Federal and state laws allow individuals to purchase and possess guns or firearms. Gun possession and the use of guns are heavily regulated at both state and federal levels.
Gun control laws vary significantly from region to region. Gun laws tend to be less restrictive in rural areas than in urban areas since more people use guns for recreational purposes, such as hunting and sports. Due to the higher crime rate in urban areas, gun laws tend to be more restrictive in these areas.
Common Elements Related to Gun Laws
In general, gun control laws cover a large aspect regarding the use and possession of firearms, including:
- Waiting Periods: At the federal level, including many states, require some amount of time to pass between a person purchasing a gun and the time when they are permitted to take possession of the gun. Waiting period laws seek to prevent “heat of the moment” crimes by imposing these “cooling-off” periods.
- Background Checks: Background checks are mandatory on the federal level and in most states before a gun transaction with a licensed gun dealer is completed.
- Gun Permits and Registration: A gun permit may be required to purchase and use a firearm, and some states require all guns to be registered.
- Bans on Certain Types of Guns: Some types of guns are banned from use and possession altogether, including:
- Unregistered and illegal guns
- Concealed weapons
- Assault weapons such as machine guns, sawed-off shotguns, automatic firearms, and guns equipped with silencers
- Possession of Guns in a School Zone: At the federal level and nearly all states ban the use and possession of firearms at a school or near school zones.
- Restricted Classes: Classes of persons may be prohibited from owning firearms, including:
- Convicted felons
- Illegal aliens
Federal Gun Laws
Since 1934, the National Firearms Act has enforced gun laws at the federal level. Several weapons can be owned and used under a later revision of that act, the Gun Control Act of 1968. The weapons regulated by these laws are typically referred to as NFA or Title II firearms. The Bureau of Alcohol, Tobacco, Firearms, and Explosives, or the ATF, requires NFA weapons to have serial numbers. Only the registered owner can use and possess these weapons.
Federal gun laws also require all persons looking to purchase a gun to undergo a federal background check. Federally licensed firearms dealers are required to conduct background checks on potential buyers as part of the Brady Handgun Prevention Act. The search examines the buying party’s criminal history, including the mental health history that could prevent the sale from going through.
Certain federal laws prohibit shipping or transporting firearms in interstate or foreign commerce, receiving firearms shipped or transported in interstate or foreign commerce, or possessing firearms in or affecting commerce.
Persons prohibited from purchasing, possessing, shipping, or transporting firearms include:
- The person has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
- The person is a fugitive from justice;
- The person is an unlawful user of or addicted to any controlled substance;
- The person has been adjudicated as a mental defective or committed to a mental institution;
- The person is an alien illegally or unlawfully in the United States;
- The person has been discharged from the Armed Forces under dishonorable conditions;
- The person was a citizen of the United States and denounced their citizenship;
- The person is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partners; or,
- The person has been convicted in any court of a misdemeanor crime of domestic violence.
The FBI completes over 92% of Brady background checks through NICS while on the phone with the gun dealer. If the background check system fails to approve a gun purchaser’s application positively, they may have to wait up to three business days. The purchaser may complete the transaction if no denial is issued within that period.
Unlicensed private sellers who are “not engaged in the business of dealing firearms” are excluded from background checks. Other federal, state, or local restrictions may apply to the sale and possession of firearms by these parties.
A firearm is also prohibited on school grounds, on some federal lands, and in federal buildings under federal law. Since 2010, visitors to national parks have been permitted to carry loaded guns, except in a few areas.
State Gun Laws
Each state has its own gun laws, and sometimes there are differences between municipalities as well. Gun laws in California and New York, for example, differ significantly.
Multiple restrictions restrict the use and possession of firearms in California. Among these restrictions are:
- The Child Access Prevention Law
- Juvenile Possession Law
- Juvenile Sale/Transfer Law
In California, an individual may not carry a weapon, gun, or concealed weapon in a public place unless that person holds a valid Carry Concealed Weapon (CCW) license. The license allows a person to carry a concealed weapon in public. California County Sheriffs will issue these licenses to residents.
The following people are also prohibited from carrying firearms or weapons:
- Any person convicted or misdemeanor listed in Penal Code Section 29805;
- Any person convicted has a felony conviction under Penal Code Section 29805;
- A person addicted to a narcotic drug;
- A person held out to be dangerous to themselves or others;
- A person who is restricted under other domestic or mental conditions, or conditions or probation or parole.
Every potential gun owner in California must undergo a background check, including those who purchase guns at gun shows. After ten days, the state must destroy the records on rifles and shotgun sales. In addition, California requires all gun owners to obtain a handgun safety certificate before purchasing a firearm. In California, you are limited to purchasing one gun every thirty days, regardless of how many guns you own.
In New York, restrictions exist which prohibit the use and possession of firearms that differ from those in California.
These regulations include:
- Juvenile Possession Law
Juvenile Sale/Transfer Law
New York does not currently have a law preventing child access. Because of this, gun owners in New York are not held accountable for leaving a gun accessible to children as they would be in California. All guns must, however, come with child-safety locks.
In addition to California, New York had concealed weapon permits that could be issued by police if necessary for public safety. A background check can take up to six months for potential gun owners in New York. The license requires applicants to be at least 21 years of age, and a criminal background check is required. Before a handgun can be completed, it must be ballistically fingerprinted.
States may impose varying degrees of restrictions on gun possession and use.
President Obama’s Recent Execution Action
President Obama spoke about gun control and his plans to address the daily gun violence in America in January 2016. In response, the President announced a series of executive actions to reduce gun violence.
The following are some of these executive actions:
- Extending background checks to gun shows and the Internet: If one is in the business of selling firearms, one must acquire a license and conduct background checks before a sale can be completed. In the future, background checks will be processed 24 hours a day, 7 days a week, and local authorities will be notified when prohibited individuals unlawfully attempt to purchase guns. In addition, the FBI will hire more than 230 additional examiners and other staff.
- The President expanded the budget to include funding for 200 new ATF agents and investigators to enforce gun laws: ATF has established an Internet Investigation Center to track illegal online firearms trafficking and is dedicating $4 million and additional personnel to enhance the National Integrated Ballistics Information Network. In addition, the ATF finalized a rule that will require dealers who ship firearms to notify law enforcement if their firearms are lost or stolen.
- The Administration proposed a new $500 million investment to increase access to mental health care: The Social Security Administration will begin a rulemaking process that includes information in the background check system about beneficiaries who are prohibited from possessing a firearm for mental health reasons.
- In addition, the Department of Health and Human Services is finalizing a rule to remove unnecessary legal barriers preventing States from reporting relevant information about people prohibited from possessing guns for mental health reasons.
- The President directed the Departments of Defense, Justice, and Homeland Security to conduct or sponsor research into gun safety technology: The President also directed the departments to review the availability of smart gun technology to improve gun safety, including the mention of a fingerprinting mechanism, similar to those on mobile phones, which would only release the safety of the gun if the owner’s fingerprint was swiped to unlock the gun.
Do I Need a Lawyer?
As a result of constitutional challenges and presidential actions, state and federal gun laws are extensive and constantly changing. Consult an attorney if you have questions about gun possession or use.
A criminal lawyer can also represent you in court if you are facing criminal gun possession charges.