Federal Gun Control in America: A Historic Guide to Major Federal Gun Control Laws and Acts
For Americans, the crux of gun control laws has been how to disarm dangerous individuals without disarming the public at large. Ever-present in this quest is the question of how the perception of danger should impact guaranteed freedoms protected within the Bill of Rights.
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Not only is such a balancing act difficult as-is, but there are also two additional factors that make it even more challenging: America’s federal government is constitutionally bound by the Second Amendment, and politicians notoriously take advantage of tragedies to pass irrational laws when emotions are at their highest. As President Obama’s former Chief of Staff, Rahm Emanuel, once famously remarked:
“You never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things you think you could not do before.”
This line of thought is not new to American politics. From the emancipation of enslaved Americans and the organized crime wave of the 1930s to the assassinations of prominent leaders in the 1960s and the attempted assassination of President Reagan in the 1980s, fear has proved a powerful catalyst for appeals about gun control.
Below is an overview of the history behind major gun control laws in the federal government, capturing how we’ve gone from the Founding Fathers’ America of the New World to the United States of the 21st century.
Second Amendment in America’s Bill of Rights: Ratified December 15, 1791
Congress added the Bill of Rights to the Constitution of the United States specifically “to prevent misconstruction or abuse of its powers.” The Second Amendment is the foundational cornerstone of every American’s right to bear arms, stating:
“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.”
The right to bear arms was second only to the first – the most vital freedoms of religion, speech, the press, the right to assemble and the right to petition government for redress of grievances. Meanwhile, conflicting views have left government and personal interest groups struggling to reconcile technological advances, isolated but significant violent anomalies and the constitutional mandate protecting the natural right to self defense and this most basic aspect of the Bill of Rights.
First and Second Militia Acts of 1792: Passed May 2 and 8, 1792
The U.S. Congress passed the Militia Acts of 1792 less than a year after the Second Amendment’s ratification. The first act’s purpose was “to provide for the National Defence, by establishing an Uniform Militia throughout the United States.” This measure established the need and command structure for a state-based militia. The second act defined conscription parameters for those militias, limiting armed service to “each and every free able-bodied white male citizen” 18 to 45.
Colonial Gun Regulations
Even today, the majority of firearms laws are state-based and vary considerably. While California, Connecticut and New Jersey have the most restrictive laws, Arizona, Vermont and Kentucky have some of the least stringent. For more than a century, the young United States relied primarily on “state” laws:
- The earliest came from Virginia, the result of fear of attack by Native Americans. The 1619 law imposed a three-shilling fine on able-bodied men who failed to come armed to church on the Sabbath.
- By 1640, slave codes in Virginia prohibited all “free Mulattos and Negroes” from bearing arms. In 1712, South Carolina enacted a similar law.
- During this time in Virginia, gun laws for Native Americans were similar to those for white men – as they were not barred from possessing guns (unless they were gathering food on land held by white men). There were, however, prohibitions against providing “Indians” with weapons and ammunition. Native Americans could own weapons, but there were strict regulations on how they could obtain them.
- Throughout the Antebellum South, Louisiana, Florida, Maryland, Georgia, North Carolina, Mississippi and even Delaware all passed multiple measures denying guns to people of color, requiring court-issued permits, and allowing search and seizure of weapons as well as punishment without trial.
Militia Act of 1862: Passed July 17, 1862
Often overlooked, the Militia Act of 1862 was highly significant because for the first time, a U.S. government in wartime need called upon “persons of African descent” for military or naval service. Granted, the soldiers were paid less than their white compatriots and were at first primarily laborers. However, the act guaranteed freedom for soldiers and their families in exchange for service. By late October, black Union regiments raised from Kansas, Louisiana and the South Carolina Sea Islands were in the field. President Lincoln signed the Emancipation Proclamation on January 1, 1863, and in May of that year, the War Department established the Bureau of Colored Troops, which would represent nearly 185,000 soldiers during the Civil War.
