Right to Bear Arms

It is impossible to determine the number of firearms in the United States because many guns are unregistered. Nevertheless, the Bureau of Alcohol, Tobacco, and Firearms (ATF) estimated that private citizens owned more than 220 million firearms by 1995. Depending on where one lives, a person may only be forbidden from carrying a concealed handgun, or may be forbidden from owning a handgun at all.

Congressional power to regulate firearms stems from the Commerce Clause of the Constitution. The Commerce Clause empowers the federal government to regulate commercial activity between the states and commerce with foreign countries. Generally speaking, states and the federal government have successfully (1) denied certain individuals, i.e., convicted felons and the mentally incompetent, the right to own firearms; (2) required licenses and made owners pass a firearms safety examination (3) made illegal the possession and transfer of certain firearms; and (4) required registration for certain classes of firearms.

The National Firearms Act of 1934, still in effect today, was passed to hinder acquisition of certain dangerous weapons, including machine guns and sawed-off shotguns. Key components of this legislation included heavy taxes on the manufacturing and distribution of firearms and required registration throughout production, distribution, and sale. The Federal Firearms Act of 1938 provided for federal licensing of firearms dealers, regulated firearm transportation across state lines by dealers, outlawed the transportation of stolen guns with the manufacturer's mark eradicated or changed, and outlawed firearms from being sent to fugitives, indicted defendants or convicted felons.

The National Firearms Act was later amended significantly by the Gun Control Act of 1968, passed in the wake of the assassination of President John F. Kennedy and others. The Gun Control Act also repealed the 1938 Federal Firearms Act. and replaced it with increased federal control. The Gun Control Act contained far-reaching provisions, pertaining to licensing, sales, buyer requirements, and the importation of non-sporting guns. For all its measures, the law did not forbid the importation of unassembled weapon parts. Gun control advocates were not satisfied and called for stricter laws; owners and dealers decried the Gun Control Act as burdensome and infringing on personal rights. Finally in 1986, the Firearm Owners' Protection Act (also known as the Gun Control Act of 1986) was passed, amending the 1968 law. The 1986 Gun Control Act imposed some new restrictions and extended prior ones, but in some instances it eased requirements of the 1968 law. Machine guns made after 19 May 1986 were banned from sale by the 1986 Firearms Owners Protection Act.

Hijacking fears prompted plastic guns or other undetectable firearms to be targeted and banned from manufacture, sale, import, transfer or possession by the Undetectable Firearms Act of 1988. Also in 1988, Congress required look-alike toy guns to have a "blaze orange plug inserted in the barrel." In late 1994, following two separate police shootings of youths with toy guns, three large toy retailers, including Toys `R' Us, Inc., decided to stop selling look-alike guns. The Crime Act of 1994 banned the sale and possession of 19 assault-type firearms and certain high-capacity ammunition magazines.

The Gun-Free School Zone Act, passed in 1990, outlawed the knowing possession of firearms in school zones, and made it a crime to carry unloaded firearms within 1,000 feet of the grounds of any public or private school. This law was later held unconstitutional in 1995, in United States v. Lopez. The decision was based upon a determination that the law did not establish an adequate connection between commerce and gun-free school zones, as required by the Commerce Clause.

The 1982 assassination attempt on President Ronald Reagan eventually resulted in the Brady Handgun Violence Prevention Act of 1993. The Brady Bill imposed a five-day waiting period before a handgun may be taken home by a buyer. The law set a timetable for the expiration of the waiting period and provided for replacement of a computerized background checks. The law also mandated that local chief law enforcement officers conduct background checks on prospective handgun purchasers buying from federally licensed dealers. This part of the law was struck down by the Supreme Court in 1997 in Printz v. United States as unconstitutional under the Tenth Amendment.