For Americans, the crux of gun control laws has been how to disarm dangerous individuals without disarming the public at large. Ever-present in this quest is the question of how the perception of danger should impact guaranteed freedoms protected within the Bill of Rights.
Not only is such a balancing act difficult as-is, but there are also two additional factors that make it even more challenging: America’s federal government is constitutionally bound by the Second Amendment, and politicians notoriously take advantage of tragedies to pass irrational laws when emotions are at their highest. As President Obama’s former Chief of Staff, Rahm Emanuel, once famously remarked:
“You never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things you think you could not do before.”1
This line of thought is not new to American politics. From the emancipation of enslaved Americans and the organized crime wave of the 1930s to the assassinations of prominent leaders in the 1960s and the attempted assassination of President Reagan in the 1980s, fear has proved a powerful catalyst for appeals about gun control.
Below is an overview of the history behind major federal gun control legislation, capturing how we’ve gone from the Founding Fathers’ America of the New World to the United States of the 21st century.
Second Amendment in America’s Bill of Rights
First and Second Militia Acts of 1792
Colonial Gun Regulations
Militia Act of 1862
National Rifle Association
National Firearms Act of 1934
Federal Firearms Act of 1938
Gun Control Act of 1968
Law Enforcement Officers Protection Act of 1986
Undetectable Firearms Act of 1988
Brady Handgun Violence Prevention Act of 1993
Federal Assault Weapons Ban of 1994
Supreme Court Case District of Columbia et al. v. Heller
Supreme Court Case McDonald et al. v. City of Chicago
The Rights of an American Citizen
Second Amendment in America’s Bill of Rights: Ratified December 15, 1791
Congress added the Bill of Rights to the Constitution of the United States specifically “to prevent misconstruction or abuse of its powers.” The Second Amendment is the foundational cornerstone of every American’s right to bear arms, stating:
“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 right to bear arms was second only to the first – the most vital freedoms of religion, speech, the press, the right to assemble and the right to petition government for redress of grievances. Meanwhile, conflicting views have left government and personal interest groups struggling to reconcile technological advances, isolated but significant violent anomalies and the constitutional mandate protecting the natural right to self defense and this most basic aspect of the Bill of Rights.
First and Second Militia Acts of 1792: Passed May 2 and 8, 1792
The U.S. Congress passed the Militia Acts of 1792 less than a year after the Second Amendment’s ratification. The first act’s purpose was “to provide for the National Defence, by establishing an Uniform Militia throughout the United States.” This measure established the need and command structure for a state-based militia. The second act defined conscription parameters for those militias, limiting armed service to “each and every free able-bodied white male citizen” 18 to 45.
Colonial Gun Regulations
Even today, the majority of firearms laws are state-based and vary considerably. While California, Connecticut and New Jersey have the most restrictive laws, Arizona, Vermont and Kentucky have some of the least stringent. For more than a century, the young United States relied primarily on “state” laws:
- The earliest came from Virginia, the result of fear of attack by Native Americans. The 1619 law imposed a three-shilling fine on able-bodied men who failed to come armed to church on the Sabbath.
- By 1640, slave codes in Virginia prohibited all “free Mulattos, Negroes and Indians” from bearing arms. In 1712, South Carolina enacted a similar law.
- Throughout the Antebellum South, Louisiana, Florida, Maryland, Georgia, North Carolina, Mississippi and even Delaware all passed multiple measures denying guns to people of color, requiring court-issued permits, and allowing search and seizure of weapons as well as punishment without trial.
Militia Act of 1862: Passed July 17, 1862
Often overlooked, the Militia Act of 1862 was highly significant because for the first time, a U.S. government in wartime need called upon “persons of African descent” for military or naval service. Granted, the soldiers were paid less than their white compatriots and were at first primarily laborers. However, the act guaranteed freedom for soldiers and their families in exchange for service. By late October, black Union regiments raised from Kansas, Louisiana and the South Carolina Sea Islands were in the field. President Lincoln signed the Emancipation Proclamation on January 1, 1863, and in May of that year, the War Department established the Bureau of Colored Troops, which would represent nearly 185,000 soldiers during the Civil War.
