Firearm Owners Protection Act
Encyclopedia
The Firearm Owners' Protection Act (FOPA), , codified at et seq., is a United States federal law that revised many statutes in the Gun Control Act of 1968
.
(FFL) holders. Allegations of abuse by ATF inspectors soon arose from the National Rifle Association
(NRA) and certain targeted Federal firearms licensees.
In the Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress
, Second Session (February 1982), a bipartisan
subcommittee (consisting of 3 Republicans and 2 Democrats) of the United States Senate
investigated the Second Amendment and reported its findings. The report stated:
It concluded that seventy-five percent of Bureau of Alcohol, Tobacco, Firearms and Explosives
prosecutions were "constitutionally improper", especially on Second Amendment issues.
The Firearm Owners Protection Act of 1986 addressed the abuses noted in the 1982 Senate Judiciary Subcommittee report. It reopened interstate sales of long guns on a limited basis, allowed ammunition shipments through the U.S. Postal Service (a partial repeal of the Gun Control Act), ended record keeping on ammunition sales, except for armor piercing, permitted travel between states supportive of Second Amendment rights even through those areas less supportive of these rights, and addressed several other issues that had effectively restricted Second Amendment rights. However, the act also contained a provision that banned the sale of machine guns manufactured after the date of enactment to civilians, restricting sales of these weapons to the military and law enforcement. Thus, in the ensuing years, the limited supply of these arms available to civilians has caused an enormous increase in their price, with most costing in excess of $10,000. Regarding these fully automatic firearms owned by private citizens in the United States, political scientist Earl Kruschke said "approximately 175,000 automatic firearms have been licensed by the Bureau of Alcohol, Tobacco, and Firearms (the federal agency responsible for administration of the law) and evidence suggests that none of these weapons has ever been used to commit a violent crime."
The gun rights movement lobbied Congress to pass the FOPA to prevent the abuse of regulatory power — in particular, to address claims that the ATF was repeatedly inspecting FFL holders for the apparent purpose of harassment intended to drive the FFL holders out of business (as the FFL holders would constantly be having to tend to ATF inspections instead of to customers).
The Act mandated that ATF compliance inspections can be done only once per year. An exception to the "once per year" rule exists if multiple record-keeping violations are recorded in an inspection, in which case the ATF may do a follow-up inspection. The main reason for a follow-up inspection would be if guns could not be accounted for.
(D-N.J.) proposed several amendments including House Amendment 777 to H.R. 4332 that would ban a civilian from ownership or transfer rights of any fully automatic weapon which was not registered as of May 19, 1986. The amendment also held that any such weapon manufactured and registered before the May 19 cutoff date could still be legally owned and transferred by civilians.
In the morning hours of April 10, 1986, the House held recorded votes on three amendments to FOPA in Record Vote No's 72, 73, and 74. Recorded Vote 72 was on H.AMDT. 776, an amendment to H.AMDT 770 involving the interstate sale of handguns; while Recorded Vote 74 was on H.AMDT 770, involving primarily the easing of interstate sales and the safe passage provision. Recorded Vote 74 was the controversial Hughes Amendment that called for the banning of machine guns. Rep. Charles Rangel (D-N.Y.), at the time presiding as Chairman over the proceedings, claimed that the "amendment in the nature of a substitute, as amended, was agreed to." However, after the voice vote on the Hughes Amendment, Rep. Charles Rangel (D-N.Y.) ignored a plea to take a recorded vote and moved on to Recorded Vote 74 where the Hughes Amendment failed. The bill, H.R. 4332, as a whole passed in Record Vote No: 75 on a motion to recommit. Despite the controversial amendment, the Senate, in S.B. 49, adopted H.R. 4332 as an amendment to the final bill. The bill was subsequently passed and signed on May 19, 1986 by President Ronald Reagan
to become Public Law 99-308, the Firearms Owners' Protection Act.
) and the firearms and ammunition are not immediately accessible, unloaded and, in the case of a vehicle without a compartment separate from the driver’s compartment, in a locked container.
