Firearm Owners Protection Act

From Gunsopedia
Jump to: navigation, search
U.S. Firearms
Legal Topics
Assault weapons ban
ATF (law enforcement)
Brady Handgun Act
Concealed carry
Federal Firearms License
Firearm case law
Firearm Owners Protection Act
Gun Control Act of 1968
Gun laws in the U.S. — by state
Gun laws in the U.S. — federal
Gun politics in the U.S.
National Firearms Act
Open carry
Second Amendment
Straw purchase
Sullivan Act (New York)
Violent Crime Control Act

The Firearm Owners' Protection Act (FOPA), Pub. L. 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.


[edit] 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. 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.

[edit] Machine gun ban (The Hughes Amendment)

As debate for FOPA was in its final stages, Rep. William J. Hughes (D-N.J.) proposed an amendment to ban the civilian ownership or transfer of any fully-automatic weapon which was not registered by May 19, 1986. However, any such weapon manufactured and registered before the May 19 cutoff could still be legally owned and transferred by civilians.

Controversy exists regarding the validity of the amendment's inclusion into FOPA. The vote to include the amendment took place at night, when many of the lawmakers who would be opposed to its inclusion were not present. Also, the vote was an unrecorded voice vote, which some contend was inconclusive.[1]

[edit] "Safe passage" provision

One of the law's provisions was that persons traveling from one state to another for a shooting sports event or any other lawful activity cannot be arrested 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 securely locked, unloaded, and not immediately accessible.

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.

With these considerations in mind, it is advisable for travelers with firearms to maintain a low profile while passing through any such states that have severe restrictions on the Constitution.

[edit] 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 such "prohibited persons." In order to comply with the prohibition on a Federal registry of non-NFA items, records of background checks are legally required to be destroyed after 24 hours. The proper enforcement of this provision has been a goal of gun rights groups.

[edit] 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 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 1 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 substance.
  • 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)[1]
  • A person who is under indictment or information for a crime (misdemeanor or felony) punishable by imprisonment for a term exceeding one year 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.[2]

This case was subsequently reversed by the U.S. Court of Appeals two years later; see U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001).[3] The Supreme Court has not granted certiorari, a necessary first step for further examination by the Supreme Court, hence the 5th Circuit Court of Appeals ruling stands.

[edit] See also

[edit] References

  1. Gun Law News - Firearm Owners Protection Act of 1986
Personal tools