Order Code IB10071
Issue Brief for Congress
Received through the CRS Web
Gun Control Legislation in the 107th Congress
Updated October 3, 2002
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Number of Guns
Gun Violence and Youth
Suicides, Accidents, and Other Deaths
Federal Regulation of Firearms
Federal Regulation of Firearm Transfers
Brady Act Implementation
Federal Firearm Prosecutions
Major Federal Firearm Statutes
Possible Issues for the 107th Congress
Background Check Record Retention and Fees
Federal and State Background Check Records
Gun Control Legislation in the 107th Congress
Congress continues to debate the efficacy
and constitutionality of federal regulation of
firearms and ammunition. Various federal
laws have been enacted since 1934 to promote
such regulation. Gun control advocates argue
that they curb access by criminals, juveniles,
and other “high-risk” individuals. They
contend that only federal measures can successfully reduce the availability of guns.
Some seek broad policy changes such as
near-prohibition of non-police handgun ownership or the registration of all firearm owners
or firearms. They assert that there is no constitutional barrier to such measures and no
significant social costs. Others advocate less
comprehensive policies that they maintain
would not impede ownership and legitimate
firearm transfers. Opposition to federal controls is strong. Gun control opponents deny
that federal policies keep firearms out of the
hands of high-risk persons; rather, they argue,
controls often create burdens for law- abiding
citizens and infringe upon constitutional rights
provided by the Second Amendment. Some
argue further that widespread gun ownership
is one of the best deterrents to crime as well as
to potential tyranny, whether by gangs or by
government. They may also criticize the
notion of enhancing federal, as opposed to
state, police powers. The two most significant
federal statutes controlling firearms in the
civilian population are the National Firearms
Act of 1934 and the Gun Control Act of
1968. The 1934 Act established strict registration requirements and a transfer tax on
machine guns and short-barreled long guns.
The 1968 Act prohibits mail-order sales and
the interstate sales of firearms, prohibits
transfers to minors, limits access to “new”
Congressional Research Service
assault weapons, and sets forth penalties and
licensing requirements for manufacturers,
importers, and dealers. Crime and mortality
statistics are often used in the gun control
debate. The number of homicides committed
annually with a firearm by persons in the 14to 24-year-old age group increased by 173%
from 1985 to 1993, and then decreased by
47% from 1993 to 1999. Firearm fatalities
from all causes and for all age groups
decreased by 22%. For juveniles, they decreased by 40%, from 1993 to 1998. The
106th Congress considered several measures to
regulate firearms. They included 1) requiring
background checks at gun shows, 2) requiring
firearm safety locks, and 3) increasing controls on assault weapons and handguns. None,
however, were enacted. Several dozen gun
control-related proposals have been introduced in the 107th Congress. One measure has
been approved by committee: this bill (H.R.
4757) would require that a greater number of
federal and state records that are pertinent to
determining firearms transfer and possession
eligibility be made accessible through the
National Criminal Instant Background Check
System (NICS). NICS performance emerged
as an issue during consideration of proposals
that would require background checks for
firearm transfers by nonlicensed persons at
gun shows. Such proposals were considered
in the 106th Congress but have not been reconsidered in the 107th Congress to date. A discharge petition on another measure was narrowly defeated by the House: this bill (H.R.
218) would exempt certain qualified current
and former law enforcement officers from
state laws prohibiting concealed carry of
˜ The Library of Congress
MOST RECENT DEVELOPMENTS
Several dozen gun control-related proposals have been introduced in the 107th
Congress. One of these measures has been approved by committee: this bill (H.R. 4757)
would require that a greater number of federal and state records that are pertinent to
determining firearms transfer and possession eligibility be made accessible through the
National Criminal Instant Background Check System (NICS). NICS performance and
robustness emerged as an issue during consideration of proposals that would require
background checks for firearm transfers by nonlicensed persons at gun shows. Such
proposals were considered in the 106th Congress but have not been reconsidered in the 107th
Congress to date. In addition, a discharge petition on another measure was narrowly
defeated by the House: this bill (H.R. 218) would exempt certain qualified current and
former law enforcement officers from state laws prohibiting concealed carry of firearms.
BACKGROUND AND ANALYSIS
Through the years, legislative proposals to restrict the availability of firearms to the
public have raised the following questions: What restrictions on firearms are permissible
under the Constitution? Does gun control constitute crime control? Can the nation’s rates
of homicide, robbery, and assault be reduced by the stricter regulation of firearm commerce
or ownership? Would restrictions stop attacks on public figures or thwart deranged persons
and terrorists? Would household, street corner, and schoolyard disputes be less lethal if
firearms were more difficult and expensive to acquire? Would more restrictive gun control
policies have the unintended effect of impairing citizens’ means of self-defense?