Fourteenth Amendment: Ratified July 9, 1868
Even as 1863’s Emancipation Proclamation freed all slaves within the United States, racially biased gun control continued through Black Codes in states like Mississippi, Louisiana and Alabama. Internationally, the Paris Anti-Slavery Conference of 1867 condemned the practices, highlighting that in “the States,” even “freedmen” were “forbidden to own or bear fire-arms, and thus were rendered defenceless against assault.” Congress abolished this discriminatory gun control with the most controversial of the three Reconstruction Amendments. While the Thirteenth abolished slavery and the 15th forbade racial discrimination in elections, the Fourteenth Amendment provided “to any person within its jurisdiction the equal protection of the laws.” Finally, the Fourteenth guaranteed all Americans, regardless of color or appearance, their Second Amendment right to bear arms.
National Rifle Association: Founded November 17, 1871
Originally founded to improve the marksmanship and firearms skills found lacking in troops during the Civil War, the National Rifle Association (NRA) sought to “promote and encourage rifle shooting on a scientific basis.” Since then, it has become a complex organization, with its own Legislative Affairs Division, Institute for Legislative Action, Political Victory Fund and NRA Foundation as well as numerous publications.
As “America’s longest-standing civil rights organization,” the NRA is a “diligent [protector] of the Second Amendment.” It actively supported the National Firearms Act of 1934 and Federal Firearms Act of 1938, supported portions of the Gun Control Act of 1968 and was instrumental to the Firearms Owners Protection Act. It opposed renewal of the 1994 Assault Weapons Ban and backed 2005’s Protection of Lawful Commerce in Arms Act and 2006’s Disaster Recovery Personal Protection Act, which became part of 2007’s Department of Homeland Security Appropriations Act. In 2013, it opposed expansion of the Undetectable Firearms Act of 1988. The NRA has also been an active protector of the Second Amendment in numerous legal cases involving gun owners’ rights, including 2010’s landmark Supreme Court case McDonald v. Chicago.
National Firearms Act of 1934: Signed Into Law June 26, 1934
Signed into law by President Franklin D. Roosevelt, the National Firearms Act, Public Law 73-474, sought to control specifically the types of weapons typically involved in organized crime and violent gangland incidents: automatic weapons like machine guns and easily concealed but wide-impact, short-barrel firearms, such as sawed-off shotguns, as well as mufflers and silencers. Rather than banning them, the act instead placed a financial premium on them and allowed tracking of them by requiring that:
- Importers, manufacturers and dealers register and pay an annual tax: $500 for importers and manufacturers, $300 for pawnbrokers and $200 for dealers.
- Transferors pay a $200 tax per transaction.
- Intended recipients complete an application and submit identification, including fingerprints and a photograph.
- Importers, manufacturers and dealers maintain records of all transactions.
- All transfers as well as all previously owned firearms be registered, including the firearm’s identifying marks; the owner’s name, address and place of employment; and where the gun was to be kept.
- Any violation of the act be subject to a $2,000 fine and up to five years in prison.
The National Firearms Act has not been updated since, and importers, manufacturers, dealers and buyers still pay the same fees. Accounting for inflation, the $200 transaction tax would now be the equivalent of more than $3,500, and the $2,000 fine would be more than $35,000.
