What are Gun Rights?
Do you support gun rights?
by Issue Briefs | 3.9.20
The debate over Americans’ right to possess guns for self-defense and recreation has become more prominent in U.S. politics over the last half century. Concerns about gun violence have led to numerous proposals at all levels of government, and litigation challenging the constitutionality of those measures.
The regulation of guns in the U.S. occurs at the federal and state level, and varies based on the type of firearm and its capabilities. Here’s a quick breakdown of the different types of firearms:
- Semi-automatic firearms fire a bullet each time the trigger is pulled. They can be classified as handguns, rifles, or shotguns depending on their characteristics & capabilities. These are the most commonly sold firearms in the U.S.
- Automatic firearms have the ability to fire multiple bullets at a time for as long as the trigger is being pulled. They also may have a “select-fire” capability, that allows the operator to switch between automatic, semi-automatic, or burst fire. These weapons are often used by the military, but aren’t for sale to average citizens except in certain circumstances.
- Other types of firearms that are commonly available for use by citizens or the military include revolvers, pump-action shotguns, bolt-action rifles, and lever-action rifles. These guns fire one shot at a time, and the operator uses its specific action to load a new cartridge for firing.
At the federal level, firearms laws are principally enforced by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) ― although other agencies are also involved in the enforcement and prosecution of gun laws. States and local governments also have the capability to enact firearm laws and regulations that place restrictions on gun ownership, but their constitutionality can be challenged in the courts.
There are several major federal firearms laws that have been enacted over the last century:
- The National Firearms Act of 1934 placed restrictions on fully-automatic weapons, some of which were commonly used by organized crime in that era (including the Thompson submachine gun). Individuals who aren’t in the military can only possess those weapons after receiving a special registration permit from the ATF and paying a tax.
- The Gun Control Act of 1968 prohibited all interstate commerce involving the sale of ammunition or firearms, banned the purchase of rifles or shotguns by anyone under the age of 18 and handguns by anyone under the age of 21. It also banned firearm purchases by “prohibited persons” ― such as felons, fugitives, drug addicts, and the mentally ill ― and banned imports of surplus military weapons.
- The Brady Handgun Violence Prevention Act (aka the Brady Bill) of 1993 amended the GCA to require background checks on all firearms purchases from federally licensed dealers, which is conducted through the National Instant Criminal Background Check System (NICS) assuming no additional state licenses are in place. It required that a background check be completed within three days, otherwise the sale is allowed to go forward.
From 1994-2004, a federal law prohibited “semi-automatic assault weapons”, which were defined as firearms with large capacity ammunition feeding devices. While the number of firearm murders and active shooting incidents (attempting to kill people in a populated space) have both increased since 2004, handguns are more commonly used in both overall firearm homicides and active shooting incidents.
WHAT DO THE CONSTITUTION & THE SUPREME COURT SAY ABOUT GUN RIGHTS?
The Second Amendment of the U.S. Constitution states:
“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.”
Like other constitutional rights, the right to bear arms has been interpreted by the U.S. Supreme Court in light of policies advanced by governments that seek to limit that right. Its most significant decision related to gun rights came in 2008’s Heller v. District of Columbia, which held that individuals have the right to own a firearm for lawful purposes such as self-defense. D.C. attempted to ban handguns & mandate that rifles & shotguns either be kept unloaded & disassembled or bound by a trigger lock in the owner’s home. Both of those requirements were found to be unconstitutional, although the majority’s opinion noted:
"The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
Since Heller, there have been two notable decisions that reaffirmed & further shaped the legal debate surrounding Second Amendment rights:
- McDonald v. City of Chicago (2010): The Court held that the Second Amendment’s protections extend to state policies through the 14th Amendment’s Due Process Clause and apply to cities & states in the same manner Heller applied to D.C. The case concerned a similar handgun ban & restrictions on rifles & shotguns imposed by the city of Chicago, which were found to be unconstitutional.
- Caetano v. Massachusetts (2016): The Court unanimously held that the Second Amendment protects the right to possess "all instruments that constitute bearable arms, even those that were not in existence at the time of the founding, and that this Second Amendment right is fully applicable to the States." It struck down a ban on stun guns enacted by the state of Massachusetts.
For several years after Caetano, the Supreme Court declined to hear cases involving state-level firearm restrictions, including a 10-day waiting period and an “assault weapons” ban. However, in December 2019 it heard oral arguments concerning a New York City ban on handgun owners transferring a locked & unloaded handgun outside of the city limits (such as to a gun range or vacation home).
NYC handgun owners challenged the policy, claiming it to be a “draconian” infringement on their Second Amendment rights & their constitutional right to travel. After the policy was upheld by an appeals court and it became clear the case would reach the Supreme Court, gun control advocates successfully lobbied NYC to end the restrictions in a bid to render the case moot and prevent a broad ruling that defines Second Amendment rights outside the home. That effort was joined by several Democratic senators who filed a legal brief warning that SCOTUS could face “restructuring” if it didn’t drop the case from its docket, which prompted the filing of a rebuttal brief by Republicans that argued for judicial independence. The Supreme Court proceeded with the case and is expected to issue a ruling in the late spring or early summer of 2020.
