Federal and state laws allow individuals to purchase and possess guns and/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. For example, gun laws tend to be less restrictive in rural areas than urban areas, due to the high number of persons using guns for recreational activities such as hunting and sportsmen. In urban areas, there tends to be a higher crime rate due to the larger population, and therefore, gun laws are 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
At the federal level, gun laws have been enforced since 1934 with the National Firearms Act of 1934. A later revision of that act, the Gun Control Act of 1968 governs the possession and use of certain weapons. Weapons regulated by these laws are typically referred to as NFA or Title II firearms. NFA weapons must have a serial number and be registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives, or the ATF. These weapons can only be used and possessed by the registered owner.
Federal gun laws also require all persons looking to purchase a gun to undergo a federal background check. The Brady Handgun Prevention Act requires that all federally licensed firearms dealers run a background check on a potential buyer prior to going through with the sale. The search examines the buying party’s criminal history, including whether there is a record of mental issues that would prevent the sale from going through. Federal law prohibits certain persons from shipping or transporting any firearm in interstate or foreign commerce, or receiving a firearm which has been shipped or transported in interstate or foreign commerce, or possessing any firearm in or affecting commerce. The following persons are prohibited from purchasing, possessing, shipping, or transporting a gun or firearm:
- 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.
Over 92% of Brady background checks through NICS are completed while the FBI is still on the phone with the gun dealer. In some instances, a gun purchaser must wait up to three business days if the background check system fails to positively approve his or her application to purchase a firearm. If a denial is not issued within that period, the purchaser may complete the transaction at that time.
Parties excluded from the background checks are unlicensed private sellers that are “not engaged in the business” of dealing firearms. However, these parties may be covered by other federal, state, or local restrictions regarding the sale and possession of firearms.
Federal laws also prohibit all persons from carrying a firearm on school grounds, on some federal lands, and in federal buildings. However, since 2010, visitors to national parks may carry loaded guns into the parks, with a few areas declared out of bounds.
State Gun Laws
State gun laws vary from state to state and sometimes can be different from municipality to municipality. For example, there is a significant difference between California and New York gun laws.
In California, multiple restrictions are in place limiting firearms use and possession. These restrictions include:
- 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. This license permits a person to carry a concealed weapon in public places. A California County Sheriff will issue these licenses to residents of their respective county.
There are other people included in a class of those prohibited from carrying any type of firearm or weapon, including:
- 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.
California requires a background check on all potential gun owners including those potential gun owners purchasing a gun at a gun show. The waiting period is ten days, the state is then required to destroy the records on the sale of rifles and shotguns. Additionally, California requires all gun owners to obtain a handgun safety certificate prior to purchasing a firearm. While there is no limit to the number of guns you can own, you are limited to purchasing one gun per thirty days in California.
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
In contrast with California, New York does not currently have a child access prevention law. Therefore, gun owners are not held accountable in New York for leaving a gun accessible to children, as they would be in California. However, child-safety locks must be sold with all guns.
Similar to California, New York also had carry concealed weapon permit that may be issued by police if in the interest of public safety. Similarly, New York requires all potential gun owners to undergo a background check that can take up to six months. Applicants must be at least 21 years of age and the license involves a criminal background check. New handguns have to be ballistically fingerprinted before they are complete.
There are varying degrees of restrictions that may be implemented by each state in regards to gun possession and use.
President Obama’s Recent Execution Action
In January 2016, President Obama held a speech regarding gun control and his plans to remedy the gun violence occurring in America on a daily basis. As a result, the President recited his plan to reduce gun violence through a series of executive actions. These executive actions include the following:
- Extending background checks to gun shows and the Internet. If one is in the business of selling firearms, they must acquire a license and conduct background checks before a sale can be completed. The envisioned improved background checks will include processing background checks 24 hours a day, 7 days a week, and improving notification of local authorities when certain prohibited persons unlawfully attempt to buy a gun. The FBI will also hire more than 230 additional examiners and other staff to help process the background checks.
- The President has 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. ATF is also finalizing a rule that will require that dealers who ship firearms notify law enforcement if their guns are lost or stolen in transit.
- The Administration proposes 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. The Department of Health and Human Services are also finalizing a rule to remove unnecessary legal barriers preventing States from reporting relevant information about people prohibited from possessing a gun for specific 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?
State and federally imposed gun laws are extensive and constantly changing to respond to constitutional challenges and presidential action. If you have questions regarding possession and/or use of guns, consider consulting with an attorney. A criminal lawyer can also represent you in court if you are facing criminal gun possession charges.