"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."The subject of much debate (which we will not be contributing to) in many nations, but particularly the the United States of America.
—The 1791 Second Amendment to the United States Constitution
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Short though it is, the Second Amendment may be one of the more contentious elements of the United States Constitution, the reason for this being that societal changes since the American Revolution have caused Americans to wonder what, precisely, the Founding Fathers meant by "a well-regulated militia." In any case, the interpretation of this chunk of their constitution gives an ideological backbone to two causes: individual-armament and militia-armament (or 'pro-gun' and 'anti-gun'), with plenty of other standpoints abounding. The individual-armament lobby emphasises, well, individual armament. The vast majority support individual armament for both protection from and as a deterrent to street-level crime. These people will point to stories and statistics of private citizens who thwarted robberies or other crimes by either shooting their assailant, or simply proving to the assailant that they were armed. They will also argue that not all gun owners use their weapons solely for defense; many use their guns for hunting or target shooting, popular pastimes in many states. There is a minority supporting individual gun rights in case of a second Civil War or some other post-apocalyptic eventuality; however, these people are not often taken seriously by the majority of gun rights supporters. The militia-armament lobby emphasizes, well, the armament of the USA's professional military organizations, while restricting that of citizens. Those in this camp will point to instances where legal firearms were used in murders or suicides, particularly mass-murder. The militia-armament lobby believes that, unlike the rest of the Bill of Rights, the Second Amendment should be interpreted as guaranteeing a collective right and therefore the armament of the USA's various law-enforcement and defense organisations (Police, National Guard, Military) but not private citizens. The concept of a citizen militia dates back to 12th century English common law, and its requirement that royal subjects keep and bear arms for military duty. King Henry II, in the Assize of Arms, obligated all freemen to bear arms for public defense. King Henry III required men between the ages of fifteen and fifty (including non-land owning subjects) to bear arms. The reason was that, in the absence of a regular army and police force, it was the duty of citizen militias to keep watch and ward at night to capture and confront suspicious persons. No matter which side of the debate you lie on, the rights enshrined in the second amendment are sort of the Straw that Broke the Camel's back and started the Revolutionary War. British troops received word that Colonial forces were stockpiling arms and munitions in the towns of Lexington and Concord, and promptly marched out to disarm the colonists. This had already been done in Boston, but the fact that most of the people in the town used such weapons for hunting for food AND militia defense against hostile Native American attacks on the city meant that the British were essentially leaving their own citizens to die in what was still largely wilderness. While there were numerous other reasons to rebel against England and break from her, this was the start of the active shooting war. The seriousness of the amendment and its meaning isn't a recent development in US politics... it was a big factor in why the country exists at all. As of June 26, 2008, the United States Supreme Court found that an individual right to keep and bear arms for self-defense exists within the Second Amendment, in the landmark case District of Columbia v. Heller. About two years later, the Supreme Court ruled in McDonald v. Chicago that the right to bear arms is incorporated against the states, meaning that states (and, by extension, local governments, which were created by the states) cannot ban guns outright. However, Justice Alito's majority opinion clearly leaves leeway for governments to regulate access to firearms in their jurisdiction. This allows them to implement age restrictions and mandatory background checks to limit access they see fit, as well as the power to outright ban certain types or specific models of guns and related accessories.
The Second Amendment has its roots in the American Revolution. At the time, the United States had no standing army, being a colony of Great Britain, and so its soldiers would have to be drawn from the citizenry. While the exact interpretation of the amendment itself remains the subject of much debate, it can be interpreted, at its most basic level, as arising out of the belief that at some point in the future, a militia would be needed, and that the best way to form one would be to ensure that the nation's citizens were familiar with firearms. This was also written with the idea that, should a tyrannical leader occur, the American people would be properly armed to stage a revolution to remove that tyrant. Of course, this was a hell of a lot easier (and harder) back in the 1780s than today. They didn't have guns that can put a bullet in you from miles away, but they also didn't have the current military.
As of the 2012 election, the issue has been more or less split roughly down party lines, with gun rights advocates gravitating toward the Republicans and gun control advocates gravitating toward the Democrats. However, within each party, differences in opinion remain — some Democrats support a nationwide gun ban, while others merely support heavier restrictions on existing weapons; likewise, some Republicans are in favor of stricter gun control laws, while others believe those already in existence should be relaxed. Following mass shootings at San Bernardino, CA; Orlando, FL; and Newtown, CT; more Americans — conservative and liberal, Republican and Democrat — are more likely to support stricter gun regulations. Opinions differ on what these regulations should cover. Suffice it to say, most Americans believe something should be done; however, the law of unintended consequences makes it difficult for them to agree on what.