In recent years, proponents of gun control legislation have often held that only federal
laws can be effective in the United States. Otherwise, they say, states with few restrictions
will continue to be sources of guns that flow illegally into restrictive states. They believe
that the Second Amendment to the Constitution, which states that “A well regulated Militia,
being necessary to the security of a free State, the right of the people to keep and bear Arms
shall not be infringed,” (1) is obsolete; or (2) is intended solely to guard against suppression
of state militias by the central government and therefore restricted in scope by that intent; or
(3) does not guarantee a right that is absolute, but one that can be limited by reasonable
requirements. They ask why a private citizen needs any firearm that is not designed
primarily for hunting or other recognized sporting purposes.
Proponents of firearm restrictions have advocated policy changes on specific types of
firearms or components that appear to be useful primarily for criminal purposes or that pose
unusual risks to the public. Fully automatic firearms (i.e., machine guns) and short-barreled
rifles and shotguns have been subject to strict regulation since 1934. Fully automatic
firearms have been banned from private possession since 1986, except for those legally
owned and registered with the Secretary of the Treasury on May 19, 1986. More recently,
“Saturday night specials” (loosely defined as inexpensive, small handguns), “assault
weapons,” ammunition feeding devices with capacities for more than seven rounds, and
certain ammunition have been the focus of control efforts.
Opponents of gun control vary in their positions with respect to specific forms of
control but generally hold that gun control laws do not accomplish what is intended. They
argue that it is as difficult to keep weapons from being acquired by “high risk” individuals,
even under federal laws and enforcement, as it was to stop the sale and use of liquor during
Prohibition. In their view, a more stringent federal firearm regulatory system would only
create problems for law-abiding citizens, bring mounting frustration and escalation of bans
by gun regulators, and possibly threaten citizens’ civil rights or safety. Some argue that the
low violent crime rates of other countries have nothing to do with gun control, maintaining
instead that multiple cultural differences are responsible.
Gun control opponents also reject the assumption that the only legitimate purpose of
ownership by a private citizen is recreational (i.e., hunting and target-shooting). They insist
on the continuing need of people for effective means to defend person and property, and they
point to studies that they believe show that gun possession lowers the incidence of crime.
They say that the law enforcement and criminal justice system in the United States has not
demonstrated the ability to furnish an adequate measure of public safety. Some opponents
believe further that the Second Amendment includes a right to keep arms as a defense against
potential government tyranny, pointing to examples in other countries of the use of firearm
restrictions to curb dissent and secure illegitimate government power.
The debate has been intense. To gun control advocates, the opposition is out of touch
with the times, misinterprets the Second Amendment, or is lacking in concern for the
problems of crime and violence. To gun control opponents, advocates are naive in their faith
in the power of regulation to solve social problems, bent on disarming the American citizen
for ideological or social reasons, or moved by irrational hostility to firearms and gun
Number of Guns. The National Institute of Justice (NIJ) reported in a national
survey that in 1994, 44 million people, approximately 35% of households, owned 192
million firearms, 65 million of which were handguns. Seventy-four percent of those
individuals were reported to own more than one firearm. The Bureau of Alcohol, Tobacco,
and Firearms (ATF) estimates that as of the end of 1996, approximately 242 million firearms
were available for sale to or were possessed by civilians in the United States. That total
includes roughly 72 million handguns (mostly pistols, revolvers, and derringers), 76 million
rifles, and 64 million shotguns.
Most guns available for sale are produced domestically. In recent years, one to two
million handguns were manufactured each year, along with one million rifles and less than
one million shotguns. Annual imports are considerably fewer — from 200,000 to 400,000
handguns, 200,000 rifles, and 100,000 to 200,000 shotguns. Retail prices of guns vary
widely, from $50 or less for inexpensive, low-caliber handguns to more than $1,500 for
high-quality rifles or shotguns. Data are not available on the number of “assault weapons”
in private possession or available for sale, but estimates prepared in 1989 by a firearms
expert associated with the Smithsonian Institution placed the number of such firearms at that
time in the range of one to four million, less than 3% of the number of guns estimated to
exist in the civilian market.
Criminal Use. Reports submitted by state and local law enforcement agencies to the
Federal Bureau of Investigation (FBI) and published annually in the Uniform Crime Reports
indicate that both the crime rate and the violent crime rate have declined since 1981. Of the
homicides in which the type of weapon could be identified, from 60% to almost 70% have
involved firearms each year. The number of homicides and the proportion involving firearms
have declined in recent years. In 2000 of the 12,943 homicides reported, 66% (8,493) were
committed with firearms. Of those committed with firearms, 79% (6,686) involved
handguns. From 1993 to1999, the number of firearm-related homicides decreased by an
average rate of nearly 11% annually, for an overall decrease of 49%. In 2000, firearm-related
homicides increased slightly (by 13 homicides) to 8,493.
