Firearm Owners Protection Act

The Firearm Owners' Protection Act (FOPA), Public Law No. 99-308, 100 Stat. 449 (May 19, 1986), codified at 18 U.S.C. § 921 et seq., is a United States federal law that revised many statutes in the Gun Control Act of 1968.

Federal Firearms License regulatory reform

Under the Gun Control Act of 1968, the Bureau of Alcohol, Tobacco and Firearms, now the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) was given wide latitude on the enforcement of regulations pertaining to Federal Firearms License (FFL) holders. Allegations of abuse by ATF inspectors soon arose from the National Rifle Association (NRA) and certain targeted Federal firearms licensees.

In the Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, Second Session (February 1982), a bipartisan subcommittee (consisting of 3 Republicans and 2 Democrats) of the United States Senate investigated the Second Amendment and reported its findings. The report stated:

The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.

It concluded that seventy-five percent of Bureau of Alcohol, Tobacco, Firearms and Explosives prosecutions were "constitutionally improper", especially on Second Amendment issues.

The Firearm Owners Protection Act of 1986 addressed the abuses noted in the 1982 Senate Judiciary Subcommittee report. It reopened interstate sales of long guns on a limited basis, allowed ammunition shipments through the U.S. Postal Service (a partial repeal of the Gun Control Act), ended record keeping on ammunition sales, except for armor piercing, permitted travel between states supportive of Second Amendment rights even through those areas less supportive of these rights, and addressed several other issues that had effectively restricted Second Amendment rights. However, the act also contained a provision that banned the sale of machine guns manufactured after the date of enactment to civilians, restricting sales of these weapons to the military and law enforcement. Thus, in the ensuing years, the limited supply of these arms available to civilians has caused an enormous increase in their price, with most costing in excess of $10,000. Regarding these fully automatic firearms owned by private citizens in the United States, political scientist Earl Kruschke said "approximately 175,000 automatic firearms have been licensed by the Bureau of Alcohol, Tobacco, and Firearms (the federal agency responsible for administration of the law) and evidence suggests that none of these weapons has ever been used to commit a violent crime."

The gun rights movement lobbied Congress to pass the FOPA to prevent the abuse of regulatory power — in particular, to address claims that the ATF was repeatedly inspecting FFL holders for the apparent purpose of harassment intended to drive the FFL holders out of business (as the FFL holders would constantly be having to tend to ATF inspections instead of to customers).

The Act mandated that ATF compliance inspections can be done only once per year and, at a minimum, must be done once every 3 years. An exception to the "once per year" rule exists if multiple record-keeping violations are recorded in an inspection, in which case the ATF may do a follow-up inspection. The main reason for a follow-up inspection would be if guns could not be accounted for.

Machine Gun Ban: The Hughes Amendment Controversy Resolved

As debate for FOPA was in its final stages in the House before moving on to the Senate, Rep. William J. Hughes (D-N.J.) proposed several amendments including House Amendment 777 to H.R. 4332 that would ban a civilian from ownership or transfer rights of any fully automatic weapon which was not registered as of May 19, 1986. The amendment also held that any such weapon manufactured and registered before the May 19 cutoff date could still be legally owned and transferred by civilians.

In the morning hours of April 10, 1986, the House held recorded votes on three amendments to FOPA in Record Vote No's 72, 73, and 74. The first vote involved the interstate sale of handguns and was Record Vote 72. The second vote (Record Vote 73) was the controversial Hughes Amendment that called for the banning of machine guns. On page 18 of the Congressional Transcript cited to herein, Rep. Charles Rangel (D-N.Y.), at the time presiding as Chairman over the proceedings, claimed that the "ayes appeared to have it." Nevertheless, Congressman Sensenbrenner demanded a recorded vote. Record Vote 73 was taken by electronic device; the result was: ayes 124, noes 298, not voting 12. The Hughes Amendment regarding the banning of machine guns was defeated in Record Vote 73. However, in Record Vote 74, a compromise appears to have been made after a passionate speech by Congressman Weiss, which resulted in the passage of the Hughes Amendment. It was subsequently passed and signed on May 19, 1986 by President Ronald Reagan to become Public Law 99-308, the Firearms Owners' Protection Act.

