Luke Cole: Firearms Owners Protection Act

On May 19, 1986, the Firearms Owners’ Protection Act (FOPA) was signed into law. The first comprehensive redraft of the federal firearm laws since 1968, FOPA was predictably lauded as “necessary to restore fundamental fairness and clarity to our Nation’s firearms laws” and damned as an “almost monstrous idea” and a “national disgrace.” The controversy was not limited to the rhetorical. Seven years passed between FOPA’s introduction and its Senate vote; the House vote required passage of a discharge petition only the eighth to succeed in the last twenty-six years. FOPA’s impact, however, is not limited to the Gun Control Act, nor even to federal statutes. By expressly exempting interstate transportation of firearms from the reach of many state firearm laws, it affects state proceedings as well. A detailed comprehension of FOPA is thus essential to an understanding of both federal and state firearm laws. Unfortunately, such a comprehension is not easily achieved. FOPA reflects not a simple, single legislative decision, but a complex series of compromises, many of which are only partially reflected in the record. Even where the record is complete, it is rarely clear. The House bill that ultimately became FOPA is supported by a report, but the report explains not why FOPA should have been adopted, but rather, why it ought to have been rejected.

Pre-1986 Federal Firearms Laws

Nationalization of Firearm Regulation: The National Firearms Act of 1934 and Federal Firearms Act of 1938. Firearms and weapons control statutes are by no means a legislative novelty. The first handgun ban was enacted in 1837, restrictions on sale or carrying of handguns were commonplace by the turn of the century, and the National Conference of Commissioners on Uniform State Laws spent seven years in the 1920s preparing a uniform state act on the subject. Nonetheless, prior to 1934, the sole federal statute on the subject was a 1927 ban on use of the mails to ship firearms concealable on the person. The late 1920s and early 1930s brought, however, a growing perception of crime both as a major problem and as a national one. Public officials did much to support the perception; the mobility of the automobile enabled criminals, in those pre-police radio days, to move between jurisdictions before police units could generally be alerted; such criminal gangs found the sub machinegun (a fully automatic, shoulder-fired weapon utilizing automatic pistol cartridge) and sawed-off shotgun deadly for close-range fighting. The resulting quest for law enforcement solutions approached the incredible.

Expansion of National Firearms Laws: The Gun Control Act of 1968

The National Firearms Act and Federal Firearms Act formed the backdrop for the next major federal firearms legislation, the two statutes known collectively as the Gun Control Act of 1968. As is often the case, the dry legal history of that Act covers a complex legislative reality. In the post-war years, domestic firearms manufacturers encountered heavy competition from home hobbyists who converted inexpensive imported military arms into hunting and target rifles. “Mail order houses” imported such arms for a pittance and resold them to a national market. Domestic arms manufacturers saw their sporting markets undercut and began pressing for protective measures. Protests to the State and Defense Departments over issuance of surplus import licenses yielded little result. The industry then sought a legislative remedy and in 1958 secured passage in the House of a rider to the Mutual Security Act that would have barred virtually all surplus arms imports. The National Rifle Association took issue with the manufacturers and strongly opposed the amendment. The Senate, citing possible violations of the General Agreement on Trades and Tariffs, limited the restriction to re-importations of American arms, a restriction which prevailed in conference. After this failure, the firearms manufacturers approached Senator Dodd, with arguments and suitable tribute was introduced in August 1963 and had extremely limited scope.

Prohibited Persons

S. 1-90 would have barred firearms receipt by fugitives from justice and persons under indictment for, or convicted of, a crime punishable by imprisonment exceeding one year, a term defined to exclude antitrust, unfair trade, and similar infractions. These provisions were, in the main, borrowed from the Federal Firearms Act, which, however, applied this bar only to sales in interstate commerce. S. 1-90 would have allowed persons convicted of such violations–other than violations of the federal firearms laws to apply for an administrative “relief from disabilities,” by which Treasury, upon proof of good character, might restore the right to own or deal in firearms. The latter provision was taken from a 1965 amendment to the Federal Firearms Act, sponsored by Dodd to deal with the problems of a firearms manufacturer. Additionally, under S. 1-90, dealers would have been barred from selling rifles or shotguns to persons under eighteen years of age, or any other firearms to persons under twenty-one years of age, and they would have been generally forbidden to sell any firearm to those whom they knew or should have known “could not lawfully purchase or possess in accord with applicable laws, regulations or ordinances of the State” or locality in which the transferee resided.

