Firearm Laws

Sections within this essay:

Background

The Second Amendment of the Bill of Rights provides: "A well regulated Militia, being necessary to the security of the free State, the right of the people to keep and bear Arms, shall not be infringed." The Supreme Court has historically defined the Second Amendment as giving states the right to maintain a militia separate from a federally controlled army. Courts have consistently held that the state and federal governments may lawfully regulate the sale, transfer, receipt, possession, and use of certain categories of firearms, as well as mandate who may and may not own a gun. As a result, there are numerous federal, state, and local laws in existence today, through which a person must navigate in order to lawfully possess a firearm.

There were relatively few laws passed regarding gun control prior to the twentieth century. In fact, most legislation has been passed in the last fifty years.

• The National Firearms Act of 1934 was passed to hinder machine guns and sawed-off shotguns.
• The Firearms Act of 1938 provided for federal licensing of firearms dealers, regulated firearms transportation across state lines by dealers, outlawed the transportation of stolen guns with the manufacturer's mark eradicated or changed, and outlawed firearms from being carried by fugitives, indicted defendants or convicted felons.
• The National Firearms Act was later amended significantly by the Gun Control Act of 1968, putting more stringent control on licensed sales, buyer requirements, and the importation of sporting guns.
• Prompted by the fear of hijacking, the Undetectable Firearms Act of 1988 banned plastic and other undetectable guns.
• The Crime Act of 1994 banned the sale and possession of 19 assault-type firearms and certain high-capacity ammunition magazines.
• The Gun-Free School Zone Act of 1990 outlawed the knowing possession of firearms in school zones, and made it a crime to carry unloaded firearms within 1,000 feet of the grounds of any public or private school. The law was later held unconstitutional in 1995, in United States vs. Lopez.
• The 1982 assassination attempt on President Ronald Reagan resulted in the Brady Handgun Violence Prevention Act of 1993. The Brady Bill imposed a five-day waiting period before a handgun could be taken home by a buyer. Though the law also mandated that local law enforcement officers conduct background checks on prospective handgun purchasers buying from federally licensed dealers, this part of the law was struck down by the Supreme Court in 1997 in Printz vs. United States as unconstitutional.

Depending on where one lives, a person may only be forbidden to carry a concealed weapon, or may be forbidden to own a handgun at all. People who disobey or are not aware of the laws pertaining to firearms in their local areas and in areas to which they travel may be subject to tough criminal prosecution. It is therefore best to be familiar with the local and national laws before owning a firearm.

Acquisition and Possession of Firearms

Eligibility to Purchase or Own a Firearm

In general, persons who are twenty-one years of age or older can purchase a firearm from a federally licensed dealer licensed to sell within the state. Purchasers of rifles or shotguns must be eighteen years or older and may purchase in any state.

However, the following classes of people are ineligible to possess, receive, ship, or transport firearms or ammunition:

• Those convicted of crimes punishable by imprisonment for over one year, except state misdemeanors punishable by two years or less.
• Fugitives from justice.
• Unlawful users of certain depressant, narcotic, or stimulant drugs.
• Those deemed legally incompetent and those committed to mental institutions.
• Illegal aliens.
• Citizens who have renounced their citizenship.
• Those persons dishonorably discharged from the armed services.
• Persons less than eighteen years of age for the purchase of a shotgun or rifle.
• Persons less than twenty-one years of age for the purchase of a firearm that is other than a shotgun or rifle.
• Persons subject to a court order that restrains such persons from harassing, stalking, or threatening an intimate partner.
• Persons convicted in any court of a misdemeanor crime of domestic violence.

Under limited conditions, exceptions may be granted by the U.S. Secretary of the Treasury, or through a pardon, restoration of rights, or setting aside of a conviction.

Acquiring Firearms

Once a person has made the decision to purchase a gun, a federally licensed dealer will fill out a federal form 4473, which requires identifying and other information about the buyer, and record the make, model, and serial number of the firearm. The licensee initiates a background check on the buyer through the National Instant Criminal Background Check System (NCIS) to determine whether the buyer is not qualified to own a firearm. This NCIS background check may be immediate, or may take up to three business days. Prior to November 30,1998, a five-day waiting period was required.

It is unlawful for an individual to purchase a firearm through mail-order from another state. Only licensed dealers are allowed to purchase firearms across state lines from other licensed dealers.

Provided that all other laws are complied with, a person may temporarily borrow or rent a firearm for lawful sporting purposes throughout the United States.

