# Federal Firearms Laws: Overview and Selected Legal Issues for the 116th Congress > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR45629 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** March 25, 2019 - **Citation:** R45629 ## Text Federal Firearms Laws: Overview and Selected Legal Issues for the 116th Congress Sarah Herman Peck Legislative Attorney Michael A. Foster Legislative Attorney March 25, 2019 Congressional Research Service 7-.... www.crs.gov R45629 SUMMARY Federal Firearms Laws: Overview and Selected Legal Issues Firearms regulation is an area of shared authority among federal, state, and local governments. Individual states have enacted a diverse range of laws relating to the possession, registration, and carrying of firearms, among other things. Federal law establishes a regulatory framework for the lawful manufacture, sale, and possession of firearms at the national level. The federal framework generally serves as a floor for permissible firearm use and transactions, leaving states free to supplement with additional restrictions so long as they do not conflict with federal law. R45629 March 25, 2019 Sarah Herman Peck Legislative Attorney -re-acte--@crs.loc.gov Michael A. Foster Legislative Attorney -re-acte--@crs.loc.gov For a copy of the full report, Federal laws regulating firearms date back roughly a century, and over time lawmakers have please call 7-.... or visit established more stringent requirements for the transfer, possession, and transportation of www.crs.gov. firearms. The two principal federal firearms laws currently in force are the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA), as amended. The NFA was the first major piece of federal legislation regulating the sale and possession of firearms. Through a taxation and registration scheme, the law sought to curb the rise of violence connected to organized crime by targeting the types of weapons that (at the time of passage) were commonly used by gang members. Congress passed the GCA in the wake of the assassinations of Dr. Martin Luther King Jr. and Senator Robert Kennedy to prevent firearm possession by prohibited persons and to help law enforcement stem increasing crime rates. The GCA is a complex statutory regime that has been supplemented regularly in the decades since its inception. Broadly speaking, the GCA, as amended, regulates the manufacture, transfer, and possession of firearms, extending to categories of weapons that fall outside the scope of the NFA. In general terms, the GCA sets forth who can— and cannot—sell, purchase, and possess firearms, how those sales and purchases may lawfully take place, what firearms may lawfully be possessed, and where firearm possession may be restricted. The Brady Handgun Violence Prevention Act amended the GCA to require a background check for many, but not all, firearms transfers. Numerous constitutional considerations may inform congressional proposals to modify the current framework for regulating firearms sales and possession. Although Congress has broad constitutional authority to regulate firearms, any firearm measure must be rooted in one of Congress’s enumerated powers. In enacting firearms laws, Congress has typically invoked its tax, commerce, and spending powers. For example, the NFA invokes Congress’s tax power, and many GCA provisions invoke Congress’s commerce power. Additionally, Congress has used its spending power to incentivize states, through offering grant money, to provide comprehensive records to the FBI’s National Instant Background Check System (NICS). When exercising its enumerated powers, Congress nevertheless must be mindful of other constitutional restraints. Congress may want to look to the Supreme Court’s Second Amendment jurisprudence—chiefly, District of Columbia v. Heller—when imposing any firearm restriction. In Heller, the Supreme Court held that the Second Amendment provides an individual right to keep and bear arms for lawful purposes. Further, the Due Process Clause of the Fifth Amendment limits Congress’s ability to deprive a person of any constitutionally protected interest, such as Second Amendment firearms rights, and rights in property, such as firearms and accessories. Moreover, when enacting measures seeking to limit state firearm schemes, Congress may want to consider the federalism limits inherent in the Constitution’s system of dual sovereignty, such as the anti-commandeering doctrine. These constitutional considerations are relevant to the scope of legislation that the 115 th and 116th Congresses have considered to amend the existing federal statutory framework of firearms regulation. Among other things, such legislation has focused on issues arising from the dissemination of 3D-printed and untraceable firearms, gaps in the collection of records for background checks of prospective firearm purchasers, restrictions on certain types of firearms and accessories, possession of firearms by the mentally ill, interstate reciprocity for lawful concealed carry of firearms, and laws permitting courts to order that firearms be temporarily removed from persons deemed to be a risk to themselves or others. Congressional Research Service Federal Firearms Laws: Overview and Selected Legal Issues Contents Historical Overview of Major Federal Firearms Laws .................................................................... 1 Federal Statutory Framework .......................................................................................................... 3 National Firearms Act of 1934 .................................................................................................. 3 Weapons Covered ............................................................................................................... 3 Registration and Identification ............................................................................................ 4 Taxation............................................................................................................................... 5 Penalties .............................................................................................................................. 5 Gun Control Act of 1968 ........................................................................................................... 6 Licensing of Firearm Manufacturers and Dealers............................................................... 6 Prohibitions on Firearm Possession .................................................................................... 8 Background Checks for Firearm Purchases ...................................................................... 18 Interstate Firearm Sales and Transfers .............................................................................. 22 Penalties ............................................................................................................................ 23 Constitutional Considerations ....................................................................................................... 24 Constitutional Source of Authority to Enact Firearms Measures ............................................ 25 Tax Power ......................................................................................................................... 25 Commerce Clause Power .................................................................................................. 26 Spending Power ................................................................................................................ 29 Constitutional Constraints on Congress’s Ability to Regulate Firearms ................................. 30 The Second Amendment ................................................................................................... 30 Due Process....................................................................................................................... 32 Federalism......................................................................................................................... 34 Select Legal Issues for the 116th Congress .................................................................................... 35 3D-Printed Firearms ................................................................................................................ 35 Background Checks ................................................................................................................ 37 Concealed Carry Reciprocity .................................................................................................. 39 Mental Illness .......................................................................................................................... 40 Particular Firearms and Accessories ....................................................................................... 42 “Red Flag” Laws ..................................................................................................................... 44 Contacts Author Contact Information .......................................................................................................... 45 Congressional Research Service Federal Firearms Laws: Overview and Selected Legal Issues irearms have a unique significance in American society. Millions own or use firearms for numerous lawful purposes, such as hunting and protecting themselves in the home.1 Still, firearms annually cause tens of thousands of injuries and deaths, including in high-profile mass shootings.2 The widespread lawful and unlawful uses of firearms have prompted vigorous debate over whether further firearm regulation would be effective or appropriate. And framing the policy debate are legal issues stemming from the existing federal framework of firearms laws and the constitutional constraints that may cabin Congress’s ability to legislate in this area. F Firearms regulation at the federal level has grown more expansive over time, setting rules for the lawful manufacture, sale, and possession of firearms at the national level.3 These federal firearms laws mostly serve as a baseline that states can (and sometimes do) supplement, and Congress regularly considers legislation to address perceived gaps in these laws.4 Proposals to modify the current federal framework for regulating firearms may be informed by numerous constitutional considerations, including the scope of the Second Amendment right to keep and bear arms and the need to ground legislation in one of Congress’s enumerated powers.5 This report provides an overview of the development of federal firearms laws and the major components of the current statutory regimes governing firearms. It then describes the constitutional considerations that may impact Congress’s ability to enact firearms laws. Finally, this report describes selected topical areas where the 115th and 116th Congresses have considered legislation to amend the existing federal framework regulating firearms, highlighting some of the constitutional issues that may arise in those areas. Historical Overview of Major Federal Firearms Laws Federal laws regulating firearms date back roughly a century, and over time lawmakers have established more stringent requirements for the transfer, possession, and transportation of firearms. Though not a regulation of firearms per se, an excise tax was levied on imported firearms and ammunition beginning in 1919.6 In 1927, a federal law was enacted prohibiting the use of the U.S. Postal Service to ship concealable firearms.7 Then, “[s]purred by the bloody ‘Tommy gun’ era” of the 1920s and early 1930s,8 Congress passed the National Firearms Act of 1 According to a Gallup poll, 43% of U.S. households owned at least one gun in 2018. STATISTA, Percentage of households in the United States owning one or more firearms from 1972 to 2018, https://www.statista.com/statistics/249740/percentage-of-households-in-the-united-states-owning-a-firearm/ (last visited Mar. 20, 2019). 2 See John Gramlich, 7 facts about guns in the U.S., PEW RES. CTR., FACTTANK (Dec. 27, 2018), https://www.pewresearch.org/fact-tank/2018/12/27/facts-about-guns-in-united-states/ (stating that nearly 40,000 people died of gun-related violence, including through suicide, in the United States in 2017). 3 See infra “Historical Overview of Major Federal Firearms Laws.” 4 See infra “Select Legal Issues for the 116th Congress.” 5 See infra “Constitutional Considerations.” 6 26 U.S.C. § 4181; see ATF, Firearms and Ammunition Excise Tax (FAET), https://www.atf.gov/firearms/firearmsguides-importation-verification-firearms-ammunition-and-implements-war-firearms (last visited Mar. 4, 2019). 7 The provision, which is still in force and contains exceptions, can be found at 18 U.S.C. § 1715. 8 History of gun-control legislation, WASH. POST (Dec. 22, 2012), https://www.washingtonpost.com/national/historyof-gun-control-legislation/2012/12/22/80c8d624-4ad3-11e2-9a42d1ce6d0ed278_story.html?utm_term=.e566a63e1095; 78 CONG. REC. 11,400 (1934) (statement of Rep. Robert L. Doughton) (“For some time this country has been at the mercy of gangsters, racketeers, and professional criminals. The rapidity with which they can go across state lines has become a real menace to the law-abiding people of this country.”). Congressional Research Service 1 Federal Firearms Laws: Overview and Selected Legal Issues 1934 (NFA), which established a stringent taxation and registration scheme for specified weapons associated with the Prohibition-fueled gang violence of the time.9 A few years later, Congress enacted the Federal Firearms Act of 1938 (FFA), which created a licensing scheme for the manufacture, importation, and sale of firearms and established limited categories of persons who could not possess firearms.10 The FFA eventually was superseded, however, by the more comprehensive Gun Control Act of 1968 (GCA).11 In addition to expanding the FFA’s licensing scheme and categories of prohibited persons—which largely had been restricted to certain criminals—the GCA augmented the criminal penalties available for violations and established procedures for obtaining relief from firearm disabilities.12 Since the GCA’s passage, intervening legislation has amended the regulatory regime significantly. For instance, the Firearm Owners’ Protection Act of 1986 (FOPA) carved out exceptions to the felony firearm prohibition for certain crimes, repealed certain regulations pertaining to ammunition, expressly prohibited the creation of a national gun registry, added additional categories of persons who are barred from possessing firearms, prohibited the private possession of machineguns manufactured on or after the date of FOPA’s enactment, and further expanded the available criminal penalties for violations, among other things.13 Additionally, the Brady Handgun Violence Protection Act of 1993 (Brady Act) mandated that the Attorney General create a background check system—the National Instant Criminal Background Check System (NICS)—which queries various government records that could indicate that a prospective transferee is ineligible to receive a firearm.14 The Brady Act further required that a background check be run for many, but not all, proposed firearms transfers before they can be completed.15 And the Gun-Free School Zones Act added a provision to the GCA that, subject to certain exceptions, bans firearms in statutorily defined school zones.16 In 1994, Congress also imposed a 10-year moratorium on the manufacture, transfer, or possession of “semiautomatic assault weapons,” as defined in the act, and large capacity ammunition feeding devices, but the ban was permitted to expire in 2004.17 Finally, some piecemeal legislation in recent years has sought to protect lawful firearm owners, manufacturers, or dealers in certain ways. For example, the Protection of Lawful Commerce in Arms Act, enacted in 2005, grants civil immunity to firearm manufacturers, dealers, and importers when weapons made or sold by them are misused by others.18 9 Pub. L. No. 73-474, 48 Stat. 1236 (1934). 