I know most of my readers already know this stuff, but I’ve been getting a lot of google traffic relating to the subject, so I thought it might be good to get something like this out there. If I got any of this wrong, feel free to correct me.
After the Virginia Tech tragedy, I’m hearing a lot of stuff in the media, particularly foreign media, that are misrepresenting the actual state of US gun control laws. First thing that ought to be understood is that gun control is mostly a state power. The federal government regulates commerce in guns for the most part, with the states regulating everything else. Most states have fairly liberal gun laws, but a few do require licensing, a few ban certain scary looking semi-automatic firearms known as “assault weapons”, a few ban machine guns, even though the feds regulate that too. But laws from state to state don’t differ all that much. Here’s how it basically works
Felons in Possession
In all 50 states it’s illegal for people convicted of a felony, and certain disqualifying misdemeanors, from purchasing, possessing, or even touching a firearm, ammunition or components. It’s illegal for someone who has been adjudicated mentally defective or committed involuntarily to a mental institution from purchase and possession of firearms. It is also illegal for anyone to knowingly transfer a firearm to someone who is prohibited from possessing them.
Point of Sale
At the point of sale, all firearms buyers have to fill out a form, called ATF 4473, present government issued identification to the dealer, and submit to a background check. Form 4473 is basically an affidavit, where you declare who you are, where you live, that you are a US citizen or resident alien, that you have not been convicted of any disqualifying offense, are not a fugitive from justice, that you’ve never renounced your citizenship, etc. Lying on this form is a felony. After that, the dealer will complete a background check to ensure that you have never been convicted of any disqualifying offenses. The background check is computerized and takes only a few minutes. Sometimes purchasers will be put into review, in which case it can take longer, up to a few days. The sale may not proceed until the background check has completed. Some states require their own forms to be filled out as well. Pennsylvania requires one for purchasing handguns, but not long guns. Many states have their own background check systems, and there is a federal system as well called NICS (National Instant Check System). Once you check out, the purchase proceeds like any other. If you are denied, the purchase may not complete, and if you are a prohibited person, the police may come arrest you, because it’s illegal for a prohibited person to even attempt to purchase a gun.
National Firearms Act
Firearms other than those which are ordinary rifles, shotguns and pistols are regulated under the National Firearms Act. These include short barreled rifles (rifles less than 26 inches overall and with barrels less than 16 inches), short barreled shotguns (shotguns less than 28 inches overall, and barrels less than 18 inches), destructive devices (cannons, grenades, rocket launchers, etc), machineguns (firearms that fire more than one shot with a single pull of the trigger), silencers and suppressors, and Any Other Weapons (AOWs, anything that’s not any of the other items. These are things like umbrella guns, cane guns, pen guns, cell phone guns).
NFA firearms are highly restricted and you can’t just go into a gun shop and buy one. The regulations vary depending on the type of NFA firearm you’re looking to be in possession of. Needless to say, machineguns and destructive devices are the most heavily restricted. They require an extensive FBI background check, fingerprinting, registration, payment of a 200 dollar transfer tax, sign off from your local police chief, all to be submitted to the ATF on Form 4. If everything checks out, in a few months you will be issued a stamp, much like the one that caused the colonists to revolt against the crown, that proves you are in legal possession. You have to inform ATF in order to move the firearm between states or to another residence. Other NFA firearms still require payment of a tax, and require the completion of a form, but aren’t quite as difficult to obtain. In 1986, Congress decided to disallow new registrations for machineguns. All machineguns that are transferable to civilians must have been registered prior to 1986. Anything not registered is illegal to possess except for military and law enforcement. It is illegal to possess any parts from which you could make an NFA weapon, or manufacture one without a license.
Carrying of Firearms
Most states allow for the open carrying of firearms for purposes of sport, recreation or self-protection. Some states require a license to carry a firearm openly. Open carrying of a firearm is not common in populated areas, except in some parts of the southwest. Most states require a license to carry a firearm concealed on or about one’s person, or in a vehicle. Two states require no such license, Alaska and Vermont. Two states outright prohibit the carrying of concealed weapons, Wisconsin and Illinois. Several states, like New York, New Jersey, Massachusetts, California, and Hawaii severely restrict the issuance of licenses to carry a concealed weapon (unless you happen to have good political connections, then you can get one). In most states, you can apply for a license to carry a concealed weapon, and if you meet certain objective criteria, which typically involves firearms and legal training, submitting to a background check and being free of a criminal record, supplying references, fingerprints, etc. Once law enforcement processes your application and clears you, you are issued a license. Most states recognize out of state licenses, but there’s considerable variation in this. I have been issued licenses by four states, Pennsylvania, Florida, New Hampshire and Washington, which, between the four of them, allow me to carry a concealed firearm in about 33 states. Typically in states where concealed weapons licenses are issued, about 1-2% of the population obtains such a license. Pennsylvania issues about 600,000-700,000 licenses, which is about 6% of the population. Some people carry regularly, most don’t. Virginia issues about 250,000 licenses in their state, but Virginia Tech prohibits firearms on their campus. Typically schools are off limits to license holders, in addition to federal buildings, national parks, establishments that serve alcohol, court houses, and a few other places. Where you can’t carry varies from state to state. Most states prohibit carrying a weapon while intoxicated.
Only one jurisdiction effectively bans firearms, and that’s Washington D.c. Chicago bans handguns, New York City heavily restricts them, so they are banned for people without money and political connections. California, Massachusetts, New York, Connecticut, and New Jersey ban semi-automatic versions of certain military rifles.
In addition to the federal constitution, most states have some right to keep and bear arms provisions in their state constitutions. The states that lack them are the ones that most severely restrict firearms ownership. The Supreme Court of the United States has only ever heard one second amendment case, and failed to make a definitive ruling in that case as to what the second amendment did or did not protect. Thus, the second amendment has not been incorporated under the fourteenth amendment and been made to apply to the states. So the states without right to bear arms provisions in their state constitution have restricted firearms to some degree. Washington DC’s ban is currently being challenged in federal court. It’s unclear whether the Supreme Court will take the case. So far the DC circuit court has nullified the DC gun ban as unconstitutional, but the final say on that issue has not been had.
So there it is in a nutshell. Media machinations about being able to buy machines guns over the counter at Wal-Mart are grossly exaggerated. Yes, US guns laws are remarkably liberal compared to other countries around the world, but it’s not a free for all. They are still a regulated product.
6 thoughts on “US Gun Laws 101”
Keep up the good work!
Very nice – something you may not know is that people who have received a dishonorable discharge from the armed forces are prohibited from owning firearms as well.
One nit: It’s not all other weapons. it’s any other weapons. And, sadly, the definition of it is inconsistent across the country after a SC Fed Court told the ATF that ‘no, just because it’s not X that doesn’t make it Y.’
gun laws are the lamest laws in the world
Felons in Possession – statement of law is too broad. New York for example has provision for restoring gun rights to felons and if framed properly this restoration of New York rights qualifies for the felon in possession exception under federal law. Similarly a quick look at New Jersey law seems to indicate NJ law only restricts felons convicted of certain enumerated crimes (mostly related to violence) – here I’m not certain does anyone know?
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