Updated December 3, 2018
U.S. Gun Policy: Framework and Major Issues
Federal firearms regulation has been a subject of continuous
firearms licensees (FFLs) must conduct background checks
interest for legislators. In recent Congresses, a range of
of non-FFL prospective buyers and maintain records on all
proposals has been introduced, with some seeking to ease
commercial firearms sales. The GCA also generally limits
various federal firearms restrictions or facilitate reciprocity
non-FFLs to purchasing a firearm within their state of
in state treatment of persons authorized to carry a firearm
residence, except for long guns sold face-to-face by an FFL
by another state. Other proposals have sought greater
when the sale is considered lawful by the purchaser’s state
restrictions on the federal rules concerning the possession,
of residence and the FFL’s state of business.
transfer or sale of firearms, or the expansion of background
checks for firearm purchases. These various approaches, in
The GCA also sets forth several categories of persons who
turn, prompt debate about not only their pros and cons but
are barred or restricted from shipping, transporting,
also their legalities, as Congress’s ability to legislate on
receiving, or possessing firearms or ammunition. These
such matters must comport with the Second Amendment
categories include, for example, persons convicted of
and other constitutional constraints.
certain felony offenses; persons “adjudicated as a mental
defective” or who have been committed to a mental
Federal Statutory Framework
institution; unlawfully present aliens or aliens holding non-
Federal laws regulating firearms date back roughly a
immigrant visas; and persons subject to certain court orders
century, though they became more comprehensive over
relating to domestic violence or who have committed
time. These laws generally serve as a floor for permissible
domestic violence misdemeanors. With limited exception,
firearm use and transactions, leaving states free to
the GCA also bars juveniles from possessing a handgun.
supplement with additional restrictions, so long as they do
not conflict with federal law.
Background Checks Under the Brady Act
Pursuant to the Brady Handgun Violence Prevention Act of
Two primary federal statutory regimes govern the transfer,
1993 (P.L. 103-159), the Federal Bureau of Investigation
sale, and possession of firearms: the National Firearms Act
(FBI) activated the National Instant Criminal Background
of 1934 (26 U.S.C. Chapter 53) and the Gun Control Act of
Checks System (NICS) in 1998. NICS is a computer
1968 (18 U.S.C. Chapter 44), as amended. The Department
“system of systems” that queries federal, state, local, tribal,
of Justice’s Bureau of Alcohol, Tobacco, Firearms and
and territorial records that could indicate that a prospective
Explosives (ATF) is the principal agency charged with
customer is ineligible to receive a firearm. FFLs must use
administering these laws.
NICS to conduct required background checks on non-FFL
prospective firearm purchasers. The NICS Improvement
National Firearms Act
Amendments Act of 2007 (P.L. 110-198) and the Fix NICS
Through a taxation and registration system, the National
Act of 2018 (P.L. 115-141) sought to strengthen federal
Firearms Act (NFA) generally limits the availability of
reporting requirements and encourage states to make certain
covered weapons, including short-barreled shotguns and
records—particularly related to domestic violence and
rifles, fully automatic “machineguns,” silencers, “destruc-
mental incompetency—accessible to NICS. The FBI
tive devices,” and a catchall category covering “any other
facilitated roughly 300 million background check
weapon” that is “capable of being concealed on the person
transactions using NICS from December 1998 through
from which a shot can be discharged through the energy of
October 2018.
an explosive.” NFA-covered firearms and their owners
must be registered with the Attorney General at any point a
Selected Firearm Policy Issues
firearm changes ownership in the chain of commerce.
Numerous proposals to modify federal gun laws have been
introduced and in some cases received consideration in
Gun Control Act
recent Congresses. Proposals range from measures
The Gun Control Act (GCA) supplemented the NFA and
purporting to narrow or expand requirements on the sale,
significantly expanded the scope of federal firearms
possession, or transfer of firearms and accessories.
regulation. The GCA principally sets forth various
requirements concerning the sale, purchase, and possession
Background Checks
of firearms. For instance, persons “engaged in the business”
Some have viewed non-FFLs’ ability to engage in firearms
of manufacturing, importing, or selling GCA- or NFA-
transfers, without being required to adhere to the GCA’s
covered firearms must receive a federal license from the
recordkeeping and background check requirements, as a
Attorney General. But a license is not required for those
“loophole” in the law. Opponents contend that expanding
who make only “occasional” firearm sales or purchases for
background checks would be costly, cumbersome, and
the enhancement of personal collections or as a hobby or
ineffective. Proposals to expand background checks vary in
who sell all or part of a personal collection. Federal
comprehensiveness, from covering sales by non-FFLs
https://crsreports.congress.gov
U.S. Gun Policy: Framework and Major Issues
arranged at gun shows to “universal” requirements
of a criminal offense. Federal law currently does not render
applicable to virtually all private-party firearms transfers.
