Firearm Owners Protection Act - Machine Guns For Sale

The Firearm Owners' Protection Act of 1986 (FOPA) is a United States federal law that revised many provisions of the Gun Control Act of 1968.

Federal firearms law reform

Under the Gun Control Act of 1968, the Bureau of Alcohol, Tobacco and Firearms (ATF) 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 some FFL licensees.

A February 1982 report by a Senate subcommittee that studied the Second Amendment said:

The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.

The report also said that 75 percent of ATF prosecutions "were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations." It suggested that reform of federal firearms law such as proposed in S. 1030 "would be largely self-enforcing" and "would enhance vital protection of constitutional and civil liberties of those Americans who choose to exercise their Second Amendment right to keep and bear arms."

The Firearm Owners Protection Act of 1986 (FOPA) addressed the abuses noted in the 1982 Senate Judiciary Subcommittee report. Among the reforms intended to loosen restrictions on gun sales were the reopening of interstate sales of long guns on a limited basis, legalization of ammunition shipments through the U.S. Postal Service (a partial repeal of the Gun Control Act), removal of the requirement for record keeping on sales of non-armor-piercing ammunition, and federal protection of transportation of firearms through states where possession of those firearms would otherwise be illegal. However, the Act also contained a provision that banned the sale of machine guns manufactured after the date of enactment to civilians, restricting sales of these weapons to the military and law enforcement. Thus, in the ensuing years, the limited supply of these arms available to civilians has caused an enormous increase in their price, with most costing in excess of $10,000. Regard ing these fully automatic firearms owned by private citizens in the U.S., political scientist Earl Kruschke said "approximately 175,000 automatic firearms have been licensed by the Bureau of Alcohol, Tobacco, and Firearms (the federal agency responsible for administration of the law) and evidence suggests that none of these weapons has ever been used to commit a violent crime."

The gun rights movement lobbied Congress to pass the FOPA to prevent the abuse of regulatory power â€" 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. 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.

Ban on new machine guns

As debate for FOPA was in its final stages in the House before moving on to the Senate, Rep. William J. Hughes (D-N.J.) proposed several amendments including House Amendment 777 to H.R. 4332, which modified the act to ban the civilian ownership of new machine guns, specifically to amend 18 U.S.C. § 922 to add subsection (o):

(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect toâ€"

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

The ATF, as a representative of the U.S. and with authority from the National Firearms Act, can authorize the transfer of a machine gun to an unlicensed civilian. An unlicensed individual may acquire machine guns, with ATF approval. The transferor must file an ATF application, which must be completed by both parties to the transfer:

• executed under penalties of perjury
• both parties must reside in the same state as the individual
• pay a $200 transfer tax to ATF
• the application must include detailed information on the firearm and the parties to the transfer
• the transferee must certify on the application that he or she is not disqualified from possessing firearms on grounds specified in law
• the transferee must submit with the application (1) two photographs taken within the past year; and (2) fingerprints
• the transferee must submit with the application (3) a copy of any state or local permit or license required to buy, possess, or acquire machine guns
• an appropriate (local) law enforcement official must certify whether he or she has any information indicating that the firearm will be used for other than lawful purposes or that possession would violate state or federal law
• the transferee must, as part of the registration process, pass an extensive Federal Bureau of Investigation criminal background investigation.

If ATF denies an application, it must refund the tax. Gun owners must keep approved applications as evidence of registration of the firearms and make them available for inspection by ATF officers.

In the morning hours of April 10, 1986, H.Amdt.777 Amendment passed the House by voice vote, and the House held recorded votes on three amendments to FOPA in Record Vote No's 72, 73, and 74. Recorded Vote 72 was on H.AMDT. 776, an amendment to H.AMDT 770 involving the interstate sale of handguns; while Recorded Vote 74 was on H.AMDT 770, involving primarily the easing of interstate sales and the safe passage provision. Recorded Vote 74 was the Hughes Amendment that called for the banning of machine guns. Rep. Charles Rangel (D-N.Y.), at the time presiding as Chairman over the proceedings, claimed that the "amendment in the nature of a substitute, as amended, was agreed to." However, after the voice vote on the Hughes Amendment, Rangel ignored a plea to take a recorded vote and moved on to Recorded Vote 74. The bill, H.R. 4332, as a whole passed in Record Vote No: 75 on a motion to recommit. Despite the controversial amendment, the Senate, in S.B. 49, adopted H.R. 4332 as an amendm ent to the final bill. The bill was subsequently passed and signed on May 19, 1986 by President Ronald Reagan to become Public Law 99-308, the Firearms Owners' Protection Act.

"Safe Passage" provision

One of the law's provisions was that persons traveling from one place to another cannot be incarcerated 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), provided that the firearms and ammunition are not immediately accessible, that the firearms are unloaded and, in the case of a vehicle without a compartment separate from the driver’s compartment, the firearms are located in a locked container.

Registry prohibition

The Act also forbade the U.S. Government agency 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 (http://www.law.cornell.edu/uscode/text/18/926) being:

No such rule or regulation prescribed [by the Attorney General] 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.

Nevertheless, the ATF Firearms Tracing System (FTS) contains hundreds of millions of firearm tracing and registration records, and consists of several databases:

1. Multiple Sale Reports. Over 460,000 (2003) Multiple Sales reports (ATF F 3310.4 - a registration record with specific firearms and owner name and address - increasing by about 140,000 per year). Reported as 4.2 million records in 2010.

2. Suspect Guns. All guns suspected of being used for criminal purposes but not recovered by law enforcement. This database includes (ATF's own examples), individuals purchasing large quantities of firearms, and dealers with improper record keeping. May include guns observed by law enforcement in an estate, or at a gun show, or elsewhere. Reported as 34,807 in 2010.

3. Traced Guns. Over 4 million detail records from all traces since inception. This is a registration record which includes the personal information of the first retail purchaser, along with the identity of the selling dealer.

4. Out of Business Records. Data is manually collected from paper Out-of-Business records (or input from computer records) and entered into the trace system by ATF. These are registration records which include name and address, make, model, serial and caliber of the firearm(s), as well as data from the 4473 form - in digital or image format. In March, 2010, ATF reported receiving several hundred million records since 1968.

5. Theft Guns. Firearms reported as stolen to ATF. Contained 330,000 records in 2010. Contains only thefts from licensed dealers and interstate carriers (optional). Does not have an interface to the FBI's National Crime Information Center (NCIC) theft data base, where the majority of stolen, lost and missing firearms are reported.

Clarification of prohibited persons

The older Gun Control Act of 1968 prohibits firearms ownership in the U.S. by certain categories of individuals thought to pose a threat to public safety. However, this list differed between the House and the Senate versions of the bill, and led to confusion. The 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 one year, excluding those crimes punishable by imprisonment related to the regulation of business practices, whose full civil rights have not been restored by the State in which the firearms disability was first imposed.
• Anyone who is a fugitive from justice.
• Anyone who is an unlawful user of or addicted to any controlled substances.
• Anyone who has been adjudicated as a mental defective or has been involuntarily 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 and/or has been granted a waiver from the Attorney General.
• 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)
• A person who is under indictment or information for a crime (misdemeanor) punishable by imprisonment for a term exceeding two years 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 2001, the United States Court of Appeals for the Fifth Circuit (consisting of Texas, Louisiana and Mississippi) ruled that the Lautenberg Amendment, 18 U.S.C. § 922(g)(8)(C)(ii), relating to a firearm ban with respect to persons under a court order in connection with domestic violence, did not violate the Second Amendment and did not violate the Due Process Clause of the Fifth Amendment as applied to the defendant, in United States v. Emerson.