September 1999

Gun Control 101: The Legal Underpinnings

Gun control becomes a matter of intense public interest every time there is another terrible mass shooting. We hear about gun control, but the frequent debate is not of immediate importance to most people, and probably most lawyers do not understand the basic issues and fundamental federal and state laws regarding gun control. This article, which discusses the basic issues and law, is not intended to take a position on gun control or fully expound on this complex issue.

Part of the gun-control debate centers around the Second Amendment to the U.S. Constitution, which provides: "A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed."

Some people reading this amendment focus primarily on the first phrase. They believe that the amendment, alone or in conjunction with the rest of the Bill of Rights, gives people a right to have firearms only if they are associated with a well regulated militia; these are the "collectivists." Others — the "individualists" (or personal possessionists) — focus on the latter part of the amendment, asserting that the framers would not have used words similar to those used to grant individual guarantees in other amendments in the Bill of Rights (such as the First Amendment’s right of the "people" to "peaceably assemble," and the Fourth Amendment’s "right of the people to be secure"), if they had really meant to grant only a collective right to possess firearms.

In the 1939 case of United States v. Miller,1 the Supreme Court affirmed a conviction under the National Firearms Act of 1934 when the defendant carried a sawed-off shotgun across state lines. The Court reasoned that a sawed-off shotgun was no part of ordinary military equipment, nor could its use contribute to the common defense. In deciding the defendant had no right to keep a weapon that could not be part of any militia’s ordinance, the Court certainly implied that people do have the right to possess appropriate weapons which could be used as part of a militia.

A major difficulty, however, is that there are no militias today. Militias were the mainstay of early colonial defense because the Anglo-Americans disdained a standing army and because Britain could not support one overseas; the colonies had to provide for their own defense. Massachusetts, for example, adopted this law in 1648:

[The militia commander] is hereby enjoined once every year at least, and oftener upon needful occasion … to put every captain and officer of their companies in their places, and to instruct them in their duties according to the rules of military discipline, and to exercise [the militia] according to his best skill and abilities as if he were to lead them forth against an enemy.2

In the Uniform Militia Act of 1792, Congress gave the old colonial/state militia the only federal direction it was to have for the next 111 years. It provided that all able-bodied white males of the state should be enrolled in the militia under state control and provide themselves with a "good musket or firelock."3

The state militias deteriorated during the early 19th century, and many states entirely abolished any compulsory militia system between 1831 and 1856. In 1903, the Dick Act (named after its sponsor, Ohio Congressman Charles Dick) took what was left of the militia and changed it into "two classes — the organized militia, to be known as the National Guard … and the remainder to be known as the Reserve Militia." The Dick Act states: "organization, armament and discipline of the organized militia ... shall be the same as ... prescribed for the Regular and Volunteer Armies."4 With the enactment of the National Defense Act of 1916, the National Guard was federalized as a component of the United States Army. Today, the President drafts the Guard for federal service and they "… stand discharged from the militia and shall be subject to such laws and regulations for the government of the Army of the United States.5 The militia of the United States consists of all able-bodied [males and females] who are members of the National Guard."6

Whether the Second Amendment gives people the right to personal possession of non-military firearms is certainly debatable. It does seem that the amendment deals with "well organized militias," though what to make of it, given that there are no longer any militias, is a point to ponder. At any rate, a number of federal laws have conditioned and regulated firearms possession, and there has been no broadly successful attack on the right of the federal government to do that.

The National Firearms Act of 1934 (NFA), mentioned above in connection with the Miller case, was adopted in response to Prohibition-era gangsterism ( a la The Untouchables). The NFA established strict registration requirements and prohibitions on the interstate transfer of fully automatic firearms (such as machine guns) and on short-barreled shotguns and rifles. It required anyone purchasing one of these weapons to submit to an application process that included fingerprinting, a photograph, a four- to six-month waiting period and background check, and a $200 transfer tax. The law was not retroactive, but it did require those who already owned affected firearms to register their arms within 60 days of enactment.7

