Definitions
- Firearms are generally classified into three broad types: (1) handguns, (2) rifles, and (3) shotguns.[3] Rifles and shotguns are both considered “long guns.”
- A semi-automatic firearm fires one bullet each time the trigger is pulled, ejects the shell of the fired bullet, and automatically loads another bullet for the next pull of the trigger. A fully automatic firearm fires multiple bullets with the single pull of the trigger.[4] [5]
Handgun
- A weapon designed to fire a small projectile from one or more barrels when held in one hand with a short stock designed to be gripped by one hand.
- A handgun that contains its ammunition in a revolving cylinder that typically holds five to nine cartridges, each within a separate chamber. Before a revolver fires, the cylinder rotates, and the next chamber is aligned with the barrel.
- Any handgun that does not contain its ammunition in a revolving cylinder. Pistols can be manually operated or semiautomatic. A semiautomatic pistol generally contains cartridges in a magazine located in the grip of the gun. When the semiautomatic pistol is fired, the spent cartridge that contained the bullet and propellant is ejected, the firing mechanism is cocked, and a new cartridge is chambered.
- A small single- or multiple-shot handgun other than a revolver or semiautomatic pistol.
Rifle
- A weapon intended to be fired from the shoulder that uses the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger.
Shotgun
- A weapon intended to be fired from the shoulder that uses the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.
Semi-automatic gun
- a firearm in which a shell is ejected and the next round of ammunition is loaded automatically from a magazine or clip. The trigger must be pulled for each shot. Semiautomatic guns may be classified as handguns, rifles, or shotguns.
Machine gun
- is an automatic gun which, if the trigger is held down, will fire rapidly and continuously. It is not a semi-automatic gun for which the trigger must be pulled for each shot. (Classified as fully automatic for analysis.)
Crime and Self-Defense
- Roughly 16,459 murders were committed in the United States during 2016. Of these, about 11,961 or 73% were committed with firearms.[17] [18]
- A 1993 nationwide survey of 4,977 households found that over the previous five years, at least 0.5% of households had members who had used a gun for defense during a situation in which they thought someone “almost certainly would have been killed” if they “had not used a gun for protection.” This amounted to 162,000 such incidents per year. This excludes all “military service, police work, or work as a security guard.”[19]
- Based on survey data from the U.S. Department of Justice, roughly 5.9 million violent crimes were committed in the United States during 2014.[20] [21] These include simple/aggravated assaults, robberies, sexual assaults, rapes, and murders.[22] Of these, about 600,000 or 10% were committed by offenders visibly armed with a gun.[23]
- Based on survey data from a 2000 study published in the Journal of Quantitative Criminology,[24] U.S. civilians use guns to defend themselves and others from crime at least 989,883 times per year.[25]
- A 1993 nationwide survey of 4,977 households found that over the previous five years, at least 3.5% of households had members who had used a gun “for self-protection or for the protection of property at home, work, or elsewhere.” This amounted to 1,029,615 such incidents per year. This excludes all “military service, police work, or work as a security guard.”[26]
- A 1994 survey conducted by the U.S. Centers for Disease Control and Prevention found that Americans use guns to frighten away intruders who are breaking into their homes about 498,000 times per year.[27]
- A 1982 survey of male felons in 11 state prisons across the U.S. found: 34% had been “scared off, shot at, wounded, or captured by an armed victim.”
- 40% had decided not to commit a crime because they “knew or believed that the victim was carrying a gun.”
- 69% personally knew other criminals who had been “scared off, shot at, wounded, or captured by an armed victim.”[28]
Background Checks and Criminals' Sources of Guns
Denials
During 2010, the federal government:
Allowances
Enforcement
Gun Shows
Gun shows:
provide a venue for the sale and exchange of firearms by federal firearms licensees (FFLs). … Such shows also are a venue for private sellers who buy and sell firearms for their personal collections or as a hobby. In these situations, the sellers are not required to have a federal firearms license. Although federal firearms laws apply to both FFLs and private sellers at gun shows, private sellers, unlike FFLs, are under no legal obligation to ask purchasers whether they are legally eligible to buy guns or to verify purchasers’ legal status through background checks.[118]
- It is illegal and punishable by up to 10 years in prison for the following people to receive, possess, or transport any firearm or ammunition:
- It is illegal and punishable by up to 10 years in prison to sell or transfer any firearm or ammunition to someone while “knowing” or having “reasonable cause to believe” this person falls into any of the prohibited categories listed above.[79] [80]
- It is illegal to “engage in the business of importing, manufacturing, or dealing in firearms” without a federal license to do so.[81] [82] [83]
- It is illegal for any federally licensed firearms business to sell or transfer any firearm without first conducting a background check to see if the buyer/recipient falls into any of the prohibited categories listed above.[84] [85]
- It is illegal for anyone except a federally licensed firearms business to sell, buy, trade, or transfer a firearm across state lines.[86]
- Under federal law, private individuals are not required to a conduct a background check before selling or transferring a firearm to someone who lives in the same state, but it is illegal and punishable by up to 10 years in prison for a private individual to sell or transfer a firearm while “knowing” or having “reasonable cause to believe” that the recipient falls into one of the prohibited categories above.[87] [88]
- Some states such as California require background checks for all firearms transactions, including those conducted between private individuals.[89] [90] [91]
Denials
- From the inception of the federal background check system in 1998 to 2014, about 202.5 million background checks for gun purchases were processed through the FBI’s background check system. Of these, approximately 1.2 million or 0.6% were denied.[92]
- During 1998 to 2014, background check denials were made for the following reasons:
During 2010, the federal government:
- conducted six million firearm background checks resulting in over 72,000 denials.
