Firearm Laws: Federal Permit History And Evolution

The right to keep and bear arms in the United States is protected by the Second Amendment to the U.S. Constitution. While there is a variety of state and federal statutes that modulate this right, the topic of gun control remains a contentious issue. The first federal gun control legislation was the National Firearms Act (NFA) of 1934, which imposed a tax on the manufacture and transfer of certain firearms. This was followed by the Federal Firearms Act of 1938 (FFA), which required gun manufacturers, importers, and dealers to obtain a federal firearms license (FFL). The Gun Control Act of 1968 (GCA) repealed and replaced the FFA, and it prohibited the interstate transfer of firearms except among licensed manufacturers, dealers, and importers. The GCA also set minimum age requirements for gun purchases and prohibited the sale of firearms to felons and the mentally ill.

The National Firearms Act of 1934

The National Firearms Act (NFA) was enacted on June 26, 1934, by the 73rd US Congress. The law imposed an excise tax on the manufacture and transfer of certain firearms and mandated the registration of those firearms. The NFA was enacted in response to the wave of violence during the Prohibition Era, including the St. Valentine's Day Massacre of 1929 and the attempted assassination of President-elect Franklin D. Roosevelt in 1933.

The NFA imposed a $200 tax on the making and transfer of firearms defined by the Act, including machine guns, short-barreled rifles and shotguns, certain firearms described as "any other weapons," and firearm mufflers and silencers. This tax was considered quite prohibitive at the time, equivalent to $4,555 in 2023, and was intended to curtail or prohibit transactions in these firearms. The law also required the registration of all NFA firearms with the Secretary of the Treasury and imposed a special (occupational) tax on persons and entities engaged in the business of importing, manufacturing, and dealing in NFA firearms.

The NFA has been amended several times since its enactment, including through the Gun Control Act (GCA) of 1968, which expanded the scope of the NFA to include destructive devices and machine gun frames or receivers. The GCA also restricted registrations of NFA weapons to makers, manufacturers, and importers, and allowed private citizens to purchase, sell, possess, and transfer only previously registered NFA weapons.

The NFA continues to be a key component of federal firearms laws in the United States, with all NFA items required to be registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The ATF collects the taxes and maintains NFA weapon registration records in a central registry called the National Firearms Registration and Transfer Record (NFRTR). As of November 2006, the NFRTR contained registrations for nearly 2 million weapons.

Violations of the NFA are punishable by up to 10 years in federal prison and forfeiture of all devices or firearms in violation. The Act also provides for a penalty of $10,000 for certain violations, and a willful attempt to evade or defeat the tax imposed by the Act is a felony punishable by up to 5 years in prison and a fine of up to $500,000 for individuals or $250,000 for corporations or trusts.

The Federal Firearms Act of 1938

The FFA was enforced by the Alcohol Tax Unit, a precursor to the Bureau of Alcohol, Tobacco, Firearms and Explosives. The FFA was repealed by the Gun Control Act of 1968 (GCA), which revised the FFA and its predecessor, the National Firearms Act of 1934 (NFA). However, many of the FFA's provisions were reenacted as part of the GCA.

The GCA set minimum age requirements for gun purchases: 18 for long guns and 21 for handguns. It also established new licensing and record-keeping standards and fees for dealers, manufacturers, and importers. In addition, the GCA banned the importation of firearms without a "sporting purpose".

The FFA was a significant step in the regulation of firearms in the United States, and its enactment reflected a growing recognition of the need to control the sale and possession of firearms. While it was repealed and replaced by the GCA, many of its key provisions remained in force, shaping the country's approach to firearms regulation for decades to come.

The Gun Control Act of 1968

The GCA's stated goals are to "keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency, and to assist law enforcement authorities in the states and their subdivisions in combating the increasing prevalence of crime in the United States."

To achieve these goals, the GCA created the first comprehensive federal framework to investigate and prosecute firearms crimes. It required individuals and companies engaged in the business of manufacturing, importing, or dealing in firearms to obtain a federal license. The GCA prohibited the transfer of firearms to certain persons, restricted the interstate transportation of firearms, and regulated the importation of certain firearms.

The GCA mandated the licensing of individuals and companies engaged in the business of selling firearms. This effectively prohibited the direct mail order of firearms (except antique firearms) by consumers and mandated that anyone who wanted to buy a gun in an interstate transaction from a source other than a private individual must do so through a federally licensed firearms dealer. The Act also banned unlicensed individuals from acquiring handguns outside their state of residence.

The GCA set minimum age requirements for purchasing firearms: 18 for long guns and 21 for handguns. It also established a "'sporting purposes' test to ban the importation of surplus military weapons and inexpensive handguns often associated with rising street crime, known as "Saturday Night Specials".

The GCA created the first comprehensive federal framework to investigate and prosecute firearms crimes. It prohibited the transfer of firearms to certain "prohibited persons", including felons, drug users, and people found to be mentally incompetent. It also imposed the first federal jurisdiction over "destructive devices", including bombs, mines, grenades, and similar devices.

