The current and future state of gun policy in the United States.

• Author: Vizzard, William J.
• Position: Symposium on Guns in America

TABLE OF CONTENTS I. A HISTORY OF EPISODIC POLITICAL FOCUS A. Federal B. State and Local C. The Courts II. PUBLIC OPINION AND INTEREST GROUP SUPPORT A. The Crime Narrative III. POLICY A. Limited Policy Options B. Objectives for Future Policy C. Options D. Registration and Licensing E. Focus on Felons F. Policy Changes Unlikely I. A HISTORY OF EPISODIC POLITICAL FOCUS

Firearms policy in the United States has periodically entered the policy agenda for almost a century. Although federal legislation enacted in 1968 appeared to foretell a shift away from a laissez-faire approach to policy on firearms, the following half-century has seen a sharp increase in the power of gun control opponents, a rollback of regulations, and the emergence of an individual rights interpretation of the Second Amendment. Future restrictions seem unlikely in the face of constitutional and political constraints, but some modest proposals may prove possible.

1. FEDERAL

   At the national level, gun control policy has remained essentially unchanged for the past twenty years. Following the 1993 passage of both the Brady Handgun Prevention Act (commonly termed the Brady Law) and federal assault weapon restrictions, the 1994 Republican congressional victories marked the end of any momentum for additional federal legislation. (1) Since then, the federal assault weapon legislation, which appears to have had little impact, (2) has sunset, and Congress has imposed restrictions on the use of gun tracing results. (3) Neither of these actions constituted a significant shift in the fundamental national policy relating to firearm possession and commerce.

   Despite the mass shootings at Columbine High School in Littleton, Colorado; Virginia Tech in Blacksburg, Virginia; a movie theater in Aurora, Colorado; Sandy Hook Elementary School in Newtown, Connecticut; and the attempted assassination of U.S. Representative Gabrielle Giffords and accompanying mass shooting in Tucson, Arizona, no gun control legislation has passed either house of Congress since the sunsetting of the assault weapons ban. (4) On the other hand, state legislatures have been far more active, primarily in liberalizing concealed carry laws. (5) However, in the aftermath of the Sandy Hook Elementary School shooting, a few states have moved to place additional restrictions on magazine capacity of semiautomatic firearms. (6)

   In fact, the history of firearms regulation in the United States over the past century reflects a consistent pattern. The early 1900s saw a number of states move to restrict handguns in various ways, followed by many of those states retreating from those restrictions. (7) This was followed by a period of quiescence, when neither the states nor the federal government took action. The 1930s marked the next period of activity. In 1934, the National Firearms Act (NFA) was passed; the Federal Firearms Act (FFA) followed in 1938. (8) This period also demonstrated another recurring pattern. The original proposals for the NFA would have incorporated both handguns and what are currently referred to in common usage as assault rifles into the law's licensing and tax requirements. (9) However, the proposed legislation was quickly amended to include only machine guns, sawed-off rifles and shotguns, silencers, and a few other odd firearms. (10)

   Subsequently, public and legislative attention turned away from the issue of firearms regulation. It would take a presidential assassination to rekindle it. (11) Although Senator Dodd had introduced a bill to restrict mail order sales of handguns prior to the assassination, the bill had not moved. Following the assassination of President John F. Kennedy, Dodd amended the bill to cover all firearms and began a series of hearings. (12) Between 1963 and 1968, a combination of rising crime rates, administration support, and the murders of Martin Luther King, Jr. and Robert Kennedy finally generated enough antigun political support to push the Gun Control Act of 1968 (GCA) through Congress. (13) The GCA, with subsequent amendments, remains the primary federal statute governing the possession of, and commerce in, firearms. (14)

   Although a number of unsuccessful bills expanding control of firearms were introduced during the 1970s, and some symbolic legislation relating to so-called "cop killer bullets" and "plastic guns" became law, (15) no significant new legislation passed Congress for almost two decades after the passage of the GCA. (16) During that time, organized opposition to firearms regulation intensified. (17) When new federal legislation was enacted in 1986, it reflected both the conservative political turn of U.S. politics and the increased organization and intensity of the pro-gun lobby. (18)

