Appendix A. Legislation in the 111th Congress.
* carrying firearms on public lands (P.L. 111-24),
* transporting firearms in passenger luggage on Amtrak trains (P.L. 111-117),
* widening law enforcement off-duty concealed carry privileges (P.L. 111-272),
* prohibiting higher health care premiums for gun owners (P.L. 111-148), and
* prohibiting the Department of Defense (DOD) from regulating firearms privately owned but lawfully held by service members, DOD civilian personnel, and their family members off-base (P.L. 111-383).
The 111th Congress also reconsidered or newly considered several other provisions that were not enacted:
* gun rights restoration for veterans previously deemed to be mentally incompetent (S. 669 and H.R. 6132),
* interstate reciprocity of concealed carry privileges (S. 1390 and S. 845),
* firearms possession in public housing (H.R. 3045 and H.R. 4868), and
* the treatment of firearms under bankruptcy proceedings (H.R. 5827/S. 3654).
Constitutionality of DC Handgun Ban and Related Legislation
On June 26, 2008, the Supreme Court issued its decision in District of Columbia v. Heller on the constitutionality of a DC law that banned handguns for 32 years, among other things. Passed by the DC Council on June 26, 1976, the DC handgun ban required that all firearms within the District be registered and all owners be licensed, and it prohibited the registration of handguns after September 24, 1976. In a 5-4 decision, the Supreme Court found the handgun ban to be unconstitutional because it violated an individual's right under the Second Amendment to possess a handgun in his home for lawful purposes such as self-defense. (402)
DC Council Passes Emergency Law
On July 15, 2008, the DC Council passed a temporary, emergency law that allowed residents through a registration/certificate process to keep a handgun in their home as long as that firearm had a capacity of fewer than 12 rounds of ammunition and was not loadable from a magazine in the handgrip, which in effect limited legal handguns under the temporary law to revolvers as opposed to semiautomatic pistols. The emergency law also continued to require that handguns be kept unloaded and disassembled, or trigger locked, unless an attack in a home was imminent or underway. Pro-gun groups immediately criticized the council's emergency law for not being in the "spirit" of the Supreme Court's decision because it continued to ban semiautomatic pistols and did not fully roll back the trigger lock requirement. Since the initial emergency law was passed, the DC Council has passed several other pieces of similar temporary, emergency laws related to the Heller decision. These laws include new firearms-related provisions that were also included in permanent legislation passed by the DC Council that is described below.
Legislation Related to DC Gun Laws (403)
Several Members of Congress were dissatisfied with the DC Council's temporary law. On July 24, 2008, Representative Mike Ross filed a motion to discharge the Rules Committee from consideration of H.Res. 1331, a resolution that would have provided for the consideration of a bill to restore Second Amendment rights in the District of Columbia (H.R. 1399). (404) This bill was similar to previous bills introduced by Representative Mark Souder and Senators Kay Bailey Hutchison and Orrin Hatch in previous congresses. Representative Ross introduced H.R. 1399 in the 110th Congress for himself and Representative Souder on March 27, 2007, and Senator Hutchison introduced a companion measure (S. 1001) on March 28, 2007.
In the 110th Congress, Representative Travis Childers introduced a similar bill (H.R. 6691) on July 31, 2008. All three bills would have amended the DC Code to
* limit the Council's authority to regulate firearms;
* remove semiautomatic firearms that can fire more than 12 rounds without manually reloading from the definition of "machine gun";
* amend the registration requirements so that they do not apply to handguns, but only to sawed-off shotguns, machine guns, and short-barreled rifles;
* remove restrictions on ammunition possession;
* repeal requirements that DC residents keep firearms in their possession unloaded and disassembled, or bound by a trigger lock;
* repeal firearms registration requirements generally; and
* repeal certain criminal penalties for possessing or carrying unregistered firearms.
Representatives John Dingell, John Tanner, and Mike Ross reportedly negotiated an agreement with the House leadership to consider H.R. 6691 in early September. (405) H.R. 6691 included language that stated as a congressional finding that DC officials "have indicated their intention to continue to unduly restrict lawful firearm possession and use by citizens of the District." H.R. 6691 also included a provision that would have allowed DC residents to purchase firearms from federally licensed gun dealers in Virginia and Maryland.
On September 9, 2008, the House Oversight and Government Reform Committee held a hearing on the possible effects H.R. 6691 might have on the District. On the same day, Representative Eleanor Holmes Norton introduced H.R. 6842, a bill that would have required the DC mayor and Council to ensure that regulations were promulgated that would have been consistent with the Heller decision. On September 15, 2008, the House Oversight and Government Reform Committee reported H.R. 6842 (H.Rept. 110-843). On September 17, 2008, however, the House amended H.R. 6842 with the text of H.R. 6691 and passed the Childers bill.
DC Council Passes Permanent Legislation
On December 16, 2008, the DC Council passed the Firearms Control Amendment Act of 2008 (FCAA; B17-0843) and the Inoperable Pistol Amendment Act of 2008 (IPAA; B17-0593). (406) Mayor Adrian Fenty signed the FCAA into law on January 28, 2009 (L17-0372). This bill was transmitted to Congress on February 10, 2009. From the day of transmittal, Congress had 30 legislative days to review this bill under the DC Home Rule Act (according to the District of Columbia). Among other things, this law amends the DC Code to
* adopt the federal definition of "machine gun," which does not include semiautomatic pistols;
* prohibit the possession and registration of "assault weapons" and rifles capable of firing .50 caliber Browning Machine Gun (BMG) rounds; and
* require that all firearms made after January 1, 2011, be microstamped. (407)
Many provisions of this law, including the assault weapons ban and the microstamping provisions, were modeled after California state law.
Mayor Fenty signed IPAA into law on January 16, 2009 (L17-0388). It was transmitted to Congress on February 4, 2009. Because the bill includes penalty provisions, Congress had 60 legislative days to review this bill under the DC Home Rule Act. Among other things, this permanent legislation amends the DC Code to
* criminalize the possession of inoperable firearms;
* criminalize the discharge of firearms;
* prohibit carrying a rifle or shotgun;
* allow for the transportation of firearms under the same conditions as permitted under federal law; and
* change the waiting period to purchase a firearm from 48 hours to 10 days.
DC Voting Rights and Gun Laws in the 111th Congress
On February 26, 2009, Senator John Ensign successfully amended (S.Amdt. 576) the District of Columbia House Voting Rights Act of 2009 (S. 160) by a yea-nay vote of 62-36 (Record Vote Number 72) with language that would have overturned certain DC guns laws and prevent the District from legislating in these areas in the future. The Senate passed this bill on the same day by a yea-nay vote of 61-37 (Record Vote Number 73). (408) This bill was tabled while the House leadership attempted to negotiate an end to the impasse over the DC gun laws and bring its version of the DC voting rights bill (H.R. 157) to the floor. (409) In April 2010, efforts were made to revive the voting rights bill, but some Members prepared amendments to overturn the city's gun laws. Consequently, Members managing the DC voting rights bill postponed further consideration rather than risk passage of amendments that would overturn the city's gun laws. (410) Senator John McCain and Representative Travis Childers introduced their amendments as stand-alone bills, the Second Amendment Enforcement Act (S. 3265/H.R. 5162). In the 112th Congress, Representative Mike Ross has introduced a proposal to restore Second Amendment rights in the District of Columbia (H.R. 645).
Constitutionality of the Chicago Handgun Ban
On June 28, 2010, the Supreme Court issued its 5-4 decision in McDonald v. City of Chicago and found that the individual right to lawfully possess a firearm for the purposes of self-defense under the Second Amendment applied to the states by way of the Fourteenth Amendment. (411) Although the McDonald decision arguably nullified the Chicago handgun ban by limiting a state, city, or local government's ability to prohibit handguns outright, it does not delineate what would constitute permissible gun control laws under the Second Amendment. Indeed, the Supreme Court remanded the Chicago handgun ban back to the Seventh Circuit Court of Appeals for a rehearing. Consequently, the delineation of permissible gun laws will likely be developed in future cases. Nevertheless, the city of Chicago has reportedly adopted handgun regulations that are similar to those adopted by the District of Columbia. These regulations allow eligible residents to register one operable handgun per household, but in most cases that handgun must be locked and rendered inoperable, and it cannot be carried outside of the home. (412)
Public Lands and Firearms Possession and Use
In the 111th Congress, Senator Tom Coburn successfully amended the Credit CARD Act of 2009 (H.R. 627) with a provision (S.Amdt. 1067) that allows private persons to carry firearms in national parks and wildlife refuges (effective February 22, 2010). This amendment passed by a vote of 67 to 29 (Record Vote Number 188) on May 12, 2009. Under H.Res. 456, the House voted on the Coburn amendment as a separate measure and passed it by a vote of 279 to 147. President Barack Obama signed H.R. 627 into law on May 22, 2009 (P.L. 111-24).
Previously, in the 110th Congress during consideration of a public land bill (S. 2483), Senator Coburn offered but later withdrew an amendment (S.Amdt. 3967) that would have overturned federal regulations that prohibit visitors to parks and wildlife refuges managed by the National Park Service (NPS) (413) and Fish and Wildlife Service (FWS) (414) from possessing operable and loaded firearms. While these regulations were last revised substantively in 1981 and 1983, similar firearms restrictions were promulgated in the 1930s in an effort to curb poaching and other illegal activities. There are exceptions for hunting and marksmanship under current law. Since the 1980s, however, many states have passed laws that allow persons to carry concealed handguns for personal protection. Although 48 states have "concealed carry" laws, only 24 of those states reportedly allow concealed handguns to be carried in state parks. (415)
On April 30, 2008, in part at the urging of some Members of Congress, the Department of the Interior (DOI) published proposed regulations that would authorize the possession of loaded and concealed firearms, as long as carrying those firearms in that fashion would be legal under the laws of the states where the public lands are located. (416) While the initial comment period was scheduled to end on June 30, 2008, it was extended until August 8, 2008. (417) DOI reported receiving approximately 90,000 comments on those proposed regulations. Final regulations were issued on December 10, 2008. (418) Those regulations took effect on January 9, 2009. However, on March 19, a U.S. District Judge issued a preliminary injunction on the regulations in a lawsuit brought by three groups: the Brady Campaign to Prevent Gun Violence, the National Parks Conservation Association, and the Coalition of National Park Service Retirees. (419) On March 20, the NRA filed a notice to appeal in Federal District Court in opposition to the preliminary injunction.
Senator Coburn also introduced a bill, the Protecting Americans from Violent Crime Act of 2008 (S. 2619), that was very similar to his proposed amendment and DOI's proposed regulations. Supporters of those proposals pointed to a reported rise in illegal activities and violent crime on public lands. Opponents argued that the risk of a violent crime encounter in National Parks and Wildlife Refuges was negligible. (420) They further argued that allowing others to carry loaded and concealed handguns on their person would make them less safe. In the 111th Congress, similar measures were introduced by Representative Doc Hastings and Senator Mike Crapo (H.R. 1684/S. 816).
Amtrak Passengers and Firearms
On September 16, 2010, Senator Roger Wicker amended the FY2010 Transportation-HUD appropriations bill (H.R. 3288) with language to authorize private persons to carry firearms and ammunition in their checked luggage on Amtrak trains. The Wicker amendment (S.Amdt. 2366) passed by a yea-nay vote, 68-30 (Record Vote Number 279). On September 17, 2009, the Senate passed this bill. Later, H.R. 3288 became the vehicle for the Consolidated Appropriations Act, 2010. Conferees retained the Wicker language in the conference agreement (H.Rept. 111-366), and the President signed H.R. 3288 into law (P.L. 111-117) on December 16, 2009. Section 159 of the act requires Amtrak, with the Transportation Security Administration, to report to Congress (within six months of enactment--June 16, 2010) on proposed guidance and procedures to implement a "checked firearms program." The reported guidance and procedures are to be implemented within one year of enactment. The act further requires that checked firearms be placed in a locked, hard-sided container, and that passengers planning to carry firearms in their luggage declare their intentions to Amtrak at the time they make their reservations or within 24 hours of departure. Similar requirements are set out for placing ammunition in checked luggage.
Law Enforcement Officers Safety Act Amendments
The 111th Congress passed amendments to clarify and expand eligibility under the Law Enforcement Officers Safety Act (LEOSA; P.L. 108-277). This law authorizes certain qualified active-duty and retired law enforcement officers to carry concealed firearms across state lines, while off duty. Senator Leahy, the Judiciary Committee chair, introduced the amendments as a stand-alone bill (S. 1132). In the House, Representative J. Randy Forbes introduced a similar measure (H.R. 3752). The Senate Judiciary Committee approved S. 1132 on March 11, 2010, and the Senate passed the bill on May 13, 2010. The Senate Judiciary Committee filed a report on this bill on July 27, 2010 (S.Rept. 111-233). The House passed S. 1132 on September 29, 2010. The President signed S. 1132 into law on October 12, 2010 (P.L. 111-272). The 2010 LEOSA amendments (1) clarify that certain Amtrak and executive branch law enforcement officers are eligible for concealed carry privileges under P.L. 108-277, (2) reduce the length of service criterion for eligibility under that law from 15 to 10 years, and (3) clarify other provisions of the law related to certification and credentialing.
Previously, in the 110th Congress, the Senate Judiciary Committee reported a similar bill (S. 376; S.Rept. 110-150) on September 5, 2007. This bill was also introduced by Senator Leahy. Representative Forbes introduced a similar bill (H.R. 2726). The language of S. 376 was incorporated into S. 2084, the School Safety and Law Enforcement Improvement Act of 2007, when that bill was reported on September 21, 2007 (S.Rept. 110-183). In the 109th Congress, the Senate amended H.R. 1751, the Court Security Improvement Act of 2006, with similar LEOSA provisions and passed that measure.
Patient Protection and Affordable Care Act and Firearms
The 111th Congress included language in the Patient Protection and Affordable Care Act (PPACA; P.L. 111-148) that prohibits data collection on gun ownership or higher premiums for gun owners under wellness program provisions. The catalyst for this language was an "action alert" that Gun Owners of America (GOA) sent out, urging its membership to oppose a Senate health care reform proposal released on November 18, 2009. The GOA argued that the Senate proposal, along with other enacted provisions of law, would have required doctors to provide "gun-related health data" to a computerized national health information network. (421) With such information, the GOA maintained that the federal government would deny individuals the ability to obtain a firearm or firearms permit. Of particular concern for the GOA were mental health records. Another concern raised by the GOA was the possibility that insurance providers under the Senate proposal would have been required or prompted to raise premiums for persons who exhibited arguably "unhealthy behaviors," such as firearms ownership.
Although the Senate proposal included provisions to amend the Health Insurance Portability and Accountability Act (HIPAA) that addressed electronic data transaction standards for national health information sharing purposes to facilitate eligibility determinations and health care plan enrollments, it did not include any provisions that would have directly required the national collection of "gun-related health data." Without a clear directive, it is debatable whether the Department of Health and Human Services (HHS) would have undertaken such data collection on firearms ownership and possession given other provisions in current law, albeit in different statutory contexts, that prohibit the establishment of a registry of privately held firearms or firearms owners. (422) Dr. David Blumenthal, then National Coordinator for Health Information Technology at HHS, said that the current system does not include a database into which such information could be fed, nor are there plans to create one. (423) Blumenthal added that "we don't want to do it and it's not authorized." (424)
Nor did the Senate proposal include any provisions that would have required or prompted insurance providers to raise premiums on gun owners. On the other hand, the Senate legislation did include provisions that would have codified and amended HIPAA wellness program provisions that would have addressed employer-based incentives for healthy behavior to reduce health care costs. Arguably, these provisions would not have precluded the Secretary of Health and Human Services from promulgating regulations that addressed risks associated with firearms ownership, possession, use, and storage. However, such regulations, if proposed, would have likely been tested in administrative and judicial review as to their impact on Second Amendment rights. Nonetheless, Senate legislators included new language in their Patient Protection and Affordable Care proposal, which the Senate passed as an amendment to H.R. 3590 on December 24, 2009. (425)
The Senate language, which was included in P.L. 111-148, prohibits any wellness and health promotion activity sponsored under the act's HIPAA amendments from requiring the disclosure or collection of any information about the presence or storage of a lawfully possessed firearm or ammunition in the residence or on the property of an individual, or the lawful use, possession, or storage of a firearm or ammunition by an individual. The language also states that nothing in the bill would be construed to authorize any data collection on the lawful ownership, possession, use, or storage of firearms or ammunition, or to maintain records on individual ownership or possession of a firearm or ammunition. In addition, with regard to any health insurance to be provided under the act, this provision prohibits providers from increasing premium rates; denying coverage; or reducing or withholding discounts, rebates, or rewards for participation in a wellness program because of an individual's lawful ownership, possession, use, or storage of a firearm or ammunition. Finally, under the data collection activities authorized under the act, the language states that no individual would be required to disclose any information relating to the lawful ownership, possession, use, or storage of a firearm or ammunition.