The other principal source of national crime data is the National Crime Victimization
Survey (NCVS) conducted by the Bureau of the Census and published by the Bureau of
Justice Statistics. The NCVS database provides some information on the weapons used by
offenders, based on victims’ reports. Based on data provided by survey respondents in
calendar year 1999, BJS estimated that, nationwide, there were 6.3 million violent crimes
(rape or sexual assault, robbery, aggravated assault, and simple assault). Weapons were used
in about 1.6 million of these criminal incidents. Firearms were used by offenders in about
533,000 of these incidents, or roughly 8%. For further information, see Criminal
Victimization 2000: Changes 1999-2000 with Trends 1993-2000, by Callie Marie Rennison
Gun Violence and Youth. Youth crime statistics have often been used in the gun
control debate. The number of homicides committed annually with a firearm by persons in
the 14- to 24-year-old age group increased sharply from 1985 to 1993; they have declined
since then, but not to the 1985 level. According to the Bureau of Justice Statistics, from
1985 to 1993, the number of firearm-related homicides committed by 14- to 17-year-olds
increased by 294%, from 855 to 3,371. From 1993 to 1999, the number of firearm-related
homicides committed by persons in this age group decreased by 65%, from 3,371 to 1,165.
From 1985 to 1993, firearm-related homicides committed by 18- to 24-year-olds
increased by 142%, from 3,374 to 8,171. From 1993 to 1999, firearm-related homicides
committed by persons in this age group decreased by 43%, from 8,717 to 4,973. For further
information, see Homicide Trends in the United States, by James Alan Fox, at
Although gun-related violence in schools is statistically a rare event, a Department of
Justice survey indicated that 12.7% of students age 12 to 19 reported knowing a student who
brought a firearm to school. For further information, see CRS Report RL30482, The Safe
and Drug-Free Schools and Communities Program: Background and Context, by Edith
Suicides, Accidents, and Other Deaths. Firearm fatalities have decreased
continuously since 1993. The source of national data on firearm deaths is the publication
Vital Statistics, published each year by the National Center for Health Statistics. Firearm
deaths reported by coroners in each state are presented in four categories: homicides and
legal intervention, suicides, accidents, and unknown circumstances. In 1999, a total of
28,874 firearm deaths occurred, according to such reports. Of this total, 11,127 were
homicides or due to legal intervention; 16,599 were suicides; 824 were unintentional
(accidental) shootings; and 324 were of unknown cause. From 1993 to 1998, firearm-related
deaths decreased by an average rate of 5% annually, for an overall decrease of 27%. Also
in 1999, there were 1,776 juvenile (under 18 years of age) deaths attributed to firearms. Of
the juvenile total, 1,010 were homicides or due to legal intervention; 558 were suicides; 158
were unintentional; and 50 were of unknown cause. From 1993 to 1999, firearm-related
deaths for juveniles have decreased by an average rate of 10% annually, for an overall
decrease of 46%.
Self-defense. According to the Bureau of Justice Statistics, NCVS data from 1987
to 1992 indicate that in each of those years, roughly 62,200 victims of violent crime (1% of
all victims of such crimes) used guns to defend themselves. Another 20,000 persons each
year used guns to protect property. Persons in the business of self-protection (police officers,
armed security guards) may have been included in the survey. Another source of information
on the use of firearms for self-defense is the “National Self Defense Survey” conducted by
criminology professor Gary Kleck of Florida State University in the spring of 1993. Citing
responses from 4,978 households, Dr. Kleck estimated that handguns have been used 2.1
million times per year for self-defense, and that all types of guns have been used
approximately 2.5 million times a year for that purpose, during the 1988-1993 period.
Why do these numbers vary? Law enforcement agencies do not collect information on
the number of times civilians use firearms to defend themselves or their property against
attack. Such data have been collected in household surveys. The contradictory nature of the
available statistics may be partially explained by methodological factors. That is, these and
other criminal justice statistics reflect what is reported to have occurred, not necessarily the
actual number of times certain events occur. Victims and offenders are sometimes reluctant
to be candid with researchers. So, the number of criminal incidents can only be estimated,
making it difficult to state with certainty the accuracy of statistics such as the number of
times firearms are used in self-defense. For this and other reasons, criminal justice statistics
often vary when different methodologies are applied.
Survey research can be limited, since it is difficult to produce statistically significant
findings from small incident populations. For example, the sample in the National SelfDefense Survey might have been too small, given the low incidence rate and the inherent
limitations of survey research.
Recreation. According to the National Institute of Justice (NIJ), in 1994 recreation
was the most common motivation for owning a firearm. There were approximately 15
million hunters, about 35% of gun owners, in the United States and about the same number
and percentage of gun owners engaged in sport shooting in 1994. The U.S. Fish and Wildlife
Service reported that 31.6 million persons purchased hunting licenses or permits in 1993 and,
according to the National Sporting Goods Association, in that year approximately 18.5
million persons took part in firearms sporting activities.
