Firearm Policy in the Federal and State Governments
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By Amy Purpura | West Virginia Watchdog
In the previous article of this series on firearms, one of the biggest myths about gun violence was debunked. Namely, that statistics show more guns do not result in more gun murders. However, the last article did not discuss any of the gun policy in place in the US at the federal or state level. These policies influence the ease with which citizens have access to guns, which guns are allowed for purchase, and how to obtain a concealed carry license. Before advocating for more gun reform, this policy already in place should be examined for its efficacy.
To start, a review of the federal law highlights the basic minimum of firearm regulation that states must enforce, and if legislators choose, they may create stronger standards for their states. The Gun Control Act of 1968 first established who would be prohibited from possessing any firearms. These include persons who would fall into any of the following categories:
- Convicted in a court for a crime punishable by imprisonment for a term over one year
- Is a fugitive from justice
- Is an unlawful user or addict of a controlled substance
- Has been adjudicated as a mental defective or committed to a mental institution
- Is illegally residing in the US
- Has been dishonorably discharged from the Armed Services
- Has renounced United States citizenship
- Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner
- Has been convicted in a court of a misdemeanor of domestic violence
- Is under indictment for a crime punishable by imprisonment for a term exceeding one year
If one does not fall into any of the above categories, federal law dictates that rifles can be purchased by individuals above 18 years old, and handguns can be purchased by 21 year olds. In addition, the Gun Control Act began requiring individuals in the business of selling firearms to obtain a federal firearm license (FFL) from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The full text of the Act can be accessed here.
Later, the federal government enacted the Brady Handgun Violence Prevention Act in 1993 to ensure that persons under these categories would be prevented from purchasing firearms, along with transporting or receiving these weapons through interstate commerce. As part of this legislation, the FBI created the National Instant Criminal Background Check System (NICS) for federally licensed firearm dealers to use during transactions. This system must be accessed if no other state background check has been initiated. The dealer will receive a quick answer, usually within minutes according to the FBI, as to whether the customer falls into one of the categories above and is prohibited from purchase. If the system does return a positive match for one or more category, the corresponding judicial or law enforcement agencies are contacted to provide the further information needed to approve the final decision. If for some reason the system does not provide a final answer within three days of the background check, the licensed dealer can make the decision to allow the purchase.
However, in some states, loopholes do exist that allow individuals who aren’t federally licensed to sell firearms without conducting a background check if the purchaser resides in the same state where the transaction is made. This is what is referred to as the “gun show loophole”. Seven states, including California, New York, Connecticut, and Colorado, have laws in place that require background checks for all gun purchases at gun shows, and looking at those states, one sees that those are where the majority of mass shootings have occurred recently. Four states, including Virginia and Pennsylvania, require background checks for all handgun purchases at gun shows. The rest of the 33 states in the US allow private individuals who aren’t FFL dealers and who don’t regularly engage in firearm business to sell their guns at gun shows or even their own house without conducting background checks.
While many gun control advocates have been lobbying for the federal government to close this loophole, a study performed in 1994 by the National Institute for Justice, an agency part of the US Department of Justice, surveyed adults nationwide to find out how they acquired their guns. Asking about purchases made between 1993-1994, they found that only 4% of firearm sales were conducted at a gun show or flea market. The majority of purchases occurred at gun stores from FFL dealers, and the second highest source of firearm acquisition came from family members. Though many gun shows happen throughout the country every year and in some places background checks aren’t required, this study demonstrates that those transactions are a minority in comparison to the other sources of gun sales.
Moving to the states, gun regulation in WV is relatively light in comparison to that of surrounding states and regulation at the federal level. Our state does not require a permit to purchase firearms or the registration and licensure of gun owners. In order to see some of the main differences, an examination of gun laws in other states will prove beneficial.
For example, Maryland has some of the toughest gun laws in the surrounding states. To start, firearms are required to be registered with the state upon purchase, and individuals may not buy more than one regulated gun within a 30-day period. The minimum age for all gun purchases is 21 years, which is more stringent than the federal requirement. In addition, the government compiles a Handgun Roster that lists all of the permissible handguns for purchase in the state, and law prohibits the purchase of specifically named “assault pistols” unless registered before August 1, 1994. The list of the pistols banned can be found in the text of the law here on page 203.
Pennsylvania also has some stringent laws on firearms, especially in the city of Philadelphia where open carry of firearms is prohibited. A “License to Carry Firearms” (LTCF) is required to have guns on one’s person in public in Philadelphia or other restricted properties in the state. The state is mandated to issue an LTCF to residents unless there is good cause to deny the license.
Virginia has a unique law in place which bans “plastic firearms” or as defined in statute, any gun that contains “less than 3.7 ounces of electromagnetically detectable metal in the barrel, slide, cylinder, frame, or receiver”. The reason for this ban is that when run through an X-ray scanner or metal detector, these guns will not show an accurate outline of their shape, and can be concealed on one’s person much easier at airports or other buildings using this type of security.
Ohio has much less stringent firearm laws than these other states, with its code resembling that of West Virginia and Kentucky. The only notable law in place in the state applies to the possession of a “dangerous ordnance” defined as automatic firearms, short-barreled rifles/shotguns, firearms of “crude or extemporized manufacture”, and devices that can be adapted for use as firearms. A “dangerous ordnance” is illegal to possess unless one is a licensed dealer, authorized by the government, or registered under the National Firearms Act.
Lastly, Kentucky has laws that are the most similar to West Virginia in comparison to other surrounding states. No firearms are required to be registered, none are banned, and there are no notable areas in the state where open carry of firearms is illegal. As mentioned in the previous article of this series, Kentucky and West Virginia have some of the lowest rates of firearm homicide yet the least stringent gun laws.
While these states also have fewer areas of high population density where gun crime happens more frequently, these correlations cannot be dismissed. As far as the data indicates, gun crime is connected not to the guns or the gun laws, but to the people. If Americans are serious about addressing the problem of gun violence, the human element to that violence must be addressed more forcefully because it is the human that pulls the trigger, not the gun or the laws in place. In the next article of the series, the WV Watchdog will examine the Obama Administration’s proposal designed to address this rise of gun violence and determine how well it could prevent future crimes.
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