Fourteenth Amendment: Ratified July 9, 1868
Even as 1863’s Emancipation Proclamation freed all slaves within the United States, racially biased gun control continued through Black Codes in states like Mississippi, Louisiana and Alabama. Internationally, the Paris Anti-Slavery Conference of 1867 condemned the practices, highlighting that in “the States,” even “freedmen” were “forbidden to own or bear fire-arms, and thus were rendered defenceless against assault.” Congress abolished this discriminatory gun control with the most controversial of the three Reconstruction Amendments. While the Thirteenth abolished slavery and the 15th forbade racial discrimination in elections, the Fourteenth Amendment provided “to any person within its jurisdiction the equal protection of the laws.” Finally, the Fourteenth guaranteed all Americans, regardless of color or appearance, their Second Amendment right to bear arms.
National Rifle Association: Founded November 17, 1871
Originally founded to improve the marksmanship and firearms skills found lacking in troops during the Civil War, the National Rifle Association(NRA) sought to “promote and encourage rifle shooting on a scientific basis.” Since then, it has become a complex organization, with its own Legislative Affairs Division, Institute for Legislative Action, Political Victory Fund and NRA Foundation as well as numerous publications.
As “America’s longest-standing civil rights organization,” the NRA is a “diligent [protector] of the Second Amendment.” It actively supported the National Firearms Act of 1934 and Federal Firearms Act of 1938, supported portions of the Gun Control Act of 1968 and was instrumental to the Firearms Owners Protection Act. It opposed renewal of the 1994 Assault Weapons Ban and backed 2005’s Protection of Lawful Commerce in Arms Actand 2006’s Disaster Recovery Personal Protection Act, which became part of 2007’s Department of Homeland Security Appropriations Act. In 2013, it opposed expansion of the Undetectable Firearms Act of 1988. The NRA has also been an active protector of the Second Amendment in numerous legal cases involving gun owners’ rights, including 2010’s landmark Supreme Court case McDonald v. Chicago.
National Firearms Act of 1934: Signed Into Law June 26, 1934
Signed into law by President Franklin D. Roosevelt, the National Firearms Act, Public Law 73-474, sought to control specifically the types of weapons typically involved in organized crime and violent gangland incidents: automatic weapons like machine guns and easily concealed but wide-impact, short-barrel firearms, such as sawed-off shotguns, as well as mufflers and silencers. Rather than banning them, the act instead placed a financial premium on them and allowed tracking of them by requiring that:
- Importers, manufacturers and dealers register and pay an annual tax: $500 for importers and manufacturers, $300 for pawnbrokers and $200 for dealers.
- Transferors pay a $200 tax per transaction.
- Intended recipients complete an application and submit identification, including fingerprints and a photograph.
- Importers, manufacturers and dealers maintain records of all transactions.
- All transfers as well as all previously owned firearms be registered, including the firearm’s identifying marks; the owner’s name, address and place of employment; and where the gun was to be kept.
- Any violation of the act be subject to a $2,000 fine and up to five years in prison.
The National Firearms Act has not been updated since, and importers, manufacturers, dealers and buyers still pay the same fees. Accounting for inflation, the $200 transaction tax would now be the equivalent of more than $3,500, and the $2,000 fine would be more than $35,000.
Federal Firearms Act of 1938: Signed Into Law June 30, 1938
The 1930s were tumultuous years. FDR’s New Deal was rebuilding a struggling America in the face of a well-armed wave of organized crime. John Dillinger was one of the most infamous criminals of the era who used not only machine guns, but other assorted weapons on a crime spree that spanned eight states. Between 1933 and 1934, John Dillinger and his so-called Terror Gang robbed a dozen banks, stole more than $500,000, nearly $9 million in 2016 dollars, killed 11 people and managed to escape from prison on three separate occasions. The crime spree finally ended on June 30, 1934, when federal agents tracked Dillinger to a movie theater in Chicago. Dillinger drew his Colt .380 in an attempt to escape and was cut down by a hail of gunfire from law enforcement. On the fourth anniversary of Dillinger’s death, Congress passed Public Law 75-785, the Federal Firearms Act of 1938, which expanded recordkeeping and accountability for all firearms importers, manufacturers and dealers and placed restrictions on gun ownership. It expressly aimed to regulate interstate and foreign commerce in arms and encompassed not only the guns themselves, but also any silencers or mufflers, ammunition, cartridge cases, bullets and propellant powder. It stated that:
- Only dealers or manufacturers possessing a license could transport, ship or receive firearms or ammunition in interstate or foreign commerce. The license was $25 per manufacturer and $1 for dealers.
- Dealers and manufacturers could not ship or transport firearms to anyone under indictment, convicted of a crime or considered a fugitive from justice.
- Trade in stolen firearms or guns that have had the manufacturer’s serial numbers removed was illegal.