Federal Regulation of Firearms
As stated in the Gun Control Act of 1968, as amended (P.L. 90-618; Title 18, United
States Code, Chapter 44), the purpose of federal firearm regulation is to assist federal, state,
and local law enforcement in the ongoing effort to reduce crime and violence. In the same
act, however, Congress also stated that the intent of the law is not to place any undue or
unnecessary burdens on law-abiding citizens in regard to the lawful acquisition, possession,
or use of firearms for hunting, trapshooting, target shooting, personal protection, or any other
Indeed, issues related to federal firearm regulation currently under debate generally
revolve around the following questions. One, who should be ineligible to possess firearms?
Two, what types of firearms are appropriate for statutorily enumerated lawful firearm
activities? Three, when, where, and how is it appropriate to check persons seeking to acquire
a firearm for possession eligibility?
Federal Regulation of Firearm Transfers. Under current law, federal firearm
licensees (hereafter referred to as licensees) may ship, transport, and receive firearms that
have moved in interstate and foreign commerce. Licensees are currently required to verify
with the Federal Bureau of Investigation (FBI) through a background check that nonlicensed
persons are eligible to possess a firearm before subsequently transferring a firearm to them.
Licensees must also verify the identity of nonlicensed transferees by inspecting a
government-issued identity document, e.g., a driver’s license.
Under current law, there are 9 classes of persons prohibited from possessing firearms:
1) persons convicted in any court of a crime punishable by imprisonment for a term
exceeding 1 year; 2) fugitives from justice; 3) drug users, or addicts; 4) persons adjudicated
mental defectives, or committed to mental institutions; 5) unauthorized immigrants; 6)
persons dishonorably discharged from the Armed Forces; 7) U.S. citizenship renunciates; 8)
persons under court-order restraints related to harassing, stalking, or threatening an intimate
partner or child of such intimate partner; and 9) persons convicted of misdemeanor domestic
violence (18 U.S.C. § 922(g)).
Licensees may engage in interstate transfers of firearms between themselves without
conducting background checks. While they may transfer long guns (rifles or shotguns) to
out-of-state residents, as long as there are in-person meetings and such transfers would not
knowingly be in violation of the laws of the state in which the nonlicensed transferees reside,
they may not transfer handguns to unlicensed out-of-state residents. Transfer of handguns
by licensees to anyone under 21-years-of-age is prohibited, as is the transfer of long guns to
anyone under 18-years-of-age (18 U.S.C. § 922(b)). Also, licensees are required to submit
a “multiple sales reports” to the Secretary of the Treasury if any person purchases two or
more handguns within 5 business days.
Furthermore, licensees are required to maintain records on all acquisitions and
dispositions of firearms. They are obligated to respond to Bureau of Alcohol, Tobacco and
Firearms (ATF) agents requesting firearm tracing information within 24 hours. Under
certain circumstances, ATF agents may inspect, without search warrants, their business
premises, inventory, and records.
On the other hand, nonlicensees are prohibited from acquiring firearms from out-ofstate sources (except for long guns acquired from licensees under the scenario described
above). Nonlicensees are also prohibited from transferring firearms to any persons who they
have reasonable cause to believe are not residents of the state in which the transaction occurs.
In addition, since 1986, it has been a federal offense for nonlicensees to knowingly transfer
a firearm to prohibited persons. It is also notable that firearm transfers initiated through the
Internet are subject to the same federal laws as transfers initiated in any other manner. (For
further information, see CRS Report RS20957, Internet Firearm Sales, by T.J. Halstead.)
Finally, since 1994, it has been a federal offense for any nonlicensed person to transfer
a handgun to anyone under 18-years-of-age. It has also been illegal for anyone under the
under 18 years-of-age to possess a handgun (there are exceptions to this law related to
employment, ranching, farming, target practice, and hunting) (18 U.S.C. § 922(x)).
Brady Act Implementation. According to the Bureau of Justice Statistics, since the
implementation of the Brady Act on February 29, 1994, through calender year (CY) 2000,
nearly 30 million firearm background checks were completed, resulting in 689,000 denials
(an overall 2.3% denial rate). During the interim period of the Brady Act (phase I), from
February 1994 through November 1998, there was a waiting period of up to 5 days for
handgun transfers in states without instant check systems. Nearly 13 million firearm
background checks were completed, resulting in 312,000 denials.
Phase II and the permanent provisions of the Brady Act became effective on November
30, 1998. As part of phase II, the Federal Bureau of Investigation rolled out the National
Instant Criminal Background Check System (NICS). Through NICS, and under the
permanent Brady provisions, background checks are conducted of applicants for both hand
and long gun transfers. In 26 states, state agencies serve as points of contact (POCs) and
conduct background checks for handgun transfers. In 16 states, state agencies serve as POCs
and conduct background checks for both long gun and handgun transfers. In POC states,
federal firearm licensees contact the state agency, and the state agency contacts the FBI. In
non-POC states, federal firearm licensees contact the FBI directly through the NICS system.