An example of this would be that someone driving from Virginia
to a competition in Vermont
with a locked hard case containing an unloaded handgun
and a box of ammunition
in the trunk could not be prosecuted in New Jersey
or New York City
for illegal possession of a handgun provided that they did not stop in New Jersey or New York for an extended period of time.
firearms to their owners, the specific language of this law ( Federal Law 18 U.S.C. 926 (2) (a)) being:
Nevertheless, the ATF Firearms Tracing System (FTS) contains hundreds of millions of firearm tracing and registration records, and consists of several databases:
of 1993 created a national background check system to prevent firearms sales to prohibited persons. In order to comply with the prohibition on a Federal registry of non-NFA items, background check records are legally required to be destroyed after 24 hours, however the Bureau of Alcohol, Tobacco, Firearms and Explosives
has consistently kept computer records for longer, citing "demographic and census reasons."
prohibits firearm
s ownership in the US by certain broad categories of individuals thought to pose a threat to public safety
. However, this list differed between the US House of Representatives and the US Senate versions of the bill, and led to great confusion. This list was later augmented, modified, and clarified in the Firearm Owners Protection Act of 1986. The 1986 list is:
These provisions are stated in the form of questions on Federal Form 4473.
In 1999, a U.S. District Court judge ruled that the Lautenberg Amendment, 18 U.S.C. § 922(g)(8), violated the Second and Fifth Amendments to the United States Constitution, and was therefore unconstitutional, in United States of America v. Timothy Joe Emerson, U.S. District Court for the Northern District of Texas, San Angelo Division, 46 F. Supp. 2d 598, April 7, 1999.
This case was subsequently reversed by the Fifth Circuit Court of Appeals
two years later; see U.S. v. Emerson
, 270 F.3d 203 (5th Cir. 2001). The Supreme Court did not grant certiorari
, a necessary first step for further examination by the Supreme Court, hence the 5th Circuit Court of Appeals ruling that overturned the domestic violence ban stands, but is only binding on federal courts in Louisiana
, Mississippi
, and Texas
.
Gun Control Act of 1968
The Gun Control Act of 1968 , by president Lyndon Johnson, is a federal law in the United States that broadly regulates the firearms industry and firearms owners...
.
Federal Firearms License regulatory reform
Under the Gun Control Act of 1968, the Bureau of Alcohol, Tobacco and Firearms, now the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) was given wide latitude on the enforcement of regulations pertaining to Federal Firearms LicenseFederal Firearms License
A Federal Firearms License is a license that enables an individual or a company to engage in a business pertaining to the manufacture of firearms and ammunition or the interstate and intrastate sale of firearms...
(FFL) holders. Allegations of abuse by ATF inspectors soon arose from the National Rifle Association
National Rifle Association
The National Rifle Association of America is an American non-profit 501 civil rights organization which advocates for the protection of the Second Amendment of the United States Bill of Rights and the promotion of firearm ownership rights as well as marksmanship, firearm safety, and the protection...
(NRA) and certain targeted Federal firearms licensees.
In the Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress
97th United States Congress
The Ninety-seventh United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, DC from January 3, 1981 to January 3, 1983, during the final weeks of...
, Second Session (February 1982), a bipartisan
Bipartisanship
Bipartisanship is a political situation, usually in the context of a two-party system such as the United States, in which opposing political parties find common ground through compromise. The adjective bipartisan can refer to any bill, act, resolution, or other political act in which both of the...
subcommittee (consisting of 3 Republicans and 2 Democrats) of the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
investigated the Second Amendment and reported its findings. The report stated:
It concluded that seventy-five percent of Bureau of Alcohol, Tobacco, Firearms and Explosives
Bureau of Alcohol, Tobacco, Firearms and Explosives
The Bureau of Alcohol, Tobacco, Firearms and Explosives is a federal law enforcement organization within the United States Department of Justice...
prosecutions were "constitutionally improper", especially on Second Amendment issues.
The Firearm Owners Protection Act of 1986 addressed the abuses noted in the 1982 Senate Judiciary Subcommittee report. It reopened interstate sales of long guns on a limited basis, allowed ammunition shipments through the U.S. Postal Service (a partial repeal of the Gun Control Act), ended record keeping on ammunition sales, except for armor piercing, permitted travel between states supportive of Second Amendment rights even through those areas less supportive of these rights, and addressed several other issues that had effectively restricted Second Amendment rights. However, the act also contained a provision that banned the sale of machine guns manufactured after the date of enactment to civilians, restricting sales of these weapons to the military and law enforcement. Thus, in the ensuing years, the limited supply of these arms available to civilians has caused an enormous increase in their price, with most costing in excess of $10,000. Regarding these fully automatic firearms owned by private citizens in the United States, political scientist Earl Kruschke said "approximately 175,000 automatic firearms have been licensed by the Bureau of Alcohol, Tobacco, and Firearms (the federal agency responsible for administration of the law) and evidence suggests that none of these weapons has ever been used to commit a violent crime."
