The Second Amendment of the U.S. Constitution states: "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." Gun owners often cite the Second Amendment when arguing against gun restrictions. However, gun owners, dealers, and collectors must nonetheless follow state and federal laws if they wish to possess a firearm or run a business selling guns.
Read on to learn more about state and federal gun laws.
Federal Gun Laws
Federal law regulates gun ownership to some degree, including restricting the ownership of certain types of firearms. The National Firearms Act (NFA), for instance, restricts the sale or possession of short-barreled shotguns, machine guns, and silencers. In order to purchase one of these "NFA firearms or devices," owners must go through an extensive background check, purchase a tax stamp for the manufacture of the firearm or device, and register the weapon with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) NFA registry. However, it should be noted that some states, including New York and California, have prohibited the ownership of these types of firearms and devices.
Under the Brady Handgun Violence Prevention Act, you cannot have a gun for personal or business use if you:
- Were convicted of a crime punishable by being in prison for more than one year;
- Are a fugitive from justice;
- Are addicted to, or illegally use, any controlled substance;
- Have been ruled mentally defective by a court or are committed to a mental institution;
- Are an illegal alien living in the United States unlawfully;
- Received a dishonorable discharge from the U.S. Armed Forces;
- Renounced your U.S. citizenship, if you are a U.S. citizen;
- Are subject to a court restraining order that involves your 'intimate partner,' your partner's child, or children; or
- Were convicted of domestic violence in any court of a misdemeanor.
More than 300 million Brady-mandated background checks have been conducted since The Brady Act's passage in 1994.
The federal government has been slow to enact any gun control restrictions, but a spate of mass shootings has prompted new legislative and executive efforts. Congress has focused on expanding background checks and extending the time in which the Federal Bureau of Investigation can look into those flagged by the national instant check system. Although bills have passed the House, they have stalled in an evenly divided Senate.
In April 2021, the White House issued a press release outlining the Biden Administration's initial efforts to respond to the “gun violence public health epidemic." The administration is focused on limiting the availability of certain weapons and encouraging further gun control legislation through six initial steps:
- Stopping the sale of “ghost guns" (ghost guns are handmade firearms sold in kits without serial numbers that cannot be traced by the government)
- Imposing restrictions on pistol-stabilizing braces (braces make handguns more accurate and therefore more deadly)
- Encouraging states to enact “red flag" laws (red flag laws allow courts to prohibit people from carrying guns if a family member or police officer shows that they pose a danger to themselves or others)
- Investing in community-based violence interventions
- Requiring the Department of Justice to study and issue annual reports on firearms tracking
- Appointing a Director of the ATF (the ATF has not had a confirmed director since 2015)
State Gun Laws
State gun laws vary considerably (see "State Gun Control Laws" for a state-by-state directory). Some states have many more firearms restrictions than others. Some gun owners who visit other states will be granted reciprocity and recognition for any "right to carry" gun laws they had in their home state. Not all states grant such rights. "Right to carry" laws are federal and state constitutional provisions that recognize a gun owner's right to use her or his gun for defensive purposes.
Some states give gun owners more rights than others do. For example, sixteen states currently prohibit employers from firing employees who leave guns locked in their personal vehicles on company property. That means thirty-four other states do allow companies to restrict employees from having weapons in their cars or trucks on company property.
States also have laws that either allow or prohibit you from openly carrying a gun in public. These are called "open carry" laws. Generally, states fall into one of four categories:
- Permissive Open Carry States — Allow you to carry a gun without a permit or license.
- Licensed Open Carry States — Allow gun owners to carry firearms openly only after they are issued a permit or license.
- Anomalous Open Carry — Carrying a gun openly may be generally lawful under state law, but local governments may pass their own gun laws that are more restrictive than the state's laws.
- Non-Permissive Open Carry States — Carrying a gun openly is against state law, or is legal only in limited circumstances (e.g., while hunting) or when legally used for self-defense.
State gun laws can also change in reaction to tragedies. Take New York, for instance. After the 2012 Sandy Hook Elementary School massacre in which 20 children and six adults were murdered in Connecticut, many states passed legislation strengthening their gun control laws. New York was one of the first states to act after the mass shooting by passing the New York Secure Ammunition and Firearms Enforcement Act of 2013 — commonly known as the NY SAFE Act.
If you just moved to a state with an open carry law, there is often a waiting period before you can apply for an open carry permit. Open carry restrictions are often the subject of lawsuits filed by gun owners against states where they reside. If you have additional questions, be sure to contact a gun rights attorney near you.
Guns and Your Legal Rights
If you are charged with the illegal possession of a gun or have been accused of a firearms-related crime, you should contact a lawyer as soon as possible to discuss your legal options. Some of the legal factors that an attorney can review with you include:
- What being charged with violating a state or federal gun law means, including elements of the crime, potential defenses, and the length of any possible criminal sentence
- If you or your loved ones are victims of gun violence, whether you can recover damages from the assailants and their employers
Gun Laws: Getting Help with Criminal Gun Charges
- If you are charged with illegal gun possession (or any crime for that matter) you should learn about the process of defending yourself against a criminal charge.
- You will need someone to protect your rights in court, so you should talk to an experienced criminal defense attorney as soon as possible.
Gun Safety Tips
- Follow local, state, and federal gun laws. If you own or sell guns, you must still use extreme care when handling them. Mistakes happen, and guns have the potential to seriously injure or kill.
- If you are outside your home state, check applicable local and state laws regarding gun ownership, possession, and use.
- Make sure that you get safety training and practical experience to supplement your lawful gun possession and ownership.
- Like any dangerous weapon, guns have the ability to hurt others. If someone is hurt, or property is damaged in an incident involving your gun, you could be held liable in a civil lawsuit, and/or face charges in a criminal court.
- Never let children play with guns.
- Keep your firearm safely secured and unloaded when not in use.
- Never use guns while under the influence of drugs or alcohol.
Legal Help After a Gun-Related Incident
Sadly, gun incidents have become more and more common in America. Since the 1999 Columbine High School tragedy, there have been dozens of gun incidents at U.S. schools and universities. Indeed, deadly shootings have occurred in all manner of public places -- offices, shopping malls, and on both public and private property.
Hopefully, you are never affected by such an incident. If you do need help, you may have options for whom to talk to:
- A product liability attorney can help after injuries due to gun defects.
- If you shoot an intruder you may face legal issues best suited for a criminal defense attorney.
- Police-involved shootings can involve difficult bureaucratic hurdles that may require hiring a personal injury attorney or a civil rights attorney.
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