Federal Firearms Act of 1938: Signed Into Law June 30, 1938
The 1930s were tumultuous years. FDR’s New Deal was rebuilding a struggling America in the face of a well-armed wave of organized crime. John Dillinger was one of the most infamous criminals of the era who used not only machine guns, but other assorted weapons on a crime spree that spanned eight states. Between 1933 and 1934, John Dillinger and his so-called Terror Gang robbed a dozen banks, stole more than $500,000, nearly $9 million in 2016 dollars, killed 11 people and managed to escape from prison on three separate occasions. The crime spree finally ended on June 30, 1934, when federal agents tracked Dillinger to a movie theater in Chicago. Dillinger drew his Colt .380 in an attempt to escape and was cut down by a hail of gunfire from law enforcement. On the fourth anniversary of Dillinger’s death, Congress passed Public Law 75-785, the Federal Firearms Act of 1938, which expanded recordkeeping and accountability for all firearms importers, manufacturers and dealers and placed restrictions on gun ownership. It expressly aimed to regulate interstate and foreign commerce in arms and encompassed not only the guns themselves, but also any silencers or mufflers, ammunition, cartridge cases, bullets and propellant powder. It stated that:
- Only dealers or manufacturers possessing a license could transport, ship or receive firearms or ammunition in interstate or foreign commerce. The license was $25 per manufacturer and $1 for dealers.
- Dealers and manufacturers could not ship or transport firearms to anyone under indictment, convicted of a crime or considered a fugitive from justice.
- Trade in stolen firearms or guns that have had the manufacturer’s serial numbers removed was illegal.
Gun Control Act of 1968: Signed Into Law October 22, 1968
Three decades passed. Then, over five years, four major assassinations took their toll: President John F. Kennedy; racial activists Malcolm X and Rev. Dr. Martin Luther King, Jr.; and Senator Robert F. Kennedy. As for the assassins, Lee Harvey Oswald had purchased his rifle through a popular mail order company under an alias, Talmadge Hayer had a criminal history of stolen guns, James Earl Ray was an escaped convict, and Sirhan Sirhan had purchased his unregistered handgun from a private individual. The response was a major overhaul of restrictions on how guns could be bought and sold.
Signed by President Lyndon B. Johnson, the Gun Control Act of 1968, or Public Law 90-618, soon became known as Title I, repealing the Federal Firearms Act of 1938 and relegating the National Firearms Act of 1934 to Title II. Its stated purpose was “to provide support to Federal, State, and local law enforcement officials in their fight against crime and violence.” To that end, it:
- Mandated licensing for all importers, manufacturers and dealers of firearms and ammunition involved in interstate or foreign arms commerce, and set license fees for “destructive devices” at $1,000 a year.
- Prohibited using falsified information to acquire a firearm.
- Set the general purchase age for handguns and handgun ammunition at 21.
- Prohibited dealers and manufacturers from selling firearms to indicted or convicted individuals, fugitives from justice, drug addicts and mentally incompetent individuals.
- Required registration of all firearms with the National Firearms Registration and Transfer Record.
- Prohibited the possession of firearms on which the serial number has been altered, obliterated or removed.
- Controlled containers, markings and chains of custody for shipped firearms, eliminating mail order delivery to unlicensed individuals.
Law Enforcement Officers Protection Act of 1986: Signed Into Law August 28, 1986
A brutal Miami shootout in April 1986 between two bank robbers and eight FBI special agents left two agents dead, three seriously wounded and two injured. The criminals’ weapons – a Ruger Mini-14 semi-automatic rifle loaded with .223 Remington rounds, a shotgun and two .357 caliber handguns – were notably “more powerful and their rounds could penetrate even the armored vests that some of the agents were wearing.” In the aftermath, the 99th Congress decided “to regulate the manufacture, importation, and sale of armor piercing ammunition.” Public Law 99-408:
- Made the manufacture and importation of armor-piercing ammunition illegal; the only exceptions are for governmental use, authorized testing and export.
- Established an annual $1,000 license fee for armor-piercing ammunition manufacturers and importers and the government’s right to revoke that license for violations of the law.
- Required special markings and packaging for armor-piercing ammunition.
- Mandated five years in prison without suspension, probation or parole for individuals possessing armor-piercing ammunition and a firearm while committing a violent crime.
