Gun Control Legislation
Congressional research reportNov 14, 2012
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Gun Control Legislation
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November 14, 2012
Congressional Research Service
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RL32842
CRS Report for Congress
Prepared for Members and Committees of Congress
Gun Control Legislation
Summary
Congress has debated the efficacy and constitutionality of federal regulation of firearms and
ammunition, with strong advocates arguing for and against greater gun control. During the 112th
Congress, several mass-casualty shootings punctuated public discourse on gun control. In a
January 8, 2011, Tucson, AZ, shooting, 6 people were killed and 14 wounded, including
Representative Gabrielle Giffords, who was grievously wounded. In a July 20, 2012, Aurora, CO,
theater shooting, 12 people were killed and 58 wounded. In an August 5, 2012, Milwaukee, WI,
Sikh temple shooting, 6 people were killed and three wounded. Several Members of Congress
called for reconsideration of an expired ban on high capacity ammunition feeding devices (H.R.
308 and S. 32), strengthening provisions designed to encourage states to make firearms-related
disqualifying records more accessible to federal authorities (S. 436/H.R.1781), and tightening
regulation of interstate ammunition transfers (S. 3458/H.R. 6241).
As a matter of oversight, the 112th Congress also considered the implications of Operation Fast
and Furious and allegations that the Department of Justice (DOJ) and the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) mishandled that Phoenix, AZ-based gun trafficking
investigation. On June 28, 2012, the House passed a resolution (H.Res. 711) and cited Attorney
General Eric Holder with contempt for his failure to produce additional, subpoenaed documents
related to that operation to the Committee on Oversight and Government Reform. The DOJ
Office of the Inspector General issued findings that high-ranking officials within ATF, the Arizona
U.S. Attorney's Office, and the DOJ Criminal Division were responsible for misguided strategies
and tactics, errors in judgment, and management failures related to this operation.
On May 18, 2012, the House passed the FY2013 Defense Authorization Act (H.R. 4310), which
would amend a limitation on the Secretary of Defense’s authority to regulate firearms privately
held by members of the Armed Forces off-base. On May 10, 2012, the House passed a
Commerce-Justice-State appropriations bill (H.R. 5326) that would fund ATF for FY2013, and on
April 19, 2012, the Senate Committee on Appropriations reported a similar bill (S. 2323). On
April 17, 2012, the House passed the Sportsmen’s Heritage Act of 2012 (H.R. 4089), a bill that
would require agencies that manage federal public lands to facilitate access to and use of those
lands for the purposes of recreational fishing, hunting, and shooting. The Senate could consider a
related bill (S. 3525). Related language was included in a House-reported Interior Appropriations
bill (H.R. 6091). On November 16, 2011, the House passed a bill (H.R. 822) that would establish
a greater degree of reciprocity between states that issue concealed carry handgun permits. On
October 11, 2011, the House passed a Veterans’ Benefits Act (H.R. 2349) that would prohibit the
Department of Veterans Affairs from determining a beneficiary to be mentally incompetent for the
purposes of gun control, unless such a determination is made by a judicial authority.
This report also includes discussion of other salient and recurring gun control issues that have
generated past or current congressional interest. Those issues include (1) screening firearms
background check applicants against terrorist watch lists, (2) combating gun trafficking and straw
purchases, (3) reforming the regulation of federally licensed gun dealers, (4) requiring
background checks for private firearms transfers at gun shows, (5) more-strictly regulating certain
firearms previously defined in statute as “semiautomatic assault weapons,” and (6) banning or
requiring the registration of certain long-range .50 caliber rifles, which are commonly referred to
as “sniper” rifles. To set these and other emerging issues in context, this report provides basic
firearms-related statistics, an overview of federal firearms law, and a summary of legislative
action in the 111th and 112th Congresses.
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Contents
Developments in the 112th Congress................................................................................................ 1
Background and Analysis ................................................................................................................ 6
Pro/Con Debate ......................................................................................................................... 6
Gun-Related Statistics ............................................................................................................... 7
How Many Guns Are in the United States?......................................................................... 8
How Often Are Guns Used in Homicides? ......................................................................... 9
How Prevalent Are Gun-Related Fatalities? ..................................................................... 11
How Often Are Guns Used in Non-Lethal Crimes? .......................................................... 13
How Often Are Firearms Used in Self-Defense? .............................................................. 13
What About the Recreational Use of Guns? ...................................................................... 14
Federal Regulation of Firearms ..................................................................................................... 14
The National Firearms Act (NFA) ........................................................................................... 14
The Gun Control Act of 1968 (GCA) ...................................................................................... 14
Firearms Transfer and Possession Eligibility .................................................................... 15
Age Eligibility ................................................................................................................... 16
Noncitizen Firearms Eligibility ......................................................................................... 16
Licensed Dealers and Firearms Transfers ......................................................................... 18
Private Firearms Transfers ................................................................................................ 19
Gun Trafficking and Straw Purchases ..................................................................................... 19
ATF Compliance Inspections ............................................................................................ 20
Anatomy of a Firearms Straw Purchase ............................................................................ 21
Federal Prosecutions under 18 U.S.C. §§922(a)(6) and 924(a)(1)(A) .............................. 23
Firearms-Related Amendments to the Sentencing Guidelines .......................................... 25
Brady Handgun Violence Prevention Act ................................................................................ 25
Interim Provisions ............................................................................................................. 26
Permanent Provisions ........................................................................................................ 26
National Criminal History Improvement Program (NCHIP) ............................................ 30
NICS Act Record Improvement Program (NARIP) .......................................................... 32
Background Check Fee and Record Retention.................................................................. 35
Overview of Legislative Action in the 111th Congress .................................................................. 37
Issues in the 112th Congress ........................................................................................................... 39
July 20, 2012, Aurora, CO ....................................................................................................... 39
Smith & Wesson AR-15 and Drum Magazine................................................................... 40
Internet-Based Ammunition Transfers under Federal Law ............................................... 41
August 5, 2012, Sikh Temple Shooting, Milwaukee, WI ........................................................ 42
Concealed Carry and National Reciprocity ............................................................................. 42
Firearms on Public Lands ........................................................................................................ 45
Armed Forces Members and Privately Held Firearms Off-Base ............................................. 46
ATF Southwest Border Gun Trafficking Investigations .......................................................... 46
Multiple Rifle Sales Report Proposal ................................................................................ 48
Operation Fast and Furious ............................................................................................... 52
ATF Firearms Tracing for Mexican Authorities ................................................................ 67
Veterans, Mental Incompetency, and Firearms Eligibility....................................................... 71
ATF FY2012 and FY2013 Appropriations .............................................................................. 72
FY2013 Request ................................................................................................................ 73
FY2012 Request and Appropriation .................................................................................. 74
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FISA Sunset Extensions and Firearms-Related Amendments ................................................. 77
January 8, 2011, Tucson Shootings ......................................................................................... 77
Mental Illness and Drug Use as Prohibiting Factors ......................................................... 78
Large Capacity Ammunition Feeding Devices.................................................................. 79
Banning Firearms within the Proximity of Federal Officials ............................................ 79
Other Salient Gun Control Legislative Issues................................................................................ 80
Terrorist Watch List Screening and Brady Background Checks.............................................. 80
Post-9/11 Modified NICS Procedures ............................................................................... 80
NICS Record Retention..................................................................................................... 82
Legislation in the 110th Congress and DOJ Draft Proposal ............................................... 83
Legislation in the 111th Congress, GAO Follow-Up Report, and Senate Hearing ............ 84
Firearms-Related Terrorist Watch List Legislation in the 112th Congress ......................... 86
Gun Trafficking-Related Proposals in the 112th Congress ....................................................... 86
Stop Gun Trafficking and Strengthen Law Enforcement Act of 2011 (H.R. 2554) .......... 86
Gun Trafficking Prevention Act of 2011 (S. 1973) ........................................................... 87
Straw Purchaser Penalty Enhancement Act (H.R. 4190) .................................................. 89
Detectives Nemorin and Andrews Anti-Gun Trafficking Act of 2012 (H.R. 6195) .......... 89
ATF Modernization Act ........................................................................................................... 90
Gun Shows and Private Firearms Transfers ............................................................................ 91
Expired Semiautomatic Assault Weapons Ban ........................................................................ 92
Long-Range .50 Caliber Rifles ................................................................................................ 94
Figures
Figure 1. Estimated Murder Rates and Firearms, 1968-2011 ........................................................ 10
Figure 2. Federal Defendants Charged and Convicted Nationally under 18 U.S.C.
§§922(a)(6) and 924(a)(1)(A) ..................................................................................................... 24
Figure 3. Federal Sentences Imposed Nationally under 18 U.S.C. §§922(a)(6) and
924(a)(1)(A)................................................................................................................................ 25
Figure 4. ATF Appropriations, FY2001-FY2012 ........................................................................... 72
Figure 5. ATF Appropriations, FY2013 Request ........................................................................... 73
Figure 6. ATF Appropriations: FY2012 Requested and Enacted Compared ................................. 75
Tables
Table 1. Estimated Murder Rates and Firearms, 1993-2011 ............................................................ 9
Table 2. Firearms-Related Deaths for All Ages ............................................................................. 11
Table 3. Firearms-Related Deaths for Juveniles ............................................................................ 12
Table 4. Brady Background Checks for Firearms Transfers and Permits ...................................... 29
Table 5. Estimated Brady Background Check Denials .................................................................. 30
Table 6. NCHIP Appropriations, FY1995 though FY2012............................................................ 31
Table 7. NICS Improvement Authorizations and Appropriations under P.L. 110-180 .................. 33
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Appendixes
Appendix A. Legislation in the 111th Congress.............................................................................. 95
Appendix B. Major Federal Firearms and Related Statutes......................................................... 111
Contacts
Author Contact Information......................................................................................................... 113
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Developments in the 112th Congress
On July 20, 2012, a 24-year-old male entered a theater in Aurora, CO, and perpetrated what has
been described as one of the worst mass shootings in modern U.S. history.1 James Holmes
allegedly shot to death 12 people and wounded another 58 people, seven of them critically.2 He
was armed with an M16 variant semiautomatic rifle equipped with a drum magazine, a 12-gauge
pump shotgun, and at least one, possibly two .40-caliber handguns.3 He reportedly bought these
firearms legally from federally licensed gun dealers in Colorado.4 He also reportedly purchased
over 6,000 rounds of ammunition through Internet-based transactions.5
Sixteen days later, on August 5, 2012, a 40-year-old U.S. Army veteran entered a Sikh temple and
committed a mass-casualty shooting in the Oak Creek suburb of Milwaukee, WI.6 In this attack,
Wade Michael Page allegedly shot to death six worshipers and critically wounded another three
people.7 One of the wounded victims was a police officer, whom Page allegedly shot numerous
times as the officer administered first aid to another victim.8 Then, Page shot himself to death,
after being wounded by a responding police officer.9 Page was armed with a 9mm semiautomatic
pistol that he had acquired legally, when he resided in North Carolina.10 Press accounts describe
Page as a neo-Nazi, white supremacist, and it is widely thought that he mistook the Sikh temple
for a Muslim mosque.11
These and other mass-casualty shootings prompted some Members of the 112th Congress to
reconsider proposals to reinstate a 1994 ban on semiautomatic assault weapons and large capacity
ammunition feeding devices, which expired in September 2004.12 There were similar calls to ban
such feeding devices (see H.R. 308 and S. 32) following the January 8, 2011, Tucson, AZ,
shooting, in which 6 people were killed and 14 wounded, including Representative Gabrielle
Giffords, who was grievously wounded. Similarly, the Aurora, CO, shootings led some Members
to call for greater regulation of interstate, Internet-based ammunition transfers (S. 3458/H.R.
6241).
1
David A. Fahrenthold et al., “A Day of Tears and Twists in Colorado: As State Mourns, Account Suggests Toll Could
Have Been Worse,” Washington Post, July 23, 2012, p. A1.
2
Ibid.
3
Thom Patterson, “Source: Colorado Shooter Had 100-Round Rifle Magazine,” CNN Wire, July 21, 2012.
4
Ibid.
5
Thom Patterson, “Police Chief: Suspect Bought over 6,000 Rounds of Ammunition through Internet,” CNN Wire, July
21, 2012.
6
Molly Hennessy-Fiske, et al., “Sikh Temple Gunman Tied to Racist Groups/Army Vet Had Criminal Record, Played
in White-Power Band,” Chicago Tribune, August 7, 2012.
7
Ibid.
8
Ibid.
9
Ibid.
10
Scott Bauer and Todd Richmond, “Gunman in Sikh Temple Attack Was White Supremacist,” Associated Press,
August 7, 2012.
11
Jonathan Zimmerman, “Shootings in Sikh Temple and Arizona: Which Crime is Worse?,” Christian Science
Monitor, August 10, 2012.
12
For further information, see CRS Report RL32585, Semiautomatic Assault Weapons Ban, by (name redacted).
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Since March 2011, much of the gun control debate in the 112th Congress has swirled around
allegations that the Department of Justice (DOJ) and the Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF) mishandled a Phoenix, AZ-based gun trafficking investigation known as
“Operation Fast and Furious.” In December 2010, two suspect firearms linked to that
investigation were found at the murder scene of Border Patrol Agent Brian Terry. In January
2010, ATF whistleblowers contacted Senator Charles Grassley with assertions that suspected gun
traffickers had not been arrested in a timely fashion and, as a result, a large number of suspect
firearms had not been interdicted and have reportedly passed into the hands of drug traffickers
and other criminals. The whistleblowers referred to this investigative tactic as “gun walking.”
According to one source, 665 of these firearms have been recovered by law enforcement at crime
scenes on both sides of the border.13 Another 1,355 suspect firearms reportedly remain
unaccounted for.
Senator Grassley, ranking minority Member on the Committee on the Judiciary, and
Representative Darrell Issa, chairman of the Committee on Oversight and Government Reform,
have issued four joint staff reports on Operation Fast and Furious, and the House committee has
held several related hearings. Representative Elijah Cummings, the committee’s ranking minority
Member, has also issued two reports related to this controversial operation. On November 1,
2011, a high-ranking DOJ official testified before the Senate Committee on the Judiciary’s Crime
and Terrorism Subcommittee that he had identified “gun walking” as a potentially risk laden
investigative technique in April 2010 but failed to inform the Attorney General about the potential
risks. On November 8, 2011, the Senate Committee on the Judiciary held a DOJ oversight
hearing, and Attorney General Eric Holder fielded questions about Operation Fast and Furious.
The Attorney General conceded that a February 4, 2011, letter from DOJ to congressional
investigators contained “inaccurate” information regarding the depth of knowledge that
departmental officials had of ATF’s use of the “gun walking” tactic. On December 8, 2011, the
House Committee held a hearing to explore, among other things, whether senior departmental
officials knew more about Operation Fast and Furious than what was previously indicated in a
May 3, 2011, hearing before that committee.
On November 18, 2011, the President signed into law the Consolidated and Further Continuing
Appropriations Act, 2012 (H.R. 2112; P.L. 112-55), following House and Senate passage on the
previous day. This act provides ATF with $1.152 billion for FY2012. In response to Operation
Fast and Furious, Congress included in that act a provision (§219) that reflects a Senate-passed
amendment sponsored by Senator John Cornyn to prevent the expenditure of any funding
provided under it to be used by a federal law enforcement officer to facilitate the transfer of an
operable firearm to a person known to be or suspected of being connected to a drug cartel without
that firearm being continuously monitored or controlled. The act, however, does not include an
amendment that was sponsored by Representative Denny Rehberg and adopted in House full
committee markup that would have prevented ATF from collecting multiple long gun sales
reports from federally licensed gun dealers in Southwest Border states. In addition, two ATF
funding provisos and one Federal Bureau of Investigation (FBI) funding proviso were made
permanent with the inclusion of “futurity” language, as opposed to temporary, annual
appropriations restrictions.14 These provisos essentially prohibit the consolidation or
centralization of firearm acquisition and disposition records.
13
Pete Yost, “Fast and Furious-Like ‘Gun-Walking’ Probe Mentioned In 2007 Bush Administration Memo,”
Huffington Post, November 4, 2011.
14
In general, statutory provisions included in an annual appropriations act are usually only applicable to the covered
(continued...)
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In its FY2013 DOJ budget submission, the Administration proposed dropping the Cornyn
language prohibiting “gun walking,” arguing that the prohibition is unnecessary.15 The
Administration also proposed stripping the futurity language out of the ATF and FBI funding
provisions noted above, which were made permanent in the FY2012 appropriations cycle. In
addition, the Administration proposed stripping futurity language out of a long-standing but
controversial provision known as the Tiahrt amendment, which prohibits ATF from releasing
firearms trace data under a range of circumstances. Besides including futurity language, Congress
has altered the language of the Tiahrt amendment several times in recent years to clarify under
which circumstances and at what level of detail it is proper to release firearms trace data to law
enforcement and other governmental officials, as well as to researchers, the media, and the
general public.
