipt of the firearm would be unlawful; or
(b) who intended to use or dispose of the firearm unlawfully. See United States Sentencing Commission, Guidelines
Manual, §2K2.1(b)(5) (November 2006).
63 With regard to Southwest Border gun trafficking, it is significant to note that the GCA does not include any
provisions that directly address smuggling firearms out of the United States, across international boundaries, to
countries like Mexico. However, the Arms Export Control Act (AECA; 22 U.S.C. §2778 et seq.) does include
provisions that directly address such cross-border illegal arms trafficking.
64 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Office of Field Operations,
Project Gunrunner: A Cartel Focused Strategy, September 2010.
65 U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Following the Gun: Enforcing Federal
Laws against Firearms Traffickers, June 2000, p. 11.
66 Greg Ridgeway, Glenn L. Pierce, and Anthony A. Braga et al., Strategies for Disrupting Illegal Firearms Markets: A
Case Study of Los Angeles, RAND Corporation, 2008, p. 1.
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industry and larger gun-owning community have been a perennial source of tension, which from
time to time has been the subject of congressional oversight.67 Nevertheless, under current law,
ATF Special Agents (SAs)68 and Industry Operations Investigators (IOIs)69 are authorized to
inspect or examine the inventory and records of an FFL without search warrants under three
scenarios:70
• in the course of a reasonable inquiry during the course of a criminal investigation
of a person or persons other than the FFL;
• to ensure compliance with the record keeping requirements of the GCA—not
more than once during any 12-month period, or at any time with respect to
records relating to a firearm involved in a criminal investigation that is traced to
the licensee; or
• when such an inspection or examination is required for determining the
disposition of one or more firearms in the course of a criminal investigation.
By inspecting the firearms transfer records that FFLs are required by law to maintain, ATF SAs
and IOIs are able to trace crime guns from their domestic manufacturer or importer to the first
retail dealer that sold those firearms to persons in the general public, generating vital leads in
homicide and other criminal investigations. In addition, by inspecting those records, ATF
investigators sometimes discover evidence of corrupt FFLs dealing in firearms “off the books,”
straw purchases, and other patterns of illegal behavior.
Anatomy of a Firearms Straw Purchase
A “straw purchase” occurs when an individual poses as the actual transferee, but he is actually
acquiring the firearm for another person. In effect, he serves as an illegal middleman. As part of
any firearms transfer from an FFL to a private person, the GCA requires them to fill out jointly an
ATF Form 4473. In addition, the FFL is required to verify the purchaser’s name, address, date of
birth, and other information by examining a government-issued piece of identification, most often
a driver’s license. Among other things, the purchaser attests on the ATF Form 4473 that he is not
a prohibited person, and that he is the “actual transferee/buyer.”71 Hence, straw purchases are
known as “lying and buying for the other guy.” Straw purchases are illegal under two provisions
of the GCA.
67 For example, in the 109th Congress, the House Judiciary Crime subcommittee held two oversight hearings examining
ATF firearms enforcement operations at guns shows in Richmond, VA, in 2005. ATF agents reportedly provided state
and local law enforcement officers with confidential information from background check forms (ATF Form 4473s), so
that 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. See 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. Also see
Department of Justice, Office of the Inspector General, The Bureau of Alcohol, Tobacco, Firearms and Explosives’
Investigative Operations at Gun Shows, I-2007-007, June 2007.
68 For FY2012, Congress provided ATF with funding for 2,539 SA positions.
69 For FY2012, Congress provided ATF with funding for 834 IOI positions.
70 18 U.S.C. §923(g)(1)(B).
71 On the ATF Form 4473, question 11a reads: “Are you the actual transferee/buyer of the firearm(s) listed on this
form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are
not the actual buyer, the dealer cannot transfer the firearm(s) to you.”
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If the purchaser makes any false statement to a FFL with respect to any fact material to the
lawfulness of a prospective firearms transfer, it is a federal offense punishable under 18
U.S.C. §922(a)(6). This provision also captures misrepresentations such as presenting false
identity documents. Violations are punishable by up to 10 years of imprisonment.72
It is also illegal for any person knowingly to make any false statement with respect to the
records that FFLs are required to maintain under 18 U.S.C. §924(a)(1)(A). This provision,
however, also captures misrepresentations related to licensure and other benefits under the
GCA. Violations are punishable by up to five years of imprisonment.73
Straw purchases, however, are not easily detected, because their illegality only becomes apparent
when the straw purchaser’s true intent is revealed by a subsequent transfer to the actual buyer
(third party). In many cases, the actual buyer may be a prohibited person, who would not pass a
background check. Under such a scenario, if the straw purchaser knew or had reasonable cause to
know the actual transferee was a prohibited person, he would also be in violation of 18 U.S.C.