persons ineligible to receive or purchase firearms based
solely on suspected activities (though as an investigative
Concealed Carry
tool, prospective firearms purchasers are screened against a
Firearms regulations vary considerably from state to state
subset of the Terrorist Screening Database during a NICS
and activities lawful in one jurisdiction may be barred in
check). Proposals have been considered, for example, to
another. Recent Congresses have considered proposals
grant the Attorney General the power to deny a firearm
addressing state laws governing when someone may carry a
transfer to a suspected terrorist.
firearm in a concealed manner in public. These proposals
generally provide that if a state allows residents to carry a
Finally, after a 2017 shooting in Las Vegas, Nevada,
concealed weapon in some circumstances, the state must
involving the use of “bump-fire” or “bump-stock” devices
honor the concealed-carry privilege given by other states.
that enable semiautomatic firearms effectively to mimic the
Proponents argue that reciprocity is warranted to reconcile
firing capabilities of fully automatic weapons, ATF
the complicated array of state concealed-carry laws that
proposed regulation that would interpret existing
may make it difficult for lawful gun owners to know where
restrictions that bar the possession of automatic weapons to
they may carry a concealed handgun outside of the state in
cover those accessories. Some proposals have sought to
which they hold a concealed-carry license. Opponents claim
codify this ATF proposal. Other proposals have sought to
that such proposals pose a risk to public safety and raise
restrict other firearms such as 3D-printed guns and firearms
federalism concerns.
characterized as “assault weapons.” Still other proposals
have sought to ease federal restrictions on silencers.
Deterring “Straw Purchases”
Under the GCA, whenever an unlicensed person seeks to
Constitutional Considerations
acquire a firearm from an FFL, both the FFL and
Congress has broad, but not unlimited, constitutional
prospective purchaser must truthfully fill out and sign a
form verifying the purchaser’s identity.
authority to regulate firearms. While some federal firearm
The purchaser also
laws find constitutional support in Congress’s taxing power,
attests under criminal penalty that he or she is not a
prohibited person and is the “actual buyer.”
most federal firearm laws derive from the Commerce
Some proposals
Clause. Congress’s authority over interstate commerce
seek to deter “straw purchases”—firearm purchases made
confers it with wide latitude to regulate the interstate sale of
on behalf of a prohibited person—by heightening
firearms. Moreover, the Supreme Court, most notably in
applicable criminal penalties or expanding their reach.
United States v. Lopez, 514 U.S. 549 (1994), has recognized
Opponents contend, among other things, that existing laws
that the Commerce Clause permits Congress to regulate
are adequate and, in some instances, have expressed
firearms activity occurring wholly within a state when that
concern regarding the requisite mental state for criminal
activity has, in the aggregate, “substantial economic effect”
liability to attach.
on interstate commerce. Still, Lopez recognized that the
Modifying Ineligibility Rules and Restrictions on
Commerce Clause does not authorize federal regulation of
Types of Firearms and Accessories
all wholly intrastate firearms activity, opining, for example,
that a general federal interest in reducing localized gun
Recurring proposals to modify the laws governing firearms
violence does not have a sufficient commercial nexus to
eligibility often turn on questions regarding the scope of
satisfy Commerce Clause requirements. Alternatively,
current restrictions (i.e., narrowed versus expanded), the
Congress could use its spending powers to condition or
temporal nature of ineligibility (i.e., permanent versus
make available federal money to states that pursue firearms
temporary), and whether certain grounds for ineligibility
measures beyond the reach of the federal statute. There may
should be adjudicated by a court before the restriction may
be federalism limitations, however, upon Congress’s ability
attach.
to compel or coerce state firearms activity.
For example, proposals have been offered to amend the
GCA’s restriction on the receipt or possession of firearms
Constitutional rights guaranteed to individuals are also
by persons “adjudicated as a mental defective” to specify
relevant. In District of Columbia v. Heller, 554 U.S. 570
whether it may attach to persons whose mental health has
(2008), the Supreme Court ruled that the Second
not been adjudicated by a court. Additionally, some “red
Amendment preserves an individual right to possess a
flag” proposals seek to authorize the temporary removal of
firearm and use it for traditionally lawful purposes, such as
firearms from persons believed to be a danger to themselves
self-defense in the home. However, the Court’s opinion did
or others or to promote state enactment of such laws. The
not disturb what it described as longstanding,
“presumptively lawful” firearms prohibitions
extent to which certain mental health information may be
. Still,
made available in background checks has also received
congressional proposals to expand federal firearms
attention. The 115th Congress, for instance, invalidated a
restrictions must consider implications of the Second
2016 Social Security Administration final rule, under which
Amendment. Other constitutional considerations, such as
the agency would submit to NICS information about
those involving due process principles, may also be relevant
mentally impaired Social Security recipients whose benefits
to measures affecting individuals’ eligibility to acquire and
require management by a third party (P.L. 115-8).
possess firearms.
Sarah Herman Peck, Legislative Attorney
Other recurring proposals address persons suspected of
William J. Krouse, Specialist in Domestic Security and
terrorist ties who have not been charged with or convicted
Crime Policy
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U.S. Gun Policy: Framework and Major Issues
IF11038
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