10 Pub. L. No. 75-785, 52 Stat. 1250 (1938). 11 Pub. L. No. 90-618, 82 Stat. 1213 (1968). 12 Compare Pub. L. 75-785, 52 Stat. 1250 (1938), with Pub. L. No. 90-618, 82 Stat. 1213 (1968). 13 Pub. L. No. 99-308, 100 Stat. 449 (1986). 14 Pub. L. No. 103-159, 110 Stat. 3009 (1993). 15 Id. § 102 (codified at 18 U.S.C. § 922(t)). 16 Pub. L. No. 104-208, 104 Stat. 4789 (1996) (codified at 18 U.S.C. § 922(q)). This law replaced an earlier version of the Gun Free School Zones Act, which the Supreme Court struck down as exceeding Congress’s authority under the Commerce Clause. See United States v. Lopez, 514 U.S. 549 (1995). 17 Pub. L. No. 103-322, 108 Stat. 1796, Title XI (1994). 18 See Pub. L. No. 109-92, 119 Stat. 2095 (2005). The provision is subject to exceptions, which have formed the basis for litigation in the wake of at least one mass shooting. See Soto v. Bushmaster Firearms Intl., LLC, No. SC 19832, 2019 WL 1187339 (Conn. Mar. 19, 2019) (concluding that parents of Sandy Hook shooting victims may proceed with claims against firearm manufacturer under state consumer protection statute). Congressional Research Service 2 Federal Firearms Laws: Overview and Selected Legal Issues Federal Statutory Framework Firearms regulation in the United States is an area of shared authority among federal, state, and local governments.19 Individual states have enacted a variety of laws relating to the possession, registration, and carrying of firearms, among other things.20 However, federal law establishes a baseline regulatory framework that state and local laws may not contradict.21 Thus, the current collection of federal firearms laws may be thought of as a regulatory floor that sets out, at the federal level, the minimum requirements for lawful manufacture, sale, and possession of firearms. The two principal federal firearms laws currently in force are the NFA22 and the GCA, as amended.23 The Department of Justice's Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is the principal agency charged with administering these laws.24 National Firearms Act of 1934 The NFA was the first major piece of federal legislation regulating the sale and possession of firearms.25 Through a taxation and registration scheme, the law sought to curb the rise of violence connected to organized crime by targeting the types of weapons that (at the time of passage) were commonly used by gang members.26 Weapons Covered In its current form, the NFA regulates the manufacture, transfer, and possession of certain enumerated weapons deemed to be “particularly dangerous”27: (1) short-barreled shotguns, defined as having a barrel length under 18 inches; (2) short-barreled rifles, defined as having a barrel length under 16 inches; (3) modified shotguns or rifles with an overall length under 26 inches; (4) machineguns,28 defined as weapons—including frames or receivers—that shoot 19 See Leslie Shapiro, Sahil Chinoy, & Aaron Williams, How strictly are guns regulated where you live?, WASH. POST (Feb. 20, 2018) (“Many of the laws regulating access to firearms have been passed at the state level.”). 20 See id. (surveying seven types of firearms regulations across states). 21 18 U.S.C. § 927 (“No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”). Federal law also ensures that certain active or retired law enforcement officers may carry concealed firearms and that, subject to certain requirements, authorized persons may transport firearms “for any lawful purpose” from one place where they “may lawfully possess and carry” the firearms to any other such place, irrespective of more restrictive state or local laws. 18 U.S.C. §§ 926A-926C. 22 Pub. L. No. 73-474, 48 Stat. 1236 (1934). 23 Pub. L. No. 90-618, 82 Stat. 1213 (1968). The import and export of many firearms are governed as well by the Arms Export Control Act (AECA) and implementing International Traffic in Arms Regulations (ITAR). See 22 U.S.C. § 2778; 22 C.F.R. pts. 120-130. AECA, ITAR, and the import and export of firearms are beyond the scope of this report. 24 See 27 C.F.R. pts. 478, 479. 25 Nicholas J. Johnson, A Second Amendment Moment, 71 BROOK. L. REV. 715, 769 (2005). 26 See Pub. L. No. 73-474, 48 Stat. 1236 (1934); 73 CONG. REC. 11,400 (1934) (statement of Rep. Robert L. Doughton) (“For some time this country has been at the mercy of gangsters, racketeers, and professional criminals. The rapidity with which they can go across state lines has become a real menace to the law-abiding people of this country.”). 27 United States v. Posnjak, 457 F.2d 1110, 1113 (2d Cir. 1972). 28 The Firearm Owners’ Protection Act of 1986 subsequently prohibited the possession and transfer of machineguns unless they are possessed by or transferred to or from federal or state authorities or were lawfully possessed before the effective date of the act (May 19, 1986). See 18 U.S.C. § 922(o). Thus, only machineguns manufactured and lawfully Congressional Research Service 3 Federal Firearms Laws: Overview and Selected Legal Issues “automatically more than one shot, without manual reloading, by a single function of the trigger,” as well as parts intended to convert other weapons into machineguns; (5) silencers;29 (6) “destructive devices,” including bombs, grenades, rockets, and mines; and finally (7) a catchall category of “any other weapon” that is “capable of being concealed on the person from which a shot can be discharged through the energy of an explosive,” among other things.30 The NFA explicitly exempts from regulation antique firearms and other devices that are primarily “collector’s item[s]” not likely to be used as weapons.31 Registration and Identification All NFA firearms that are produced or imported—as well as their manufacturers, dealers, or importers—must be authorized by and registered with the Attorney General (previously, the Secretary of the Treasury).32 Any transfer of an NFA firearm must likewise be accompanied by a registration in the name of the transferee.33 The registrations of all NFA firearms not in the possession or under the control of the United States are maintained in a central registry,34 and all persons possessing NFA firearms must retain proof that such firearms have been registered.35 Any NFA firearm that is produced or imported must be identifiable, with firearms that are not destructive devices bearing, among other things, a serial number that “may not be readily removed, obliterated, or altered.”36 held prior to May 19, 1986, may be possessed and transferred today. Id. On December 26, 2018, the regulatory definition of machinegun was amended, for purposes of the NFA and GCA, to include bump-stock-type devices, i.e., devices that “allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.” Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (to be codified at 27 C.F.R. pts. 447, 478, & 479). The rule becomes effective March 26, 2019. Id. 29 Over the years, several bills have been introduced concerning the NFA’s regulation of firearm silencers, including in the 116th Congress. E.g., Hearing Protection Act, H.R. 155, 116th Cong. (2019). If enacted, these bills principally would remove silencers from NFA regulation and preempt states from imposing laws related to taxing, marking, recordkeeping, and registration requirements for firearm silencers. Id.; see also Silencers Help Us Save Hearing (SHUSH) Act, H.R. 775, 116th Cong. (2019); Silencers Help Us Save Hearing (SHUSH) Act, S. 202, 116th Cong. (2019). 30 26 U.S.C. § 5845(a)-(b), (e)-(f). The catchall “any other weapon” category also includes “a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell” and “weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading” but specifically excludes pistols and revolvers with “rifled bores” or “weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.” Id. § 5845(e). 31 Id. § 5845(a), (g). 32 Id. §§ 5802, 5822, 5841(b)-(c). 33 Id. §§ 5812, 5841(b)-(c). 34 Id. § 5841(a). The registry is administered by the director of ATF. See 28 C.F.R. § 0.131(d). 35 26 U.S.C. § 5841(e). 36 Id. § 5842(a). Destructive devices must also be identified in a manner prescribed by regulation. Id. § 5842(c); see 27 C.F.R. § 479.102(d) (permitting ATF director to authorize alternative means of identifying destructive devices upon receipt of written letter showing that “engraving, casting, or stamping (impressing) such a weapon would be dangerous or impracticable”). Congressional Research Service 4 Federal Firearms Laws: Overview and Selected Legal Issues Taxation Every importer, manufacturer, and dealer in NFA firearms must pay an annual “special (occupational) tax for each place of business,”37 and a separate tax must also be paid for each firearm made.38 Upon transfer of an NFA firearm, the transferor is subject to a tax of a varying amount depending on whether the firearm to be transferred falls under the catchall category of “any other weapon.”39 A number of tax exemptions exist. Most notably, firearms made by or transferred to the United States, any state, any political subdivision of a state, or any official police organization engaged in criminal investigations are exempted,40 as are firearms made by or transferred between qualified manufacturers or dealers.41 Penalties A person who violates or fails to comply with the requirements of the NFA is subject to a fine of up to $10,000, imprisonment for up to 10 years, or both.42 Firearms involved in violations are also subject to forfeiture.43 To be criminally culpable for a violation of the NFA, one generally must have knowledge of the features of the firearm that make it a “firearm” under the statute, but one need not know that such a firearm is unregistered.44 As originally enacted, a person compelled by the NFA to disclose possession through registration could then be prosecuted if the registration reflected that the person was barred by other legal provisions from possessing firearms.45 However, the Supreme Court ruled in Haynes v. United States46 that this forced disclosure of potentially incriminating information violated the Fifth Amendment to the U.S. Constitution, which provides in part that no person “shall be compelled in any criminal case to be a witness against himself[.]”47 Haynes prompted Congress to amend the statute to make clear, among other things, that no information from registration records that are required to be submitted or retained by a natural person may be used as evidence against that person in a criminal proceeding for a violation of law occurring prior to or concurrently with the filing of the records, unless the prosecution relates to the furnishing of false information.48 As amended, the Court has rejected a subsequent challenge to the NFA on Fifth Amendment grounds.49 37 Id. § 5801. 38 Id. §§ 5821-22. 39 Id. §§ 5811-12. 40 Id. §§ 5852-5853. 41 Id. § 5852(c)-(d). 42 Id. § 5871. 43 Id. § 5872. 44 Staples v. United States, 511 U.S. 600, 619 (1994); United States v. Cox, 906 F.3d 1170, 1189-90 (10th Cir. 2018); United States v. White, 863 F.3d 784, 789-90 (8th Cir. 2017). 45 United States v. Freed, 401 U.S. 601, 602-04 (1971). 46 390 U.S. 85 (1968). 47 U.S. CONST. amend. V. 48 18 U.S.C. § 5848. 49 See Freed, 401 U.S. at 605. Congressional Research Service 5 Federal Firearms Laws: Overview and Selected Legal Issues Gun Control Act of 1968 Congress passed the GCA in the wake of the assassinations of Dr. Martin Luther King Jr. and Senator Robert Kennedy to “keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency and to assist law enforcement authorities in the states and their subdivisions in combating the increasing prevalence of crime in the United States.”50 Among other things, the statute represented “a Congressional attempt to stem the traffic in dangerous weapons being used in an increasing number of crimes involving personal injury.”51 As enacted, the GCA expanded the existing licensing scheme52 for the manufacture, importation, and sale of firearms and augmented a previously enacted prohibition on the possession of firearms by certain categories of persons (including felons and “mental defective[s]”).53 It also supplemented available criminal penalties and established procedures for obtaining relief from firearms disabilities.54 The GCA today is not a single statute but rather a complex statutory regime that has been supplemented regularly in the decades since its inception. Broadly speaking, the GCA, as amended, regulates the manufacture, transfer, and possession of firearms, extending to categories of weapons that fall outside the scope of the NFA.55 In general terms, the GCA sets forth who can—and cannot—sell, purchase, and possess firearms; how those sales and purchases may lawfully take place; what firearms may lawfully be possessed; and where firearm possession may be restricted.56 Major components of the GCA and related supplementing statutes are discussed below, focusing on (1) licensing requirements for firearm manufacturers and dealers, (2) prohibitions on firearm possession, (3) background checks for firearm purchases, (4) interstate firearm sales and transfers, and (5) penalties. Licensing of Firearm Manufacturers and Dealers The GCA regulates the manufacture and sale of firearms by requiring persons and organizations “engaged in the [firearms] business”—that is, importers, manufacturers, and dealers—to obtain a license from the federal government and pay an annual fee.57 These persons and entities are commonly known as Federal Firearm Licensees, or FFLs.58 Applicants must meet various 50 S. Rept. No. 90-1097 (1968). 