Guns Held Off-Base and Surplus Ammunition and Shell Casings
In addition, two firearms-related provisions were included in the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (P.L. 111-383). One provision ([section]1062), sponsored by Senator Jim Inhofe, prohibits the Secretary of Defense, and by implication base commanders, from collecting any information on privately owned firearms kept by military personnel, Department of Defense civilian employees, and their family members off-base. Another provision ([section]346) sponsored by Senators Jon Tester and Max Baucus addresses the demilitarization of small arms ammunition of several types and calibers, including spent shell casings, which is commonly sold as military surplus.
NICS Improvement Amendments Act of 2007 (426)
In the wake of the Virginia Tech tragedy, (427) the 110th Congress passed legislation to improve firearms-related background checks. The Senate amended and passed the NICS Improvement Amendments Act of 2007 (H.R. 2640) following lengthy negotiations, as did the House, on December 19, 2007, clearing that bill for the President's signature. President Bush signed the bill into law on January 8, 2008 (P.L. 110-180). This law amends and strengthens a provision of the Brady Handgun Violence Prevention Act (Brady Act; P.L. 103-159) that requires federal agencies to provide, and the Attorney General to secure, any government records with information relevant to determining the eligibility of a person to receive a firearm for inclusion in databases queried by NICS.
The act also includes provisions designed to encourage states, tribes, and territories (states) to make available to the Attorney General certain records related to persons who are disqualified from acquiring a firearm, particularly records related to domestic violence misdemeanor convictions and restraining orders, as well as mental health adjudications. To accomplish this, the act establishes a framework of incentives and disincentives, whereby the Attorney General is authorized to either waive a grant match requirement or reduce a law enforcement assistance grant depending upon a state's compliance with the act's goals of bringing firearms-related disqualifying records online.
The original proposal (H.R. 2640) was introduced by Representative McCarthy and co-sponsored by Representative John Dingell. As passed by the House by a voice vote on June 13, 2007, H.R. 2640 reportedly reflected a compromise between groups favoring and opposing greater gun control. (428) The Senate Judiciary Committee approved similar, but not identical, NICS improvement amendments as part of the School Safety and Law Enforcement Improvement Act of 2004 on August 2, 2007, and reported this bill on September 21, 2007 (S. 2084; S.Rept. 110183). The Senate Judiciary Committee included five other measures in S. 2084. With some modification, those measures included the School Safety Enhancements Act (S. 1217), the Equity in Law Enforcement Act (S. 1448), the PRECAUTION Act (S. 1521), the Terrorist Hoax Improvements Act (S. 735), and the Law Enforcement Officers Safety Act of 2007 (LEOSA; S. 376). Support for the NICS improvement and the LEOSA amendments (described below) in S. 2084 was reportedly divided and uneven, however. (429) Citing privacy and cost issues related to the NICS amendments, Senator Coburn reportedly placed a hold on that legislation. (430)
In addition, some opposition to NICS improvement amendments had coalesced around an assertion made by Larry Pratt of Gun Owners of America that, under these amendments, any veteran who was or had been diagnosed with Posttraumatic Stress Disorder (PTSD) (431) and was found to be a "danger to himself or others would have his gun rights taken away ... forever." (432) Under current law, however, any veteran or other VA beneficiary who is adjudicated or determined to be a mental defective, because he poses a danger to himself or others, or is incapable of conducting his day-to-day affairs, is ineligible to possess a firearm. A diagnosis of PTSD in and of itself is not a disqualifying factor for the purposes of gun control under the NICS improvement amendments or previous law. Under the enacted NICS improvement amendments, VA beneficiaries who have been determined to be mental defectives could appeal for administrative relief and possibly have their gun rights restored if they could demonstrate that they were no longer afflicted by a disqualifying condition.
Veterans, Mental Incompetency, and Firearms Eligibility
In the 110th Congress, Senator Burr successfully amended the Veterans' Medical Personnel Recruitment and Retention Act of 2008 (S. 2969) in full committee markup on June 26, 2008. The language of the Burr amendment would have provided that "a veteran, surviving spouse, or child who is mentally incapacitated, deemed mentally incompetent, or experiencing an extended loss of consciousness shall not be considered adjudicated as a mental defective" for purposes of the Gun Control Act, "without the order or finding of a judge, magistrate, or other judicial authority of competent jurisdiction that such veteran, surviving spouse, or child is a danger to him or herself or others." Senator Burr introduced a bill, the Veterans' 2nd Amendment Protection Act (S. 3167), that would have achieved the same ends as his amendment to S. 2969.
In the 111th Congress, Senator Burr reintroduced his bill as S. 669, and the Senate Committee on Veterans' Affairs reported this bill (S.Rept. 111-27) on June 16, 2009. Representative Jerry Moran introduced a similar bill (H.R. 2547). The House Veterans' Affairs Committee considered and approved a similar provision that Representative John Boozman offered as an amendment to a draft bill in full committee markup on September 15, 2010. This provision was included in the reported version of the bill (H.R. 6132; H.Rept. 111-630). However, when the House considered H.R. 6132 under suspension of the rules, an amended version of H.R. 6132 was called up that did not include the Boozman provision.
Mental Defective Adjudications
Under 27 C.F.R. Section 478.11, the term "adjudicated as a mental defective" includes a determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence or a mental illness, incompetency, condition, or disease, (1) is a danger to himself or others, or (2) lacks the mental capacity to manage his own affairs. The term also includes (1) a finding of insanity by a court in a criminal case and (2) those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. Sections 850a, 876(b).
This definition of "mental defective" was promulgated by the ATF in a final rule published on June 27, 1997. (433) In the final rule, the ATF noted that the VA had commented on the "proposed rulemaking" and had correctly interpreted that "adjudicated as a mental defective" includes a person who is found to be "mentally incompetent" by the Veterans Benefit Administration (VBA). Under veterans law, an individual is considered "mentally incompetent" if he or she lacks the mental capacity to contract or manage his or her own affairs for reasons related to injury or disease (under 38 CFR [section]3.353). (434) In a proposed rulemaking, the ATF opined that the inclusion of "mentally incompetent" in the definition of "mental defective" was wholly consistent with the legislative history of the 1968 Gun Control Act. (435) Reportedly, the VA could have been the only federal agency that had promulgated a definition like "mentally incompetent" that overlapped with the term "mental defective." (436)
VA Referrals to the FBI
In November 1998, the VBA provided the FBI with disqualifying records on 88,898 VA beneficiaries. VA rating specialists had determined based upon medical evidence that these beneficiaries were unable to manage their own financial affairs. (437) The VA appointed a fiduciary for purposes of receiving and managing each beneficiary's VA benefits. According to the VA, during the determination process beneficiaries were notified that VA proposed to rate them "incompetent" and that they were able to request a hearing and submit evidence to the contrary if they wished. VA also advised these beneficiaries regarding their right to appeal any final rating regarding their ability to receive and manage their own VA benefits. Despite the resultant NICS referral, however, the VA did not necessarily inform the beneficiary that he would lose his gun rights as a consequence of this determination. As described above, under the P.L. 110-180 the VA is required to inform the beneficiary of this outcome.
Interestingly, the Veterans Medical Administration has not submitted any disqualifying records on VA medical care recipients to the FBI for inclusion in NICS for any medical/psychiatric reason (like PTSD). While veterans with PTSD or any other condition, who have been involuntarily committed under a state court order to a VA medical facility because they posed a danger to themselves or others, are ineligible to ship, transport, receive, or possess a firearm or ammunition under federal law, the Veterans Medical Administration would not make a related referral about that ineligibility to the FBI. Instead, the state in which the court resides would submit the disqualifying record to the FBI, if such a submission would be appropriate and permissible under state law. (438)
Nevertheless, the decision by the VA to submit VBA records on "mentally incompetent" veterans to the FBI for inclusion in the NICS mental defective file generated some degree of controversy in 1999 and 2000. (439) Critics of this policy underscored that veterans routinely consented to "mentally incompetent" determinations so that a fiduciary (designated payee) could be appointed for them. Those critics contended that to take away a veteran's Second Amendment rights without his foreknowledge was improper. They also pointed out that no other federal agencies were providing similar disqualifying records to the FBI. This controversy subsided, but it re-emerged when Congress considered the NICS improvement amendments (described above).
According to the Bureau of Justice Statistics, as of May 1, 2011, there were 130,886 files in the NICS mental defective file, which had been referred to the FBI by the VA. Those VA files accounted for 99.2% of mental defective files (131,979) referred to the FBI by any federal department or agency. In the view of some Members of Congress, it may be incongruous that other federal agencies, such as the Social Security Administration, that provide similar disability and income maintenance benefits to persons who are mentally incapacitated refer relatively few, if any, firearms-related disqualifying records about beneficiaries whom they serve to the FBI. Moreover, there are other individuals in the U.S. population who are similarly incapacitated due to their age-related infirmities or mental disabilities, but in many cases there are no mechanisms for state or local authorities to make similar referrals to the FBI. As a consequence, even with the changes put in place by P.L. 110-180, those Members of Congress may view the VA's continued referral of firearms-related disqualifying records on veterans who have had a fiduciary appointed on their behalf but have not behaved in a threatening or dangerous manner to be an unjustified indignity placed on individuals who have served their country honorably in the Armed Forces.
Other Members of Congress would maintain that the VA has faithfully complied with the law and that public safety is enhanced by making those referrals to the FBI. They might also argue that opposition to the VA policy waned between November 1998 and the 2007 congressional debate, demonstrating that veterans who were "adjudicated mental defective," rarely, if ever, sought to acquire and were subsequently denied firearms in a manner that could be described as an injustice. Those Members would likely underscore that, in their view, the VA's current policy does not diminish national recognition of those veterans' honorable service. Rather, the VA's policy has been implemented to protect those veterans and others from the harm that might result if they acquired a firearm and used it improperly due to reasons possibly related to their mental incompetency.
Public Housing and Firearms Possession and Use
In the 110th Congress, the House passed a bill (H.R. 6216) on July 9, 2008, that would have made changes related to the administration of the public housing program administered by the Department of Housing and Urban Development (HUD) through local public housing authorities (PHAs). The bill includes a provision that would have prohibited the HUD Secretary from accepting as reasonable any management or related fees charged by a PHA for enforcing any provision of a lease agreement that requires tenants to register firearms that are otherwise legally possessed, or that prohibits their possession outright. On the other hand, the bill would have allowed PHAs to terminate the lease of any tenant who was found to be illegally using a firearm.
The gun-related provision in H.R. 6216 reportedly reflected a compromise. (440) The original language restricting fees for enforcing gun restrictions was included in a motion to recommit offered during floor debate on a similar public housing bill (H.R. 3521). That bill was not approved by the House, but was sent back to the House Financial Services Committee for further consideration. A new version of the public housing bill (H.R. 5829) was introduced that included language from the motion to recommit, but it did not include the lease termination proviso, and the bill received no further consideration.
In the 111th Congress, the Financial Services Committee reported the Section 8 Voucher Reform Act of 2009 (H.R. 3045; H.Rept. 111-277) on July 23, 2009. In committee markup, Representative Price successfully amended the bill on July 9, 2009, with language that would have prevented authorities from prohibiting firearms in public housing. The committee approved another housing bill that included a similar provision (H.R. 4868) on July 27, 2010.
Concealed Carry and Reciprocity (Thune Amendment)
On July 22, 2009, the Senate considered an amendment (S.Amdt. 1618) offered by Senator Thune to the FY2010 Defense Authorization Act (S. 1390) that would have arguably provided for national reciprocity between states regarding the concealed carry of firearms. By agreement, the amendment needed 60 votes to pass, but it was narrowly defeated by a recorded vote, 58-39.
Senator Thune introduced a similar bill, the Respecting States Rights and Concealed Carry Reciprocity Act of 2009 (S. 845).
As background, the issue of concealed carry under state law can be divided into four categories: (1) no permit required, (2) mandatory or "shall issue," (3) discretionary or "may issue," and (4) no concealed carry permitted. In Alaska and Vermont, state law allowed concealed carry without a permit (no permit required), as is the case today. When the Thune amendment was debated, 35 states had "shall issue" laws, in that the state issues the permit as long as the applicant meets the eligibility criteria. (441) Eleven states were "may issue" states, in that the state had discretion in whether to issue a permit. (442) And, Wisconsin and Illinois state law prohibited the concealed carry of firearms by civilians under any circumstances.
Many states with concealed carry laws have extended concealed carry privileges, or reciprocity, to the residents of other states. According to the NRA, however, those concealed carry laws are often very technical and subject to change. Moreover, there are no national eligibility criteria, or training standards regarding concealed carry. Although the Thune amendment did not address the issue of national standards, it arguably would have required "may issue" states to honor the permits issued by "shall issue" states. By extension, it would also have required "shall issue" and "may issue" states to honor the eligibility of all residents of Alaska and Vermont to carry concealed firearms in their states, as long as those persons were not otherwise prohibited from possessing firearms.
Bankruptcy and Firearms
Representative John A. Boccieri and Senator Leahy introduced the Protecting Gun Owners in Bankruptcy Act of 2010 (H.R. 5827/S. 3654). This proposal would have amended federal bankruptcy law to permit an individual to exempt from the property of his estate a single rifle, shotgun, or pistol, or any combination thereof, as long as the total value of the exemption did not exceed $3,000. On July 28, 2010, the House passed H.R. 5827 by a roll call vote (two-thirds required) of 307-113 (Roll no. 479). In the 112th Congress, Representative Tim Griffin has introduced a similar measure (H.R. 1181).
ATF Appropriations and Southwest Border Gun Trafficking
The 111th Congress considered legislation to either fund ATF or authorize increased appropriations for the agency. The ATF enforces federal criminal law related to the manufacture, importation, and distribution of alcohol, tobacco, firearms, and explosives. ATF works both independently and through partnerships with industry groups; international, state, and local governments; and other federal agencies to investigate and reduce crime involving firearms and explosives, acts of arson, and illegal trafficking of alcohol and tobacco products.
ATF Appropriations for FY2011 (443)
The President's FY2011 budget request included $1.163 billion for ATF, an increase of $42.2 million, or 3.8%, compared to the FY2010-enacted appropriation. Proposed increases (over base) included $11.8 million for Project Gunrunner (444) and $1.2 million for Emergency Support Function #13 (ESF-13), the Public Safety and Security Annex to the National Response Framework (NRF). (445) The NRF sets broad responsibilities and lines of authority for federal agencies in the event of a national emergency or major disaster. Under the NRF, the Attorney General is responsible for ESF-13, which entails all hazards law enforcement planning and coordination for the entire United States and its territories. The Attorney General, in turn, has delegated his responsibility for ESF-13's implementation to the ATF. On July 22, 2010, the Senate Appropriations Committee reported an FY2011 CJS appropriations bill (S. 3636; S.Rept. 111-229). This measure would have provided ATF with $1.163 billion for FY2011, matching the Administration's request. On July 22, 2010, the Senate Appropriations Committee marked up and reported the FY2011 Commerce, Justice, Science, and Related Agencies (CJS) appropriations bill (S. 3636). The Senate bill would have matched the Administration's request. In the absence of an enacted CJS appropriations bill, Congress passed several continuing resolutions. (446) As described above, the 112th Congress finalized the FY2011 ATF appropriation and provided the agency with $1.113 billion.
ATF Appropriations for FY2010447
For FY2010, the Administration requested $1.121 billion and 5,025 full-time equivalent (FTE) positions for ATF, or $66.6 million and 68 FTE positions more than the amounts appropriated for FY2009 ($1.054 billion and 4,957). Of the difference, $23.6 million and 22 FTE positions were base adjustments. For Southwest border enforcement, the FY2010 request included a budget enhancement of $18 million to support Project Gunrunner and $25 million for the new National Center for Explosives Training and Research Center (NCETR). Compared to the enacted FY2009 level of funding, the FY2010 request would have provided a 4.9% increase.
