Federal Law Summary

The power of government to enact laws in the interests of the public health, safety and welfare of the people is called the “police power.”  The police power is at the core of local and state authority to regulate firearms and firearms dealers.  However, under our federal system,  Congress has only those powers delegated to it in the United States Constitution.  Except with respect to the District of Columbia and the federal territories, the police power is not one of the powers delegated to Congress.  The principal powers available to Congress to regulate firearms are the “commerce power,” arising from the Commerce Clause, and the “taxing power,” arising from the Taxing and Spending Clause.

A regulation based on the exercise of the taxing power must be consistent with that power.  The first federal regulation of firearms, the National Firearms Act (“NFA”), was enacted as part of the Internal Revenue Code in 1934.  The NFA levied taxes on the manufacture, sale and transfer of certain classes of firearms and enacted  regulatory provisions related to the collection of those taxes.  Similarly, a federal regulation based on the exercise of the commerce power must be consistent with the limits on that power.  In general, Congress may exercise its commerce power to regulate channels of interstate commerce (i.e., commerce across state lines), the objects moving in interstate commerce and activities which have a substantial relation to interstate commerce.  Many of the more recent federal firearms regulations have been enacted through the commerce power.

While congressional authority to regulate firearms is constrained by the nature of the powers delegated to it, the police power of state governments is broad and flexible.  As a general rule, once a state legislature identifies a public health or safety problem and enacts a law to address that problem, the courts will presume that law to be valid, and will overturn it only if it is unreasonable, clearly arbitrary, or has no foundation in the police power.  Under most state constitutions, local governments are also vested with police power.  Thus, in most states the police power of local government will be as broad as that of the state in which it is located, unless the state legislature has enacted a law taking away (“preempting”) the power of local governments to regulate a given subject.  (To learn more about preemption and the distribution of power in a specific state, find the state you are interested in on the state and local laws map, click on the state, and go to "state preemption.")

In some circumstances a state or local government’s power to regulate a given subject may be taken away (“preempted”) by the federal government.  The concept of “federal preemption” derives from the U.S. Constitution’s Supremacy Clause.  However, the general rule is that a state law is not preempted by federal law on the same subject unless Congress has manifested a clear, unambiguous intent to deprive the state and local governments of their power to regulate that subject. 

“Preemption” describes the removal of a government’s power to regulate a specific subject matter.  When an act of Congress removes a local or state government’s power to regulate a specific subject matter, the process is called “federal preemption.”  State and local laws are often challenged on the theory that Congress has preempted the subject matter.  However, in examining such challenges, the courts presume that the state or local law is not preempted.  The courts have developed the following rule.  For a court to find that Congress has “preempted” the power of a lower level of government to regulate a subject matter, the court must be “absolutely certain” that Congress intended to preempt that field of regulation. Gregory v. Ashcroft, 501 U.S. 452, 464 (1991).  When the state or local law in question concerns public health and safety, the law is within the historic police power of the States, and thus the requirement of “absolute certainty” of congressional intent to preempt is “particularly warranted.”  Rice v Sante Fe Elevator Corp., 331 U.S. 218, 230 (1947). 

To determine congressional intent, the courts look for one or more of the following:  

• An express statement by Congress that it is taking over that field of regulation;
  
  
• A pervasive scheme of federal regulation of the field that leaves no room for state or local regulation; or
  
  
• An actual conflict between the federal law and the challenged state or local law.

However, the courts find such a conflict only when compliance with both the federal regulation and the challenged law would be physically impossible.

With respect to regulation of firearms, the courts have held that Congress made no explicit statement of its intent to take over that field of regulation.  They have also found that congressional regulation of firearms is not a scheme so pervasive that it leaves no room for state and local law.  Thus, absent a specific, actual conflict between a challenged state or local firearms law and a federal enactment, there is no federal preemption of that state or local law.  See Richmond Boro Gun Club, Inc. v. City of New York, 896 F.Supp. 276, 285-288 (E.D.N.Y. 1995) (discussing the fact that Congress has nowhere made a statement of intent to preempt local regulation of firearms and the federal laws regulating firearms do not establish a pervasive scheme of regulation, and holding that New York City’s ordinance banning ”assault weapons” was not in actual conflict with the provisions of the Federal Civilian Marksmanship Program). 

