U.S. Gun Policy: Framework and Major Issues

U.S. Gun Policy: Framework and Major Issues

Updated May 27, 2022
U.S. Gun Policy: Framework and Major Issues
Federal firearms regulation has been a subject of continuous
licensees (FFLs) must conduct background checks of non-
interest for legislators. In recent Congresses, a range of
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 firearms within their states of
in state treatment of persons authorized to carry firearms by
residence, except for long guns sold face-to-face by an FFL
other states. 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 mental
Federal Statutory Framework
institutions, 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 handguns.
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
activated the National Instant Criminal Background Checks
of 1934 (NFA, 26 U.S.C. Chapter 53) and the Gun Control
System (NICS) in 1998. NICS is a computer “system of
Act of 1968 (GCA, 18 U.S.C. Chapter 44), as amended.
systems” that queries federal, state, local, tribal, and
The Department of Justice’s Bureau of Alcohol, Tobacco,
territorial records that could indicate that a prospective
Firearms and Explosives (ATF) is the principal agency
customer is ineligible to receive a firearm. FFLs must use
charged with 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 NFA
Act of 2018 (P.L. 115-141) sought to strengthen federal
generally limits the availability of covered weapons,
reporting requirements and encourage states to make certain
including short-barreled shotguns and rifles, fully automatic
records—particularly related to domestic violence and
“machineguns,” silencers, “destructive devices,” and a
mental incompetency—accessible to NICS. More than 330
catchall category covering “any other weapon” that is
million background check transactions have been processed
“capable of being concealed on the person from which a
through NICS from December 1998 through the end of
shot can be discharged through the energy of an explosive.”
2019.
NFA-covered firearms and their owners must be registered
with the Attorney General at any point a firearm changes
Selected Firearm Policy Issues
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 GCA supplemented the NFA and significantly
purporting to narrow or expand requirements on the sale,
expanded the scope of federal firearms regulation. The
possession, or transfer of firearms and accessories.
GCA principally sets forth various requirements concerning
the sale, purchase, and possession of firearms. For instance,
Background Checks
persons “engaged in the business” of manufacturing,
Some have viewed non-FFLs’ ability to engage in firearms
importing, or selling GCA- or NFA-covered firearms must
transfers, without being required to adhere to the GCA’s
receive federal licenses from the Attorney General. But a
recordkeeping and background check requirements, as a
license is not required for those who make only
“loophole” in the law. Opponents contend that expanding
“occasional” firearm sales or purchases for the
background checks would be costly, cumbersome, and
enhancement of personal collections or as a hobby or who
ineffective. Proposals to expand background checks vary in
sell all or part of a personal collection. Federal firearms
comprehensiveness, from covering sales by non-FFLs
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U.S. Gun Policy: Framework and Major Issues
arranged at gun shows to “universal” requirements
Other recurring proposals address persons suspected of
applicable to nearly all private-party firearms transfers.
terrorist ties who have not been charged with or convicted
of criminal offenses. Federal law currently does not render
Concealed Carry
persons ineligible to receive or purchase firearms based
Firearms regulations vary considerably from state to state,
solely on suspected activities (though as an investigative
and activities lawful in one jurisdiction may be barred in
tool, prospective firearms purchasers are screened against a
another. Recent Congresses have considered proposals
subset of the Terrorist Screening Database during a NICS
addressing state laws governing when someone may carry a
check). Proposals have been considered, for example, to
firearm in a concealed manner in public. These proposals
grant the Attorney General the power to deny a firearm
generally provide that if a state allows residents to carry
transfer to a suspected terrorist.
concealed weapons in some circumstances, the state must
honor the concealed-carry privilege given by other states.
Finally, in recent years, ATF has finalized regulations that,
Proponents argue that reciprocity is warranted to reconcile
among other things, (1) interpret existing restrictions that
the complicated array of state concealed-carry laws that
bar the possession of automatic weapons to cover “bump
may make it difficult for lawful gun owners to know where
fire” or “bump stock” accessories and (2) seek to facilitate
they may carry concealed handguns outside of the states in