The gun rights movement lobbied Congress to pass the FOPA to prevent the abuse of regulatory power — in particular, to address claims that the ATF was repeatedly inspecting FFL holders for the apparent purpose of harassment intended to drive the FFL holders out of business (as the FFL holders would constantly be having to tend to ATF inspections instead of to customers).
The Act mandated that ATF compliance inspections can be done only once per year. An exception to the "once per year" rule exists if multiple record-keeping violations are recorded in an inspection, in which case the ATF may do a follow-up inspection. The main reason for a follow-up inspection would be if guns could not be accounted for.
Machine Gun Ban: The Hughes Amendment
As debate for FOPA was in its final stages in the House before moving on to the Senate, Rep. William J. HughesWilliam J. Hughes
William John "Bill" Hughes served as a Democratic Member of the U.S. House of Representatives from 1975 to 1995, representing New Jersey’s Second Congressional District which includes major portions of the Jersey Shore and Pine Barrens, the cities of Vineland and Atlantic City, and the counties...
(D-N.J.) proposed several amendments including House Amendment 777 to H.R. 4332 that would ban a civilian from ownership or transfer rights of any fully automatic weapon which was not registered as of May 19, 1986. The amendment also held that any such weapon manufactured and registered before the May 19 cutoff date could still be legally owned and transferred by civilians.
In the morning hours of April 10, 1986, the House held recorded votes on three amendments to FOPA in Record Vote No's 72, 73, and 74. Recorded Vote 72 was on H.AMDT. 776, an amendment to H.AMDT 770 involving the interstate sale of handguns; while Recorded Vote 74 was on H.AMDT 770, involving primarily the easing of interstate sales and the safe passage provision. Recorded Vote 74 was the controversial Hughes Amendment that called for the banning of machine guns. Rep. Charles Rangel (D-N.Y.), at the time presiding as Chairman over the proceedings, claimed that the "amendment in the nature of a substitute, as amended, was agreed to." However, after the voice vote on the Hughes Amendment, Rep. Charles Rangel (D-N.Y.) ignored a plea to take a recorded vote and moved on to Recorded Vote 74 where the Hughes Amendment failed. The bill, H.R. 4332, as a whole passed in Record Vote No: 75 on a motion to recommit. Despite the controversial amendment, the Senate, in S.B. 49, adopted H.R. 4332 as an amendment to the final bill. The bill was subsequently passed and signed on May 19, 1986 by President Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
to become Public Law 99-308, the Firearms Owners' Protection Act.
"Safe Passage" provision
One of the law's provisions was that persons traveling from one place to another cannot be incarcerated for a firearms offense in a state that has strict gun control laws if the traveler is just passing through (short stops for food and gasGasoline
Gasoline , or petrol , is a toxic, translucent, petroleum-derived liquid that is primarily used as a fuel in internal combustion engines. It consists mostly of organic compounds obtained by the fractional distillation of petroleum, enhanced with a variety of additives. Some gasolines also contain...
) and the firearms and ammunition are not immediately accessible, unloaded and, in the case of a vehicle without a compartment separate from the driver’s compartment, in a locked container.
An example of this would be that someone driving from Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
to a competition in Vermont
Vermont
Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...
with a locked hard case containing an unloaded handgun
Handgun
A handgun is a firearm designed to be held and operated by one hand. This characteristic differentiates handguns as a general class of firearms from long guns such as rifles and shotguns ....
and a box of ammunition
Ammunition
Ammunition is a generic term derived from the French language la munition which embraced all material used for war , but which in time came to refer specifically to gunpowder and artillery. The collective term for all types of ammunition is munitions...
in the trunk could not be prosecuted in New Jersey
New Jersey
New Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...
or New York City
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...
for illegal possession of a handgun provided that they did not stop in New Jersey or New York for an extended period of time.