51 United States v. Posnjak, 457 F.2d 1110, 1113 (2d Cir. 1972). 52 Federal Firearms Act of 1938, Pub. L. No. 75-785, 52 Stat. 1250 (1938). 53 See Pub. L. No. 90-618, 82 Stat. 1213 (1968). 54 Id. 55 The GCA defines a “firearm” as “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.” 18 U.S.C. § 921(a)(3). “Antique” firearms—i.e., firearms manufactured in or before 1898 or certain muzzle-loading weapons designed to use black powder, among other things—are not included. Id. § 921(a)(3), (16). 56 Id. § 922. 57 Id. §§ 921(a)(9)-(11), 922(a), 923. Manufacturers and importers must likewise obtain a license to engage in the business of importing or manufacturing ammunition. Id. § 923(a). The GCA separately provides for the licensing of collectors of “curios or relics,” which are firearms “of special interest to collectors” by reason of age or other unique characteristics. See 18 U.S.C. § 921(a)(13); 27 C.F.R. § 478.11. Licensed collectors may engage in interstate transactions involving curios and relics, but they must still become licensed dealers if they wish to be “engaged in the business” of acquiring or selling any firearms (including curios and relics). 27 C.F.R. § 478.41(d). 58 See, e.g., ATF, Listing of Federal Firearms Licensees (FFLs) – 2016, https://www.atf.gov/firearms/listing-federalfirearms-licensees-ffls-2016 (last visited Feb. 14, 2019). Congressional Research Service 6 Federal Firearms Laws: Overview and Selected Legal Issues requirements to become FFLs, including being at least 21 years of age, maintaining a premises from which to conduct business that meets safety standards, and certifying compliance with applicable state and local laws.59 Upon licensing, FFLs are subject to recordkeeping60 and reporting61 obligations with respect to the disposition of firearms to non-FFLs and must identify imported or manufactured firearms by means of a serial number,62 among other things. FFLs also must comply with background-check requirements and certain other transfer restrictions discussed in more detail below.63 An FFL who willfully violates any provision of the GCA or implementing regulations may, after notice and opportunity for hearing, have his or her license revoked.64 In this context, a “willful” violation means that the FFL purposefully disregarded or was plainly indifferent to his or her known legal obligation.65 A key question with respect to the GCA’s licensing regime is what it means to be “engaged in the [firearms] business.” Manufacturers are considered to be “engaged in the business” if they “devote time, attention, and labor to manufacturing firearms as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of firearms manufactured.”66 And dealers are considered to be “engaged in the business” if they “devote[] time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”67 A person is not “engaged in the business” of dealing in firearms, however, if that person “makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”68 Accordingly, if a person falls within this definitional exclusion, he or she is not subject to the licensing regime and other FFL requirements, such as conducting background checks. There have been a number of court decisions shedding further light on what it means to be “engaged in the business” of dealing in firearms under the GCA, which is a fact-specific question that is dependent on the particular circumstances of the case.69 Even though the statute mandates 59 18 U.S.C. § 923(d). 60 See id. § 923(g)(1)(A) (requiring maintenance of “such records of importation, production, shipment, receipt, sale, or other disposition of firearms ... as the Attorney General may by regulations prescribe”); 27 C.F.R. § 478.124 (establishing record requirements, which include information on transferee and firearm being transferred). 61 See 18 U.S.C. § 923(g)(3)(A) (requiring reporting of multiple sales or dispositions of pistols or revolvers to unlicensed persons); id. § 923(g)(5)(A) (requiring submission of record information to Attorney General upon request); id. § 923(g)(6) (requiring reporting of theft or loss of firearm from inventory within 48 hours of discovery). Litigants have, at times, objected to government requests for record information on the ground that such requests amount to an end-run around a separate provision of the GCA that prohibits any “rule or regulation” establishing a gun registry, 18 U.S.C. § 926, but such arguments have not had much success. See, e.g., Ron Peterson Firearms, LLC v. Jones, 760 F.3d 1147, 1160 (10th Cir. 2014); RSM, Inc. v. Buckles, 254 F.3d 61, 67 (4th Cir. 2001) (acknowledging that ATF may not “issue limitless demand letters ... in a backdoor effort to avoid” the registry prohibition but concluding that “narrowlytailored” request in context of criminal investigation was permissible). 62 18 U.S.C. § 923(i). 63 See infra “Background Checks for Firearms Purchases,” “Interstate Firearms Sales and Transfers.” 64 18 U.S.C. § 923(e). Licenses may be revoked based on even a single willful violation. Fairmont Cash Mgmt., LLC v. James, 858 F.3d 356, 362 (5th Cir. 2017). 65 James, 858 F.3d at 362. 66 18 U.S.C. § 921(a)(21)(A). 67 Id. § 921(a)(21)(C). 68 Id. 69 See, e.g., United States v. Bailey, 123 F.3d 1381, 1392 (11th Cir. 1997) (“In determining whether one is engaged in the business of dealing in firearms, the finder of fact must examine the intent of the actor and all circumstances surrounding the acts alleged to constitute engaging in business.”) (internal quotation marks and citation omitted). Congressional Research Service 7 Federal Firearms Laws: Overview and Selected Legal Issues that, to require a license, the dealer’s principal objective in selling firearms must be livelihood and profit, courts have recognized that firearms sales need not be the person’s sole source of income or main occupation.70 Instead, relevant factors include (1) the quantity and frequency of firearms sales; (2) sale location; (3) how the sales occurred; (4) the defendant’s behavior before, during, and after the sales; (5) the type of firearms sold and prices charged; and (6) the defendant’s intent at the time of the sales.71 At least one federal appellate court appears to apply a broad standard, requiring the government to prove only that the defendant holds himself out as a source of firearms.72 Furthermore, because the number of firearms sold is typically only one of many factors courts consider, convictions under the GCA for unlawfully dealing in firearms without a license have been sustained for as few as two73 or four74 firearms sales. Prohibitions on Firearm Possession The GCA regulates firearm possession in several ways. Principally, the statute establishes categories of persons who, because of risk-related75 characteristics, may not possess firearms.76 Possession of certain types of firearms,77 as well as possession of firearms in certain locations,78 also are restricted. Prohibited Persons Under the GCA, it is unlawful for a person who falls into at least one of nine categories to ship, transport, possess, or receive any firearms or ammunition.79 Specifically, a person is prohibited if he or she   is a felon (i.e., someone who has been convicted in any court of a crime punishable by a term of imprisonment exceeding one year);80 is a fugitive from justice;81 70 See United States v. Focia, 869 F.3d 1269, 1280-82 (11th Cir. 2017). 71 Id.; United States v. Tyson, 653 F.3d 192, 201 (3d Cir. 2011). 72 United States v. Nadirashvili, 655 F.3d 114, 119 (2d Cir. 2011) (quoting United States v. Carter, 801 F.2d 78, 81-82 (2d Cir. 1986)). 73 See United States v. Shan, 361 F. App’x 182, 183 (2d Cir. 2010). 74 See United States v. Pineda, 411 F. App’x 612, 614 (4th Cir. 2011). 75 See United States v. Yancey, 621 F. App’x 681, 683 (7th Cir. 2010) (recognizing that GCA prohibitions aim to “keep guns out of the hands of presumptively risky people”). 76 18 U.S.C. § 922(g). 77 E.g., id. § 922(o). 78 E.g., id. § 922(q). 79 18 U.S.C. 922(g). As an exercise of Congress’s Commerce Clause powers, discussed in more detail infra, the provision requires receipt, shipping, or transportation to be “in interstate or foreign commerce” and possession to be “in or affecting commerce.” Id. 80 The GCA’s definition of crime punishable by imprisonment for a term exceeding one year excludes criminal offenses relating to antitrust violations, unfair trade practices, restraints of trade, or “other similar offenses related to the regulation of business practices.” 18 U.S.C. § 921(a)(20)(A). Additionally, if a state classifies a particular offense as a misdemeanor and that crime is punishable by a term of imprisonment of two years or less, the offense does not count as a “crime punishable by a imprisonment for a term exceeding one year” for purposes of 18 U.S.C. § 922(g)(1). Id. § 921(a)(20)(B). Finally, a person is not considered “convicted” for purposes of the prohibition if his or her conviction has been expunged or set aside or if the person has been pardoned or had his or her rights restored, unless the relevant order expressly provides otherwise. Id. 81 The GCA defines fugitive from justice as “any person who has fled from any State to avoid prosecution for a crime or Congressional Research Service 8 Federal Firearms Laws: Overview and Selected Legal Issues        is an unlawful user of, or is addicted to, any controlled substance;82 has been adjudicated as a “mental defective” or committed to a mental institution; has been admitted to the United States pursuant to a nonimmigrant visa83 or is an unlawfully present alien; has been dishonorably discharged from the Armed Forces; has renounced his or her U.S. citizenship; is subject to a court order preventing that person from harassing, stalking, or threatening an intimate partner (or that partner’s child) or engaging in other conduct that would cause the partner to reasonably fear bodily injury to himself or herself or the child; or has been convicted in any court of a misdemeanor crime of domestic violence.84 A separate GCA provision prohibits anyone—not just FFLs—from selling or otherwise disposing of a firearm if that person knows or has “reasonable cause” to believe that the prospective recipient fits into any of the above categories.85 Additionally, a person under indictment for a crime punishable by a term of imprisonment exceeding one year is not barred by the GCA from possessing a firearm but may not receive, ship, or transport a firearm.86 In other words, a person who has been charged with a felony need not forfeit already-owned firearms, but he or she may not acquire new ones while the charges are pending. The GCA also places significant restrictions on the transfer to, and possession of, firearms by persons under the age of 18.87 Because a number of the terms in the individual prohibitions of Section 922(g) are not defined by statute, the contours of some of the prohibitions have had to be fleshed out by regulations and to avoid giving testimony in any criminal proceeding.” Id. § 921(a)(15). There is a split in authority as to whether a person must have the intent to avoid prosecution when he leaves the jurisdiction or whether he must simply leave the jurisdiction knowing charges are pending and subsequently refuse to answer those charges. See United States v. Soza, 874 F.3d 884, 891 (5th Cir. 2017) (describing circuit split). 82 The term controlled substance is defined in Section 102 of the Controlled Substances Act, 21 U.S.C. § 802. 83 There are exceptions to this prohibition for (1) aliens admitted “for lawful hunting or sporting purposes” or in possession of lawfully issued hunting licenses or permits; (2) official, accredited representatives of foreign governments; (3) “distinguished foreign visitor[s]” designated by the Department of State; and (4) law enforcement officers of friendly foreign governments in the United States on official law enforcement business. 18 U.S.C. § 922(y)(2). Any alien admitted to the United States under a nonimmigrant visa may also petition to have the prohibition waived. Id. § 922(y)(3). 84 18 U.S.C. § 922(g). A misdemeanor crime of domestic violence is defined as an offense that is a misdemeanor under federal, state, or tribal law and “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.” Id. § 921(a)(33)(A). 85 Id. § 922(d). 86 Id. § 922(n). 87 See id. §§ 922(b)(1) (prohibiting FFL transfer of firearms to persons under age 18), 922(x) (prohibiting transfer and possession of handguns by persons under age 18, subject to exceptions). FFLs may sell shotguns and rifles, but not handguns, to persons under the age of 21. Id. § 922(b)(1). Congressional Research Service 9 Federal Firearms Laws: Overview and Selected Legal Issues judicial construction. Some of the interpretative issues raised with respect to these prohibitions are discussed briefly below. “Possession” by a prohibited person. For possession of a firearm by a prohibited person to be unlawful, that possession may be “actual” or “constructive.”88 Actual possession occurs when a person exercises physical control over a firearm.89 Constructive possession exists when a person has the power to exercise dominion and control over a firearm directly or through others.90 For example, actual possession may be found when, during a traffic stop, a police officer pats down the driver and discovers a firearm in the driver’s waistband.91 Constructive possession, on the other hand, may be found when, during a traffic stop, an officer observes a firearm not on the driver’s person but elsewhere inside the vehicle.92 Although proximity to a firearm, alone, is insufficient to establish constructive possession, the totality of the circumstances—including other evidence of a connection to the firearm, movements implying control, or the defendant’s activities before and after the discovery—is used to establish constructive possession.93 Persons prohibited due to a conviction for a felony or misdemeanor crime of domestic violence “in any court.” The prohibitions on possession of a firearm by a person convicted of a felony or a misdemeanor crime of domestic violence “in any court,” which are among the most frequently enforced prohibitions in the statute,94 raise the question of what constitutes “any court.” Initially, federal courts took an expansive view of the term. For instance, in holding that a military court-martial is a court within the meaning of the GCA, a 1997 opinion from the Seventh Circuit Court of Appeals used the dictionary definition of the word any: 88 See, e.g., United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011); United States v. McCane, 573 F.3d 1037, 1046 (10th Cir. 2009); United States v. Grubbs, 506 F.3d 434, 439 (6th Cir. 2007); United States v. Carrasco, 257 F.3d 1045, 1049 (9th Cir. 2001); Aybar-Alejo v. I.N.S., 230 F.3d 487, 488-89 (1st Cir. 2000); United States v. Rahman, 83 F.3d 89, 93 (4th Cir. 1996); United States v. Anderson, 78 F.3d 420, 422 (8th Cir. 1996). 