During the first 25 months of NICS operation (through December 31, 2000), the FBI
completed over 17 million background checks for firearm transfer applications. Of this
number, 639,000 background checks resulted in firearm transfers being denied. Roughly half
of these background checks were submitted by federal firearm licensees, and the other half
by state agencies (POCs). The overall number of firearm transfer applications and required
background checks declined by 11% from 8.6 million in CY1999 to 7.7 million in CY2000.
Of total checks in FY2000, 2.0% (153,000) resulted in denials. Over 59% of denials
occurred because the applicant was a felon or was under felony indictment, as compared to
72% in FY1999. The next most common reason for denial, about 12% of cases in FY2000,
was a domestic violence misdemeanor conviction or restraining order. For further
information on phase II, see Background Checks for Firearm Transfers, 2000 (Washington,
July 2001), at [http://www.ojp.usdoj.gov/bjs/abstract/bcft00.htm].
According to GAO, about 75% of the NICS checks handled by the FBI resulted in
immediate determinations of eligibility. Of the remaining 25% that resulted in a nondefinitive response, neither a “proceed” nor a denial, 80% were turned around within 2 hours.
The remaining 20% of delayed transactions took hours or days for the FBI NICS examiners
to reach a final determination. In many cases these sales were delayed because there was an
outstanding charge without a final disposition against the person seeking to purchase the
firearm. Such cases necessitate that the FBI examiners contact local or state authorities for
additional information. Under current law, the FBI is authorized to delay the sale for 3
business days in order to determine the outcome of the charge and, thus, establish the
eligibility of the transferee to possess a firearm.
NICS system availability -- how regularly the system can be accessed during business
hours and not delay legitimate firearm transfers -- has also been a source of complaint. GAO
found, however, that in the first year of NICS operation, the FBI had achieved its system
availability goal of 98% for 4 months. System availability for the remaining 8 months
averaged 95.4%. For further information, see GAO Report GGD/AIMD-00-64, Gun
Control: Implementation of the National Instant Criminal Background Check System
(Washington, February 2000).
For state agencies, background checks may not be as expeditious. Background checks
through state agencies, however, may be more thorough, since state agencies may have
greater access to databases and records that are not available through NICS. For further
information, see National Instant Criminal Background Check System (NICS): Operations
Report (November 30 1998 - December 31, 1999) (Washington, revised August 1, 1999), at
[http://www.fbi.gov/hq/cjisd/nics/index.htm], click on “NICS One Year Report.”
Federal Firearm Prosecutions. Regarding enforcement of the Brady Act, from
November 1998 through June 2000, the FBI referred 134,522 Brady-related cases to the
ATF, and 37,926 of these cases were referred to ATF field offices for investigation.
According to ATF, in FY2000 there were 1,485 defendants charged with firearm-related
violations as a result of NICS checks under Brady. Of these defendants, 1,157 were charged
with providing falsified information to federal firearm licensees (18 U.S.C. § 922(a)(6)),
another 86 were persons ineligible to posses firearms under the domestic violence gun ban
(18 U.S.C. §§ 922(g)(8) and (9)), and 136 were convicted felons (18 U.S.C. § 922(g)(1)).
According to the Bureau of Justice Statistics, however, federal firearm prosecutions
decreased by 19% from 1992 to 1996, they leveled off through 1997, and increased in 1998
and 1999. The decline in federal prosecutions can be attributed in part to a Supreme Court
decision (Bailey v. United States (516 U.S. 137, 116 S.Ct. 501)) that limited the use of the
charge of using a firearm during a violent or drug-related offense (18 United States Code, §
924(c)). See Federal Firearm Offenders, 1992-98 (with Preliminary Data for 1999)
(Washington, June 2000), at [http://www.ojp.usdoj.gov/bjs/pub/pdf/ffo98.pdf].
Major Federal Firearm Statutes. Two major federal statutes regulate the
commerce in firearms, or their ownership: the National Firearms Act of 1934 (26 U.S.C. §
5801 et seq.) and the Gun Control Act of 1968, as amended (18 U.S.C. Ch. 44, § 921 et seq.).
The National Firearms Act was originally designed to make it difficult to obtain types
of firearms perceived to be especially lethal or to be the chosen weapons of “gangsters,” most
notably machine guns and short-barreled long guns. This law also regulates firearms, other
than pistols or revolvers, that can be concealed on a person (e.g., pen, cane, and belt buckle
guns). It taxes all aspects of the manufacture and distribution of such weapons. And, it
compels the disclosure (through registration with the Secretary of the Treasury) of the
production and distribution system from manufacturer to buyer.
