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History And Summary Of Federal Gun
Laws
By: Greg A. Stewart, Supervisor
Anchorage Police Department
The following excerpts are highlights of information compiled
from various sources, including the United States Department
of Justice, Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF), along with several Internet websites
containing summaries and opinions relating to the history of
federal firearm laws.
Following World War I the public became increasingly concerned
over private ownership and an individual's right to possess
revolvers and pistols. A uniform firearm law was initially
proposed to the National Conference of Commissioners on
Uniform State Laws in 1923. The first draft was titled
Uniform Act to Regulate the Sale and Possession of Firearms
and presented by the NCC for consideration in 1925. A
modified version of the draft was finally adopted by the NCC
in 1926.
The National Firearms Act (NFA) was enacted by Congress in
1934 after George “Machine Gun” Kelley rained havoc and death
on law enforcement officers and innocent citizens of this
country with a machine gun. The National Firearms Act fell
under the Congressional “commerce power” and “taxing power”.
The NFA, enacted under the Internal Revenue Code, required
that all machine guns must be registered, placed on approved
list, identified to one owner and provided for the levy of
taxes on the manufacture, sale, and transfer of certain
classes of firearms.
The NFA omitted handguns and long guns considered to be
sporting firearms. However, the significant effect of the NFA,
with supporting case law, allowed for government seizure of
any NFA regulated firearm, such as machine guns, from the
owner upon their death. Provisions of the NFA do allow for
the eventual transfer of NFA firearms to an heir when lawful
for them to possess.
The Federal Firearms Act (FFA) of 1938 was enacted imposing a
federal license requirement on gun manufacturers, importers,
and those persons in business of selling firearms.
Additionally, the act imposed a $200 tax on machine gun
owners, required records be maintained relating to the
transfer of firearms and prohibited certain classes of
individuals, such as convicted felons, identified as
“prohibited persons” from possessing a firearm.
The assassination of President John F. Kennedy on November 22,
1963, by Lee Harvey Oswald, the assassination of Martin Luther
King, April 4, 1968, and the assassination of Robert Kennedy
on June 5, 1968, by Sirhan Sirhan, created the foundation for
enacting The Gun Control Act of 1968, Public Law 90-618, Title
18 United States Code, Chapter 44. The Gun Control Act
repealed the Federal Firearms Act, however, retained the
majority of its components.
An interesting aspect of The Gun Control Act of 1968, are the
criteria listed under Section 922, Unlawful Acts, Subsection
(g)(1-7). All seven of the initial criteria listed
prohibiting an individual from possessing or transferring a
firearm or ammunition are all directly attributed to
presidential assassin Lee Harvey Oswald's background.
The initial criteria under Title 18, U.S.C., Chapter 44,
Section 922(g) “Unlawful Acts” stated: It shall be unlawful
for any person to ship or transport in interstate or foreign
commerce, or possess in or effecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign commerce:
1) who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year;
2) who is a fugitive from justice;
3) who is an unlawful user of or addicted to any controlled
substance;
4) who has been adjudicated as a mental defective or who has
been committed to a mental institution;
5) who, being an alien: (The following subsections were
added in 1998)
A) is illegally or unlawfully in the U.S.
B) except as provided in subsection (y)(2),
has been admitted to the U.S. under a nonimmigrant visa;
6) who has been discharged from the Armed Forces under
dishonorable conditions;
7) who, having been a citizen of the U.S., has renounced his
citizenship.
There are two other interesting aspects of the Gun Control
Act. The first is under federal law it is unlawful for an
individual identified to any one of the above 7 attributes to
possess “any firearm or ammunition”. Therefore, a felon in
possession of “ammunition” can be charged under federal law in
the same manner as if they were in possession of a “firearm”,
whether or not they had the gun with them at the time. The
second aspect is the Gun Control Act falls under “interstate
commerce” and applies to everyone who owns, or possesses, a
firearm or ammunition initially imported across a state line.
The Firearms Owners' Protection Act of 1986 (“FOPA”) was also
referred to as the McClure-Volkmer Act, and significantly
amended The Gun Control Act by liberalizing restrictions
previously held for sellers of firearms. The act allowed
dealers to sell at gun shows away from their place of
business, limited the number of inspections without a search
warrant to a dealers' premises by the Bureau of Alcohol
Tobacco, Firearms and Explosives, reduced some of the
requirements for engaging in the business of selling firearms
for purposes of a federal license, and prevented the federal
government from maintaining a central database of firearms
dealer sales and transaction records.
