US gun laws

November 14, 2022

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This article is written by Satyaki Deb, an LL.M. (IP) candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. This article provides an exhaustive and analytical overview of US gun laws from a neutral viewpoint.

It has been published by Rachit Garg.

Table of Contents

Introduction

The topic of gun laws in the US has been amidst us for centuries, and perhaps no introduction can do proper justice to the domain of gun laws here owing to the ever-dynamic and evolving landscape of the same. The topic of gun laws is not only an extremely broadly distributed topic but also a very sensitive one. As much as practicable, due caution has been taken to portray the overview of gun laws in the US from a neutral standpoint. In this regard, to portray an overview of gun laws in the US, the concept of gun rights has also been tagged in. Gun laws and gun rights cannot be studied in isolation of each other, for the intricate overlapping domains between the two make a separate study futile. To this end, the canvas of this article has been analytically sewn and arranged in a manner where the readers will be first exposed to a well-researched study of the constitutional status of gun laws and rights in the US, and thereafter the major federal gun laws have been covered briefly. Last but not the least, the readers will also get an overview of state-wise gun laws in the US, and for this, owing to practical constraints, the top three gun friendly and the top three anti-gun states as per the popular consensus, have been considered from the pool of fifty states.

The constitutional status of gun law and gun rights in the US: an analytical study of the Second Amendment Rights and beyond

It is needless to state that a study of US gun laws will remain grossly incomplete in the absence of a detailed analytical study of the same through the lens of the US Constitution. In this regard, to get a comprehensive picture of the US gun laws, it becomes imperative to go beyond the study of Second Amendment Rights and look at the landscape of constitutional gun rights from a polycentric perspective. To this end, for the scope of enhanced understanding, the analytical study has been arranged under two heads- Second Amendment Rights and Constitutional gun rights beyond the Second Amendment.

Second Amendment Rights in the US

A study of the Second Amendment Rights through a historical lens is imperative for a better grasp of this much-debated and sensitive topic of the Second Amendment Rights, for a constitutional provision cannot be studied comprehensively in the absence of the evolution of the jurisprudence behind it and the cases that shaped the same.

James Madison, the fourth President of the United States, had proposed the introduction of the Second Amendment, and it was ratified in 1791. Back then, more than 200 years ago, it was greatly feared by the anti-federalists like Patrick Henry and others that a central standing military formed by the Constitutional Convention would open the scope of violent oppression by the strong federal government. Besides this, the social fabric was violent too, and the need for self-defense was strongly favored. All these, inter alia, led to the adoption of the Bill of Rights in 1791 in the US Constitution, which envisages the rights of US citizens with respect to their government via the first 10 Amendments.

According to the Second Amendment (1791), “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.”

As is evident from the Second Amendment’s wording, there are two aspects/parts to it- the introductory/prefatory part and the operative part. The introductory part is “A well-regulated Militia, being necessary to the security of a free State”, and the operative part is “the right of the people to keep and bear Arms shall not be infringed.”

To support these two aspects of the Second Amendment, two theses have developed, viz “the states’ rights” thesis and the “individual rights” thesis. According to “the states’ rights” thesis, it was the intention or purpose of this Amendment to protect the states in their power by the maintenance of a formal and organized militia. So, “the states’ rights” thesis stressed the significance of the introductory/prefatory clause. On the contrary, according to the “individual rights” thesis, the Second Amendment was interpreted to protect individuals in the possession, ownership, and transportation of firearms, and so this thesis stressed the operative part of the Second Amendment.

Evolution of the jurisprudence of Second Amendment Rights: a case law centric study

After seeing the two angles of comprehending the Second Amendment, for a clearer and definite understanding, it is time to see the jurisprudence of the same through the evolution of relevant US Supreme Court case laws. Whether the states’ rights approach or the individual rights approach – which interpretation is correct at present will be clear from the analytically discussed cases below.