Registry prohibition
The act also forbade the U.S. Government or any agency of it from keeping a registry directly linking non-National Firearms ActNational Firearms Act
The National Firearms Act , 73rd Congress, Sess. 2, ch. 757, , enacted on June 26, 1934, currently codified as amended as , is an Act of Congress that, in general, imposes a statutory excise tax on the manufacture and transfer of certain firearms and mandates the registration of those firearms. The...
firearms to their owners, the specific language of this law ( Federal Law 18 U.S.C. 926 (2) (a)) being:
- No such rule or regulation prescribed after the date of the enactment of the Firearms Owners Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or disposition be established. Nothing in this section expands or restricts the Secretary's authority to inquire into the disposition of any firearm in the course of a criminal investigation.
Nevertheless, the ATF Firearms Tracing System (FTS) contains hundreds of millions of firearm tracing and registration records, and consists of several databases:
- 1. Multiple Sale Reports. Over 460,000 (2003) Multiple Sales reports (ATF F 3310.4 - a registration record with specific firearms and owner name and address - increasing by about 140,000 per year). Reported as 4.2 million records in 2010.
- 2. Suspect Guns. All guns "suspected" of being used for criminal purposes but not recovered by law enforcement. This database includes (ATF's own examples), individuals purchasing large quantities of firearms (including collectors of older firearms rarely used in crime), and dealers with "improper" record keeping. May include guns “observed” by law enforcement in an estate, or at a gun show, or elsewhere. Reported as 34,807 in 2010.
- 3. Traced Guns. Over 4 million detail records from all traces since inception.This is a registration record which includes Name and Address, height, weight, date of birth, place of birth, drivers license number and Social Security numberSocial Security numberIn the United States, a Social Security number is a nine-digit number issued to U.S. citizens, permanent residents, and temporary residents under section 205 of the Social Security Act, codified as . The number is issued to an individual by the Social Security Administration, an independent...
of the first retail purchaser, along with the identity of the selling dealer.
- 4. Out of Business Records. Data is manually collected from paper Out-of-Business records (or input from computer records) and entered into the trace system by ATF. These are registration records which include name and address, make, model, serial and caliber of the firearm(s), as well as data from the 4473 form - in digital or image format. In March, 2010, ATF reported receiving several hundred million records since 1968.
- 5. Theft Guns. Firearms reported as stolen to ATF. Contained 330,000 records in 2010. Contains only thefts from licensed dealers and interstate carriers (optional). Does not have an interface to the FBI's National Crime Information CenterNational Crime Information CenterThe National Crime Information Center is the United States' central database for tracking crime-related information. Since 1967, the NCIC has been maintained by the Federal Bureau of Investigation's Criminal Justice Information Services Division, and is interlinked with similar systems that each...
(NCIC) theft data base, where the majority of stolen, lost and missing firearms are reported.
National Background Check
The Brady Handgun Violence Prevention ActBrady Handgun Violence Prevention Act
The Brady Handgun Violence Prevention Act is an Act of the United States Congress that, for the first time, instituted federal background checks on firearm purchasers in the United States....
of 1993 created a national background check system to prevent firearms sales to prohibited persons. In order to comply with the prohibition on a Federal registry of non-NFA items, background check records are legally required to be destroyed after 24 hours, however the Bureau of Alcohol, Tobacco, Firearms and Explosives
Bureau of Alcohol, Tobacco, Firearms and Explosives
The Bureau of Alcohol, Tobacco, Firearms and Explosives is a federal law enforcement organization within the United States Department of Justice...
has consistently kept computer records for longer, citing "demographic and census reasons."
Clarification of prohibited persons
The older Gun Control Act of 1968Gun Control Act of 1968
The Gun Control Act of 1968 , by president Lyndon Johnson, is a federal law in the United States that broadly regulates the firearms industry and firearms owners...
prohibits firearm
Firearm
A firearm is a weapon that launches one, or many, projectile at high velocity through confined burning of a propellant. This subsonic burning process is technically known as deflagration, as opposed to supersonic combustion known as a detonation. In older firearms, the propellant was typically...
s ownership in the US by certain broad categories of individuals thought to pose a threat to public safety
Public Safety
Public safety involves the prevention of and protection from events that could endanger the safety of the general public from significant danger, injury/harm, or damage, such as crimes or disasters .-See also:* By nation...