The next federal foray into gun control came with the Omnibus Crime Control and Safe Streets Act of 1968 (the Gun Control Act).8 This law was adopted following the assassinations of John and Robert Kennedy, and Martin Luther King, Jr. It was intended to keep firearms out of the hands of those deemed unfit to possess them for reasons of age, criminal background or incompetency (unlawful users of narcotics and mental incompetents), and to assist state law-enforcement authorities in combating increasing crime rates. It provided a more rigorous licensing system for firearms than the 1934 Act had, and unlike that act, it regulated handguns, tightening control over the shipment and sale of destructive devices.9 The Gun Control Act also established federal control over all persons in the business of importing, manufacturing or dealing in firearms, and it required licensing of and reporting by such persons. Finally, it channeled interstate commerce in firearms through federally licensed businesses, generally confining firearms transactions by nonlicensees to their states of residence, prohibiting the importation of semi-automatic weapons into the United States. The Supreme Court validated this Act in 1980.10

In 1993, Congress adopted the Brady Handgun Violence Prevention Act11 in response to the attempted assassination of President Reagan. The Brady Act imposed a five-business-day waiting period (for states that did not have one) before allowing the purchase of a handgun, and looked toward the eventual establishment of a national instant criminal point-of-purchase background check system. In 1997, in Printz v. United States,12 the U.S. Supreme Court ruled that the Brady Act’s obligations to conduct background checks on prospective handgun purchasers and to accept completed handgun-applicant statements from firearms dealers imposed unconstitutional obligations on state officers to execute federal laws.

The Violent Crime Control and Law Enforcement Act of 199413 responded to the 1989 school-yard killings of five children by a Stockton, California drifter who used a Chinese-made AK-47 semi-automatic weapon. The Act contained provisions for hiring 100,000 new police officers, building more jails, and promoting innovative incarceration programs (such as "boot camp"). The Act also provided money to states to develop crime-prevention programs, similar to those established in the 1960s and 1970s, to focus on the root causes of crime. The most incendiary part of the Act (sponsored by Senator Diane Feinstein) was its ban on "assault weapons." The ban prohibited the sale or possession of 19 specific semi-automatic assault weapons, copycat guns and large-capacity ammunition-feeding devices. Semi-automatic guns, which fire one bullet or round every time the trigger is pressed, automatically load the bullet for the next shot. As long as the trigger is depressed, automatic weapons (machine guns) continue to spray bullets. They have generally been illegal since 1934.

Overall, federal law prohibits people who are not eligible to possess, receive or transport firearms (children, incompetents, fugitives, illegal aliens, etc.) and regulates dealers, requiring that they fill out paperwork, including information about purchasers and guns sold. Federal law also restricts interstate sales of guns or mail-order purchase by individuals (antique firearms are exempt from regulation) and prohibits semi-automatic weapons sales. Shipping or mailing of guns is also restricted, and manufacture or sale of armor-piercing ammunition is illegal. Authority to administer and enforce these laws rests with the Secretary of the Treasury. The Secretary has delegated responsibility of enforcing the law to the Bureau of Alcohol, Tobacco and Firearms (ATF) and to the United States Customs Service for overseeing exportation restrictions.

Regardless of how the Second Amendment to the U.S. Constitution is interpreted, it restricts the federal government from interfering with some aspects of gun ownership. The U.S. Supreme Court has never, however, incorporated the Second Amendment against any state.14 The states could, in theory, have absolute control of guns. The Washington State Constitution addresses gun ownership in Article 1, Section 24 of the state Constitution:

The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.

The main body of Washington state gun-control law is at RCW 9.41. Like the federal law, state law operates on three levels: it regulates commercial sales, restricts possession to competent people, and prohibits possession of some kinds of firearms. The law restricts convicts’ possession of firearms, limits the carrying of a concealed weapon to those with permits (except in a person’s home or business), restricts carrying guns in motor vehicles (not including law-enforcement personnel and hobbyists), regulates the issuing of licenses to carry pistols or concealed weapons (requiring application to the sheriff or police, giving name, address, description and fingerprints), and provides that the sheriff issue the four-year permit within 30 days, unless the applicant is disqualified (minors, or those who are insane or drunk). Washington law regulates commercial sales of pistols to licensed persons and provides a five-day waiting period, but no one convicted of a crime of violence or any person who has an outstanding arrest warrant may be sold a gun. The law allows for confiscation of guns from people who violate the state gun-control law, and requires licensing and regulation of dealers. Additionally, it prohibits the possession of machine guns (with some exceptions for law-enforcement officials) and carrying guns in certain places (schools, jails, courtrooms, bars, mental-health facilities). The act also preempts local regulation. RCW 77.16 (hunting laws) prohibits carrying loaded shotguns or rifles in cars and shooting across roads. (This is not a complete summary of the law.)