- prosecuted 33 people based on these denials.
- obtained 13 guilty pleas and verdicts, or about 0.02% of the denials.[94]
- investigations decreased by nearly 50%.
- prosecutions decreased by about 77%.
- guilty pleas and verdicts decreased by about 82%.[95]
- States may prosecute cases that the federal government does not. In 2010, Pennsylvania convicted more than 100 individuals for state law violations arising out of firearm background check denials.[96]
- If an FBI background check takes longer than three days, the gun sale is approved by default.[97] This is how Dylann Roof, the killer of nine people at a black church in South Carolina in 2015,[98] was able to buy a gun despite having a police record that included drug possession.[99]
- In 2010, the FBI referred 2,000 to 3,000 cases of post-gun sale denials to the U.S. Bureau of Alcohol, Tobacco, and Firearms (ATF) for further action.[100] The ATF retrieved guns in 1,157 cases.[101]
- According to a 2014 Government Accountability Office report, the ATF “does not have information readily available to systematically track the timeliness and outcomes—such as if a firearm is retrieved—of delayed denial investigations.”[102]
- At a 2013 Senate hearing, a Department of Justice representative stated:
- According to federal agents interviewed in a 2004 U.S. Justice Department investigation, the “vast majority” of denials under the federal background check system are issued to people who are not “a danger to the public because the prohibiting factors are often minor or based on incidents that occurred many years in the past.” As examples of such, agents stated that denials have been issued for:
- a 1941 felony conviction for stealing a pig.
- a 1969 felony conviction for stealing hubcaps.[104] [105]
- The same Justice Department investigation audited 200 background check denials and found that 8% of denied applicants were not prohibited from lawfully possessing a firearm.[106]
- In 2010, applicants appealed about 23% of the 72,659 background check denials issued that year. Of these, about 21% were later overturned and the applications approved.[107]
Allowances
- As of July 2016, federal law does not prohibit suspected members of terrorist organizations from purchasing or possessing firearms or explosives.[108] [109]
- *Between February 2004 and December 2014, 2,233 firearm and three explosives background checks for people on terrorist watch lists were processed through the federal background check system. Of these, 91% of the firearm transactions and 100% of the explosives transactions were allowed.[110]
- Under federal law, individuals who have been convicted of a felony offense that would typically prohibit them from possessing firearms can lawfully possess firearms if their civil rights are restored by the requisite government entities.[111]
Enforcement
- To undergo a background check, prospective gun buyers are required by federal regulations to present photo-identification issued by a government entity.[112]
- Using fake driver’s licenses bearing fictitious names, investigators with the Government Accountability Office had a 100% success rate buying firearms in five states that met the minimum requirements of the federal background check system.[113] [114] A 2001 report of this investigation states that the federal background check system “does not positively identify purchasers of firearms,” and thus, people using fake IDs are not flagged by the system.[115]
Gun Shows
- “A gun show is an exhibition or gathering where guns, gun parts, ammunition, gun accessories, and literature are displayed, bought, sold, traded, and discussed.”[116]
Gun shows:
provide a venue for the sale and exchange of firearms by federal firearms licensees (FFLs). … Such shows also are a venue for private sellers who buy and sell firearms for their personal collections or as a hobby. In these situations, the sellers are not required to have a federal firearms license. Although federal firearms laws apply to both FFLs and private sellers at gun shows, private sellers, unlike FFLs, are under no legal obligation to ask purchasers whether they are legally eligible to buy guns or to verify purchasers’ legal status through background checks.[118]
- In the three-year period from October 2003 through September 2006, the Bureau of Alcohol, Tobacco and Firearms (ATF) conducted 202 operations at 195 gun shows, leading to 121 arrests and at least 83 convictions.[119]
- A 2004 study of state prisoners who possessed guns during crimes for which they were jailed found that the guns were obtained from the following sources:
- 40.0% through an illegal/street source
- 37.4% through family or friends
- 7.3% at a retail store
- 2.6% at a pawnshop
- 0.8% at a gun show
- 0.6% at a flea market.[120]
- A study of crimes committed with firearms in Pittsburgh, Pennsylvania, in 2008 showed that 18% of the perpetrators lawfully owned the gun, and 79% were not legal gun owners.[121]
Right-to-Carry laws
Alaska
Arizona
Arkansas
Colorado
Florida
Georgia
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Mexico
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
[127]
Connecticut
Delaware
Hawaii
Maryland
Massachusetts
New Jersey
New York
[131]
- Right-to-carry laws permit individuals who meet certain “minimally restrictive” criteria (such as completion of a background check and gun safety course) to carry concealed firearms in most public places.[122] Concealed carry holders must also meet the minimum federal requirements for gun ownership as detailed above.