Other legislative developments in the 112th Congress include the following:
•
On October 29, 2012, Representative Issa and Senator Grassley released Part II
of their three-part, final joint staff report entitled Fast and Furious: The Anatomy
of a Failed Operation.16 The second of three parts, Part II examines the
interaction of senior DOJ officials in the Criminal Division and the Office of the
Deputy Attorney General with ATF headquarters, the Phoenix Field Division, and
the Arizona U.S. Attorney’s Office.
•
On September 22, 2012, the Senate voted to invoke cloture on the Sportsmen’s
Act of 2012 (S. 3525), clearing the way for the Senate to consider this bill,
possibly, when it reconvenes. Like the Sportsmen’s Heritage Act of 2102 (H.R.
4089), the Senate bill includes provisions designed to promote access to federal
lands for hunting and other sporting activities.
•
On September 20, 2012, the Committee on Oversight and Government Reform
held a hearing on a report by the DOJ Office of Inspector General (OIG) entitled
A Review of ATF’s Operation Fast and Furious and Related Matters.17 The OIG
testified to the report’s findings that high-ranking, supervisory officials within
ATF headquarters and the Phoenix Field Division, as well as the U.S. Attorney’s
Office for the District of Arizona and Main Justice (DOJ headquarters), were
(...continued)
fiscal year, unless they include “futurity” language, in which case, those provisions are usually interpreted to be
permanent law. Examples of futurity language include “hereafter,” “after the date of approval of this act,” and
“henceforth.” See U.S. Government Accountability Office, Principles of Federal Appropriations Law: Annual Update
of the Third Edition, GAO-11-210SP, March 2011, pp. 2-5 through 2-6.
15
“Gun walking” is alleged to have occurred when ATF agents did not act in a timely manner to arrest, or at least
confront, suspected “straw purchasers” and interdict the firearms they had purchased in multiple transactions from
federally licensed gun dealers, when the agents arguably had a reasonable suspicion or probable cause to believe that
they, the straw purchasers, were trafficking firearms illegally to known associates of Mexican drug trafficking
organizations.
16
U.S. Congress, Fast and Furious: The Anatomy of a Failed Operation (Part II of III), Joint Staff Report Prepared for
Representative Darrell E. Issa, Chairman, United States House of Representatives, Committee on Oversight and
Government Reform and Senator Charles E. Grassley, ranking Member, United States Senate, Committee on the
Judiciary, 112th Cong., October 29, 2012.
17
U.S. Department of Justice, Office of the Inspector General, A Review of ATF’s Operation Fast and Furious and
Related Matters, September 2012.
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responsible for misguided strategies and tactics, errors in judgment, and
management failures related to Operation Fast and Furious.18
•
On July 31, 2012, Representative Darrell Issa, chairman of the Committee on
Oversight and Government Reform, and Senator Charles Grassley, ranking
minority Member of the Committee on the Judiciary, released a report entitled
Fast and Furious: The Anatomy of a Failed Operation.19 The first of three, this
report essentially chronicles how the ATF Phoenix Division and the U.S.
Attorney’s Office for the Arizona District ran a gun trafficking investigation from
October 2009 through January 2010, during which controversial “gun walking”
tactics were employed that—in Representative Issa and Senator Grassley’s
estimation—seriously compromised public safety and contributed to violent
crime and death on both sides of the international border.
•
On June 28, 2012, the House passed a resolution (H.Res. 711) citing Attorney
General Eric Holder in contempt of Congress for his failure to produce
additional, subpoenaed documents related to Operation Fast and Furious by a roll
call vote of 255-67 (Roll no. 441). The Committee on Oversight and Government
Reform had previously approved a report (H.Rept. 112-546) that accompanied
this resolution by a vote of 23-17. Shortly before the committee took up the
resolution, President Barack Obama asserted executive privilege, rather than
disclose subpoenaed documents related to ATF’s Operation Fast and Furious. The
House also passed a related resolution (H.Res. 706) that authorizes the committee
to initiate or intervene in judicial proceedings to enforce certain subpoenas.20
•
On May 18, 2012, the House passed the National Defense Authorization Act
(NDAA) for Fiscal Year 2013 (H.R. 4310). This bill includes a provision that
would allow Department of Defense (DOD) mental health professionals and
commanding officers to inquire about privately owned firearms that a service
member might hold off-base, if he is considered to be a risk of suicide or a
danger to others. A provision included in the FY2011 NDAA (P.L. 111-383)
prohibits the Secretary of Defense from collecting information on privately
owned firearms held by service members, DOD civilian employees, or their
families off-base.
•
On May 10, 2012, the House passed a measure (H.R. 5326) that would fund ATF
for FY2013 at $1.151 billion. This measure includes the Cornyn anti-gun walking
provision, and would make several additional ATF appropriations riders
permanent law by including futurity language in those provisions, instead of
following the Administration’s proposal and stripping futurity language out of the
18
U.S. Department of Justice, Office of the Inspector General, “Statement of Michael E. Horowitz, Inspector General,
U.S. Department of Justice, before the House Committee on Oversight and Government Reform, concerning Report by
the Office of the Inspector General on the Review of ATF’s Operation Fast and Furious and Related Matters,”
September 20, 2012, p. 12.
19
U.S. Congress. Fast and Furious: The Anatomy of a Failed Operation (Part I of III), Joint Staff Report Prepared for
Representative Darrell E. Issa, Chairman, United States House of Representatives, Committee on Oversight and
Government Reform, and Senator Charles E. Grassley, ranking Member, United States Senate, Committee on the
Judiciary, 112th Cong., July 31, 2012, http://oversight.house.gov/report/fast-and-furious-the-anatomy-of-a-failedoperation-part-1-of-3/.
20
For further information, see CRS Report RL34097, Congress’s Contempt Power and the Enforcement of
Congressional Subpoenas: Law, History, Practice, and Procedure, by (name redacted) and (name redacted).
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provisions that were made permanent law in the FY2012 appropriations cycle.
The House-passed bill also includes a provision that would prohibit ATF from
collecting long gun sales reports. This provision reflects a Rehberg amendment
that was successfully offered in full committee markup.
21
•
On May 3, 2012, Representative Issa, chairman of the House Oversight and
Government Reform Committee, issued a staff briefing paper to committee
Members that included a draft resolution to cite the Attorney General with
contempt for not fully complying with committee subpoenas for information
about Operation Fast and Furious and other matters.
•
On April 19, 2012, the Senate Committee on Appropriations reported a bill (S.
2323) that would fund ATF for FY2013 at $1.153 billion. This bill includes the
Cornyn provision, but it does not include any language similar to the Rehberg
amendment. Like the House bill, it does not address the Administration’s
proposal to strip futurity language out of the provisions that were made
permanent law in the FY2012 appropriations cycle, but it would not make any
additional provisos permanent law.
•
On April 17, 2012, the House passed the Sportsmen’s Heritage Act of 2012 (H.R.
4089), a bill that would require agencies that manage federal public lands to
facilitate access to and use of those lands for the purposes of recreational fishing,
hunting, and shooting with certain exceptions set out in statute. Language to a
similar effect was included in the FY2013 Interior, Environment, and Related
Agencies Appropriations bill (H.R. 6091), which the House Committee on
Appropriations reported on July 10, 2012.
•
On November 16, 2011, the House passed a bill (H.R. 822) that would establish a
greater degree of reciprocity between states that issue concealed carry permits for
handguns to civilians than currently exists under state law. The Senate considered
a similar amendment, which was narrowly defeated, in the 111th Congress.
•
On October 11, 2011, the House passed a Veterans’ Benefits Act (H.R. 2349).
This bill includes a provision that would prohibit the Department of Veterans
Affairs from determining a beneficiary to be mentally incompetent for the
purposes of gun control, unless such a determination were made by a judge,
magistrate, or other judicial authority based upon a finding that the beneficiary
posed a danger to himself or others. Similar proposals were considered in either
the House or the Senate in the 110th and 111th Congresses, in the wake of the
enactment of the NICS Improvement Amendments Act of 2007 (P.L. 110-180).21
•
During May 2011, firearms-related amendments were offered to bills to extend
certain USA PATRIOT Act provisions related to national security investigations
(H.R. 1800, S. 1038, and S. 990), but those amendments were not passed. On the
one hand, Representative Mike Quigley’s amendment would have allowed
firearms transfers to be denied, if prospective transferees were the subject of a
FBI national security investigation. On the other hand, Senator Rand Paul’s
amendment would have specifically excluded firearms transfer records from the
business records that can be collected without a warrant during a national
security investigation.
NICS stands for the National Instant Criminal Background Checks System, which is described below.
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The 112th Congress could also examine issues potentially arising from the tragic shootings in
Tucson, AZ, on January 8, 2011, in which 6 people were killed and 13 wounded, including
Representative Giffords. Armed with a 9mm Glock 19 semiautomatic pistol loaded with a 33round extended magazine, the shooter reportedly fired 31 shots before bystanders were able to
subdue him while he was attempting to reload with another 33-round extended magazine. He also
carried two additional 15-round magazines.22 As discussed below, these magazines were
previously defined under federal law as large capacity ammunition feeding devices (LCAFDs)
and were banned for 10 years, from September 13, 1994, through September 13, 2004, as part of
the larger semiautomatic assault weapons ban. Legislation has been introduced to reinstate the
LCAFD ban (H.R. 308 and S. 32) and to ban firearms within the proximity of certain high-level
federal officials (H.R. 367 and H.R. 496). Congressional interest could also focus on the shooter’s
mental illness and illegal drug use.
•
On November 15, 2011, the Senate Committee on the Judiciary’s Subcommittee
on Crime and Terrorism held a hearing on the Fix Gun Checks Act of 2011 (S.
436/H.R. 1781). This proposal would amend P.L. 110-180 to advance certain
deadlines and apply deeper cuts to a wider array of federal law enforcement
assistance grant programs to incentivize the greater sharing of firearms-related
disqualifying records. Congress passed P.L. 110-180 in the wake of the tragic
April 16, 2007, Virginia Tech shootings.
Background and Analysis
Pro/Con Debate
Through the years, legislative proposals to restrict the availability of firearms to the public have
raised the following questions: What restrictions on firearms are permissible under the
Constitution? Does gun control constitute crime control? Can the nation’s rates of homicide,
robbery, and assault be reduced by the stricter regulation of firearms commerce or ownership?
Would restrictions stop attacks on public figures or thwart deranged persons and terrorists? Would
household, street corner, and schoolyard disputes be less lethal if firearms were more difficult and
expensive to acquire? Would more restrictive gun control policies have the unintended effect of
impairing citizens’ means of self-defense?
In recent years, proponents of gun control legislation have often held that only federal laws can
be effective in the United States. Otherwise, they say, states with few restrictions will continue to
be sources of guns that flow illegally into more-restrictive states. They believe that the Second
Amendment to the Constitution, which states that “[a] well regulated Militia, being necessary to
the security of a free State, the right of the people to keep and bear Arms shall not be infringed,”
is being misread in today’s modern society. They argue that the Second Amendment (1) is now
obsolete, with the presence of professional police forces; (2) was intended solely to guard against
suppression of state militias by the central government and is therefore restricted in scope by that
intent; and (3) does not guarantee a right that is absolute, but rather one that can be limited by
reasonable requirements. They ask why in today’s modern society a private citizen needs any
firearm that is not designed primarily for hunting or other recognized sporting purposes.
22
David von Drehle, “1 Madman and a Gun: 15 Seconds to Fire the Glock; 31 Bullets in One Clip; 19 Victims, with
Six Killed,” Time, January 24, 2011, p. 26.
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Proponents of firearms restrictions have advocated policy changes on specific types of firearms or
components that they believe are useful primarily for criminal purposes or that pose unusual risks
to the public. Fully automatic firearms (i.e., machine guns) and short-barreled rifles and shotguns
have been subject to strict regulation since 1934. Fully automatic firearms have been banned from
private possession since 1986, except for those legally owned and registered with the Secretary of
the Treasury as of May 19, 1986. More recently, “Saturday night specials” (loosely defined as
inexpensive, small handguns), “assault weapons,” ammunition-feeding devices with capacities for
more than seven rounds, and certain ammunition have been the focus of control efforts.
Opponents of gun control vary in their positions with respect to specific forms of control but
generally hold that gun control laws do not accomplish what is intended. They argue that it is as
difficult to keep weapons from being acquired by “high-risk” individuals, even under federal laws
and enforcement, as it was to stop the sale and use of liquor during Prohibition. In their view, a
more-stringent federal firearms regulatory system would only create problems for law-abiding
citizens, bring mounting frustration and escalation of bans by gun regulators, and possibly
threaten citizens’ civil rights or safety. Some argue that the low violent crime rates of other
countries have nothing to do with gun control, maintaining instead that multiple cultural
differences are responsible.
Gun control opponents also reject the assumption that the only legitimate purpose of ownership
by a private citizen is recreational (i.e., hunting and target-shooting). They insist on the
continuing need of people for effective means to defend themselves and their property, and they
point to studies that they believe show that gun possession lowers the incidence of crime. They
say that the law enforcement and criminal justice system in the United States has not
demonstrated the ability to furnish an adequate measure of public safety in all settings. Some
opponents further believe that the Second Amendment includes a right to keep arms as a defense
against potential government tyranny, pointing to examples in other countries of the use of
firearms restrictions to curb dissent and secure illegitimate government power. The debate has
been intense.
To gun control advocates, the opposition is out of touch with the times, misinterprets the Second
Amendment, and is lacking in concern for the problems of crime and violence. To gun control
opponents, advocates are naive in their faith in the power of regulation to solve social problems,
bent on disarming the American citizen for ideological or social reasons, and moved by irrational
hostility toward firearms and gun enthusiasts.
Gun-Related Statistics
Crime and mortality statistics are often used in the gun control debate. According to a recent
study, however, none of the existing sources of statistics provide either comprehensive, timely, or
accurate data with which to assess definitively whether there is a causal connection between
firearms and violence.23 For example, existing data do not show whether the number of people
shot and killed with semiautomatic assault weapons declined during the 10-year period (19942004) that those firearms were banned from further proliferation in the United States.24 Presented
below are data on the following topics: (1) the number of guns in the United States, (2) firearms23
24
National Research Council, Firearms and Violence: A Critical Review (Washington, DC: 2005), p. 48.
Ibid., p. 49.
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related homicides, (3) non-lethal firearms-related victimizations, (4) gun-related mortality rates,
(5) use of firearms for personal defense, and (6) recreational use of firearms. In some cases, the
data presented are more than a decade old but remain the most recent available.
How Many Guns Are in the United States?
The National Institute of Justice (NIJ) reported in a national survey that in 1994, 44 million
people, approximately 35% of households, owned 192 million firearms, 65 million of which were
handguns.25 Seventy-four percent of those individuals were reported to own more than one
firearm.26 According to the ATF, by the end of 1996 approximately 242 million firearms were
available for sale to or were possessed by civilians in the United States.27 That total includes
roughly 72 million handguns (mostly pistols, revolvers, and derringers), 76 million rifles, and 64
million shotguns.28 By 2000, the number of firearms had increased to approximately 259 million:
92 million handguns, 92 million rifles, and 75 million shotguns.29 By 2007, the number of
firearms had increased to approximately 294 million: 106 million handguns, 105 million rifles,
and 83 million shotguns.30
In the past, most guns available for sale were produced domestically. In recent years, 1 million to
2 million handguns were manufactured each year, along with 1 million to 1.5 million rifles and
fewer than 1 million shotguns.31 From 2001 through 2007, however, handgun imports nearly
doubled, from 711,000 to nearly 1.4 million.32 By 2009, nearly 2.2 million handguns were
imported into the United States.33 From 2001 through 2007, rifle imports increased from 228,000
to 632,000, and shotgun imports increased from 428,000 to 726,000.34 By 2009, rifle imports had
increased to 864,000, but shotguns had decreased 559,000.35 By the same year, 2009, the
estimated total number of firearms available to civilians in the United States had increased to
approximately 310 million: 114 million handguns, 110 million rifles, and 86 million shotguns.36
25
Jens Ludwig and Phillip J. Cook, Guns in America: National Survey on Private Ownership and Use of Firearms,
NCJ 165476, May 1999, http://www.ncjrs.org/pdffiles/165476.pdf.
26
Ibid.
27
U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Commerce in Firearms in the United
States, February 2000, pp. A3-A5.
28
Ibid., pp. A3-A5.
29
U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Firearms Commerce in the United
States 2001/2002, ATF P 9000.4, April 2002, pp. E1-E3.