Section 922(d), for which the penalty is up to 10 years of imprisonment.74 It would also be a
violation for the prohibited person to possess or receive the firearm under 18 U.S.C. Section
922(g), for which the penalty is also up to 10 years of imprisonment.75
Alternatively, the actual buyer may not be a prohibited person, but may be seeking to acquire
firearms without any paper trail linking him to the acquisition of the firearm. Under such a
scenario, however, the straw purchase and subsequent illegal transfer would be even less apparent
for several reasons. Under federal law, it is legal for an unlicensed, private person to purchase
firearms and then resell them or give them away, as long as the
• transferees are not prohibited or underage persons;
• transferors do not deal in firearms in a volume that would require licensing; and
• transfers are intrastate, as generally only federally licensed gun dealers can
legally transfer firearms interstate.
Hence, individuals may buy several firearms at a time with the intention of giving those firearms
away as presents to anyone, as long as they do not present those firearms to persons who are
underage, out-of-state residents, or prohibited persons. They may also buy firearms and, then, sell
those firearms at any time, as long as selling firearms is not the principal objective of their
livelihood and profit, in which case they would be required to be federally licensed to deal in
firearms. Furthermore, no federal background checks are required for recipients of subsequent
intrastate firearms transfers.
On the other hand, if the suspected straw purchaser were observed departing the licensed gun
dealer’s place of business and traveling immediately to another locale, where he transferred the
firearm(s) to another person, there would be a reasonable suspicion that he was a straw purchaser.
However, the actual buyer would not have committed a crime unless it could be proven that he
had sponsored the straw purchase.76 Usually, such illegal arrangements become clear when the
72 18 U.S.C. §924(a)(2).
73 18 U.S.C. §924(a)(1)(D).
74 18 U.S.C. §924(a)(2).
75 Ibid.
76 It is unlawful for any person to aid, abet, counsel, command, or solicit a criminal act (18 U.S.C. §2).
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straw purchaser is interviewed by agents and admits to having bought the firearms for the third
party, non-prohibited person. Moreover, depending on the time that elapses between the initial
straw purchases and subsequent transfers to the actual buyer (third party), the illegality of the
transfers may not become apparent until the actual buyer’s true intent is revealed, when he either
transports those firearms across state lines to be sold or bartered, attempts to smuggle them across
an international border, or engages in some other illegal act.
Sometimes, the behavior of the prospective transferee (straw purchaser) may raise reasonable
suspicions. For example, during a controversial ATF Phoenix-based investigation known as
“Operation Fast and Furious,” several of the individuals under indictment made multiple
purchases from the same FFL of multiple semiautomatic firearms. Raising suspicions further,
they paid for these firearms with thousands of dollars in cash. Indeed, FFLs contacted ATF about
these suspicious transfers, prompting the investigation. They did so, in part, because they realized
that these firearms might be traced back to their businesses and they probably wanted to avoid
any negative attention that those traces might bring back on them. It is notable that if an FFL
believes a firearms transfer to be suspicious, he may choose not to sell those firearms to the
individuals in question. If he should proceed with the transfer, however, as long as he had
conducted the required criminal background check on the prospective buyer, and he and the
prospective buyer had filled out the proper paperwork, his obligations under federal law would
have been fulfilled.
In summation, with regard to interstate transfers, it is unlawful for any person who is not federally
licensed to deal in firearms to transport or receive a firearm into his own state of residence that
was obtained in another state.77 In addition, it is unlawful for any person who is not federally
licensed to deal in firearms to deliver a firearm to another unlicensed person who resides in a
state other than the transferor’s state of residence.78 Violations of either provision are punishable
by a fine and/or not more than five years of imprisonment.79 It is also unlawful to smuggle
firearms, or any other merchandise contrary to U.S. law from the United States.80 Violations are
punishable by a fine and/or not more than 10 years of imprisonment.81
Federal Prosecutions under 18 U.S.C. Sections 922(a)(6) and 924(a)(1)(A)
According to the Government Accountability Office (GAO), the largest percentage of Southwest
Border gun trafficking cases is comprised of multiple straw purchases.82 And, large-scale straw
purchasing schemes were at the center of several ATF Phoenix-based gun trafficking
investigations, including Operation Fast and Furious. Contributing to the controversy surrounding
Operation Fast and Furious, reportedly, the U.S. Attorney’s Office in Arizona was reluctant to
prosecute straw purchasing cases, even though ATF conducted several investigations involving
dozens of firearms and multiple defendants from 2006 through 2010.83 Some of this reluctance to
77 18 U.S.C. §922(a)(3).
78 18 U.S.C. §922(a)(5).