WHAT ARE SOME RECENT GUN RIGHTS REFORMS?
In recent years, there have been several reforms enacted at the federal level despite political gridlock on a number of issues related to gun rights.
In February 2017, an Obama era rule that required the Social Security Administration to add people classified by the agency as “mentally defective” to the NICS background check database to bar them from buying guns was reversed by Congress & the Trump administration using the Congressional Review Act.
A proposal known as the Fix NICS Act was enacted as part of an omnibus spending package in March 2018 to require state & local governments to improve the reporting of criminal & mental health information to the NICS background check system. It was proposed in response to a shooting in Sutherland Springs, Texas in which the gunman could’ve been barred from buying a gun if relevant records had been properly reported to the NICS database.
Following an active shooting incident at a Las Vegas concert that killed 58 people ― the deadliest act of gun violence in U.S. history ― the Trump administration implemented a regulation prohibiting the use or possession of so-called “bump stocks” that were used by the shooter. Bump stocks are a modification that enables a semi-automatic rifle’s rate of fire to be increased to the degree that it effectively becomes fully automatic.
WHAT ARE SOME RECENT PROPOSALS RELATED TO GUN RIGHTS?
There have been numerous proposals related to gun rights at the federal level which have received votes in committee or on the floor in Congress in recent years:
- September 2017: House Republicans passed the SHARE Act through the Natural Resources Committee, which included the Hearing Protection Act ― which would’ve eased restrictions on the purchase of firearm suppressors (aka silencers) and subjected them to background checks. It didn’t receive a vote on the House floor before the end of the 115th Congress.
- December 2017: House Republicans passed the Concealed Carry Reciprocity Act in a package with the Fix NICS Act along mostly party-lines. In addition to including the Fix NICS Act provisions described above, it would’ve allowed people with concealed carry permits to carry concealed weapons in other states as long as they complied with the laws of the state they were in. It failed to pass the Senate before the end of the 115th Congress.
- February 2019: House Democrats passed the Bipartisan Background Checks Act & the Enhanced Background Checks Act on mostly party-line votes. The former would prohibit gun dealers from completing a sale until a background check is completed (even if it takes more than three days) and also require background checks for private sales and those transacted at gun shows; while the latter would raise the background check wait time from three to 10 days before a sale can be completed. The bills are unlikely to receive votes in the Senate during the 116th Congress.
- April 2019: A bill to reauthorize the Violence Against Women Act passed the House that included provisions to close the so-called “boyfriend loophole” by reporting all domestic violence or stalking incidents to prohibited purchase databases. The bill remains stalled in the Senate as of March 2020.
- September 2019: House Judiciary Committee Democrats passed the Keep Americans Safe Act, which would prohibit magazines capable of carrying more than 10 rounds of ammunition. It hasn’t received a vote on the House floor as of March 2020.
Several other proposals have been introduced in Congress, but haven’t received votes on the floor or in committee, including:
- The Raise the Age Act, which would raise the minimum age to buy semi-automatic rifles from 18 to 21.
- The Assault Weapons Ban Act, which would ban the sale, transfer, production, and importation of all semi-automatic rifles and semi-automatic pistols with magazines that are either detachable or carry more than 10 rounds, and shotguns with a revolving cylinder.
- The Safer Neighborhoods Gun Buyback Program Act, which would establish a $360 million, two-year grant program that would fund state & local initiatives to buyback firearms from owners who want to sell them.
- The FAST NICS Act & the 21st Century NICS Act, both of which would close the so-called “Charleston loophole” by adding information from the National Data Exchange to the NICS background check database.
WHAT DO SUPPORTERS OF GUN RIGHTS SAY?
The Second Amendment protects the right of Americans to possess firearms that are in common use for lawful purposes, including self-defense, hunting, or marksmanship. Most gun control proposals would take firearms out of the hands of law-abiding citizens, leaving them vulnerable & outgunned by criminals who get their guns illegally.
WHAT DO OPPONENTS OF GUN RIGHTS SAY?
The Second Amendment may protect the right to bear arms in some circumstances, but that right subject to limitation just like other constitutional rights. From closing loopholes in the background check system, to banning “assault weapons” ― more needs to be done to prevent gun violence in American communities.
- Congressional Research Service - Federal Firearms Laws
- Congressional Research Service - Background Check Systems
- Congressional Research Service - U.S. Gun Policy Frameworks
- Pew Research - Gun Deaths Data
- USAFacts - Firearm Deaths Data
- Countable - Active Shooting Data
- Countable - Gun Control Act of 1968
- Countable - Brady Bill
— Eric Revell
(Photo Credit: iStock.com / artas)
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