A Brief History of Firearms Law
It is commonly asserted that the United States has more than 20,000 gun
laws on the books at local, state and federal levels. Those who oppose increased
controls argue that it's only necessary to enforce these laws to bring firearms
violence under control.
But what they rarely mention--or may not even know--is that most of these
laws do not regulate the sale or possession of guns but have to do with zoning
regulations for gun stores, the transport and discharge of firearms within municipal
boundaries, et cetera. Thus, whether gun laws actually total 20,000 or more, they
have had little or no impact on the ability of citizens--of both criminal and benign
intent--to obtain guns.
It is commonly asserted that the United States has more than 20,000 gun laws on the books at local, state and federal levels. Those who oppose increased controls argue that it's only necessary to enforce these laws to bring firearms violence under control.
But what they rarely mention--or may not even know--is that most of these laws do not regulate the sale or possession of guns but have to do with zoning regulations for gun stores, the transport and discharge of firearms within municipal boundaries, et cetera. Thus, whether gun laws actually total 20,000 or more, they have had little or no impact on the ability of citizens--of both criminal and benign intent--to obtain guns.
In 1981, one community made an attempt to enact true control legislation at the local level. The Illinois village of Morton Grove became the first community in the country to ban the sale and possession of handguns. Although restrictive laws already existed elsewhere, the importance of Morton Grove lies not so much in the law itself but with two consequences of its passage.
First, the Morton Grove handgun ban allowed gun-control advocates the chance to demonstrate to the nation a point they had long argued: that nothing in the Constitution forbids a ban on handguns.
The law's second effect was that it doomed the future of similar legislation. Faced with a stalled agenda on Capitol Hill, cities and towns offered the gun- control movement a new battleground where gun-lobby attacks could be portrayed as big-money special interests thwarting the democratic will of small-town America. Gun-control advocates talked earnestly of a prairie fire of handgun bans sweeping the nation.
It didn't happen. The NRA launched a state-by-state campaign to enact pre- emption laws forbidding local laws stricter than state regulations. A few states, such as Massachusetts, had existing pre-emptions that had been confirmed through litigation. Others soon passed legislation to ensure that no local laws would hinder weapons possession.
The NRA may have been aided by political infighting in the gun-control movement over the value of local laws, but it was the NRA's superior organization and funding that decided the issue. Unlike the gun-control groups, the NRA had state lobbyists and an active grass-roots membership. Before the Morton Grove ban, only three states had passed or confirmed firearm pre-emptions through litigation. By 1991 the number had reached 41. The dream of Morton Grove had been smothered in the cradle.
In response to years of inaction on the federal level, many states have passed their own firearms laws. In the last decade, state laws typically arose from two scenarios: a frustration over federal inaction on firearms issues that have received intense media attention or the occurrence of a high-profile shooting incident that spurs a public call for action (and reduces the influence of the organized gun lobby).
Widespread state-level action against armor-piercing bullets--dubbed "cop- killers" because of their ability to pierce bullet-resistant vests--during the mid-80s is illustrative of the first scenario. (The passage of federal legislation in 1986 effectively ended action on the state level.) The second scenario is illustrated by the schoolyard massacre in Stockton, California in 1989. The horror of the shooting led not only to the passage of a well-intended (though easily circumvented) assault-weapons ban in California but fueled debate that led to the passage of bans in New Jersey and Connecticut.
Unfortunately, the limited success of state and local gun laws can be traced to the free interstate flow of guns. The lesson of such laws is that effective measures that will work to curtail gun violence must be enacted at the federal level. Yet federal laws have for the most part been marked by a timidity that has virtually guaranteed their ineffectiveness.
The first law passed regulating the possession of firearms was the National Firearms Act of 1934 (NFA), which was enacted following the wave of violence that accompanied Prohibition to control access to "gangster weapons," such as fully automatic firearms, sawed-off shotguns and silencers. The NFA requires anyone purchasing one of the regulated weapons to undergo an extensive application process that includes a background check and a waiting period of four to six months. Early versions of the bill proposed including handguns under the comprehensive licensing structures of the NFA, but that provision was eventually dropped from the bill at the NRA's urging.