Dealer Licensing

S. 1-90 would have required persons “engaged in the business” of firearms dealing to obtain licenses. This was an expansion of the Federal Firearms Act, which required licensing only if the person “engaged in the business” and shipped or received firearms in interstate commerce. While the Federal Firearms Act licenses were issued upon request, and revoked only upon criminal conviction, S. 1-90 provided that the Secretary “may” issue such licenses and must deny them if the applicant was “by reason of his business experience, financial standing, or trade connections, not likely to commence business operations.” Persons who had wilfully violated the Act or who lacked “business premises’” were likewise denied a license. Dealers were obliged to maintain records fixed by regulation, and their premises were open to inspection at will during business hours.

Interstate Sales

The Federal Firearms Act barred interstate sales between non-prohibited persons only when the buyer’s state required, and the buyer lacked, a license to purchase. S. 1-90 drew a line between “long arms” (shotguns and rifles) and other firearms (primarily handguns). Persons who were not licensed dealers could purchase handguns only in their state of residence. Residents of different states could sell each other rifles and shotguns so long as the receipt did not violate state or local law at the buyer’s place of residence. Dealer “mail order sales” of any firearms were barred by a provision barring a licensee from shipping firearms or ammunition to a non-licensee in interstate commerce.

National Firearms Act Weapons

The National Firearms Act required licensing of all machineguns, silencers, and short-barrelled rifles and shotguns. S. 1-90 would have imposed similar restrictions on “destructive devices,” including bombs, grenades, and firearms with a bore over .50 caliber. Sales of National Firearms Act weapons and destructive devices by a licensed dealer required an affidavit of approval from the chief law enforcement officer of the purchaser’s jurisdiction, and interstate transportation of such arms would have required approval by the Secretary.

Importation

S. 1-90 would have barred firearms imports subject to a few exceptions, the most important being rifles, shotguns, and non-military handguns “generally recognized as suitable for or readily adaptable to sporting purposes.” The day before S. 1-90’s introduction, Senator McClellan introduced S. 917, “The Safe Streets and Crime Control Act of 1967.” In committee, the bill was renamed “The Omnibus Crime Control and Safe Streets Act of 1967” and a new Title IV, dealing with firearms, was added. Title IV tracked S. 1-90 in all but a few details; it did not, for example, prohibit mail order sale of rifles and shotguns, nor place minimum age limits on their purchasers. After lengthy debate, the Senate passed S. 917 with several amendments. One amended the exemption for “antique” firearms, which were not subject to the Act, advancing the cut-off date to 1898 from the committee’s 1870 cut-off. A second changed the prohibition on dealer’s sales in violation of state or local law or ordinance. Under the amendment, the dealer’s obligation was to avoid sales barred by state law or a “published ordinance,” the latter being one determined by the Secretary of the Treasury (the Secretary) to be relevant to purposes of the Act and so published in the Federal Register. A third amendment was more significant and, regrettably, less well thought out. It amended S. 917 to add a new title VII, which prohibited certain persons not only from receiving, but also from possessing firearms. The list of prohibited persons did not, however, tally with that in Title IV. To Title IV’s list of convicted felons and fugitives from justice, Title VII added persons given a dishonourable discharge by the military, those judicially adjudged “mentally incompetent,” those who had renounced their citizenship, those who were aliens unlawfully within the state., or those who were acting in the course of employment of any of the other classes. Nor did the discrepancy end there: Title IV had defined a felon as one convicted of a crime punishable by more than one year’s imprisonment, excluding certain business-related offenses, while Title VII simply used the term “felony.” Title IV excepted from this class a person given “relief from disability”; Title VII excepted a person pardoned and “expressly authorized” to own firearms. The Senate substituted S. 917, with these amendments, for the House-passed version of the bill, and the House accepted the Senate version. Thus did Titles IV and VII become law.