79 18 U.S.C. §924 (a)(1)(D).
80 18 U.S.C. §554.
81 Ibid.
82 U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico
Face Planning and Coordination Challenges, GAO-09-709, June 29, 2009, p. 21.
83 U.S. Congress, Fatally Flawed: Five Years of Gunwalking in Arizona, House Committee on Oversight and
Government Reform, Minority Staff Report, 112th Cong., 2nd Sess., January 2012, p. 72, http://www.scribd.com/doc/
(continued...)
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prosecute referred cases may have stemmed from legal interpretations (and underlying case law)
made by the U.S. Attorney’s Office in Arizona that “differed substantially from those of other
U.S. Attorney’s Offices.”84 Other considerations could have included allocation of scarce
resources and prosecutorial priorities. Nonetheless, as shown below, federal prosecutions for
straw purchasing and related offenses nationally appear to have fallen off significantly in recent
years, despite congressional efforts to increase ATF appropriations to combat gun trafficking.
Figure 1. Federal Defendants Charged and Convicted Nationally under 18 U.S.C.
Sections 922(a)(6) and 924(a)(1)(A)
FY2004-FY2010
Source: Data from U.S. Attorney’s Office. Figure created by CRS.
Notes: Under 18 U.S.C. §922(a)(6), it is unlawful if a firearms purchaser makes any false statement to a FFL with
respect to any fact material to the lawfulness of a prospective firearms transfer. Under 18 U.S.C. §924(a)(1)(A), it
is unlawful for any person knowingly to make any false statement with respect to the records that FFLs are
required to maintain.
In addition, at a hearing on Operation Fast and Furious, an ATF agent testified that the penalties
levied under current law are not harsh enough to deter gun trafficking to Mexican drug trafficking
organizations. He opined that the “statute doesn’t carry significant jail time,” and that straw
purchases were viewed as “paperwork violations.” To explore this assertion, CRS requested
criminal caseload data from the U.S. Attorneys Office for 18 U.S.C. Sections 922(a)(6) and
924(a)(1)(A) for FY2004 through FY2010. It is noteworthy, however, that the criminal cases
under these provisions include violations involving false identities and entries, in addition to
straw purchases.
(...continued)
79930290/%E2%80%9CFatally-Flawed-Five-Years-of-Gunwalking-in-Arizona-%E2%80%9D?tw_p=twt.
See also Colby Goodman and Michel Marizco, U.S. Firearms Trafficking to Mexico: New Data and Insights Illuminate
Key Trends and Challenges, Woodrow Wilson International Center for Scholars Mexico Institute and University of San
Diego Trans-Border Institute, September 2010, p. 29.
84 Ibid.
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As Figure 1 shows, nationally, the defendants charged under §922(a)(6) declined from 459 for
FY2004 to 218 for FY2010, or by about half (-52.5%). Similarly, defendants convicted under
Section 922(a)(6) declined by more than half (-58.6%) for those years, even though they
increased from FY2007 to FY2008 (17.3%). The defendants charged under Section 924(a)(1)(A)
also declined from 290 for FY2004 to 2009 for FY2010, but at a slower rate of change (-27.9%).
Convictions under that provision also declined through FY2008 (-22.3%), but increased for
FY2009 (18.7%) and FY2010 (2.4%). Under either provision, about two-thirds of defendants
were convicted during FY2004 through FY2010 cumulatively.
Figure 2. Federal Sentences Imposed Nationally under
18 U.S.C. Sections 922(a)(6) and 924(a)(1)(A)
FY2004-FY2010
Source: Data from U.S. Attorney’s Office. Figure created by CRS.
Notes: Violations of 18 U.S.C. §922(a)(6) are punishable by up to 10 years of imprisonment under 18 U.S.C.
§924(a)(2). Violations of 18 U.S.C. §924(a)(1)(A) are punishable by up to five years of imprisonment under 18
U.S.C. §924(a)(1)(D).
As Figure 2 shows, moreover, over a third of the individuals convicted under either provision
received no prison sentence. Over a third received a prison sentence of up to two years. The
remainder received prison sentences of greater than two years. Several individuals received life
sentences, but those individuals were likely career criminals who were convicted of additional
offenses.
Gun Trafficking Proposals
The President’s plan to reduce gun violence calls for increased penalties for gun trafficking.
Although the Administration has not transmitted any specific proposal or language to Congress,
several bills that address gun trafficking and/or straw purchases have been reintroduced in the
113th Congress. On January 22, 2013, Senator Patrick J. Leahy, chairman of the Senate
Committee on the Judiciary, introduced Stop Illegal Trafficking in Firearms Act of 2013 (S. 54).