For ATF, Congress appropriated $1.121 billion in the Consolidated Appropriations Act, 2010 (H.R. 3288). The President signed this bill into law on December 16, 2009 (P.L. 111-117). (448) The act provided an amount that was equal to the Administration's request. This amount was $52.5 million more than the final FY2009-enacted amount, or an increase of 4.9%. Conference report language (H.Rept. 111-366) indicated that the act included $18 million for Project Gunrunner, the same amount requested by the Administration. In addition, the act also included $10 million to increase the Violent Crime Impact Team program, $6 million for construction (phase two) of the NCETR, and $1.5 million to complete ATF headquarters construction projects.
On July 28, 2010, the House passed an FY2010 supplemental appropriations bill (H.R. 5875) that included $39.1 million for ATF to increase Southwest border gun trafficking investigations. On August 5, 2010, the Senate passed its version of H.R. 5875, which included $37.5 million for ATF. On August 9, the House introduced a new border security supplemental bill (H.R. 6080), which was subsequently passed by the House on August 10. This bill contained language identical to Senate-passed H.R. 5875. Reportedly, the House took up the bill with a new number to avoid a dispute related to its constitutional obligation to originate all revenue measures. (449) This dispute arose with the addition of funding provisions in Senate-passed H.R. 5875 that were not included in the House-passed version. On August 12, the Senate passed H.R. 6080. On August 13, the President signed H.R. 6080 into law (P.L. 111-230). It provides ATF with an additional $37.5 million for Project Gunrunner.
Southwest Border Gun Trafficking
On the Southwest border with Mexico, firearms violence has spiked sharply in recent years as drug trafficking organizations have reportedly vied for control of key smuggling corridors into the United States. In March 2008, President Felipe Calderon called on the United States to increase its efforts to suppress gun trafficking from the United States into Mexico. In the 110th Congress, the House passed a bill (H.R. 6028) that would authorize a total of $73.5 million to be appropriated over three years, for FY2008 through FY2010, to increase ATF resources dedicated to stemming illegal gun trafficking into Mexico as part of the Merida Initiative. (450) Similar authorizations were included in S. 2867, H.R. 5863, and H.R. 5869. In the 111th Congress, similar authorizations were included in several bills (S. 205, H.R. 495, H.R. 1448, and H.R. 1867).
Tiahrt Amendment and Firearms Trace Data Limitations
Representative Todd Tiahrt offered an amendment that placed several funding restrictions and conditions on ATF and the FBI during full committee markup of the FY2004 DOJ appropriations bill (H.R. 2799). While modified, those restrictions were included in the Consolidated Appropriations Act, 2004 (P.L. 108-199). Amended to the ATF appropriations every year since (FY2005-FY2012), the Tiahrt restrictions
* prohibit the use of any funding appropriated for ATF to disclose firearms trace or multiple handgun sales report data for any purpose other than supporting "bona fide" criminal investigation or agency licensing proceedings,
* prohibit the use of any funding appropriated for ATF to issue new regulations that would require licensed dealers to conduct physical inventories of their businesses,
* require the next-day destruction of approved Brady background check records, and
* require ATF to include certain data disclaimers with any firearms tracing study it releases.
Of these limitations, the first, dealing with disclosure of firearms trace or multiple handgun sales report data, probably was and is the most contentious. A coalition of U.S. mayors, including New York City Mayor Michael Bloomberg, maintain that they should have access to such data in order to identify out-of-state federally licensed gun dealers who wittingly or unwittingly sell large numbers of firearms to illegal gun traffickers.
For FY2008, the Tiahrt limitation on firearms trace and multiple handgun sales report data was the source of debate when the Senate CJS Appropriations Subcommittee did not include this limitation in its draft bill. Senator Richard Shelby amended the FY2008 CJS appropriations bill (which became S. 1745) with similar, but modified, limitations in full committee markup. Similar language was included in the House-passed CJS appropriations bill (H.R. 3093), and was included in the Consolidated Appropriations Act, 2008 (P.L. 110-161; H.R. 2764), into which the CJS appropriations were folded. (451) The modified FY2008 limitation included new language that authorizes ATF to
* share firearms trace data with tribal and foreign law enforcement agencies and federal agencies for national intelligence purposes;
* share firearms trace data with law enforcement agencies and prosecutors to exchange among themselves; and
* release aggregate statistics on firearms traffickers and trafficking channels, or firearms misuse, felons, and trafficking investigations.
The FY2008 limitation, however, continued to prohibit the release of firearms trace data for the purposes of suing gun manufacturers and dealers. Moreover, the limitation includes the phrase "in fiscal year 2008 and thereafter," which made it permanent law according to the Government Accountability Office (GAO). (452) Despite the futurity language, Congress has modified the limitation's language and included it (with futurity language) in the FY2009, FY2010, FY2011, and FY2012 Commerce, Justice, Science (CJS), and Related Agencies Appropriations Acts (P.L. 111-8, P.L. 111-117, P.L. 112-10, and P.L. 112-55).
Appendix B. Major Federal Firearms and Related Statutes
The following principal changes to the Gun Control Act have been enacted since 1968.
* The Firearms Owners' Protection Act, McClure-Volkmer Amendments (P.L. 99-308, 1986), eases certain interstate transfer and shipment requirements for long guns, defines the term "engaged in the business," eliminates some recordkeeping requirements, and bans the private possession of machine guns not legally owned prior to 1986.
* The Armor Piercing Ammunition Ban (P.L. 99-408, 1986, amended in P.L. 103-322, 1994) prohibits the manufacture, importation, and delivery of handgun ammunition composed of certain metal substances and certain full-jacketed ammunition.
* The Federal Energy Management Improvement Act of 1988 (P.L. 100-615) requires that all toys or firearm look-a-likes have a blazed orange plug in the barrel, denoting that it is a non-lethal imitation.
* The Undetectable Firearms Act (P.L. 100-649, 1988, amended by P.L. 108-174, 2003), also known as the "plastic gun" legislation, bans the manufacture, import, possession, and transfer of firearms not detectable by security devices.
* The Gun-Free School Zone Act of 1990 (P.L. 101-647), as originally enacted, was ruled unconstitutional by the U.S. Supreme Court (United States v. Lopez, 514 U.S. 549 (1995), April 26, 1995). The act prohibited possession of a firearm in a school zone (on the campus of a public or private school or within 1,000 feet of the grounds). In response to the Court's finding that the act exceeded Congress's authority to regulate commerce, the 104th Congress included a provision in P.L. 104-208 that amended the act to require federal prosecutors to include evidence that the firearms "moved in" or affected interstate commerce.
* The Brady Handgun Violence Prevention Act, 1993 (P.L. 103-159), requires that background checks be completed on all non-licensed persons seeking to obtain firearms from federal firearms licensees.
* The Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103-322) prohibited the manufacture or importation of semiautomatic assault weapons and large-capacity ammunition feeding devices for 10 years. The act also bans the sale or transfer of handguns and handgun ammunition to, or possession of handguns and handgun ammunition by, juveniles (younger than 18 years of age) without prior written consent from the juvenile's parent or legal guardian; exceptions related to employment, ranching, farming, target practice, and hunting are provided. In addition, the act disqualifies persons under court orders related to domestic abuse from receiving a firearm from any person or possessing a firearm. It also increased penalties for the criminal use of firearms. The assault weapons ban expired on September 13, 2004.
* The Federal Domestic Violence Gun Ban (the Lautenberg Amendment, in the Omnibus Consolidated Appropriations Act for FY1997, P.L. 104-208) prohibits persons convicted of misdemeanor crimes of domestic violence from possessing
firearms and ammunition. The ban applies regardless of when the offense was adjudicated: prior to, or following enactment. It has been challenged in the federal courts, but these challenges have been defeated. (453)
* The Omnibus Consolidated and Emergency Appropriations Act, 1999 (P.L. 105277), requires all federal firearms licensees to offer for sale gun storage and safety devices. It also bans firearms transfers to, or possession by, most non-immigrants and those non-immigrants who have overstayed the terms of their temporary visa.
* The Treasury, Postal and General Government Appropriations Act (P.L. 106-58) requires that background checks be conducted when former firearms owners seek to reacquire a firearm that they sold to a pawnshop.
* The Homeland Security Act of 2002 (P.L. 107-296) establishes a Bureau of Alcohol, Tobacco, Firearms and Explosives by transferring the law enforcement functions, but not the revenue functions, of the former Bureau of Alcohol, Tobacco and Firearms from the Department of the Treasury to the Department of Justice.
* The Law Enforcement Officers Safety Act of 2004 (P.L. 108-277) provides that qualified active and retired law enforcement officers may carry a concealed firearm. This act supersedes state level prohibitions on concealed carry that would otherwise apply to law enforcement officers, but it does not override any federal laws. Nor does the act supersede or limit state laws that permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property or prohibit or restrict the possession of firearms on any state or local government property, installation, building, base, or park.
* The Protection of Lawful Commerce in Arms Act (P.L. 109-92) prohibits certain types of lawsuits against firearms manufacturers and dealers to recover damages related to the criminal or unlawful use of their products (firearms and ammunition) by other persons. (454) This law also includes provisions that (1) increase penalties for using armor-piercing handgun ammunition in the commission of a crime of violence or drug trafficking, (2) require the Attorney General to submit a report (within two years of enactment) on "armor-piercing" ammunition based on certain performance characteristics, including barrel length and amount of propellant (gun powder), and (3) prohibits federally licensed gun dealers from transferring a handgun to an unlicensed person without also providing a secure storage or safety device.
* The Violence Against Women and Department of Justice Reauthorization Act of 2005 (P.L. 109-162) authorized to be appropriated for ATF the following amounts: $924 million for FY2006, $961 million for FY2007, $999 million for FY2008, and $1.039 billion for FY2009.
* The USA PATRIOT Improvement and Reauthorization Act of 2005 (P.L. 109177) includes a provision that requires that the ATF Director be appointed by the President with the advice and consent of the Senate.
* The Disaster Recovery Personal Protection Act of 2006, which was included in the Department of Homeland Security Appropriations Act, 2007 (P.L. 109-295), amended the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. [section]5207) to prohibit federal officials from seizing or authorizing the seizure of any firearm from private persons during a major disaster or emergency if possession of that firearm was not already prohibited under federal or state law. It also forbids the same officials from prohibiting the possession of any firearm that is not otherwise prohibited. Also, the law bans any prohibition on carrying firearms by persons who are otherwise permitted to legally carry such firearms because those persons are working under a federal agency, or under the control of an agency, providing disaster or emergency relief.
Author Contact Information
William J. Krouse
Specialist in Domestic Security and Crime Policy
(1) David A. Fahrenthold et al., "A Day of Tears and Twists in Colorado: As State Mourns, Account Suggests Toll Could Have Been Worse," Washington Post, July 23, 2012, p. A1.
(3) Thom Patterson, "Source: Colorado Shooter Had 100-Round Rifle Magazine," CNN Wire, July 21, 2012.
(5) Thom Patterson, "Police Chief: Suspect Bought over 6,000 Rounds of Ammunition through Internet," CNN Wire, July 21, 2012.
(6) Molly Hennessy-Fiske, et al., "Sikh Temple Gunman Tied to Racist Groups/Army Vet Had Criminal Record, Played in White-Power Band," Chicago Tribune, August 7, 2012.
(10) Scott Bauer and Todd Richmond, "Gunman in Sikh Temple Attack Was White Supremacist," Associated Press, August 7, 2012.
(11) Jonathan Zimmerman, "Shootings in Sikh Temple and Arizona: Which Crime is Worse?," Christian Science Monitor, August 10, 2012.
(12) For further information, see CRS Report RL32585, Semiautomatic Assault Weapons Ban, by William J. Krouse.
(13) Pete Yost, "Fast and Furious-Like 'Gun-Walking' Probe Mentioned In 2007 Bush Administration Memo," Huffington Post, November 4, 2011.
(14) In general, statutory provisions included in an annual appropriations act are usually only applicable to the covered fiscal year, unless they include "futurity" language, in which case, those provisions are usually interpreted to be permanent law. Examples of futurity language include "hereafter," "after the date of approval of this act," and "henceforth." See U.S. Government Accountability Office, Principles of Federal Appropriations Law: Annual Update of the Third Edition, GAO-11-210SP, March 2011, pp. 2-5 through 2-6.
(15) "Gun walking" is alleged to have occurred when ATF agents did not act in a timely manner to arrest, or at least confront, suspected "straw purchasers" and interdict the firearms they had purchased in multiple transactions from federally licensed gun dealers, when the agents arguably had a reasonable suspicion or probable cause to believe that they, the straw purchasers, were trafficking firearms illegally to known associates of Mexican drug trafficking organizations.
(16) U.S. Congress, Fast and Furious: The Anatomy of a Failed Operation (Part II of III), Joint Staff Report Prepared for Representative Darrell E. Issa, Chairman, United States House of Representatives, Committee on Oversight and Government Reform and Senator Charles E. Grassley, Ranking Member, United States Senate, Committee on the Judiciary, 112th Cong., October 29, 2012.
(17) U.S. Department of Justice, Office of the Inspector General, A Review of ATF's Operation Fast and Furious and Related Matters, September 2012.
(18) U.S. Department of Justice, Office of the Inspector General, "Statement of Michael E. Horowitz, Inspector General, U.S. Department of Justice, before the House Committee on Oversight and Government Reform, concerning Report by the Office of the Inspector General on the Review of ATF's Operation Fast and Furious and Related Matters," September 20, 2012, p. 12.
(19) U.S. Congress. Fast and Furious: The Anatomy of a Failed Operation (Part I of III), Joint Staff Report Prepared for Representative Darrell E. Issa, Chairman, United States House of Representatives, Committee on Oversight and Government Reform, and Senator Charles E. Grassley, Ranking Member, United States Senate, Committee on the Judiciary, 112th Cong., July 31, 2012, http://oversight.house.gov/report/fast-and-furious-the-anatomy-of-a- failedoperation-part-1-of-3/.
(20) For further information, see CRS Report RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey and Alissa M. Dolan.
(21) NICS stands for the National Instant Criminal Background Checks System, which is described below.
(22) David von Drehle, "1 Madman and a Gun: 15 Seconds to Fire the Glock; 31 Bullets in One Clip; 19 Victims, with Six Killed," Time, January 24, 2011, p. 26.
(23) National Research Council, Firearms and Violence: A Critical Review (Washington, DC: 2005), p. 48.
(24) Ibid., p. 49.
(25) Jens Ludwig and Phillip J. Cook, Guns in America: National Survey on Private Ownership and Use of Firearms, NCJ 165476, May 1999, http://www.ncjrs.org/pdffiles/165476.pdf.
(27) U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Commerce in Firearms in the United States, February 2000, pp. A3-A5.
(28) Ibid., pp. A3-A5.
(29) U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Firearms Commerce in the United States 2001/2002, ATF P 9000.4, April 2002, pp. E1-E3.
(30) U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Annual Firearm Manufacturing and Export Reports for 2002 through 2007, along with firearms import data provided by the ATF Firearms and Explosives Import Branch.
(32) U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms and Explosives Import Branch.
(33) U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms Commerce in the United States 2011, August 2011, p. 15.
(34) U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms and Explosives Import Branch.
(35) U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms Commerce in the United States 2011, August 2011, p. 15
(36) Ibid., pp. 11, 13, and 15.
(37) Ned Schwing, 2005 Standard Catalog of Firearms: The Collector's Price and Reference Guide, 15th edition (Iola, Wisconsin, 2005).
(38) Christopher S. Koper, Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003 (Washington, DC: July 2004).
(39) See http://www.fbi.gov/ucr/ucr.htm.
(40) "Legal interventions" include deaths (in these cases by firearms) that involve legal uses of force (justifiable homicide or manslaughter), usually by the police.
(41) National Vital Statistics System data taken from the Injury Statistics Query and Reporting System (WISQARS), http://www.cdc.gov/ncipc/wisqars/default.htm.
(43) U.S. Department of Justice, Bureau of Justice Statistics, National Crime Victimization Survey, Criminal Victimization, 2009, by Jennifer L. Truman and Michael R. Rand, p. 8.
(46) U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Guns and Crime: Handgun Victimization, Firearm Self-Defense, and Firearm Theft, NCJ-147003, April 1994, http://bjs.ojp.usdoj.gov/content/pub/ ascii/hvfsdaft.txt.
(48) Gary Kleck, "Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun," Journal of Criminal Law and Criminology, vol. 86, issue 1, 1995, http://www.guncite.com/gcdgklec.html.
(49) Jens Ludwig and Phillip J. Cook, Guns in America: National Survey on Private Ownership and Use of Firearms, NCJ 165476, May 1999, p. 2.
(50) Ibid., p. 3.
(51) U.S. Department of the Interior, U.S. Fish and Wildlife Service, National Hunting License Report (December 2, 2004).