Many gun-rights advocates argue that gun ownership is useful to the deterrence of street-level crime: a 1994 study by the Department of Justice titled "Guns in America: National Survey on Private Ownership and Use of Firearms" estimated approximately 1.5 million defensive gun uses (that is to say, incidents where the presence of a firearm either successfully defended against crime or deterred a criminal from committing a crime, without the firearm in question having necessarily been used) occur per year. Gun-control groups, however, state that any such effects are outweighed by accidental deaths and greater availability of firearms to criminals. The validity of this study's methodology is also questioned by the gun-control faction, who point out that it obtained its figure of 1.5 million by asking a random sample of Americans if they had used a gun defensively, and then extrapolated the rate of positive responses to cover the whole country. This seems like a fairly robust methodology on practice, but it is subject to error because many respondents may have given incorrect responses, either by alleging they used a gun defensively when they did not, or by alleging that an unlawful incident where firearms were used was lawful. In at least some categories of crime reportable to the FBI, the number of reported defensive gun uses against that crime exceeds the number of times that crime was reported at all.
What Is Legal
Understanding American gun legislation requires some familiarity with the federal structure of American government. Sovereign governmental power in the United States is divided between the federal government (i.e., the national government, based in Washington, D.C.), and the individual states. The federal government makes and enforces laws that apply across the country while the states make and enforce laws that apply only within their own territory (so long as those laws don't conflict with federal law, including in particular the U.S. Constitution). Gun laws exist at both levels. The Heller and McDonald Supreme Court decisions mentioned above established at least that the federal government and the states may not, given the Second Amendment, prohibit the possession of handguns inside the home for self-defense purposes. Whether the Second Amendment might limit either further is a matter of ongoing litigation through the courts that will eventually likely be resolved by future Supreme Court decisions. The following describes categories of weapons generally defined under federal law, and how federal law treats said categories. The same terms may be, and very often are, incorporated by the individual states in their gun legislation. The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE, but commonly referred to as simply the ATF) defines the categories of small arms as follows:
- Rifle: A firearm designed for use with 2 hands, with a rifled bore and either a shoulder stock or a pair of vertical grips. Minimum overall length 26 inches, barrel length 16 inches from muzzle to breech face.
- Short Barreled Rifle: As above, but failing one or both of the length minimums. Legal, with a $200 tax stamp.
- Shotgun: Similar to Rifle, but with a smooth bore and a minimum barrel length of 18 inches.
- Short Barreled Shotgun: Determined and taxed similarly to a Short Barreled Rifle. Sawing off a shotgun is considered "manufacture" of a short-barreled shotgun (which carries essentially identical legal requirements as to possess a short-barreled shotgun).
- Pistol: A weapon intended for use with one hand, with a rifled bore. No length restrictions.
- Other Weapon: A category that does not appear in law, but rather in ATF regulations, consisting solely of weapons that would otherwise qualify as "shotguns" (not short-barreled), but were designed with only a single pistol grip. The ATF ruled in 2010 that such weapons were not "firearms" as defined by the National Firearms Act of 1934, though they were "firearms" under the Gun Control Act of 1968.
- Any Other Weapon: A firearm that does not fall into an above category. Not to be confused with "Other Weapon" above. The most common examples of this category are smoothbore pistols. Though it costs $200 for the initial tax stamp, it costs only $5 to transfer the weapon.
- Machine Gun: Any weapon that fires more than one bullet at a time, regardless of what other categories it falls into, or whether or not it fits the actual definition of "machine gun." This includes fully automatic (constant fire), burst (firing a mechanically regulated set number of rounds) and selective (possessing 2 or more user selected firing modes). Originally phrased as one bullet "per trigger pull", but was changed after people started making fully-automatic weapons with no triggers. Does not include crank powered weapons such as the Gatling Gun. Technically legal, and cost $200 to transfer, but only for machine guns built or imported prior to 1986, and the ATF will often at least try to prosecute you for owning one regardless of its legality anyway.
- Destructive Device: A rifled bore weapon greater than .50 caliber in bore, explosive devices, and any weapon repurposed to launch an explosive device. Includes anti-tank weapons. Does not include flare guns unless you either acquire or make a grenade that will fit it, in which case both will be considered a Destructive Device when the charges are filed. The ATF has a "sporting use" exception that takes some large-caliber rifles out of this category, mostly those designed and used for hunting of large and dangerous game (typically African).