The Gun Control Act of 1968, as amended, contains the principal federal restrictions
on domestic commerce in small arms and ammunition. The statute requires all persons
manufacturing, importing, or selling firearms as a business to be federally licensed; prohibits
the interstate mail-order sale of all firearms; prohibits interstate sale of handguns generally,
sets forth categories of persons to whom firearms or ammunition may not be sold (such as
persons under a specified age or with criminal records); authorizes the Secretary of the
Treasury to prohibit the importation of non-sporting firearms; requires that dealers maintain
records of all commercial gun sales; and establishes special penalties for the use of a firearm
in the perpetration of a federal drug trafficking offense or crime of violence. Transactions
between persons “not engaged in the business” are not covered by the Act. These
transactions and other matters such as possession, registration, and the issuing of licenses to
the owners of firearms maybe covered by state laws or local ordinances. It also prohibits
federal firearm licensees from selling or delivering a rifle or shotgun to a person under 18
years of age, or a handgun to a person under 21 years of age.
Supplementing federal law, many state firearm laws are stricter than federal law. For
example, some states require permits to obtain firearms and impose a waiting period for
firearm transfers. Other states are less restrictive, but state law cannot preempt federal law.
Federal law serves as the minimum standard in the United States.
The following principal changes have been enacted to the Gun Control Act since 1968.
The “Firearms Owners Protection Act,” McClure-Volkmer Amendments
(P.L. 99-308, 1986) eases certain interstate transfer and shipment
requirements for long guns, defines the term “engaged in the business,”
eliminates some record-keeping requirements, and bans the private
possession of machine guns not legally owned prior to 1986.
The “Armor Piercing Ammunition” Ban (P.L. 99-408, 1986, amended in
P.L. 103-322, 1994) prohibits the manufacture, importation and delivery of
handgun ammunition composed of certain metal substances and certain fulljacketed ammunition.
The Federal Energy Management Improvement Act of 1988 (P.L. 100-615)
requires that all toys or firearm look-alikes have a blazed orange plug in the
barrel, denoting that it is a non-lethal imitation.
The Undetectable Firearms Act (P.L. 100-649, 1988), also known as the
“plastic gun” legislation, bans the manufacture, import, possession, and
transfer of firearms not detectable by security devices.
The Gun-Free School Zone Act of 1990 (P.L. 101-647), as originally
enacted, was ruled unconstitutional by the U.S. Supreme Court (United
States v. Lopez, 514 U.S. 549 (1995), April 26, 1995). The Act prohibited
possession of a firearm in a school zone (on the campus of a public or
private school or within 1,000 feet of the grounds). In response to the
Court’s finding that the Act exceeded Congress’s authority to regulate
commerce, the 104th Congress included a provision in P.L. 104-208 that
amended the Act to require federal prosecutors to include evidence that the
firearms “moved in” or affected interstate commerce.
The Brady Handgun Violence Prevention Act, 1993 (P.L. 103-159) requires
that background checks be completed on all nonlicensed person seeking to
obtain firearms from federal firearm licensees.
The Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103-322)
prohibits the manufacture or importation of semiautomatic assault weapons
and large capacity ammunition feeding devices (for a 10-year period). In the
case of large capacity ammunition feeding devices, the ban on importation
applies to those devices manufactured after September 1994. This Act
provides an exception for the transfer, sale, or possession of semiautomatic
assault weapons and large capacity ammunition feeding devices lawfully
possessed on the date of enactment. This Act also bans the sale or transfer
of handguns and handgun ammunition to, or possession of handguns and
handgun ammunition by, juveniles (under 18 years of age) without prior
written consent from the juvenile’s parent or legal guardian; exceptions
related to employment, ranching, farming, target practice, and hunting are
provided. In addition, the Act disqualifies persons under court orders related
to domestic abuse from receiving a firearm from any person or possessing a
firearm. It also enhances penalties for the criminal use of firearms and makes
other changes to existing law.
Federal Domestic Violence Gun Ban (the Lautenberg Amendment, in the
Omnibus Consolidated Appropriations Act for FY1997, P.L. 104-208)
prohibits persons convicted of misdemeanor crimes of domestic violence
from possessing firearms and ammunition. The ban applies regardless of
when the offense was adjudicated: prior to, or following enactment. It has
been challenged in the federal courts, but these challenges have been
defeated. (See CRS Report RL31143, Firearms Prohibitions and Domestic
Violence Convictions: The Lautenberg Amendment, by T.J. Halstead.)
The Omnibus Consolidated and Emergency Appropriations Act, 1999 (P.L.
105-277), requires all federal firearm licensees to offer for sale gun storage
and safety devices. It also bans firearm transfers to, or possession by,
nonimmigrants who have overstayed their the terms of their temporary visa.