Undetectable Firearms Act of 1988: Signed Into Law November 10, 1988
The use of lightweight yet durable polymers in the popular and reliable Glock 17 – a “plastic” semi-automatic pistol – first raised security concerns about the possibility of mass-produced guns passing through metal detectors unnoticed. In response, President Ronald Reagan signed Public Law 100-649 prohibiting all firearms that are not detectable by walk-through metal detectors – that are less than 3.7-percent steel. It also banned firearms with major components that fail to “generate an image that accurately depicts the shape of the component” on standard airport imaging technology. Originally passed for a 10-year term, the act was extended in 1998, 2003 and – most recently – 2013 for another 10-year term as Public Law 113-57.
Gun-Free School Zones Act of 1990
Mass shootings at schools are among the most traumatic events in modern-day America. These tragic incidents receive wall-to-wall media coverage and spark heated political debate.
Many contend that these shootings are the consequence of the U.S. not having adequate gun control measures. Staunch gun rights advocates offer an alternative perspective to this issue. Indeed, these incidents should not be taken lightly. But there’s more to the story than just regulating guns.
In America, most schools are “gun-free” zones, where the possession or carry of firearms are generally prohibited. However, this is not a local policy coincidence, but rather the product of federal policy. This started in 1990, when Republican president George H.W. Bish signed the Gun-Free School Zones Act (GFSZA) into law. Originally sponsored by then Delaware Senator Joe Biden, the GFZA strictly prohibited people from carrying firearms within a one-thousand-foot radius of public, private, and parochial elementary and high schools.
The passage of this law was met with pushback. In 1995, the Supreme Court ruled in United States v. Lopez that the 1990 GFSZA was unconstitutional, due to the fact that the law’s handgun ban near schools did not have a substantial impact on interstate commerce. As a result, the 1990 GFSZA was re-written to only apply to guns that were moved through interstate commerce.
Pro-gun activists argue that the GFSZA has made schools vulnerable to deranged murderers, who recognized notable security flaws and tightly concentrated venues that allow for considerable casualities. Famous gun researcher John Lott found that 98 percent of mass shootings have taken place in gun-free zones since 1950.
There have been attempts to repeal the 1990 GFSZA in Congress, with Kentucky Congressman Thomas Massie leading the charge on multiple occasions. In 2019, Massie introduced the Safe Students Act, which would repeal the 1990 GFSZA. In Massie’s words, “Gun-free school zones are ineffective. They make people less safe by inviting criminals into target-rich, no-risk environments. Gun-free zones prevent law-abiding citizens from protecting themselves, and create vulnerable populations that are targeted by criminals.” Massie has introduced similar legislation in the past, but has not received much support on the issue.
Some states like Florida have recently responded by passing measures to allow for armed teachers in educational facilities. These efforts represent a more localized approach to solving this issue, especially when considering that the federal government has not really made a concerted effort to reform the 1990 GFSZA.
Brady Handgun Violence Prevention Act of 1993: Signed Into Law November 30, 1993
In 1981, John Hinckley, Jr.’s attempt to assassinate President Ronald Reagan first injured Reagan’s press secretary, James Brady. Hinckley’s first shot entered above Brady’s left eye and left the nation shaken by “The Bear’s” new role as a wheelchair-bound gun control advocate. Within 16 minutes of the incident, Hinckley’s gun – a .22-caliber Röhm RG-14 revolver – was traced to a Dallas pawn shop. Hinckley had no criminal or mental records at the time, but he did use an old Texas driver’s license and fake address.
- Mandating a five-day waiting period before a licensed dealer, manufacturer or importer can sell, deliver or transfer a handgun to an individual.
- Establishing a “national instant criminal background check system to be contacted by firearms dealers before the transfer of any firearm.” However, this provision applies only to states that don’t already have acceptable background checks for handgun purchasers. The National Instant Criminal Background Check System (NICS) Improvement Amendments Act of 2007, or NCIS Act, introduced conditional but optional financial incentives and grants for establishing or upgrading state reporting systems.
The Brady Campaign continues to advocate and lobby for tighter gun controls “To Prevent Gun Violence.”