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Senate Committee Markup
On March 7, 2013, the committee approved this bill. As amended and ordered reported, S. 54
would amend the GCA to establish standalone straw purchasing and gun trafficking prohibitions
and increase related penalties. The gun trafficking prohibitions are similar to those included in S.
179 and H.R. 452 (described below).
Under the straw purchasing prohibition, S. 54 would prohibit any unlicensed person from
knowingly purchasing, or attempting or conspiring to purchase, any firearm from an FFL on
behalf of or at the request or demand of another person, known or unknown.85 Under a more
narrowly focused, but parallel, provision, S. 54 would prohibit any unlicensed person from
purchasing or conspiring to purchase any firearm from another unlicensed person on behalf of or
at the request or demand of another person, known or unknown.86 In the latter case, however, the
prohibition would be limited to subsequent transfers on behalf of persons who
• are prohibited under 18 U.S.C. Sections 922(g) and (n);
• intend to carry, possess, sell, or otherwise dispose of the firearm in furtherance of
a crime of violence87 or drug trafficking crime;88
• do not reside in any state and who are not citizens of the United States; or
• intend to sell or otherwise dispose of the firearm to any person who would fall
under any of the categories described above.
Under either provision, violations would be punishable by a fine and/or imprisonment of not
more than 15 years.
Notwithstanding the “crime of violence” prohibition already included under the second straw
purchasing provision noted above, S. 54 would additionally provide that if prohibited transfers
under either provision were committed knowing, or with reasonable cause to believe, that the
firearm would be used in a crime of violence, violations would be punishable by a fine and/or
imprisonment of not more than 25 years. Exceptions would be provided for bona fide gifts and
winners of organized raffles, contests, or auctions.
S. 54 would amend the GCA to establish standalone “trafficking in firearms” offenses under three
provisions.89 The first provision would make it unlawful for any person to receive, ship, transfer,
85 Proposed 18 U.S.C. §932(b)(1).
86 Proposed 18 U.S.C. §932(b)(2).
87 Under S. 54, the term “crime of violence” has the same meaning as 18 U.S.C. §924(c)(3):
an offense that is a felony and—(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or (B) that by its nature, involves a
substantial risk that physical force against the person or property of another may be used in the
course of committing the offense.
88 Under S. 54, the term “drug trafficking crime” has the same meaning as 18 U.S.C. §924(c)(2):
any felony punishable under the Controlled Substances Act (21 U.S.C. §801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C. §951 et seq.), or the Maritime Drug Law
Enforcement
Act (46 U.S.C. App. §1901 et seq.).
89 Proposed 18 U.S.C. §933(a), (b), and (c).
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cause to be transported, or otherwise dispose of two or more firearms that have been shipped or
transported in interstate or foreign commerce (regardless of whether anything of value is
exchanged), while knowing, or having reasonable cause to believe, that one or more of those
firearms would be transferred subsequently to another person whose receipt of a firearm would be
unlawful or who intends to or will use, carry or possess, or dispose of the firearm unlawfully, or
would result in a felony violation of federal law. The second provision would make it unlawful
for any person knowingly to direct, promote, or facilitate such conduct. The third provision would
make it unlawful to conspire to violate either provision described above. Violations of these
provisions would be punishable by a fine and/or not more than 15 years of imprisonment.
Moreover, it would provide that any person who acts in the capacity of an organizer, a
supervisory position, or any other management position in concert with five or more other
persons would be subject to a fine and/or not more than 25 years of imprisonment.
With regard to violations of the bill’s straw purchase or trafficking in firearms provisions
(proposed 18 U.S.C. §§932 and 933), S. 54 would include such offenses under asset forfeiture,
Title III electronic communications intercept, racketeering, and money laundering provisions.
S. 54 would amend a provision of the GCA that prohibits any person from transferring a firearm
or ammunition to any prohibited person90 to include specifically not only persons already
prohibited under current law (under 18 U.S.C. §§922(g) and (n)), but also persons who
• in turn intend to sell or otherwise dispose of the firearm or ammunition to any
prohibited person; or
• intend to sell or otherwise dispose of the firearm or ammunition in furtherance of
a crime of violence, drug trafficking offense, or illegal export of the firearm or
ammunition.
And, S. 54 would increase the penalty for unlawful transfer to a prohibited person or possession
by a prohibited person under either 18 U.S.C. Section922(d) or (g) from not more than 10 years to
not more than 15 years of imprisonment.91
Moreover, S. 54 would amend the GCA (at 18 U.S.C. §924(h)) to make it unlawful for any person
to receive or transfer a firearm or ammunition knowingly, or to attempt or conspire to do so
knowingly, if he had reasonable cause to believe that such firearm or ammunition would
• be used to commit a crime of violence or drug trafficking;
• violate the Arms Export Control Act (22 U.S.C. §2751 et seq.);92
90 18 U.S.C. §922(d).