89 See, e.g., United States v. Morales, 758 F.3d 1232, 1235 (10th Cir. 2014); United States v. Stoltz, 683 F.3d 934, 940 (8th Cir. 2012); United States v. Hampton, 585 F.3d 1033, 1040 (7th Cir. 2009); United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008); United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005); United States v. Gaines, 295 F.3d 293, 400 (2d Cir. 2002). 90 See, e.g., United States v. Naranjo-Rosario, 871 F.3d 86, 94 (1st Cir. 2017); United States v. Jones, 872 F.3d 483, 489 (7th Cir. 2017); United States v. Hill, 799 F.3d 1318, 1321 (11th Cir. 2015); United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008); United States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006); United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005); United States v. Urick, 431 F.3d 300, 303 (8th Cir. 2005); United States v. De Leon, 170 F.3d 494, 498 (5th Cir. 1999); United States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998). 91 See, e.g., United States v. Tiru-Plaza, 766 F.3d 111, 114 (1st Cir. 2014) (involving a suspect who pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) after an officer found a firearm in his waistband during an investigative stop). 92 See, e.g., United States v. Vichitvongsa, 819 F.3d 260, 274-77 (6th Cir. 2016) (concluding that there was sufficient evidence for a jury to find that the defendant constructively possessed a handgun that was sticking out from underneath the driver’s seat in the car he was driving based on its location and eyewitness testimony linking a firearm the defendant actually possessed and the one discovered in the car). 93 See, e.g., United States v. Schmitt, 770 F.3d 524, 534 (7th Cir. 2014); United States v. Byas, 581 F.3d 723, 726 (8th Cir. 2009); United States v. Mayberry, 540 F.3d 506, 514 (6th Cir. 2008); United States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003). 94 See Daniel Riess & Melissa A. Anderson, Post-Heller Second Amendment Litigation: An Overview, U.S. ATT’YS BULL. (Exec. Office for U.S. Attorneys, Columbia, S.C.), Nov. 2015, at 8, https://www.justice.gov/usao/file/794586/download (noting that in FY 2014, out of 6,405 total cases involving violations of Section 922(g), 5,736 involved the felony and domestic-violence misdemeanor conviction provisions). Congressional Research Service 10 Federal Firearms Laws: Overview and Selected Legal Issues Looking to section 922(g)(1), we find nothing that defines or limits the term "court," only a requirement that a conviction have been "in any court" in the course of prohibiting possession of firearms by a felon. Certainly "any court" includes a military court, the adjective "any" expanding the term "court" to include "one or some indiscriminately of whatever kind"; "one that is selected without restriction or limitation of choice"; or "all." 95 Additionally, some federal courts had concluded that a conviction in “any court,” for the purposes of determining a firearm disability, included convictions in foreign courts.96 But in resolving a circuit split over this issue,97 the Supreme Court interpreted the phrase to cover only domestic convictions in its 2005 ruling Small v. United States.98 In a 5-4 decision, the Court adopted a more limited interpretation of the GCA’s reference to “any” court than employed by the Seventh Circuit and other lower courts.99 In reaching its conclusion, the Court applied the legal presumption that “Congress ordinarily intends its statutes to have domestic, not extraterritorial application.”100 The Court ruled that this presumption against extraterritorial application was particularly relevant to the GCA, given the many potential differences between foreign and domestic convictions and “the potential unfairness of preventing those with inapt foreign convictions from possessing guns.”101 The Court additionally reasoned that nothing in the GCA’s text or legislative history suggests that the act was intended to allow foreign convictions to give rise to a firearms disability.102 Although the Supreme Court’s opinion in Small abrogated lower court rulings holding that foreign convictions serve as a predicate offense for the GCA’s firearm ban for felons, the opinion did not directly disturb earlier rulings holding that U.S. military convictions count for the ban. And a conviction by a court-martial does not appear to raise any of the concerns mentioned by the Supreme Court in Small about foreign convictions. Federal courts have not found tension with Small when analyzing the related issue of whether a court-martial conviction is encompassed by the term any court in statutes that provide heightened penalties for certain repeat offenders. For instance, the Eighth Circuit opined that courts-martial proceedings maintain a connection to the U.S. government, given that they were created by Congress and are governed by federal statute.103 And the Fourth Circuit reasoned that, although there are some differences between courts-martial and civilian courts, they do not “rise to the level of contrasts between domestic and foreign courts that Small highlighted.”104 Accordingly, a conviction by a court-martial for a crime punishable by a term exceeding one year or a misdemeanor crime of domestic violence likely would qualify as a conviction in “any court” for the purposes of the GCA’s firearm disqualifiers.105 95 United States v. Martinez, 122 F.3d 421, 424 (7th Cir. 1997) (citing WEBSTER’S THIRD NEW DICTIONARY 1991). 96 See United States v. Atkins, 872 F.2d 94, 96 (4th Cir. 1989); United States v. Winson, 793 F.2d 754, 757-59 (6th Cir. 1986). 97 Compare Atkins, 873 F.3d at 96 (concluding that “any court” includes foreign courts), and Winson, 793 F.2d at 757059 (same), with United States v. Gayle, 342 F.3d 89, 95 (2d Cir. 2003) (deciding that “any court” excludes foreign courts). 98 Small v. United States, 544 U.S. 385 (2005). 99 Id. at 388. 100 Id. at 388-91. 101 Id. at 388-91, 94. 102 Id. at 391-94. 103 United States v. Shaffer, 807 F.3d 943, 946 (8th Cir. 2015). 104 United States v. Grant, 753 F.3d 480, 485 (4th Cir. 2014). 105 For further discussion of this issue, see CRS Legal Sidebar LSB10029, In Any Way, Shape, or Form? What Congressional Research Service 11 Federal Firearms Laws: Overview and Selected Legal Issues Prohibition applicable to nonimmigrant visa holders. With respect to the prohibition for aliens admitted to the United States pursuant to nonimmigrant visas, the terms of the provision do not explicitly prohibit firearm possession for aliens otherwise admitted (e.g., those admitted on an immigrant visa,106 through the Visa Waiver Program,107 as refugees,108 or without a visa for brief visits for business or tourism by Canadian citizens109 and certain residents of the Caribbean islands).110 Initially, ATF interpreted the GCA provision barring firearm possession for aliens admitted on nonimmigrant visas as encompassing all foreign nationals in nonimmigrant status111 in the United States, including those categories of nonimmigrant aliens who do not need a visa to enter the United States.112 ATF reasoned that Congress intended for the prohibition to cover all nonimmigrant aliens, given that a nonimmigrant visa is needed for fewer than 50% of nonimmigrants entering the United States and merely “facilitates travel” rather than conferring nonimmigrant status.113 However, the DOJ’s Office of Legal Counsel (OLC) overruled ATF’s interpretation in 2011.114 “The text is clear,” OLC said, “the provision applies only to nonimmigrant aliens who must have visas to be admitted, not to all aliens with nonimmigrant status.”115 Additionally, OLC rejected ATF’s contention that “applying the [firearm] prohibit[ion] to only a particular subset of nonimmigrants would produce ‘irrational’ results.”116 Rather, OLC opined that Congress could have rationally concluded that nonimmigrants eligible for admission without a visa are less of a public safety risk or that nonimmigrants on brief visits to the United States may be less likely to purchase a firearm.117 In response, ATF issued a final rule imposing the firearm prohibition on only those nonimmigrants admitted to the United States with a nonimmigrant visa.118 ATF further announced that “[n]onimmigrant aliens lawfully admitted to the United States without a visa, pursuant either to the Visa Waiver Program or other exemptions from visa requirements, will not be prohibited from … possessing firearms.”119 Qualifies As “Any Court” under the Gun Control Act?, by Sarah Herman Peck. 106 For more information on immigration visas and policy, see CRS Report R42866, Permanent Legal Immigration to the United States: Policy Overview, by William A. Kandel. 107 For more information on the Visa Waiver Program, see CRS Report RL32221, Visa Waiver Program, by Jill H. Wilson. 108 For more information on refugee admissions and policy, see CRS Report RL31269, Refugee Admissions and Resettlement Policy, by Andorra Bruno. 109 22 C.F.R. § 41.2(a). 110 Id. § 41.2(b)-(e). 111 A “nonimmigrant alien” is defined as “[a]n alien in the United States in a nonimmigrant classification as defined by section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)).” 27 C.F.R. § 478.11. 112 Implementation of Public Law Relating to Firearms Disabilities for Nonimmigrant Aliens, 67 Fed. Reg. 5,422 (Feb. 5, 2002). 113 Id. 114 VIRGINIA A. SEITZ, MEMORANDUM OPINION FOR THE CHIEF COUNSEL, BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES: NONIMMIGRANT ALIENS AND FIREARMS DISABILITIES UNDER THE GUN CONTROL ACT (2011), http://www.justice.gov/sites/default/files/olc/opinions/2011/10/31/nonimmigrant-firearms-opinion_0.pdf. 115 Id. at 1 (emphasis added). 116 Id. at 4-5. 117 Id. 118 Firearms Disabilities for Certain Nonimmigrant Aliens, 77 Fed. Reg. 33,625, 33,627 (June 7, 2012). 119 Id. That said, other provisions of the GCA—such as the provisions restricting firearm sales to persons who do not reside in the same state as an FFL, discussed in more detail infra—may prevent nonimmigrants who were admitted into the United States without a visa from acquiring a firearm. Congressional Research Service 12 Federal Firearms Laws: Overview and Selected Legal Issues Prohibition applicable to those who unlawfully use or are addicted to a controlled substance. The prohibition on firearm possession by those who unlawfully use or are addicted to controlled substances also raises the question of what it means to be an “unlawful user” or “addicted.”120 Regulations define the terms as including those who have “lost the power of selfcontrol with reference to the use of [a] controlled substance,” as well as “current user[s]” of a controlled substance “in a manner other than as prescribed by a licensed physician.”121 The regulations make clear that one need not be using a controlled substance “at the precise time” a firearm is sought so long as use has occurred “recently enough to indicate that the individual is actively engaged in such conduct.”122 Prosecutions and court decisions appear to focus on the term unlawful user, which establishes a lower disability threshold than “addict[].”123 Cases interpreting the term “typically discuss two concepts: contemporaneousness and regularity,”124 requiring that there be some “pattern” and “recency” of controlled-substance use.125 For this reason, the prohibition appears to be temporary—that is, one may “regain his right to possess a firearm simply by ending his drug abuse.”126 Prohibition applicable to a person “adjudicated as a mental defective” or “committed to a mental institution.” The GCA is likewise silent as to the meaning of the terms adjudicated as a mental defective and committed to a mental institution for purposes of that prohibition. The term adjudicated as a mental defective has been interpreted in federal regulations, however, as: (a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: (1) Is a danger to himself or to others; or (2) Lacks the capacity to manage his own affairs. (b) The term shall include—(1) a finding of insanity by a court in a criminal case, and (2) those persons found incompetent to stand trial or found not guilty by lack of mental responsibility [under the Uniform Code of Military Justice]. 127 Prior to the issuance of the regulatory definition, at least one court had construed the term mental defective narrowly, encompassing only those who have “never possessed a normal degree of 120 18 U.S.C. § 922(g). 121 27 C.F.R. § 478.11. Because marijuana is a Schedule I controlled substance, deemed to have “no currently accepted medical use in treatment,” a user of marijuana in a state where it is lawful may nevertheless be subject to the prohibition; indeed, possession of a registry card for medicinal marijuana may establish “reasonable cause” for an FFL to conclude that an individual is an “unlawful user” under federal law. See Wilson v. Lynch, 835 F.3d 1083, 1088-89, 1099-1100 (9th Cir. 2016). 122 Id. 123 United States v. Patterson, 431 F.3d 832, 839 (5th Cir. 2005) (concluding that error in jury instruction was harmless because jury convicted defendant “of a higher standard, a standard approaching ‘addict’”). 124 Id. 125 United States v. Jackson, 280 F.3d 403, 406 (4th Cir. 2002); see also United States v. Augustin, 376 F.3d 135, 139 (3d Cir. 2004) (requiring “regular use over a period of time proximate to or contemporaneous with the possession of the firearm”). 126 United States v. Yancey, 621 F.3d 681, 686 (7th Cir. 2010). 