   The Firearms Owners Protection Act (FOPA) significantly modified the GCA in several ways. Among the most significant changes were reducing a licensed dealer's record, reducing record falsification and failure to record from felonies to misdemeanors, and redefining engaging in the business of dealing in firearms. (19) The new definition required proof of conducting a "regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms." (20) In addition, the change specifically exempted anyone making "occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms." (21) The federal government was specifically prohibited from implementing regulations to require reporting of gun purchases or to create a gun registration system, and inspections of dealers were limited to one per year. (22)

   With one significant addition, the GCA, as revised by the FOPA, remains the primary federal law regulating commerce in and possession of firearms. That addition, the Brady Law, requiring a waiting period and criminal records check before a dealer may deliver a handgun to a purchaser, passed both houses of Congress and was signed by President Clinton in 1993. (23) An amendment to the bill inserted a sunset clause on the waiting period and mandated its replacement by an instant check system for all firearms sales by licensees within five years. (24) Although a federal ban on certain firearms defined as assault weapons and on the future production of firearm magazines with a capacity exceeding ten rounds was enacted the following year, the law contained a ten-year sunset clause. Congress failed to renew the assault weapons ban in 2004, allowing it to expire. (25)

   Thus, federal policy relating to firearms possession and commerce has experienced only three notable changes in the past seventy-five years. Since the 1968 enactment of the GCA, one of these policy changes, FOPA, has significantly weakened gun policy. Although the issue has recurrently intruded on the public policy agenda, received significant media attention, and stirred passions, particularly among opponents of control, Congress has not acted on any significant legislation for two decades. (26) Given that a Democratic Senate failed to pass any legislation in the aftermath of the Sandy Hook Elementary School shooting, (27) it appears unlikely that legislation of any substance will emerge from Congress any time soon.

2. STATE AND LOCAL

   Far more activity has occurred at the state and local level. In 1976, Washington, D.C. enacted the strictest handgun law in the country, essentially banning the private ownership of handguns and imposing restrictions on the possession and storage of long guns. (28) Although some anticipated that this would be the initial act in a series of strict state laws applying to handguns, this did not prove to be the case. A 1976 Massachusetts initiative, Question 5, which would have outlawed private ownership of handguns, was defeated. (29) The subsequent defeat of Proposition 15, a measure to freeze the existing California handgun population, in 1982, clearly signaled that the D.C. law did not foretell a new wave of gun restrictions. (30) Although a few states added some minor restrictions during the next thirty years, the primary trend in state law was one of liberalizing restrictions on the concealed carrying of firearms.

   Until the latter part of the twentieth century, most states either prohibited carrying a concealed firearm on the person away from one's home or business or required a permit to do so. (31) Typically, the permits were issued by local sheriffs or police chiefs, who had the discretion to deny or issue a permit based upon their judgment. (32) A few exceptions existed. Vermont, for example, had no laws relating to concealed or open carry. (33) On the opposite pole, Wisconsin had no provision for issuing a permit. (34) In 1961, the state of Washington revised its statute to guarantee all applicants, except those prohibited by law from possessing a firearm such as violent felons, the right to a permit. (35) The change in the law apparently attracted little national attention. However, when Florida passed a similar liberalization in 1987, the new policy attracted nationwide attention and initiated a national trend. (36) The move to so-called "shall issue" states accelerated rapidly during the 1990s. (37) By November 2013, only nine states retained discretion for the issuance of permits, and several states had either eliminated the requirement for a permit or were in the process of doing so. (38) Although efforts by gun rights advocates to pass a state reciprocity requirement relating to concealed carry permits have failed to gain congressional approval, thirty-five states currently recognize out-of-state permits and several issue permits to nonresidents. (39) Overlapping the movement to mandatory issuance of concealed carry permits is the "constitutional carry" movement, which seeks to eliminate any requirement of a permit. (40)

   As a result of the 2010 midterm elections, the...