If the purpose of the Second Amendment is to allow the citizenry to defend itself against an oppressive federal government (which seems to be part of what the Amendment was, or is, about), then disallowing people possession of such firepower as would be necessary to confront an armed federal force undermines the Amendment. But allowing people to possess machine guns and other weapons as would be needed to deal with the regular Army seems highly inconsistent with good social policy and a shocking admission that ours is, at least potentially, a lawless society. The Second Amendment does make mention of a "well-regulated militia," but there is no militia anymore. Some people have faith that our government will not — like the German government in the 1930s or the Yugoslav government in the 1990s — oppress us. They believe that we have a strong rule of law and must work to create a decent society where guns are not part of the culture. Others have no such faith in government. History does not say they are wrong, and the arguments about the Second Amendment continue.

No one argues that criminals, incompetents and unsupervised children should be denied access to firearms, nor that those who commit crimes with guns should be punished. No one denies that ours is a violent society, and that guns contribute to some of the violence. Whether controlling access to guns or addressing the circumstances which cause gun violence is the proper way to deal with the problem is much debated.

The debate rages with statistics. Some people look at the statistics generated from gun-control laws and say that many acts of violence have been prevented by, for example, the background-check requirement in the Brady Bill. Statistics back up that claim, and it seems reasonable. Others say that if you force law-abiding folks to surrender their firearms, then only criminals will have guns, and crime will increase because criminals are more likely to assault unarmed victims, a claim supported by statistics. Stating that allowing citizens to carry concealed handguns reduces violent crimes makes some sense.15 At an individual level, for one person to carry a gun is reasonable, but at the collective level it causes social disaster. Gun-control advocates cite statistics demonstrating that in other developed countries there is much less lethal violence than in the United States, mostly attributable to the availability of guns. Gun-control opponents cite statistics to demonstrate that if only more people in the United States had guns, there would be less gun violence. Gun-control advocates cite statistics showing that most Americans favor gun control, but opponents note that most Americans don’t know which gun-control laws are in effect, nor do they have any consistent sense of what "gun control" ought to be. Assault weapons, say gun-control advocates, serve no useful social purpose. Not so, say their opponents; the guns "are . . . useful for hunting and recreational purposes."16 Moreover, they state, only very fe few guns used in crimes are assault weapons.

Gun-control opponents insist that gun control is not crime control, and that, fundamentally, gun possession is necessary for the maintenance of the liberties that make the United States the freest and most dynamic society in the world; only with guns can the weak protect themselves against the abusive strong. Gun-control proponents, insisting that U.S. gun-control laws are too lax and feebly enforced, believe gun control is a requirement for any civilized society. What do you think?

Daniel Warner is an associate professor of business law at the College of Business at Western Washington University. He is the author of a college textbook titled The Legal Environment of Business and is a periodic contributor to Bar News.

Notes

1 307 U.S. 174 (1939).

2 The Laws and Liberties of Massachusetts, 41-42 (Max Ferrand, ed., 1929).

3 Laws of the United States 1789-1857, at 619 (Frederick C. Brightly ed.).

4 32 Stat 196 (1903).

5 39 Stat 134 (1916).

6 10 U.S.C. Section 311 (1993).

7 48 Stat 1237 (1934).

8 18 U.S.C. Chapter 44.

9 18 U.S.C. Section 922(h).

10 Lewis v. U.S., 445 U.S. 55 (1980) (the issue was the legitimacy of Lewis’ conviction, not the legitimacy of the act in view of the Second Amendment). In 1995, the Supreme Court invalidated another federal gun-control law, holding that Congress had no constitutional authority to ban guns from school zones absent any showing that interstate commerce was affected. The Gun Free School Zones Act is no longer law.

11 18 U.S.C.A. Section 922 (1993).

12 521 U.S. 898 (1997).

13 Pub. L. No. 103-322, S 170101, 108 Stat 1796, 2038 (1994).

14 See Vietnamese Fisherman’s Ass’n v. Knights of the Ku Klux Klan, 543 F. Supp. 198, 216 (S.D. Tex. 1982) (preventing the Klan from conducting private military training camps); and other materials cited by Kevin A. Fox and Nutan Christine Shah, Natural Born Killers: The Assault Weapons Ban, 10 St. John’s J. Legal Comment. 123 (1994), note 52.

15 See, e.g., John R. Lott, Jr., More Guns, Less Crime, 19 (1998).

16 Kristine R. DeMay, Violent Crime Control and the Law Enforcement Act of 1994, 16 Hamline J. Public Law and Policy 199 (1994), text accompanying note 147.

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