Enactment of the Firearms Owners’ Protection Act

One of the last House amendments to the Gun Control Act added section 101, declaring that “it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law abiding citizens with respect to the acquisition, possession, or use of firearms.” Enacting FOPA nearly two decades later, the Congress expressly found that “additional legislation is required to reaffirm the intent of the Congress, as expressed in section 101 of the Gun Control Act.” Between the two statements lay eighteen years of experience and a seven-year legislative gestation period whose intricacies rivalled those of the Gun Control Act itself. Enforcement of the Gun Control Act was initially delegated to the Alcohol and Tobacco Tax Division of the Internal Revenue Service, which had previously enforced the National Firearms Act and Federal Firearms Act. In 1969, this agency became the Alcohol, Tobacco, and Firearms Division; three years later it achieved full bureau status as the Bureau of Alcohol, Tobacco and Firearms (BATF). To the stresses of growth was added the virtual collapse of BATF’s traditional duties of enforcing the alcohol taxes. Almost forty percent of BATF’s manpower was directed at a law enforcement problem that had all but vanished. The agency response was a series of heavily publicized projects to demonstrate a potential for firearms operations. Agents and supervisors were implicitly or explicitly assigned quotas and older agents were increasingly replaced with younger, more zealous operatives. Pressure for results, coupled with extremely loose control, led to stringent enforcement of the Gun Control Act’s provisions. This was hardly the first time a statute with broad enforcement powers had been pushed to the limit but BATF’s victims were typically appealing citizens and were represented by relatively well-connected organizations. Even so, the opening skirmish came not over law enforcement, but over the Gun Control Act’s creation of a secretarial power to require submission of reports by licensees. BATF’s attempt to use this power to require manufacturers, importers, and wholesalers to report firearm transfers for agency data processing led to a credibility-damaging legislative fight and prohibitory riders on Treasury appropriations.

Dealer Licensing

A dealer’s license would be required of anyone “whose time, attention and labour is occupied by dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of an inventory or [sic] firearms.” Persons making occasional sales or selling all or part of a “personal collection” were expressly excluded.

Interstate Sales

Sales to non-residents by dealers and non-dealers alike would be allowed unless receipt of the firearm by the purchaser “would be in violation of any published ordinance or law of the state or locality where such person resides.”

Prohibited Persons

Inconsistencies between Title VII and Title IV prohibitions would be resolved by repealing Title VII and merging its prohibited person classes with those of Title IV. The result would be a single set of provisions barring possession or receipt by, and sale or transfer (by dealer and non-dealer alike) to a list of prohibited classes. The bar on possession by felons would be narrowed to those convicted of certain “disabling crimes” defined as violations of twenty-three chapters of the United States Code “or any similar crime.” Persons under indictment were not included within the proscription, nor were persons with convictions “set aside or expunged.”

Enforcement

Criminal prosecution would require proof of a wilful violation. Forfeiture would require conviction; any verdict other than guilty, or failure to prosecute within 120 days of seizure, would require return of the seized property. Only firearms named and “individually identified” as involved in or used in (not “intended” to be used in) a wilful violation would be subject to forfeiture. License revocation would be barred if criminal charges were filed and the licensee was not convicted. Attorneys’ fees “shall” be allowed to victorious claimants in forfeiture actions and “may” be allowed in other actions in which the court finds charges were without foundation, or brought vexatiously, frivolously or in bad faith.

Records

Warrantless inspection of the premises of a licensee would be allowed only when reasonable grounds existed to believe evidence of a violation of the chapter might be found.

Rulemaking

A minimum of ninety days’ public notice would be required; “One-House Veto” provisions were established. No rule could require records to be transferred to a federal or state facility, or establish a system of firearm registration.

Mandatory Sentencing

The Gun Control Act’s additional sentence (technically, an additional offense) for use or unlawful carrying of a firearm in a federal crime would be made mandatory on first offense, rather than on second.

Interstate Transportation

Any state law or regulation prohibiting the transfer of a firearm in interstate commerce through the state “provided that the firearm is unloaded and not readily accessible” would be rendered null and void. These original forms of FOPA saw no legislative action in the Ninety-sixth Congress. A successor, S. 1030, was introduced in the Ninety-seventh Congress. S. 1030 as introduced contained several significant changes from S. 1862. First, S. 1030 added a prefatory statement of purpose, citing the objective of protecting individual rights under the second, fourth, fifth, ninth and tenth amendments along with rights granted under the Privacy Act, and adding a finding that the purposes of the Gun Control Act had been thwarted by harassment of law-abiding citizens. A second, substantive change completely restructured treatment of “prohibited persons.” S. 1862’s attempt to define specific “disabling” offenses was dropped, and the Gun Control Act’s broad inclusion of non-business felonies was retained, together with its bar on receipt (but not possession) by those under indictment.

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