The states’ rights thesis perspective of the Second Amendment Rights

In the case of United States v. Miller (1939), certain provisions of the National Firearms Act, 1934, were challenged. One such provision was that registration was made mandatory for shotguns with barrels of less than 18 inches. One person was charged for transporting such arms without having them registered or without a stamp-affixed written order for the same. Even though the charged individual argued that it was his individual right under the Second Amendment to carry such arms, the Supreme Court differed in its view and held that the National Firearms Act was not violative of the Second Amendment. It was further held that the Second Amendment does not grant an individual the right to carry such a firearm, as in the absence of any evidence that suggests that such shotgun possession is in connection with the “preservation and efficiency of a well-regulated militia,” such individual guarantee of a right to carry weapons is beyond the scope of the Second Amendment.

After the Miller case, the law was thus clearly laid down regarding the interpretation of the Second Amendment. This precedent can be seen to be reiterated in a number of later US cases,, which are briefly stated as follows:

In the case of Lewis v. United States (1980), the dictum of the landmark Miller case, stating “Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well-regulated militia’” was reiterated.
In the case of Hickman v. Block (1996), the plaintiff was denied a permit to carry concealed weapons at the discretion of the state and the Court upheld such denial reasoning in the line of the Miller case and stating that the Second Amendment is a constitutional right held by the states and not by private individuals.
In the case of United States v. Gomez (1996), a federal prohibition on the possession of firearms by a felon was upheld as the same was held not to be violative of the Second Amendment.
In the case of United States v. Wright (1997), the Court reasoning along the lines of the Miller case, upheld the conviction of a member of Georgia unorganized militia, who was unable to establish any connection for the possession of machine guns and pipe bombs with the preservation or efficiency of a well-regulated militia.

Thus, the above case law-oriented discussion clearly shows how the shaping of the interpretation of the Second Amendment happened in the previous century and the courts preferred the prefatory clause over the operative clause of the Second Amendment. This states’ rights-centric interpretation of the Second Amendment encouraged the US Congress to enact laws that further limited the receipt, possession, and transportation of firearms and several legislations were passed in the erstwhile century viz, Gun Control Act of 1968, Brady Handgun Violence Prevention Act of 1993, etc.

The individual rights thesis vis-a-vis the currently accepted interpretation of the Second Amendment Rights

With changing centuries came changing interpretations, and in 2008, the Supreme Court for the first time took a definitive stand in favor of the individual rights thesis with respect to the Second Amendment. In the case of District of Columbia v. Heller (2008), the US Supreme Court relied on the historical usage and meaning of the phrases of the Amendment, referred to some new literature like the works of E. Volokh, R. Barnett, etc., regarding the origin of the Second Amendment, and in a 5:4 decision, confirmed that the Second Amendment Rights applied to individuals. It was further clarified by the Court that the Second Amendment Rights extended beyond the scope of a well regulated militia and applied to self-defense too.

Analysis of the landmark Heller case and its shaping of gun rights in the US

Since the Heller case is the landmark case that has shaped the present interpretation of the Second Amendment Rights in the 21st century, a further analytical study of the same will help us understand better how the interpretation evolved from the states’ rights thesis to the individual rights thesis. So, the facts of this precedent revolved around a District of Columbia law that banned handguns and mandated that all other types of firearms in homes be disassembled or bound by a trigger lock at all times. Justice Scalia, while delivering the majority judgment, held that the operative phrase of the Second Amendment is not limited by the term “militia” in the prefatory phrase, and he reasoned that all able-bodied men come under the umbrella of the term “militia” for any of them can be called into service at any point in time. In other words, the term “militia” was liberally interpreted to mean beyond the governed military force, and unlike the Miller case, its strict interpretation was not preferred because such a strict interpretation would lead to a state-sponsored force. Justice Scalia, on behalf of the majority judges, stated that the point of adding the Second Amendment to the Bill of Rights was to protect the people from such state-sponsored force and that a strict interpretation of the term “militia” by excluding individuals from the scope of the Second Amendment would defeat the legislative intent of protecting the individuals. With this reasoned judgment, the disputed District of Columbia law was set aside, and the individual was held to have the guaranteed right to possess and carry weapons in case of confrontation. This paved the way for favoring the operative clause over the prefatory clause of the Second Amendment, clearly prioritizing the individual rights thesis over the states’ rights thesis, and the right to self-defense of the individual became a fundamental and deeply rooted right of American individuals.