A state may also regulate in a manner that preempts the power of the local governments within that state to regulate the same subject.  This process is called “state preemption.”  Some states have enacted laws explicitly preempting the fields of firearms and ammunition regulation, with certain limited exceptions, such as for the discharge of firearms.  Some have enacted laws preempting only specific subfields of the regulation of firearms, such as licensing and registration of firearms.  To understand if, or to what extent, a state preempts local authority over firearms, find the state you are interested in on the state and local laws map, click on the state, and go to “state preemption.”

The National Firearms Act of 1934 ("NFA")
The NFA was enacted in 1934 as part of the Internal Revenue Code.  It was the first federal regulation pertaining to the manufacture and transfer of firearms.  An exercise of the taxing power, the NFA levied a federal tax on the manufacture, sale and transfer of certain classes of firearms.  The NFA has been amended and revised by subsequent federal firearms acts (see other Acts described on this page).  The current provisions of the NFA are found at 26 U.S.C. §§ 5801 - 5802; 5811 - 5812; 5821 - 5822; 5841 - 5849; 5851 - 5854; 5861; 5871 - 5872.

The Federal Firearms Act of 1938 ("FFA")
The FFA imposed a federal license requirement on gun manufacturers, importers, and those persons in the business of selling firearms.  The term federal firearms licensee (“FFL”) is commonly used today to refer to the members of the gun industry on whom this license requirement is imposed.  In addition to the licensing component of the FFA, the Act required licensees to maintain customer records and made illegal the transfer of firearms to certain classes of persons, such as convicted felons.  These classes of persons are commonly referred to as “prohibited persons.”  The circumstances resulting in the prohibition (such as a felony conviction) are often referred to as “disabilities.”  The FFA was repealed by the Gun Control Act of 1968.  However, many of its provisions were reenacted as part of the subsequent act.

The Gun Control Act of 1968 ("GCA")
The GCA revised the NFA and the FFA, reenacting and expanding upon provisions of the prior acts, and repealing the FFA.  The GCA also enacted prohibitions on the importation of firearms “with no sporting purpose.”  However, neither the GCA nor any other federal law regulates the domestic manufacture or sale of firearms which would not pass the federal criteria for determining whether a firearm has “a sporting purpose.”  Among the other major provisions of the GCA were the establishment of minimum ages for firearms purchasers, the requirement that all firearms (domestic and imported) be affixed with a serial number, and the expansion of the categories of prohibited persons.  The GCA is codified at 18 U.S.C. §§ 921, et seq., and the provisions of the FFA as reenacted by the GCA are also found in these sections.

The Firearms Owners' Protection Act of 1986 ("FOPA")
The FOPA, also known as the McClure-Volkmer Act, significantly amended the GCA, effectively liberalizing many of the restrictions on sellers of firearms.  Among other things, the FOPA enacted provisions legalizing sales by licensed dealers away from the location shown on the dealer license if at a “gun show” within the same state; limited the number of inspections of dealers’ premises which could be conducted by the Bureau of Alcohol, Tobacco and Firearms (“ATF”) without a search warrant; prevented the federal government from maintaining a central database of firearms dealer records; and loosened the requirement for what constitutes “engaging in the business” of firearms sales for purposes of a federal license.