30
U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Annual Firearm
Manufacturing and Export Reports for 2002 through 2007, along with firearms import data provided by the ATF
Firearms and Explosives Import Branch.
31
Ibid.
32
U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms and Explosives Import
Branch.
33
U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms Commerce in the
United States 2011, August 2011, p. 15.
34
U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms and Explosives Import
Branch.
35
U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms Commerce in the
United States 2011, August 2011, p. 15
36
Ibid., pp. 11, 13, and 15.
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Per capita, the civilian gun stock has roughly doubled since 1968, from one gun per every two
persons to one gun per person.
Retail prices of guns vary widely, from $75 or less for inexpensive, low-caliber handguns to more
than $1,500 for higher-end, standard-production rifles and shotguns.37 Data are not available on
the number of “assault weapons” in private possession or available for sale, but one study
estimated that 1.5 million assault weapons were privately owned in 1994.38
How Often Are Guns Used in Homicides?
As Table 1 shows, reports submitted by state and local law enforcement agencies to the FBI and
published annually in the Uniform Crime Reports39 indicate that the firearms-related murder and
non-negligent manslaughter rate per 100,000 of the population decreased from 6.6 for 1993 to 3.6
for 2000. The rate held steady at 3.6 for 2001 and fluctuated thereafter between a high of 3.9 for
2006 and 2007, and a low of 3.2 for 2010. For 2011, it has remained at 3.2.
Table 1. Estimated Murder Rates and Firearms, 1993-2011
Year
Estimated
Murder Victimsa
Rate per 100,000
of the Population
1993
24,526
1994
Estimated FirearmsRelated Murder
VictimsError! Reference source not
found.
Rate per 100,000
of the Population
9.5
17,073
6.6
23,326
9.0
16,333
6.3
1995
21,606
8.2
14,727
5.6
1996
19,645
7.4
13,261
5.0
1997
18,208
6.8
12,335
4.6
1998
16,974
6.3
11,006
4.1
1999
15,522
5.7
10,117
3.7
2000
15,586
5.5
10,203
3.6
2001
16,037
5.6
10,139
3.6
2002
16,229
5.6
10,841
3.8
2003
16,528
5.7
11,037
3.8
2004
16,148
5.5
10,665
3.6
2005
16,740
5.6
11,363
3.8
2006
17,309
5.8
11,731
3.9
2007
17,128
5.7
11,631
3.9
2008
16,645
5.4
11,029
3.6
37
Ned Schwing, 2005 Standard Catalog of Firearms: The Collector’s Price and Reference Guide, 15th edition (Iola,
Wisconsin, 2005).
38
Christopher S. Koper, Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun
Violence, 1994-2003 (Washington, DC: July 2004).
39
See http://www.fbi.gov/ucr/ucr.htm.
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Year
Estimated
Murder Victimsa
Rate per 100,000
of the Population
2009
15,399
2010
2011
Estimated FirearmsRelated Murder
VictimsError! Reference source not
found.
Rate per 100,000
of the Population
5.0
10,301
3.4
14,722
4.8
9,812
3.2
14,612
4.7
9,903
3.2
Source: CRS compilation of FBI crime statistics reported annually in the Uniform Crime Reports, 1993-2011.
a.
Includes murder and non-negligent manslaughter victims.
b.
The number of firearms-related murder and non-negligent manslaughter victims was estimated by applying
the percentage of firearms-related murders for which the cause of death was known to the number of all
reported murder and non-negligent homicide victims for which the cause was known or unknown.
Figure 1 shows that the estimated murder rate peaked in 1974 at 9.8 victims per 100,000 of the
population. It peaked again in 1980 (10.2), in 1991 (9.8), and 1993 (9.5). Correspondingly, the
estimated firearms-related murders rates similarly peaked at 6.6 (1974), 6.4 (1980), 6.5 (1991),
and 6.6 (1999). After 1993, the murder rate decreased to 5.5 in 2000, and the firearms-related
murder rate decreased similarly to 3.5 in that year. The murder rates leveled off somewhat from
2001 to 2006, with slight increases in several of those years. Then, the murder rates decreased
and leveled off at 3.2 for 2010 and 2011. Over those years (1968-2011), roughly two out of three
murders were committed with a firearm. Although not shown in Figure 1, roughly one out of two
murders was committed with a handgun. By comparison, the non-firearms murder rates peaked in
1975 (3.4), 1980 (3.8), 1986 (3.5), and 1991 (3.4); the corresponding increases and decreases
were of a lesser magnitude for non-firearms murder rates than those corresponding with firearmsrelated murder rates.
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Figure 1. Estimated Murder Rates and Firearms, 1968-2011
(per 100,000 of the population)
12
10
8
6
4
2
Overall Murder Rates
Total Firearms Murder Rates
2010
2007
2004
2001
1998
1995
1992
1989
1986
1983
1980
1977
1974
1971
1968
0
Non-firearms Murder Rates
Source: CRS compilation of FBI crime statistics reported annually in the Uniform Crime Reports, 1968-2011.
Notes: Rates reflect both murder and non-negligent manslaughter victims.
How Prevalent Are Gun-Related Fatalities?
The source of national data on firearms deaths is the publication Vital Statistics, published each
year by the National Center for Health Statistics. Firearms deaths reported by coroners are
presented in five categories: homicides, legal interventions,40 suicides, accidents, and unknown
circumstances. For these categories, the data are presented below for 1993 through 2007 in two
tables, one for all deaths and the other for juvenile deaths.
Table 2. Firearms-Related Deaths for All Ages
1993-2009
Yeara
Homicides
Legal
Interventions
Suicides
Accidents
Unknown
Total
Deaths
%
Change
1993
18,253
318
18,940
1,521
563
39,596
1994
17,527
339
18,765
1,356
518
38,506
-2.8%
1995
15,551
284
18,503
1,225
394
35,958
-6.6%
1996
14,037
290
18,166
1,134
413
34,041
-5.3%
1997
13,252
270
17,566
981
367
32,437
-4.7%
40
“Legal interventions” include deaths (in these cases by firearms) that involve legal uses of force (justifiable homicide
or manslaughter), usually by the police.
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Yeara
Homicides
Legal
Interventions
Suicides
Accidents
Unknown
Total
Deaths
%
Change
1998
11,798
304
17,424
866
316
30,709
-5.3%
1999
10,828
299
16,599
824
324
28,875
-6.0%
2000
10,801
270
16,586
776
230
28,664
-0.7%
2001
11,348
323
16,869
802
231
29,574
3.2%
2002
11,829
300
17,108
762
243
30,243
2.3%
2003
11,920
347
16,907
730
232
30,137
-0.4%
2004
11,624
311
16,750
649
235
29,570
-1.9%
2005
12,352
330
17,002
789
221
30,695
3.8%
2006
12,791
360
16,883
642
220
30,897
0.7%
2007
12,632
351
17,352
613
276
31,224
1.1%
2008
12,179
326
18,223
592
273
31,593
1.1%
2009
11,493
333
18,735
554
232
31,347
-0.7
Source: National Center for Health Statistics.
a.
As of February 28, 2012, the last year for which data were available was calendar year 2009.
As Table 2 shows, firearms fatalities decreased continuously from 39,595 in 1993 to 28,664 in
2000, for an overall decrease of nearly 28%. Compared with firearms deaths in 2000, such deaths
increased by 3.2% in 2001 to 29,574, and increased again, by 2.3%, in 2002 to 30,243. They
decreased by 0.3% in 2003 to 30,137, and decreased again, by 1.9%, in 2004 to 29,570. Firearms
fatalities increased by 3.8% in 2005 to 30,694, by 0.7% in 2006 to 30,897, and by 1.1% in 2007
to 31,224. They increased again by 1.1% in 2008, but decreased by 0.7% in 2009. Of the 2009
total, 11,826 were homicides or due to legal intervention, 18,735 were suicides, 554 were
unintentional (accidental) shootings, and 232 were of unknown causes.41
As Table 3 shows, there were 1,520 juvenile (younger than 18 years of age) firearms-related
deaths in 2007. Of the juvenile total, 1,047 were homicides or due to legal intervention, 325 were
suicides, 112 were unintentional, and 36 were of unknown causes. From 1993 to 2001, juvenile
firearms-related deaths decreased by an average rate of 10% annually, for an overall decrease of
56%. From 2001 to 2002, such deaths increased slightly (by less than 1%), but declined by nearly
9% from 2002 to 2003. They increased from 2002 through 2006, by 5% to 7%, but decreased by
nearly 5% in 2007.42 Juvenile firearms-related fatalities decreased again by 3.0% in FY2008 and
nearly 6% in 2009.
41
National Vital Statistics System data taken from the Injury Statistics Query and Reporting System (WISQARS),
http://www.cdc.gov/ncipc/wisqars/default.htm.
42
Ibid.
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Table 3. Firearms-Related Deaths for Juveniles
1993-2009
Yeara
Homicides
Legal
Interventions
Suicides
Accidents
Unknown
Total
Deaths
%
Change
1993
1,975
16
832
392
76
3,292
1994
1,912
20
902
403
81
3,319
0.8%
1995
1,780
16
836
330
72
3,035
-8.6%
1996
1,473
9
720
272
49
2,524
-16.8%
1997
1,308
7
679
247
43
2,285
-9.5%
1998
1,045
17
648
207
54
1,972
-13.7%
1999
1,001
9
558
158
50
1,777
-9.9%
2000
819
15
537
150
23
1,545
-13.1%
2001
835
6
451
125
16
1,434
-7.2%
2002
872
7
423
115
26
1,444
0.7%
2003
805
8
377
102
25
1,318
-8.7%
2004
868
6
384
105
22
1,386
5.2%
2005
921
5
412
127
25
1,491
7.6%
2006
1,082
14
371
102
24
1,594
6.9%
2007
1,038
9
325
112
36
1,520
-4.6%
2008
984
6
361
98
26
1,475
-3.0%
2009
887
5
401
83
16
1,392
-5.6%
Source: National Center for Health Statistics.
a.
As of February 28, 2012, the last year for which data were available was calendar year 2009.
How Often Are Guns Used in Non-Lethal Crimes?
The other principal source of national crime data is the National Crime Victimization Survey
(NCVS) conducted by the U.S. Census Bureau and published by the Bureau of Justice Statistics
(BJS). The NCVS database provides some information on the weapons used by offenders, based
on victims’ reports. Based on data provided by survey respondents in calendar year 2009, BJS
estimated that, nationwide, there were 4.3 million non-lethal violent crimes (rape or sexual
assault, robbery, aggravated assault, and simple assault).43 Weapons were used in 22% of these
incidents, and firearms were used by offenders in 8% of these incidents.44 The estimated number
of firearms-related non-lethal violent crime incidents decreased from 428,670 in 2000 to 326,090
in 2009, and from 2.4 persons to 1.4 per 100,000 of the population ages 12 and older.45
43
U.S. Department of Justice, Bureau of Justice Statistics, National Crime Victimization Survey, Criminal
Victimization, 2009, by Jennifer L. Truman and Michael R. Rand, p. 8.
44
Ibid.
45
Ibid.
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How Often Are Firearms Used in Self-Defense?
According to BJS, NCVS data from 1987 to 1992 indicate that in each of those years, roughly
62,200 victims of violent crime (1% of all victims of such crimes) used guns to defend
themselves.46 Another 20,000 persons each year used guns to protect property. Persons in the
business of self-protection (police officers, armed security guards) may have been included in the
survey.47 Another source of information on the use of firearms for self-defense is the National
Self-Defense Survey conducted by criminology professor Gary Kleck of Florida State University
in the spring of 1993. Citing responses from 4,978 households, Dr. Kleck estimated that handguns
had been used 2.1 million times per year for self-defense, and that all types of guns had been used
approximately 2.5 million times a year for that purpose during the 1988-1993 period.48
Why do these numbers vary by such a wide margin? Law enforcement agencies do not collect
information on the number of times civilians use firearms to defend themselves or their property
against attack. Such data have been collected in household surveys. The contradictory nature of
the available statistics may be partially explained by methodological factors. That is, these and
other criminal justice statistics reflect what is reported to have occurred, not necessarily the actual
number of times certain events occur. Victims and offenders are sometimes reluctant to be candid
with researchers. So, the number of incidents can only be estimated, making it difficult to state
with certainty the accuracy of statistics such as the number of times firearms are used in selfdefense. For this and other reasons, criminal justice statistics often vary when different
methodologies are applied.
Survey research can be limited because it is difficult to produce statistically significant findings
from small incident populations. For example, the sample in the National Self-Defense Survey
might have been too small, given the likely low incidence rate and the inherent limitations of
survey research.
What About the Recreational Use of Guns?
According to NIJ, in 1994 recreation was the most common motivation for owning a firearm.49
There were approximately 15 million hunters, about 35% of gun owners, in the United States, and
about the same number and percentage of gun owners engaged in sport shooting in 1994.50 The
U.S. Fish and Wildlife Service (FWS) reported that there were more than 14.7 million persons
who were paid license holders in 200351 and, according to the National Shooting Sports
Foundation, in that year approximately 15.2 million persons hunted with a firearm and nearly
46
U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Guns and Crime: Handgun
Victimization, Firearm Self-Defense, and Firearm Theft, NCJ-147003, April 1994, http://bjs.ojp.usdoj.gov/content/pub/
ascii/hvfsdaft.txt.
47
Ibid.
48
Gary Kleck, “Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun,” Journal of
Criminal Law and Criminology, vol. 86, issue 1, 1995, http://www.guncite.com/gcdgklec.html.
49
Jens Ludwig and Phillip J. Cook, Guns in America: National Survey on Private Ownership and Use of Firearms,
NCJ 165476, May 1999, p. 2.
50
Ibid., p. 3.
51
U.S. Department of the Interior, U.S. Fish and Wildlife Service, National Hunting License Report (December 2,
2004).
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19.8 million participated in target shooting.52 The FWS reported that there were 14.4 million paid
license holders in 2010.53
Federal Regulation of Firearms
Two major federal statutes regulate the commerce in and possession of firearms: the National
Firearms Act of 1934 (26 U.S.C. §5801 et seq.) and the Gun Control Act of 1968, as amended (18
U.S.C. Chapter 44, §921 et seq.). Supplementing federal law, many state firearms laws are stricter
than federal law. For example, some states require permits to obtain firearms and impose a
waiting period for firearms transfers. Other states are less restrictive, but state law cannot preempt
federal law. Federal law serves as the minimum standard in the United States.
The National Firearms Act (NFA)
The NFA was originally designed to make it difficult to obtain types of firearms perceived to be
especially lethal or to be the chosen weapons of “gangsters,” most notably machine guns and
short-barreled long guns. This law also regulates firearms, other than pistols and revolvers, which
can be concealed on a person (e.g., pen, cane, and belt buckle guns). It taxes all aspects of the
manufacture and distribution of such weapons, and it compels the disclosure (through registration
with the Attorney General) of the production and distribution system from manufacturer to buyer.
The Gun Control Act of 1968 (GCA)
As stated in the GCA, the purpose of federal firearms regulation is to assist federal, state, and
local law enforcement in the ongoing effort to reduce crime and violence. In the same act,
however, Congress also stated that the intent of the law is not to place any undue or unnecessary
burdens on law-abiding citizens in regard to the lawful acquisition, possession, or use of firearms
for hunting, trapshooting, target shooting, personal protection, or any other lawful activity.
The GCA, as amended, contains the principal federal restrictions on domestic commerce in small
arms and ammunition. The statute requires all persons manufacturing, importing, or selling
firearms as a business to be federally licensed; prohibits the interstate mail-order sale of all
firearms; prohibits interstate sale of handguns generally and sets forth categories of persons to
whom firearms or ammunition may not be sold, such as persons under a specified age or with
criminal records; authorizes the Attorney General to prohibit the importation of non-sporting
firearms; requires that dealers maintain records of all commercial gun sales; and establishes
special penalties for the use of a firearm in the perpetration of a federal drug trafficking offense or
crime of violence.
As amended by the Brady Handgun Violence Prevention Act, 1993 (P.L. 103-159), the GCA
requires background checks be completed for all unlicensed persons seeking to obtain firearms
from federal firearms licensees. Private transactions between persons “not engaged in the
52
American Sports Data, Inc., The SUPERSTUDY of Sports Participation.
U.S. Department of the Interior, U.S. Fish and Wildlife Service, National Hunting License Report (December 10,
2010).
53
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business” are not covered by the recordkeeping or the background check provisions of the GCA.
These transactions and other matters such as possession, registration, and the issuance of licenses
to firearms owners may be covered by state laws or local ordinances. For a listing of other major
firearms and related statutes, see Appendix B.