. However, this list differed between the US House of Representatives and the US Senate versions of the bill, and led to great confusion. This list was later augmented, modified, and clarified in the Firearm Owners Protection Act of 1986. The 1986 list is:
- Anyone who has been convicted in any court of, a felony punishable by imprisonment for a term exceeding one year, excluding those crimes punishable by imprisonment related to the regulation of business practices.
- Anyone who is a fugitive from justice.
- Anyone who is an unlawful user of or addicted to any controlled substances.
- Anyone who has been adjudicated as a mental defective or has been involuntarily committed to a mental institution.
- Any alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa. The exception is if the nonimmigrant is in possession of a valid hunting license issued by a US state.
- Anyone who has been dischargedMilitary dischargeA military discharge is given when a member of the armed forces is released from their obligation to serve.-United States:Discharge or separation should not be confused with retirement; career U.S...
from the Armed Forces under dishonorable conditions. - Anyone who, having been a citizen of the United States, has renounced his or her citizenship.
- Anyone that is subject to a court orderRestraining orderA restraining order or order of protection is a form of legal injunction that requires a party to do, or to refrain from doing, certain acts. A party that refuses to comply with an order faces criminal or civil penalties and may have to pay damages or accept sanctions...
that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner. (Added in 1996, with the LautenbergFrank LautenbergFrank Raleigh Lautenberg is the senior United States Senator from New Jersey and a member of the Democratic Party. Previously, he was the Chairman and Chief Executive Officer of Automatic Data Processing, Inc.-Early life, career, and family:...
AmendmentDomestic Violence Offender Gun BanThe Domestic Violence Offender Gun Ban is an amendment to the Omnibus Consolidated Appropriations Act of 1997 enacted by the 104th United States Congress in 1996...
.) - Anyone who has been convicted of a misdemeanor crime of domestic violenceDomestic violenceDomestic violence, also known as domestic abuse, spousal abuse, battering, family violence, and intimate partner violence , is broadly defined as a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, or cohabitation...
. (Added in 1996, with the LautenbergFrank LautenbergFrank Raleigh Lautenberg is the senior United States Senator from New Jersey and a member of the Democratic Party. Previously, he was the Chairman and Chief Executive Officer of Automatic Data Processing, Inc.-Early life, career, and family:...
Amendment) - A person who is under indictment or information for a crime (misdemeanor) punishable by imprisonment for a term exceeding two years cannot lawfully receive a firearm. Such person may continue to lawfully possess firearms obtained prior to the indictment or information, and if cleared or acquitted can receive firearms without restriction.
These provisions are stated in the form of questions on Federal Form 4473.
In 1999, a U.S. District Court judge ruled that the Lautenberg Amendment, 18 U.S.C. § 922(g)(8), violated the Second and Fifth Amendments to the United States Constitution, and was therefore unconstitutional, in United States of America v. Timothy Joe Emerson, U.S. District Court for the Northern District of Texas, San Angelo Division, 46 F. Supp. 2d 598, April 7, 1999.
This case was subsequently reversed by the Fifth Circuit Court of Appeals
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
two years later; see U.S. v. Emerson
United States v. Emerson
United States v. Emerson, 270 F.3d 203 , is a decision by the United States Court of Appeals for the Fifth Circuit holding that the Second Amendment to the United States Constitution guarantees individuals the right to bear arms...
, 270 F.3d 203 (5th Cir. 2001). The Supreme Court did not grant certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
, a necessary first step for further examination by the Supreme Court, hence the 5th Circuit Court of Appeals ruling that overturned the domestic violence ban stands, but is only binding on federal courts in Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, Mississippi
Mississippi
Mississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...
, and Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
.
See also
- Gun law in the United StatesGun law in the United StatesGun law in the United States is defined by a number of state and federal statutes. In the United States of America, the protection against infringement of the right to keep and bear arms is addressed in the Second Amendment to the United States Constitution...
- List of United States firearms topics
- ATF Online
- State legality of machine guns
- ATF Regulations (Search ATF Regulations)
- ATF Regulations regarding prohibited persons
- Video of controversial House vote