- Silencer: Any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for the use in assembling or fabricating a firearm silencer or firearm muffler, any part intended only for use in such assembly or fabrication. $200 tax stamp.
Who Can Legally Own or Buy Guns
Generally, convicted felons, fugitives, persons "adjudicated as mentally defective" (meaning a court has ordered them committed to a mental hospital or found them not guilty of a crime by reason of insanity), convicted domestic abusers, drug addicts, illegal aliens, persons dishonorably discharged from the military, and persons subject to a restraining order from harassing, threatening, or stalking an intimate partner or their child are prohibited by federal law from possessing any type of firearm. Certain states impose some additional prohibitions that generally mirror these, but might have some minor differences (e.g., prohibiting persons convicted of "serious or violent offenses," or those held for mental health treatment but not adjudicated by a court), with different legal requirements for how such findings are made or challenged. Given that the right to keep and bear arms is a recognized Constitutional right under the Second Amendment, depriving an individual of that right requires some degree of due process, whereby the individual has notice of the potential deprivation and opportunity to challenge the case against them in front of a fair tribunal, such as in court. This generally means that the categories of people legally barred from possessing a firearm have either already "had their day in court" (such as a criminal trial or hearing on a restraining order petition), or would have to be allowed it if they never got it and asked for it. This raises some potential issues of Constitutional law in the wake of calls to prohibit persons on the various post-9/11 "terrorist watchlists" or "no-fly" lists from purchasing guns, in that those are secret lists maintained by law enforcement or intelligence agencies, often on the basis of classified information that may not have been obtained with warrants under the Fourth Amendment, and would have to be presented in court (and made available to potential terrorist suspects) if such an individual were to challenge the prohibition. The Obama Administration raised some controversy by submitting individuals to the background check system who were identified in Social Security and Veterans Administration databases as having conservators appointed to handle their benefits, in that it was unclear whether those people had ever been "adjudicated as mentally defective," and that it may have amounted to deprivation of a Constitutional right by administrative fiat. Most firearm sales in the United States are required to go through a background check. The 1993 Brady Handgun Violence Prevention Act (the so-called "Brady Bill") required all firearms purchases conducted by all gun dealers holding a Federal Firearms License (FFL, required to engage in the business of dealing guns in interstate commerce) to undergo a background check. In most cases, since 1998, these background checks have been conducted through the FBI's National Instant Criminal Background Check System (NICS), though individual states are permitted by law to conduct their own background checks instead through their own state or local law enforcement agencies (which have access to the FBI's system as well as their own databases). NICS runs the name, date of birth, address, and other identifying information (such as Social Security number) of a potential purchaser through an FBI computer system that cross-references that information against known felons, fugitives, the mentally ill, or other individuals prohibited by law from possessing guns. The NICS system either approves the purchase, denies it (if a "hit" occurs on prohibiting information), or "delays" it if further investigation by the FBI is needed, in which case the FBI has up to three business days to investigate further and issue an approval or a denial. If the FBI doesn't follow up within the three business days, the dealer may complete the sale after three business days, but is not required to, and many won't. If a gun is transferred this way and the background check later comes back denied, the case gets sent to BATFE to get a warrant and take the gun back. There is regular political controversy over the so-called "gun-show loophole," through which guns supposedly regularly evade background checks at gun shows. This particular loophole is more accurately called the "private-party loophole," and it ultimately arises out of potential limitations on Congress' authority imposed by the Constitution. The federal background check law applies only to holders of Federal Firearms Licenses (FFLs), which are required by federal law to be kept by persons who regularly "engage in the business" of buying or selling firearms in interstate commerce.note Both the legal requirement to have an FFL and the subsidiary requirement to conduct background checks on sales are only authorized, like almost all federal legislation, from Congress' explicit Constitutional authority to regulate interstate commerce.note Congress did not take the additional step of trying to impose a nationwide background check requirement on all firearms transfers, even if they occurred purely between residents of the same state (and thus, occurring only in 'intrastate', rather than 'interstate' commerce). Congress could try to do so, but it would be sure to set up a Commerce Clause challenge in the federal courts, and it is unclear how the Supreme Court would rule on the question. Regardless, some states already require every firearms transfer, even if it is between private parties, to undergo a background check and/or be processed