Firearms Transfer and Possession Eligibility
Under current law, there are nine classes of persons prohibited from shipping, transporting,
receiving, or possessing firearms or ammunition:
•
persons convicted in any court of a crime punishable by imprisonment for a term
exceeding one year;
•
fugitives from justice;
•
unlawful users or addicts of any controlled substance as defined in Section 102 of
the Controlled Substances Act (21 U.S.C. §802));
•
persons adjudicated as “mental defective” or committed to mental institutions;
•
unauthorized immigrants and nonimmigrant visitors (with exceptions in the latter
case, which have changed—effective July 9, 2012—as described below);
•
persons dishonorably discharged from the U.S. Armed Forces;
•
persons who have renounced their U.S. citizenship;
•
persons under court-order restraints related to harassing, stalking, or threatening
an intimate partner or child of such intimate partner; and
•
persons convicted of a misdemeanor crime of domestic violence.54
In addition, there is a 10th class of persons prohibited from shipping, transporting, or receiving
firearms or ammunition:
•
persons under indictment in any court of a crime punishable by imprisonment for
a term exceeding one year.55
It also unlawful for any person to sell or otherwise dispose of a firearm or ammunition to any of
the prohibited persons enumerated above, if the transferor (seller) has reasonable cause to believe
that the transferee (buyer) is prohibited from receiving those items.56
Age Eligibility
Federal firearms licensees are prohibited from transferring a long gun or long gun ammunition to
anyone less than 18 years of age, or a handgun or handgun ammunition to anyone less than 21
years of age.57 Since 1994, moreover, it has been a federal offense for any unlicensed person to
transfer a handgun or handgun ammunition to anyone less than 18 years-of age. It has also been
54
18 U.S.C. §922(g).
18 U.S.C. §922(n).
56
18 U.S.C. §922(d).
57
18 U.S.C. §922(b)(1).
55
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illegal for anyone under 18 years of age to possess a handgun or handgun ammunition (there are
exceptions to this law related to employment, ranching, farming, target practice, and hunting).58
Noncitizen Firearms Eligibility
Regarding immigration status, the GCA does not distinguish between citizens and legal
permanent aliens (legal immigrants);59 both are eligible to ship, transport, receive, and possess
firearms and ammunition as long as they are not prohibited persons. By comparison, illegal
immigrants60 and nonimmigrants61 are prohibited persons, but there are several exceptions
described below. One of those exceptions reflects an October 2011 DOJ legal opinion.
For nearly 30 years, legal immigrants and nonimmigrants who could establish a 90-day state
residency were eligible to purchase, receive, and possess firearms. In 1999, however, Congress
prohibited nonimmigrant aliens who are issued a visa from purchasing, receiving, or possessing a
firearm,62 but included several exceptions for nonimmigrants who could establish that they are
•
official representatives of a foreign government who are accredited to the United
States government or the nonimmigrant’s government mission to an international
organization that is headquartered in the United States and possession of a
firearm is necessary to their official capacity;
•
officials of foreign governments or distinguished visitors who have been
designated by the State Department and possession of a firearm is necessary to
their official capacity;
•
foreign law enforcement officers of a friendly foreign government entering the
United States on law enforcement business; or
58
18 U.S.C. §922(x).
The Immigration and Nationality Act (INA) defines “alien” to mean any person who is not a citizen or national of the
United States (see INA §101(a)(3)). In this report, the terms “alien” and “noncitizen” are used interchangeably.
“Permanent resident aliens” are persons admitted to the United States as lawful permanent residents, meaning they
have been accorded the privilege of residing in the United State permanently. Such aliens may be issued immigrants
abroad by the Department of State, or they may enter the United States without an immigrant visa and be allowed to
adjust to permanent resident status under several avenues provided under the INA. Colloquially, legal permanent
resident aliens are often referred to as “legal immigrants,” the term that is used in this report.
60
“Illegal immigrants” are persons who are not nationals or citizens (aliens), and who have either entered the United
States without inspection or have violated the terms of their nonimmigrant visas or entry by overstaying or accepting
unauthorized employment. In the Omnibus Crime Control and Safe Streets Act of 1968, Congress prohibited illegal or
unlawful aliens from receiving, possessing, or transporting firearms (P.L. 90-351; 82 State. 236; June 19, 1968). This
provision is currently codified at 18 U.S.C. §922(g)(5)(A). NB: Individuals who are present in the United States in an
unlawful immigration status are often referred to as “unauthorized aliens” or “unauthorized immigrants,” as opposed to
“illegal or unlawful aliens.” For further information, see CRS Report R41207, Unauthorized Aliens in the United
States, by (name redacted).
61
“Nonimmigrants” are aliens who have been lawfully admitted to the United States on a temporary basis for a specific
purpose. Under the INA, nonimmigrant classifications include visitors for business and pleasure, foreign government
officials, aliens in transit through the United States, treaty traders and investors, students, temporary workers and
trainees, fiancé(e)s of U.S. citizens, intracompany transfers, NATO officials, religious workers, and others.
62
Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (P.L. 105-277; 12 Stat. 2681-71;
October 21, 1998). This prohibition is codified at 18 U.S.C. §922(g)(5)(B).
59
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•
visitors admitted to the United States for lawful hunting or sporting purposes or
are in possession of a valid hunting license or permit lawfully issued in the
United States.63
When ATF implemented this law, it issued a 2002 rule that prohibited all nonimmigrants from
receiving or possessing a firearm, including those nonimmigrants who were legally admitted to
the United States without being required to obtain a visa.64 At that time, ATF observed that about
50% of nonimmigrant aliens admitted to the United States were not required to obtain a visa. As
is the case today, those visa-exempt nonimmigrants principally included Canadian visitors or Visa
Waiver Program entrants admitted temporarily for business or pleasure.65 On October 28, 2011,
however, the DOJ Office of Legal Counsel (OLC) issued an opinion that found ATF’s
interpretation of this law to be in error. 66 The OLC found that the “plain text of the statute” only
“addressed aliens who had been admitted to the United States under a nonimmigrant visa.”67
On January 30, 2012, the OLC issued a subsequent opinion that found that ATF’s 90-day
residence requirement for noncitizens was also in error, because there was no statutory basis to
promulgate a one-part test for citizens and a two-part test for noncitizens.68 Any unlicensed
prospective buyer of a firearm—citizen or noncitizen—is required to present to an FFL a stateissued identification document to demonstrate that he resides in the state in which the FFL is
licensed to conduct business. From December 1969 through July 2012, however, ATF and its
predecessor agency required noncitizens to demonstrate that they had actually resided in the state
for 90 days by presenting additional documentation (e.g., utility bills or rental leases), which
citizens were not required to present.
On June 7, 2012, ATF issued a final rule that brought its regulations into compliance with the
OLC opinions.69 Correspondingly, ATF also issued a revised Form 4473 to reflect the changed
regulations. As described below, FFLs and their unlicensed customers must fill this form out to
document, among other things, that a customer is not a prohibited person. On July 9, 2012, FFLs
were required to begin using the revised form. The instructions accompanying the revised form
indicate that nonimmigants who are admitted legally to the United States without a visa (visaexempt) are not prohibited from receiving or possessing firearms or ammunition. As noted above,
such visa-exempt aliens would include Canadians who are often admitted to the United States for
63
The nonimmigrant prohibition exceptions are codified at 18 U.S.C. §922(y).
67 Federal Register 5422 (February 5, 2002).
65
Ibid.
66
The OLC provides oral advice and written opinions in response to requests from executive branch agencies, as well
as the Counsel to the President. Formal opinions are prepared for and signed by the Attorney General. More frequently,
written legal opinions (formal advice) are prepared and signed by the OLC Assistant Attorney General or Deputy
Assistant Attorney General. The OLC also serves as the general counsel for DOJ and, in this role, reviews all
regulations promulgated under the Attorney General’s signature. The OLC only provides legal advice to the Executive
Branch and, within that branch, OLC opinions “are controlling on questions of the law.” See Memorandum for
Attorneys of the Office, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Best Practices for OLC Opinions (May 16, 2005), p. 1.
67
U.S. Department of Justice, Office of Legal Counsel, Nonimmigrant Aliens and Firearms Disabilities Under the Gun
Control Act: Memorandum Opinion for the Chief Counsel, Bureau of Alcohol, Tobacco, Firearms and Explosives
(October 28, 2011), p. 1;
68
U.S. Department of Justice, Office of Legal Counsel, State of Residence Requirements for Firearms Transfers:
Memorandum Opinion for the Chief Counsel, Bureau of Alcohol, Tobacco, Firearms and Explosives (January 30,
2012), p. 1.
69
77 Federal Register 33625 (June 7, 2012).
64
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business or pleasure without being required to obtain a nonimmigrant B1/B2 visa, as well as other
aliens admitted for similar purposes under the Visa Waiver Program.
Nevertheless, all persons—citizens and noncitizens—must still demonstrate to an FFL their
intention of making a home in the state in which they are attempting to acquire a firearm by
presenting certain valid government-issued identification documents (e.g., driver’s licenses, voter
registration cards, tax records, or vehicle registrations). In some cases, such documentation may
be difficult for visa-exempt aliens to acquire, because generally they are not authorized to accept
paid employment and their stays in the United States are generally limited to 90 days.
Furthermore, they would be required to engage the services of an FFL to export firearms they
acquired in the United States to their home country, if they wished to take those firearms out of
the United States. The International Traffic in Arms Regulations (ITAR) and the Export
Administration Regulations (EAR),70 furthermore, would require that such international transfers
be prearranged and made between a federally licensed exporter in the United States and a licensed
importer in an individual’s home county. Consequently, the nonimmigrant firearms owner would
not be authorized to ship or carry those firearms personally out of the United States.
Licensed Dealers and Firearms Transfers
Persons who are federally licensed to be engaged in the business of manufacturing, importing, or
selling firearms are known as “federal firearms licensees (FFLs).”71 Under current law, FFLs may
ship, transport, and receive firearms that have moved in interstate and foreign commerce. FFLs
are currently required to verify with the FBI through a background check that non-licensed
persons are eligible to possess a firearm before subsequently transferring a firearm to them. FFLs
must also verify the identity of non-licensed transferees by inspecting a government-issued
identity document (e.g., a driver’s license).
FFLs may engage in interstate transfers of firearms among themselves without conducting
background checks. Licensees may transfer long guns (rifles and shotguns) to out-of-state
residents, as long as the transactions are face-to-face and not knowingly in violation of the laws
of the state in which the unlicensed transferees reside. FFLs, however, may not transfer handguns
to unlicensed out-of-state residents.72 Since 1986, there have been no similar restrictions on the
interstate transfer of ammunition. Furthermore, a federal firearms license is not required to sell
ammunition; however, such a license is required to either manufacture or import ammunition.
Also, FFLs are required to submit “multiple sales reports” to the Attorney General if any person
purchases two or more handguns within five consecutive business days. As described below,
FFLs are required to maintain records on all acquisitions and dispositions of firearms. They are
obligated to respond to ATF agents requesting firearms tracing information within 24 hours.
Under certain circumstances, ATF agents may inspect, without search warrants, their business
premises, inventory, and gun records.
70
22 C.F.R. Parts 120-130 and 15 CFR Chapter VII, Subchapter C, Parts 730-774.
18 U.S.C. §923(a).
72
18 U.S.C. §922(b)(3).
71
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Private Firearms Transfers
Unlicensed persons are generally prohibited from acquiring firearms from out-of-state sources
(except for long guns acquired from FFLs under the conditions described above). Unlicensed
persons are also prohibited from transferring firearms to anyone who they have reasonable cause
to believe are not residents of the state in which the transaction occurs. In addition, since 1986 it
has been a federal offense for non-licensees to knowingly transfer a firearm or ammunition to
prohibited persons.73 It is also notable that firearms or ammunition transfers initiated through the
Internet are subject to the same federal laws as transfers initiated in any other manner.74
Gun Trafficking and Straw Purchases
Criminal “gun trafficking” essentially entails the movement or diversion of firearms from legal to
illegal markets.75 Therefore, it follows that the entire GCA is arguably a statutory framework
designed to combat gun trafficking domestically, particularly interstate gun trafficking.76 ATF has
developed a nationwide strategy to reduce firearms trafficking and violent crime by preventing
convicted felons, drug traffickers, and juvenile gang members from acquiring firearms from gun
traffickers.77 Gun trafficking cases include, but are not limited to, the following activities:
•
Straw purchasers or straw purchasing rings;
•
Trafficking in firearms by corrupt federally licensed gun dealers;
•
Trafficking in firearms by unlicensed dealers (i.e., persons who deal in firearms
illegally as the principal source of their livelihood);
•
Trafficking in secondhand firearms acquired from unlicensed persons at gun
shows, flea markets, and other private venues; and
•
Trafficking in stolen firearms.78
73
18 U.S.C. §922(d).
For further information, see CRS Report RS20957, Internet Firearm Sales, by (name redacted).
75
U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Project Gunrunner: The
Southwest Border Initiative, ATF P 3317.6, March 2009, available at http://www.atf.gov/publications/download/p/atfp-3317-6.pdf.
It is noteworthy that in 2006 the U.S. Sentencing Commission amended its guidelines to include the following
definition: “firearms trafficking” occurred if an offender, “regardless of whether anything of value was exchanged,”
engaged in the following activities: (1) transported, transferred, or otherwise disposed of two or more firearms to
another individual, or received two or more firearms with the intent to transport, transfer, or otherwise dispose of
firearms to another individual; and (2) knew or had reason to believe that such conduct would result in the transport,
transfer, or disposal of a firearm to an individual (a) whose possession or receipt of the firearm would be unlawful; or
(b) who intended to use or dispose of the firearm unlawfully. See United States Sentencing Commission, Guidelines
Manual, §2K2.1(b)(5) (November 2006).
76
With regard to Southwest Border gun trafficking, it is significant to note that the GCA does not include any
provisions that directly address smuggling firearms out of the United States, across international boundaries, to
countries like Mexico. However, the Arms Export Control Act (AECA; 22 U.S.C. §2778 et seq.) does include
provisions that directly address such cross-border illegal arms trafficking.
77
U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Office of Field Operations,
Project Gunrunner: A Cartel Focused Strategy, September 2010.
78
U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Following the Gun: Enforcing Federal
Laws against Firearms Traffickers, June 2000, p. 11.
74
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Unlike other forms of contraband, almost all illegal firearms used criminally in the United States
were diverted at some point from legal channels of commerce.79 ATF works to reduce firearmsrelated crime with two approaches, industry regulation and criminal investigation.
ATF Compliance Inspections
ATF regulates the U.S. firearms industry by inspecting FFLs to monitor their compliance with the
GCA and NFA, and to prevent the diversion of firearms from legal to illegal channels of
commerce. Despite its crime-fighting mission, ATF’s business relationships with the firearms
industry and larger gun-owning community have been a perennial source of tension, which from
time to time has been the subject of congressional oversight.80 Nevertheless, under current law,
ATF Special Agents (SAs)81 and Industry Operations Investigators (IOIs)82 are authorized to
inspect or examine the inventory and records of an FFL without search warrants under three
scenarios:83
•
in the course of a reasonable inquiry during the course of a criminal investigation
of a person or persons other than the FFL;
•
to ensure compliance with the record keeping requirements of the GCA—not
more than once during any 12-month period, or at any time with respect to
records relating to a firearm involved in a criminal investigation that is traced to
the licensee; or
•
when such an inspection or examination is required for determining the
disposition of one or more firearms in the course of a criminal investigation.
By inspecting the firearms transfer records that FFLs are required by law to maintain, ATF SAs
and IOIs are able to trace crime guns from their domestic manufacturer or importer to the first
retail dealer that sold those firearms to persons in the general public, generating vital leads in
homicide and other criminal investigations. In addition, by inspecting those records, ATF
investigators sometimes discover evidence of corrupt FFLs dealing in firearms “off the books,”
straw purchases, and other patterns of illegal behavior.
79
Greg Ridgeway, Glenn L. Pierce, and Anthony A. Braga et al., Strategies for Disrupting Illegal Firearms Markets: A
Case Study of Los Angeles, RAND Corporation, 2008, p. 1.
80
For example, in the 109th Congress, the House Judiciary Crime subcommittee held two oversight hearings examining
ATF firearms enforcement operations at guns shows in Richmond, VA, in 2005. ATF agents reportedly provided state
and local law enforcement officers with confidential information from background check forms (ATF Form 4473s), so
that officers could perform residency checks on persons who had otherwise legally purchased firearms at those gun
shows. Questions were also raised as to whether ATF agents had profiled gun purchasers at those gun shows on the
basis of race, ethnicity, and gender. See U.S. Congress, House of Representatives, Committee on the Judiciary,
Subcommittee on Crime, Terrorism, and Homeland Security, Oversight Hearing on the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (BATFE) Parts I & II: Gun Show Enforcement, February 15 and 28, 2006. Also see
Department of Justice, Office of the Inspector General, The Bureau of Alcohol, Tobacco, Firearms and Explosives’
Investigative Operations at Gun Shows, I-2007-007, June 2007.