(52) American Sports Data, Inc., The SUPERSTUDY of Sports Participation.
(53) U.S. Department of the Interior, U.S. Fish and Wildlife Service, National Hunting License Report (December 10, 2010).
(54) 18 U.S.C. [section]922(g).
(55) 18 U.S.C. [section]922(n).
(56) 18 U.S.C. [section]922(d).
(57) 18 U.S.C. [section]922(b)(1).
(58) 18 U.S.C. [section]922(x).
(59) The Immigration and Nationality Act (INA) defines "alien" to mean any person who is not a citizen or national of the United States (see INA [section]101(a)(3)). In this report, the terms "alien" and "noncitizen" are used interchangeably.
"Permanent resident aliens" are persons admitted to the United States as lawful permanent residents, meaning they have been accorded the privilege of residing in the United State permanently. Such aliens may be issued immigrants abroad by the Department of State, or they may enter the United States without an immigrant visa and be allowed to adjust to permanent resident status under several avenues provided under the INA. Colloquially, legal permanent resident aliens are often referred to as "legal immigrants," the term that is used in this report.
(60) "Illegal immigrants" are persons who are not nationals or citizens (aliens), and who have either entered the United States without inspection or have violated the terms of their nonimmigrant visas or entry by overstaying or accepting unauthorized employment. In the Omnibus Crime Control and Safe Streets Act of 1968, Congress prohibited illegal or unlawful aliens from receiving, possessing, or transporting firearms (P.L. 90-351; 82 State. 236; June 19, 1968). This provision is currently codified at 18 U.S.C. [section]922(g)(5)(A). NB: Individuals who are present in the United States in an unlawful immigration status are often referred to as "unauthorized aliens" or "unauthorized immigrants," as opposed to "illegal or unlawful aliens." For further information, see CRS Report R41207, Unauthorized Aliens in the United States, by Andorra Bruno.
(61) "Nonimmigrants" are aliens who have been lawfully admitted to the United States on a temporary basis for a specific purpose. Under the INA, nonimmigrant classifications include visitors for business and pleasure, foreign government officials, aliens in transit through the United States, treaty traders and investors, students, temporary workers and trainees, fiance(e)s of U.S. citizens, intracompany transfers, NATO officials, religious workers, and others.
(62) Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (P.L. 105-277; 12 Stat. 2681-71; October 21, 1998). This prohibition is codified at 18 U.S.C. [section]922(g)(5)(B).
(63) The nonimmigrant prohibition exceptions are codified at 18 U.S.C. [section]922(y).
(64) 67 Federal Register 5422 (February 5, 2002).
(66) The OLC provides oral advice and written opinions in response to requests from executive branch agencies, as well as the Counsel to the President. Formal opinions are prepared for and signed by the Attorney General. More frequently, written legal opinions (formal advice) are prepared and signed by the OLC Assistant Attorney General or Deputy Assistant Attorney General. The OLC also serves as the general counsel for DOJ and, in this role, reviews all regulations promulgated under the Attorney General's signature. The OLC only provides legal advice to the Executive Branch and, within that branch, OLC opinions "are controlling on questions of the law." See Memorandum for Attorneys of the Office, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Best Practices for OLC Opinions (May 16, 2005), p. 1.
(67) U.S. Department of Justice, Office of Legal Counsel, Nonimmigrant Aliens and Firearms Disabilities Under the Gun Control Act: Memorandum Opinion for the Chief Counsel, Bureau of Alcohol, Tobacco, Firearms and Explosives (October 28, 2011), p. 1;
(68) U.S. Department of Justice, Office of Legal Counsel, State of Residence Requirements for Firearms Transfers: Memorandum Opinion for the Chief Counsel, Bureau of Alcohol, Tobacco, Firearms and Explosives (January 30, 2012), p. 1.
(69) 77 Federal Register 33625 (June 7, 2012).
(70) 22 C.F.R. Parts 120-130 and 15 CFR Chapter VII, Subchapter C, Parts 730-774.
(71) 18 U.S.C. [section]923(a).
(72) 18 U.S.C. [section]922(b)(3).
(73) 18 U.S.C. [section]922(d).
(74) For further information, see CRS Report RS20957, Internet Firearm Sales, by T. J. Halstead.
(75) U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Project Gunrunner: The Southwest Border Initiative, ATF P 3317.6, March 2009, available at http://www.atf.gov/publications/download/p/atfp- 3317-6.pdf.
It is noteworthy that in 2006 the U.S. Sentencing Commission amended its guidelines to include the following definition: "firearms trafficking" occurred if an offender, "regardless of whether anything of value was exchanged," engaged in the following activities: (1) transported, transferred, or otherwise disposed of two or more firearms to another individual, or received two or more firearms with the intent to transport, transfer, or otherwise dispose of firearms to another individual; and (2) knew or had reason to believe that such conduct would result in the transport, transfer, or disposal of a firearm to an individual (a) whose possession or receipt of the firearm would be unlawful; or (b) who intended to use or dispose of the firearm unlawfully. See United States Sentencing Commission, Guidelines Manual, [section]2K2.1(b)(5) (November 2006).
(76) With regard to Southwest Border gun trafficking, it is significant to note that the GCA does not include any provisions that directly address smuggling firearms out of the United States, across international boundaries, to countries like Mexico. However, the Arms Export Control Act (AECA; 22 U.S.C. [section]2778 et seq.) does include provisions that directly address such cross-border illegal arms trafficking.
(77) U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Office of Field Operations, Project Gunrunner: A Cartel Focused Strategy, September 2010.
(78) U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Following the Gun: Enforcing Federal Laws against Firearms Traffickers, June 2000, p. 11.
(79) Greg Ridgeway, Glenn L. Pierce, and Anthony A. Braga et al., Strategies for Disrupting Illegal Firearms Markets: A Case Study of Los Angeles, RAND Corporation, 2008, p. 1.
(80) For example, in the 109th Congress, the House Judiciary Crime subcommittee held two oversight hearings examining ATF firearms enforcement operations at guns shows in Richmond, VA, in 2005. ATF agents reportedly provided state and local law enforcement officers with confidential information from background check forms (ATF Form 4473s), so that officers could perform residency checks on persons who had otherwise legally purchased firearms at those gun shows. Questions were also raised as to whether ATF agents had profiled gun purchasers at those gun shows on the basis of race, ethnicity, and gender. See U.S. Congress, House of Representatives, Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, Oversight Hearing on the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) Parts I & II: Gun Show Enforcement, February 15 and 28, 2006. Also see Department of Justice, Office of the Inspector General, The Bureau of Alcohol, Tobacco, Firearms and Explosives' Investigative Operations at Gun Shows, I-2007-007, June 2007.
(81) For FY2012, Congress has provided ATF with funding for 2,539 SA positions.
(82) For FY2009, Congress has provided ATF with funding for 834 IOI positions.
(83) 18 U.S.C. [section]923(g)(1)(B).
(84) On the ATF Form 4473, question 11a reads: "Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you."
(85) 18 U.S.C. [section]924(a)(2).
(86) 18 U.S.C. [section]924(a)(1)(D).
(87) 18 U.S.C. [section]924(a)(2).
(89) It is unlawful for any person to aid, abet, counsel, command, or solicit a criminal act (18 U.S.C. [section]2).
(90) 18 U.S.C. [section]922(a)(3).
(91) 18 U.S.C. [section]922(a)(5).
(92) 18 U.S.C. [section]924 (a)(1)(D).
(93) 18 U.S.C. [section]554.
(95) U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico Face Planning and Coordination Challenges, GAO-09-709, June 29, 2009, p. 21.
(96) U.S. Congress, Fatally Flawed: Five Years of Gunwalking in Arizona, House Committee on Oversight and Government Reform, Minority Staff Report, 112th Cong., 2nd Sess., January 2012, p. 72, http://www.scribd.com/doc/ 79930290/%E2%80%9CFatally-Flawed-Five-Years-of-Gunwalking-in-Arizona-%E2%80%9D?tw_p=twt.
See also Colby Goodman and Michel Marizco, U.S. Firearms Trafficking to Mexico: New Data and Insights Illuminate Key Trends and Challenges, Woodrow Wilson International Center for Scholars Mexico Institute and University of San Diego Trans-Border Institute, September 2010, p. 29.
(98) U.S. Congress, House Committee on Oversight and Government Reform, Operation Fast and Furious: Reckless Decisions, Tragic Outcomes, 112th Cong., 1st sess., June 15, 2012, p. 120.
(100) United States Sentencing Commission, "Sentencing Guidelines for United States Courts," 76 Federal Register 3193, January 19, 2011. See also, CRS Report R41696, How the Federal Sentencing Guidelines Work: An Overview, by Charles Doyle.
(101) United States Sentencing Commission, "U.S. Sentencing Commission Promulgates Permanent Amendment to the Federal Sentencing Guidelines Covering Crack Cocaine, Other Drug Trafficking Offenses; Also promulgates amendments regarding firearms and other offenses," press release, April 6, 2011.
(102) 107 Stat. 1536, November 30, 1993.
(103) Querying Records in the System, 28 C.F.R. [section]25.7.
(104) Accessing Records in the System, 28 C.F.R. [section]25.6.
(105) Those databases include the Central Index System (CIS), Computer Linked Application Information Management System (CLAIMS), Deportable Alien Control System (DACS), National Automated Immigration Lookout System (NAIL II), Nonimmigrant Information System (NIIS), Student and Exchange Visitor Information System (SEVIS), Redesigned Naturalization Casework System (RNACS), Refugee, Asylum, and Parole System (RAPS), Enforcement Case Tracking System (ENFORCE), and the Treasury Enforcement Communications System (TECS).
(106) U.S. Department of Justice, Report to Congress Pursuant to the NICS Improvement Amendments Act of 2007 (P.L. 110-180), July 1, 2010, Appendix C.
(107) Ibid., Appendix A.
(108) In 13 states, state agencies serve as full POCs and conduct background checks for both long gun and handgun transfers. In four states, state agencies serve as partial POCs for handgun permits, whereas in another four states, state agencies serve as partial POCs for handgun transfers only. In these eight partial POC states, checks for long gun transfers are conducted entirely through the FBI. In the 30 non-POC states, the District of Columbia, and five territories (Guam, American Samoa, Northern Mariana Islands, Puerto Rico, and the Virgin Islands), FFLs contact the FBI directly to conduct background checks through NICS for both handgun and long gun transfers. For state agencies (POCs), background checks may not be as expeditious, but they may be more thorough because state agencies may have greater access to databases and records that are not available through NICS. According to the Government Accountability Office (GAO), this is particularly true for domestic violence misdemeanor offenses and protective orders. For further information, see GAO, Gun Control: Opportunities to Close Loopholes in the National Instant Criminal Background Check System, GAO-02-720, July 2002, p. 27.
(109) Accessing Records in the System, 28 C.F.R. [section]25.6.
(110) Statement of Daniel D. Roberts, Assistant Director, Criminal Justice Information Services, Federal Bureau of Investigation, Terrorists and Guns: The Nature of the Threat and Proposed Reforms: Hearing Before the S. Comm. on Homeland Sec. and Gov't Affairs, 111th Cong., May 5, 2010.
(111) Correction of Erroneous System Information, 28 C.F.R. [section]25.10.
(113) Final Rule, National Instant Criminal Background Check System Regulation, 69 Federal Register 43892 (July 23, 2004) (codified at 28 C.F.R. [section]25.10(g)).
(114) 18 U.S.C. [section]925(c). See also Relief from Disabilities Under the Act, 27 C.F.R. [section]478.144.
(115) For FY1993, see P.L. 102-393; 106 Stat. 1732 (1992). For FY2012, see P.L. 112-55; 125 Stat. 552, 609 (November 18, 2011). The FY2012 limitation provides: "That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c)."
(117) For further information, see Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, National Criminal History Program (NCHIP): Improving Criminal History Records for Background Checks, 2005, July 2006.
(120) Statement of Rachel L. Brand, Assistant Attorney General for Legal Policy, Department of Justice at the Committee on Oversight and Government Reform Hearing on Lethal Loopholes in Gun Purchase Laws, May 10, 2007, p. 126.
(121) Ibid, p. 138.
(122) New York state, for example, had such a provision. See Section 33.13 of the Mental Health Law, which addresses the rights of patients and confidentiality of mental health records. Since enactment of P.L. 110-180, however, the New York State legislature addressed this issue and now provides mental defective records to the FBI for inclusion in the NICS Index.
(123) Donna M. Norris, M.D. et al., "Firearms Laws, Patients, and the Roles of Psychiatrists," American Journal of Psychiatry, 163:8, August 2006, p. 1394.
(124) Dan Eggen, "FBI's Gun Ban Listing Swells: Thousands Added To File Marked 'Mental Defective,'" Washington Post, November 30, 2007, A01.
(125) U.S. Department of Justice, Report to Congress Pursuant to Requirements of the NICS Improvement Amendments Act of 2007 (P.L. 110-180), July 1, 2010, Appendix C. Records Available in the NICS, as of May 10, 2010.
(127) P.L. 110-180; January 8, 2008; 121 Stat. 2559.
(128) See U.S. Department of Justice, Report to Congress Pursuant to the NICS Improvement Amendments Act of2007 (P.L. 110-180), July 1, 2010.
(129) For FY2005-FY2010, BJS invoked its discretionary authority to increase the match requirement to 20%. For FY2011, BJS reportedly reduced the match requirement to 10%, the percentage match requirement set out under the Crime Identification Technology Act (CITA; P.L. 105-251); CRS conversation with BJS on March 7, 2011.
(130) For further information, see CRS Report RS22416, Edward Byrne Memorial Justice Assistance Grant (JAG) Program, by Nathan James.
(131) As of July 1, 2010, 41 states and 1 territory had provided estimates to DOJ. As of December 31, 2009, 68 federal departments or agencies had also responded to a DOJ survey related to their obligations under P.L. 110-180. Twenty-two reported possessing no disqualifying information. Twenty-three reported possessing secondary disqualifying information (e.g., employment background check investigative results). Ten agencies claimed to create and possess disqualifying information. And, ATF was reviewing those claims to determine whether that information was relevant to a NICS background check. Fourteen agencies needed further clarification from DOJ. See U.S. Department of Justice, Report to Congress Pursuant to the NICS Improvement Amendments Act of 2007 (P.L. 110-180), July 1, 2010, pp. 5-6.
(132) U.S. Department of Justice, Report to Congress Pursuant to Requirements of the NICS Improvement Amendment Act of 2007 (P.L. 110-180), July 1, 2010, p. 10.
(133) U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, "NICS Improvement Amendments Act of 2007," http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=49.
(134) U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, "State-by-State Summaries for FY2011 NICS Improvement Amendments Act Grant Awards," http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid= 491#funding.
(135) U.S. Department of Justice, Report to Congress Pursuant to the NICS Improvement Amendments Act of 2007 (P.L. 110-180), July 1, 2010, p. 12.
(138) CRS conversation with BJS on March 7, 2011.
(139) In the 110th Congress, the House-passed H.R. 2640 and Senate-reported S. 2084 include provisions that would permanently codify the NICS fee prohibition (see discussion of the NICS Improvement Amendments Act of 2007 above). For FY2012, such a prohibition is also included on an annual basis in the House-reported Commerce, Justice, Science Appropriations bill (H.R. 2596).
(140) 63 Federal Register 58303.
(141) NRA v. Reno (No. 99-5270, 216 F. 3d 122; 2000 U.S. App. Lexis 15906).
(142) 66 Federal Register 6470.
(143) 66 Federal Register 35567.
(144) For further information on these issues, see GAO, Gun Control: Potential Effects of Next-Day Destruction of NICS Background Check Records, GAO-02-653, July 2002.
(145) For a legal analysis, see CRS Report R41750, The Second Amendment: An Overview of District of Columbia v. Heller and McDonald v. City of Chicago, by Vivian S. Chu.
(146) For further information, see CRS Report R40474, DC Gun Laws and Proposed Amendments, by Vivian S. Chu.
(147) For further information, see CRS Report R41799, Exemptions for Firearms in Bankruptcy, by Carol A. Pettit and Vastine D. Platte.
(148) Regarding public lands, the 112th Congress might consider additional proposals related to firearms carrying on public lands, such as water resources management projects (e.g., reservoirs at Corps-operated dams and inland waterways) managed by the Army Corps of Engineers or federal lands managed by the Bureau of Land Management (BLM). For related proposals in the 112th Congress, see the Recreational Self-Defense Act of 2011 (H.R. 1865/S. 1588) and the Recreational Shooting Act (H.R. 3440 and H.R. 4089). As described below, the House passed H.R. 4089 on April 17, 2012.