through a licensed dealer, and gun shows often require the same as a matter of policy, and provide an FFL dealer onsite to process background check transactions throughout the show. One of the more contentious areas in the digital age arises from online and gun show sales, due to concerns over how weapons sold in such a way could be obtained by criminals, due to not requiring a background checknote A few investigative reports have shown that existing standards are sometimes not enforced, as vendors sometimes take a buyer at their word rather than double-checking the license, or sell a gun to someone that doesn't live within the same state via online trading. In a few cases, this Loophole Abuse allowed those that were legally barred from gun ownership to get one from an unlicensed vendor, with one investigation done by the City of New York finding that 77 out of 125 vendors would sell to those who probably couldn't pass a background check. Online retailers, meanwhile, conduct the sale and transaction online but, contrary to the popular and oft-repeated misconception, they do not ship firearms directly to an unlicensed individual's doorstep (those who continue to make claims to the contrary are encouraged to find and name a commercial website that will). Direct, mail-order gun sales are not only illegal, but they have been since 1968, with the passage of the Gun Control Act. The firearm may only be delivered to a Federal Firearms License holder —most commonly a brick & mortar gun dealer— who then must conduct a proper background check before the gun can be transferred to the buyer. The same laws apply to private sellers on auction sites such as GunBroker, where the seller (who must be a non-prohibited person) does not require an FFL to ship a firearm, but the recipient must still be an authorized FFL holder to take delivery. Online classified services, meanwhile, are not restricted by law in most states, but frequently have internal policies that prohibit listings for firearms to shield themselves from criminal and civil liability (Craigslist, for example, forbids any ads for guns, gun parts or ammunition). Note that the weapon's completed receiver (the frame that all other parts of the gun attach to) is the only portion legally defined as a "firearm," so one existing loophole of a sort for online sales is to purchase a partially-milled receiver (which doesn't require an FFL to ship because it's wholly inoperable in that state), finish the machining work to make it functional, and assemble a complete weapon from aftermarket or original parts. However, the relatively high expense and technical know-how needed for this workaround keeps it from being an especially tempting choice to all but the most organized criminal elements— who often have the influence and funds to smuggle in illegal weaponry from corrupt officials, or even manufacture their own supply.
Right to Carry
All states have concealed-carry laws, allowing a person to carry a weapon in a concealed holster with a permit, at least on the books. The ease of obtaining these permits varies widely. The different legal carry regimes generally break down as follows:
- "Constitutional carry" (unpermitted carry): No permit required. Anyone who is legally entitled to possess a firearm may carry it. Some states allow this only for their own residents, most allow it for non-residents as well. Twelve states as of April 2017 use this system: Alaska, Arizona, Idaho (state residents only), Kansas, Maine, Mississippi, Missouri, New Hampshire, North Dakota (state residents only, concealed only), Vermont, West Virginia, and Wyoming (state residents only). These states (except Vermont) nonetheless still issue permits on a shall-issue basis, which have benefits (can carry in more places, expedites the purchase process, and allows for carry in some other states (reciprocity)).
- "Shall-issue": This is the majority rule, followed by 40 states (including the "Constitutional carry" states that issue permits) plus Guam. Permits are issued as a matter of right to anyone who is legally permitted to possess a firearm and fulfills the administrative requirements to get one, and the authorities do not have discretion to deny issuance of a permit. Some states will issue permits to non-residents, some will not, and some are shall-issue to residents but may-issue to non-residents.note The administrative requirements vary widely by state, but include an application, background check, fingerprinting, payment of fees, and usually some documentation of approved firearms training, whether written or practical.note Some states will issue through the mail to anyone, including non-residents, who sends in an application, fingerprint card, and a check and who passes the background check, others require an in-person application.
- "May-issue": The minority rule, officially followed by nine states (California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New York,note New Jersey, and Rhode Island), the District of Columbia, and also Puerto Rico, the U.S. Virgin Islands, and on US military installations and Native American reservations. Permits are only granted at the discretion of the authorities, and often many legal and procedural hurdles have to be jumped over to acquire a permit, often determined by the local authorities.note
- The "May-Issue" policy is currently the subject of an ongoing court battle.
- No-issue: No permits are issued to carry at all. In theory, this is only the rule in the territories of American Samoa and the Northern Marianas Islands. In reality, this is the de facto rule in the majority of the "may-issue" states and territories listed above for most of the public: permits are only available, if at all, to people with the right political connections.