81
For FY2012, Congress has provided ATF with funding for 2,539 SA positions.
82
For FY2009, Congress has provided ATF with funding for 834 IOI positions.
83
18 U.S.C. §923(g)(1)(B).
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Anatomy of a Firearms Straw Purchase
A “straw purchase” occurs when an individual poses as the actual transferee, but he is actually
acquiring the firearm for another person. In effect, he serves as an illegal middleman. As part of
any firearms transfer from an FFL to a private person, the GCA requires them to fill out jointly an
ATF Form 4473. In addition, the FFL is required to verify the purchaser’s name, address, date of
birth, and other information by examining a government-issued piece of identification, most often
a driver’s license. Among other things, the purchaser attests on the ATF Form 4473 that he is not
a prohibited person, and that he is the “actual transferee/buyer.”84 Hence, straw purchases are
known as “lying and buying for the other guy.” Straw purchases are illegal under two provisions
of the GCA.
If the purchaser makes any false statement to a FFL with respect to any fact material to the
lawfulness of a prospective firearms transfer, it is a federal offense punishable under 18
U.S.C. 922(a)(6). This provision also captures misrepresentations such as presenting false
identity documents. Violations are punishable by up to 10 years’ imprisonment.85
It is also illegal for any person knowingly to make any false statement with respect to the
records that FFLs are required to maintain under 18 U.S.C. §924(a)(1)(A). This provision,
however, also captures misrepresentations related to licensure and other benefits under the
GCA. Violations are punishable by up to five years’ imprisonment.86
Straw purchases, however, are not easily detected, because their illegality only becomes apparent
when the straw purchaser’s true intent is revealed by a subsequent transfer to the actual buyer
(third party). In many cases, the actual buyer may be a prohibited person, who would not pass a
background check. Under such a scenario, if the straw purchaser knew or had reasonable cause to
know the actual transferee was a prohibited person, he would also be in violation of 18 U.S.C.
§922(d), for which the penalty is up to 10 years’ imprisonment.87 It would also be a violation for
the prohibited person to possess or receive the firearm under 18 U.S.C. §922(g), for which the
penalty is also up to 10 years’ imprisonment.88
Alternatively, the actual buyer may not be a prohibited person, but may be seeking to acquire
firearms without any paper trail linking him to the acquisition of the firearm. Under such a
scenario, however, the straw purchase and subsequent illegal transfer would be even less apparent
for several reasons. Under federal law, it is legal for an unlicensed, private person to purchase
firearms and then resell them or give them away, as long as the
•
transferees are not prohibited or underage persons;
•
transferors do not deal in firearms in a volume that would require licensing; and
•
transfers are intrastate, as generally only federally licensed gun dealers can
legally transfer firearms interstate.
84
On the ATF Form 4473, question 11a reads: “Are you the actual transferee/buyer of the firearm(s) listed on this
form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are
not the actual buyer, the dealer cannot transfer the firearm(s) to you.”
85
18 U.S.C. §924(a)(2).
86
18 U.S.C. §924(a)(1)(D).
87
18 U.S.C. §924(a)(2).
88
Ibid.
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Hence, individuals may buy several firearms at a time with the intention of giving those firearms
away as presents to anyone, as long as they do not present those firearms to persons who are
underage, out-of-state residents, or prohibited persons. They may also buy firearms and, then, sell
those firearms at any time, as long as selling firearms is not the principal objective of their
livelihood and profit, in which case they would be required to be federally licensed to deal in
firearms. Furthermore, no federal background checks are required for recipients of subsequent
intrastate firearms transfers.
On the other hand, if the suspected straw purchaser were observed departing the licensed gun
dealer’s place of business and traveling immediately to another locale, where he transferred the
firearm(s) to another person, there would be a reasonable suspicion that he was a straw purchaser.
However, the actual buyer would not have committed a crime unless it could be proven that he
had sponsored the straw purchase.89 Usually, such illegal arrangements become clear when the
straw purchaser is interviewed by agents and admits to having bought the firearms for the third
party, non-prohibited person. Moreover, depending on the time that elapses between the initial
straw purchases and subsequent transfers to the actual buyer (third party), the illegality of the
transfers may not become apparent until the actual buyer’s true intent is revealed, when he either
transports those firearms across state lines to be sold or bartered, attempts to smuggle them across
an international border, or engages in some other illegal act.
Sometimes, the behavior of the prospective transferee (straw purchaser) may raise reasonable
suspicions. For example, during a controversial ATF Phoenix-based investigation known as
“Operation Fast and Furious,” several of the individuals under indictment made multiple
purchases from the same FFL of multiple semiautomatic firearms. Raising suspicions further,
they paid for these firearms with thousands of dollars in cash. Indeed, FFLs contacted ATF about
these suspicious transfers, prompting the investigation. They did so, in part, because they realized
that these firearms might be traced back to their businesses and they probably wanted to avoid
any negative attention that those traces might bring back on them. It is notable that if an FFL
believes a firearms transfer to be suspicious, he may choose not to sell those firearms to the
individuals in question. If he should proceed with the transfer, however, as long as he had
conducted the required criminal background check on the prospective buyer, and he and the
prospective buyer had filled out the proper paperwork, his obligations under federal law would
have been fulfilled.
In summation, with regard to interstate transfers, it is unlawful for any person who is not federally
licensed to deal in firearms to transport or receive a firearm into his own state of residence that
was obtained in another state.90 In addition, it is unlawful for any person who is not federally
licensed to deal in firearms to deliver a firearm to another unlicensed person who resides in a
state other than the transferor’s state of residence.91 Violations of either provision are punishable
by a fine and/or not more than five years’ imprisonment.92 It is also unlawful to smuggle firearms,
89
It is unlawful for any person to aid, abet, counsel, command, or solicit a criminal act (18 U.S.C. §2).
18 U.S.C. §922(a)(3).
91
18 U.S.C. §922(a)(5).
92
18 U.S.C. §924 (a)(1)(D).
90
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or any other merchandise contrary to U.S. law from the United States.93 Violations are punishable
by a fine and/or not more than 10 years’ imprisonment.94
Federal Prosecutions under 18 U.S.C. §§922(a)(6) and 924(a)(1)(A)
According to the Government Accountability Office (GAO), the largest percentage of Southwest
Border gun trafficking cases is comprised of multiple straw purchases.95 And, large-scale straw
purchasing schemes were at the center of several ATF Phoenix-based gun trafficking
investigations, including Operation Fast and Furious. Contributing to the controversy surrounding
Operation Fast and Furious, reportedly, the U.S. Attorney’s Office in Arizona was reluctant to
prosecute straw purchasing cases, even though ATF conducted several investigations involving
dozens of firearms and multiple defendants from 2006 through 2010.96 Some of this reluctance to
prosecute referred cases may have stemmed from legal interpretations (and underlying case law)
made by the U.S. Attorney’s Office in Arizona that “differed substantially from those of other
U.S. Attorney’s Offices.”97 Other considerations could have included allocation of scarce
resources and prosecutorial priorities. Nonetheless, as shown above, federal prosecutions for
straw purchasing and related offenses nationally appears to have fallen off significantly in recent
years, despite congressional efforts to increase ATF appropriations to combat gun trafficking.
In addition, at a hearing on Operation Fast and Furious, an ATF agent testified that the penalties
levied under current law are not harsh enough to deter gun trafficking to Mexican drug trafficking
organizations.98 He opined that the “statute doesn’t carry significant jail time,” and that straw
purchases were viewed as “paperwork violations.”99 To explore this assertion, CRS requested
criminal caseload data from the U.S. Attorneys Office for 18 U.S.C. §§922(a)(6) and
924(a)(1)(A) for FY2004 through FY2010. It is noteworthy, however, that the criminal cases
under these provisions include violations involving false identities and entries, in addition to
straw purchases.
93
18 U.S.C. §554.
Ibid.
95
U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico
Face Planning and Coordination Challenges, GAO-09-709, June 29, 2009, p. 21.
96
U.S. Congress, Fatally Flawed: Five Years of Gunwalking in Arizona, House Committee on Oversight and
Government Reform, Minority Staff Report, 112th Cong., 2nd Sess., January 2012, p. 72, http://www.scribd.com/doc/
79930290/%E2%80%9CFatally-Flawed-Five-Years-of-Gunwalking-in-Arizona-%E2%80%9D?tw_p=twt.
See also Colby Goodman and Michel Marizco, U.S. Firearms Trafficking to Mexico: New Data and Insights Illuminate
Key Trends and Challenges, Woodrow Wilson International Center for Scholars Mexico Institute and University of San
Diego Trans-Border Institute, September 2010, p. 29.
97
Ibid.
98
U.S. Congress, House Committee on Oversight and Government Reform, Operation Fast and Furious: Reckless
Decisions, Tragic Outcomes, 112th Cong., 1st sess., June 15, 2012, p. 120.
99
Ibid.
94
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Figure 2. Federal Defendants Charged and Convicted Nationally under 18 U.S.C.
§§922(a)(6) and 924(a)(1)(A)
FY2004-FY2010
Source: Data from U.S. Attorney’s Office. Figure created by CRS.
As Figure 2 shows, nationally, the defendants charged under §922(a)(6) declined from 459 for
FY2004 to 218 for FY2010, or by about half (-52.5%). Similarly, defendants convicted under
§922(a)(6) declined by more than half (-58.6%) for those years, even though they increased from
FY2007 to FY2008 (17.3%). The defendants charged under §924(a)(1)(A) also declined from 290
for FY2004 to 2009 for FY2010, but at a slower rate of change (-27.9%). Convictions under that
provision also declined through FY2008 (-22.3%), but increased for FY2009 (18.7%) and
FY2010 (2.4%). Under either provision, about two-thirds of defendants were convicted during
FY2004 through FY2010 cumulatively.
As Figure 3 shows, moreover, over a third of the individuals convicted under either provision
received no prison sentence. Over a third received a prison sentence of up to two years. The
remainder received prison sentences of greater than two years. Several individuals received life
sentences, but those individuals were likely career criminals who were convicted of additional
offenses.
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Figure 3. Federal Sentences Imposed Nationally under
18 U.S.C. §§922(a)(6) and 924(a)(1)(A)
FY2004-FY2010
Source: Data from U.S. Attorney’s Office. Figure created by CRS.
Firearms-Related Amendments to the Sentencing Guidelines
To provide federal judges and prosecutors with greater leverage, on January 19, 2011, the U.S.
Sentencing Commission (Commission) published proposed amendments to the sentencing
guidelines that potentially increase penalties under the GCA for cases involving cross-border
trafficking in small arms or ammunition, including straw purchases, and similar amendments to
the Arms Export Control Act (AECA; 22 U.S.C. §2778 et seq.).100 While the GCA amendments to
the Sentencing Guidelines Manual became effective on November 1, 2011, the Commission did
not adopt the AECA amendments. According to an April 6, 2011, press release, the Commission’s
chair, Judge Patty B. Saris, stated, “Firearms trafficking across our borders is a national security
issue. The Commission is aware of the view [shared] by some that firearms trafficking is fueling
drug violence along our southwest border.”101
Brady Handgun Violence Prevention Act
After seven years of extensive public debate, Congress passed the Brady Handgun Violence
Prevention Act of 1993 (P.L. 103-159, the Brady Act)102 as an amendment to the Gun Control Act
of 1968, requiring background checks for firearms transfers between FFLs and non-licensed
persons. The Brady Act included both interim and permanent provisions.
100
United States Sentencing Commission, “Sentencing Guidelines for United States Courts,” 76 Federal Register 3193,
January 19, 2011. See also, CRS Report R41696, How the Federal Sentencing Guidelines Work: An Overview, by
(name redacted).
101
United States Sentencing Commission, “U.S. Sentencing Commission Promulgates Permanent Amendment to the
Federal Sentencing Guidelines Covering Crack Cocaine, Other Drug Trafficking Offenses; Also promulgates
amendments regarding firearms and other offenses,” press release, April 6, 2011.
102
107 Stat. 1536, November 30, 1993.
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Interim Provisions
Under the interim provisions, which were in effect through November 1998, background checks
were required for handgun transfers, and licensed firearms dealers were required to contact local
chief law enforcement officers (CLEOs) to determine the eligibility of prospective customers to
be transferred a handgun. The CLEOs were given up to five business days to make such
eligibility determinations. Under the interim provisions, 12.7 million firearms background checks
(for handguns) were completed during that four-year period, resulting in 312,000 denials.
Permanent Provisions
On November 30, 1998, the Federal Bureau of Investigation (FBI) activated the National Instant
Criminal Background Check System (NICS) to facilitate firearms-related background checks,
when the permanent provisions of the Brady Act became effective. Through NICS, FFLs conduct
background checks on non-licensee applicants for both handgun and long gun transfers. The
objective of a Brady background check is to ensure that an unlicensed transferee is not a
prohibited person under the GCA. It is notable that federal firearms laws serve as the minimum
standard in the United States. States may choose, and have chosen, to regulate firearms more
strictly. For example, some states require set waiting periods and/or licenses for firearms transfers
and possession.
As part of a Brady background check, an FFL is required to submit a prospective firearm
transferee’s name, sex, race, date of birth, and state of residence through NICS. Social security
numbers and other numeric identifiers are optional, but the submission of such data is likely to
increase the timeliness of the background check (and reduce misidentifications).103 The
transferee’s information is crosschecked against three computerized databases/systems to
determine firearms transfer/possession eligibility. Those systems include the NICS index,
Interstate Identification Index (III), and National Crime Information Center (NCIC).104 If the
transferee indicates that he is foreign born, his information is also checked against the
immigration and naturalization databases maintained by the Department of Homeland Security,
Immigration and Customs Enforcement.105
According to the FBI, the NICS index contains disqualifying records not found in either the III or
NCIC on all the classes of prohibited persons enumerated in the GCA. It also includes records on
persons previously denied firearms transfers. As of May 2010, the NICS index included a little
over 6 million records.106 The III, or “Triple I,” is a computerized criminal history index pointer
system that the FBI maintains so that records on persons arrested and convicted of felonies and
serious misdemeanors at either the federal or state level can be shared nationally. All 50 states and
the District of Columbia participate in the III, and the system holds indices to nearly 70 million
103
Querying Records in the System, 28 C.F.R. §25.7.
Accessing Records in the System, 28 C.F.R. §25.6.
105
Those databases include the Central Index System (CIS), Computer Linked Application Information Management
System (CLAIMS), Deportable Alien Control System (DACS), National Automated Immigration Lookout System
(NAIL II), Nonimmigrant Information System (NIIS), Student and Exchange Visitor Information System (SEVIS),
Redesigned Naturalization Casework System (RNACS), Refugee, Asylum, and Parole System (RAPS), Enforcement
Case Tracking System (ENFORCE), and the Treasury Enforcement Communications System (TECS).
106
U.S. Department of Justice, Report to Congress Pursuant to the NICS Improvement Amendments Act of 2007 (P.L.
110-180), July 1, 2010, Appendix C.
104
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criminal history records.107 The NCIC includes files on information that is of immediate
importance and applicability to law enforcement officials. Several NCIC files include over 4.4
million records on potentially prohibited persons. Hence, those files are pertinent to the Brady
background check process. They include files on
•
wanted persons (fugitives),
•
persons subject to domestic abuse restraining orders,
•
deported alien felons,
•
persons in the U.S. Secret Service protective file,
•
foreign fugitives, and
•
known or suspected terrorists.
While the FBI handles background checks entirely for some states, other states serve as full or
partial points of contact (POCs) for background check purposes. In POC states, FFLs contact a
state agency, and the state agency contacts the FBI for such checks.108
As part of the Brady background check process, NICS will respond to an FFL or state official
with a NICS Transaction Number (NTN) and one of three outcomes: (1) “proceed” with transfer
or permit/license issuance, because a prohibiting record was not found; (2) “denied,” indicating a
prohibiting record was found; or (3) “delayed,” indicating that the system produced information
that suggested there could be a prohibiting record. Under the last outcome, a firearms transfer
may be “delayed” for up to three business days while NICS examiners attempt to ascertain
whether the person is prohibited.109 At the end of the three-day period, an FFL may proceed with
the transfer at his discretion if he has not heard from the FBI about the matter. The FBI,
meanwhile, will continue to work the NICS adjudication for up to 90 days, during which the
transaction is considered to be in an “open” status. If the FBI ascertains that the person is not in a
prohibited status at any time during the 90 days, then the FBI will contact the FFL through NICS
with a proceed response. If the person is subsequently found to be prohibited, the FBI will inform
ATF and a firearms retrieval process will be initiated.