Federal Assault Weapons Ban of 1994 (a.k.a. Public Safety and Recreational Firearms Use Protection Act of 1994): Signed Into Law September 13, 1994
Two notable events precipitated 1994’s assault weapons ban. First, a gunman using TEC-9 handguns with Hellfire trigger systems, a Norinco NP44, and both standard and hollow-point ammunition killed eight people and wounded six in 15 minutes in San Francisco’s 101 California Street skyscraper. The second was the siege of the Branch Davidian complex in Waco, Texas, a 51-day government standoff with a fiery ending that left 82 Branch Davidians and four ATF agents dead. More than 300 Davidian-owned firearms and nearly 2 million rounds of “cooked off” or spent ammunition included fully automatic AK-47 and AR-15 assault rifles, .50 caliber semi-automatic rifles and antitank armor-piercing ammunition.
In answer, President Bill Clinton signed Congress’ Public Safety and Recreational Firearms Use Protection Act – Title XI of Public Law 103-322 or the Federal Assault Weapons Ban – “to make unlawful the transfer or possession of assault weapons” for 10 years. It prohibited the manufacture, sale and possession of specific types of semi-automatic firearms with military-style features and large-capacity magazines. This included many weapons with folding stocks, flash suppressors, barrels threaded for silencers and detachable magazines that held more than 10 rounds. However, pre-ban weapons were grandfathered, exempt from the new law.
The so-called Lautenberg Gun Ban was an amendment tacked on to the Omnibus Consolidated Appropriations Act of 1997. This was enacted in 1996, under the direction of the 104th United States Congress, banning people convicted of crimes of domestic violence from accessing firearms. It’s typically referred to as the “Lautenberg Amendment,” in reference to its sponsor: former Senator Frank Lautenberg.
The Lautenberg Amendment bans the shipment, transport, possession, ownership, and use of guns or ammo by individuals convicted of domestic violence, or who are subject to restraining orders. This law also criminalizes the willing sale or transfer of ammo or firearms to individuals convicted of such crimes.
For the Lautenberg ban restrictions to apply to restraining orders, certain requirements must be met:
- Hearing: The accused must first go through a hearing – making sure that the Lautenberg restrictions will not go into effect until both parties have the chance to be heard.
- Intimate Partner: The accuser and the accused must be intimate partners.
- Restrains Future Contact: The accused must be restrained from harassing, stalking, or using threatening behavior toward the accuser.
- Credible Threat or Physical Force: The accused must be considered a credible threat to the accuser or be barred from the use of physical force.
The intimate partner requirement stipulates that the relationship in question be both sexual and involve cohabitation or a child in common. When the requirements are met, a trigger is activated in the National Instant Criminal Background Check System (NICS). This results in the restraining order being documented in the federal database, thus prohibiting the possession of firearms.
What is particularly concerning about this law is its constitutional basis. Even if there is a consensus that certain individuals should be disarmed, criminal matters such as domestic violence have been traditionally handled at the state and local level. Such actions go beyond the constitutional purview of the federal government and could lead to overreach.
Men, women, and children could theoretically be stripped of their gun rights due to trumped up domestic dispute charges. Minor infractions such as spanking a child could give a person a lifetime ban from owning a firearm.
The Lautenberg gun ban’s enactment in tandem with mandatory arrest policies has arguably created a new category of “victim.”
Kenneth E. Noyes, the staff attorney and coordinator of the domestic violence project for Legal Services of Northern Virginia claimed that “A lot of times, I think arrests are being made when they shouldn’t be.”
Prior to the Lautenberg gun ban, the majority of people involved in minor altercations would just plea-bargain to a domestic violence misdemeanor. Instead of going straight to jail, they would pay a small fine and go back to their daily routine.
There have been reports from police officers, veterans, gun dealers, and people of all different backgrounds who have been disarmed for minor infractions.