Though the Heller case has become an important precedent, a few important drawbacks of this landmark judgment were that the Supreme Court refused to lay down the standard based on which future gun laws should be evaluated and did not definitively answer if the Second Amendment applied to states too or not. The post-Heller cases addressed this issue and, while doing so, went beyond the Second Amendment in the context of gun rights. This calls for a study of the US gun laws and rights beyond the Second Amendment and uses the analytical lens of other constitutional provisions.

Constitutional gun rights beyond Second Amendment

Within the constitutional parameters, it is time to travel beyond the confines of the Second Amendment and see if other constitutional provisions can help us better understand the delicate fabric of gun laws and gun rights in the US.

Fourteenth Amendment and gun rights in the US

In the case of McDonald v. Chicago (2010), the issue came up of whether the Second Amendment should also apply to the states or not. The Supreme Court, in a majority decision of 5:4, held that the Second Amendment’s right to keep and bear arms for the purpose of self-defense is applicable to the states through the Fourteenth Amendment (deals with various rights of citizens). Reasoning along the lines of the Heller case, the Court said that by virtue of its fundamental rights holding in the Heller case, the Second Amendment also applied to the states.

Now, the majority of Justices differed as to how the Second Amendment was incorporated through the Fourteenth Amendment. Justice Alito believed that the Second Amendment was incorporated through the Due Process Clause of the Fourteenth Amendment, but Justice Thomas believed that the incorporation took place through the Privileges or Immunities Clause of the Fourteenth Amendment. The dissenting Justices argued that there was nothing in the “text, history, or underlying rationale” of the Second Amendment that could justify its incorporation through the Fourteenth Amendment.

First Amendment and gun rights in the US

The First Amendment is often considered by legal scholars to be the most important part of the Bill of Rights, and it states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” So, it can be seen that the First Amendment guarantees American citizens the fundamental right to freedom of speech and expression. Now, it has been argued by many gun owners that, as an extension of this fundamental right of freedom of speech and expression, the carrying of firearms publicly constitutes a part of their constitutionally protected form of expression.

The courts have mostly been pretty skeptical of this expansive interpretation of the First Amendment and, in various cases like Northrup v. City of Toledo Police Division (2015), Georgia Carry.Org, Inc. v. Georgia (2012), etc., have refused to provide First Amendment protection to the public carrying of guns as a form of expression.

It may prima facie appear that such an expansive interpretation of the First Amendment is a pro-gun interpretation, but it can be argued logically that just as carrying a gun may be a fundamentally protected form of expression, similarly excluding a gun from sensitive places like churches, colleges, etc. by their authorities may be a fundamentally protected form of expression too.

Of late, another landmark case, revolving around the Second Amendment, of the significance of the Heller and McDonald cases has come up that has the potential to expand the scope of protected gun rights at the cost of reduced gun laws and regulations. After a detailed and analytical study of constitutional gun law and a rights-centric study of the Second Amendment and beyond, it is time to briefly see the future landscape of US gun laws through the lens of the recent but head-turning Bruen case.

Bruen Case (2022)

Facts of the Bruen case

In the case of New York State Rifle and Pistol Association v. Bruen (2022), there was a New York gun safety law that required any individual wishing to carry guns in public places to have a license for the same, and to get that license, it was necessary to show a special need for self-protection. This need for “proper cause” that needed to be shown allowed a higher degree of discretion to the New York state authorities. The concealed carry permit applications of Robert Nash and Brandon Koch were rejected for failure to show “proper cause”. The District Court and the Second Circuit Appellate Court affirmed the rejections, and the matter reached the US Supreme Court.