91 Proposed 18 U.S.C. §924(a)(8).
92 The Arms Export Control Act of 1976 (AECA; codified, as amended, at 22 U.S.C.§2778 et seq.) governs the
exportation and importation of arms, ammunition, and implements of war. In other words, under the AECA, the
President has the authority to control the export and import of defense articles and defense services in furtherance of
world peace and the security and foreign policy of the United States. Authority to administer the permanent import
provisions of the AECA was delegated to the Attorney General, while the authority to administer the export and
temporary import provisions of the AECA was delegated to the Secretary of State. See Executive Order 11958 of
January 18, 1977, as amended by Executive Order 13284 of January 23, 2003, 3 C.F.R. Executive Order 13284. Hence,
the Department of State’s Bureau of Political Military Affairs’ Directorate of Defense Trade Controls (DDTC)
administers the export provisions, while DOJ’s ATF has traditionally administered and continues to administer the
importation provisions. Under the Homeland Security Act of 2002 (P.L. 107-296), ATF was transferred from the
(continued...)
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• violate the International Emergency Economic Powers Act (IEEPA; 50 U.S.C.
§1701 et seq.);93
• violate the Foreign Narcotics Kingpin Designation Act (Kingpin Act; 21 U.S.C.
§1901 et seq.);94 or
• violate Section 212(a)(2)(C) of the Immigration and Nationality Act (8 U.S.C.
§1182(a)(2)(C)).95
Violations under this provision would be punishable by a fine and/or not more than 25 years of
imprisonment, the term for which would run consecutively (not concurrently) with any other term
of imprisonment imposed on an offender under the straw purchasing provisions described above.
With regard to cross-border smuggling, S. 54 would amend the GCA (at 18 U.S.C. §924(k)) and
increase the penalty from not more than 10 years to not more than 15 years of imprisonment for
smuggling a firearm or ammunition into the United States while engaged in or promoting conduct
that would be a violation of federal or state controlled substances laws, or a crime of violence. It
would also establish a similar offense for smuggling a firearm or ammunition out of the United
States while engaged in or promoting conduct in violation of federal controlled substance laws or
a crime of violence. Offenses would be punishable by a fine and/or up to 15 years of
imprisonment.
Finally, S. 54 includes a limitation on DOJ that would prohibit any undercover operation whereby
an FFL (federally licensed gun dealer) would be directed, instructed, enticed, or otherwise
encouraged by a DOJ agent to transfer a firearm to an individual, if there were reasonable cause
to believe that such an individual would be purchasing a firearm on behalf of another individual
for an illegal purpose, unless certain safeguards were met. This last provision was offered as an
amendment by Senator Charles E. Grassley, the ranking minority Member, during full committee
markup. This provision addresses ATF’s conduct of Operation Fast and Furious.
Senate Floor Action
The language of S. 54 was included in the Safe Communities, Safe Schools Act of 2013 (S. 649).
During Senate consideration of S. 649 on April 17, 2013, Senator Leahy offered a revised version
of S. 54 as an amendment (S.Amdt. 713), but it was rejected by a yea-nay vote: 52-48 (Record
(...continued)
Department of the Treasury to DOJ. Importation regulations issued under this law are in 27 C.F.R. Part 447.
93 The IEEPA gives the President authority to regulate commerce after declaring a national emergency in response to
any foreign-sourced unusual and extraordinary threat.
94 Under the Kingpin Act, the Department of the Treasury, in consultation with several other federal agencies, blocks
the property and interests in property, subject to U.S. jurisdiction, owned and controlled by significant foreign drug
traffickers.
95 Under 8 U.S.C. §1182(a)(2)(C), CONTROLLED SUBSTANCE TRAFFICKERS- Any alien who the consular
officer or the Attorney General knows or has reason to believe—(i) is or has been an illicit trafficker in any controlled
substance or in any listed chemical (as defined in §102 of the Controlled Substances Act (21 U.S.C. §802)), or is or has
been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such
controlled or listed substance or chemical, or endeavored to do so; or (ii) is the spouse, son, or daughter of an alien
inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit
activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of
such illicit activity, is inadmissible (from entry into the United States).
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Vote Number: 99), because the Senate had agreed by unanimous consent to raise passage of the
amendment to a 60-vote threshold.
The GOP substitute offered by Senator Grassley would have established standalone straw
purchasing and trafficking in firearms offenses, which were similar to the provisions in S. 54 and
the Leahy amendment. It would have increased the penalty for “lying and buying,” that is,
providing any misrepresentation to an FFL in connection with a firearms transfer under 18 U.S.C.