In 2019, groups like Georgia Gun Owners uncovered a plot in the Georgia General Assembly where Republicans were working to pass their own version of the Lautenberg Gun Ban. This bill allegedly had the blessing of the NRA and several Republican senators were pushing it, albeit under the radar.
Many “no compromise” gun groups like Georgia Gun Owners have asserted that the Lautenberg Gun Ban at the federal level has stripped more Americans of their gun rights than any other piece of gun control legislation.
In the ensuing decade, the results of the ban on assault weapons did not align with the intent of the law. Cited by both sides of the gun control issue, An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence 1994-2003, ultimately found that “Although the ban has been successful in reducing crimes with AWs [Assault Weapons], any benefits from this reduction are likely to have been outweighed by steady or rising use of non-banned semiautomatics with LCMs [large-capacity magazines], which are used in crime much more frequently than AWs.” While states like New York, Massachusetts and New Jersey retain their own assault weapon laws, attempts to re-introduce federal legislation banning assault weapons have been unsuccessful.
Supreme Court Case District of Columbia et al. v. Heller Decision: Decided June 26, 2008
D.C. v. Heller was a highly debated landmark case that addressed disparities between local and federal law. At debate was whether a D.C. special policeman had the right to register and keep a handgun in his home without a trigger lock despite D.C.’s prohibition on handguns and unregistered firearms. District law also required that even registered weapons must be unloaded, disassembled or bound by a trigger lock.
Heller maintained that he had the right to accessible self-defense in his home. Despite dissenting opinions, the court ruled in his favor, acknowledging that handguns are common arms choices for “defense of self, family and property.” The court added that imposing a trigger lock requirement prevents ready self-defense and declared the condition unconstitutional. The District was instructed to allow Heller to register his gun and issue him a license to carry it in his home.
Supreme Court Case McDonald et al. v. City of Chicago, Illinois, et al.: Decided June 28, 2010
Just two years later, the Supreme Court heard McDonald v. Chicago, clarifying the decision reached in D.C. v. Heller by expanding the right to bear arms within the home to all U.S. states. The case centered on Chicago’s ban on handguns versus petitioners who lived in high-crime neighborhoods and – like Heller – also wanted the right of “defense of self, family and property.”
This time, however, the plaintiffs based their argument on the Fourteenth Amendment – resolution to the Black Codes and guarantee for equal protection under the law – and its inclusion of Second Amendment rights. Once again, the Supreme Court ruled that private citizens retain their Second Amendment right to self-defense in their own homes regardless of locale or state and went on to confirm that the Fourteenth Amendment does in fact secure the Second.
Fix NICS: Signed Into Law March 23, 2018
Gun control came back on the map in 2018, after public outrage became too much for Congress to handle. In their efforts to do something to placate the public, the government passed Fix NICS – a set of incentives to encourage local and state governments as well as federal agencies to share records with the federal government as a means of streamlining the background check process.
Supporters of Fix NICS contended that these modifications would have prevented the Charleston Church and Sutherland Springs shootings, where both shooters, according to them, fell through the cracks of the NICS system.
The NRA was in favor of Fix NICS while GOA was against the legislation, deeming it the largest gun control expansion at the federal level since the enactment of the Brady Act in 1993. Fix NICS was bundled into a must-pass spending bill in early 2018.
Injunction of 3D-Printable Gun Blueprints: Issued July 31, 2018
Since Defense Distributed emerged as a player in the 3D-printable gun market, gun control advocates have wanted to ban these supposedly untraceable weapons.
Aghast at the possibility of 3D-printable firearms hitting the streets, eight states led the charge against Defense Distributed. They started by petitioning a federal judge in Seattle to issue a temporary restraining order against the 3D printable firearm company before the State Department’s agreement went into effect.
Connecticut, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Washington, and even the District of Columbia got the ball rolling on this lawsuit. These states were soon joined by California, Colorado, Delaware, Hawaii, Illinois, Iowa, Minnesota, North Carolina, Rhode Island, Vermont, and Virginia in their lawsuit against the U.S. government, who had previously settled with Defense Distributed in order to allow the group to disseminate their files freely.