The GCA was amended in 1993 by the Brady Handgun Violence Prevention Act, which introduced background check requirements for prospective gun purchasers and created a list of categories of individuals to whom the sale of firearms is prohibited. It was also amended in 1994 by the Violence Against Women Act to strengthen firearm bans against domestic abusers.

The Firearm Owners Protection Act of 1986

The FOPA, sponsored by former Representative Harold Volkmer and then-Senator James McClure, was a response to alleged abuses by federal officials in enforcing the GCA. The National Rifle Association (NRA) and some Federal Firearms Licensees (FFLs) claimed that the Bureau of Alcohol, Tobacco, and Firearms (ATF) was repeatedly inspecting FFL holders to harass them and drive them out of business. A 1982 Senate Judiciary Subcommittee report supported these allegations, noting that 75% of ATF prosecutions targeted ordinary citizens without criminal intent or knowledge, who were enticed into unknowing technical violations.

The FOPA addressed these concerns by implementing the following changes:

• Reopening interstate sales of long guns on a limited basis, allowing face-to-face sales as long as they complied with the laws of both the buyer's and seller's home states.
• Legalizing ammunition shipments through the US Postal Service and removing record-keeping requirements for sales of non-armor-piercing ammunition.
• Protecting the transportation of firearms through states where possession of those firearms would otherwise be illegal.
• Banning the sale of machine guns manufactured after the enactment date to civilians, restricting sales to military and law enforcement.
• Limiting ATF compliance inspections to once per year, with exceptions for follow-up inspections in cases of multiple record-keeping violations.
• Revising the definition of "gun dealer" to exclude those making occasional sales or repairs.
• Exempting certain activities involving ammunition from prohibitions, such as allowing pawnbrokers dealing in ammunition to operate without a license.
• Prohibiting the establishment of any system of firearms registration.
• Limiting unannounced dealer inspections by federal officials to one per year.
• Imposing a higher standard of proof while reducing penalties for dealer violations, requiring the government to prove a "knowing" or "willful" state of mind for GCA violations.
• Removing record-keeping requirements for ammunition dealers and allowing the mail-order sale of ammunition.
• Allowing licensed importers, manufacturers, and dealers to conduct business at temporary locations like gun shows.
• Imposing additional penalties for the use of firearms during certain drug trafficking crimes, the use of machine guns or firearms with silencers in the commission of crimes.
• Amending the forfeiture provision to require that a firearm be "involved in or used" in a knowing violation of the GCA.
• Imposing mandatory sentences for individuals with prior convictions for robbery or burglary who illegally ship firearms in interstate or foreign commerce.
• Clarifying the list of prohibited persons for firearms ownership, including felons, fugitives, unlawful users of controlled substances, those adjudicated as mentally defective, illegal aliens, dishonorably discharged military personnel, and others.

The FOPA was endorsed by the NRA but faced opposition from various police organizations. It passed in the House and the Senate, and on May 19, 1986, it was signed into law by President Ronald Reagan.

The Brady Handgun Violence Prevention Act of 1993

The Brady Handgun Violence Prevention Act, also known as the Brady Act, the Brady Bill, or the Brady Handgun Bill, was signed into law by President Bill Clinton on November 30, 1993, and went into effect on February 28, 1994. The Act mandated federal background checks on firearm purchasers in the United States and imposed a five-day waiting period on purchases until the National Instant Criminal Background Check System (NICS) was implemented in 1998.

The Brady Act was introduced in response to years of inaction on gun control at the federal level and was a landmark legislative enactment during the Clinton administration. It was named after James Brady, who was press secretary to President Ronald Reagan and was shot during an assassination attempt on Reagan in 1981. Brady was left partially paralyzed for life as a result of the shooting.

The Act requires that background checks be conducted on individuals before a firearm may be purchased from a federally licensed dealer, manufacturer, or importer, unless an exception applies. The background check is initiated by the holder of a Federal Firearms License (FFL) and most checks are determined within minutes. If a determination is not obtained within three business days, the transfer may legally be completed. The Act also prohibits certain individuals from purchasing firearms, including those who have been convicted of a felony, are fugitives from justice, are unlawful users of controlled substances, have been committed to a mental institution, or fall into other specified categories.

The Brady Act was appended to the end of Section 922 of Title 18 of the United States Code, which sets out prohibitions related to the shipping, transporting, or receiving of firearms in interstate or foreign commerce. The Act also includes provisions related to multiple firearm purchases by state and local police, and reforms to the federal firearms license system, including increased license application fees for firearms dealers who do not deal in destructive devices.

The National Rifle Association (NRA) opposed the Brady Act and spent millions of dollars to try to defeat the legislation. While the Act ultimately passed, the NRA won a concession that the five-day waiting period for handgun sales would be replaced by an instant computerized background check with no waiting periods after 1998. The NRA also funded lawsuits challenging the constitutionality of the Act, which eventually led to the Supreme Court ruling in 1997 that the provision requiring local law enforcement officers to conduct background checks was unconstitutional on 10th Amendment grounds. However, the overall Brady statute was upheld and state and local law enforcement officials remained free to conduct background checks if they chose to do so.

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