The Bill of Rights was ratified in 1791. In it, the Second Amendment stated that “the right to bear arms shall not be infringed.” For the next 140 years or so, the federal government took the statement at face value. However, in 1934, during the thick of The Great Depression, Congress sought to stem gang violence by passing the National Firearms Act.
The idea was to take weapons from gangs and make them harder to obtain. So, using its authority to levy taxes, Congress placed a $200 tax on “short-barrel shotguns,” “machine guns,” and what the act referred to as “silencers” or “mufflers” for guns. The tax was so exorbitant, it would have amounted to nearly $4000 in today’s money.
That effort left much to be desired. Congress returned again to pass legislation in 1938 which broadened the scope of infringement to attack not only the weapons, but also those who built, shipped, bought, and sold them. The Federal Firearms Act required licensure of gun manufacturers, importers, and dealers. At the other end of the purchase, it created the first list of 'prohibited persons,' which included felons and people with certain mental disabilities.
Then Congress passed the Gun Control Act in 1968. In the lead up to this bill, the country was shaken by the high profile assassinations of John F. and Robert Kennedy, as well as that of Martin Luther King Jr. This law represents the height of infringement in our short history.
This law repealed both the NFA and the FFA, but re-enshrined nearly all of their concepts and greatly increased the scope of most of them. Taxation on firearms was kept. Licensure of all aspects of production and distribution was maintained as well, leading to the Federal Firearms Licensing system we are all familiar with today. The prohibited persons list was more broadly defined. The law also added a more liberal definition of a firearm.
And finally, the law demanded serialization of weapons so it could demand retailers keep sales records of all weapons bought and sold. The purpose for this was so the federal government could legally begin a weapons registry.
In 1986, tides began to recede on the infringement of gun rights. The passage of the Firearm Owner’s Protection Act sought to restore the freedoms that had been obstructed over the previous fifty years. It rescinded the gun registry of the GCA.
It also created an out from the prohibited persons list of previous laws, allowing reformed felons and those who have overcome mental illnesses the opportunity to possess firearms on a limited basis. It scaled back the penalties for recordkeeping offenses on the part of the manufacturing, distributing, and retailing process.
On the other hand, this law did ban the manufacture of “machine guns'' and the sale of an existing one to anyone without a permit.
The most contentious element of the gun control argument exists in the 1986 FOPA, as its critics seem to believe it created the dreaded “gun show loophole.” Or did it? A provision of this law, 18 USC 922 (c) (1-3), allows FFLs to sell firearms away from their place of business. Or, in other words, gun retailers can meet in neutral locations and sell their wares, like a farmers market for guns. However, they are all still bound by the same laws that apply in their brick and mortar locations: background checks, waiting periods, and any state laws that may apply.
Individuals trying to sell their personal firearms may also congregate at gun shows. While there, they may sell their weapons so long as they have no reason to believe the purchaser is a member of the prohibited persons category. That's it, that's their objection.
Joe Nobody can bring his old pistol to a gun show, hoping John Anonymous wants to buy it from him for more than an FFL will offer him, but for less than said FFL will sell it to John. Or, more generally, Joe and John can meet privately wherever they like and exchange. And the federal government is not getting into the middle of that, saying if it's ok or not ok.
As if that should be their role here. And this allowance does not prevent Joe from insisting on a background check on John with an FFL if he wants to either.
If I'm to play devil's advocate, I would acknowledge their supposed intention is to ensure that firearms do not end up in the hands of criminals or those prepared to use them criminally. But statistics and recent, anecdotal evidence regarding gun crime show that, most often, this exact premise would rarely, almost never, cause meaningful change.
The question remains as to why it is not illegal or restricted like other transactions. Did the FOPA make this gun show loophole by carving an exception out of past gun law? No, not federally, at least. Private transactions were not previously illegal. The next question comes naturally, why? The answer: it's none of the government's business. The federal government has limits on how it can act– that's why the original NFA and FFA only taxed guns and gun professionals. That's why every single gun law regulates interstate commerce. Because that's the government's scope.
Guns, by and large, aren't illegal. Why? Because of the Second Amendment. That we can buy and sell guns to each other is not an exception to the rule, it is a practice of our foundational freedoms. The fact that there are so many limits to them is what we should find exceptional.
Moving on from the FOPA, in 1993, Congress passed the Brady Law. Short and sweet, it implemented a huge tool in gun control, the NICS system. NICS, or, the National Instant Criminal Background Check System, actually targeted criminals by allowing FFLs to check if a buyer was a prohibited person in a reasonable period of time prior to releasing a firearm to a buyer.
In 1994, the "assault weapons ban" was shoehorned into a much larger law on crime, the Violent Crime Control and Law Enforcement Act. It prohibited the right to buy, sell, transport, or even manufacture a number of popular weapons, including the AR-15. This law was subject to a sunset after ten years. It was not renewed, despite several attempts, and was rescinded in 2004.
That sunset came on the heels of the Tiahart amendment, in 2003, which simply prohibited the ATF from revealing information publicly about FFLs that failed to prevent the illegal purchase of firearms.
Shortly after that, in 2005, the Protection of Lawful Commerce in Arms Act indemnified gun manufacturers from liability for deaths caused by their guns.
The most recent action on the front of gun rights (for now) came in 2008 and was not legislation. Instead, it was a landmark Supreme Court decision, D.C. vs. Heller. In this decision, the court concluded the individual had the right to keep and bear arms, even outside of the organized militia context. The implication being that municipalities, states, and the federal government cannot expressly prohibit the right to possess or use firearms, nor can they do so through a combination of laws– as was the case in Washington D.C.
One last aspect of the infringement of the Second Amendment not yet addressed is the myriad state laws that, in their own ways, obstruct or prohibit our right to bear arms. For example, it is illegal for private parties to sell guns without background checks in twenty-two states. That means there is no private sales exemption in those states– no “gun show loophole.”
That is how federalism works. States have the claim to control intrastate commerce in ways the federal government cannot. The constituents of those twenty-two states have decided to support representatives more willing to stamp over constitutional rights than others.
Remember: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