The sudden state effort to put clamps on Defense Distributed’s 3D-printable gun program soon paid off when U.S. District Judge Robert Lasnik issued an injunction that blocked Defense Distributed’s plans to spread files for the printing of plastic weapons on the internet. This July 31st decision in Seattle effectively blocked the earlier settlement between the Trump Administration and Defense Distributed in which they were legally permitted to disseminate their files freely as of August 1st, 2018.
The plot thickened for Defense Distributed after its legal drama with the government. In an unexpected turn of events, Defense Distributed’s founder, Cody Wilson, was charged in September for having relations with a minor who he met on a dating website. Straight out of an action movie script, Wilson bolted to Taipei, Taiwan, hoping that the country’s lack of an extradition treaty with the U.S. would provide him with refuge. However, Wilson’s desires to escape U.S. authorities were dashed when he was arrested by Taiwanese police and handed over to immigration authorities for deportation. Wilson would subsequently resign as CEO of Defense Distributed after being released on bail.
Bump Stock Ban: Issued December 18, 2018
The nationwide push for bump stock bans finally reached a tipping point at the end of 2018, when the federal government issued its own bump stock ban – trying to allay fears that it was not doing anything to address gun violence. Acting Attorney General Matthew Whitaker claimed that this move clarifies the existing federal law on the books. However, Reason magazine pointed out that the Trump Administration’s move to ban bump stocks effectively rewrites the law, a function that traditionally belongs to Congress.
The Justice Department’s final ruling reclassifies “bump-stock devices” as “machine guns” under the National Firearms Act of 1934 and the Gun Control Act of 1968, based on how these “devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.” Americans in possession of bump stocks were given 90 days to destroy them or turn them in to the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
Critics argue that this change in the law was done in an unconstitutional manner and sets a precedent for arbitrary re-classifications in the future.
As of 2018, the push for red flag gun confiscation orders has made its way to Washington D.C. With anti-gun Democrats taking control of the House, the political dynamics in Congress could change considerably. Not only that, but they also have bipartisan support. Several Senators stand out:
Lindsey Graham: South Carolina Senator Graham introduced a red flag bill earlier in 2018. The 116th Congress is approaching fast and it appears that Graham plans on working across the aisle with Democrats to craft red flag legislation. Graham has gone on record stating that red flag legislation is the “place where we begin a long-overdue discussion about firearms and mental health. But we must start.”
Marco Rubio: Quick to demonstrate that he was willing to do something in the aftermath of the Parkland shooting, Marco Rubio threw his hat in the ring by sponsoring a red flag bill along with Democrat Senators Joe Manchin, Bill Nelson, and Jack Reed.
Rick Scott: Florida’s new Senator Rick Scott has shown his willingness to compromise on gun control despite his ostensibly pro-gun rhetoric. Scott signed SB 7026, the largest expansion of gun control in Florida in recent history. Scott’s SB 7026 includes red flag provisions, raises the age to buy a firearm to 21, and mandates a three-day waiting period for all firearms purchases.
Jared Polis: Colorado Governor Jared Polis signed HB19-1177 into law on Friday, April 12, 2019. With Polis’ signature, Colorado became the 15th state to enact a “red flag” law. Once a relatively pro-gun state, Colorado has taken an anti-gun turn since the Aurora movie theater shooting in 2012, where James Holmes killed 12 people. Colorado’s passage of a “red flag” only reinforces this trend.
The Trump Administration’s Commission on School Safety released a report recommending red flag laws as a means to “address school safety and violence.”
With red flag laws already in effect in some states as of 2018, law enforcement is starting to seize gun owners’ firearms. Dudley Brown, president of the National Association for Gun Rights was candid in his analysis of red flag laws, stating that authorities can seize individuals’ guns “simply on the pretense of a ‘tip’ from someone you may not even know.”
