State Vs Federal: Who Decides Firearm Laws?

Gun laws in the United States are a complex interplay of federal and state legislation. While the Second Amendment of the US Constitution protects the right to keep and bear arms, federal laws like the Gun Control Act of 1968 and the National Firearms Act of 1934 set a baseline for regulating the sale, possession, and use of firearms. However, states have the power to enforce their own gun laws, which can be more or less restrictive than federal laws. This dynamic often leads to debates about states' rights and public safety, with some states attempting to nullify federal gun laws they deem unconstitutional. As a result, gun laws vary significantly across the US, with certain states having unique provisions like peaceable journey laws or additional restrictions on specific firearms.

State vs federal power

In the United States, gun laws vary from state to state. While federal laws establish a baseline national standard regarding the criteria that make people eligible to acquire and possess firearms, state laws may also impose additional, stricter eligibility requirements. Federal law, for example, prohibits the sale and possession of firearms by individuals who have been convicted of certain crimes or are subject to specific court orders related to domestic violence or serious mental health issues. State laws may have more stringent controls on the use and possession of firearms than federal law.

Some states have enacted laws that directly challenge federal gun laws, arguing that they violate the Second Amendment right to bear arms. These efforts are known as "nullification" or "interposition". While these laws have faced legal challenges, with the Supreme Court turning down pleas to allow states to forbid the enforcement of federal gun laws, they continue to gain support, particularly from groups advocating for strong personal rights to own and carry guns.

State firearms laws can be less restrictive than federal laws, and state and local police departments are not legally required to enforce federal gun laws. However, this does not provide immunity from prosecution for violations of federal laws. State laws may require licenses or permits to purchase or possess firearms, implement background checks, and regulate the open carrying of firearms in public.

In contrast, federal laws have addressed specific types of firearms, such as the National Firearms Act of 1934 regulating automatic firearms, and the Firearm Owners Protection Act of 1986. Federal laws have also been enacted to address school violence and protect public health and safety, such as the Gun-Free School Zones Act and background check requirements.

The Second Amendment

State firearms laws can be less restrictive than federal laws, but this does not mean that a person cannot be prosecuted for violating federal laws. State and local police departments are not legally required to enforce federal gun laws, per the US Supreme Court ruling in Printz v. United States. However, federal law establishes a baseline national standard regarding individuals' eligibility to acquire and possess firearms. For example, federal law prohibits the sale of firearms to people with certain criminal convictions or who are subject to certain court orders.

Some states require a license or permit to purchase or possess firearms, and some require firearms to be registered with the police or another law enforcement agency. Some states have also enacted red flag laws, which enable judges to issue an order to temporarily confiscate the firearms of a person who presents a threat to others or themselves.

In recent years, there has been a revival of the nullification idea, where states declare national actions unconstitutional and void. Kansas, for example, passed a law stating that no US official or employee could enforce any federal law regarding a firearm that is owned in Kansas and remains within its borders. However, this was denounced by the US Attorney General as unconstitutional under the Supremacy Clause of the US Constitution. The Supreme Court has also turned down a plea by gun rights enthusiasts in Montana to be exempt from federal gun laws.

State preemption

Some states have state preemption for some or all gun laws, meaning only the state can legally regulate firearms. In other states, local governments can pass their own gun laws that are more restrictive than those of the state. For example, some states and localities place additional restrictions on certain semi-automatic firearms that they have defined as assault weapons, or on magazines that can hold a certain number of rounds of ammunition.

Some states have attempted to restrict federal gun laws, which they believe violate the Second Amendment right to have and carry guns. However, these efforts, known as "nullification" or "interposition," have generally been unsuccessful. The Supremacy Clause of the United States Constitution states that a federal law is binding on all state and local governments as long as Congress enacted the law pursuant to its limited powers.

Peaceable journey laws

In the United States, gun laws vary from one state to another. While some states have state preemption for some or all gun laws, others allow local governments to pass their own gun laws, which can be more restrictive than those of the state.

In some states, peaceable journey laws give additional leeway for the possession of firearms by travellers passing through to another destination. The Firearms Owners Protection Act of 1986, also known as "The Peaceable Journey Law", allows a person to transport a firearm through states in which they do not hold a valid permit, as long as they may lawfully carry in the state of origin and the destination. The owner of the firearm must be in transit and not stay in the state where possession would be illegal. The firearm must be unloaded and contained in a locked box or out of the driver's reach, unless state law allows otherwise. Some states require that ammunition be stored in a separate locked container.

The states that don't have a specific law protecting owners transporting firearms in their state constitution are California, Iowa, Maryland, Minnesota, New Jersey, and New York. In these states, it can be tricky to transport a weapon, and they often have very strict rules regarding how they must be transported. For example, in New York City, the firearm must be unloaded and in a locked container that cannot be easily accessed, and the journey must be continuous. In Washington D.C., it is illegal to transport a firearm for any reason, and if an individual is pulled over, they will be arrested.

While some states have attempted to restrict federal gun laws, believing they violate the Second Amendment right to have and carry guns, these efforts are known as "nullification" or "interposition". However, the U.S. Supreme Court has ruled that state and local police departments are not legally obligated to enforce federal gun laws.

Background checks

Federal law requires background checks to be conducted whenever a person attempts to buy a gun from a licensed gun dealer. This is to ensure that the buyer is not prohibited by law from owning a gun. Since federal law began requiring these background checks in 1994, millions of sales to people with felony convictions or other prohibiting histories have been blocked.

However, federal law does not require unlicensed sellers to conduct background checks. This is the single largest gap in the federal background check requirement. In 2024, unlicensed sellers supplied over half of the trafficked guns in investigations, amounting to more than 68,000 trafficked guns from 2017 to 2021.

Some states have enacted laws to close this loophole. In 2022, 21 states required unlicensed sellers to conduct background checks on some or all firearms purchasers. Additionally, 18 states and Washington, D.C., require background checks for all gun sales. In states that require a background check for private handgun sales, there are 48% fewer firearm suicides.

In 2022, Congress passed and President Biden signed into law the Bipartisan Safer Communities Act, which made a minor change to the definition of “engaged in the business” of dealing in firearms to include anyone who deals guns “to predominantly earn a profit”.

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