127 27 C.F.R. § 478.11. The Department of Justice has proposed to amend this definition to bring it into conformity with the NICS Improvement Amendments Act of 2007 (discussed below) and to clarify that the latter findings apply to all courts—rather than merely the military judicial system—among other things. Amended Definition of “Adjudicated as a Mental Defective” and “Committed to a Mental Institution” (2010R-21P), 79 Fed. Reg. 774 (proposed Jan. 7, 2014) (to be codified at 27 C.F.R. pt. 478). Congressional Research Service 13 Federal Firearms Laws: Overview and Selected Legal Issues intellectual capacity” and excluding persons with “faculties which were originally normal [but which] have been impaired by mental disease.”128 The term committed to a mental institution has also been interpreted in regulations as including a “formal commitment” for “mental defectiveness,” mental illness, or “other reasons, such as drug use” by a “court, board, commission, or other lawful authority” that is “involuntary.”129 Whether a person has been formally and involuntarily committed appears to be fact-specific and dependent on state law.130 Prohibited Firearms Federal law generally does not bar the possession or sale of particular types of firearms, with two major caveats currently in effect.131 First, the Firearm Protection Owners’ Act of 1986 amended the GCA to prohibit the transfer and possession of machineguns.132 This prohibition does not apply, however, to (1) the transfer to or from, or possession by (or under the authority of) federal or state authorities; and (2) the transfer or possession of a machinegun lawfully possessed before the effective date of the act (May 19, 1986).133 In response to the 2017 mass shooting in Las Vegas, ATF recently amended the regulatory definition of machinegun for purposes of the NFA and GCA to include bump-stock-type devices, i.e., devices that “allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.”134 The amended definition is effective as of March 26, 2019, rendering possession of bump-stock-type devices illegal (subject to exceptions) as of that date pursuant to the machinegun prohibition.135 128 United States v. Hansel, 474 F.2d 1120, 1124 (8th Cir. 1973). See United States v. Vertz, 102 F. Supp. 2d 787, 788 (W.D. Mich. 2000) (declining to adopt Hansel definition in light of regulatory interpretation). Given that Hansel was decided prior to adoption of the regulatory definition, it is questionable whether the Eighth Circuit would adhere to it today. But see United States v. B.H., 466 F. Supp. 2d 1139, 1146-47 (N.D. Iowa 2006) (declining to depart from Hansel despite intervening regulatory definition and Supreme Court precedent). 129 27 C.F.R. § 478.11. A proposed amendment to this definition would clarify that commitment includes involuntary outpatient treatment. Amended Definition of “Adjudicated as a Mental Defective” and “Committed to a Mental Institution” (2010R-21P), 79 Fed. Reg. 774 (proposed Jan. 7, 2014) (to be codified at 27 C.F.R. pt. 478). For additional discussion of the prohibitions in 18 U.S.C. § 922(g)(4), see CRS Report R43040, Submission of Mental Health Records to NICS and the HIPAA Privacy Rule, coordinated by Edward C. Liu. 130 See United States v. McIlwain, 772 F.3d 688, 694-96 (11th Cir. 2014) (surveying interpretations of other circuits). 131 As noted previously, as part of the Violent Crime Control and Law Enforcement Act of 1994, Congress enacted the Public Safety and Recreational Firearms Act, which implemented a 10-year prohibition on the manufacture, transfer, or possession of “semiautomatic assault weapons,” as defined in the act, and large capacity ammunition feeding devices. Pub. L. No. 103-322, 108 Stat. 1796, Title XI (1994). The ban, which had several exceptions, expired on September 13, 2004. Congress has considered a number of proposals over the years to reinstate the ban, with modifications. E.g., Assault Weapons Ban of 2019, S. 66, 116th Cong. (2019). 132 18 U.S.C. § 922(o). Separate provisions of the GCA also prohibit FFLs from selling machineguns, destructive devices, short-barreled shotguns, and short-barreled rifles to non-FFLs “except as specifically authorized by the Attorney General consistent with public safety and necessity. Id. § 922(b)(4). 133 See id. § 922(o)(2). Lawful transfers and possessors must still comply with the taxation and registration requirements of the NFA. 26 U.S.C. § 5845(a). 134 Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (to be codified at 27 C.F.R. pts. 447, 478, & 479); see Devlin Barrett, Justice Department will ban bump-stock devices that turn rifles into fully automatic weapons, WASH. POST (Dec. 18, 2018), https://www.washingtonpost.com/world/national-security/justice-department-will-banbump-stock-devices-that-turn-rifles-into-fully-automatic-weapons/2018/12/18/6ee08434-02e2-11e9-b5df5d3874f1ac36_story.html?utm_term=.1ac81fdfb701. 135 Id. Several firearm advocacy groups have filed suit and sought a preliminary injunction preventing implementation of the rule; the district court’s denial of the motion for preliminary injunction was recently appealed to the D.C. Circuit. See Guedes v. ATF, No. 18-CV-2988 (D.D.C. Dec. 18, 2018). Congressional Research Service 14 Federal Firearms Laws: Overview and Selected Legal Issues Second, the Undetectable Firearms Act of 1988 (UFA) banned the manufacture, importation, possession, transfer, or receipt of firearms that are undetectable by x-ray machines or metal detectors at security checkpoints.136 The UFA has recently come under renewed scrutiny amid litigation over the dissemination of 3D-printed firearm designs that potentially could undermine the statute’s requirements.137 Though most other types of firearms are lawful, possession of particular firearms may be prohibited based on external factors or the status of the possessor. For instance, it is unlawful to knowingly receive, possess, conceal, store, barter, sell, dispose of, or transport in interstate or foreign commerce any stolen firearm or stolen ammunition.138 Receipt, possession, and transportation of firearms that have had the importer’s or manufacturer’s serial number removed or altered are likewise prohibited.139 Additionally, juveniles—that is, persons under 18 years of age—are barred from knowingly possessing handguns and handgun ammunition, and others may not knowingly transfer such items to them.140 However, exception is made for, among other things, temporary transfers in the course of employment, ranching or farming activities or for target practice, hunting, or a safety course; possession in the line of duty by juvenile members of the Armed Forces or national guard; transfers of title by inheritance; and possession in defense of the juvenile or another against an intruder into certain residences.141 Beyond firearms themselves, the GCA prohibits any person from manufacturing or importing armor-piercing ammunition and any manufacturer or importer from selling or delivering such ammunition unless (1) the ammunition is for the use of the U.S. government, a state, or a political subdivision of a state; (2) the ammunition is to be exported; or (3) the ammunition is to be tested or used for experimentation as authorized by the Attorney General.142 A person who possesses armor-piercing ammunition with a firearm “during and in relation to the commission of a crime of violence or drug trafficking crime” is also subject to separate criminal sentencing provisions.143 Finally, a person who has been convicted of a felony crime of violence is barred from purchasing, owning, or possessing body armor unless the person has obtained prior written certification from 136 Pub. L. No. 100-649, 102 Stat. 3816 (1988) (codified at 18 U.S.C. § 922(p)). There are exceptions to this prohibition, including for manufacture and sale of firearms to U.S. military or intelligence agencies and for firearms manufactured, imported, or possessed prior to the UFA’s enactment. 18 U.S.C. § 922(p)(3)-(6). 137 See Danton Bryans, Unlocked and Loaded: Government Censorship of 3D-Printed Firearms and a Proposal for More Reasonable Regulation of 3D-Printed Goods, 90 IND. L.J. 901, 915-16 (2015) (describing 3D-printed gun designs that incorporate nonfunctional and removable metal components “for the express purpose of complying with the UFA”); Washington v. Dep’t of State, 318 F. Supp. 3d 1247, 1264 (W.D. Wash. Aug. 27, 2018) (entering preliminary injunction effectively prohibiting company from disseminating 3D-printed gun designs for duration of lawsuit). Legislation introduced in the 116th Congress would amend and update the UFA to make clear that major components must be detectable, among other things. See Undetectable Firearms Modernization Act, H.R. 869, 116th Cong. (2019). 138 18 U.S.C. § 922(j). 139 Id. § 922(k). 140 Id. § 922(x)(1)-(2). Separate provisions also bar FFLs specifically from knowingly selling or delivering any firearms or ammunition to minors and from knowingly selling or delivering firearms other than shotguns or rifles (or ammunition for the same) to persons under the age of 21. Id. § 922(b)(1). 141 Id. § 922(x)(3). 142 Id. § 922(a)(7)-(8). 143 See id. §§ 924(c)(5), 929. The term crime of violence is defined elsewhere in Title 18, see 18 U.S.C. § 16, and that definition has been partially struck down by the Supreme Court as unconstitutionally vague. See Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018) (addressing definition’s “residual clause,” which extends definition to felony offenses that, by their “nature,” involve “a substantial risk that physical force against the person or property of another may be used in the course of committing the offense”). Congressional Research Service 15 Federal Firearms Laws: Overview and Selected Legal Issues his or her employer that the body armor is needed “for the safe performance of lawful business activity” and the armor’s use is limited to the course of such performance.144 Prohibited Places The GCA prohibits the possession of firearms in certain locations.145 For instance, subject to exceptions, firearms may not be possessed in a “Federal facility,” defined as a building (or part of a building) owned or leased by the federal government where federal employees are regularly present for performing their official employment.146 Additionally, loaded firearms are largely banned on federal land managed by the Army Corps of Engineers with exceptions for law enforcement, certain hunting and fishing activities, use at authorized shooting ranges, and with permission from the district commander.147 Firearms may generally be carried on most other kinds of federal lands, however, so long as the carrier is not otherwise prohibited by federal law from possessing a firearm and is complying with relevant local firearm laws.148 The Gun-Free School Zones Act149 (GFSZA) also amended the GCA to prohibit the knowing possession or discharge of a firearm in a school zone subject to exceptions for law enforcement and possession or discharge on private property not part of school grounds, among other things.150 As originally enacted, the GFSZA prohibited possession or discharge of any firearm in a school zone.151 The Supreme Court ruled in United States v. Lopez,152 however, that such a prohibition exceeded Congress’s constitutional authority under the Commerce Clause. In response, Congress amended the statute in 1996 to make clear that it applies only to firearms that have “moved in or that otherwise affect[] interstate or foreign commerce.”153 Though the Supreme Court has not reconsidered the amended GFSZA, lower courts have generally upheld it on the basis of the added textual link to commerce.154 144 18 U.S.C. § 931. 145 Transportation of firearms, though permitted, may also be subject to strict limitations based on the mode of transport—for example, by plane. See 18 U.S.C. § 922(e) (requiring persons seeking to transport firearms by common carrier to provide notice or deliver the firearms to “the custody of the pilot, captain, conductor or operator,” as the case may be); 49 C.F.R. § 1540.111 (subject to exceptions, requiring firearms to be transported by plane in checked baggage with notice and in compliance with various safety requirements). 146 Pub. L. No. 100-690, 102 Stat. 4361, § 6215 (1988); 18 U.S.C. § 930. Exceptions exist for (1) federal or state officials performing official law enforcement activities, (2) other federal officials or members of the Armed Forces “if such possession is authorized by law,” and (3) possession incident to hunting or “other lawful purposes.” 18 U.S.C. § 930. 147 36 C.F.R. § 327.13; see also CRS Report R42602, Firearms at Army Corps Water Resource Projects: Proposed Legislation and Issues in the 113th Congress, by Nicole T. Carter. The House of Representatives passed legislation during the 115th Congress that would have allowed the concealed carrying of a firearm on Corps land, among other federal properties. See Concealed Carry Reciprocity Act of 2017, H.R. 38 (2017). The legislation has been reintroduced in the 116th Congress. See Concealed Carry Reciprocity Act of 2019, H.R. 38 (2019). 148 See, e.g., 54 U.S.C. § 104906 (National Park System); 43 C.F.R. § 423.30 (Reclamation lands and waterbodies); 36 C.F.R. § 261.8 (National Forest System). 149 Pub. L. No. 104-208, 110 Stat. 3009 (1996). 150 18 U.S.C. § 922(q). 151 Pub. L. No. 101-647, 104 Stat. 4789 (1990). 152 514 U.S. 549 (1995). 153 Pub. L. No. 104-208. 154 See United States v. Dorsey, 418 F.3d 1038, 1046 (9th Cir. 2005), abrogated on other grounds by Arizona v. Gant, 556 U.S. 332 (2009); United States v. Danks, 221 F.3d 1037, 1039 (8th Cir. 1999). The Commerce Clause limitations on Congress’s ability to regulate firearms are discussed in more detail infra. Congressional Research Service 16 Federal Firearms Laws: Overview and Selected Legal Issues Exceptions and Relief from Disability Several exceptions are set out in 18 U.S.C. § 925 to the firearm possession and transfer restrictions found elsewhere in the GCA. These exceptions primarily relate to firearms intended for the use of federal, state, or local governments or active duty military personnel.155 But Section 925 also authorizes a person who is barred by the GCA from possessing, transporting, or receiving firearms or ammunition to “make application to the Attorney General for relief” from the disability.156 The Attorney General has discretion to grant relief if the applicant establishes “to his satisfaction” that relief would not be contrary to the public interest and that the “circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety.”157 Review of the Attorney General’s decision is available in federal district court.158 This relief-from-disability process has been essentially defunct since 1992, however, as Congress has annually included a provision in ATF appropriations measures prohibiting the expenditure of funds to act on petitions by individuals.159 Nevertheless, the NICS Improvement Amendments Act of 2007 (NIAA) established, as relevant here, alternative mechanisms for obtaining relief from one of the GCA’s firearm disabilities: the disability based on adjudication as a “mental defective” or commitment to a mental institution.160 Under NIAA, federal departments or agencies making determinations pertinent to that disability—for example, the Department of Veterans Affairs (VA)161—must establish programs permitting affected persons to apply for relief.162 Applications must be acted on within one year, and judicial review is available.163 Further, the statute encourages states to create similar programs through conditional grants.164 If an application for relief is granted under one of these programs, the adjudication or commitment “is deemed not to have occurred” for purposes of the GCA, meaning that the firearm prohibition no longer applies.165 As of December 2017, some three dozen states had enacted qualifying relief programs.166 155 See 18 U.S.C. § 925(a)(1)-(4). 