(149) For further information, see CRS Report R40733, Gun Trafficking and the Southwest Border, by Vivian S. Chu and William J. Krouse.
(150) For further information, see CRS Report RL34514, The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF): Budget and Operations for FY2008, FY2009, and FY2010, by William J. Krouse.
(151) David A. Fahrenthold et al., "A Day of Tears and Twists in Colorado: As State Mourns, Account Suggests Toll Could Have Been Worse," Washington Post, July 23, 2012, p. A1.
(152) Thom Patterson, "Source: Colorado Shooter Had 100-Round Rifle Magazine," CNN Wire, July 21, 2012.
(154) Thom Patterson, "Police Chief: Suspect Bought over 6,000 Rounds of Ammunition through Internet," CNN Wire, July 21, 2012.
(155) For further information, see CRS Report RL32585, Semiautomatic Assault Weapons Ban, by William J. Krouse.
(156) P.L. 99-308; May 19, 1986; 100 Stat. 449.
(157) For further information, see CRS Report RS20957, Internet Firearm Sales, by T. J. Halstead.
(158) Molly Hennessy-Fiske, et al., "Sikh Temple Gunman Tied to Racist Groups/Army Vet Had Criminal Record, Played in White-Power Band," Chicago Tribune, August 7, 2012.
(160) Scott Bauer and Todd Richmond, "Gunman in Sikh Temple Attack Was White Supremacist," Associated Press, August 7, 2012.
(162) Jonathan Zimmerman, "Shootings in Sikh Temple and Arizona: Which Crime is Worse?," Christian Science Monitor, August 10, 2012.
(163) Todd Richmond and Dinesh Ramde, "FBI: Temple Gunman Shot Himself; Still No Motive," Associated Press, August 8, 2012.
(165) For further information, see CRS Report RL33099, State Statutes Governing Hate Crimes, by Alison M. Smith and Cassandra L. Foley; and CRS Report RL33403, Hate Crime Legislation, by William J. Krouse.
(166) For additional information, see CRS Report R42099, Federal Laws and Legislation on Carrying Concealed Firearms: An Overview, by Vivian S. Chu. See also U.S. Government Accountability Office, Gun Control: States' Laws and Requirements for Concealed Carry Permits Vary across the Nation, GAO-12-717, July 2012.
(167) Wisconsin's concealed carry permit went into effect on November 1, 2011. "Shall issue" states include Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.
(168) Alabama and Connecticut are "may issue" states that are considered to be more permissive than other "may issue" states. Those states include California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island.
(169) Alaska and Arizona issue permits to residents who seek to carry concealed firearms in other states that extend reciprocity to residents of Alaska.
(170) According to the NRA, this lower average violent crime rate is based upon the FBI's 2004 Uniform Crime Reports data for only that year.
(171) Violence Policy Center, Concealed Carry Killers, http://www.vpc.org/ccwkillers.htm.
(172) For further information, see CRS Report R42751, Hunting, Fishing, Recreational Shooting, and Other Wildlife Measures: S. 3525, coordinated by M. Lynne Corn.
(173) For further information, see CRS Report R42602, Firearms at Army Corps Water Resources Projects: Proposed Legislation and Issues for Congress, by Nicole T. Carter.
(174) U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Congressional Budget Submission, Fiscal Year 2013, February 2012, p. 5.
(175) U.S. Congress, House Committee on Appropriations, Commerce, Justice, Science, and Related Agencies Appropriations Bill, 2010, H.Rept. 111-149, (To accompany H.R. 2847), 111th Cong., June 12, 2009, p. 66; and U.S. Congress, Senate Committee on Appropriations, Commerce, Justice, Science, and Related Agencies Appropriations Bill, 2010, S.Rept. 111-34, (To accompany H.R. 2847), 111th Cong., June 25, 2009, p. 68.
(176) U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Office of Public and Governmental Affairs, March 9, 2012.
(177) U.S. Department of Justice, Office of the Inspector General, Review of ATF's Project Gunrunner, I-2011-001, November 2010, http://www.justice.gov/oig/reports/ATF/e1101.pdf.
(178) Ibid, p. 73.
(179) Ibid, p. 40.
(180) Ibid, p. 38.
(181) For FY2004 and every fiscal year thereafter, Congress has required ATF to include the following disclaimers in any published firearms trace reports: (a) Tracing studies conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives are released without adequate disclaimers regarding the limitations of the data; (b) The Bureau of Alcohol, Tobacco, Firearms, and Explosives shall include in all such data releases, language similar to the following that would make clear that trace data cannot be used to draw broad conclusions about firearms-related crime: (1) Firearm traces are designed to assist law enforcement authorities in conducting investigations by tracking the sale and possession of specific firearms. Law enforcement agencies may request firearms traces for any reason, and those reasons are not necessarily reported to the Federal Government. Not all firearms used in crime are traced and not all firearms traced are used in crime. (2) Firearms selected for tracing are not chosen for purposes of determining which types, makes or models of firearms are used for illicit purposes. The firearms selected do not constitute a random sample and should not be considered representative of the larger universe of all firearms used by criminals, or any subset of that universe. Firearms are normally traced to the first retail seller, and sources reported for firearms traced do not necessarily represent the sources or methods by which firearms in general are acquired for use in crime; See [section]516 of the FY2012 Commerce, Justice, Science, and Related Agencies (CJS) Appropriations Act, which was enacted as part of the Consolidated and Further Appropriations Act, 2012 (P.L. 112-55).
(182) U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico Face Planning and Coordination Challenges, GAO-09-709, June 2009, p. 59.
(183) This section was coauthored by the report's author, William J. Krouse, and Vivian S. Chu and Vanessa K. Burrows, CRS Legislative Attorneys. Questions on case law related to demand letters should be referred to Ms. Chu.
(184) Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, "60-Day Emergency Notice of Information Collection Under Review: Report of Multiple Sale or Other Disposition of Certain Rifles," 75 Federal Register 79021, December 17, 2010.
(185) For further information, see CRS Report R40636, Paperwork Reduction Act (PRA): OMB and Agency Responsibilities and Burden Estimates, by Curtis W. Copeland and Vanessa K. Burrows.
(186) Bureau of Alcohol, Tobacco, Firearms and Explosives, "Acting Director Announces Demand Letters for Multiple Sales of Specific Long Guns in Four Border States," News Release, December 20, 2010.
(187) Mike Lillis, "House Dems Upset with Delay on Gun Proposal Along Border," The Hill, February 9, 2011, p. 3.
(188) These data were provided to CRS by ATF on July 9, 2012.
(189) Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, "Agency Information Collection Activities; Proposed Collection Comments Requested: Report of Multiple Sale or Other Disposition of Certain Rifles," 76 Federal Register 24058, April 29, 2011.
(190) Office of Management and Budget, Office of Information and Regulatory Affairs, Reviews Completed in the Last 30 Days, DOJ-ATF, Report of Multiple Sale or Other Disposition of Certain Semi-Automatic Rifles, OMB Control Number: 1140-0100, http://www.reginfo.gov/public/do/PRAMain;jsessionid= 9f8e89cb30d6399089b4c8ac4da993b6c0e60ddbeff2.e34ObxiKbN0Sci0SbhaSa3aLchr0n6jAmljGr5XDqQLvpAe.
(191) U.S. Department of Justice, Office of the Inspector General, Evaluation and Inspections Division, Review of ATF's Project Gunrunner, I-2011-001, November 2010.
(192) Ibid, p. 40.
(194) Ibid, p. 108.
(195) In a sample demand letter on the OMB website, ATF specified that it would be issuing such a letter under 18 U.S.C. 1[section]99623(g)(5).
(196) ATF was transferred from the Department of the Treasury to the Department of Justice, effective January 2003. ATF was established in Treasury in 1972. Prior to that, it was a division within the Internal Revenue Service.
(197) The original demand letter regulation appears to have been promulgated at the same time the Gun Control Act was enacted in 1968. See Furnishing Transaction Information, 27 C.F.R. [section]478.126, issued 33 Federal Register 18555, 18571, December 14, 1968. When the Firearms Owners' Protection Act (FOPA) was passed in 1986, Congress made explicit in statute: "Each licenses shall, when required by letter issued by the [Attorney General], and until notified to the contrary in writing by the [Attorney General], submit on a form specified by the [Attorney General], for periods and at the times specified in such letter, all record information required to be kept by this chapter or such lesser record information as the [Attorney General] may specify." See 18 U.S.C. [section]923(g)(5)(A).
(198) When considering FOPA, it seems that Congress made clear that although they would statutorily authorize the ATF to collect information pursuant to its demand letter authority, such authority "to request tracing information for dealers can never be used to establish any centralized or regional registration about [section]923(g)(5)(A) [in violation of [section]926(a)]" and "Congress had no intent to require all law-abiding gun dealers to report all their firearms transactions" to BATF. Statement of Senator Orrin Hatch, 131 Congressional Record S9129 (July 9, 1985).
(199) See RSM, Inc. v. Buckles, 254 F.3d 61,65-66 (4th Cir. 2001).
(200) Ibid, p. 68. The court in RSM noted that although FOPA prohibited the creation of a national registry of firearms, Congress also envisioned some sort of collection of firearms records so long as it was incidental to some other statutory function specifically delegated to ATF.
(201) See Blaustein & Reich, Inc. v. Buckles, 365 F.3d 281 (4th Cir. 2004); J&G Sales Ltd., v. Truscott, 473 F.3d 1043 (9th Cir. 2007), cert. denied, 128 S. Ct. 208 (2007).
(202) The Fourth Circuit in Blaustein & Reich noted that [section]926(a) has no bearing on the regulation that authorizes the use of demand letters because that section only prohibits the promulgation of rules and regulations prescribed after 1986, and the regulation on demand letters dates back to 1968. Furthermore, it stated that [section]926(a) has no bearing on [section]923(g)(5)(A) because "the former provision pertains only to 'rule[s]' and 'regulation[s]' and the latter is a statute, not a rule or regulation" (modification in the original). Blaustein & Reich, 365 F.3d at 288, 290.
(203) Blaustein & Reich, 365 F.3d at 289.
(204) Congressional Documents and Publications, "Rehberg Leads Bipartisan Letter to ATF Questioning New Firearm Dealer Regulations," Representative Denny Rehberg (R-MT) News Release, December 23, 2010.
(206) These statistics are available at http://www.atf.gov/statistics/.
(207) Complaints were filed in the United States District Court for the District of Columbia, the United States District Court for the District of New Mexico, and the United States District Court for the Western District of Texas. See Nat'l Shooting Sports Foundation, Inc. v. Jones, 2011 U.S. Dist. LEXIS 101320 (D.D.C. 2011); Ron Peterson Firearms LLC v. Melson, No. 1:11-cv-678, (D.N.M. filed August 3, 2011); 10 Ring Precision, Inc. v. Melson, No. 5:11-cv-663 (W.D. Tex. filed August 5, 2011).
(208) Nat'l Shooting Sports Foundation, Inc. v. Jones, 2011 U.S. Dist. LEXIS 101320 (D.D.C. 2011);
(209) Ibid. at *23.
(210) These data were provided to CRS by ATF on July 9, 2012.
(213) James V. Grimaldi and Sari Horwitz, "ATF Probe Strategy Is Questioned," Washington Post, February 2, 2011, p. A04.
(216) John Solomon, David Heath, and Gordon Witkin, "ATF Let Hundreds of U.S. Weapons Fall Into Hands of Suspected Mexican Gunrunners: Whistleblower Says Agents Strongly Objected to Risky Strategy," Center for Public Integrity.
(218) Kim Murphy and Ken Ellingwood, "Mexico Demands Answers on Guns," Chicago Tribune, March 11, 2011, p. 13.
(220) Ken Ellingwood, "Mexico: U.S. Never Said Guns Came Across; Washington Didn't Reveal Tracked Arms Were Passing the Border, Agency Asserts," Los Angeles Times, March 12, 2011.
(221) Letter from Senator Charles E. Grassley, Ranking Minority Member of the Committee on the Judiciary, to Acting Director Kenneth E. Melson, Bureau of Alcohol, Tobacco, Firearms, and Explosives, regarding Project Gunrunner and Whistleblower Allegations, January 27, 2011, http://www.grassley.senate.gov/about/upload/Judiciary-01-27-11 -letter-to- ATF-SW-Border-strategy.pdf.
(222) Letter from Ronald Weich, Assistant Attorney General, to Senator Charles E. Grassley, Ranking Minority Member, Committee on the Judiciary, regarding January 27, 2011 Project Gunrunner and Whistleblower Allegations letter, February 4, 2011, http://www.grassley.senate.gov/about/upload/Judiciary-ATF-02-04-11-letter-from-DOJ- denyallegations.pdf.
(224) Letter from Senator Charles E. Grassley to Attorney General Eric H. Holder, Jr., regarding ATF Whistleblower Allegations and the Sale of Assault Weapons Found at the Scene of the Firefight in which Border Patrol Agent Brian Terry Was Slain, February 9, 2011, http://www.grassley.senate.gov/about/upload/Judiciary-02-09-11-Letter-to- Holdernotifying-of-ATF-issues.pdf.
(228) Pete Yost, "Justice IG to Look into Anti-Gun Efforts on Border," Associated Press Online, March 4, 2011.
(229) James V. Grimaldi, "ATF Faces Federal Review Over Tactics to Foil Gunrunning Rings," Washington Post, March 10, 2011, p. A04.
(230) Press Release, "Chairman Issa Subpoenas ATF for 'Project Gunrunner' Documents," April 1, 2011.
(231) Press Release, "What Attorney General Holder Won't Tell on Controversial Gun Operation, Documents Do," May 4, 2011.
(232) U.S. Congress, House Committee on Oversight and Government Reform, Obstruction of Justice: Does the Justice Department Have to Respond to a Lawfully Issued and Valid Congressional Subpoena, 112th Cong., 1st sess., June 13, 2012, Serial No. 112-61 (Washington: GPO, 2012).
(233) U.S. Congress, Joint Staff Report, Department of Justice's Operation Fast and Furious: Accounts of ATF Agents, prepared for Representative Darrell E. Issa, Chairman, United States House of Representatives, Committee on Oversight and Government Reform, and Senator Charles E. Grassley, Ranking Member, United States Senate, Committee on the Judiciary, 112th Cong., 1st sess., June 14, 2011, http://oversight.house.gov/images/stories/Reports/ ATF_Report.pdf.
(234) U.S. Congress, House Committee on Oversight and Government Reform, Operation Fast and Furious: Reckless Decisions, Tragic Outcomes, 112th Cong., 1st sess., June 15, 2012, Serial No. 112-64 (Washington: GPO, 2012).
(235) U.S. Congress, House Oversight and Government Reform Committee, Minority Staff Report, Outgunned: Law Enforcement Agents Warn Congress They Lack Adequate Tools to Counter Illegal Firearms Trafficking, 112th Cong., 1st sess., June 30, 2011, http://democrats.oversight.house.gov/images/stories/ OUTGUNNED%20Firearms%20Trafficking%20Report%20-%20Final.pdf. On July 15, 2011, Representative Carolyn B. Maloney introduced the Stop Gun Trafficking and Strengthen Law Enforcement Act of 2011 (H.R. 2554). Original cosponsors included Representative Cummings and Representative Carolyn McCarthy.
(236) U.S. Congress, Joint Staff Report, Department of Justice's Operation Fast and Furious: Fueling Cartel Violence, prepared for Representative Darrell E. Issa, Chairman, United States House of Representatives, Committee on Oversight and Government Reform and Senator Charles E. Grassley, Ranking Member, United States Senate, Committee on the Judiciary, 112th Cong., 1st sess., July 26, 2011.
(237) Ibid, p. 27.
(239) Sari Horwitz, "A Gunrunning Sting Gone Fatally Wrong: Operation Meant to Seize Firearms Bound for Cartels Allows Weapons into the Streets," Washington Post, July 26, 2011, p. A1.
(242) Jerry Markon and Sari Horwitz, "ATF Head Removed Amid Furor Over Guns," Washington Post, August 31, 2011, p. A01.
(243) U.S. Department of Justice, Department of Justice Announces New Acting Director of ATF and Senior Advisor in the Office of Legal Policy, press release, August 30, 2011.
(245) Sari Horwitz, "Trying to Steady a Shaken ATF: Acting Director Hopes to Rebuild Morale After Fury Over Tactics in Gun-Trafficking Operation," Washington Post, September 2, 2011, p. A16.
