History of U.S. Gun Laws

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The Orlando massacre has put gun control back in the spotlight.  Whether people think that guns should be banned entirely, permitted with restrictions or protected as one of our constitutionally protected liberties is discussed on every news show.  Here is a pocket summary of the law and history of key gun laws in America.

The Second Amendment

The Second Amendment to the U.S. Constitution states: “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.” While the Second Amendment is clearly intended to protect gun ownership, the exact intent of the Framers is unclear and, therefore, adds fuel to the gun regulation debate. The primary issue is whether the amendment was designed to protect individual gun ownership by U.S. citizens or the possession of guns by state-run militias, which were often called upon during the early days of the United States.

National Firearms Act

Most of the country’s gun regulations were enacted in response to a perceived threat. In 1934, Congress enacted the National Firearms Act (NFA) to address the growing violence associated with the gangland crime of the Prohibition Era, most notably the St. Valentine’s Day Massacre. The statute imposed a $200 tax on the making and transfer of certain firearms, including shotguns and rifles having barrels less than 18 inches in length, machineguns, and silencers. It also required that all ownership transfers of NFA firearms be conducted through a federal registry.

United States v. Miller

In United States v. Miller, the Court upheld the conviction of two men charged with transporting a double barrel 12-gauge shotgun having a barrel less than 18 inches in length via interstate commerce in violation of the NFA. Based on the reasoning that the Founding Fathers intended the amendment to help ensure that the new federal government could not disarm state militias, the  Supreme Court ultimately concluded that the Second Amendment did not guarantee the individual right to keep such a weapon. “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument,” the Court held.

Gun Control Act of 1968

The assassinations of President John Kennedy, Attorney General Robert Kennedy, and Dr. Martin Luther King, Jr. influenced the passage of the Gun Control Act (GCA) of 1968. After Lee Harvey Oswald purchased the gun used to kill President Kennedy via mail order, Congress sought to further regulate interstate and foreign commerce in firearms. The statute essentially banned interstate firearms transfers except among licensed manufacturers, dealers, and importers. It also prohibited the sale of firearms to specific classes of individuals, including felons, minors, fugitives, drug addicts, and the mentally ill.

Brady Handgun Violence Act

In 1993, Congress passed the Brady Handgun Violence Act. The “Brady Law” is named after former White House Press Secretary James Brady, who was shot in the head during the 1981 assassination attempt on President Ronald Reagan. Most notably, the law established the National Instant Criminal Background Check System that gun dealers are required to use prior to selling a firearm.

Federal Assault Weapons Ban

The Public Safety and Recreational Firearms Use Protection Act, enacted in 1994, sought to deter mass shootings using semi-automatic assault weapons. The federal statute banned the manufacture, use, possession, and import of 19 types of firearms, although it only applied to weapons manufactured after the date the law took effect. Pursuant to the statute’s sunset provision, the assault weapons ban expired on September 13, 2004.

District of Columbia v. Heller

While the U.S. Supreme Court has considered several Second Amendment cases since it decided Heller in 2008, none have gone to the heart of the right to bear arms. The case involved District of Columbia gun law that essentially banned handguns. The divided Court struck down the gun law as unconstitutional by a vote of 5-4. In reaching its decision, the majority concluded that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

The Court did, however, confirm that the Second Amendment does have limits. “The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” Justice Scalia wrote. Going forward, the Court will likely be asked to clarify where to draw the line.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.