Four years later the Federal Firearms Act represented the government's first attempt to regulate interstate and foreign commerce in firearms and ammunition. The law required importers and dealers to obtain licenses and maintain limited records and forbade interstate sales to those in proscribed categories such as felons and fugitives from justice. But because there was no background check to exclude buyers in prohibited categories and dealers needed to have only "a reason to believe" the purchaser was eligible, the law could be circumvented merely by lying.
For the next 25 years there was a lull in gun-control activity. The issue returned in the early '60s with the assassination of John F. Kennedy. It moved to center stage in 1968 with the murders of Martin Luther King, Jr. and Robert Kennedy, which occurred against a backdrop of rising crime and an exploding handgun population and resulted in the laws that make up the Gun Control Act of 1968.
The GCA banned the interstate sale of handguns, rifles and shotguns except through federally licensed dealers. It also set minimum ages for gun purchases: 18 for a long gun and 21 for a handgun. New licensing and record-keeping standards and fees were set for dealers, manufacturers and importers; and a "sporting purposes" test was established to ban the importation of surplus military weapons and Saturday Night Specials (although the disassembled parts could still be imported and reassembled onto U.S.-made frames).
The NRA and pro-gun members of Congress pushed for years for a legislative package to weaken the GCA. In 1986 they finally prevailed. The Firearms Owners Protection Act (FOPA) was sponsored by former Representative Harold Volkmer, D-Mo., and then Senator James McClure, R-Idaho, who insisted it was necessary to curb abuses by federal officials of law-abiding gun owners and firearms dealers.
Although the parliamentary wrangling over the measure was intense, it ultimately passed and was soon signed into law by Ronald Reagan. The FOPA changed the GCA to:
Finally, in November 1993, Congress passed the Brady bill, a national five- day handgun waiting period to allow local police time for a background check. After five years, the national waiting period is scheduled to be replaced by an NRA-backed "instant check." Dealers will be able to call in to a national data base of criminal records to ensure that weapons are not sold to purchasers in restricted categories. Those who pass the check will take possession of the weapon at the time of purchase. The instant check will not, however, nullify state waiting periods.
Whether at the local, state or federal level, the principal flaw that has plagued legislative efforts has been an almost exclusive focus on over-the-counter sales standards and a mistaken belief that it's possible to separate "good" handguns (those in our hands for self-defense) from "bad" handguns (those in the hands of criminals). Yet as noted earlier, most gun deaths are not crime related. And as the NRA correctly notes, criminals will be the last to obey any gun-control law.
The limitations of such an approach are illustrated by the recently enacted Brady bill. Waiting periods create a cooling-off period between the time a customer buys a gun and the time it may be possessed. In theory, this delay helps stop crimes of passion, and although anecdotal evidence suggests this happens occasionally, most suicides and shootings between friends and family occur with weapons already available.
In theory, background checks increase the chance of identifying those in proscribed categories who attempt to purchase firearms through legal channels. Such laws define the proscribed group as those with a prior felony conviction or deemed mentally unfit, yet such individuals rarely even attempt to buy guns personally from retail outlets.
A second conceptual flaw is the implicit assumption that anyone without a felony record is by definition "law-abiding." Under such systems individuals with arrest records and convictions for serious crimes are able to acquire guns legally because they have never been convicted of a felony. Patrick Purdy, the Stockton schoolyard killer, had a nine-year criminal history replete with weapons violations but could legally purchase a handgun under California law.
Recently, in the wake of the Brady bill's passage, attention has focused on the licensing of handgun owners. Licensing does offer some benefits: The information is useful in tracing weapons; identification of those in proscribed categories attempting to purchase firearms through legal channels is increased; and the application process itself may discourage sales to casual buyers. The limitations of licensing are that such systems are expensive to administer; it would have little effect on most gun violence, such as suicide or shootings between people who know each other; and anyone in a proscribed category desiring a gun could easily find one in the alternative, nonretail marketplace.
And although the most common argument heard in favor of licensing is "We license cars, why not license handguns?" public-health experts note that the licensing of cars had little effect on the death rate associated with autos. It was not until changes were made to the product itself--such as seat belts, air bags and improved structural design--that the number of deaths began to decline.