§924(a)(1)(A), from five to 10 years of imprisonment. It would have increased the penalty for
illegal possession under 18 U.S.C. §§922(g) and (n), as well as unlawful transfers to prohibited
persons under 18 U.S.C. §922(d), from 10 to 15 years of imprisonment. And, it included changes
to 18 U.S.C. §§924(h) and (k), which were similar to those in S. 54 and the Leahy amendment,
except the GOP substitute also included a federal crime of terrorism under the covered offenses.96
As noted above, the amendment was rejected.
Other Gun Trafficking Proposals
In the 113th Congress several other gun trafficking proposals have been introduced. They are
briefly described below.
Gun Trafficking Prevention Act of 2013 (S. 179 and H.R. 452)
On February 12, 2013, Senator Kirsten E. Gillibrand introduced a proposal (S. 179) that would
amend the GCA to establish a standalone federal “trafficking in firearms” offense under two
provisions. The first provision would make it unlawful for any person to receive, transfer, or
otherwise dispose of two or more firearms that have been shipped or transported in interstate or
foreign commerce (regardless of whether anything of value is exchanged), while knowing, or
having reasonable cause to believe, that one or more of those firearms would be transferred
subsequently to another person whose receipt of a firearm would be unlawful, or who intends to
or will use, carry or possess, or dispose of the firearm unlawfully. The second provision would
make it unlawful for any person knowingly to direct, promote, or facilitate such conduct.
Violations of either provision would be punishable by a fine and/or not more than 20 years of
imprisonment. Moreover, it would provide that any person who acts in the capacity of an
organizer, a supervisory position, or any other management position in concert with five or more
other persons would be subject to not more than 25 years of imprisonment. In addition, S. 179
would make it unlawful to conspire to violate the first provision, and would make such a
conspiracy punishable by a fine and/or not more than 10 years of imprisonment. Exception would
be provided under the bill for transfers of gifts or by bequest. Representative Carolyn B. Maloney
has introduced a similar bill (H.R. 452). The “trafficking in firearms” provisions included in S.
54, as amended and approved by the Senate Committee on the Judiciary, are similar to the
provisions in S. 179 and H.R. 452.
Straw Purchaser Penalty Enhancement Act (H.R. 404)
On January 22, 2013, Representative Adam Schiff reintroduced a proposal (H.R. 404) that would
create a two-year mandatory minimum sentence for straw purchasing. This bill would amend the
96 The term “Federal crime of terrorism” is defined at 18 U.S.C. §2332b(g)(5).
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GCA to create a mandatory minimum sentence of two years of imprisonment for any person who
makes a false statement in violation of either 18 U.S.C. Sections 922(a)(6) or 924(a)(1)(A) in the
firearms transfer records (ATF Form 4473) that FFLs are required to maintain under current law,
if the transferee
• knows or has reason to believe that the false statement will further the transfer of
two or more firearms to a prohibited person; and
• has the intent to conceal the identity of the prohibited person to whom the firearm
is to be transferred.
Detectives Nemorin and Andrews Anti-Gun Trafficking Act of 2013 (H.R. 722)
On February 14, 2013, Representative Peter T. King introduced a proposal (H.R. 722) that would
also amend the GCA to create a standalone federal “trafficking in firearms” offense punishable by
a fine and/or imprisonment of not more than 20 years for committing certain existing offenses
under the GCA under one of two sets of conditions. The first set of conditions would be the
offering for sale, transfer, or barter of two or more handguns, semiautomatic assault weapons,97
short-barreled shotguns, short-barreled rifles, or machine guns, of which at least one was
transported, received, or possessed by that person and stolen or had the importer’s or
manufacturer’s serial number removed. The second set of conditions would be the offering for
sale, transfer, or barter of two or more handguns, semiautomatic assault weapons, short-barreled
shotguns, short-barreled rifles, or machine guns, of which at least one was offered by sale,
transfer, or barter to another who is either prohibited by federal or state law from possessing a
firearm, not at least 18 years of age, is in a school zone, or is not a resident of the state in which
he has attempted to acquire the firearms.
If someone committed one of the offenses already punishable by the GCA,98 each of which
carries its own penalty, under either of these conditions, such a person could be prosecuted under
this separate gun trafficking crime and face a fine and/or imprisonment of not more than 20 years.
97 It is notable that a statutory definition for “semiautomatic assault weapon” no longer exists. The 1994 Semiautomatic
Assault Weapons (SAW) Ban, which expired in 2004, had defined, for example, 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 telescopic scope, (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. (Former 18 U.S.C. §921(a)(30)). Similar definitions
existed for semiautomatic pistols and shotguns.
