Gun Control

• Author: Jeffrey Lehman, Shirelle Phelps

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Government regulation of the manufacture, sale, and possession of firearms.

The SECOND AMENDMENT to the U.S. Constitution is at the heart of the issue of gun control. The Second Amendment declares 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."

To many, the language of the amendment appears to grant to the people the absolute right to bear arms. However, the U.S. Supreme Court has held that the amendment merely protects the right of states to form a state militia (United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 [1939]).

Even before the Miller opinion interpreted the Second Amendment in 1939, Congress, state legislatures, and local governing bodies were passing laws that restricted the right to bear arms. Kentucky passed the first state legislation prohibiting the carrying of concealed weapons, in 1813. By 1993, firearms were regulated by approximately 23,000 federal, state, and local laws.

State and local firearms laws vary widely. Thirteen states prohibit only the carrying of concealed handguns. At the other end of the spectrum, three Chicago suburbs?Morton Grove, Oak Park, and Evanston?ban handgun ownership outright. Generally, firearms regulations are more restrictive in large metropolitan areas.

State and local firearms laws and ordinances include outright bans of certain firearms, prohibitions on the alteration of certain firearms, and restrictions on the advertising of guns. State gun-control laws also address the theft of handguns, the inheritance of firearms, the use of firearms as collateral for loans, the possession of firearms by ALIENS, the discharge of firearms in public areas, and the alteration of serial numbers or other identifying marks on firearms. States generally base their power to control firearms on the police-power provisions of their constitutions, which grant to the states the right to enact laws for public safety.

Congress derives its power to regulate firearms in the COMMERCE CLAUSE, in Article I, Section 8, Clause 3, of the U.S. Constitution. Under the Commerce Clause, Congress may regulate commercial activity between the states and commerce with foreign countries. In reviewing federal legislation enacted pursuant to the Commerce Clause, the U.S. Supreme Court has given Congress tremendous leeway. Congress may enact criminal statutes regarding firearms if the activity at issue relates to interstate transactions, affects interstate commerce, or is such that control is necessary and proper to carry out the intent of the Commerce Clause.

In 1927, Congress passed the Mailing of Firearms Act, 18 U.S.C.A. § 1715, which banned the shipping of concealable handguns through the mail. Congress followed this with the NATIONAL FIREARMS ACT OF 1934 (ch. 757, 48 Stat. 1236?1240 [26 U.S.C.A. § 1132 et seq.]), which placed heavy taxes on the manufacture and distribution of firearms. One year later, Congress prohibited unlicensed manufacturers and dealers from shipping firearms across state borders, with the Federal Firearms Act of 1938 (ch. 850, § 2(f), 52 Stat. 1250, 1251).

In 1968, after the assassinations of President JOHN F. KENNEDY, CIVIL RIGHTS activists MALCOLM X and MARTIN LUTHER KING JR., and Senator ROBERT F. KENNEDY, Congress responded to the public outcry by passing the Gun Control Act of 1968 (GCA) (Pub. L. No. 90-615, § 102, 82 Stat. 1214 [codified at 18 U.S.C.A. §§ 921? 928]). This act repealed the Federal Firearms Act and replaced it with increased federal control

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over firearms. Title I of the act requires the federal licensing of anyone manufacturing or selling guns or ammunition. Title I also prohibits the interstate mail-order sale of guns and ammunition, the sale of guns to minors or persons with criminal records, and the importation of certain firearms. Title II of the act imposes the same restrictions on other destructive devices, such as bombs, grenades, and other explosive materials.

Between 1979 and 1987, a total of 693,000 people in the United States were assaulted by criminals armed with handguns. Statistics such as this, as well as high-profile shootings, such as that of President RONALD REAGAN and his aide, James Brady, in 1981, led to pressure for further gun-control measures.

The congressional enactment in 1993 of the Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536, marked the first significant federal gun-control legislation since the GCA in 1968. The act was named for James Brady, the White House press secretary who was critically and permanently injured in 1981 during an assassination attempt on President Ronald Reagan. The Brady Act amended the GCA, requiring U.S. attorney general to establish a national instant background check...