Social Policy
10/10/2022

I Plead the Second: Gun Rights Legislation in the US

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Since the ratification of the Constitution in 1788, the rights codified in the Bill of Rights have been fiercely protected by the American people. However, interpretations of those rights often differ as people, society, and governmental structure changes. One of the most fraught amendments is the Second Amendment, which preserves the right to bear arms. While the debate over gun rights and restriction is not likely to be resolved in the near future, ongoing efforts to protect the lives of American citizens and limit gun violence may change the way our rights are protected.

Introduction

Constitutional Debate 

America's unique relationship with guns goes back to its very own foundation. In an attempt to throw off the yoke of British colonialism, our founding fathers drafted the Second Amendment to the Constitution. Contained in the bill of rights, the amendment explicitly 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”. This has become one of the most head-scratching pieces of legislation, raising questions on who and what the amendment includes and contains. Despite this, the Second Amendment lived under the radar for years, with few attempts to regulate or enforce it.

Though few pieces of legislation were passed, some bear the need to draw attention to them. For example, the first piece of national gun legislation was passed in 1934. The National Firearms Act was meant to curtail gang crime by imposing a tax on the manufacturer, sale, and transportation of firearms. Four years later, the Federal Firearms Act was passed. The two main provisions of this act were the requirement of a license to work with firearms and a mandated customer record, as well as a defined list of people (mainly felons) who could not purchase guns. Only a year later, the Supreme Court heard the case of U.S. v. Miller, ruling that through the National Firearms Act of 1934, Congress could regulate the interstate selling of a short barrel shotgun, stating that there was no evidence that a sawed-off shotgun had a relationship to the preservation or efficiency of a well-regulated militia. 

In 1968, President Johnson pushed for the passage of a Gun Control Act following the assassinations of President John F. Kennedy, Rob Kennedy, and Martin Luther King Junior. This act banned the importation of guns that had "no sporting purpose", as well as imposed age restrictions. In 1986, the Firearm Owners Protection Act was promoted, mainly enacting protections for gun owners including the prohibition of a national registry. Then, in 1994, a bill was passed banning the sale, manufacturing, and the possession of any assault weapons. In effect until 2004, the effect of the bill was heavily debated. In a September 2004 article from the Associated Press, then-Rep. Butch Otter, R-Idaho, said that the ban "provided only the illusion of reducing gun violence, but it did real damage to our liberties." However, one of the most cited studies from the same time, funded by the Department of Justice, found that the number of gun crimes involving automatic weapons dropped by 17% in the six cities involved in the study during the ban.

The Supreme Court was noticeably silent on the issue of interpretation of the Second Amendment until 2008, when they decided the case District of Columbia v. Heller. Dick Heller, a resident of Washington D.C., demanded his right to own a handgun. The District of Columbia had passed an earlier law outlawing possession of a loaded firearm anywhere in the city. Heller reached out to attorneys who were looking for plaintiffs to fight this very issue. At the end of a very complicated trial, in a 5-4 decision, Mr. Heller won. Justice Scalia wrote the majority opinion for the Supreme Court and stated that the Supreme Court interprets the Second Amendment to mean that every individual in America has a right to a firearm. This case was taken to be a major win for the NRA, (as well as conservatives across the board) but interestingly enough, written into this decision is a lot of language specifically stressing limitations. Included in this are a few key points: it is not a right to keep and carry any weapon in any manner whatsoever and for whatever purpose (for example the Concealed Weapons Prohibitions). Furthermore, Heller should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places (schools, government buildings, etc), or laws imposing conditions and qualifications on the sale of firearms. After Heller, tensions between gun owners and gun control activists have only increased.

Policy Questions

Historic Precedent

The right to gun ownership was first established in 1787 with the 2nd Amendment, for a large part of the following centuries, this right remained without challenge, until the early 20th century. Gun ownership’s undisputed history resulted from a lack of pressing concern, as manual guns dominated the market until the end of the American Industrial Revolution in the 1870s. With the rise of semi-automatic and automatic weapons, came a need for legislation placing restrictions on gun ownership as gun-related deaths rose. Though a need was made apparent, the passing of legislation was met with resistance, as State and Federal powers grappled for control of the situation. As a result, the Federal Government broadly protected the right to gun ownership, while States were allowed to place heavier restrictions on who could own a gun and how they were acquired. Since then, Federal and State powers have collaborated to establish federal policies to regulate gun ownership.