98 The GCA offenses in title 18 that would have been implicated in this new gun trafficking crime were (1)
§922(a)(1)(A), unlawful to willfully engage in business of dealing firearms without a license; (2) §922(a)(3), unlawful
for non-licensee to willfully transport or receive a firearm obtained in another state into his state of residence; (3)
§922(a)(6), unlawful to knowingly make a materially false statement to a FFL; (4) §922(b)(2), unlawful for an FFL to
willfully deliver a firearm to a person where the purchase or possession would violate state law; (5) §922(b)(3),
unlawful for an FFL to willfully deliver a firearm to a person residing in a state other than the FFL’s; (6) §922(b)(5),
unlawful for an FFL to willfully dispose of a firearm without making entries required by law; (7) §922(d), unlawful for
any person to knowingly dispose of a firearm to a prohibited person; (8) §922(g), unlawful for any prohibited person to
knowingly receive or possess firearm or ammunition; (9) §922(i), unlawful for any person to knowingly transport or
ship a stolen firearm; (10) §922(j), unlawful for any person to knowingly receive, possess, conceal, store, barter, sell, or
dispose of a stolen firearm; (11) §922(k), unlawful for any person to knowingly transport, ship, or receive a firearm that
has an obliterated or altered serial number; (12) §922(m), unlawful for an FFL to knowingly make a false entry in or
improperly maintain records required by law; (13) §922(n), unlawful for any person to willfully ship or receive
firearms or ammunition if under indictment for felony; (14) §924(c), unlawful for any person to use or carry a firearm
during or in relation to a federal crime of violence or drug trafficking crime; (15) §924(h), unlawful for any person to
transfer a firearm knowing it will be used to commit a crime of violence or a drug trafficking crime.
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This bill is silent as to whether the sentences for the proposed “gun trafficking” crime and the
individual predicate GCA offenses, if a person was prosecuted under both provisions, would be
served consecutively or concurrently.
Military Style Firearms
Under the Violent Crime Control and Law Enforcement Act of 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 ban prohibited the further manufacture for, and transfer to, private persons certain firearms
that (1) were listed by make and model as SAWs, or (2) met a SAW “military-style” features test
for rifles, pistols, and handguns. Semiautomatic assault weapons and LCAFDs that were legally
owned prior to the ban were grandfathered, meaning they were not restricted and remained
available for transfer under applicable federal and state laws. The SAW-LCAFD ban expired on
September 13, 2004.
Senator Lautenberg and Representative McCarthy have introduced the Large Capacity
Ammunition Feeding Device Act (S. 33/H.R. 138), a bill that would prohibit the manufacture or
importation of detachable magazines of over 10-round capacity. While this proposal would
grandfather existing magazines, it would also make those grandfathered magazines non-
transferable, meaning that those magazines could not be sold or traded and would become
contraband upon the owner’s death. This bill would require that any newly produced magazines,
or large-capacity ammunition feeding devices, be identified by a serial number that clearly shows
that the device was manufactured after enactment. (Senator Lautenberg has introduced a modified
proposal, S. 691.)
Senator Feinstein and Representative McCarthy have introduced similar proposals (S. 150 and
H.R. 437), both titled the Assault Weapons Ban of 2013. These similar proposals would build
upon and modify the expired federal ban. These proposals, like S. 33/H.R. 138, would ban
ammunition magazines with a greater than 10-round capacity and would grandfather existing
magazines, as did the expired federal ban, but they would also ban any further transfer of those
magazines. For semiautomatic firearms, these proposals would establish separate “one military
feature” tests for rifles, pistols, and shotguns that are in many ways similar to California state law,
instead of the “two military features” tests that were included under the expired 1994-2004
federal ban (see the tables below). They would prohibit the future manufacture and importation of
firearms that fell under these tests, as well as 157 firearms specifically named in the proposal by
make and model. The proposals would grandfather any existing firearms that met the “one
feature” tests, but they would require background checks for any future transfers of grandfathered
“assault weapons” by an unlicensed person to another unlicensed person. Finally, the proposals
would exempt from the ban over 2,200 firearms by make and model.
On March 14, 2013, the Senate Committee on the Judiciary approved S. 150. Several
amendments offered by the minority were rejected during full committee markup. As described
above, Senator Reid included several other Senate-reported bills in in the Safe Communities, Safe
Schools Act of 2013 (S. 649). Although S. 649 did not include the language of S. 150, according
to press accounts, Senator Feinstein indicated that Senator Reid had assured her that he would
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allow her to offer an “assault weapons” amendment when the Senate considered the proposals
described above.99
On April 17, 2013, Senator Feinstein offered her proposal as an amendment (S.Amdt. 711) during
Senate consideration of S. 649, but the amendment was rejected by a yea-nay vote: 40-60 (Record
Vote Number: 101). In addition, Senator Blumenthal (for Senator Frank Lautenberg) offered an
amendment (S.Amdt. 714) that would have banned the further production and distribution of 10-
round or greater magazines, or LCAFDs. While it would grandfather in existing magazines, those
magazines legally held by the public would become non-transferable and would essentially
become contraband upon the owner’s death, but it too was rejected by a yea-nay vote: 46-54
(Record Vote Number: 103).