107
Ibid., Appendix A.
In 13 states, state agencies serve as full POCs and conduct background checks for both long gun and handgun
transfers. In four states, state agencies serve as partial POCs for handgun permits, whereas in another four states, state
agencies serve as partial POCs for handgun transfers only. In these eight partial POC states, checks for long gun
transfers are conducted entirely through the FBI. In the 30 non-POC states, the District of Columbia, and five territories
(Guam, American Samoa, Northern Mariana Islands, Puerto Rico, and the Virgin Islands), FFLs contact the FBI
directly to conduct background checks through NICS for both handgun and long gun transfers. For state agencies
(POCs), background checks may not be as expeditious, but they may be more thorough because state agencies may
have greater access to databases and records that are not available through NICS. According to the Government
Accountability Office (GAO), this is particularly true for domestic violence misdemeanor offenses and protective
orders. For further information, see GAO, Gun Control: Opportunities to Close Loopholes in the National Instant
Criminal Background Check System, GAO-02-720, July 2002, p. 27.
109
Accessing Records in the System, 28 C.F.R. §25.6.
108
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Under no circumstances is an FFL informed about the prohibiting factor upon which a denial is
based.110 Under the Brady background check process, however, a denied person may challenge
the accuracy of the underlying record(s) upon which his denial is based.111 He would initiate this
process by requesting (usually in writing) the reason for the denial from the agency that
conducted the NICS check (the FBI or POC). The denying agency has five business days to
respond to the request. Upon receipt of the reason and underlying record for the denial, the denied
person may challenge the accuracy of that record. If the record is found to be inaccurate, the
denying agency is legally obligated to correct that record.112
As with other screening systems, particularly those that are name-based, false positives occur as a
result of Brady background checks, but the frequency of these misidentifications is unreported.
Nevertheless, the FBI has taken steps to mitigate false positives. In July 2004, DOJ issued a
regulation that established the NICS Voluntary Appeal File (VAF), which is part of the NICS
Index (described above).113 DOJ was prompted to establish the VAF to minimize the
inconvenience incurred by some prospective firearms transferees (purchasers) who have names or
birth dates similar to those of prohibited persons. So as not to be misidentified in the future, these
persons agree to authorize the FBI to maintain personally identifying information about them in
the VAF as a means to avoid future delayed transfers. Current law requires that NICS records on
approved firearm transfers, particularly information personally identifying the transferee, be
destroyed within 24 hours (see heading below, “Background Check Fee and Record Retention”).
Under the GCA, there is also a provision that allows the Attorney General (previously, the
Secretary of the Treasury) to consider petitions from a prohibited person for “relief from
disabilities” and have his firearms transfer and possession eligibility restored.114 Since FY1993,
however, a rider on the ATF annual appropriations for salaries and expenses has prohibited the
expenditure of any funding provided under that account on processing such petitions.115 While a
prohibited person arguably could petition the Attorney General, bypassing ATF, such an
alternative has never been successfully tested. As a result, the only way a person can reacquire his
lost firearms eligibility is to have his civil rights restored or disqualifying criminal record(s)
expunged or set aside, or to be pardoned for his crime.
110
Statement of Daniel D. Roberts, Assistant Director, Criminal Justice Information Services, Federal Bureau of
Investigation, Terrorists and Guns: The Nature of the Threat and Proposed Reforms: Hearing Before the S. Comm. on
Homeland Sec. and Gov’t Affairs, 111th Cong., May 5, 2010.
111
Correction of Erroneous System Information, 28 C.F.R. §25.10.
112
Ibid.
113
Final Rule, National Instant Criminal Background Check System Regulation, 69 Federal Register 43892 (July 23,
2004) (codified at 28 C.F.R. §25.10(g)).
114
18 U.S.C. §925(c). See also Relief from Disabilities Under the Act, 27 C.F.R. §478.144.
115
For FY1993, see P.L. 102-393; 106 Stat. 1732 (1992). For FY2012, see P.L. 112-55; 125 Stat. 552, 609 (November
18, 2011). The FY2012 limitation provides: “That none of the funds appropriated herein shall be available to
investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c).”
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Table 4. Brady Background Checks for Firearms Transfers and Permits
1998-2009
Year
Total Annual
Checks
Denials
FBI Checks
S&L
Checks
FBI Denialsa
POC
Denialsb
1998
893,127
18,647
507,000
386,127
8,836
9,811
1999
8,621,315
204,455
4,538,000
4,083,315
81,000
123,455
2000
7,698,643
153,087
4,260,270
3,438,373
66,808
86,279
2001
7,957,926
150,500
4,291,926
3,666,000
64,500
86,000
2002
7,805,792
135,973
4,248,893
3,556,899
60,739
75,234
2003
7,831,146
126,181
4,462,801
3,368,345
61,170
65,011
2004
8,083,809
125,842
4,685,018
3,398,791
63,675
62,167
2005
8,277,873
131,916
4,952,639
3,325,234
66,705
65,211
2006
8,612,201
134,442
5,262,752
3,349,449
69,930
64,512
2007
8,658,245
135,817
5,136,883
3,521,362
66,817
69,000
2008
9,900,711
147,080
5,813,249
4,087,462
70,725
76,355
2009
10,764,237
150,013
4,680,809
4,987,459
67,324
82,689
Total
95,105,025
1,613,953
54,242,859
40,862,166
748,229
865,724
Source: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=pbse&sid=13.
Notes: On November 30, 1998, the interim provisions of the Brady Handgun Violence Prevention Act (P.L.
103-159) ended, and the permanent provisions were implemented when the FBI stood up the National Instant
Criminal Background Check System (NICS).
a.
In non-point of contact (non-POC) states, federal firearms licensees contact the FBI directly to conduct
NICS background checks.
b.
In point of contact (POC) states, federal firearms licenses contact a state agency and, in turn, the state
agency contacts the FBI to conduct NICS background checks.
As shown in Table 4, under the permanent provisions of the Brady Act (December 1998 through
2009), more than 95.1 million checks were completed, resulting in more than 1.6 million denials,
or nearly a 1.7% denial rate. More than 54.2 million of these checks were completed entirely by
the FBI for non-point of contact (non-POC) states, the District of Columbia, and four territories.
Those checks resulted in a denial rate of nearly 1.4%. Nearly 40.9 million checks were conducted
by full or partial point of contact (POC) states.116 Those checks resulted in a higher denial rate of
2.1%. Table 5 shows breakouts for NICS denials by reasons and by denying agency.
116
Ibid.
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Table 5. Estimated Brady Background Check Denials
(1999 through 2009)
Reasons for Denial
Total
Denials
%
FBI
Denials
%
State
Denials
%
Local
Denials
%
Felony indictment/conviction
904,904
56.1
482,608
64.5
387,491
52.8
34,806
26.4
State law prohibition
92,311
5.7
19,454
2.6
56,509
7.7
16,348
12.4
Domestic violence
237,323
14.7
119,717
16.0
99,808
13.6
17,798
13.5
Misdemeanor conviction
176,210
10.9
86,795
11.6
74,122
10.1
15,293
11.6
Restraining order
61,113
3.8
32,922
4.4
25,686
3.5
2,505
1.9
Fugitive
101,001
6.3
49,383
6.6
49,904
6.8
1,714
1.3
Illegal alien
13,322
0.8
9,727
1.3
2,936
0.4
659
0.5
Mental illness or disability
28,637
1.8
4,489
0.6
18,347
2.5
5,801
4.4
Drug user/addict
77,420
4.8
57,614
7.7
8,073
1.1
11,734
8.9
Local law prohibition
6,724
0.4
0
6,724
5.1
Other prohibitions
152,310
9.4
5,238
0.7
110,816
15.1
36,256
27.5
1,613,953
100.0
748,229
100.0
733,884
100.0
131,840
100.0
Totalsa
0
Source: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Background Checks for
Firearms Transfers, 2009—Statistical Tables, by Michael Bowling et al., available at http://bjs.ojp.usdoj.gov/
index.cfm?ty=pbdetail&iid=2214.
a.
Denials by reason subtotals are based upon percentages reported by BJS, which were applied to total
denials by the FBI and state and local officials. Consequently, denials by reason may not sum precisely to the
totals.
National Criminal History Improvement Program (NCHIP)
Under the Brady Act, Congress authorized a grant program known as the National Criminal
History Improvement Program (NCHIP), the initial goal of which was to improve electronic
access to firearms-related disqualifying records, particularly felony conviction records.117 DOJ’s
Bureau of Justice Statistics (BJS) administers this program, under which grants are made to states
to assist in updating and automating criminal history and other related records so that they are
able to participate effectively in key federal criminal justice systems.118 Besides the NICS Index,
III, and NCIC, these systems also include the Integrated Automated Fingerprint Identification
System (IAFIS) and the National Sex Offender Registry (NSOR).119 This grant program is
administered by BJS, which is part of the Office of Justice Programs.
117
For further information, see Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, National
Criminal History Program (NCHIP): Improving Criminal History Records for Background Checks, 2005, July 2006.
118
Ibid.
119
Ibid.
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Table 6. NCHIP Appropriations, FY1995 though FY2012
(dollars in millions)
Fiscal Year
Appropriation
FY1995
100.000
FY1996
26.500
FY1997
51.750
FY1998
47.750
FY1999
45.000
FY2000
35.000
FY2001
35.000
FY2002
38.000
FY2003
42.721
FY2004
32.634
FY2005
27.577
FY2006
12.796
FY2007
12.805
FY2008
12.220
FY2009
13.000
FY2010
14.500
FY2011
9.500
FY2012
6.000
Total
562.753
Source: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics.
Table 6 shows that over the last 18 years (FY1995-FY2012), Congress has appropriated nearly
$562.8 million for NCHIP, or an annual average of $31.3 million. Nevertheless, in 2007
congressional testimony following the April 16, 2007, Virginia Tech tragedy, DOJ reported that
approximately half of the 70 million criminal history records in the Interstate Identification Index
(III) were missing final dispositions—a circumstance that often results in delayed background
checks and firearms transfers.120 It was also reported that many states had not forwarded any
records on persons adjudicated mentally defective to the FBI. As of April 30, 2007, the FBI
reported that 22 states had contributed nearly 168,000 mental defective records to the FBI for
inclusion in the NICS index;121 however, other states had declined to report persons adjudicated
mentally defective to the FBI. In many cases, state mental health, patients’ rights, and privacy
laws prohibited the disclosure of those records.122 Other states may not have been able to report
120
Statement of Rachel L. Brand, Assistant Attorney General for Legal Policy, Department of Justice at the Committee
on Oversight and Government Reform Hearing on Lethal Loopholes in Gun Purchase Laws, May 10, 2007, p. 126.
121
Ibid, p. 138.
122
New York state, for example, had such a provision. See Section 33.13 of the Mental Health Law, which addresses
the rights of patients and confidentiality of mental health records. Since enactment of P.L. 110-180, however, the New
York State legislature addressed this issue and now provides mental defective records to the FBI for inclusion in the
NICS Index.
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such persons to the FBI because mental health “databanks” that would include such records are
not maintained.123 Following the Virginia Tech tragedy, the NICS mental defective file increased
from 175,000 to 400,000 individual records, with California contributing more than 200,000 of
those records.124 By May 2010, that number had increased to more than 859,000 records, due in
large part to NCIS Improvement Amendments Act (described below).125 However, about half of
the states had not contributed any records or had contributed only a handful of such records.126
For FY2012, the President’s budget request included $12.0 million for NCHIP. The Housereported FY2012 Commerce-Justice-Science (CJS) appropriations bill (H.R. 2596) would have
provided $6.0 million for NCHIP. The Senate-passed CJS appropriations bill (S. 1572) would
have provided $8.0 million for this program. S. 1572 was folded into the Senate-passed FY2012
Minibus appropriations bill (H.R. 2112). The House- and Senate-passed conference report version
of H.R. 2112 (H.Rept. 112-284), which the President has signed into law (P.L. 112-55), provides
$6.0 million for NCHIP.
For FY2013, the Senate-reported CJS appropriations bill (S. 2323) would provide $6 million for
NCHIP, the same amount as requested by the Administration. The House Committee on
Appropriations ordered reported a similar measure that would provide the same amount for
NCHIP.
NICS Act Record Improvement Program (NARIP)
Under the NICS Improvement Amendments Act of 2007,127 Congress authorized the Attorney
General to make additional grants to states to improve further electronic access to records,
including court disposition and corrections records, which are necessary to fully facilitate NICS
background checks. Under the act, the Attorney General is required to report annually to
Congress on federal department and agency compliance with the act’s provisions. Because BJS
administers this program, the BJS Director is required to report annually on the progress that
states are making in providing reasonable estimates of the number of firearms-related
disqualifying records that they have jurisdiction over, as well as the number of those records that
have been made accessible to the FBI for NICS background check purposes.128 BJS has
designated this grant program the “NICS Act Record Improvement Program (NARIP),” although
congressional appropriations documents simply refer to it as “NICS improvement.”
As shown in Table 7, Section 103(e) of the act included an authorization for appropriations for
FY2009 through FY2013. The act directs that the grants provided under this authorization be
made “in a manner consistent” with NCHIP. The act also requires that between 3% and 10% of
each grant be allocated for a relief from disabilities program for persons adjudicated mentally
123
Donna M. Norris, M.D. et al., “Firearms Laws, Patients, and the Roles of Psychiatrists,” American Journal of
Psychiatry, 163:8, August 2006, p. 1394.
124
Dan Eggen, “FBI’s Gun Ban Listing Swells: Thousands Added To File Marked ‘Mental Defective,’” Washington
Post, November 30, 2007, A01.
125
U.S. Department of Justice, Report to Congress Pursuant to Requirements of the NICS Improvement Amendments
Act of 2007 (P.L. 110-180), July 1, 2010, Appendix C. Records Available in the NICS, as of May 10, 2010.
126
Ibid.
127
P.L. 110-180; January 8, 2008; 121 Stat. 2559.
128
See U.S. Department of Justice, Report to Congress Pursuant to the NICS Improvement Amendments Act of 2007
(P.L. 110-180), July 1, 2010.
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defective. Also, as shown in Table 7, Section 301(e) of the act included an additional
authorization for appropriations for the same fiscal to improve state court computer systems to
improve timeliness of criminal history dispositions. Under both authorizations, up to 5% of all
grants may be set aside to provide assistance to tribal governments.
Table 7. NICS Improvement Authorizations and Appropriations under P.L. 110-180
(dollars in millions)
Fiscal Year
Section 103(e)
Section 301(e)
Actual Appropriation
FY2009
125
62.5
10.000
FY2010
250
125.0
20.000
FY2011
250
125.0
16.567
FY2012
125
62.5
5.000
FY2013
125
62.5
Total
875
437.5
51.567
As an additional incentive, Section 102 of P.L. 110-180 also provides that on January 8, 2011, any
state that provides at least 90% of disqualifying records is eligible for a waiver of the 10% match
requirement under NCHIP for two years.129 To be eligible for the waiver, as well as Section 103
grants, states are required to provide BJS with a reasonable estimate of the number of NICSrelated disqualifying records that they hold within 180 days of enactment (July 6, 2008).
To further encourage compliance, Section 104 of P.L. 110-180 includes a schedule of
discretionary and mandatory reductions in Byrne Justice Assistance Grants (JAGs)130 for states
that do not provide certain percentages of disqualifying records:
•
for a two-year period (January 8, 2011, through January 8, 2013), the Attorney
General may withhold up to 3% of JAG funding from any state that provides less
than 50% of disqualifying records;
•
for a five-year period (January 8, 2013, through January 8, 2018), the Attorney
General may withhold up to 4% of JAG funding from any state that provides less
than 70% of disqualifying records; and
•
after January 8, 2018, the Attorney General is required to withhold 5% of JAG
funding from any state that provides less than 90% of disqualifying records.
The Attorney General’s assessments of a state’s progress is to be based upon the reasonable
estimates that the state itself is required to provide under the act for the purposes of implementing
the Section 103 grants and the Section 102 NCHIP waiver (discussed above).131 The act also
129
For FY2005-FY2010, BJS invoked its discretionary authority to increase the match requirement to 20%. For
FY2011, BJS reportedly reduced the match requirement to 10%, the percentage match requirement set out under the
Crime Identification Technology Act (CITA; P.L. 105-251); CRS conversation with BJS on March 7, 2011.
130
For further information, see CRS Report RS22416, Edward Byrne Memorial Justice Assistance Grant (JAG)
Program, by (name redacted).