 The 1934 National Firearms Act and the 1938 Federal Arms Act established the foundation for future gun legislation, with the National Firearms Act of 1934 placing prohibitions on fully automatic firearms, sawed-off shotguns, and silencers. The 1938 Federal Arms Act, on the other hand, created a need for licenses and customer records, as well as delineating groups of people who could not purchase guns. These Acts narrowed down the future focus of gun legislation to 3 principles: who could own guns, what guns could be owned, and how those guns could be acquired. These principles were expanded upon in future legislation. 

The Gun Control Act was authorized in 1968 and its 1996 amendment, the Domestic Violence Offender Gun Ban, further outlined who could purchase guns. The Gun Control Act of 1968 banned the sale of weapons to those who are under 18, dishonorably discharged, convicted criminals, or have a mental disability. The Domestic Violence Offender Gun Ban extended these limitations by prohibiting the sale of guns to individuals charged with domestic violence. Additionally, the Gun Control Act of 1968 alongside the Violent Crime Control and Law Enforcement Act of 1994 (now expired), served to expand the list of weapons that were not acceptable for sale. These weapons included: cheap handguns, military-style assault weapons, and guns with high-capacity ammunition magazines. Lastly, the Brady Act of 1993 and the 2007 National Instant Criminal Background Check System Improvement Amendment Act established procedures that streamlined the recording and acquisition of guns. The Brady Act mandated background checks for unlicensed individuals and the 2007 Act provided financial incentives for states to be increasingly diligent in reporting information to the Criminal Background Check System. Through these measures, legislatures were able to reduce the negative impacts of guns as they were able to regulate who acquired them and what weapons are on the market.

Despite existing legislation, recently, the public has been calling for an expansion of current gun legislation as cases of gun-related violence increase, with 640,000 gun related-violent crimes and 45,000 gun-related murders occurring in 2021 as reported by the Constitutional Rights Foundation and Council on Foreign Relations. Coupled with these occurrences has been a rise in mass shootings with an occurring rate of at least 1 per day. An increase that 55% of Americans believe could be combated with stricter legislation according to YouGov. In spite of common agreement regarding the necessity of stricter legislation, little progress has been made in that respect, as gun owners fear that the expansion of gun laws could threaten gun ownership.

Current Legislation 

The history of US gun laws originates back in 1791 when the bill of rights was ratified. It contained ten amendments to the US constitution, and the second one stated that, “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.” This meant that citizens have the ability to fight against tyranny and protect themselves without restriction from the government. However, the first piece of legislation on gun laws did not arrive until 1934, when President Franklin Delano Roosevelt passed the National Firearms Act (NFA). The legislation's purpose was to counter the crimes of the time such as the St. Valentine’s day massacre. The act put a tax on manufacturing, transporting, and selling firearms selected in the law. Due to the inherent flaws in the legislation, it has been modified many times since its passing. In 1938, the U.S. Supreme Court oversaw the United States vs. Miller case and ruled that Congress has the ability to regulate interstate sales of shotguns through the NFA. The court saw no evidence that upheld the statement that the second amendment gives people the right to bear a sawed-off shotgun. Following the assassinations of President John F. Kennedy, Senator Robert F. Kennedy, and Dr. Martin Luther King Jr., President Lyndon B. Johnson orchestrated a passage of the Gun Control Act of 1968, which in effect updated Title 2 of the NFA to fix constitutional issues, added language about destructive devices, and expanded on definitions of a machine gun. The bill also discussed a ban on guns that have no sporting purpose, added an age restriction, and imposed regulations on who can purchase a gun. It also added stricter licensing and regulation for the firearms industry. In 1993, the Brady Handgun Violence Prevention Act of 1993 was passed in remembrance of press secretary Hames Brady who suffered injuries from a failed assassination attempt on President Reagan. The law amends the Gun Control Act and requires background checks for guns that are purchased from a dealer, manufacturer, or importer. It also created the National Instant Criminal Background Check System which is run by the FBI. In 2005, President George W. Bush signed the Protection of Lawful Commerce in Arms Act, which was designed to prevent gun manufacturers from being named in federal or state civil suits by victims of crimes involving guns from that company.

The first provision of this law is “to prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.” It also dismissed pending cases on October 26, 2005. Finally, in 2008, District of Columbia vs. Heller essentially changed the precedent set by Miller in 1939. While the Miller ruling focused on the “well regulated militia” portion of the Second Amendment, Heller focused on the “individual right to possess a firearm unconnected with service in a militia.” Heller altered the constitutionality of a handgun ban in Washington, D.C., and found, “The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment.” “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,” stated the ruling. 