Gun Control Act of 1968: Signed Into Law October 22, 1968
Three decades passed. Then, over five years, four major assassinations took their toll: President John F. Kennedy; racial activists Malcolm X and Rev. Dr. Martin Luther King, Jr.; and Senator Robert F. Kennedy. As for the assassins, Lee Harvey Oswald had purchased his rifle through a popular mail order company under an alias, Talmadge Hayer had a criminal history of stolen guns, James Earl Ray was an escaped convict, and Sirhan Sirhan had purchased his unregistered handgun from a private individual. The response was a major overhaul of restrictions on how guns could be bought and sold.
Signed by President Lyndon B. Johnson, the Gun Control Act of 1968, or Public Law 90-618, soon became known as Title I, repealing the Federal Firearms Act of 1938 and relegating the National Firearms Act of 1934 to Title II. Its stated purpose was “to provide support to Federal, State, and local law enforcement officials in their fight against crime and violence.” To that end, it:
- Mandated licensing for all importers, manufacturers and dealers of firearms and ammunition involved in interstate or foreign arms commerce, and set license fees for “destructive devices” at $1,000 a year.
- Prohibited using falsified information to acquire a firearm.
- Set the general purchase age for handguns and handgun ammunition at 21.
- Prohibited dealers and manufacturers from selling firearms to indicted or convicted individuals, fugitives from justice, drug addicts and mentally incompetent individuals.
- Required registration of all firearms with the National Firearms Registration and Transfer Record.
- Prohibited the possession of firearms on which the serial number has been altered, obliterated or removed.
- Controlled containers, markings and chains of custody for shipped firearms, eliminating mail order delivery to unlicensed individuals.
Law Enforcement Officers Protection Act of 1986: Signed Into Law August 28, 1986
A brutal Miami shootout in April 1986 between two bank robbers and eight FBI special agents left two agents dead, three seriously wounded and two injured. The criminals’ weapons – a Ruger Mini-14 semi-automatic rifle loaded with .223 Remington rounds, a shotgun and two .357 caliber handguns – were notably “more powerful and their rounds could penetrate even the armored vests that some of the agents were wearing.” In the aftermath, the 99th Congress decided “to regulate the manufacture, importation, and sale of armor piercing ammunition.” Public Law 99-408:
- Made the manufacture and importation of armor-piercing ammunition illegal; the only exceptions are for governmental use, authorized testing and export.
- Established an annual $1,000 license fee for armor-piercing ammunition manufacturers and importers and the government’s right to revoke that license for violations of the law.
- Required special markings and packaging for armor-piercing ammunition.
- Mandated five years in prison without suspension, probation or parole for individuals possessing armor-piercing ammunition and a firearm while committing a violent crime.
Undetectable Firearms Act of 1988: Signed Into Law November 10, 1988
The use of lightweight yet durable polymers in the popular and reliable Glock 17 – a “plastic” semi-automatic pistol – first raised security concerns about the possibility of mass-produced guns passing through metal detectors unnoticed. In response, President Ronald Reagan signed Public Law 100-649 prohibiting all firearms that are not detectable by walk-through metal detectors – that are less than 3.7-percent steel. It also banned firearms with major components that fail to “generate an image that accurately depicts the shape of the component” on standard airport imaging technology. Originally passed for a 10-year term, the act was extended in 1998, 2003 and – most recently – 2013 for another 10-year term as Public Law 113-57.
Brady Handgun Violence Prevention Act of 1993: Signed Into Law November 30, 1993
In 1981, John Hinckley, Jr.’s attempt to assassinate President Ronald Reagan first injured Reagan’s press secretary, James Brady. Hinckley’s first shot entered above Brady’s left eye and left the nation shaken by “The Bear’s” new role as a wheelchair-bound gun control advocate. Within 16 minutes of the incident, Hinckley’s gun – a .22-caliber Röhm RG-14 revolver – was traced to a Dallas pawn shop. Hinckley had no criminal or mental records at the time, but he did use an old Texas driver’s license and fake address.
- Mandating a five-day waiting period before a licensed dealer, manufacturer or importer can sell, deliver or transfer a handgun to an individual.
- Establishing a “national instant criminal background check system to be contacted by firearms dealers before the transfer of any firearm.” However, this provision applies only to states that don’t already have acceptable background checks for handgun purchasers. The National Instant Criminal Background Check System (NICS) Improvement Amendments Act of 2007, or NCIS Act, introduced conditional but optional financial incentives and grants for establishing or upgrading state reporting systems.
The Brady Campaign continues to advocate and lobby for tighter gun controls “To Prevent Gun Violence.”