Second Amendment Sanctuaries: How States Nullify Federal Gun Control
Nullification is as American as apple pie. It dates back to 1798, when the legislatures of Kentucky and Virginia supported resolutions that asserted the states’ right to stand against federal infringements on their powers. During the 1850s, Northern states resisted the Fugitive Slave Act of 1850. For Second Amendment activists attempting to roll back federal overreach on the right to bear arms, this strategy is slowly becoming an attractive option.
During the Obama Administration (2008-2016), Republicans in various state legislatures put forward dozens of nullification bills. By the end of his eight-year term, 22 states had 50 bills pushing back against encroachments on the Second Amendment and governors signed five bills into law taking on federal gun control.
- Idaho: In March 2014, Idaho became the first state to pass a prohibition on future federal gun control legislation when Governor Butch Otter signed S.1332. On paper, this law will keep state and local police from enforcing recently enacted gun control actions such as the Trump administration’s bump stock ban, on top of other future gun control coming from Washington, D.C. It should be noted that such legislation hinges on local and state support, so if it’s lacking in this regard, the bill will be effectively toothless.
- Indiana: Another way states have stepped up to challenge gun control is by introducing legislation that bans state enforcement of specific gun control measures that are currently on the books. For example, when Mike Pence was Governor of Indiana he signed a bill that “Repeals the prohibition against manufacturing, importing, selling, or possessing a sawed-off shotgun” in 2015.
- Tennessee: Other forms of gun control nullification include measures that prohibit state enforcement of all federal gun control, in the present and future. In 2015, Tennessee Governor Bill Haslam signed a bill into law that made a significant step toward nullifying numerous current and future gun control actions. This law bars the state from enacting or enforcing federal gun control measures that are in violation of the Tennessee state constitution. Scott Landreth of ShallNot.org suggests that “Things won’t change until the people use this new law to make them change.”
- Alaska: On the books since 2013, this Alaska law gives the state the power to nullify current and future gun control legislation. It sets the principle that no state or local entity can use any resources to “implement or aid in the implementation” of any federal measures that violate a “person’s right, under the Second Amendment to the Constitution of the United States, to keep and bear arms.”
- Kansas: Kansas signed a similar piece of legislation – the 2nd Amendment Protection Act – in April 2013. Like the Alaska legislation, the Kansas law lays the foundation for a prohibition on state and local aid or participation in the enforcement of federal gun control actions. The legislation partly reads: “Any act, law, treaty, order, rule or regulation of the government of the United States which violates the second amendment to the constitution of the United States is null, void and unenforceable in the state of Kansas.” In June 2015, a federal judge tossed out a lawsuit filed by the Brady Campaign, which challenged the constitutionality of the Kansas law. The judge argued that the lawsuit was “without merit.”
The election of Donald Trump changed the overall dynamic of the nullification movement. According to the Tenth Amendment Center – one of the leading organizations promoting nullification and other measures restoring states’ rights – the number of nullification bills introduced as well as the number of states pushing back fell by more than half.
The Inalienable Rights of an American Citizen
The work of the Founding Fathers, the Second Amendment is uniquely American. They were men who had to fight for their freedom from tyranny, and who intended that the means for that fight should never be taken away from American citizens.
Over the last two centuries, however, the United States and its people have sought to strike a balance between the rights guaranteed by the Second Amendment and the mayhem created by guns wielded by unhinged individuals. In that balancing act, outrage and fear have been powerful forces pushing some Americans to call for more firearm laws in order to keep guns out of the hands of criminals, assassins and terrorists.
As this balancing act continues, it is worth remembering the unshakeable connection between American citizenship and the right to bear arms from an American once denied that right:
“Once let the black man get upon his person the brass letters, U.S., let him get an eagle on his button, and a musket on his shoulder, and bullets in his pockets, and there is no power on earth which can deny that he has earned the right to citizenship in the United States.”