The Brady Handgun Violence Prevention Act of 1993 ("Brady Act")
The Brady Act effected amendments to the GCA, originally imposing a five-day waiting period for law enforcement to review the background of a prospective handgun purchaser before a licensed dealer was entitled to complete the sale of a handgun to that person.  The purpose of the check is to allow law enforcement to confirm that the prospective purchaser is not a prohibited person (see discussion of “prohibited person” in connection with the FFA, above, and in Key Federal Provisions Regulating Firearms) before the sale is consummated.  The five-day waiting period has now been replaced with an instant check system, which can be extended to three days when the results of the check are not clear.  Persons who have a federal firearms license or a state-issued permit to possess or acquire a firearm (such as a state-issued concealed carry permit that is valid for not more than five years) are not subject to the waiting period requirement.  As more states enact “shall issue” concealed carry permit laws, this category of persons exempt from the Brady Act increases.  In 1998, the Act became applicable to shotguns and rifles. The Brady Act is codified at 18 U.S.C. § 921, et seq.

The Protection of Lawful Commerce in Arms Act and Child Safety Lock Act of 2005 ("PLCAA" and "CSLA")
The PLCAA provides the gun industry with immunity from most tort liability. The Act prohibits a "qualified civil liability action" from being brought in any state or federal court and requires immediate dismissal of any such action upon the date the PLCAA was enacted (October 26, 2005). A "qualified civil liability action" is a civil or administrative action or proceeding brought against a manufacturer or seller of firearms or ammunition, or a trade association that has two or more members who are manufacturers or sellers of firearms or ammunition. This includes actions or proceedings for damages, injunctive and other relief resulting from the criminal or "unlawful misuse" of a firearm or ammunition by the person initiating the action or a third party. "Unlawful misuse" is defined as conduct that violates a statute, ordinance or regulation. Actions excluded from the definition of "qualified civil liability action" include those:

• Against a transferor convicted of knowingly transferring a firearm with the knowledge that it will be used to commit a crime of violence (so long as the action is brought by the person harmed by the transfer);

• Against a transferor for negligence per se or negligent entrustment (the latter is defined in the Act to mean supplying a firearm or ammunition to a person the seller knows or reasonably should know is likely to, and does, use the firearm or ammunition in a manner involving unreasonable risk of physical injury);

• Against a manufacturer or seller who knowingly violated a state or federal law applicable to the sale or marketing of firearms or ammunition if the violation of law was the proximate cause of the harm for which relief is sought;

• For breach of contract or warranty in connection with the purchase of the firearm or ammunition;

• For death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

• Commenced by the Attorney General to enforce certain federal firearms laws.

The PLCAA is codified at 15 U.S.C. §§ 7901 — 7903.

The CSLA, adopted as part of the PLCAA, makes it unlawful for any licensed importer, manufacturer or dealer to sell or transfer any handgun unless the transferee is provided with a secure gun storage or safety device (defined under 18 U.S.C. § 921(a)(34)). The CSLA also immunizes any person who is in lawful possession and control of a handgun and who uses a secure gun storage or safety device with the handgun, from a "qualified civil liability action." The CSLA defines "qualified civil liability action" as a civil action for damages resulting from the criminal or unlawful misuse of a handgun by a third party if: 1) the handgun was accessed by another person who did not have the authorization of the lawful possessor; and 2) at the time the handgun was accessed it had been made inoperable by the use of a secure gun storage or safety device. The CSLA is codified at 18 U.S.C. § 922(z).

On March 18, 2008, the U.S. Supreme Court heard oral arguments in the case District of Columbia v. Heller, 128 S. Ct. 645, 169 L. Ed. 2d 417 (2007), an appeal of Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), in which the U.S. Court of Appeals for the District of Columbia Circuit held that the Second Amendment protects an individual right to keep and bear arms that is unrelated to service in a well-regulated militia. This ruling was in contrast to well over 200 federal and state court cases, and U.S. Supreme Court precedent, holding that the Second Amendment does not confer an individual right to own or possess firearms. Please see the District of Columbia v. Heller Case page for more detailed information.

Last Updated October 11, 2006

The words of the Second Amendment are as follows: “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.”