the traceability of so-called “ghost guns” that lack serial
which they hold concealed-carry licenses. Opponents claim
numbers or other identifying markings. Another proposed
that such proposals pose a risk to public safety and raise
regulation would also provide guidance on when certain
federalism concerns.
handguns with stabilizing braces are subject to NFA
requirements. Some proposals have sought to codify or
Deterring “Straw Purchases”
limit parts of these proposals and rules. Other proposals
Under the GCA, whenever an unlicensed person seeks to
have sought to restrict other firearms such as 3D-printed
acquire a firearm from an FFL, both the FFL and
guns and firearms characterized as “assault weapons.” Still
prospective purchaser must truthfully fill out and sign a
others have sought to ease federal restrictions on silencers.
form verifying the purchaser’s identity. The purchaser also
attests under criminal penalty that he or she is not a
Constitutional Considerations
prohibited person and is the “actual buyer.” Some proposals
seek to deter “straw purchases”—
Congress has broad, but not unlimited, constitutional
firearm purchases made
authority to regulate firearms. While some federal firearm
on behalf of a prohibited person—by heightening
laws find constitutional support in Congress’s taxing power,
applicable criminal penalties or expanding their reach.
most federal firearm laws derive from the Commerce
Opponents contend, among other things, that existing laws
Clause. Congress’s authority over interstate commerce
are adequate and, in some instances, have expressed
confers it with wide latitude to regulate the interstate sale of
concern regarding the requisite mental state for criminal
firearms. Moreover, the Supreme Court, most notably in
liability to attach.
United States v. Lopez, 514 U.S. 549 (1994), has recognized
Modifying Ineligibility Rules and Restrictions on
that the Commerce Clause permits Congress to regulate
Types of Firearms and Accessories
firearms activity occurring wholly within a state when that
activity has, in the aggregate, “substantial economic effect”
Recurring proposals to modify the laws governing firearms
on interstate commerce. Still, Lopez recognized that the
eligibility often turn on questions regarding the scope of
Commerce Clause does not authorize federal regulation of
current restrictions (i.e., narrowed versus expanded), the
all wholly intrastate firearms activity, opining, for example,
temporal nature of ineligibility (i.e., permanent versus
that a general federal interest in reducing localized gun
temporary), and whether certain grounds for ineligibility
violence does not have a sufficient commercial nexus to
should be adjudicated by a court before the restriction may
satisfy Commerce Clause requirements. Alternatively,
attach.
Congress could use its spending powers to condition or
make available federal money to states that pursue firearms
For example, proposals have been offered to amend the
GCA’s restricti
measures beyond the reach of the federal statute. There may
on on the receipt or possession of firearms
by persons “adjudicated as a mental defective”
be federalism limitations, however, upon Congress’s ability
to specify
to compel or coerce state firearms activity.
whether it may attach to a person whose mental health has
not been adjudicated by a court. Additionally, some “red
Constitutional rights guaranteed to individuals are also
flag” proposals seek to authorize the temporary removal of
relevant. In District of Columbia v. Heller, 554 U.S. 570
firearms from persons believed to be dangerous to
(2008), the Supreme Court ruled that the Second
themselves or others or to promote state enactment of such
Amendment preserves an individual right to possess a
laws. Other proposals have focused on the GCA’s
firearm and use it for traditionally lawful purposes, such as
restrictions on firearm receipt and possession by persons
self-defense in the home. However, the Court’s opinion did
convicted of misdemeanor crimes of domestic violence or
not disturb what it described as longstanding,
subject to protective orders for the benefit of an “intimate
“presumptively lawful” firearms prohibitions. Still,
partner.” For instance, some proposals would seek to
congressional proposals to expand federal firearms
encompass crimes and orders related to persons in more
restrictions must consider implications of the Second
casual dating relationships and include a new category for
Amendment. Other constitutional considerations, such as
misdemeanor stalking convictions.
those involving due process principles, may also be relevant
to measures affecting individuals’ eligibility to acquire and
possess firearms.
https://crsreports.congress.gov

U.S. Gun Policy: Framework and Major Issues

William J. Krouse, Specialist in Domestic Security and
Crime Policy
Michael A. Foster, Legislative Attorney
IF11038

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https://crsreports.congress.gov | IF11038 · VERSION 6 · UPDATED