The primary federal law controlling commerce in firearms is the Gun Control Act of 1968 (GCA). This law regulates the licensing of manufacturers, importers, wholesalers, and dealers (including pawn shops that deal in firearms). Under the GCA, any person “engaged in the business” of making or selling firearms must be licensed by the federal Bureau of Alcohol, Tobacco and Firearms (ATF), a division of the Department of the Treasury.a
The GCA also ensures that guns are legally transferred only between residents of the same state, with a few exceptions.b Keeping gun sales intrastate allows states to more closely regulate and monitor transactions and reduce interstate gun trafficking.
The result is a virtual ban on the interstate sale of handguns to private individuals. This prohibition on interstate handgun sales is the bedrock of firearms regulation in the United States, and the gun lobby has worked tirelessly to undermine it. Under current law, it is a felony for a federally licensed firearms dealer or for any other person to directly transfer a handgun to any person who resides in a different state than the transferor.c It is also a felony for an out-of-state private citizen to directly purchase a handgun in a state other than his state of residence and then bring it into his state of residence.d
The Brady Law
In 1993, the GCA was amended by the Brady Handgun Violence Prevention Act, commonly known as the “Brady Law,” which imposed a waiting period and background check on all handgun sales by federally licensed firearm dealers. The background check was designed to weed out purchasers who fall into one of nine “prohibited categories,” including felons, fugitives, illegal aliens, and users of illegal drugs.e In 1998, under the Brady Law’s original terms, the waiting period expired and was replaced by the National Instant Check System (NICS), which also extended the background check to the sale of rifles and shotguns.
Exceptions to the Background Check
The Brady Law includes several important exceptions to the background check requirement. Individuals who possess a valid state-issued permit-to-purchase or who possess a license to carry a concealed handgun are not required to undergo the Brady background check for gun purchases. This exemption is based on the theory that since a background check is performed at the time the license to possess or carry is issued, it is not necessary to conduct any further checks for the duration of the license. Under the Brady Law, state possession or carry licenses may exempt their holders from the NICS background investigation for a period of up to five years.
Brady Law Records
The Brady Law generates three types of records of firearm sales:
- All sales by licensed dealers are recorded on a federal Form 4473, which contains information about the purchaser including name and address. This record remains at the gun dealer’s place of business until the dealer goes out of business, at which point the forms are sent to ATF.
- The NICS system generates a record of the transaction which the Federal Bureau of Investigation (FBI) retains for approximately six months.
- Finally, if one customer buys two or more handguns at one time or during five consecutive business days from the same dealer, that dealer is required to submit a multiple sales report form to ATF and to a designated local law enforcement agency. Some states impose additional recordkeeping requirements.
While these three recordkeeping regimens have been a key tool utilized by ATF in tracing weapons used in crime and identifying “bad dealers” involved in criminal gun trafficking, the agency has been severely hampered by a federal ban on the computerization of dealer records. This ban was put in place in 1986 as part of the National Rifle Association-backed Firearms Owners’ Protection Act. Since then, defense of the computerization ban has remained one of the NRA’s highest priorities.
a) “Engaged in the business” is generally defined as devoting “time, attention, and labor to engaging in such activity as a regular course of trade or business with the principal objective of livelihood and profit….” 18 USC §921(a)(21).
b) Residents from one state may legally purchase a handgun in another state only if the sale is conducted through a federally licensed firearms dealer in the non-residence state, who would then ship it to a federally licensed firearms dealer in the purchaser’s home state. The sale must be legal in both states and the purchaser must meet face-to-face with the dealer in his home state before he can legally complete the transaction. Residents from one state may legally purchase a rifle or shotgun in another state only if the purchaser meets the sales and possession requirements of both states and the transaction is conducted in a face-to-face meeting with a federally licensed firearms dealer. There are exceptions to these rules for bequests and loans.
c) 18 USC §922(a)(5) and (b)(3). Federally licensed dealers may transfer handguns across state lines to other federally licensed dealers.
d) 18 USC §922(a)(3).
e) The other “prohibited categories” are: those who have been adjudicated mentally incompetent; those dishonorably discharged from the military; persons who have renounced their U.S. citizenship; those convicted of misdemeanors that involve domestic violence; and, those subject to restraining orders for domestic violence. Some states have additional “prohibited categories.”