Some key state laws are in California, DC, and Colorado.

In 1991, California became one of the first states to pass universal background checks. This meant that all gun sales must be conducted by a licensed dealer, including private sales and transfers. California’s universal background checks also banned individuals with convictions from purchasing and possessing guns. Owners must go through a 10-day waiting period to acquire handguns, rifles, and shotguns. Firearms dealers are obligated to initiate the federally mandated background check by contacting the California DOJ. Any prospective buyer is required to fill out an application to purchase the firearm through a licensed dealer. All firearms transfers conducted in California have to go through a licensed dealer.

Following the events of the Aurora Movie Theatre massacre, Colorado took action by passing several gun control regulations. The most notable legislation signed into law by Governor John Hickenlooper was Colorado’s universal background check law HB 1229. In Colorado, all firearms transfers conducted by licensed dealers are processed by the Colorado Bureau of Investigation. Under Colorado law, prospective firearms purchasers must pass a background check before acquiring their firearm.

Since passing the Firearms Control Regulations Act of 1975, Washington, D.C. has had the strictest gun control in the nation. Any private sale of firearms is heavily regulated and private sellers must have a registration certificate to legally transfer a firearm. Additionally, they can only transfer legal firearms to licensed dealers. The chief of police is in charge of initiating background checks for registration certificates, which you must have in order to purchase a weapon.

Proposed Policy

Throughout the past several years, gun control legislation has been plentiful, but few policies have managed to pass both the House of Representatives and the Senate. Recently, House Democrats have written eight bills supporting gun control and safety in the aftermath of the Uvalde school shooting. The dubbed “Protect Our Kids” Act raises the minimum age to purchase semi-automatic weapons to 21, bans high-capacity magazines, enforces background checks for ghost guns, implements new safe storage requirements for gun owners—particularly individuals with young children—, and increases measures to decrease weapons trafficking into the United States. Critics of the act cite the control of the government on arms individuals purchase for safety or recreation as too much governmental power, while supporters articulate the emphasis of safety on young and impulsive gun buyers as an act of safety. This act is expected to fail since it was drafted by Democrats, who don't hold much bipartisan support, especially in the Senate.

In early June 2022, a bipartisan act consisting of gun safety measures was announced. The agreement consists of enhanced background checks for gun buyers under the age of 21, and includes a prohibition on domestic abusers from having guns. The enhanced background checks consist of contacting state and local law enforcement to search for juvenile and mental health records; the process has the capability to take about ten days. The act also provides funding to temporarily confiscate guns from individuals marked as dangerous, allocates funding for mental health resources, and increases mental health services and aid within schools. The agreement is backed by 10 Republicans and 10 Democrats and is endorsed by United States President Joe Biden, but Senate minority leader Mitch McConnell has remained silent over whether he would support the bill.  Critics of the deal name the lack of a higher minimum age to buy a weapon, ban on assault rifles, and missing universal or the expansion of background checks as failures, and not descriptive of the gun control laws President Biden promised while on the campaign trail. They maintain that the details being debated are not big enough changes to have a significant difference in the gun violence plaguing the United States. Supporters of the deal note the progress being made to align both the Democratic and Republican parties to allow for legislation to be passed, as gun safety measures and legislation have failed due to partisanship in Congress for a number of years. Additionally, supporters have noted the funds allocated for mental health and suicide preventions will be heightened and the restriction of individuals owning guns if they were found guilty of domestic violence. More recently, the bill has gone through more problems in Congress, slowing the limited bipartisan progress being made.

Conclusion

In the aftermath of the Uvalde school shooting and recent gun violence occurrences, the issue of gun control has been a prominent issue in the public eye. 

The 2nd Amendment has protected gun ownership since 1787, and has been the most powerful legislation regarding gun  regulation. Other than the 2nd Amendment, some important policy includes the National Firearms Act, the Brady Handgun Violence Prevention Act, and the Protection of Lawful Commerce In Arms Act. Supporters of gun control fight for bills promising more background checks, ban on assault rifles, and raising the minimum age for gun ownership. 

Acknowledgment

The Institute for Youth in Policy wishes to acknowledge Lucas Yang, Elizabeth Miller, Marielle DeVos, Luke Drago, and other contributors for developing and maintaining the Policy Department within the Institute.

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