(246) Section 504 of the USA PATRIOT Improvement and Reauthorization Act of 2005 (P.L. 109-177; March 9, 2006; 120 Stat. 247) requires the ATF Director to be appointed by the President with the advice and consent of the Senate. The position of ATF Director, however, has not been filled permanently since August 2006, after ATF Director Carl J. Truscott resigned due to preliminary findings by the DOJ OIG that he had engaged in questionable expenditures and management practices while serving as ATF Director. In September 2006, President George W. Bush appointed the U.S. Attorney for the District of Boston, Michael J. Sullivan, acting ATF Director. Sullivan served in both posts concurrently. In February 2008, his confirmation as ATF Director was blocked in the Senate, when several Senators voiced their concern about ATF's "overly aggressive" enforcement of gun laws and the nominee's views on such matters. Sullivan resigned as acting ATF Director on January 20, 2009. Ronnie Carter served as acting Director until April 2009, when Kenneth Melson was appointed acting Director. In November 2009, Melson was appointed acting Deputy Director, because the 210-day statutory limit on the acting Director's tenure had expired. On November 17, 2010, the Obama Administration nominated Andrew Traver, the ATF Special Agent in Charge in Chicago, to be ATF Director. Because the Senate did not act on this nomination in the 111th Congress, Traver was renominated by the Administration on January 5, 2011. See U.S. Department of Justice, Office of the Inspector General, Oversight and Review Division, Report of Investigation Concerning Alleged Mismanagement and Misconduct by Carl J. Truscott, Former Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (October 2006). Jonathan Saltzman, "Sullivan ATF Confirmation Blocked; La. Senator Objects to Gun-License Stance," Boston Globe, February 14, 2008, p. B1. Jonathan Saltzman, "US Attorney To Resign Sooner Than Expected: List of Finalists for Post Not Yet Sent To Obama," Boston Globe, April 16, 2009, p. 2. Andrew Ramanos, "Senate Returns ATF Nomination to White House," Main Justice: Politics, Policy and the Law, December 23, 2010. The White House, Office of the Press Secretary, "Presidential Nominations Sent to the Senate," January 5, 2011.
(247) U.S. House of Representatives, Committee on Oversight and Government Reform, "Oversight Committee Subpoenas Attorney General for 'Operation Fast and Furious' Communications and Documents," Press Release, October 18, 2011, http://oversight.house.gov/index.php?option=com_content&view=article&id=1479:oversight-committee- subpoenas-attorney-general-for-operation-fast-and-furious-communications-and-documents-&catid= 22:releasesstatements.
(249) Katie Pavlich noted in her book on Operation Fast and Furious that two bloggers, Mike Vanderboegh and David Codrea, worked together and vetted information about the operation through a network of ATF insiders, who contacted them independently. Through their efforts, "the story" moved from "blogs" to "mainstream media." See Katie Pavlich, Fast and Furious: Barack Obama's Bloodiest Scandal and Its Shameless Cover-up, 2012, p. 75.
(250) CBS News, "Face the Nation" Transcript: October 15, 2011, http://www.cbsnews.com/8301-3460_162-20121072/ face-the-nation-transcript-october-16-2011/.
(252) "Cummings Responds to Issa's Accusations of FBI Evidence Tampering," States News Service, October 17, 2011.
(253) Combating International Organized Crime: Evaluating Current Authorities, Tools, and Resources: Hearing before the Senate Committee on the Judiciary, Subcommittee on Crime and Terrorism, 112th Congress, November 1, 2011 (CQ Congressional Transcripts).
(254) U.S. Department of Justice, Assistant Attorney General Lanny Breuer Issues Statement On 'Operation Wide Receiver', October 31, 2011.
(255) Pete Yost, "Fast and Furious-Like 'Gun-Walking' Probe Mentioned In 2007 Bush Administration Memo," Huffington Post, November 4, 2011.
(256) Jerry Jarkon, "Holder Amends remarks On Gun Sting: Attorney General Heard of 'Fast and Furious' Earlier Than He First Said," Washington Post, November 9, 2011, p. A2.
(257) Letter from Deputy Attorney General James M. Cole to Representative Darrell E. Issa, Chairman of the Committee on Oversight and Government Reform, and Senator Charles E. Grassley, Ranking Minority Member, Committee on the Judiciary, regarding Drafting of DOJ February 4, 2011 Letter to Senator Grassley, December 2, 2011, http://www.grassley.senate.gov/judiciary/upload/ATF-12-02-11-Cover-letter-from-Cole-on-Document-Drop.pdf.
(259) Oversight of the Department of Justice: Hearing before the House Committee on the Judiciary, 112th Congress, December 8, 2011 (CQ Congressional Transcripts).
(260) Oversight Hearing on the United States Department of Justice: Hearing before the House Committee on the Judiciary, 112th Congress, May 3, 2011 (CQ Congressional Transcripts).
(261) Press release, "Issa to Holder: 'You Own Fast and Furious," October 10, 2011, http://oversight.house.gov/ index.php?option=com_content&task=view&id=1474&Itemid=29. See also, Jackie Hicken, "All Eyes on Holder as Memos Suggest He Knew More About Guns Being Walked to Mexican Drug Cartels," Desert Morning News, October 4, 2011.
(262) Sharyl Attkisson, "ATF Investigation Expands to White House Staffers," CBS News, September 9, 2011.
(263) Letter from Representative Lamar Smith, Chairman of the House Committee on the Judiciary, to Attorney General Eric H. Holder, Jr., regarding interviews with senior Department of Justice staff about Operation Fast and Furious, January 31, 2012, http://judiciary.house.gov/news/pdfs/01312012%20Letter%20to%20ATG.pdf.
(264) U.S. Congress, House Committee on Oversight and Government Reform, Operation Fast and Furious: Management Failures at the Department of Justice, 112th Cong., 2nd sess., February 2, 2012, Serial No. 112-103 (Washington: GPO, 2012).
(265) U.S. Congress, Fatally Flawed: Five Years of Gunwalking in Arizona, House Committee on Oversight and Government Reform, Minority Staff Report, 112th Cong., 2nd Sess., January 2012, http://www.scribd.com/doc/ 79930290/%E2%80%9CFatally-Flawed-Five-Years-of-Gunwalking-in-Arizona-%E2%80%9D?tw_p=twt.
(266) The reference to the Boston FBI office is in regard to the misuse of "high echelon" informants in the 1960s through the 1990s. For further information, see U.S. Congress, House Committee on Government Reform, Everything Secret Degenerates: The FBI's Use of Murderers as Informants, committee print, 108th Cong., 2nd sess., 2 vols., February 3, 2004, H.Rept. 108-414 (Washington: GPO, 2004).
(267) U.S. Congress, House Committee on Oversight and Government Reform, Operation Fast and Furious: Management Failures at the Department of Justice, 112th Cong., 2nd sess., February 2, 2012, Serial No. 112-103 (Washington: GPO, 2012), p. 158.
(268) Ibid., pp. 158-159.
(269) Ibid., pp. 162-164.
(270) Letter from Representative Darrell Issa, Chairman of the House Committee on Oversight and Government Reform, to Attorney General Eric H. Holder, Jr., regarding an October 12, 2011, subpoena for Operation Fast and Furious-related documents and a February 1, 2012, departmental request for a deadline extension for those documents, February 14, 2012, http://oversight.house.gov/images/stories/Letters/2012-02-14_DEI_to_Holder-DOJ_-_Contempt.pdf.
(271) Memorandum from Representative Darrell Issa, Chairman of the House Committee on Oversight and Government Reform, to Members of the Committee, regarding an "Update on Operation Fast and Furious," May 3, 2012, p. 10. For a copy of this staff briefing paper and draft resolution report, go to http://oversight.house.gov/wp- content/uploads/2012/ 05/Update-on-Fast-and-Furious-with-attachment-FINAL.pdf.
(273) For further information, see CRS Report R42670, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments, by Todd Garvey and Alissa M. Dolan.
(274) For further information, see CRS Report RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey and Alissa M. Dolan.
(275) U.S. Congress, Fast and Furious: The Anatomy of a Failed Operation (Part I of III), Joint Staff Report Prepared for Representative Darrell E. Issa, Chairman, United States House of Representatives, Committee on Oversight and Government Reform and Senator Charles E. Grassley, Ranking Member, United States Senate, Committee on the Judiciary, 112th Cong., July 31, 2012, http://oversight.house.gov/report/fast-and-furious-the-anatomy-of-a-failed- operation-part-1-of-3/.
(276) U.S. Department of Justice, Office of the Inspector General, A Review of ATF's Operation Fast and Furious and Related Matters, September 2012, 472 pp.
(277) Ibid., p. 471.
(278) Ibid., p. 419.
(279) Ibid., p. 420. Notwithstanding public safety implications, it is significant to note that Operation Wider Receiver was smaller in scale than Operation Fast and Furious and resulted in a greater percentage of ATF gun seizures. During Operation Wide Receiver, straw purchasers and other traffickers acquired approximately 400 firearms, of which 25% were seized by ATF. By comparison, during Operation Fast and Furious, straw purchasers and other traffickers acquired approximately 2,000 firearms, of which ATF seized about 5%.
(280) Ibid., p. 425.
(281) Ibid., p. 211.
(283) Ibid., p. 154.
(284) Ibid., p. 211.
(285) Ibid., p. 430.
(289) Ibid., p. 72.
(290) Ibid., p. 71.
(291) Ibid., p. 73.
(293) Ibid., p. 96.
(294) Ibid., p. 453.
(295) U.S. Congress, Fast and Furious: The Anatomy of a Failed Operation (Part II of III), Joint Staff Report Prepared for Representative Darrell E. Issa, Chairman, United States House of Representatives, Committee on Oversight and Government Reform and Senator Charles E. Grassley, Ranking Member, United States Senate, Committee on the Judiciary, 112th Cong., October 29, 2012, http://oversight.house.gov/wp-content/uploads/2012/10/10-29-12-Fast- andFurious-The-Anatomy-of-a-Failed-Operation-Part-II-of-III-Report.pdf.
(296) The key identifying element associated with each firearm and its related record of manufacture, importation, or transfer is the firearm's serial number. Through the firearm's serial number, ATF can identify the manufacturer or importer, contact them, and find out the wholesale or retail dealer to whom they transferred the firearm in question. In recent years, many firearms manufacturers and importers have given ATF electronic access to such records in order to respond to ATF trace requests more efficiently and expeditiously. By contacting the wholesale/retail dealer, ATF can then identify the first retail owner of record, assuming the dealer's recordkeeping is complete and the purchaser of the firearm did not misrepresent himself by adopting a false identity. However, while the GCA requires licensed gun dealers to maintain records on both new and secondhand firearm transfers, the linkage between the manufacturer/importer records and the wholesale/retail dealer records is broken after the first retail sale, because there is no mechanism under current law, through which ATF is informed when a secondhand firearm reenters the public course of commerce by being transferred from a private person back to a licensed gun dealer.
(297) Colby Goodman, Update on U.S. Firearms Trafficking to Mexico Report, Woodrow Wilson International Center for Scholars, Mexico Institute, April 2011, http://www.wilsoncenter.org/sites/default/files/ Update%20on%20U.S.%20Firearms%20Trafficking%20to%20Mexico%20Report.pdf.
(299) U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico Face Planning and Coordination Challenges, GAO-09-709, June 2009, p. 18.
(300) Ibid., p. 15.
(302) Ibid., p. 16.
(304) Mary Beth Sheridan, "Mexico's Calderon Tells Congress He Needs U.S. Help in Fighting Drug Wars," Washington Post, May 21, 2010, p. A02.
(305) U.S. Embassy in Mexico City, "Fact Sheet: Combating Arms Trafficking," April 2011.
(306) U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico Face Planning and Coordination Challenges, GAO-09-709, June 2009, pp. 5-6.
(307) ATF employed the term "time-to-crime." Some view "time-to-crime" as a misnomer, because some traced firearms may not have been directly linked to a crime. Furthermore, their time-of-recovery by law enforcement may not reflect precisely when, if ever, traced firearms were used in a crime. In addition, traced firearms might have been legally imported into Mexico for civilian or military purposes. It is unknown whether ATF has access to U.S. export data that would allow for the exclusion of such firearms from their trace accounts. Nevertheless, "time-to-recovery" gives policy makers a rough time interval, during which traced firearms were possibly stolen or trafficked.
(308) In several conversations with ATF officials, the author was told that the agency was reluctant to release data on the make of firearms, because the press and interest groups had focused on the firearm manufacturers as being corrupt causing a public relations problem, because the manufacturers were engaged in lawful activities with regard to making and selling of these firearms.
(309) ATF released limited trace data to the Senate Caucus on International Narcotics Control in June 2011. See U.S. Senate Caucus on International Narcotics Control, Halting U.S. Firearms Trafficking to Mexico: A Report by Senators Dianne Feinstein, Charles Schumer, and Sheldon Whitehouse, 112th Cong., 1st sess., June 2011, p. 6.
(310) Letter from Senator Charles E. Grassley to Acting ATF Director Kenneth Melson, regarding the selective release of firearms trace data, June 16, 2011, http://grassley.senate.gov/judiciary/upload/Guns-06-16-11-signed-letter-to- Melsonincomplete-gun-data.pdf.
(312) For example, Senator Grassley cited a news report in which it was reported that, in May 2009, the Mexican Army held over 305,424 recovered weapons, the bulk of which had not been traced by ATF. See E. Eduardo Castillo, "AP IMPACT: Mexico's Weapons Cache Stymies Tracing," Associated Press Online, May 7, 2009.
(313) For more information, ATF has posted trace data for Mexico, Canada, and the Caribbean on its website, http://www.atf.gov/statistics/.
(314) For further information, see CRS Report RL30343, Continuing Resolutions: Latest Action and Brief Overview of Recent Practices, by Sandy Streeter.
(315) See 27 CFR [section]478.11 for the definition of "curios and relics," which generally include firearms that are 50 years old, of museum interest, or derive a substantial amount of their value from the fact that they are novel, rare, bizarre, or because they are associated with some historical figure, period, or event. For a list of "curios and relics," go to http://www.atf.gov/publications/firearms/curios-relics/. Federally licensed firearms collectors are authorized to engage in limited interstate transfers of "curios and relics," whereas in nearly all cases an unlicensed person must engage the services of a federally licensed gun dealer to facilitate interstate firearms transfers to another unlicensed person.
(316) This provision was also originally part of the Tiahrt amendment.
(317) During House floor consideration, however, Representative Colleen Hanabusa offered an amendment (H.Amdt. 1046) to reduce the ATF appropriation by $1.9 million and increase the NOAA appropriation (described above) by $1.6 million. In addition, the House considered another amendment (H.Amdt. 1090) to reduce the ATF appropriation by $18,000. The House approved both amendments by voice votes.
(318) U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Congressional Budget Submission, Fiscal Year 2012, February 2011, http://www.justice.gov/jmd/2012justification/pdf/fy12-atf- justification.pdf.
(319) Congress finalized ATF's FY2011 appropriation in the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (H.R. 1473; P.L. 112-10). Under this act, Congress provided $1.113 billion for ATF for FY2011, or $8.2 million less than the previous year's appropriation. It is significant to note that neither amount, the $1.121 billion for FY2010 or the $1.113 billion for FY2011, reflect an FY2010/FY2011 Southwest border supplemental of $37.5 million, which was provided at the end of FY2010. Because of the timing of the supplemental, for accounting purposes it arguably could be added to either fiscal year. However, it was largely obligated in FY2011. Added to that year's appropriation, ATF's FY2011 appropriation increases to about $1.150 billion. And, instead of an $8.2 million reduction, ATF had an additional $29.3 million in budget authority for FY2011.
(320) During full committee markup, Representative Sam Farr successfully offered an amendment that cut discretionary accounts in the bill by 0.1%, and shifted that funding ($48 million) to the National Oceanic and Atmospheric Administration's Operations, Research, and Facilities program.
(321) U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms and Explosives Industry Division, ATF Study on the Importability of Certain Shotguns, January 2011, http://www.atf.gov/firearms/ industry/january-2011-importability-of-certain-shotguns.pdf.
(322) Proviso in ATF salaries and expenses language.
(324) For information on FISA provisions that were due to sunset, see CRS Report R40138, Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015, by Edward C. Liu.
(325) 5 0 U.S.C. [section]1801 et al.
(326) To effect such a firearms transfer denial, the subject of the FISA investigation would most likely be placed on a NICS-accessible terrorist watch list (NCIC-KST). For further information, see the heading below, Brady Background and Terrorist Watch List Checks.