Antique Firearms

Antique firearms and replicas are exempted from the above restrictions. Antique firearms are any firearms manufactured in or before 1898 (including any firearms with a matchlock, flintlock, percussion cap, or similar type of ignition system). Also, any replica of an antique firearm qualifies if the replica is not de-signed or redesigned for using rimfire or conventional centerfire ammunition; if the replica uses fixed ammunition which is no longer manufactured in the United States and which is not readily available; if the replica is of any muzzle loading rifle, shotgun, or pistol, which is designed to use black powder or a black powder substitute and which cannot use fixed ammunition. (Note: Antiques exemptions vary considerably under state laws).

Prohibited Firearms

The 1994 Omnibus Crime Bill included a provision that prohibited the manufacture and sale to non-military and police, after September 13, 1994, of semi-automatic rifles equipped with detachable magazines and two or more of the following: bayonet lugs, flash suppressors, protruding pistol grips, folding stocks or threaded muzzles. There are similar guidelines on handguns and shotguns. Additionally, the manufacture and sale to non-military or police of"large-capacity" ammunition magazines (holding more than 10 rounds) were also outlawed. "Assault weapons" and "large" magazines manufactured before September 13, 1994, are exempt from the law.

Shipping Firearms

Personally owned rifles and shotguns may be mailed or shipped only to dealers or manufacturers for any lawful purpose, including sale, repair, or customizing. A person may not ship a firearm to another private individual across state lines. Handguns may not be mailed but may be otherwise shipped to dealers or manufacturers for any lawful purpose. Shipping companies must be notified in writing of the contents of any shipments containing firearms or ammunition.

Transporting Firearms in Automobiles

Under federal law, a person is allowed to transport a firearm across state lines from one place where it is legal to possess firearms to another place where it is legal to possess firearms. The firearm must be unloaded and in the trunk of a vehicle. If the vehicle has no trunk the firearm must be unloaded and in a locked container (not the glove compartment or console). This federal law overrides state or local laws.

Many states have laws governing the transportation of firearms. Also, many cities and localities have ordinances restricting their transportation. Travelers must be aware of these laws and comply with the legal requirements in each jurisdiction. There is no uniform state transportation procedure for firearms. Upon reaching one's destination, the state law—or, in some areas, municipal law—will control the ownership, possession, and transportation of the firearms.

It must be stressed that as soon as any firearm—handgun, rifle, or shotgun—is carried on or about the person, or placed in a vehicle where it is readily accessible, state and local firearms laws dealing with carrying come into play. If a person wishes to transport firearms in such a manner, it is advisable to contact the Attorney General's office in each state through which the person may travel; reviewing an NRA State Firearms Law Digest is also recommended to determine whether a permit is needed and how to obtain one. While many states require a permit for this type of carrying, most will not issue such permits to non-residents, and other prohibit such carrying altogether.

Transporting Firearms on Aircraft

Federal law prohibits the carrying of any firearm, concealed or unconcealed, on or about the person or in carry-on baggage while aboard an aircraft. Unloaded firearms not accessible to the passenger while aboard the aircraft are permitted when:

1. The passenger has notified the airline when checking the baggage that the firearm is in the baggage and that it is unloaded.
2. The firearm is carried in a hard-sided container.
3. The baggage in which the firearm is carried is locked and only the passenger checking the baggage retains a key. Moreover, the passenger should remain present during airport screening to provide the key, if necessary, and to lock the case afterward.
4. Ammunition must be securely packed in fiber (such as cardboard), wood or metal boxes or other packaging specifically designed for small amounts of ammunition.

Violations of transportation regulations may result in criminal prosecution and civil penalties up to $10,000 per violation. Because air carriers may impose additional requirements on the transportation of firearms and ammunition, the Transportation Security Administration advises travelers to check with specific air carriers to find out any additional transportation policies.

Transporting Firearms in Other Commercial Carriers

Any passenger who owns or legally possesses a firearm being transported aboard any common or contract carrier in interstate or foreign commerce must deliver the unloaded firearm into the custody of the pilot, captain, conductor, or operator of such common or contract carrier for the duration of the trip. Check with each carrier before your trip to avoid problems.

Bus companies usually refuse to transport firearms. Trains usually allow the transportation of encased long guns if they are disassembled or the bolts removed.

Ammunition

Ammunition may be bought or sold without regard for state boundaries. Ammunition shipments across state lines by commercial carriers are subject to strict explosives regulations. As with firearms, shipments of ammunition must be accompanied by a written notice of the shipment's contents.

It is illegal to manufacture or sell armor-piercing handgun ammunition.

Firearms in National and State Parks

Generally, firearms are prohibited in national parks. Individuals in possession of an operable firearm in a national park are subject to arrest. Rules in state park systems vary, so inquiry should be made concerning the manner of legal firearms possession in a particular park system.

Hunters

In many states, game wardens strictly enforce regulations dealing with the transportation of firearms during hunting season. Some states prohibit the carrying of uncased long guns in the passenger compartment of a vehicle after dark. For up-to-date information on these regulations, it is advisable to contact applicable fish and game authorities.