The Treasury, Postal and General Government Appropriations Act (P.L. 10658) requires that background checks be conducted when former firearm
owners seek to redeem a firearm that they sold to a pawnshop.
Possible Issues for the 107th Congress
Several dozen gun control-related proposals have been introduced in the 107th Congress.
One of these measures has been approved by committee: this bill (H.R. 4757) would require
that a greater number of federal and state records that are pertinent to determining firearms
transfer and possession eligibility be made accessible through the National Criminal Instant
Background Check System (NICS). NICS performance and robustness emerged as an issue
during consideration of proposals that would require background checks for firearm transfers
by nonlicensed persons at gun shows. Such proposals were considered in the 106th Congress
but have not been reconsidered in the 107th Congress to date. In addition, a discharge petition
on another measure was narrowly defeated by the House: this bill (H.R. 218) would exempt
certain qualified current and former law enforcement officers from state laws prohibiting
concealed carry of firearms.
Gun Shows. Federal law does not regulate gun shows specifically. Federal law
regulating firearms transfers, however, is applicable to such transfers at gun shows. Federal
firearm licensees – those licensed by the federal government to manufacture, import, or deal
in firearms – are required to conduct background checks on non licensed persons seeking to
obtain a firearm from them, by purchase or exchange. Conversely, non licensed persons –
those persons who transfer firearms, but who do not meet the statutory test of being “engaged
in the business” – are not required to conduct such checks. To some, this may appear to be
an incongruity in the law. Why should licensees be required to conduct background checks
at gun shows, and not non licensees? To others, opposed to further federal regulation of
firearms, it may appear to be a continuance of the status quo, i.e., non-interference by the
federal government into private firearm transfers within state lines. On the other hand, those
seeking to increase federal regulation of firearms may view the absence of background checks
for firearm transfers between non licensed/private persons as a loophole in the law that needs
to be closed. At issue for Congress is whether federal regulation of firearms should be
expanded to include private firearm transfers at gun shows and other similar venues.
It is currently unclear what the Bush Administration’s position will be on gun shows and
NICS checks. During the presidential candidate debates, then candidate, now President,
George W. Bush stated that he favored extending background checks to all firearm transfers
at gun shows. More recently, President Bush stated that he supported such checks if they
could be completed within 24 hours. Among gun show-related bills introduced in the 107th
Congress, there are basically two legislative proposals. The first, which passed the Senate in
the 106th Congress, is known by its sponsor in the 106th Congress, former Senator Frank
Lautenberg. Proposals modeled on the Lautenberg language have been included in the
following bills introduced in the 107th Congress: S. 16, S. 767, S. 940, H.R. 1990, and H.R.
4034. The last bill (H.R. 4034) was introduced by the ranking member of the Judiciary
Committee, Representative John Conyers. The second proposal, introduced as S. 890, is
known by its sponsors in the 107th Congress, Senators John McCain and Joseph Lieberman.
This second proposal has also been introduced in the House as H.R. 2377 by Representative
Michael Castle. Both proposals address several questions.
How would the term “gun show” be defined? The Lautenberg proposal
defines a gun show as any event at which 50 or more firearms are offered for
sale or transfer and there are not less than 10 vendors. Instead of gun show,
the McCain/Lieberman proposal uses the term “special firearms event,”
defining it as any event at which 75 or more firearms are offered for sale or
Should gun show promoters/special firearms event operators be required to
register with the Secretary of the Treasury? Both bills would require
promoters/operators to register with the Secretary of the Treasury. Unlike the
Lautenberg proposal, the McCain/Lieberman proposal would also require
frequent operators who organize two or more of these events in a 6-month
period to be licensed, and it would require both frequent and infrequent
operators to submit ledgers of nonlicensed vendors before and after each
event to the Secretary of the Treasury.
Should all firearms transactions at gun shows be conducted by federal firearm
licensees, or should a special licensee be responsible for conducting NICS
checks for nonlicensees? The Lautenberg proposal adopts the former
approach, the McCain/Lieberman, the latter. Also, the McCain/Lieberman
proposal would prohibit special licensees from displaying firearms for sale
or transfer at events where they are designated to conduct background checks
How many days should the FBI be given to complete background checks at
gun shows? The Lautenberg proposal does not address this issue, leaving in
place the current statutory 3 business day delayed sale. In contrast, the
McCain/Lieberman proposal would establish a certification process by which
states could opt for a maximum 24-hour delayed sale, when 95% of the
state’s disqualifying records (criminal and otherwise) going back 30 years are
made available online.
For further information on gun shows, see Gun Shows: Brady Checks and Crime Gun Traces
(Washington: January 1999). See: [http://www.atf.treas.gov/], click on “Publications.”