- Each state has its own laws regarding right-to-carry and generally falls into one of two main categories:
- “shall-issue” states, where concealed carry permits are issued to all qualified applicants
- “may-issue” states, where applicants must often present a reason for carrying a firearm to an issuing authority, who then decides based on his or her discretion whether the applicant will receive a permit
- May-issue states vary significantly in the implementation of their laws. Some, such as Connecticut,[123]effectively act as shall-issue states, while others, such as New Jersey, effectively act as no-issue states.[124]
- Under a court order that required Illinois to allow public possession of firearms, the state passed a law in 2013 that permits concealed carrying of handguns. Before this, Illinois was the only state that did not have a may-issue or shall-issue concealed carry law.[125] [126]
- 42 states are shall-issue:
Alaska
Arizona
Arkansas
Colorado
Florida
Georgia
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Mexico
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
[127]
- Rhode Island is considered a “hybrid” state, because the law states that local authorities “shall issue … a license or permit” to carry a concealed weapon, but the law also states that the attorney general “may” do so.[128] [129] In practice, the Attorney General is the primary issuer of permits
- [130]
- 8 states are may-issue:
Connecticut
Delaware
Hawaii
Maryland
Massachusetts
New Jersey
New York
[131]
Constitution
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.[209]
D.C. v Heller
Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.[214]
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”[215]
As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.[217]
Amendment 4: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[220]
Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.6 What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset.[222]
As used in the Fourth Amendment, “the people” describes the class of persons protected from unreasonable searches and seizures by Government officials. It is true that the Fourth Amendment describes a right that need not be exercised in any collective sense. But that observation does not settle the meaning of the phrase “the people” when used in the Second Amendment.[224]
- In the Bill of Rights, the Second Amendment to the Constitution reads:
- Gun control proponents have argued and some federal courts have ruled that the Second Amendment does not apply to individual citizens of the United States but only to members of militias, which, they assert, are now the state National Guard units.[200] [201] In 2002, a federal appeals court panel ruled that “the people” only “have the right to bear arms in the service of the state.”[202]
- Gun rights proponents have argued and some federal courts have ruled that the Second Amendment recognizes “an individual right to keep and bear arms.”[203] In 2001, a federal appeals court panel ruled that the Second Amendment “protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms….”[204]
- James Madison was the primary author of the Bill of Rights,[205] is known as the “Father of the Constitution” for his central role in its formation,[206] and was one of three authors of the Federalist Papers, a group of essays published in newspapers and books to explain and lobby for ratification of the Constitution.[207] [208]
- In Federalist Paper 46, James Madison addressed the concern that a standing federal army might conduct a coup to take over the nation. He argued that this was implausible because, based on the country’s population at the time, a federal standing army couldn’t field more than 25,000–30,000 men. He then wrote:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.[209]
D.C. v Heller
- In 1976, the Washington, D.C. City Council passed a law generally prohibiting residents from possessing handguns and requiring that all firearms in private homes be (1) kept unloaded and (2) rendered temporally inoperable via disassembly or installation of a trigger lock.[210] [211]
- On June 26, 2008, the U.S. Supreme Court, in a 5 to 4 ruling known as D.C. v Heller, struck down this law as unconstitutional.[212]
- Excerpts from the majority ruling (Justice Scalia, joined by Roberts, Kennedy, Thomas, and Alito):
Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.[214]
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”[215]
- Excerpts from a minority dissent (Justice Stevens, joined by Souter, Ginsburg, and Breyer):
As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.[217]
- Excerpt from a minority dissent (Justice Breyer, joined by Stevens, Souter, and Ginsburg):
- The Bill of Rights includes two Amendments other than the Second that use the phrase “right of the people”:
Amendment 4: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[220]
- In D.C. v Heller, the Supreme Court Justices debated the meaning of the phrase “right of the people” in the Second Amendment. Below are excerpts of this debate:
- Majority Opinion (Justice Scalia, joined by Roberts, Kennedy, Thomas, and Alito):
Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.6 What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset.[222]
- Dissenting Opinion (Justice Stevens, joined by Souter, Ginsburg, and Breyer):
As used in the Fourth Amendment, “the people” describes the class of persons protected from unreasonable searches and seizures by Government officials. It is true that the Fourth Amendment describes a right that need not be exercised in any collective sense. But that observation does not settle the meaning of the phrase “the people” when used in the Second Amendment.[224]
- Majority Opinion (Justice Scalia, joined by Roberts, Kennedy, Thomas, and Alito):