131
As of July 1, 2010, 41 states and 1 territory had provided estimates to DOJ. As of December 31, 2009, 68 federal
departments or agencies had also responded to a DOJ survey related to their obligations under P.L. 110-180. Twentytwo reported possessing no disqualifying information. Twenty-three reported possessing secondary disqualifying
information (e.g., employment background check investigative results). Ten agencies claimed to create and possess
(continued...)
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allows the Attorney General to waive the mandatory 5% cuts if a state provides substantial
evidence that it is making reasonable compliance efforts.
Congress appropriated $10 million for NARIP in FY2009 and $20 million in FY2010. These
amounts were well below the authorized levels in P.L. 110-180. In FY2009, BJS awarded $2.5
million in NARIP grants to the following grantees (individual amounts in parentheses):
•
Nevada Department of Public Safety ($798,000),
•
New York Division of Criminal Justice Services ($937,000), and
•
Oregon State Police ($771,000).132
In FY2010, BJS awarded $16.9 million in NARIP grants to the following grantees (individual
amounts in parentheses):
•
Florida Department of Law Enforcement ($3.159 million),
•
Idaho State Police ($1.950 million),
•
Illinois State Police ($1.210 million),
•
New Jersey Administrative Office of the Courts ($860,000),
•
New York Division of Criminal Justice Services ($5.995 million),
•
Oregon State Police ($2.0 million),
•
Texas Department of Public Safety ($752,000), and
•
Wisconsin Office of Justice Assistance ($981,000).133
In FY2011, BJS awarded $20.1 million in NARIP grants to the following grantees (individual
amounts in parentheses):
•
Arizona Criminal Justice Commission ($582,930);
•
Connecticut Office of Policy and Management, the Judicial Branch, and the
Department of Mental Health and Addiction Services ($3.250 million);
•
Florida Department of Law Enforcement ($2.575 million);
•
Idaho State Police and the Idaho courts system ($1.206 million);
•
Kentucky Justice and Public Safety Cabinet ($1.390 million);
•
New Jersey Administrative Office of the Courts ($2.773 million);
•
New York State Division of Criminal Justice Services ($3.199 million);
(...continued)
disqualifying information. And, ATF was reviewing those claims to determine whether that information was relevant to
a NICS background check. Fourteen agencies needed further clarification from DOJ. See U.S. Department of Justice,
Report to Congress Pursuant to the NICS Improvement Amendments Act of 2007 (P.L. 110-180), July 1, 2010, pp. 5-6.
132
U.S. Department of Justice, Report to Congress Pursuant to Requirements of the NICS Improvement Amendment
Act of 2007 (P.L. 110-180), July 1, 2010, p. 10.
133
U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, “NICS Improvement
Amendments Act of 2007,” http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=49.
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•
North Dakota Office of Attorney General’s Bureau of Criminal Investigation and
Information Technology divisions ($205,973);
•
Oregon State Police ($1.131 million);
•
Texas Office of Court Administration ($547,039);
•
Virginia State Police (VSP) and Supreme Court of Virginia ($764,100); and
•
Wisconsin Office of Justice Assistance, Department of Justice, Department of
Corrections, and Administrative Office of the Courts ($2.500 million).134
To be eligible for NARIP grants, states must certify that they have established a relief from
disabilities program for persons adjudicated to be mentally defective, whereby they can petition
to have their gun rights restored. For FY2009, only 14 states submitted certification applications
and only three were certified (Nevada, New York, and Oregon) and awarded grants. DOJ
suggested that one factor that might have inhibited states from applying for NARIP grants is
opposition at the state level to restoring firearm rights under any circumstance.135 Another factor
that might have influenced a state’s choice is that NARIP funding only became available in
March 2009, leaving little time to respond to the June 22, 2009, certification deadline.136 Other
factors included budget constraints and the need to pass implementing legislation.137 As shown
above, eight states were awarded grants for FY2010. As of September 30, 2010, nine states had
been certified.138
For FY2012, the President’s budget request included $12.0 million for this program. The Housereported FY2012 CJS appropriations bill (H.R. 2596) would have provided $5.0 million
for NARIP. The Senate-passed FY2012 CJS appropriations bill (S. 1572) would have provided
$10.0 million for this program. S. 1572 was folded into the Senate-passed FY2012 Minibus
appropriations bill (H.R. 2112). The House- and Senate-passed conference report version of H.R.
2112 (H.Rept. 112-284), which the President has signed into law (P.L. 112-55), provides $5.0
million for NARIP.
For FY2013, the Senate-reported CJS appropriations bill would provide $7.0 million for NARIP,
or $2.0 million over the $5.0 million requested by the Administration. The House Committee on
Appropriations ordered reported a similar measure that would provide $12.0 million for NARIP.
Background Check Fee and Record Retention
Beginning in FY1999, Congress has prohibited the collection of any fee for firearms-related
background checks made through the FBI-administered NICS in DOJ appropriations.139
134
U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, “State-by-State Summaries for
FY2011 NICS Improvement Amendments Act Grant Awards,” http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=
491#funding.
135
U.S. Department of Justice, Report to Congress Pursuant to the NICS Improvement Amendments Act of 2007 (P.L.
110-180), July 1, 2010, p. 12.
136
Ibid.
137
Ibid.
138
CRS conversation with BJS on March 7, 2011.
139
In the 110th Congress, the House-passed H.R. 2640 and Senate-reported S. 2084 include provisions that would
permanently codify the NICS fee prohibition (see discussion of the NICS Improvement Amendments Act of 2007
(continued...)
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Beginning in FY2004, that provision also included language to require the next-day destruction of
approved background check records. The issue of approved Brady background check record
retention has been contentious since the inception of the FBI-administered NICS, because a
provision in the Brady Act (§103(i)) prohibits the establishment of any electronic registry of
firearms, firearms owners, or approved firearms transactions and dispositions.
Nevertheless, under Attorney General Janet Reno DOJ proposed a rule on October 30, 1998, that
would have allowed such records to be maintained for up to six months for audit purposes.140 The
NRA challenged this proposed rule in federal court, arguing that retaining the approved records
was tantamount to a temporary registry. On July 11, 2000, the United States Court of Appeals for
the District of Columbia found that nothing in the Brady Act prohibited the temporary retention
of information about lawful firearms transfers for certain audit purposes.141 On January 22, 2001,
DOJ promulgated a final rule that allowed such records to be maintained for up to 90 days.142
Attorney General John Ashcroft opposed this rule, however, and DOJ proposed another rule on
July 6, 2001, that called for the next-day destruction of those files.143
In July 2002, meanwhile, GAO reported that under Attorney General Reno, the FBI had
conducted “non-routine” searches of the NICS audit log for law enforcement agencies to
determine whether a person, whom subsequent information showed was a prohibited person, had
been transferred a firearm within the previous 90 days. The FBI informed GAO that such
searches were routinely conducted but were a “secondary benefit” given that the audit log was
maintained primarily to check for system “accuracy, privacy, and performance.” In addition,
GAO reported that the next-day destruction of records would “adversely affect” other NICS
operations, including firearms-retrieval actions, NICS audit log checks for previous background
checks, verifications of NICS determinations for federal firearms licensees, and ATF inspections
of federal firearms licensees’ record keeping.144
Despite those adverse effects, opponents of greater federal gun control viewed the non-routine
use of NICS records as being beyond the scope of authority given to the Attorney General under
the Brady Act. GAO reported that DOJ took steps to minimize the adverse effects of the next-day
destruction of those records. In the wake of the September 11, 2001, terrorist attacks, additional
issues regarding Brady background checks emerged (see heading below, “Terrorist Watch List
Screening and Brady Background Checks”).
The Consolidated and Further Continuing Appropriations Act, 2012 (H.R. 2112), which the
President has signed into law (P.L. 112-55), includes “futurity” language in the provision (§511)
requiring that NICS approved firearm transfer records be destroyed within 24 hours. This
“futurity” language makes the provision permanent law, as opposed to an annual appropriations
restriction. Similar language was included in the House-reported FY2012 CJS appropriations bill
(...continued)
above). For FY2012, such a prohibition is also included on an annual basis in the House-reported Commerce, Justice,
Science Appropriations bill (H.R. 2596).
140
63 Federal Register 58303.
141
NRA v. Reno (No. 99-5270, 216 F. 3d 122; 2000 U.S. App. Lexis 15906).
142
66 Federal Register 6470.
143
66 Federal Register 35567.
144
For further information on these issues, see GAO, Gun Control: Potential Effects of Next-Day Destruction of NICS
Background Check Records, GAO-02-653, July 2002.
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(H.R. 2596). Senator Orrin Hatch offered several related amendments during Senate
consideration of H.R. 2112, but the Senate ultimately did not vote upon those amendments.
Overview of Legislative Action in the 111th Congress
During the 111th Congress, the gun control debate was colored by two key Supreme Court
decisions.145 In District of Columbia v. Heller, the Court found that the District of Columbia (DC)
handgun ban, among other regulations, violated an individual’s right under the Second
Amendment to lawfully possess a firearm in his home for self-defense. In McDonald v. City of
Chicago, the Court found that an individual’s right to lawfully possess a firearm for the purposes
of self-defense under the Second Amendment applied to the states by way of the Fourteenth
Amendment. Although the decision arguably limits a state’s, city’s, or local government’s ability
to prohibit handguns outright, it does not precisely delineate what would constitute permissible
gun control laws under the Second Amendment. Consequently, these delineations will likely be
developed in future cases.
In the 111th Congress, Members revisited several gun control issues that were previously
considered in the 110th Congress. For example, some Members in the House of Representatives,
who were dissatisfied with the District’s response to the Heller decision, passed a bill in the 110th
Congress that would have overturned provisions of the District’s revised gun laws. In the 111th
Congress, Members of the Senate amended and passed a DC voting rights bill (S. 160) with
similar language.146 When the House turned its attention to DC voting rights, the leadership
attempted to negotiate a compromise but ultimately tabled its version of the DC voting rights bill
(H.R. 157) rather than risk amendments to overturn DC guns laws. The DC gun amendments
were introduced as stand-alone bills (H.R. 5162/S. 3265). So far, the 112th Congress has not
revisited this issue.
The Senate Veterans’ Affairs Committee reported stand-alone legislation that would have
revamped procedures by which veterans are adjudicated “mentally incompetent” and, thus, lose
their firearms possession and transfer eligibility (S. 669). This reported bill reflected an
amendment that Senator Richard Burr had offered and the Senate committee had adopted in the
110th Congress during consideration of S. 2969. Also in the 111th Congress, the House Veterans’
Affairs Committee considered a draft veterans’ benefits bill and adopted an amendment offered
by Representative John Boozman that included similar provisions. However, when the House
considered the reported bill (H.R. 6132) under suspension of the rules, it was called to the floor
without the Boozman provisions. Nevertheless, as discussed below, this issue has reemerged in
the 112th Congress, when the House passed similar legislation (H.R. 2349).
The Senate also considered an amendment offered by Senator John Thune to the FY2010 Defense
Authorization Act (S. 1390) that was narrowly defeated and arguably would have provided for
national reciprocity between states regarding the concealed carry of firearms. In the 112th
Congress, the House has passed similar legislation (H.R. 822).
145
For a legal analysis, see CRS Report R41750, The Second Amendment: An Overview of District of Columbia v.
Heller and McDonald v. City of Chicago, by (name redacted).
146
For further information, see CRS Report R40474, DC Gun Laws and Proposed Amendments, by (name redacted).
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The Senate Committee on Homeland Security and Governmental Affairs held a hearing on
denying firearms to persons watch-listed as known or suspected terrorists (S. 1317/H.R. 2159 and
S. 2820). The 112th Congress revisited related issues during consideration of legislation to
reauthorize the USA PATRIOT Act (H.R. 1800, S. 1038, and S. 990).
Also, in the 111th Congress, the House Financial Services Committee reported a bill (H.R. 3045;
H.Rept. 111-277) that included a provision that would have prohibited public housing authorities
from barring tenants from possessing legal firearms as a condition of their lease. This committee
approved another housing bill that included a similar provision (H.R. 4868). The House also
passed amendments (H.R. 5827) to federal bankruptcy law that would have allowed persons to
claim either a single firearm or a collection of firearms of up to $3,000 in value as a federal
exemption.147 And, on at least two occasions, the Senate Committee on the Judiciary scheduled a
hearing on a bill to reform federal statutes under which federally licensed firearms dealers are
regulated (S. 941/H.R. 2296).
In addition, during the 111th Congress, Members sponsored several proposals that were enacted.
The Senate adopted an amendment offered by Senator Tom Coburn to the Credit CARD Act of
2009 (H.R. 627) to allow people to carry firearms in national parks and wildlife refuges.148 The
House voted on the Coburn amendment as a separate measure and passed it as well (P.L. 111-24).
The Senate adopted an amendment offered by Senator Roger Wicker to the FY2010
Transportation-HUD appropriations bill (H.R. 3288) that allows private persons to carry firearms
in their checked luggage on Amtrak trains. H.R. 3288 became the vehicle for the Consolidated
Appropriations Act, 2010 (P.L. 111-117), which included the Wicker provision. Congress
reconsidered and passed amendments to the Law Enforcement Officers Safety Act (LEOSA; P.L.
108-277) to clarify and widen eligibility for certain qualified police officers to carry concealed
firearms across state lines (S. 1132; P.L. 111-272). Congress altered, but continued to make
permanent, a funding limitation on the release of ATF firearms trace data (P.L. 111-8 and P.L.
111-117), which is known for its original sponsor, Representative Todd Tiahrt.
Two firearms-related provisions were included in the Ike Skelton National Defense Authorization
Act for Fiscal Year 2011 (P.L. 111-383). One provision (§1062), sponsored by Senator Jim Inhofe,
prohibits the Secretary of Defense, and by implication base commanders, from collecting any
information on privately owned firearms kept by military personnel, Department of Defense
civilian employees, and their family members off-base. Another provision (§346) sponsored by
Senators Jon Tester and Max Baucus addresses the demilitarization of small arms ammunition of
several types and calibers, which is commonly sold as military surplus.
Finally, during the 111th Congress, gun trafficking across the Southwest border from the United
States to Mexico was also an ongoing concern, as it has been for the 112th Congress.149 The
147
For further information, see CRS Report R41799, Exemptions for Firearms in Bankruptcy, by (name redacted) and
(name redacted).
148
Regarding public lands, the 112th Congress might consider additional proposals related to firearms carrying on
public lands, such as water resources management projects (e.g., reservoirs at Corps-operated dams and inland
waterways) managed by the Army Corps of Engineers or federal lands managed by the Bureau of Land Management
(BLM). For related proposals in the 112th Congress, see the Recreational Self-Defense Act of 2011 (H.R. 1865/S. 1588)
and the Recreational Shooting Act (H.R. 3440 and H.R. 4089). As described below, the House passed H.R. 4089 on
April 17, 2012.
149
For further information, see CRS Report R40733, Gun Trafficking and the Southwest Border, by (name redacted) and
(name redacted).
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Consolidated Appropriations Act, 2010 (P.L. 111-117), included increased funding for ATF to
investigate additional gun trafficking cases.150 In addition, Congress provided ATF with an
FY2010 supplemental appropriation to combat further Southwest border gun trafficking (P.L.
111-230). For a fuller discussion of legislative action in the 111th Congress, see Appendix A.
Issues in the 112th Congress
In the wake of the Aurora, CO, theater and Oak Creek, WI, Sikh temple mass-casualty shootings,
several Members of Congress called for reconsideration of the 1994-2004 ban on semiautomatic
assault weapons and the large capacity ammunition feeding devices. There were similar calls to
ban such feeding devices (see S. 32/ H.R. 308) following the January 8, 2011, Tucson, AZ, mass
shooting. The 112th Congress has also seen considerable attention paid to ATF Southwest border
gun trafficking investigation known as “Operation Fast and Furious.” At several congressional
hearings, the Attorney General was questioned at length about whom among the departmental
officials conceived of, knew about, and/or approved this operation. It has led to the resignation of
the U.S. Attorney for the District of Arizona. The House Committee on Oversight and
Government Reform has held several hearings specifically on matters related to this operation.
When the President asserted executive privilege rather than turn over additional, subpoenaed
documents to the committee, the House passed a resolution holding the Attorney General in
contempt of Congress for his failure to produce subpoenaed documents. The committee has also
held a hearing on the DOJ Office Inspector General findings concerning both an earlier, Tucson,
AZ-based investigation, known as Operation Wide Receiver, and Operation Fast and Furious. In
addition, the Committee has released Parts I and II of its three-part, final report on Operation Fast
and Furious.