156 Id. § 925(c). 157 Id. 158 Id. 159 See Pub. L. No. 102-393, 106 Stat. 1732 (1992); Pub. L. No. 116-6, 133 Stat. 13 (2019); Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 837 F.3d 678, 682 (6th Cir. 2016) (noting that Section 925(c) “is currently a nullity”); see also United States v. Bean, 537 U.S. 71, 78 (2002) (concluding that ATF failure to approve or deny petition precludes judicial review). 160 Pub. L. No. 110-180, 122 Stat. 2559 (2008). 161 See 38 C.F.R. § 3.353. 162 122 Stat. at 2563. NIAA also establishes notice requirements for adjudication processes and disability relief and makes clear that federal departments and agencies may not furnish mental health adjudication records for background check purposes if the relevant adjudication has been set aside or the person has been found to be “rehabilitated,” among other things. Id. at 2562-64. 163 Id. 164 Id. at 2568-70. 165 Id. at 2570. The relevant records should also be removed from NICS. Id. 166 U.S. Dep’t of Justice, Bureau of Justice Statistics, The NICS Improvement Amendments Act of 2007, https://www.bjs.gov/index.cfm?ty=tp&tid=49#terms (last visited Feb. 26, 2019). Congressional Research Service 17 Federal Firearms Laws: Overview and Selected Legal Issues Background Checks for Firearm Purchases Overview The Brady Act167 requires FFLs—but not private parties who make occasional firearm sales from personal collections or as a hobby—to conduct background checks168 on prospective firearm purchasers who are not licensed dealers themselves in order to ensure that the purchasers are not prohibited from acquiring firearms under federal or state law.169 To implement the Brady Act, the FBI created the National Instant Criminal Background Check System (NICS), which launched in 1998.170 Between the enactment of the Brady Act and the launch of NICS, a set of interim provisions required background checks to be conducted through “the chief law enforcement officer of the place of residence of the transferee,”171 but the Supreme Court struck down those provisions as an unconstitutional usurpation of state executive prerogatives.172 Today, the NICS background check is completed either by a state “point of contact” (in states that have voluntarily agreed to provide that service) or, otherwise, by the FBI.173 Through NICS, FFLs can determine whether a prospective firearm purchaser is disqualified from receiving a firearm.174 NICS is comprised of three FBI-maintained databases  The National Crime Information Center Database (NCIC) contains crime data related to persons and property, including persons subject to protective orders, fugitive records, and aliens who have been deported or are deportable because of committing certain crimes.175 167 Pub. L. No. 103-159, 107 Stat. 1536 (1993). 168 As with other areas of firearm regulation, state law can be more restrictive. Indeed, it appears that at least 20 states and the District of Columbia require background checks for gun sales between private parties. See Jacob Fischler, Stymied in Congress, Gun Control Groups Find Success in States, CQ (Mar. 1, 2019), https://plus.cq.com/shareExternal/doc/news-5471770/DmNBKUEImlSw1B5a0vlxns_8yvc?0. 169 18 U.S.C. § 922(t). Exceptions exist to the background check requirement. For example, background checks are not required for prospective purchasers who hold valid permits in certain states that already provide for their own background checks. See id. § 922(t)(3)(A). That said, an FFL that knowingly fails to conduct a background check when one is required, and when the check would bar a sale, may have its license suspended or revoked and be subject to a civil or criminal fine and/or up to one year in prison. Id. § 922(t)(5). Fines of up to $10,000 may also be levied on FFLs, state or local agencies, or individuals for misusing the NICS system. See 28 C.F.R. § 25.11. 170 FBI, National Instant Criminal Background Check System (NICS), https://www.fbi.gov/services/cjis/nics (last visited Feb. 26, 2019). 171 18 U.S.C. § 922(s). 172 Printz v. United States, 521 U.S. 898, 935 (1997). The federalism limits on Congress’s ability to regulate firearms are discussed in more detail infra. 173 FBI, About NICS, https://www.fbi.gov/services/cjis/nics/about-nics (last visited Feb. 26, 2019). Some states opt to conduct the background check for only some (e.g., handguns) FFL firearms transfers. See U.S. DEP’T OF JUSTICE, FED. BUREAU OF INVESTIGATION, NICS FEDERAL FIREARMS LICENSEE MANUAL 4 (2011), https://www.fbi.gov/filerepository/nics-firearms-licensee-manual-111811.pdf/view. Background checks in point-of-contact states may be more accurate, as such states access the three NICS databases and can also access state databases that may contain more prohibiting records. See 28 C.F.R. § 25.6(e) (recognizing that points of contact may “also conduct a search of available files in state and local law enforcement and other relevant record systems”). 174 See FBI, About NICS, https://www.fbi.gov/services/cjis/nics/about-nics (last visited Feb. 26, 2019). 175 Since 2004, the NCIC has also incorporated data from the Terrorist Screening Database (TSD), a “master watchlist of individuals known or suspected of having terrorist ties.” Robinson v. Sessions, 721 F. App’x 20, 21-22 (2d Cir. 2018). Currently, prospective firearm purchasers are screened against a subset of the TSD during a NICS check as an investigative tool, but persons are not barred from purchasing firearms by virtue of appearing on the TSD. See id. (describing practice). Congressional Research Service 18 Federal Firearms Laws: Overview and Selected Legal Issues  The Interstate Identification Index System (III) contains criminal history information for persons who have been arrested or indicted for any federal or state felony or serious misdemeanor.  The NICS Index was created solely for NICS checks and is a catchall index housing records that do not fit under NCIC or III, including mental health and immigration records.176 Because the three NICS databases rely on record submissions from multiple federal entities and voluntary submissions from individual states, they are not comprehensive catalogues of the records that could identify a person as being prohibited from possessing or purchasing a firearm.177 As discussed below, Congress has sought on multiple occasions to improve the processes by which records are collected and to make the databases more comprehensive.178 Generally, the NICS check will quickly tell the dealer whether the sale may or may not proceed, or if it must be delayed for further investigation.179 If a dealer receives a response that the sale must be delayed, and the NICS check does not further alert the dealer as to whether the prospective purchaser is disqualified within three business days, the sale may proceed at the dealer’s discretion.180 However, the FFL must still verify the transferee’s identity by examining a valid identification document.181 The extent to which NICS examiners continue to investigate delayed requests after the three-day period is unclear,182 but if an FFL receives a “denied” response after the third day and after the firearm has already been transferred, the FFL “should notify” the NICS Section of ATF that the transfer was completed.183 An FFL who receives a NICS response denying a transfer will not see the reason for the denial, but the prospective transferee may request the reason from the denying agency (either the FBI or the state or local agency in a point-of-contact state).184 The denying agency must provide the reason or reasons, in writing, within five business days of receiving the request.185 176 See 28 C.F.R. § 25.2 (identifying and defining databases). 177 See Pub. L. No. 110-180, 122 Stat. 2559 (2008) (finding that millions of criminal records “are not accessible by NICS and millions of criminal records are missing critical data”). 178 E.g., id. 179 28 C.F.R. § 25.6 (indicating that point of contact will generally notify FFL that transfer may proceed, is delayed pending further record analysis, or is denied). 180 18 U.S.C. § 922(t)(1)(B)(ii). Some state laws may provide for more time to complete background checks than the three days given under federal law, and FFLs must comply with the longer limits. ATF, Does a licensee who conducts a NICS check have to comply with State waiting periods before transferring a firearm?, https://www.atf.gov/firearms/qa/does-licensee-who-conducts-nics-check-have-comply-state-waiting-periodstransferring (last visited Feb. 27, 2019). As described in more detail infra, legislation has passed the House of Representatives that would extend the time frame for completing NICS background check requests. See Enhanced Background Checks Act of 2019, H.R. 1112 (2019). 181 18 U.S.C. § 922(t)(1)(C). 182 See Sanders v. United States, 324 F. Supp. 3d 636, 646 (D.S.C. 2018) (noting public FBI statements that missing record information is actively sought after the three-day period but finding NICS operating procedures to be “directly contradict[ory]” to such statements). 183 ATF, What should a licensee do if he or she gets a “denied” response from NICS or a State point of contact after 3 business days have elapsed, but prior to the transfer of the firearm?, https://www.atf.gov/firearms/qa/what-shouldlicensee-do-if-he-or-she-gets-%E2%80%9Cdenied%E2%80%9D-response-nics-or-state-point-contact (last visited Feb. 27, 2019). 184 28 C.F.R. § 25.10(a). 185 Pub. L. No. 103-159, 107 Stat. 1536, § 103(g) (1993); 28 C.F.R. § 25.10(b). Congressional Research Service 19 Federal Firearms Laws: Overview and Selected Legal Issues Prospective transferees who are denied firearms on the basis of a NICS background check have multiple avenues to challenge the denial. First, the prospective transferee may challenge the accuracy of a record on which the denial was based or assert that his or her right to possess a firearm has been restored by appealing to the denying agency. 186 Second, if that agency cannot resolve the appeal, the prospective transferee may apply for correction of the record directly to the agency that originated the record.187 If a record is corrected as the result of an appeal, the prospective transferee and relevant agencies are to be notified, and the record is to be corrected in NICS.188 At this point, the contested firearm transfer may go forward if there are no other disqualifying records, though the FFL will be required to query NICS again if too much time has elapsed since the initial background check.189 Finally, as an alternative to the agency appeals process, a prospective firearm transferee may contest the accuracy or validity of a disqualifying record in court by bringing an action against the United States or the relevant state or political subdivision, as applicable.190 Although NICS records of approved firearms transfers containing transferees’ identifying information are destroyed within 24 hours,191 transferees who may be subject to repeated, erroneous denials because of similarities in name or identifying information to prohibited persons may consent to the FBI’s retention of their personal information in a “Voluntary Appeal File” for use in preventing “the future erroneous denial or extended delay by the NICS of a firearm transfer.”192 NICS Improvement Amendments Act of 2007 (NIAA) In an attempt to improve access to records concerning persons prohibited from possessing or receiving firearms because of mental illness, restraining orders, and misdemeanor domestic violence convictions, Congress passed the NIAA in early 2008.193 With respect to federal records, the statute (among other things) imposes a requirement that federal departments and agencies provide information in records pertaining to prohibited persons on a quarterly basis.194 With respect to state records, NIAA authorizes monetary incentives and penalties tied to submitting records to NICS. First, a state that provides at least 90% of its relevant records is eligible under NIAA for a waiver of a 10% matching requirement connected to an existing state grant program for upgrading criminal history and criminal justice record systems (among other things).195 To remain eligible for the waiver, a state must biannually certify that at least 90% of 186 28 C.F.R. § 25.10(c). 187 Id. 188 Id. § 25.10(c)-(e). 189 NICS background checks are valid for 30 calendar days, 27 C.F.R. § 478.102, meaning that if more than 30 days have passed and the firearm transaction has not been completed, a new NICS background check must be conducted. Id. § 478.102(e). 190 18 U.S.C. § 925A; 28 C.F.R. § 25.10(f). 191 28 C.F.R. § 25.9(b)(1)(iii). 192 Id. § 25.10(g). 193 Pub. L. No. 110-180, 122 Stat. 2559 (2008). 194 Id. § 101(a)(4). As noted supra, the statute also provides certain protections for persons subject to federal mental health adjudications and requires federal departments and agencies to establish relief-from-disability programs for such persons. Id. § 101(c). 