The Section R of The Gun Control Act was amended in 1991
preventing the importation of gun parts which could be
assembled into a prohibited NFA weapon.
The Gun Control Act was amended in 1993, as The Brady Handgun
Violence Prevention Act, which imposed a 5 day waiting period
when purchasing a handgun, and other possession restrictions
for harassing, stalking and domestic violence related
behaviors. The amendment contained a provision for the 5 day
waiting period to automatically apply to rifles and shotguns
five years later, in Nov., 1998.
The domestic violence possession restrictions were
incorporated into Title 18, U.S.C., Chapter 44, Section 922(g)
as subsections (8-9), which state:
8) who is subject to a court order that:
A) was issued after a hearing of which such
person received actual notice, and at which such person had an
opportunity to participate;
B) restrains such person from harassing,
stalking, or threatening an intimate partner of such person or
child of such intimate partner or person, or engaging in other
conduct that would place an intimate partner in reasonable
fear of bodily injury to the partner or child; and
C) i) includes a finding that such
person represents a credible threat to the physical safety of
such intimate partner or child; or
ii) by its terms explicitly
prohibits the use, attempted use, or threatened use of
physical force against such intimate partner or child that
would reasonably be expected to cause bodily injury; or
9) who has been convicted in any court of a misdemeanor
crime of domestic violence.
The 1994 Violent Crime Control and Law Enforcement Act was
enacted adding provisions banning assault weapons which
covered shotguns and rifles. This Act carried a ten year
sunset clause and was not reenacted in September 2004.
The Gun Control Act was amended in 1998 prohibiting any
classification of immigrant from owning or possessing any
firearm with a few exceptions. This amendment does not apply
to an alien admitted to the U.S. under a nonimmigrant visa for
lawful hunting or sporting purposes and a few other
exceptions.
There are other aspects of the “Unlawful Acts” specifically
addressed in the current Gun Control Act related to the
possession or transfer of a firearm or ammunition. The first
relates to an individual identified under 922 (d) as an
“unlawful user of drugs”. This provision is also included in
several other sections, which state that possession or
transfer of a firearm or ammunition is specifically prohibited
if an individual is an “unlawful user of or addicted to
drugs”.
The Gun Control Act defines “a drug user” essentially as an
individual convicted of any drug offense (including
misdemeanors) within the last year, or multiple offenses
within the last five years. Therefore anyone considered an
“unlawful user of or addicted to drugs”, whether or not they
are under the influence of a drug at the time of contact, are
not able to lawfully possess a firearm or ammunition under the
Federal Gun Control Act.
In addition to federal guns laws there are five federal level
court decisions relating to the possession of a firearm worthy
of notation and consideration:
1) U.S. Court of Appeals, Ninth Circuit, U.S. v. William E.
Harvey (No. 02-30225),
2) U.S. District Court, N.D. New York, U.S. v. Collin K. Craig
(Crim. A. No. 95-CR-52) and
3) Supreme Court of the U.S., Gerald R. Caron v. U.S. (No.
97-6270),
4) U.S. Court of Appeals, Sixth Circuit, U.S. v. Robert J.
Headley (No. 02-3180), and 5) U.S. Court of Appeals, Eighth
Circuit v. Rafael Felici (No. 99-1273)
These court decisions provide guidance in three areas: 1) that
a prohibited person found in possession of a firearm or
ammunition, has no ownership rights to either, and cannot
transfer ownership of the firearm or ammunition to another
person which they themselves cannot lawfully possess, and 2) a
third party custodian cannot lawfully take possession of
property that the owner themselves cannot lawfully possess,
and 3) if state law prohibits a person from possessing one
type of firearm, then federal law prohibits them from
possessing any type of firearm.
Since first presenting this material initially in the
International Association of Property and Evidence quarterly
Evidence Log, there have been varying discussions and legal
interpretations at the local and state levels relating to the
five appellate case citations. Some attorneys have concluded
that although each of these cases provides similar judgments
against the defendant regarding their right to possess a
firearm, the final judicial rulings were not published by the
deciding court. Therefore they should only be considered for
guidance and not current enforceable federal law.
The current Federal gun laws coupled with the appellate court
decisions against a prohibited person's right to a firearm
should be considered by local and state law enforcement
agencies when reviewing or determining firearm policies,
procedures and potential liability.