State and Local Restrictions on the Possession and Transportation of Firearms

Most states permit the carrying of a concealed weapon by a resident who has been granted a permit to do so. Two states, Alaska and Vermont, allow residents to carry a concealed weapon without obtaining a permit. According to the Brady Campaign to Prevent Gun Violence Report Card for 2004, Illinois, Kansas, Nebraska, and Wisconsin completely prohibit the carrying of concealed weapons. Nonresident travelers should check with appropriate governmental departments before traveling to another jurisidiction with a concealed weapon; concealed weapons laws are often different for nonresidents than they are for residents.

States that permit the carrying of concealed weapons are classified as either "shall issue" or "may issue." In a "shall issue" jurisdiction, authorities are required to issue a permit to carry a concealed weapon to anyone who meets statutory requirements. In a "may issue" jurisdiction, authorities are granted discretion and may require that an applicant show a demonstrable need to carry a concealed weapon.

It is important to check with local authorities a complete listing of restrictions on carrying concealed weapons in a particular state. Many states restrict carrying in bars, restaurants (where alcohol is served), establishments where packaged alcohol is sold, schools, colleges, universities, churches, parks, sporting events, correctional facilities, courthouses, federal and state government offices/buildings, banks, airport terminals, police stations, polling places, any posted private property restricting the carrying of concealed firearms, etc. In addition to state restrictions, federal law prohibits carrying on military bases, in national parks and in the sterile area of airports. National forests usually follow laws of the states in which they are located.

Special Rules Governing Traveling with Firearms in Other Countries

Most countries have special laws governing the possession and transportation of firearms by nonresidents, and in many countries individual possession of firearms is illegal. Travelers should contact the appropriate government departments to learn about the laws prior to traveling. All firearms must be declared and registered with United States Customs on form 4457. This registration must be done at a U.S. Customs and Border Protection office before leaving the U.S.

The following are summaries for Canada and Mexico:

CANADA: Visitors who wish to bring firearms into Canada must declare the firearms in writing with a"Non-Resident Firearms Declaration" form. Multiple firearms may be declared on the same form. Three copies of the unsigned declaration must be pres-ented to a Canadian customs officer at the border. The declaration costs $50 (Canadian) and serves as a temporary license and registration certificate for up to 60 days. Visitors who plan to borrow a weapon in Canada must obtain in advance a "Temporary Firearms Borrowing license" for $30 (Canadian).

Canadian authorities recommend that visitors fill out the declaration form and make copies before arrival at the port-of-entry. Requests for photocopies at the border may be denied. The applicant is required to sign the form in front of a Customs officer at the point of entry.

Canada has three classes of firearms: non-restricted (most ordinary rifles and shotguns); restricted (mainly handguns); and prohibited (full automatics, converted automatics, handguns with a barrel length of 4 inches or less, and .25 or .32 caliber handguns among others). Prohibited firearms are not allowed in the country, but restricted firearms are allowed if an "Authorization to Transport" (ATT) has been obtained from a provincial or territorial Chief Firearms Officer before arrival at the point of entry into Canada. An ATT will not be authorized for restricted firearms intended for hunting or self-protection.

More information can be obtained from the Canadian Firearms Centre via the Internet at www.cfcccaf.gc.ca, under the heading "Visitors to Canada" or by calling the Canadian Firearms Centre information line.

MEXICO: According to the U.S. Department of State, Bureau of Consular Affairs, U.S. travelers to Mexico should leave their weapons at home, unless they have obtained written permission from Mexican government authorities in advance of their visit. Many U.S. residents are arrested or fined every year for firearms violations in Mexico. Many of these offenders are licensed to carry the firearms in the U.S. and only inadvertently transported a firearm to Mexico, without any intention of violating the Mexican law.

Organizations

Center to Prevent Handgun Violence (CPHV)

1225 Eye St. NW, Ste, 1100
Washington, DC 20005 USA
Phone: (202) 289-7319
Fax: (202) 408-1851
URL: http://www.cphv.org
Primary Contact: Sarah Brady, Chair

Citizens Committee for the Right to Keep and Bear Arms (CCRKBA)

Liberty Park
12500 NE 10th Pl.
Bellevue, WA 98005 USA
Phone: (425) 454-4911
Fax: (425) 451-3959
E-Mail: info@ccrkba.org
URL: http://www.ccrkba.org
Primary Contact: Joe Waldron, Executive Director

National Rifle Association of America (NRA)

11250 Waples Mill Rd.
Fairfax, VA 22030 USA
Phone: (703) 267-1000
Fax: (703) 267-3989
Toll-Free: 800-672-3888
E-Mail: comm@nrahq.org
URL: http://www.nra.org
Primary Contact: Wayne R. LaPierre, Jr., Executive Vice President