195 Id. § 102(a). NIAA also stipulates that state records should provide the name and relevant identifying information of persons adjudicated as mental defectives or committed to mental institutions and that specific information should be provided about disqualifying misdemeanor domestic violence offenses. Id. § 102(c)(2)-(3). Congressional Research Service 20 Federal Firearms Laws: Overview and Selected Legal Issues records have been made electronically available to the Attorney General.196 As another incentive, the statute directs the Attorney General to withhold, subject to waiver, up to 5% of funds available from the Edward Byrne Memorial Justice Assistance Grant Program (which provides federal funds for local law enforcement initiatives) if a state provides less than 90% of its available prohibiting records.197 NIAA also establishes additional grant programs that provide states with money to establish or update information and identification technologies for firearms eligibility determinations, automate record systems, and transmit to NICS the targeted prohibiting records.198 Fix NICS Act of 2018 The recently enacted Fix NICS Act199 (Fix NICS) aims to further increase federal and state submission of prohibiting records to NICS through additional incentive and accountability measures. At the federal level, departments and agencies must semiannually certify whether they are submitting all prohibiting records on at least a quarterly basis.200 Federal departments and agencies also must each create an “implementation plan” within one year that is designed to “ensure maximum coordination and automated reporting or making available of records to the Attorney General,” and “the verification of the accuracy of those records,” with annual benchmarks.201 The Attorney General is to publish and semiannually submit to Congress the names of departments and agencies that fail to submit the required certification, fail to certify compliance with the reporting obligation, fail to create an implementation plan, or fail to obtain substantial compliance with the implementation plan.202 Political appointees within a federal department or agency that fail to either certify compliance or substantially comply with an implementation plan will be ineligible for bonus pay.203 At the state level, Fix NICS reauthorizes some of the grant programs established or utilized by NIAA and ties monetary incentives and preferences under those programs to state creation and substantial compliance with implementation plans like those required of federal departments and agencies.204 Names of states that do not achieve substantial compliance with their implementation plans are to be published by the Attorney General, while those states determined to be in substantial compliance will receive affirmative preference in Bureau of Justice Assistance discretionary grant applications.205 196 Id. § 102(c)(1)(C). 197 Id. § 104(b). 198 Id. §§ 103, 301. Eligibility for these grant programs is conditioned on the establishment of state relief-from- disability programs for persons adjudicated as mental defectives or committed to mental institutions. See supra “Exceptions and Relief from Disability.” 199 Pub. L. No. 115-141, tit. VI, 132 Stat. 348 (2018). 200 Id. § 602. 201 Id. 202 Id. 203 Id. 204 Id. §§ 603-04, 607. Funding preference under one of the programs, the NICS Act Record Improvement Program (NARIP), is given to states that have established an implementation plan and will use amounts made available “to improve efforts to identify and upload all felony conviction records and domestic violence records” within two-and-ahalf years. Id. § 603(b)(2)(B). 205 Id. § 605(a). Congressional Research Service 21 Federal Firearms Laws: Overview and Selected Legal Issues Interstate Firearm Sales and Transfers The GCA strictly limits the interstate transfer of firearms to non-FFLs. This limitation takes several forms. First, a non-FFL is barred from directly selling or transferring any firearm to any person (other than an FFL) whom the transferor knows or has reason to believe is not a resident of the state in which the transferor resides.206 Second, FFLs are prohibited from selling or shipping firearms directly to non-FFLs in other states,207 but FFLs may make in-person, over-thecounter sales of long guns (i.e., shotguns or rifles) to qualified individuals who are out-of-state residents so long as the sales fully comply with the legal conditions of both states.208 Handguns may be sold only to persons who are residents of the state in which the FFL’s premises are located.209 Non-FFLs who lawfully purchase long guns from out-of-state dealers may transport those firearms back into their states of residence, but such persons are otherwise prohibited from directly transporting into or receiving in their states of residence any firearms purchased or obtained outside the state.210 Despite the substantial restrictions on interstate firearm sales, federal law ensures that lawful firearm owners may transport their weapons between jurisdictions where it is legal to “possess and carry” them without incurring criminal liability under inconsistent state or local laws so long as the firearms are transported in a specified manner.211 Current or retired law enforcement officers who meet certain requirements are also entitled to carry concealed firearms throughout the United States regardless of restrictions under state or local law.212 206 18 U.S.C. § 922(a)(5). Exception is made for transfers to carry out a bequest or intestate disposition, as well as temporary loans or rentals for lawful sporting purposes. Id. The prohibition on out-of-state transfers may apply to transfers to citizens of other states or even to citizens of foreign countries. See United States v. Sprenger, 625 F.3d 1305, 1308 (10th Cir. 2010); but see United States v. James, 172 F.3d 588, 593 (8th Cir. 1999 (in dicta, characterizing statute as prohibiting transfer of firearms “to other unlicensed persons who reside in a different state”). 207 18 U.S.C. § 922(a)(2). FFLs may, however, ship firearms in interstate commerce to other FFLs or to certain military and law enforcement officers for use in connection with their official duties. Id. Concealable firearms may not be sent via the U.S. Postal Service except for these purposes, id. § 1715, and shipment by common carrier is subject to disclosure requirements. Id. § 922(e). 208 Id. § 922(b)(3). 209 Id. An exception exists for firearm loans or rentals “for temporary use for lawful sporting purposes.” Id. FFLs may not circumvent the prohibitions on interstate sales to non-FFLs by nominally transferring firearms to in-state residents while knowing that the real purchasers reside in a different state—such “straw” purchases may be prosecuted to the same extent as impermissible direct sales. See DiMartino v. Buckles, 129 F. Supp. 2d 824, 828 (D. Md. 2001). 210 18 U.S.C. § 922(a)(3). The only other exceptions to this prohibition are for bequest, intestate succession, or transportation of firearms acquired prior to the statute’s effective date. Id. A separate provision prohibits any non-FFL who does not reside in any state from receiving any firearms other than for lawful sporting purposes. Id. § 922(a)(9). 211 Id. § 926A; see Torraco v. Port Authority, 615 F.3d 129, 132 (2d Cir. 2010) (explaining that Section 926A “allows individuals to transport firearms from one state in which they are legal, through another state in which they are illegal, to a third state in which they are legal, provided that several conditions are met”). One court has construed the protection to apply to vehicular, but not ambulatory, transport. See Assoc. N.J. Rifle & Pistol Clubs Inc. v. Port Authority, 730 F.3d 252, 257 (3d Cir. 2013). In recent years, legislation has been introduced that would appear to expand the scope of the protection contained in Section 926A. E.g., H.R. 175, 116th Cong. (2019) (proposing to extend entitlement to transport from and to places where persons “may lawfully possess, carry, or transport” firearms, among other things). 212 18 U.S.C. §§ 926B-926C. These provisions do not limit private persons or entities from restricting the possession of concealed firearms on their property or prohibit laws that restrict the possession of such firearms on government property. Id. Congressional Research Service 22 Federal Firearms Laws: Overview and Selected Legal Issues Penalties Violations of many of the prohibitions contained in the GCA and supplementing statutes are punishable as felonies, subjecting violators to criminal fines and statutory imprisonment ranges of varying lengths.213 Increased penalties are also tied to transporting or receiving firearms in interstate or foreign commerce with intent to use the firearms (or with knowledge they will be used) to commit separate felony crimes,214 as well as using, carrying, or possessing firearms in connection with “any crime of violence or drug trafficking crime.”215 A person thrice convicted of a “violent felony or a serious drug offense,” committed on different occasions, who subsequently possesses or receives a firearm unlawfully is likewise subject to a heightened mandatory minimum sentence of imprisonment.216 However, the Supreme Court has partially struck down as unconstitutionally vague the definition of the term violent felony, which includes (among other things) any offense involving “conduct that presents a serious potential risk of physical injury to another.”217 In response, past Congresses have considered legislation that would link the heightened penalty instead to prior “serious felony” convictions, with the term serious felony being tied to the authorized or imposed sentence of imprisonment.218 In a 1986 amendment, FOPA added an explicit mens rea, or intent, requirement to the GCA’s penalty provisions.219 Accordingly, the GCA now imposes its criminal penalties for either knowing or willful violations, depending on the provision.220 A violation is made knowingly when the person knows the facts that establish the offense.221 Under this standard, the government need not prove that the defendant knew his behavior was illegal.222 This is so, according to the Supreme Court, because of the “background presumption that every citizen knows the law,” thus making it “unnecessary to adduce specific evidence to prove that ‘an evil-meaning mind’ directed 213 See generally 18 U.S.C. § 924 (establishing penalties for violations of the various provisions of Chapter 44). 214 Id. § 924(b). 215 Id. § 924(c). Depending on the type of firearm involved and the existence of prior convictions, a defendant can be sentenced to up to life in prison for a simple violation of this subsection. Id. § 924(c)(1)(C)(ii); see also First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, § 403 (2018) (clarifying that prior conviction must have “become final”). And if a violation of the subsection involves murder, the death penalty may be imposed. Id. § 924(j)(1). Persons who take other actions involving firearms in relation to drug crimes or “crime[s] of violence”—for example, transferring firearms knowing they will be used in such crimes—are subject to fines and imprisonment pursuant to separate provisions of Section 924. See id. §§ 924(g), (h), (j), (k), (o). Crime of violence is defined as a felony that has as an element “the use, attempted use, or threatened use of physical force,” or a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. § 924(c)(3). As noted supra, the Supreme Court recently concluded that the language used in this latter “residual clause” is unconstitutionally vague, limiting the statute’s application to certain felonies. See Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018). 216 18 U.S.C. § 924(e)(1). 217 Id. § 924(e)(2)(B); see Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). That clause of the definition had been applied to unlawful possession of at least some kinds of firearms. See Chambers v. United States, 555 U.S. 122, 133 n.2 (2009) (Alito, J., dissenting) (noting splits over carrying of concealed weapon and possession of sawed-off shotgun as felon). 218 See Restoring the Armed Career Criminal Act, H.R. 6697, 115th Cong. (2018). 219 See Firearm Owners Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986); Bryan v. United States, 524 U.S. 184, 193 (1998); United States v. Langley, 62 F.3d 602, 605 (4th Cir. 1995). 220 18 U.S.C. § 924. 221 See Dixon v. United States, 548 U.S. 1, 5 (2006); Bryan, 524 U.S. at 187-88. 222 Bryan, 524 U.S. at 193. Congressional Research Service 23 Federal Firearms Laws: Overview and Selected Legal Issues the ‘evil-doing hand.’”223 Further, to prosecute unlawful possession of a firearm under 18 U.S.C. § 922(g), the federal courts of appeals have consistently concluded that the government must prove only that the defendant knowingly possessed a firearm but not that he had knowledge of the circumstances disqualifying him from possessing a firearm.224 For example, a prosecutor may prove a knowing violation of 18 U.S.C. § 922(g)(1)—the GCA provision that bars felons from possessing firearms—by establishing only that the defendant knew that he possessed a firearm but not that he knew of his status as a felon at the time he possessed the firearm.225 However, in January 2019, the Supreme Court granted certiorari in Rehaif v. United States in order to determine whether this interpretation of the GCA is correct or whether the “knowing” requirement must apply to both possession and disqualifying status.226 Argument in the case is set for April 23, 2019.227 For willful violations, there is a heightened intent requirement: A violation is willful when the actor knows that the conduct is unlawful.228 However, for the act to be willful, the actor need not have specific knowledge of provisions of the law he is breaking. Instead, the person must act only “with knowledge that his conduct [is] unlawful.”229 Depending on proof of the requisite mens rea, firearms or ammunition involved in certain violations of the GCA or other federal criminal laws are subject to seizure and forfeiture.230 Constitutional Considerations Numerous constitutional considerations may inform congressional proposals to modify the current framework for regulating firearms sales and possession. Although Congress has broad constitutional authority to regulate firearms, any firearm measure must be rooted in one of 223 Id. 224 See United States v. Rehaif, 888 F.3d 1138, 1144-45 & n.3 (11th Cir. 2018), cert. granted, __S. Ct.__ (Jan. 11, 2019) (collecting cases). In Rehaif, the Eleventh Circuit explained that “there is a longstanding uniform body of precedent holding that the government does not have to satisfy a mens rea requirement with respect to the status element of § 922.... [N]o court of appeals has required proof of the defendant’s knowledge of his prohibited status under any subsection of § 922(g).” Id. at 1145. Moreover, the court further commented that each subdivision of 18 U.S.C. § 922(g) should garner the same intent requirements because, “[n]ot only would it be bizarre for two § 922(g) subdivisions to have different mens rea requirements, but also, there is nothing in the text or history of § 922 to support such deviation.” Id. at 1144 n.2. 225 See United States v. Langley, 62 F.3d 602, 604-06 (4th Cir. 1995). 226 Rehaif v. United States, No. 17-9560, __S. Ct.__ (Jan. 11, 2019). 