In 1791, the United States Constitution was ratified. The Second Amendment of the 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.” This amendment has since been debated in the courts and legislatures.
Over the years, the U.S. Congress has enacted a variety of legislation for the purpose of regulating the sales and possession of firearms. In 1934, Congress passed the National Firearms Act, which established strict registration requirements and placed a transfer tax on machine guns and short-barreled long guns. Four years later, in 1938, Congress enacted the Federal Firearms Act, which provided for the licensing of all manufacturers and dealers in the interstate commerce of firearms. Criminals were banned from either receiving or sending firearms in interstate or foreign commerce. Stolen firearms and those with obliterated serial numbers were barred from such commerce. In 1968, Congress passed the Gun Control Act, which prohibited mail-order sales and interstate sales of firearms by licensed dealers. This legislation also added convicted felons, persons who had been found mentally incompetent, and drug users to the list of persons banned from possessing firearms. Furthermore, it prohibited transfers of firearms to minors, limited access to “new” assault weapons, and set forth penalties and licensing requirements for manufacturers, importers, and dealers.
In 1996, the Lautenberg Law amended the Gun Control Act of 1968. This legislation expanded the group of persons banned from possessing firearms to include persons who had ever been convicted of a misdemeanor crime of domestic violence, including those whose convictions had occurred prior the 1996 enactment of the Lautenberg Amendment. In effect, the amendment made domestic violence a felony for anyone convicted of this crime. It also added individuals under a domestic restraining order to the class of persons prohibited from owning or possessing a firearm.
In 1994, Congress passed the Brady Handgun Violence Prevention Act. It established a national waiting period of five business days for handgun purchases from a licensed dealer. This bill further required local authorities to conduct background checks on handgun purchasers. In 1997, the U.S. Supreme Court, in Printz v. United States (1997), ruled that the provision compelling state and local law enforcement officials to perform the background checks mandated by federal law was unconstitutional. The Court determined that this provision violated both the concept of federalism and the concept of the unitary executive. Justice Antonin Scalia opined that the Framers designed the Constitution to allow federal regulation of the people, not the federal regulation of the states. The Court also offered an alternative basis for striking down the provision, stating that it violated the constitutional separation of powers by robbing the president of his power to execute the laws; that is, the law contradicted the unitary executive theory. The Court did allow for state and local law enforcement officials to conduct the background checks if they so chose, and many continued to do so under appropriate state law.
Individual states have addressed the issue of citizens carrying concealed weapons, primarily handguns. “Concealed carry” is the legal authorization for private citizens to carry a handgun or other weapons in public in a concealed manner, either on the person or in close proximity to the person. As of February 2008, 48 U.S. states allowed some form of concealed carry. In 39 concealed-carry states, issuing officials may not arbitrarily deny a concealed-carry application, a practice known as “shall issue.” Nine states have “may issue” or “discretionary issue” laws requiring the applicant to demonstrate a specific need for concealed carry. These “may issue” states range from “shall issue” in practice, such as Alabama, Connecticut, and Iowa; to “at the whim of local officials,” such as New York,
Massachusetts, and California (where rural officials more liberally issue permits but urban officials seldom do); to “almost non-issue,” in states such as Maryland and New Jersey; to “never-issue” Hawaii, where, although state law allows for the issuance of permits, officials choose not to issue them under any circumstances. As of July 2008, Wisconsin, Illinois, and Washington, D.C., had no provision for legal concealed-carry.
In 2004, Congress enacted the Law Enforcement Officers Safety Act. This legislation allows the “qualified law enforcement officer” and the “qualified retired law enforcement officer” to carry a concealed firearm in any jurisdiction in the United States. This law is subject to few state or local law exceptions (18 U.S.C.926).
In 2008, the U.S. Supreme Court ruled on a District of Columbia law that banned handgun possession by simultaneously making it a crime to carry an unregistered firearm and prohibiting the registration of handguns. The law further provided that no person could carry an unlicensed handgun, but authorized the police chief to issue a one-year license. In addition, the District law required residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. The Supreme Court held that the District’s ban on handgun possession in the home violated the Second Amendment, as did its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.
In 1990, Congress enacted the Gun Free School Zones Act (18 U.S.C. §, 922). This act made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” In 1995, the Supreme Court ruled on the constitutionality of this legislation. In the United States v. Lopes (1995), the Court held that the Act was an unconstitutional exercise of Congress’s Commerce Clause power.
In 1994, Congress enacted the Gun-Free Schools Act (20 U.S.C.§ 8921). This act required that each state receiving federal funds for its schools pass a state law requiring local schools to expel from school for a period of not less than one year any student who is determined to have brought a weapon to a school.
In 2008, the state of Ohio passed legislation referred to as the Castle Doctrine (SB 184). A provision in this legislation allowed persons to convey firearms on school property if that person (1) is carrying a valid concealed handgun license, (2) is the driver or passenger in the vehicle in the school zone while immediately in the process of picking up or dropping off a child, and (3) is not in violation of the “improperly handling firearms in a motor vehicle” code.
The recent shooting incidents on college campuses have spawned a movement to permit those students, faculty, and staff who are licensed to do so, to carry a concealed firearm on campus. Georgia House Bill 915, also known as the “Second Amendment Protection Act of 2008,” allows permit holders to carry a concealed weapon on college campuses. Colorado State University is one of the few campuses where students are permitted to carry concealed weapons provided they possess a concealed weapon permit. Its policy allows students with a permit to carry their handgun most places on campus, including classrooms but not residence halls. Arizona Senator Karen Johnson sponsored an amendment to Arizona’s concealed carry legislation that would allow persons with valid permits to carry a concealed weapon on college campuses (SB 1214).
Since the ratification of the Constitution of the United States in 1791, the right of an individual to possess a firearm has routinely been addressed by legislative action and judicial ruling. While the Supreme Court ruled in District of Columbia v. Heller that a ban on handgun possession violated the Second Amendment, it left many issues unsettled. Further attempts by the legislature and the judiciary to define the rights of the individual within the guidelines of the Second Amendment will be forthcoming.
- Brady Handgun Violence Prevention Act of 1983, Pub.L. 103-159, 107 Stat. 1536.
- Concealed Weapons, School Grounds, Arizona SB 1214 (2008).
- District ofColumbia v. Heller, 554 U. S. (2008). Federal Firearms Act, ch. 850, 52 Stat. 1259 (1938).
- Georgia HB 915, 08 LC 28 3829 (2008).
- Gun Control Act of 1968, 18 U.S.C. § 924 (c), (1970), amended 1996: http://www.gunlawnews.org/GCA-68.html
- Gun Free School Zone Act of 1990, 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V).
- Gun-Free Schools Act of 1994, 20 U.S.C., ch 70 § 8921 (1994).
- National Firearms Act, ch. 757, 48 Stat, 1236 (1934).
- Ohio SB 184, 127th General Assembly (2008) (enacted).
- Printz v. United States, 521 U.S. 898 (1997).
- Right to carry. (2008). National Rifle Association of America, Institute for Legislative Action.
- United States v. Lopez 514 U.S. 549 (1995).