Issue of the Bruen case

The burning issue was whether the New York gun safety law, which mandates that individual applicants demonstrate the special need for self-defense was violative of the Second Amendment or not.

Judgment and significance of the Bruen case

In a 6:3 majority, it was held that New York’s “proper cause” requirement violated the Fourteenth Amendment by preventing law-abiding individuals from exercising their Second Amendment Rights to keep and bear arms in public for the purpose of ordinary self-defense needs. It needs to be duly noted that all gun restrictions were not made unconstitutional by this, but gun restrictions were constitutional only if they had roots/traditions in US history.

What this meant was that the effect of guns in US society was irrelevant, and any gun regulation laws that had no traditional basis were unconstitutional. There were many such gun regulation laws in other states too, and as expected, the domino effect may well have started, as was seen in the state of Maryland, where a similar gun regulation law got suspended within two weeks of the delivery of this judgment.

Will this judgment shape the future landscape of US gun laws? Nothing can be said definitively, but the chilling effect against the anti-gun lobby may already have started because, with this judgment, there can be not much of subjective tests for gun regulation as the ambit of state discretion for the grant of carry and conceal permits or other licenses has greatly decreased and may hardly stand the test of constitutionality after this Bruen case. Only objective tests/regulations that have a basis in the US tradition will be deemed constitutional.

US Congress and federal gun laws in the US

After the detailed study of US gun laws and rights from the constitutional perspective, it is time to look at some of the other important laws governing the same. They are discussed as follows:

Bipartisan Safer Communities Act, 2022

The Bipartisan Safer Communities Act, 2022, is the latest Act in a very long time that is designed to reduce gun violence. This Act will bring in the following major changes:

It will give law enforcement and prosecutors new tools to prosecute gun traffickers and thus play an important role in reducing gun violence.
It will lead to increased background check systems for the purchase of firearms like reviewing juvenile mental health records, closing the “boyfriend loophole” and prohibiting those convicted of misdemeanor domestic violence as a part of a domestic relation (be it marriage or live-in relationship – previously the express mention of “marriage” created the boyfriend loophole where boyfriends, being not husbands could get guns despite being convicted of domestic violence) from purchasing or possessing a firearm for at least five years. All such domestic violence convicts will be added to the National Instant Criminal Background Check System (NICS).
It will provide the states with federal funding to implement extreme risk protection order programs, drug courts, and other crisis intervention programs, make and enact new laws that will keep deadly weapons out of the hands of individuals designated as a danger to themselves and others by the court, etc. To this end, a fund of $750 million will be made available to the states.
It will provide for the making of stringent requirements for being a federally licensed firearms seller and mandating the conduct of background checks, keeping of appropriate records, etc. All these will crack down on criminals who illegally evade licensing requirements.
There will be an enhanced review process for those under 21 looking to buy guns.
There will be a $250 million fund for the prevention of community-based violence prevention initiatives.
It will ensure increased funding for schools, children and family mental health services.

National Instant Criminal Background Check System Improvement Amendments Act (NICS), 2007

The National Instant Criminal Background Check System (NICS) Improvement Amendments Act, 2007, brought in the following major changes:

It brought in financial incentives to the states to provide data like if any individuals are prohibited from possessing firearms, if anyone is mentally defective or has been committed to mental institutions etc, to the NICS which is the core platform to do background checks before the purchase of firearms can be done from federally licensed weapons sellers.
The Attorney General was authorized to make grants to the states to make the states better equipped to relay information like mental health information of individuals etc.
The states need to implement a “relief from disabilities” program as per the Act to get grants under the NICS.