(327) U.S. Congress, House Committee on the Judiciary, FISA Sunsets Reauthorization Act of 2011, to accompany H.R. 1800, 112th Cong., 1st sess., May 18, 2011, p. 9.
(328) P.L. 107-56; October 26, 2001; 115 Stat. 287, codified at 50 U.SC. [section]1861. Section 215 requires the Foreign Intelligence Surveillance Court to approve all requests for such documents.
(329) For a definition of "adjudicated mental defective," see the "Mental Defective Adjudications" section on p. 38.
(330) Under 27 C.F.R. [section]478.11, an "unlawful user of or addicted to any controlled substance" means a person who uses a controlled substance and has lost the power of self-control with reference to the use of [a] controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past five years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.
(331) See http://www.fbi.gov/about-us/cjis/nics/reports/nics-index.
(333) According to MAIG, such programs could include the State Criminal Alien Assistance Program, Title II Juvenile Justice Grants, Juvenile Accountability Block Grants, and Enforcing Underage Drinking Laws Block Grants.
(334) Mayors Against Illegal Guns, "A Plan to Prevent Future Tragedies," January 2011, http://www.mayorsagainstillegalguns.org.
(335) James V. Grimaldi and Sari Horwitz, "Cuts Threaten ATF's Efforts to Stem Flow of Guns South," Washington Post, January 31, 2011, p. 1. See also U.S. Government Accountability Office, Gun Control: Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist State in Providing Records for Background Checks, GAO-12-684, July 2012.
(336) David A. Fahrenthold and Clarence Williams, "Congresswoman Shot in Tucson Rampage," Washington Post, January 9, 2011, p. A1.
(337) Most semiautomatic pistol magazines, or clips, are designed to be self-contained within the handle of the pistol. The 33 round extended magazines used by the shooter protrude well beneath the butt of the pistol handle.
(338) For the statutory definition of a "school zone," see 18 U.S.C. [section]921(a)(25). For the prohibition, see 18 U.S.C. [section]922(q).
(339) For further information, see CRS Report R42336, Terrorist Watch List Screening and Brady Background Checks for Firearms, by William J. Krouse.
(340) Carrie Johnson, Spencer C. Hsu, and Ellen Nakashima, "Hasan Had Intensified Contact with Cleric: FBI Monitored E-mail Exchanges Fort Hood Suspect Raised Prospect of Financial Transfers," Washington Post, November 21, 2009, p. A01.
(341) Philip Rucker, Carrie Johnson, and Ellen Nakashima, "Hasan E-mails to Cleric Didn't Result in Inquiry; Suspect in Fort Hood Shootings Will Be Tried in Military Court," Washington Post, November 10, 2009, p. A01.
(342) According to a November 11, 2009, FBI press release, Hasan's communications with Anwar al-Aulaqi were assessed by the FBI in connection with an investigation of another subject, and the content of those communications was explainable by his research as a psychiatrist at the Walter Reed Medical Center and nothing else derogatory was found that would have suggested that he was involved in terrorist activities or planning. U.S. Department of Justice, Federal Bureau of Investigation, "Investigation Continues Into Fort Hood Shooting," November 11, 2009.
(343) U.S. Department of Justice, Office of Inspector General, Audit Division, Federal Bureau of Investigation's Terrorist Watchlist Nomination Practices, Audit Report 09-25, May 2009, p. 11.
(344) On August 1, 2009, Hasan reportedly purchased the Fabrique Nationale 5.7mm pistol that he used in the shootings. He also carried a .357 magnum revolver; however, it is unclear whether he fired the revolver.
(345) Michael Bloomberg and Thomas Kean, "Enabling the Next Fort Hood? Congress's Curbs on Gun Data Hurt Investigations," Washington Post, November 27, 2009, p. A23.
(346) U.S. Government Accountability Office, Gun Control and Terrorism: FBI Could Better Manage Firearm-Related Background Checks Involving Terrorist Watch List Records, GAO-05-127, January 2005, p. 7.
(347) For further information, see CRS Report RL32366, Terrorist Identification, Screening, and Tracking Under Homeland Security Presidential Directive 6, by William J. Krouse.
(348) Ibid., p. 9.
(349) U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services (CJIS) Division, "NCIC Marks 40 Years of Serving Law Enforcement," The CJIS Link: Criminal Justice Information Services that Connect Local, State, and Federal Law Enforcement, vol. 10, no. 1, May 2007, p. 2.
(350) Daniel D. Roberts, Assistant Director, Criminal Justice Information Services, Federal Bureau of Investigation, Statement Before the Senate Committee on Homeland Security and Governmental Affairs, May 5, 2010, p. 1.
(351) Statistics provided by the FBI Office of Congressional Affairs to CRS on May 11, 2010.
(352) Ibid., p. 11.
(353) Dan Eggen, "FBI Gets More Time on Gun Buys," Washington Post, November 22, 2003, p. A05.
(354) U.S. Government Accountability Office, Gun Control and Terrorism: FBI Could Better Manage Firearm-Related Background Checks Involving Terrorist Watch List Records, GAO-05-127, January 2005, p. 32.
(355) 2 8 C.F.R. [section]25.9(b)(1)(iii).
(356) 2 8 C.F.R. [section]25.9(b)(1)(ii).
(357) For FY2009, see [section]511 of the Omnibus Appropriations Act, 2009, (P.L. 111-8, 123 Stat. 596). For FY2010, see also [section]511 of the Consolidated Appropriations Act, 2010 (P.L. 111-117, 123 Stat. 3151). For FY2011, the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (P.L. 112-10) carried this requirement forward from FY2010. For FY2012, The Minibus Appropriations Act (H.R. 2112) includes a [section]511 that not only includes the "24 hour" destruction requirement, but it also includes "futurity" language, which makes the provision permanent law, as opposed to an annual appropriations restriction. The President has signed this bill into law (P.L. 112-55).
(358) For example, subsection 103(i) of the Brady Act (P.L. 103-159; 107 Stat. 1542) includes the following provision: PROHIBITION RELATING TO ESTABLISHMENT OF REGISTRATION SYSTEMS WITH RESPECT TO FIREARMS.--No department, agency, officer, or employee of the United States may--(1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof; or (2) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transaction or disposition, except with respect to persons, prohibited by Section 922 (g) or (n) of title 18, United States Code or State law, from receiving a firearm.
(359) In the 109th Congress (2005-2006), several pieces of legislation were introduced that were related to NICS background checks and terrorist watch lists. In March 2005, Senator Lautenberg and Representative John Conyers introduced the Terrorist Apprehension and Record Retention Act of 2005 (S. 578/H.R. 1225), a bill that would have (1) required that the FBI, along with appropriate federal and state counterterrorism officials, be notified immediately when NICS background checks indicated that a person seeking to obtain a firearm was a known or suspected terrorist; (2) required that the FBI coordinate the response to such occurrences; and (3) authorized the retention of all related records for at least 10 years.
In addition, Representative Peter King introduced H.R. 1168, a bill that would have required the Attorney General to promulgate regulations to preserve records of terrorist- and gang-related matches during such background checks until they had been provided to the FBI. Representative Carolyn McCarthy introduced H.R. 1195, a bill that would have made it unlawful to transfer a firearm to a person who was on the "No Fly" lists maintained by TSA.
In summation, two of those proposals (S. 578/H.R. 1225 and H.R. 1168) addressed the retention of approved firearm background check records that are related to terrorist watch list matches. The other bill (H.R. 1195) addressed the issue of whether a known or suspected terrorist on one government watch list in particular should be barred from possessing firearms. Neither of these bills, however, addressed the other underlying issue of how long the total number of approved firearm transfer records should be retained and, if retained, whether they should be searched to determine whether known or suspected terrorists had previously obtained firearms.
(360) USA Patriot Act: A Review for the Purpose of Reauthorization: Hearing Before H. Comm. on the Judiciary, 109th Cong. 81-82 (April 6, 2005) (Testimony of Alberto Gonzales, Attorney General, Department of Justice).
(361) U.S. Department of Justice, Office of Legislative Affairs, Letter to the Honorable Richard B. Cheney, President, United States Senate, from Richard A. Hertling Acting Assistant Attorney General, February 13, 2007, http://lautenberg.senate.gov/assets/terrorgap/Feb_2007_DOJ_Reply.pdf; Letter to Honorable Robert S. Mueller, III, Director of the Federal Bureau of Investigation and Honrable Alberto Gonzales, Attorney General, November 1, 2006, http://lautenberg.senate.gov/assets/terrorgap/2006_Lautenberg_Biden_Letter.pdf.
(362) This proposal was drafted by the Department of Justice for consideration by Congress. See U.S. Dep't of Justice, Office of Legislative Affairs, Letter to the Honorable Richard B. Cheney, President, United States Senate, from Richard A. Hertling Acting Assistant Attorney General, April 25, 2007, http://lautenberg.senate.gov/assets/terrorgap/ Cheney_DOJ_Drafted_Bill_Re_Dangerous_Terrorists_Act_2007.pdf.
(363) U.S. Government Accountability Office, GAO-09-125R, Firearm and Explosive Background Checks Involving Terrorist Watch List Records 8 (May 2009).
(364) U.S. Government Accountability Office, Terrorist Watchlist Screening: FBI Has Enhanced Its Use of Information from Firearm and Explosives Background Checks to Support Counterterrorism Efforts, GAO-10-703T, May 5, 2010.
(365) Ibid. p. 5.
(370) Ibid., p. 2.
(371) U.S. Senate, Senate Committee on Homeland Security and Governmental Affairs, Hearing on Terrorist Threat and Guns, 111th Congress, 2nd Session, May 5, 2010 (CQ Congressional Transcripts).
(373) Vivian S. Chu, CRS Legislative Attorney, contributed to the analysis of this bill.
(374) H.R. 2554, [section]2-proposed 18 U.S.C. [section]932(a).
(375) H.R. 2554, [section]2-proposed 18 U.S.C. [section]923(b).
(376) H.R. 2554, [section]2-proposed 18 U.S.C. [section]924(a)(8)(A).
(377) H.R. 2554, [section]2-proposed 18 U.S.C. [section]924(a)(8)(B).
(378) H.R. 2554, [section]2-proposed 18 U.S.C. [section]923(c).
(379) H.R. 2554, [section]2-proposed 18 U.S.C. [section]924(a)(8)(C).
(380) Senator Gillibrand and Representative Carolyn McCarthy previously offered this proposal in the 111th Congress. See the Gun Trafficking Prevention Act of 2009 (S. 2878/H.R. 4298).
(381) S. 1973, [section]3-proposed 18 U.S.C. [section]932(a)(1).
(382) NB: Unlike the current law statutory provisions related to straw purchases (18 U.S.C. [section][section]922(a)(6) and 924(a)(1)(A)), this proposed provision does not include any evidentiary standard regarding the offender's state of mind (e.g., "knowingly" or "knows or has reasonable cause to believe").
(383) S. 1973, [section]3-proposed 18 U.S.C. [section]932(a)(2).
(384) S. 1973, [section]3-proposed 18 U.S.C. [section]932(a)(3)(A). Arguably, the intent behind such a provision would be to encourage background checks for private firearms transactions, for which there are no federal background checks or corresponding recordkeeping requirements. Under federal law, private transactions between unlicensed persons are only legal if they are conducted intrastate (within state lines). Interstate transfers between private persons must be facilitated through at least one licensed dealer, that is, an FFL in the state of destination.
(385) United States Sentencing Commission, Guidelines Manual, [section]2K2.3(b)(1) (October 1987).
(386) United States Sentencing Commission, Guidelines Manual, [section]2K2.1(b)(1) (October 2001).
(387) On November 1, 2011, sentencing enhancements adopted by the United States Sentencing Commission went into effect. These sentencing enhancements address "straw purchases," "semi automatic firearms capable of accepting large capacity magazines," and "cross-border trafficking in small arms or ammunition." See 76 Federal Register 3193, January 19, 2011; 76 Federal Register 24960, May 3, 2011; 76 Federal Register 58563, September 21, 2011; and United States Sentencing Commission, Guidelines Manual, [section]2K2.1 (November 2011).
(388) Time-to-crime is the time that elapses between the first retail sale of a firearm by an FFL to a private person (nonlicensee) and the firearm's recovery by authorities and the submission of a trace request by those authorities to the ATF.
(389) H.R. 4190; [section]2-proposed [section]924(q).
(390) In the 110th Congress, Representative King introduced a nearly identical measure (H.R. 4818).
(391) As previously mentioned, a statutory definition for "semiautomatic assault weapon" no longer exists. The 1994 Semiautomatic Assault Weapons (SAW) Ban, which expired in 2004, had defined, for example, a rifle as a semiautomatic assault weapon if it was able to accept a detachable magazine and included two or more of the following five characteristics: (1) a folding or telescopic scope, (2) a pistol grip, (3) a bayonet mount, (4) a muzzle flash suppressor or threaded barrel capable of accepting such a suppressor, or (5) a grenade launcher. (Former 18 U.S.C. [section]921(a)(30)). Similar definitions existed for semiautomatic pistols and shotguns.
(392) The GCA offenses in title 18 that would have been implicated in this new gun trafficking crime were (1) [section]922(a)(1)(A), unlawful to willfully engage in business of dealing firearms without a license; (2) [section]922(a)(3), unlawful for non-licensee to willfully transport or receive a firearm obtained in another state into his state of residence; (3) [section]922(a)(6), unlawful to knowingly make a materially false statement to a FFL; (4) [section]922(b)(2), unlawful for an FFL to willfully deliver a firearm to a person where the purchase or possession would violate state law; (5) [section]922(b)(3), unlawful for an FFL to willfully deliver a firearm to a person residing in a state other than the FFL's; (6) [section]922(b)(5), unlawful for an FFL to willfully dispose of a firearm without making entries required by law; (7) [section]922(d), unlawful for any person to knowingly dispose a firearm to a prohibited person; (8) [section]922(g), unlawful for any prohibited person to knowingly receive or possess firearm or ammunition; (9) [section]922(i), unlawful for any person to knowingly transport or ship a stolen firearm; (10) [section]922(j), unlawful for any person to knowingly receive, possess, conceal, store, barter, sell, or dispose of stolen firearm; (11) [section]922(k), unlawful for any person to knowingly transport, ship, or receive a firearm that has an obliterated or altered serial number; (12) [section]922(m), unlawful for an FFL to knowingly make a false entry in or improperly maintain records required by law; (13) [section]922(n), unlawful for any person to willfully ship or receive firearms or ammunition if under indictment for felony; (14) [section]924(c), unlawful for any person to use or carry a firearm during or in relation to a federal crime of violence or drug trafficking crime; (15) [section]924(h), unlawful for any person to transfer a firearm knowing it will be used to commit a crime of violence or a drug trafficking crime.
(393) In the 109th Congress, Representative Howard Coble, chair of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, and Representative Robert Scott, the subcommittee's ranking minority Member, introduced the ATFE Modernization and Reform Act of 2006 (H.R. 5092) on April 5, 2006. H.R. 5092 was approved by the Crime subcommittee on May 3, 2006. The House Judiciary Committee ordered this bill reported on September 7, and a written report was filed on September 21 (H.Rept. 109-672). The House passed this bill on September 26, 2006, by a recorded vote of 277-131 (Roll no. 476), but no further action was taken on this bill. See also U.S. Congress, House Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE): Gun Show Enforcement (Parts 1 and 2), 109th Cong., 2nd sess., February 15 and 28, 2006, H.Hrg. 109-123 (Washington: GPO, 2006).
(394) For further information, see out-of-print CRS Report RL32249, Gun Control: Proposals to Regulate Gun Shows, by William J. Krouse and T.J. Halstead (available upon request).
(395) 18 U.S.C. [section]921(a)(30)(B).
(396) 18 U.S.C. [section]921(a)(30)(C) and (D).
(397) For further information, see Caroline Wolf Harlow, Firearm Use by Offenders, at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=940.
(398) For further information, see CRS Report RL32077, The Assault Weapons Ban: Legal Challenges and Legislative Issues, by T. J. Halstead; and CRS Report RL32585, Semiautomatic Assault Weapons Ban, by William J. Krouse.
(399) For further information, see CRS Report RS22151, Long-Range Fifty Caliber Rifles: Should They Be More Strictly Regulated?, by William J. Krouse.
(400) 26 U.S.C., Chapter 53, [section]5801 et seq.
(401) 18 U.S.C., Chapter 44, [section]921 et seq.
(402) For legal analysis, see CRS Report R41750, The Second Amendment: An Overview of District of Columbia v. Heller and McDonald v. City of Chicago, by Vivian S. Chu.
