Regulations Firearm Laws and Ordinances - The Firearms Owners' Protection Act Of 1986
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Nearly twenty years after the passage of the Gun Control Act of 1968, Congress in 1986 passed major legislation amending the 1968 act. The Firearms Owners' Protection Act of 1986 (PL 99-308, revised in PL 99-360), commonly referred to as the Gun Control Act of 1986, is still in effect today. The battle over this piece of legislation was fierce. David T. Hardy described the reactions of those in favor and those opposed to its passage in "The Firearm Owners' Protection Act of 1986: A Historical and Legal Perspective" (Cumberland Law Review, vol. 17, no. 585, 1986). Those in favor, Hardy wrote, called its passage "necessary to restore fundamental fairness and clarity to our Nation's firearms laws." Those opposed called it an "almost monstrous idea" and a "national disgrace." The following sections compare the 1968 act with the present standards under the 1986 act.
Changes from 1968 to 1986
PROHIBITED PERSONS. The 1968 legislation identified the categories of people to whom firearms could not be sold by a Federal Firearms Licensee (FFL). These included convicted felons, drug abusers, and the mentally ill. The 1986 legislation clarified some inconsistencies in the 1968 act and made it unlawful for anyone, whether licensed or not, to sell a gun to a "high-risk" individual.
INTERSTATE SALES. Under the 1968 act, it was unlawful to sell or deliver a firearm to anyone from another state, with the exception of long guns (rifles and shotguns), which could be sold to residents of contiguous (bordering) states with laws allowing such sales. Inter-state over-the-counter sales of long guns by those licensed to sell them became legal as long as the laws of both states permit them. As of 2004, a ban on the interstate sale of handguns was still in effect.
PURCHASING FIREARMS AND AMMUNITION. The Gun Control Act of 1968 stated that firearms and ammunition could be purchased only on the premises of an FFL, and FFLs were required to record all firearms and ammunition transactions. The 1986 law made the purchase of ammunition and gun components by mail legal, as it had been prior to the Gun Control Act of 1968. Firearms dealers must keep records only of "armor-piercing" ammunition sales. Establishments that sell only ammunition (no firearms) do not have to be licensed, so stores that previously may not have carried ammunition because of licensing requirements can now do so.
CARRYING A GUN BETWEEN JURISDICTIONS. The 1968 act did not address the effects of state and local regulations concerning intrastate (within a state) transportation of weapons. The 1986 laws made it legal to transport any legally owned gun through a jurisdiction where it would otherwise be illegal, provided the possession and transporting of the weapon are legal at the point of origin and point of destination. The gun must be unloaded and placed in a locked container or in the trunk of a vehicle.
FEDERAL CRIMES. The 1968 legislation prohibited the carrying or use of a firearm during and in relation to a federal crime of violence. In addition, anyone convicted of this crime was subject to a minimum penalty over and above any sentence received for the primary offense. The 1986 act added serious drug offenses to the category of crimes and doubled the existing penalty if a machinegun or gun equipped with a silencer is used.
FORFEITURE OF FIREARMS AND AMMUNITION. Prior to 1986, any firearm or ammunition involved in, used, or intended to be used in violation of the Gun Control Act or other federal criminal law could be taken away from the gun owner. The Gun Control Act of 1986 made forfeiture no longer automatic. For some offenses, a willful element must be demonstrated; for others, "knowledge" is enough. In the case of a firearm being "intended for use" in a violation, "clear and convincing evidence" of the intent must be shown. In addition, only specified crimes now justify forfeiture, including crimes of violence, drug-related offenses, and certain violations of the Gun Control Act. In all cases, forfeiture proceedings must begin within 120 days of seizure, and the court will award attorney fees to the owner if the owner wins the case.
CRIMINAL PENALTIES. The 1968 law stated that a demonstration of "willfulness" was not needed as an element of proof of violation of any provision of the act, while the Gun Control Act of 1986 required proof of "willful" violation or a "knowing" violation in order to prosecute. The 1986 act also reduced licensee recordkeeping violations from felonies to misdemeanors.
LEGAL DISABILITIES. Under the 1968 law, any person who had been convicted of a crime and sentenced to prison for more than one year was restricted from shipping, transporting, or receiving a firearm and could not be granted a Federal Firearms License. State pardons could not erase the conviction for federal purposes. On the other hand, a convicted felon could make a special request to the secretary of the treasury to be allowed to possess a firearm. The secretary of the treasury had to certify that the possession of a firearm by a convicted felon was not contrary to public interest and safety and that the applicant did not commit a crime involving a firearm or a violation of federal gun control laws.
Under the 1986 act, state pardons can erase convictions for federal purposes, unless the person is specifically denied the right to possess or receive firearms. The 1986 law allowed those who violated the laws to appeal, even those whose crime involved use of a firearm or a federal gun control conviction.
MACHINE-GUN FREEZE. The National Firearms Act (1934) imposed production and transfer taxes, as well as registration requirements, on firearms typically associated with criminal activity. These restrictions specifically applied to machine guns, destructive devices such as bombs, missiles and grenades, and firearm silencers. A machine gun was defined as "any combination of parts designed and intended for use in converting a weapon to a machine gun."
The Firearms Owners' Protection Act of 1986 made it "unlawful for any person to transfer or possess a machine gun" unless it was manufactured and legally owned before May 19, 1986. In addition, the definition was revised to include any combination of parts "designed and intended solely and exclusively for use in conversion." By refusing to review a lower court's decision in Farmer v. Higgins (907 F.2d 1041, 1990), the U.S. Supreme Court upheld the ban on machine-gun ownership.