The Protection of Lawful Commerce in Arms Act and Child Safety Lock Act of 2005

The Protection of Lawful Commerce in Arms Act (PLCAA) and Child Safety Lock Act (CSLA) of 2005 were brought in to provide immunity to the firearms industry from tortious liability. Some of the major changes brought in by these Acts are as follows:

The PLCAA shielded the gun industry from any “qualified civil liability action” that may occur from criminal or unlawful misuse of a “qualified product” by the person or any third party, barring a few exceptions.
From the date of enactment of PLCAA i.e. October 26, 2005, if any such cases are brought in any state or federal court, then it should be immediately dismissed.
The PLCAA has been codified under 15 U.S.C. §§ 7901 — 7903.
The CSLA, which was adopted as a part of the PLCAA, ensured that any purchaser of handguns must be provided with a secure gun storage or safety device by the licensed seller, importer, or manufacturer.
The CSLA also shielded any individual who possessed or controlled a handgun from any “qualified civil liability action” if he used a safety device or secure gun storage with his handgun.
The CSLA has been codified at 18 U.S.C. § 922(z).

The Brady Act, 1993

The Brady Handgun Violence Prevention Act of 1993 (“Brady Act”), has been named after James Brady, who was permanently disabled during an assassination attempt on President Ronald Reagan. The Act brought in the following major changes:

The Brady Act amended the Gun Control Act of 1968 and mandated that before any firearms sale is executed, background checks should be completed to check if the purchaser falls under the category of prohibited purchasers or not.
Initially, the background check required five days but now with the creation of the National Instant Criminal Background Check System (NICS), the checks can be done instantly.

Firearm Owners Protection Act (FOPA), 1986

The Firearm Owners Protection Act of 1986, (also known as the FOPA or McClure-Volkmer Act) brought in the following major changes:

It mainly ushered in protection for firearms owners by preventing the bringing of a national register of dealer records
In the absence of multiple infractions, the ATF inspections were made limited to once per year and licensed dealers were allowed to sell firearms at gun shows in their states.
There were reduced regulations regarding the sale and transfer of ammunition.
The requirement for what connotes “engaging in the business” in firearms sales for the purpose of federal license was relaxed.

Gun Control Act, 1968

The Gun Control Act of 1968, was brought in after the assassinations of President John F. Kennedy, Dr. Martin Luther King, Jr., the US Attorney General, and Senator Robert F. Kennedy. It brought in the following major changes:

It repealed and replaced the erstwhile Federal Firearms Act of 1938.
The GCA is codified at 18 U.S.C. § 921.
The GCA brought in prohibitions against the import of any guns that had no sporting purpose.
The minimum age for the purchase of firearms was established at 21.
It was mandated that all domestic and imported firearms be affixed with serial numbers.
It further expanded the category of “prohibited persons” and the definition of “machine guns”.

Brief state-wise overview of US gun laws

An elaborate discussion of state-specific gun laws is beyond the scope of this article, but the generally perceived top three gun friendly and three most anti-gun states will be covered. Keeping that in mind, the following is a brief discussion on the overview of US gun laws in a state-wise manner:

Alaska

There are very few state-specific gun regulations in this state, barring federal gun regulations. So, this state is often considered the most gun-friendly state in the US. It is more of the Alaskan way of life to have guns to protect the individual and family. There are no waiting periods, universal background checks, magazine capacity restrictions, bans, etc. There are no carry/conceal permits required for anyone over the age of 21 who can legally possess a firearm. A more detailed overview of gun laws in Alaska can be found here.

Arizona

Arizona is mostly considered to be right after Alaska in gun friendliness. There is little to no limit on the purchase and possession of firearms and gun accessories. There is also the culture of acceptance of firearms as a part of state culture. Gun owners enjoy the benefit of the doubt in most cases and are entrusted by state laws to practice responsible measures. This is evident from the declaration (by the passing of resolutions) of 6 of the 15 counties of Arizona as Second Amendment sanctuary counties, though the legality of these resolutions is still not fully out of the woods. The reason it is behind Alaska is that it has slightly lower gun ownership per household than Alaska. A more detailed overview of gun laws in Arizona can be found here.