Table 3. Expired and Proposed Definitions of Semiautomatic Assault Rifle Compared
Expired 1994-2004 Federal Definition for
Proposed Assault Weapons Ban of 2013
Semiautomatic Assault Rifle
Definition for Semiautomatic Assault Rifle
(a two features test)
(a one feature test)
A semiautomatic rifle that had an ability to accept a
A semiautomatic rifle that has the capacity to accept a
detachable magazine and had at least two of the
detachable magazine and any one of the following:
following:
(1) a pistol grip;
(1) a folding or telescoping stock;
(2) a forward grip;
(2) a pistol grip that protruded conspicuously beneath
the action of the weapon;
(3) a folding, telescoping, or detachable stock;
(3) a bayonet mount;
(4) a grenade launcher or rocket launcher;
(4) a flash suppressor or threaded barrel designed to
(5) a barrel shroud; or
accommodate a flash suppressor; or
(6) a threaded barrel.
(5) a grenade launcher.
Also, any semiautomatic rifle that has a fixed magazine with
the capacity to accept more than 10 rounds, except for an
attached tubular device designed for and only capable of
accepting .22 caliber rimfire ammunition.
Source: See expired 18 U.S.C. §921(a)(30)(B) and S. 150 and H.R. 437 as introduced in the 113th Congress.
99 Ed O’Keefe and Philip Rucker, “Assault Weapons Ban Dropped from Gun Bill,” Washington Post, March 20, 2013,
p. A5.
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Table 4. Expired and Proposed Definitions of
Semiautomatic Assault Pistol Compared
Expired 1994-2004 Federal Definition for
Proposed Assault Weapons Ban of 2013
Semiautomatic Assault Pistol
Definition for Semiautomatic Assault Pistol
(a two features test)
(a one feature test)
A semiautomatic pistol that has an ability to accept a
A semiautomatic pistol that has the capacity to accept a
detachable magazine and at least two of the following
detachable magazine and any one of the following
characteristics:
characteristics:
(1) an ammunition magazine that attached to the
(1) a threaded barrel;
pistol outside of the pistol grip;
(2) a second pistol grip;
(2) a threaded barrel capable of accepting a barrel
extender, flash suppressor, forward handgrip, or
(3) a barrel shroud;
silencer;
(4) the capacity to accept a detachable magazine at some
(3) a shroud that was attached to, or partially or
location outside of the pistol grip; or
completely encircles, the barrel and that permits the
(5) it was a semiautomatic version of an automatic firearm.
shooter to hold the firearm with the nontrigger hand
without being burned;
Also, any semiautomatic pistol with a fixed magazine that
has the capacity to accept more than 10 rounds.
(4) a manufactured weight of 50 ounces or more
when the pistol is unloaded; or
(5) it was a semiautomatic version of an automatic
firearm.
Source: See expired 18 U.S.C. §921(a)(30)(C) and S. 150 and H.R. 437 as introduced in the 113th Congress.
Table 5. Expired and Proposed Definitions of
Semiautomatic Assault Shotgun Compared
Expired 1994-2004 Federal Definition for
Proposed Assault Weapons Ban of 2013
Semiautomatic Assault Shotgun
Definition for Semiautomatic Assault Shotgun
(a two features test)
(a one feature test)
A semiautomatic shotgun that had at least two of the
A semiautomatic shotgun that has one of the fol owing:
following:
(1) a folding, telescoping stock, or detachable stock; or
(1) a folding or telescoping stock;
(2) a pistol grip;
(2) a pistol grip that protruded conspicuously beneath
the action of the weapon;
(3) a fixed magazine with the capacity to accept more than
five rounds;
(3) a fixed magazine capacity in excess of five rounds; or (4) the ability to accept a detachable magazine;
(4) an ability to accept a detachable magazine.
(5) a forward grip; or
(6) a grenade launcher or rocket launcher.
Also, any shotgun with a revolving cylinder.
Source: See expired 18 U.S.C. §921(a)(30)(C) and S. 150 and H.R. 437 as introduced in the 113th Congress.
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Gun Control Proposals in the 113th Congress
Author Contact Information
William J. Krouse
Specialist in Domestic Security and Crime Policy
wkrouse@crs.loc.gov, 7-2225
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