227 See Docket, Rehaif v. United States, No. 17-9560 (Feb. 11, 2019), https://www.supremecourt.gov/docket/docketfiles/html/public/17-9560.html. Notably, the view that the knowledge requirement applies to both possession and status, which no federal court of appeals has adopted, appears to have at least one adherent on the Supreme Court. While sitting on the Tenth Circuit Court of Appeals, then-Judge Gorsuch argued in a concurring opinion that the position that the government does not have to prove that a defendant knew of his felonious status in a prosecution under Section 922(g)(1) “simply can’t be squared with the text of the relevant statutes.” United States v. Games-Perez, 667 F.3d 1136, 1143(10th Cir. 2012) (Gorsuch, J., concurring). He recounted that Section 922(g)(1) has three elements: (1) a previous conviction for a firearm; (2) subsequent possessions of a firearm; and (3) the possession was in or affecting interstate commerce. Id. And because the GCA punishes knowing violations of Section 922(g), then-Judge Gorsuch contended that the circuit’s current interpretation “leapfrog[s] over the very first § 922(g) element and touch[es] down only at the second,” which, in his view, “defies linguistic sense— and not a little grammatical gravity.” Id. 228 See Dixon v. United States, 548 U.S. 1, 5 (2006); Bryan v. United States, 524 U.S. 184, 192-93 (1998). 229 Bryan, 524 U.S. at 193-96. 230 18 U.S.C. § 924(d)(1). Congressional Research Service 24 Federal Firearms Laws: Overview and Selected Legal Issues Congress’s enumerated powers.231 In enacting firearms laws, Congress has typically invoked its tax, commerce, and spending powers. Still, when exercising those enumerated powers, Congress must be mindful of other constitutional restraints, such as those flowing from the Second Amendment, the Fifth Amendment’s Due Process Clause, and principles of federalism. This section provides an overview of the primary powers Congress has invoked to enact firearms measures and then addresses the constitutional constraints that independently could limit Congress’s ability to regulate firearms. Constitutional Source of Authority to Enact Firearms Measures Tax Power Article I of the Constitution, which enumerates powers of Congress, declares that “[t]he Congress shall have Power To lay and collect Taxes.”232 This broad power enables Congress to tax many activities that it could not directly regulate.233 Still, “[e]very tax is in some measure regulatory” by creating “an economic impediment to the activity taxed as compared with others not taxed.”234 Because a tax can shape behavior, when imposing a tax Congress may be motivated by an objective other than raising revenue,235 like limiting the supply of certain firearms.236 And provisions of a tax measure that go beyond the actual collection of the tax, such as penalty provisions,237 are considered lawful so long as they are reasonably related to the exercise of 231 See, e.g., Murphy v. NCAA, 138 S. Ct. 1461, 1476 (2018) ("The legislative powers granted to Congress are sizable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers."); United States v. Morrison, 529 U.S. 598, 607 (2000) (“Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.”). 232 U.S. CONST. art. I, § 8, cl. 1. Several other Article I provisions limit Congress’s taxing power: (1) Taxes levied must be for the “general Welfare of the United States”; (2) “all Duties, Imposts and Excises shall be uniform throughout the United States”; (3) “[n]o Tax or Duty shall be laid on Articles exported from any State”; and (4) “[n]o Capitation, or other direct, Tax, shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Id. § 8, cl. 1, § 9, cl. 4. 233 See Nat’l Fed’n of Indep. Bus. v. Sebelius [NFIB], 567 U.S. 519, 537 (2012) (“Put simply, Congress may tax and spend. This grant gives the Federal Government considerable influence even in areas where it cannot directly regulate. The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.”). 234 Sonzinsky v. United States, 300 U.S. 506, 555 (1937). 235 See NFIB, 567 U.S. at 567 (noting examples of taxes used to shape behavior, like taxes on cigarettes and certain firearms, and opining that the individual mandate in the Affordable Care Act, which “seeks to shape decisions about whether to buy health insurance[,] does not mean that it cannot be a valid exercise of the taxing power”); United States v. Doremus, 249 U.S. 86, 94 (1919) (opining that a tax measure “may not be declared unconstitutional because its effect may be to accomplish another purpose as well as the raising of revenue”). 236 See United States v. Aiken, 974 F.2d 446, 448-49 (4th Cir. 1992) (holding that the NFA’s penalty provisions were constitutionally enacted under Congress’s taxing power because they are “rationally designed to aid in the collection of taxes”). 237 See United States v. Lim, 444 F.4d 910, 913 (7th Cir. 2006) (“Congress legitimately may target for punishment the recipient of an unregistered firearm as a means of discouraging the circumvention of the transfer tax” in the NFA); United States v. Thompson, 361 F.3d 918, 921 (6th Cir. 2004) (“Having required payment of a transfer tax and having required registration as an aid in collection of that tax, Congress under the taxing power may reasonably impose a penalty on possession of unregistered weapons ... to discourage the transferor ... from transferring the firearm without paying the tax.” (internal quotation marks, citations, and alternations omitted)); see also United States v. Dodge, 61 F.3d 142, 145 (2d Cir. 1995) (“Of course, tax regulation may have a regulatory effect on the activity or commodity being taxed, but such effect will not invalidate the law as long as the statutory scheme is ‘in aid of revenue purpose.’” (quoting Sonzinsky, 300 U.S. at 513)). Congressional Research Service 25 Federal Firearms Laws: Overview and Selected Legal Issues Congress’s tax power238 and not “extraneous to any tax need.”239 Congress’s tax power is not without limitation, however. While the Supreme Court often will “decline[] to closely examine the regulatory motive or effect of revenue-raising measures,” the Court has indicated that it will step in when a tax measure is “so punitive” that it “loses its character as [a tax] and becomes a mere penalty with the characteristics of regulation and punishment.”240 Congress invoked its tax power when enacting the NFA. Within a few years of its enactment, in 1937, the Supreme Court upheld the NFA as a lawful exercise of Congress’s tax power in Sonzinsky v. United States.241 Notwithstanding the NFA’s deterrent purpose, the Court opined that “a tax is not any the less a tax because it has a regulatory affect.”242 The Court further concluded that the NFA’s registration requirements were “obviously supportable as in aid of a revenue purpose,” and, the Court added, the tax produced “some revenue.”243 More recently, in 2018 the Tenth Circuit, relying on Sonzinsky, upheld the NFA’s taxing and registration scheme as a valid exercise of Congress’s tax power in a challenge to the NFA’s regulation of firearm silencers.244 The Tenth Circuit rejected the defendants’ argument that the NFA, in modern times, is “far more of a gun-control measure than a gun-tax measure.”245 The defendants had principally argued that, because the NFA taxes collect no net revenue, “the NFA’s taxing purpose disappear[ed], leaving only its regulatory effect,” thus rendering the tax unconstitutional.246 But the Tenth Circuit declined to create a heightened constitutional requirement for Congress’s tax power that would require a tax to produce net revenue, pointing to the Supreme Court’s continued emphasis, since Sonzinsky, on whether a tax measure collects “some” gross revenue, no matter how small.247 Commerce Clause Power The Constitution grants Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”248 The Commerce Clause, as interpreted by the Supreme Court, authorizes Congress to regulate three categories of activities related to 238 Doremus, 249 U.S. at 93 (“If the legislation enacted has some reasonable relation to the exercise of the taxing authority conferred by the Constitution, it cannot be invalidated because of the supposed motives which induced it.”); Aiken, 974 F.2d at 448 (“The NFA’s regulatory provision need only bear a ‘reasonable relation’ to the statute’s taxing power.” (quoting Doremus, 249 U.S. at 93)). 239 See United States v. Kahriger, 345 U.S. 22, 31 (1953), overruled on other grounds in Marchetti v. United States, 390 U.S. 39, 50-54 (1968). 240 NFIB, 567 U.S. at 573. 241 300 U.S. 506 (1937); see also United States v. Gresham, 118 F.3d 258, 262 (5th Cir. 1997) (“[I]t is well-settled” that the NFA’s registration requirement “is constitutional because it is part of the web of regulation aiding enforcement of the transfer tax provision.... Having required payment of a transfer tax and registration as an aid in collection of that tax, Congress under the taxing power may reasonably impose a penalty on possession of unregistered weapons.” (internal quotation marks and citation omitted)). 242 Sonzinsky, 300 U.S. at 513; see also United States v. Lim, 444 F.3d 910, 912-13 (7th Cir. 2006) (citing to Sonzinsky and opining that “[i]nherent in the power to tax is the prerogative to decide what to tax and how large of a tax to impose. Those choices will have regulatory effects in the sense that the more heavily a particular activity is taxed, the more people will be deterred from engaging in that activity. Yet, the Supreme Court has rejected the notion that the regulatory character of tax legislation renders the legislation an invalid exercise of the taxing power”). 243 Sonzinsky, 300 U.S. at 513-14. 244 United States v. Cox, 906 F.3d 1170, 1179-83 (10th Cir. 2018). 245 Id. at 1180 (quoting the defendants’ appellate brief). 246 Id. at 1181-83. 247 Id. at 1183. 248 U.S. CONST. art. I, § 8, cl. 3. Congressional Research Service 26 Federal Firearms Laws: Overview and Selected Legal Issues interstate commerce: (1) “channels” of interstate commerce, like highways and hotels;249 (2) “instrumentalities of interstate commerce, or persons or things in interstate commerce,” such as motor vehicles and goods that are shipped;250 and (3) “activities that substantially affect interstate commerce,” which include intrastate activities (such as robbery) “that might, through repetition elsewhere,” substantially affect interstate commerce.251 Congress has relied on the Commerce Clause as a constitutional basis for GCA provisions restricting the manufacture, import, sale, transfer, and possession of firearms,252 and the Supreme Court has reviewed a number of these regulations. Early cases mainly involved statutory interpretation, centering on what conduct the statutory prohibitions reached.253 Only the most recent case—United States v. Lopez—directly addressed the scope of Congress’s Commerce Clause power to regulate firearms. For example, in the 1971 ruling United States v. Bass,254 the Supreme Court analyzed the scope of a law enacted as part of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, which made it a federal crime for a felon to “receive[], possess[], or transport[] in commerce or affecting commerce ... any firearm.”255 (A similar provision is found in the current version of the GCA.256) In Bass, the Court held that the language “in commerce or affecting commerce” applied to all three listed activities—receiving, possessing, and transporting—and not just the last one.257 In resolving the textual ambiguity this way, the Court in part relied on federalism principles (discussed in more detail infra), reasoning that if the statute had reached “mere possession,” wholly untethered to interstate commerce, the provision 249 See Pierce Cty., Wash. v. Guillen, 537 U.S. 129, 147 (2003) (holding that a federal law designed to improve safety on the nation’s highways is a lawful exercise of Congress’s power to regulate channels of commerce); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 253, 261-62 (1964) (“[T]he action of the Congress in the adoption of [Title II of the Civil Rights Act of 1964] as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause of the Constitution.”); United States v. Ballinger, 395 F.3d 1218, 1225-26 (11th Cir. 2005) (listing highways, railroads, navigable waters, airspace, and telecommunications networks as examples of channels of interstate commerce). 250 See United States v. Lopez, 514 U.S. 549, 558 (1995) (citing to cases upholding as a valid exercise of Congress’s Commerce Clause power laws regulating vehicles like aircrafts and locomotives as examples of instrumentalities of interstate commerce); Ballinger, 395 F.3d at 1226 (listing automobiles, airplanes, boats, goods, and telephones as examples of instrumentalities of interstate commerce). 251 See Lopez, 514 U.S. at 567; United States v. Parker, 108 F.3d 28, 30 (3d Cir. 1997) (upholding the Child Support Recovery Act of 1992 as a valid exercise of Congress’s power to regulate interstate commerce because, among other things, the failure to make child support payments is a local activity that substantially impacts interstate commerce); United States v. Bolton, 68 F.3d 396, 398-99 (10th Cir. 1995) (concluding that the Hobbs Act, which criminalizes robbery and extortion, is a lawful exercise of Congress’s Commerce Clause power because those activities, through repetition, may have a substantial effect on interstate commerce). 252 See 18 U.S.C. § 922; see also J. Richard Broughton, The Ineludible (Constitutional) Politics of Guns, 46 CONN. L. REV. 1345, 1356 (2014) (noting Congress’s reliance on the Commerce Clause to impose firearm regulations). 253 See Scarborough v. United States, 431 U.S. 563, 564 (1977) (“The issue in this case is whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce.”); Barrett v. United States, 423 U.S. 212, 213 (1976) (“The issue before us is whether [a GCA provision] has application to a purchaser’s intrastate acquisition of a firearm that previously, but independently of the purchaser’s receipt, had been transported in interstate commerce from the manufacturer to a distributor and then from the distributor to the dealer.”); United States v. Bass, 404 U.S. 336, 338 (1971) (“We granted certiorari to resolve a conflict among lower courts over the proper reach of the statute.” (internal citation omitted)). 254 404 U.S. 336 (1971). 255 Pub. L. No. 90-351, § 1202(a), 82 Stat. 197 (1968) (emphasis added). 256 18 U.S.C. § 922(g)(1). 257 Bass, 404 U.S. at 347. Congressional Research Service 27 Federal Firearms Laws: Overview and Selected Legal Issues would have “ [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR45629. Public record. Not legal advice.