- In California, how difficult it is to get a permit depends on which city or county you live in, as they are issued at the discretion of politically-appointed municipal police chiefs or county sheriffs in unincorporated areas. In the Los Angeles area or the Bay Area, where most of the state's population lives, unless you are rich, powerful, or know the right people, a concealed carry permit is out of the question. note However, certain other counties, such as Sacramento County, are very nearly "shall-issue" in practice, due to tolerant local sheriffs.
- The "May-Issue" policy is the subject of an ongoing court battle.
- LEOSA: Technically not a state policy, LEOSA (the Law Enforcement Officers Safety Act) is a federal law originally passed in 2004 that entitles any currently serving or retired (after ten or more years of service and keeping current with an approved shooting qualification certification in the past year) law enforcement officer, whether federal, state, local, or military, to carry concealed anywhere in the United States, even off-duty and on their own time, with very few exceptions. This essentially bypasses almost all state and local limitations on carrying, including local magazine and ammunition restrictions.
National Rifle Association (NRA) and Other Gun Rights Advocates The main gun lobby is the National Rifle Association's Institute For Legislative Action. Not only do they spend large amounts of money supporting politicians and lobbying, but the NRA itself provides legal support, firearms safety training, and sponsors marksmanship tournaments throughout the United States. In some instances, NRA-certified instructors have an official status in gun training and hunting; most states that license the carrying of concealed weapons specifically recognize NRA instructors by statute. While they officially state their primary purpose is to support game hunters, target shooters, gun collectors, and the defense of lawful citizens from crime, they tend to take a hard line against gun control measures, most notably starting after the "Revolution in Cincinnati" in 1977. In the past, the NRA have resisted attempts to ban machine guns, assault weapons, and armor-piercing ammunition. Their resistance to background checks and licensing for gun owners has also attracted some controversy, as well as the sources of their funding having ties to gun manufacturers themselves. At an earlier point in its history the NRA supported the current background check system, the NICS, and seldom lobbied against legislation to increase penalties for preexisting crimes. Through the 2000s they have been criticized for being increasingly partisan, reactionary and unwilling to compromise, following the trend of increasing political polarization in the US in general. Actor Charlton Heston was probably their most famous public figure, he was the president of the association from 1998 to 2003. They often also draw a lot of heat for pretty controversial means of advertising their agenda, like rewriting classic fairy tales where the good guys triumph ia the use of firearms. While the NRA is the predominate supporter of lawful gun usage, it's not the only one in the United States. Other noteworthy groups include the Pink Pistols, who focus on self-defense for LGBT individuals, the Jews for the Preservation of Firearms Ownership, and the Gun Owners of America; the latter two tend to be more absolutist on the matter of gun control than the NRA. The Second Amendment Foundation and Law Enforcement Alliance of America are generally, although not always, considered more moderate supporters of gun owners' rights. Joyce Foundation and Other Gun Control Advocates American gun control advocates do not really have a single unified public face like the NRA does. The Brady Campaign to Prevent Gun Violence was particularly powerful during the early-mid '90s, but now is primarily a force inside major cities, while the Violence Policy Center and American Hunters and Shooters Association tend to have stronger showings in more suburban or rural areas. General points of focus are the ban of assault weapons, handguns, and some types of ammunition, in addition to raising taxes on guns and ammunition, requiring longer waiting periods or police permission for gun ownership, and limiting sales of firearms. The most general and noteworthy group would be the Joyce Foundation; it does not lobby personally, but is a major source of funding for a lot of different gun control advocates, ranging from groups as small as blogs to as large as the Violence Policy Center. Gun control advocates have garnered criticism— beyond questions of constitutionality, critics often bring up the fact that anyone already willing to commit murder (one of if not the most severe class A felony on the books and with a max sentence of life imprisonment or death) is hardly likely to be deterred by a charge of unlawful firearms possession (a class C felony with a max sentence of 10 years), claim that the gun laws advocated by these groups punish the innocent without blocking the criminally inclined, and that the facts and terms used by gun control advocates are misleading at best and more likely entirely false. In short, "If you outlaw guns, only outlaws will have guns". These critics also point out that, unlike Australia note , America is not sealocked; therefore, if a nationwide gun ban were implemented, those willing to break the law could obtain their guns illegally from Mexico. Another criticism of gun control advocates is that many of the most vocal critics of the 2nd Amendment and strident supporters for strict gun control are wealthy businessmen, politicians, and celebrities...who never go anywhere without armed bodyguards.