Project Exile. Both gun control supporters and opponents are likely to call for greater
enforcement of existing federal gun control statutes. Many maintain that “Project Exile” is
a useful model upon which to build increased federal gun prosecutions. An initiative mounted
by the U.S. Attorney for the Eastern District of Virginia, “Project Exile” was a concerted
effort to coordinate federal, state, and local law enforcement efforts to reduce gun violence
in Richmond, Virginia. At that time, Richmond had the second highest homicide rate for
cities with populations of 100,000 or more. Of those homicides, 80% were committed with
a firearm. As part of Project Exile, the U.S. Attorneys reviewed cases that involved felons,
drug users/traffickers, domestic violence and firearms, and these cases were singled out for
prosecution in federal court. A felon caught carrying a firearm while trafficking in drugs was
very likely to be sentenced to 5 years in a federal prison (18 U.S.C. § 924(c)). From 1997 to
1998, the number of homicides in Richmond dropped by 31%, and this decrease has been
attributed to Project Exile. U.S. Attorneys in other major metropolitan areas have adopted this
In the 106th Congress, the House passed the Project Exile: The Safe Streets and
Neighborhoods Act of 2000 (H.R. 4051). This bill would have amended the Violent Crime
Control and Law Enforcement Act of 1994 (P.L. 103-322) to create a program to provide
firearms sentencing incentive grants to encourage states to adopt programs that would be
similar to Project Exile. For similar legislation introduced in the 107th Congress, see H.R.
534, S. 16, and S. 619.
Background Check Record Retention and Fees. Attorney General John
Ashcroft recently announced that National Instant Background Check System (NICS) records
on approved sales would be destroyed after 24 hours retention. He maintains that to keep
these records longer was a violation of federal law. Previously, the Department of Justice
published a rule that would reduce from 6 to 3 months the length of time that the Federal
Bureau of Investigation would retain such information on approved sales (see 64 Fed. Reg.
10263-10265, March 3, 1999). The National Rifle Association (NRA) had challenged the
DOJ rule to retain the records on approved sales for 6 months in federal court. On July 11,
2000, however, the United States Court of Appeals for the District of Columbia, in the case
of NRA v. Reno (No. 99-5270, 216 F. 3d 122; 2000 U.S. App. Lexis 15906), found that
nothing in the Brady Handgun Violence Prevention Act prohibits the temporary retention of
information about lawful firearm transfers.
According to GAO, next-day destruction of records may not adversely affect routine
NICS audits to determine the accuracy of eligibility decisions made by NICS examiners, if
such audits are done on an hourly or daily basis. However, next-day destruction of records
may adversely affect non-routine audits, such as when a law enforcement agency requests
information about a firearm transfer that NICS records show was allowed, but subsequent
information shows that the transferee was ineligible to receive a firearm. For further
information, see GAO Report GAO-02-653, Gun Control: Potential Effects of Next-Day
Destruction of NICS Background Check Records (Washington: July 2002).
In regard to fees, the FY2002 Commerce-Justice-State appropriations act (P.L. 107-77)
includes a provision that prohibits user fees being charged for background checks under the
Brady Handgun Prevention Act.
Federal and State Background Check Records. The House Judiciary Committee
amended and approved a bill to improve the National Instant Background Check System
(NICS) on July 23, 2002. This bill, “Our Lady of Peace Act” (H.R. 4757), was introduced by
Representative Carolyn McCarthy. Among other things, this bill would: (1) amend the Brady
Handgun Violence Prevention Act to require federal agencies to provide, and the Attorney
General to secure, any government records with information relevant to determining the
eligibility of a person to receive a firearm for inclusion in NICS; (2) require states to make
available to the Attorney General certain records that would disqualify persons from acquiring
a firearm, particularly those records that relate to convictions for misdemeanor crimes of
domestic violence and persons adjudicated as mental defective; and (3) authorize
appropriations for grant programs to assist states, courts, and local governments in
establishing or improving such automated record systems.
Concealed Carry. Several bills introduced in the 107th Congress would exempt
certain qualified current and former law enforcement officers from state laws prohibiting
concealed carry of firearms (H.R. 218, H.R. 255, H.R. 382, S. 442, and S. 2480). The most
recent bill (S. 2480) was introduced by Senator Patrick Leahy – the Chair of the Senate
Judiciary Committee, and Senator Orrin Hatch – the committee’s ranking minority member,
at the request of the Fraternal Order of Police. The Senate bill is nearly identical to a measure
(H.R. 218) introduced by Representative Randy Cunningham. A discharge petition on H.R.
218, which would have required House consideration of this bill, was narrowly defeated on
November 13, 2001. Concealed carry of firearms has traditionally been a matter of state law.
In states that allow concealed carry, there are two types of laws: “may issue” and “shall issue.”
States with discretionary, or “may issue,” laws leave the decision to issue or deny permits with
the issuing authority (usually the state police). States with non-discretionary, or “shall issue,”
laws require that permits be issued to applicants who meet certain criteria.