In United States v. Miller, 307 U.S. 174 (1939), the last case in which the United States Supreme Court ruled directly on the meaning of the Second Amendment, the Court refused to divorce the goal set forth in the modifying clause of the Amendment, that is, a well-regulated state militia, from the activity described in the final clauses, that is, the keeping and bearing of arms. Stating that the “obvious purpose” of the Second Amendment was to “assure the continuation and render possible the effectiveness of the state militia,” the high court rejected the notion urged by the Miller defendants that their indictments for transporting an unregistered sawed-off shotgun across state lines violated their alleged constitutional “right to bear Arms.” Id. at 178. Because the defendants had made no showing that their possession or use of the gun had “some reasonable relationship to the preservation or efficiency of a well regulated militia,” the Court held that the Second Amendment afforded them no protection against the federal law under which they were charged. Id. Notably, the evidentiary issue considered by the Court was whether the defendants’ possession or use of the weapon bore any reasonable relation to participation in the organized state militia, and the Court rejected defendants’ proposition that the amendment protects an isolated, individual right to possess a firearm. Id.

This definitive holding by the highest court of the branch of government charged under our Constitution with interpreting that document is, under our system of jurisprudence, binding on all lower courts. Since Miller, no federal appellate or state appellate court has invalidated a firearms regulation on Second Amendment grounds.

In one recent case, United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the U.S. Court of Appeals for the Fifth Circuit rejected a Second Amendment challenge to a federal law prohibiting firearms possession by persons subject to a domestic restraining order. The Emerson case received considerable publicity because the trial court had, in a clear departure from prior case law, struck the law down on Second Amendment grounds. Although all three judges on the Fifth Circuit panel agreed that the law was constitutional, two of the judges expressed their personal view that the Second Amendment protects an individual right to possess firearms. This view is dictum (i.e., unnecessary to the outcome of the case) and is not binding on other courts. For a summary of Emerson and other relevant appellate decisions, see the Summary of Second Amendment Case Law.

Although the Miller case is the only U.S. Supreme Court case directly ruling on the scope of the Second Amendment, the Supreme Court has not been silent on the issue since the holding. In Lewis v. United States, 445 U.S. 55 (1980), the Court was faced with a challenge to a federal law criminalizing possession of a firearm by a convicted felon, a challenge brought under the Equal Protection Clause. If the law had infringed a fundamental constitutional right, the Court would have been bound by its own prior rulings to apply what is called a “strict standard” of review of the challenged law. Where such a right is not impacted, the review standard is the lower, rational basis review. In Lewis, the Court used the rational basis standard of review to determine the constitutional issue, specifically noting that the challenged law did not “trench on any constitutionally protected liberties.” Id. at 65, n.8.

The high court’s actions have also been consistent with the Miller holding. In numerous cases in which the lower federal courts rejected individual “right to bear Arms” challenges to gun regulations and the losing plaintiffs have sought review by the U.S. Supreme Court, the Court has declined to review those cases. See, e.g. Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000) (Second Amendment establishes no right to possess a firearm apart from the role possession of that gun might play in maintaining a state militia).

In addition, the Second Amendment constrains only the federal government. U.S. v. Cruikshank, 92 U.S. 542, 553 (1876) (the amendments that make up the Bill of Rights were enacted as constraints on congressional action, not state or local action). Under the incorporation doctrine, the Court has held that certain of the Bill of Rights amendments are “incorporated” by the Fourteenth Amendment as a constraint on state and local action. However, until the Court has held specifically that a given amendment is “incorporated,” it is only a constraint on Congress, not on state or local governments. The Second Amendment has never been “incorporated” and is therefore not a constraint to state or local regulation. See Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (1982).

Unlike the federal constitution, some state constitutions do contain “right to bear arms” provisions which state specifically that the right protected is an individual right. In general, these provisions have been interpreted by the courts to be consistent with a wide range of firearms regulations, including, for example, bans on classes of firearms. See, e.g. Quilici, 695 F.2d at 267-268 (upholding Morton Grove's ban on handguns against a challenge based on the Illinois Constitutional right to bear arms).

Learn more about the Second Amendment