Several other gun control issues have emerged in the 112th Congress. For example, the House
passed a bill (H.R. 822) that would establish greater reciprocity between states with firearms
concealed carry statutes. The House also passed a Veterans’ Benefits bill (H.R. 2349) that would
prohibit the Department of Veterans Affairs from making mentally incompetent determinations
about beneficiaries for the purposes of gun control, unless such determinations were made by a
judge, magistrate, or other judicial authority. Firearms-related amendments were also offered to
bills that extended an expiring USA PATRIOT Act provision related to national security
investigations and FBI access to business records. Both chambers have also considered bills to
promote access to federal lands for hunting and other sporting activities (S. 3525 and H.R. 4089).
July 20, 2012, Aurora, CO
On July 20, 2012, a 24-year-old male entered a theater in Aurora, CO, and allegedly shot to death
12 people and wounded another 58 people, 7 of them critically.151 He was armed with a
semiautomatic rifle equipped with a drum magazine, a 12-gauge pump shotgun, and at least one,
possibly two, .40-caliber handguns.152 He reportedly bought these firearms legally from federally
150
For further information, see CRS Report RL34514, The Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF): Budget and Operations for FY2008, FY2009, and FY2010, by (name redacted).
151
David A. Fahrenthold et al., “A Day of Tears and Twists in Colorado: As State Mourns, Account Suggests Toll
Could Have Been Worse,” Washington Post, July 23, 2012, p. A1.
152
Thom Patterson, “Source: Colorado Shooter Had 100-Round Rifle Magazine,” CNN Wire, July 21, 2012.
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licensed gun dealers in Colorado.153 He also reportedly purchased over 6,000 rounds of
ammunition and a 100-round magazine through online, interstate (mail order) transactions.154
This shooting prompted some Members of the 112th Congress to support reconsideration of
proposals to reinstate a 1994 ban on semiautomatic assault weapons and large capacity
ammunition feeding devices, which expired in September 2004.155
So far, two questions have repeatedly been asked about the Aurora, CO, shooting: (1) Would the
shooter’s Smith & Wesson AR-15 and drum magazine have been prohibited under the 1994-2004
semiautomatic assault weapons (SAW) ban? and (2) What federal laws speak to the interstate,
mail order ammunition sales/transfers (particularly those initiated over the Internet)? In addition,
the shooter’s mental health could emerge as an issue, but little information has surfaced to date
about his state of mind. It is noteworthy that all accounts seem to indicate that the shooter bought
his firearms, magazines, and ammunition legally.
Smith & Wesson AR-15 and Drum Magazine
It is unclear at this time whether the Smith & Wesson AR-15 used by the Aurora, CO, shooter
would have been subject to the 1994 SAW ban. Under the ban, a rifle was a SAW if it were
semiautomatic and had an ability to accept a detachable (interchangeable) magazine, and had two
of the following features:
•
a folding or telescoping stock,
•
a pistol grip that protruded conspicuously beneath the action of the weapon,
•
a bayonet mount,
•
a muzzle flash suppressor or threaded barrel to accommodate one, or
•
a grenade launcher.
The SAW ban specifically named the Colt AR-15 as prohibited, but it did not prohibit any Smith
& Wesson firearm specifically as a SAW. Immediately following the ban, Colt modified the
design of its rifle (“sporterized” it), and the post-ban version of the Colt AR-15 did not meet the
features test and was legal, because it did not include two of the five features listed above.
However, it definitely included a pistol grip and an ability to accept a detachable magazine—
arguably the two hallmarks of a SAW rifle.
Under the SAW ban, the further production of high capacity ammunition feeding devices (over 10
rounds) was also banned, but such devices privately or commercially held at home or abroad prior
to enactment in 1994 were grandfathered in. (During the 10-year ban, imports of these devices
proved problematic, because they were not stamped with either a manufacturing date or serial
number. This is still the case today.) So, whether the shooter’s drum magazine would have been
banned is also unclear.
153
Ibid.
Thom Patterson, “Police Chief: Suspect Bought over 6,000 Rounds of Ammunition through Internet,” CNN Wire,
July 21, 2012.
155
For further information, see CRS Report RL32585, Semiautomatic Assault Weapons Ban, by (name redacted).
154
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Internet-Based Ammunition Transfers under Federal Law
The 1986 Firearms Owners’ Protection Act (FOPA)156 repealed certain restrictions on interstate
transfers of ammunition, including mail order transfers. As a result, since 1986, a person can deal
in ammunition as long as he is not a prohibited person. As described above, however, a person
must be federally licensed to manufacture or import ammunition. Unlike for firearms, moreover,
there are no restrictions on the interstate transfer of ammunition by federally licensed gun dealers
or unlicensed persons. Therefore, ammunition can be transferred interstate between unlicensed
persons. In addition, there are no recordkeeping requirements for either licensed dealers or
unlicensed persons with regard to ammunition transfers, except for transfers of “armor piercing
ammunition” made by licensed dealers to unlicensed persons. With regard to the Internet-based
firearms transfers, a CRS legislative attorney previously concluded in 2001 that “A review of
applicable federal law … establishes that internet-based firearm sales are not imbued with a
special character by virtue of their medium of transfer, and are in fact subject to the same degree
of regulation as any other type of firearm transaction.”157
The same could be said for Internet-based ammunition sales. In summary, it may be appropriate
to think of the Internet as a “means of communication,” because it allows individuals to search
for, contact, and communicate with others more efficiently than through the mail, want ads,
publications, or over the phone. As consequence, it facilitates equally those individuals who
would break the law as it does those who would obey the law.
By comparison, prior to FOPA, only licensed firearms manufacturers, importers, and dealers were
authorized to transfer ammunition to unlicensed persons. There was also a recordkeeping
requirement for any handgun ammunition transfers made by a licensed dealer to an unlicensed
person. While it was lawful for an unlicensed person to cross state lines and purchase ammunition
face-to-face from an out-of-state licensed dealer, if an unlicensed person wanted to acquire
ammunition from an out-of-state source, the ammunition had to be transferred from an out-ofstate licensee to a licensee in the unlicensed person’s state of residence. Then, the ammunition
could be lawfully and subsequently transferred to the unlicensed person, who originally sought to
acquire it. (Under current law, there is a similar construct for out-of-state, face-to-face transfers of
long guns. Interstate handgun transfers are only lawful if they are conducted between licensees.)
On July 30, 2012, Senator Frank Lautenberg introduced the Stop Online Ammunition Sales Act
(S. 3458), a bill that would require ammunition dealers to be federally licensed and would
generally prohibit the sale of ammunition by unlicensed persons. The bill would require
unlicensed persons purchasing ammunition from a licensed dealer to do so in person and to
present a state-issued identification document at the point of purchase. In addition, the bill would
require federally licensed gun dealers to maintain records on ammunition transfers, and to report
to the Attorney General and to the area chief law enforcement officer whenever an unlicensed
person purchases more than 1,000 rounds of ammunition within five consecutive business days.
156
157
P.L. 99-308; May 19, 1986; 100 Stat. 449.
For further information, see CRS Report RS20957, Internet Firearm Sales, by (name redacted).
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August 5, 2012, Sikh Temple Shooting, Milwaukee, WI
On August 5, 2012, a 40-year-old U.S. Army veteran entered a Sikh temple in the Oak Creek
suburb of Milwaukee, WI, and allegedly shot to death six worshipers and critically wounded
another three people.158 One of the wounded victims was a police officer, whom was shot
numerous times as he administered first aid to another victim.159 The alleged shooter, Wade
Michael Page, was armed with a 9mm semiautomatic pistol that he had acquired legally when he
resided in North Carolina.160 After Page was wounded by a responding law enforcement officer,
he shot himself to death.161 Press accounts described Page as a neo-Nazi, white supremacist, and
it is widely thought that he mistook the Sikh temple for a Muslim mosque.162 While press
accounts indicated that the FBI initially classified this attack as a domestic terrorism case, the FBI
had not previously opened a file on Page.163 Based upon a preliminary assessment, moreover, the
FBI has indicated that it appears that Page did not act in collusion with others, nor did he leave a
suicide note, manifesto, or any other statement that would possibly explain his motive.164
Nevertheless, under Wisconsin state law this attack could possibly be considered a “hate crime”
and be reported to the FBI Uniform Crime Reports as such.165
Concealed Carry and National Reciprocity166
The 112th Congress has revisited the issue of concealed carry and national reciprocity. On October
25, 2011, the House Committee on the Judiciary ordered reported the National Right-to-Carry
Reciprocity Act of 2011 (H.R. 822) by a vote (19-11) that was nearly split down party lines
following several days of contentious markup. On November 10, 2011, the committee reported
H.R. 822 (H.Rept. 112-277). On November 16, 2011, the House considered and passed H.R. 822,
amended, by a recorded vote: 272-154 (Roll no. 852).
H.R. 822 would establish an increased level of reciprocity among states that have laws that allow
civilians to carry handguns in a concealed fashion. Under state law, 38 states, most recently
Wisconsin, have enacted “shall issue” concealed carry laws, meaning permits are issued to all
eligible applicants.167 Ten states have enacted more restrictive “may issue” laws, meaning state
158
Molly Hennessy-Fiske, et al., “Sikh Temple Gunman Tied to Racist Groups/Army Vet Had Criminal Record, Played
in White-Power Band,” Chicago Tribune, August 7, 2012.
159
Ibid.
160
Scott Bauer and Todd Richmond, “Gunman in Sikh Temple Attack Was White Supremacist,” Associated Press,
August 7, 2012.
161
Ibid.
162
Jonathan Zimmerman, “Shootings in Sikh Temple and Arizona: Which Crime is Worse?,” Christian Science
Monitor, August 10, 2012.
163
Todd Richmond and Dinesh Ramde, “FBI: Temple Gunman Shot Himself; Still No Motive,” Associated Press,
August 8, 2012.
164
Ibid.
165
For further information, see CRS Report RL33099, State Statutes Governing Hate Crimes, by (name redacted) and
(name redacted); and CRS Report RL33403,
Hate Crime Legislation, by (name redacted).
166
For additional information, see CRS Report R42099, Federal Laws and Legislation on Carrying Concealed
Firearms: An Overview, by (name redacted). See also U.S. Government Accountability Office,
Gun Control: States’
Laws and Requirements for Concealed Carry Permits Vary across the Nation, GAO-12-717, July 2012.
167
Wisconsin’s concealed carry permit went into effect on November 1, 2011. “Shall issue” states include Alaska,
Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan,
(continued...)
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and/or local authorities have discretion whether to issue permits.168 In those states, applicants
usually must demonstrate a need to carry a concealed handgun to the authorities. At one end of
the spectrum, Alaska, Arizona, Wyoming, and Vermont allow concealed carry without a permit.169
At the other end, Illinois and the District of Columbia allow no concealed carry of firearms by
civilians.
With regard to interstate reciprocity, a handful of states have “recognition” statutes that recognize
any state-issued concealed carry permit. Other states have “open” statutes that allow any resident
of the United States, without regard to state residency, to apply for a concealed carry permit. Still
other states have “hybrid” statutes that include elements of both the recognition and open statutes.
Contiguous “shall issue” states often extend reciprocity to one another. However, some “shall
issue” states have opted not to extend reciprocity to other “shall issue” states for a variety of
reasons, even though they might have extended reciprocity to arguably more restrictive “may
issue” states. The end result is a complicated array of state laws that arguably makes it very
challenging for any individual to discern his legal ability to travel interstate with a concealed
handgun.
Under H.R. 822, as ordered reported, a permit holder from state A would be able to travel to state
B with a concealed handgun as long as state B had a concealed carry law, no matter which type
(“shall” or “may” issue). The permit holder from state A would be required to comply with all
other laws in state B, with the exception of the laws governing eligibility for and issuance of
concealed carry permits. Several issues could arise, however. First, the bill makes no allowance
for the difference between more permissive “shall issue” and more restrictive “may issue” state
laws. Therefore, the bill could be viewed as an imposition by “shall issue” states over “may
issue” states. Depending upon the circumstances, the bill could also be viewed as an imposition
by some “shall issue” states over other “shall issue” states, depending upon differences in their
respective concealed carry laws. For example, some “shall issue” states have good moral
character clauses as part of their eligibility requirements, others do not. Some require “live fire”
training prior to permit issuance, others do not. Some require a mental health evaluation, others
do not. Several states issue permits to persons 18 years of age, while most states require
applicants to be 21 years of age.
Another issue that has emerged is “forum shopping,” that is, one state’s residents going to another
state with an “open” statute so that they can return to their own state with a concealed carry
permit that they would not have otherwise been able obtain in their own state. While language has
been included in the bill, as ordered reported, that would arguably prevent individuals from forum
shopping among states, Representative Daniel Lungren offered an amendment that the committee
adopted that would require GAO to conduct a study of “open” state concealed carry laws and
their implications for public safety.
(...continued)
Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North
Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia,
Washington, West Virginia, Wisconsin, and Wyoming.
168
Alabama and Connecticut are “may issue” states that are considered to be more permissive than other “may issue”
states. Those states include California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and
Rhode Island.
169
Alaska and Arizona issue permits to residents who seek to carry concealed firearms in other states that extend
reciprocity to residents of Alaska.
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The committee also adopted a substitute amendment offered by Representative Trent Franks at
the outset of the markup. Twelve other amendments were offered, but all were defeated. Minority
Members offered amendments that would have denied concealed carry permits to categories of
persons on terrorist watch lists and several classes of misdemeanants, including sex offenders,
stalkers, drug traffickers to minors, and assailants of police officers. Other amendments addressed
the need for more secure and verifiable concealed carry documentation and interstate information
sharing on permittees for law enforcement and public safety purposes. Representative Louie
Gohmert offered an amendment that would have allowed concealed carry in the District of
Columbia, but it too was defeated.
Proponents argue that establishing reciprocity on such a basis would be similar to the mutual
recognition of out-of-state driver licenses. Opponents counter that most state driver license
eligibility requirements are remarkably similar, unlike concealed carry eligibility requirements.
Furthermore, states have opted to recognize the driver licenses of other states largely on their own
accord without congressional intervention. Proponents contend further that criminals are less
likely to victimize individuals who could be armed, thus leading to a reduction in crime. To
support this view, the chairman of the House Committee on the Judiciary, Representative Lamar
Smith, noted during the markup that, according to the National Rifle Association (NRA),
concealed carry states on average had lower violent crime rates (22%) than states that did not
have such laws.170 Opponents argue that introducing more firearms into potentially life
threatening situations increases the likelihood that a firearm would be misused and innocent
persons wounded or killed. To support their view, they have cited data compiled by the Violence
Policy Center, which reported that from May 2007 through October 25, 2011, concealed carry
permit holders had killed 11 law enforcement officers and 375 private citizens, and had engaged
in 20 mass shootings and 29 murder/suicides.171
Several other concealed carry bills have been introduced in the House and the Senate. In the
House, for example, Representative Paul Broun introduced the Secure Access to Firearms
Enhancement Act (H.R. 2900), a bill that is similar in effect to the Thune bill (S. 2213) described
below. Representative Timothy Johnson has introduced a bill (H.R. 3543) that has the same title
as H.R. 822 and reflects that bill as introduced. Senator Barbara Boxer introduced the Common
Sense Concealed Firearms Permit Act of 2011 (S. 176), which would facilitate concealed carry
reciprocity arguably by establishing minimum federal eligibility requirements. On the other hand,
elements of those eligibility requirements could be seen as being more restrictive than many
existing state laws—particularly state “shall issue” laws. For example, the bill would require a
concealed carry permit applicant to demonstrate (1) good cause for requesting the permit, and (2)
that he is worthy of the public trust to carry a concealed firearm in public. Such eligibility
requirements are arguably more closely aligned with state “may issue” laws. Senator Mark
Begich introduced the National Right-to-Carry Reciprocity Act of 2012 (S. 2188), a companion
bill to H.R. 822. And, Senator John Thune has introduced the Respecting States’ Rights and
Concealed Carry Reciprocity Act of 2012 (S. 2213). Under S. 2213, a resident of a state that
allows concealed carry without a permit (Alaska, Arizona, Wyoming, and Vermont) would be
allowed to do so in another state without a permit of any kind, arguably, as long as the host state
issues concealed carry permits. Under H.R. 822/S. 2188, a resident of one of those states would
have to acquire a permit from either his or another state.
170
According to the NRA, this lower average violent crime rate is based upon the FBI’s 2004 Uniform Crime Reports
data for only that year.
171
Violence Policy Center, Concealed Carry Killers, http://www.vpc.org/ccwkillers.htm.
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Firearms on Public Lands
The 112th Congress has revisited the issue of firearms carry and use on public lands. As described
above, Senator Coburn sponsored legislation in the 111th Congress that allows individuals to carry
firearms in national parks and wildlife refuges, as long as such firearms carry is in compliance
with state and local laws (P.L. 111-24). On April 17, 2012, the House passed the Sportsmen’s
Heritage Act of 2012 (H.R. 4089) by a vote of 274-146 (Roll no. 164). This bill woul
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