"Safe Passage" provision

One of the law's provisions was that persons traveling from one place to another cannot be incarcerated for a firearms offense in a state that has strict gun control laws if the traveler is just passing through (short stops for food and gas) and the firearms and ammunition are not immediately accessible, unloaded and, in the case of a vehicle without a compartment separate from the driver’s compartment, in a locked container.

An example of this would be that someone driving from Virginia to a competition in Vermont with a locked hard case containing an unloaded handgun and a box of ammunition in the trunk could not be prosecuted in New Jersey or New York City for illegal possession of a handgun provided that they did not stop in New Jersey or New York for an extended period of time.

Registry prohibition

The act also forbade the U.S. Government or any agency of it from keeping a registry directly linking non-National Firearms Act firearms to their owners, the specific language of this law ( Federal Law 18 U.S.C. 926 (2) (a)) being: No such rule or regulation prescribed after the date of the enactment of the Firearms Owners Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or disposition be established. Nothing in this section expands or restricts the Secretary's authority to inquire into the disposition of any firearm in the course of a criminal investigation.

The Brady Handgun Violence Prevention Act of 1993 created a national background check system to prevent firearms sales to prohibited persons. In order to comply with the prohibition on a Federal registry of non-NFA items, background check records are legally required to be destroyed after 24 hours, however the Bureau of Alcohol, Tobacco, Firearms and Explosives has consistently kept computer records for longer, citing "demographic and census reasons."

Clarification of prohibited persons

The older Gun Control Act of 1968 prohibits firearms ownership in the US by certain broad categories of individuals thought to pose a threat to public safety. However, this list differed between the US House of Representatives and the US Senate versions of the bill, and led to great confusion. This list was later augmented, modified, and clarified in the Firearm Owners Protection Act of 1986. The 1986 list is:

• Anyone who has been convicted in any court of, a felony punishable by imprisonment for a term exceeding one year, excluding those crimes punishable by imprisonment related to the regulation of business practices.
• Anyone who is a fugitive from justice.
• Anyone who is an unlawful user of or addicted to any controlled substances.
• Anyone who has been adjudicated as a mental defective or has been committed to a mental institution.
• Any alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa. The exception is if the nonimmigrant is in possession of a valid hunting license issued by a US state.
• Anyone who has been discharged from the Armed Forces under dishonorable conditions.
• Anyone who, having been a citizen of the United States, has renounced his or her citizenship.
• Anyone that is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner. (Added in 1996, with the Lautenberg Amendment.)
• Anyone who has been convicted of a misdemeanor crime of domestic violence. (Added in 1996, with the Lautenberg Amendment)
• A person who is under indictment or information for a crime (misdemeanor) punishable by imprisonment for a term exceeding two years cannot lawfully receive a firearm. Such person may continue to lawfully possess firearms obtained prior to the indictment or information, and if cleared or acquitted can receive firearms without restriction.

These provisions are stated in the form of questions on Federal Form 4473.

In 1999, a U.S. District Court judge ruled that the Lautenberg Amendment, 18 U.S.C. § 922(g)(8), violated the Second and Fifth Amendments to the United States Constitution, and was therefore unconstitutional, in United States of America v. Timothy Joe Emerson, U.S. District Court for the Northern District of Texas, San Angelo Division, 46 F. Supp. 2d 598, April 7, 1999.

This case was subsequently reversed by the Fifth Circuit Court of Appeals two years later; see U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001). The Supreme Court did not grant certiorari, a necessary first step for further examination by the Supreme Court, hence the 5th Circuit Court of Appeals ruling that overturned the domestic violence ban stands, but is only binding on federal courts in Louisiana, Mississippi, and Texas.

See also

• Gun law in the United States
• List of United States firearms topics
• ATF Online
• ATF Regulations (Search ATF Regulations)
• ATF Regulations regarding prohibited persons