Wyoming

Wyoming is also a very gun-friendly state. There are no waiting periods for the purchase of guns and no universal background checks either. Open carry is permitted and there is no gun ban. Possession, purchase, or transfer of rifles, shotguns, and handguns do not require state permits. But there are some regulations governing concealed carry weapons. A more detailed overview of gun laws in Wyoming can be found here.

New York

New York is often considered to have some of the most stringent gun laws and regulations in the USA. These state regulations are very strict, especially for handguns, but for shotguns and rifles, the rules are pretty relaxed in nature. In order to possess a gun in New York, one needs to have a permit to purchase, a license to carry, and registration of the gun before it is transferred to the individual’s possession. But in general, it is extremely difficult to get a concealed carry permit for handguns. There are stringent objective criteria and subjective criteria to get all these permits, but the subjective criteria have been greatly eroded by the recent judgment in the Bruen case. In general, there is an anti-gun sentiment in New York, but amidst the stigma against gun possession, there are scattered pockets where gun possession is celebrated. A more detailed overview of gun laws in New York City can be found here.

Massachusetts

Massachusetts has a very strict gun control atmosphere legally and is often considered the second most strict or anti-gun state in the US after New York. Contrary to most states where individuals ask for permits at gun stores, here any individuals looking to possess guns need to apply for permits at the local police departments. All these have resulted in a general anti-gun bubble in the state, and even those who have already got the necessary permits and licenses for guns may find themselves socially ostracized or subject to further scrutiny from time to time. A more detailed overview of gun laws in Massachusetts can be found here.

California

Almost along the lines of New York and Massachusetts, there is a very lengthy procedure to obtain licenses and permits for firearms in California. There is a usual waiting period of 10 days for the permits, which may be extended to 30 days at the discretion of the state Department of Justice. Open carry of firearms is not permitted, and, despite the rich pro-gun culture of the state in the past, the state has developed stringent gun regulations and laws, which became a necessity mostly to deal with the increasing gun and gang violence. A more detailed overview of gun laws in California can be found here.

Conclusion

Amidst the widely debated issues list of the world, the topic of gun laws in the US has been on the said list for quite some time now and will probably continue to be there because of the volatile and sensitive history and cultural context revolving around gun rights. The statistics of gun violence in the US have resulted in both pro and anti-gun protests in the US from time to time. In this regard, it is imperative to state that lessons can be learned from the ‘Alcohol Prohibition’ in the early part of the previous century. What is necessary is that legislative wisdom and subsequent enforcement, both at the federal and state levels, needs to strike a balance between people’s rights to bullets as well as ballots and peace on the pedestal of inclusiveness with dignity. This article is but a small attempt and step in that direction.

Frequently asked questions (FAQs) related to US gun laws

Is there any existence of militias today in the United States?

State Defense Forces (SDFs) are the common name of modern militias these days in the US. There have been about 23 SDFs since 2010, and they are maintained by the states and are under their sole jurisdiction, unlike federal organizations such as the National Guard.

Is ownership of assault weapons constitutional in the United States?

Even though the Public Safety and Recreational Firearms Use Protection Act, 1994, brought in a ten-year ban for the private use of assault weapons, it expired in 2004. Currently, there are state-wise laws governing the same. Some states permit the same with some regulations whereas some states restrict their use greatly.

Does the Bruen decision mean people can easily carry guns in New York City?

Easily is a very subjective term, and though the Bruen case has diluted the states’ discretionary powers greatly, stringent objective criteria and red flag laws, such as new disqualifying criminal convictions, like a conviction for third-degree assault within the previous five years, that preclude an applicant from obtaining a concealed carry license, will ensure the maintenance of public peace and safety.

References

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