Especially when considering governmental civil liability, law
enforcement agencies would be wise to review their agency’s
firearm policies and procedures to determine if they comply
with federal [laws.] ( 18 U.S.C. Chapter 44, Section 922.)
Both Federal and Alaska State law define “possess” to mean
having physical possession or the exercise of dominion or
control over property. Therefore, as an example, a person
either under indictment, exparte order, or convicted of a
domestic violence related crime, is considered a prohibited
person and cannot lawfully possess or transfer their former
ownership rights to a firearm or ammunition. This means a
third party custodian could not be authorized by a prohibited
person to take possession of their firearm or ammunition.
Exparte orders only temporarily deprive an owner from
possessing their weapon if not later convicted.
There are other federal firearm laws and regulations not
presented in this document. Additionally, there are varying
legal and lay opinions relating to the interpretation of
federal firearms laws and regulations. Some opinions and
other available resources may take issue with some of the
information provided here. It is recommended agencies consult
their legal division when considering policies and procedures
on the lawful disposition of firearms and ammunitions.
For additional information and details on federal firearms
laws and related materials visit:
www.legis.state.ak.us/folhome.htm
11.81.900 (b)(48) “possess” defined ;ww.atf.gov/; www.saf.org/LawReviews/Brabner-Smith1.html
; www.law.upenn.edu/library/ulc/ulc.htm
Summary of Unlawful Possession of a Firearm or Ammunition
Overall summary of “prohibited person characteristics”
determining who cannot possess a firearm or ammunition under
Title 18, U.S.C., Chapter 44, Section 922, inclusive:
“Unlawful Acts”: It shall be unlawful for any person to ship
or transport in interstate or foreign commerce, or possess in
or effecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce:
1) who has been convicted in any court of a crime punishable
by imprisonment for a term exceeding one year (felony);
2) who is a fugitive from justice;
3) who is an unlawful user of or addicted to any controlled
substance;
4) who has been adjudicated as a mental defective or who has
been committed to a mental institution;
5) who, being an alien:
A) is illegally or unlawfully in the U.S. or,
B) except as provided in subsection (y)(2), has been admitted
to the U.S. under a nonimmigrant visa;
6) who has been discharged from the Armed Forces under
dishonorable conditions;
7) who, having been a citizen of the U.S., has renounced his
citizenship.
8) who is subject to a court order that:
A) was issued after a hearing of which such person received
actual notice, and at which such person had an opportunity to
participate;
B) restrains such person from harassing, stalking, or
threatening an intimate partner of such person or child of
such intimate partner or person, or engaging in other conduct
that would place an intimate partner in reasonable fear of
bodily injury to the partner or child; and
C) i) includes a finding that such person represents a
credible threat to the physical safety of such intimate
partner or child; or
ii) by its terms explicitly prohibits the use, attempted use,
or threatened use of physical force against such intimate
partner or child that would reasonably be expected to cause
bodily injury; or
9) who has been convicted in any court of a misdemeanor crime
of domestic violence.
10) who is currently under a domestic violence exparte order
or any other restraining order.
11) who is under indictment or charged with a crime punishable
with imprisonment exceeding one year.
12) A third party custodian cannot receive or possess firearms
or ammunition belonging to an owner with prohibited person
characteristics.
US Court Decisions Relating to Possession of Firearms
1. United States Court of Appeals, Sixth Circuit.
* United States of America, Plaintiff-Appellee v. Robert J.
Headley, Defendant-Appellant. November 4, 2002. No. 02-3180
2. United States District Court, N.D. New York.
* United States of America, v. Collin K. Craig, Defendant.
August 8, 1995. Crim. A. No. 95-CR-52
3. United States Court of Appeals, Eighth Circuit.
* United States of America, Appellee, v. Rafael J. Felici,
Appellant. Submitted: October 19, 1999. Filed:
March 24, 2000. No. 99-1273.
4. United States Court of Appeals, Ninth Circuit.
* United States of America, Plaintiff - Appellee, v. William
E. Harvey, Defendant-Appellant. Submitted August 5, 2003. No.
02-30225. D.C. No. CR-89-00060-JDS.[FN* - decided
without oral argument: See Fed. R. App. P. 34(a)(2)]
5. Supreme Court of the United States, * Gerald R. Caron v.
United States. June 22, 1998, No. 97-6270
* Syllabus v. Certiorari to the U.S. Court of Appeals, First
Circuit.
* Dissenting, Thomas, with Scalia, and Souter joining.
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