Federal Assault Weapons Ban of 1994 (a.k.a. Public Safety and Recreational Firearms Use Protection Act of 1994): Signed Into Law September 13, 1994
Two notable events precipitated 1994’s assault weapons ban. First, a gunman using TEC-9 handguns with Hellfire trigger systems, a Norinco NP44, and both standard and hollow-point ammunition killed eight people and wounded six in 15 minutes in San Francisco’s 101 California Streetskyscraper. The second was the siege of the Branch Davidian complex in Waco, Texas, a 51-day government standoff with a fiery ending that left 82 Branch Davidians and four ATF agents dead. More than 300 Davidian-owned firearms and nearly 2 million rounds of “cooked off” or spent ammunition included fully automatic AK-47 and AR-15 assault rifles, .50 caliber semi-automatic rifles and antitank armor-piercing ammunition.
In answer, President Bill Clinton signed Congress’ Public Safety and Recreational Firearms Use Protection Act – Title XI of Public Law 103-322 or the Federal Assault Weapons Ban – “to make unlawful the transfer or possession of assault weapons” for 10 years. It prohibited the manufacture, sale and possession of specific types of semi-automatic firearms with military-style features and large-capacity magazines. This included many weapons with folding stocks, flash suppressors, barrels threaded for silencers and detachable magazines that held more than 10 rounds. However, pre-ban weapons were grandfathered, exempt from the new law.
2004 Expiration of Federal Assault Weapons Ban of 1994
In the ensuing decade, the results of the ban on assault weapons did not align with the intent of the law. Cited by both sides of the gun control issue, An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence 1994-2003, ultimately found that “Although the ban has been successful in reducing crimes with AWs [Assault Weapons], any benefits from this reduction are likely to have been outweighed by steady or rising use of non-banned semiautomatics with LCMs [large-capacity magazines], which are used in crime much more frequently than AWs.” While states like New York, Massachusetts and New Jersey retain their own assault weapon laws, attempts to re-introduce federal legislation banning assault weapons have been unsuccessful.
Supreme Court Case District of Columbia et al. v. Heller Decision: Decided June 26, 2008
D.C. v. Heller was a highly debated landmark case that addressed disparities between local and federal law. At debate was whether a D.C. special policeman had the right to register and keep a handgun in his home without a trigger lock despite D.C.’s prohibition on handguns and unregistered firearms. District law also required that even registered weapons must be unloaded, disassembled or bound by a trigger lock.
Heller maintained that he had the right to accessible self-defense in his home. Despite dissenting opinions, the court ruled in his favor, acknowledging that handguns are common arms choices for “defense of self, family and property.” The court added that imposing a trigger lock requirement prevents ready self-defense and declared the condition unconstitutional. The District was instructed to allow Heller to register his gun and issue him a license to carry it in his home.
Supreme Court Case McDonald et al. v. City of Chicago, Illinois, et al.: Decided June 28, 2010
Just two years later, the Supreme Court heard McDonald v. Chicago, clarifying the decision reached in D.C. v. Heller by expanding the right to bear arms within the home to all U.S. states. The case centered on Chicago’s ban on handguns versus petitioners who lived in high-crime neighborhoods and – like Heller – also wanted the right of “defense of self, family and property.”
This time, however, the plaintiffs based their argument on the Fourteenth Amendment – resolution to the Black Codes and guarantee for equal protection under the law – and its inclusion of Second Amendment rights. Once again, the Supreme Court ruled that private citizens retain their Second Amendment right to self-defense in their own homes regardless of locale or state and went on to confirm that the Fourteenth Amendment does in fact secure the Second.
The Rights of an American Citizen
The work of the Founding Fathers, the Second Amendment is uniquely American. They were men who had to fight for their freedom from tyranny, and who intended that the means for that fight should never be taken away from American citizens.
Over the last two centuries, however, the United States and its people have sought to strike a balance between the rights guaranteed by the Second Amendment and the mayhem created by guns wielded by unhinged individuals. In that balancing act, outrage and fear have been powerful forces pushing some Americans to call for more firearm laws in order to keep guns out of the hands of criminals, assassins and terrorists.
As this balancing act continues, it is worth remembering the unshakeable connection between American citizenship and the right to bear arms from an American once denied that right:
“Once let the black man get upon his person the brass letters, U.S., let him get an eagle on his button, and a musket on his shoulder, and bullets in his pockets, and there is no power on earth which can deny that he has earned the right to citizenship in the United States.”