(403) Foreshadowing the contentiousness of the DC gun ban issue, Representative Lamar Smith had previously scuttled the District of Columbia House Voting Rights Act of 2007 (H.R. 1433) on March 22, 2007, when he offered a motion to recommit the bill to the House Oversight and Government Reform Committee for consideration of an amendment to repeal portions of the DC handgun ban. Rather than vote on the motion, debate on H.R. 1433 was postponed indefinitely. Jonathan Allen, "Gun-Rights Gambit Sidetracks D.C. House Vote," CQ Today, March 22, 2007; and for further information on H.R. 1433, see CRS Report RL33830, District of Columbia Voting Representation in Congress: An Analysis of Legislative Proposals, by Eugene Boyd.
(404) Under the Home Rule Act (P.L. 93-198), Congress has reserved for itself the authority to legislate for the District.
(405) Keith Perine and Seth Stern, "House Democrats Plan Vote To Roll Back D.C. Gun Laws," CQ Today Online News, August 5, 2008.
(406) For further information on these bills, as well as the Ensign amendment, see CRS Report R40474, DC Gun Laws and Proposed Amendments, by Vivian S. Chu.
(407) Microstamping is an emerging technology by which a firearm's serial number is engraved microscopically with a laser onto the breech face or firing pin of a firearm. When the firearm is fired, the serial number is "stamped" upon the cartridge casing. If a microstamped cartridge is subsequently recovered at a crime scene, the firearm's serial number could potentially yield additional leads for law enforcement.
(408) For more information, see CRS Report R40474, DC Gun Laws and Proposed Amendments, by Vivian S. Chu.
(409) Edward Epstein and Michael Teitelbaum, "Hoyer Expresses Optimism About Chance D.C. Vote Bill Will Come to Floor," CQ Today, March 24, 2009.
(410) Ann E. Marimow and Ben Pershing, "District Voting Rights Scuttled: 'The Price Was Too High' Amendment Would Have Repealed D.C. Gun Laws," Washington Post, April 21, 2010, p. B01.
(411) For legal analysis, see CRS Report R41750, The Second Amendment: An Overview of District of Columbia v. Heller and McDonald v. City of Chicago, by Vivian S. Chu.
(412) Dave Workman, "Chicago Adopts New Gun Regs, Lawsuit Filed," New Gun Week, August 1, 2010, p. 1.
(413) 36 C.F.R. Part 2.
(414) 50 C.F.R. Part 27.
(415) Warren Richey, "Bid to Allow Guns in National Parks," Christian Science Monitor, August 19, 2008, p. 3.
(416) 73 Federal Register 23388.
(417) 73 Federal Register 39272.
(418) Department of the Interior, National Park Service, "General Regulations for Areas Administered by the National Park Service and the Fish and Wildlife Service," 73 Federal Register 74966-74972, December 10, 2008.
(419) Juliet Eilperin and Del Quentin Wilber, "Judge Blocks Rule Permitting Concealed Guns in U.S. Parks," Washington Post, March 20, 2009, p. A09.
(420) CRS compilation of FBI Uniform Crime Reports data show that from 2002 through 2006, there were 15 murders and non-negligent homicides reported by the FWS and 48 reported by the NPS. However, FWS reports all crimes encountered by its agents, whether or not they occurred on refuge land. It is difficult to determine how many of the 15 murders occurred on refuges.
(421) Shalaigh Murray, "Public Option at Center of Debate; Democratic Dissent Reid Must Find Compromise to Pass Health-Care Bill," Washington Post, November 23, 2009, p. A01.
(422) In the Brady Handgun Violence Prevention Act (P.L. 103-159, November 30, 1993, 107 Stat. 1542), Congress included a provision ([section]103(i)) that prohibits any department, agency, officer, or employee of the United States from establishing a registration system with respect to firearms, firearms owners, or firearms transactions/dispositions that would use records generated by the National Instant Criminal Background Check System (NICS).
(423) Peter Overby, "A Vote For Health Care, A Vote Against Gun Rights?," National Public Radio, November 25, 2009.
(425) See proposed [section]2717 as included in [section]1001 and amended by [section]10101 in the Senate-passed H.R. 3590.
(426) As described in greater detail above, the National Instant Criminal Background Check System (NICS) is administered by the FBI, so that federally licensed gun dealers can process a background check to determine a customer's eligibility to possess a firearm before proceeding with a transaction.
(427) On April 16, 2007, a student at Virginia Polytechnic Institute and State University shot 32 people to death and wounded many others.
(428) Jonathan Weisman, "Democrats, NRA Reach Deal on Background-Check Bill," Washington Post, June 10, 2007, p. A02.
(429) David Rogers, "Democrats Stall on Gun-Records Bill: Despite Support, Background-Check Measure Staggers in Senate Amid Infighting," Wall Street Journal, September 21, 2007, p. A6.
(430) Seth Stern, "Coburn Blocks Gun Background-Check Bill, Citing Concerns About Privacy, Spending," CQ Today, September 25, 2007.
(431) PTSD is an anxiety disorder that can occur after one has been through a traumatic event. Symptoms may manifest soon after the trauma, or may be delayed. For further information, see U.S. Department of Veterans Affairs, National Center for Posttraumatic Stress Disorder, Fact Sheet, http://www.ncptsd.va.gov/ncmain/ncdocs/fact_shts/ fs_what_is_ptsd.html.
(432) Larry Pratt, "Veterans Disarmament Act To Bar Vets From Owning Guns," September 23, 2007,
(433) Federal Register, vol. 62, no. 124, June 27, 1997, p. 34634.
(434) Federal Register, vol. 61, no. 174, September 6, 1996, p. 47095.
(436) Personal communication with Compensation and Pension Program staff, Department of Veterans Affairs, July 9, 2008. http://www.prisonplanet.com/articles/september2007/230907Disarmament.htm.
(437) Personal communication with the Office of Congressional Affairs staff, Department of Veterans Affairs, February 10, 2012.
(438) For further information on the treatment of mental illness and substance abuse for the purposes of gun control, see Donna M. Norris, M.D. et al., "Firearm Laws, Patients, and the Roles of Psychiatrists," American Journal of Psychiatry, August 2006, pp. 1392-1396.
(439) John Dougherty, "VA Give FBI Health Secrets: Veterans' Records Could Block Firearms Purchases," WorldNet Daily.com, June 22, 2000; and "VA Defends Vets' Records Transfers to NICS System," New Gun Week, vol. 35, issue 1650, July 10, 2000, p. 1.
(440) Seth Stern, "House to Try Again on Public Housing Bill," CQ Today, July 8, 2008.
(441) At the time of the Thune amendment, "shall issue" states included Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming.
(442) "May issue" states included Alabama, Connecticut, and Iowa. The following states are restrictive may issue states: California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island.
(443) For further information, see CRS Report R41206, The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF): Budget and Operations for FY2011, by William J. Krouse.
(444) For further information on Operation Gunrunner, see CRS Report R40733, Gun Trafficking and the Southwest Border, by Vivian S. Chu and William J. Krouse.
(445) For more information, see CRS Report RL34758, The National Response Framework: Overview and Possible Issues for Congress, by Bruce R. Lindsay.
(446) For further information, see CRS Report RL30343, Continuing Resolutions: Latest Action and Brief Overview of Recent Practices, by Sandy Streeter.
(447) For further information, see CRS Report RL34514, The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF): Budget and Operations for FY2008, FY2009, and FY2010, by William J. Krouse.
(448) The conference report on the bill includes provisions for six of the seven FY2010 appropriations: Transportation- HUD; Commerce-Justice-Science; Financial Services; Labor-HHS; Military Construction-VA; and State-Foreign Operations. The Defense appropriations bill, H.R. 3326, was passed separately.
(449) Theo Emery and Edward Epstein, "Border Security Bill Passes in House," CQ Today, August 10, 2010, online edition.
(450) For further information, see CRS Report RS22837, Merida Initiative: U.S. Anticrime and Counterdrug Assistance for Mexico and Central America, by Clare Ribando Seelke.
(451) For further information, see CRS Report RS22458, Gun Control: Statutory Disclosure Limitations on ATF Firearms Trace Data and Multiple Handgun Sales Reports, by William J. Krouse.
(452) U.S. Government Accountability Office, "Bureau of Alcohol, Tobacco, Firearms, and Explosives--Prohibition in the 2008 Consolidated Appropriations Act," July 15, 2008, http://www.gao.gov/decisions/appro/316510.pdf.
(453) See CRS Report RL31143, Firearms Prohibitions and Domestic Violence Convictions: The Lautenberg Amendment, by T. J. Halstead.
(454) For further information, see CRS Report RS22074, Limiting Tort Liability of Gun Manufacturers and Gun Sellers: Legal Analysis of P.L. 109-92 (2005), by Henry Cohen.
Table 1. Estimated Murder Rates and Firearms, 1993-2011 Year Estimated Rate per 100,000 Murder Victims of the Population 1993 24,526 9.5 1994 23,326 9.0 1995 21,606 8.2 1996 19,645 7.4 1997 18,208 6.8 1998 16,974 6.3 1999 15,522 5.7 2000 15,586 5.5 2001 16,037 5.6 2002 16,229 5.6 2003 16,528 5.7 2004 16,148 5.5 2005 16,740 5.6 2006 17,309 5.8 2007 17,128 5.7 2008 16,645 5.4 2009 15,399 5.0 2010 14,722 4.8 2011 14,612 4.7 Year Estimated Firearms Rate per 100,000 -Related Murder of the Population Victims (b) 1993 17,073 6.6 1994 16,333 6.3 1995 14,727 5.6 1996 13,261 5.0 1997 12,335 4.6 1998 11,006 4.1 1999 10,117 3.7 2000 10,203 3.6 2001 10,139 3.6 2002 10,841 3.8 2003 11,037 3.8 2004 10,665 3.6 2005 11,363 3.8 2006 11,731 3.9 2007 11,631 3.9 2008 11,029 3.6 2009 10,301 3.4 2010 9,812 3.2 2011 9,903 3.2 Source: CRS compilation of FBI crime statistics reported annually in the Uniform Crime Reports, 1993-201 1. (a.) Includes murder and non-negligent manslaughter victims. (b.) The number of firearms-related murder and non-negligent manslaughter victims was estimated by applying the percentage of firearms-related murders for which the cause of death was known to the number of all reported murder and non-negligent homicide victims for which the cause was known or unknown. Table 2. Firearms-Related Deaths for All Ages 1993-2009 Year (a) Homicides Legal Suicides Interventions 1993 18,253 318 18,940 1994 17,527 339 18,765 1995 15,551 284 18,503 1996 14,037 290 18,166 1997 13,252 270 17,566 1998 11,798 304 17,424 1999 10,828 299 16,599 2000 10,801 270 16,586 2001 11,348 323 16,869 2002 11,829 300 17,108 2003 11,920 347 16,907 2004 11,624 311 16,750 2005 12,352 330 17,002 2006 12,791 360 16,883 2007 12,632 351 17,352 2008 12,179 326 18,223 2009 11,493 333 18,735 Year (a) Accidents Unknown Total % Deaths Change 1993 1,521 563 39,596 1994 1,356 518 38,506 -2.8% 1995 1,225 394 35,958 -6.6% 1996 1,134 413 34,041 -5.3% 1997 981 367 32,437 -4.7% 1998 866 316 30,709 -5.3% 1999 824 324 28,875 -6.0% 2000 776 230 28,664 -0.7% 2001 802 231 29,574 3.2% 2002 762 243 30,243 2.3% 2003 730 232 30,137 -0.4% 2004 649 235 29,570 -1.9% 2005 789 221 30,695 3.8% 2006 642 220 30,897 0.7% 2007 613 276 31,224 1.1% 2008 592 273 31,593 1.1% 2009 554 232 31,347 -0.7 Source: National Center for Health Statistics. (a.) As of February 28, 2012, the last year for which data were available was calendar year 2009. Table 3. Firearms-Related Deaths for Juveniles 1993-2009 Year (a) Homicides Legal Suicides Interventions 1993 1,975 16 832 1994 1,912 20 902 1995 1,780 16 836 1996 1,473 9 720 1997 1,308 7 679 1998 1,045 17 648 1999 1,001 9 558 2000 819 15 537 2001 835 6 451 2002 872 7 423 2003 805 8 377 2004 868 6 384 2005 921 5 412 2006 1,082 14 371 2007 1,038 9 325 2008 984 6 361 2009 887 5 401 Year (a) Accidents Unknown Total % Deaths Change 1993 392 76 3,292 1994 403 81 3,319 0.8% 1995 330 72 3,035 -8.6% 1996 272 49 2,524 -16.8% 1997 247 43 2,285 -9.5% 1998 207 54 1,972 -13.7% 1999 158 50 1,777 -9.9% 2000 150 23 1,545 -13.1% 2001 125 16 1,434 -7.2% 2002 115 26 1,444 0.7% 2003 102 25 1,318 -8.7% 2004 105 22 1,386 5.2% 2005 127 25 1,491 7.6% 2006 102 24 1,594 6.9% 2007 112 36 1,520 -4.6% 2008 98 26 1,475 -3.0% 2009 83 16 1,392 -5.6% Source: National Center for Health Statistics. a. As of February 28, 2012, the last year for which data were available was calendar year 2009. Table 4. Brady Background Checks for Firearms Transfers and Permits 1998-2009 Year Total Annual Denials FBI Checks Checks 1998 893,127 18,647 507,000 1999 8,621,315 204,455 4,538,000 2000 7,698,643 153,087 4,260,270 2001 7,957,926 150,500 4,291,926 2002 7,805,792 135,973 4,248,893 2003 7,831,146 126,181 4,462,801 2004 8,083,809 125,842 4,685,018 2005 8,277,873 131,916 4,952,639 2006 8,612,201 134,442 5,262,752 2007 8,658,245 135,817 5,136,883 2008 9,900,711 147,080 5,813,249 2009 10,764,237 150,013 4,680,809 Total 95,105,025 1,613,953 54,242,859 Year S&L FBI Denials (a) POC Checks Denials (b) 1998 386,127 8,836 9,811 1999 4,083,315 81,000 123,455 2000 3,438,373 66,808 86,279 2001 3,666,000 64,500 86,000 2002 3,556,899 60,739 75,234 2003 3,368,345 61,170 65,011 2004 3,398,791 63,675 62,167 2005 3,325,234 66,705 65,211 2006 3,349,449 69,930 64,512 2007 3,521,362 66,817 69,000 2008 4,087,462 70,725 76,355 2009 4,987,459 67,324 82,689 Total 40,862,166 748,229 865,724 Source: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbse&sid= 13. Notes: On November 30, 1998, the interim provisions of the Brady Handgun Violence Prevention Act (P.L. 103-159) ended, and the permanent provisions were implemented when the FBI stood up the National Instant Criminal Background Check System (NICS). (a.) In non-point of contact (non-POC) states, federal firearms licensees contact the FBI directly to conduct NICS background checks. (b.) In point of contact (POC) states, federal firearms licenses contact a state agency and, in turn, the state agency contacts the FBI to conduct NICS background checks. Table 5. Estimated Brady Background Check Denials (1999 through 2009) Reasons for Denial Total % FBI % Denials Denials Felony indictment/conviction 904,904 56.1 482,608 64.5 State law prohibition 92,31 1 5.7 19,454 2.6 Domestic violence 237,323 14.7 119,717 16.0 Misdemeanor conviction 176,210 10.9 86,795 11.6 Restraining order 61,113 3.8 32,922 4.4 Fugitive 101,001 6.3 49,383 6.6 Illegal alien 13,322 0.8 9,727 1.3 Mental illness or disability 28,637 1.8 4,489 0.6 Drug user/addict 77,420 4.8 57,614 7.7 Local law prohibition 6,724 0.4 0 Other prohibitions 152,310 9.4 5,238 0.7 Totals (a) 1,613,953 100.0 748,229 100.0 Reasons for Denial State % Local Denials Denials % Felony indictment/conviction 387,491 52.8 34,806 26.4 State law prohibition 56,509 7.7 16,348 12.4 Domestic violence 99,808 13.6 17,798 13.5 Misdemeanor conviction 74,122 10.1 15,293 11.6 Restraining order 25,686 3.5 2,505 1.9 Fugitive 49,904 6.8 1,714 1.3 Illegal alien 2,936 0.4 659 0.5 Mental illness or disability 18,347 2.5 5,801 4.4 Drug user/addict 8,073 1.1 11,734 8.9 Local law prohibition 0 6,724 5.1 Other prohibitions 110,816 15.1 36,256 27.5 Totals (a) 733,884 100.0 131,840 100.0 Source: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Background Checks for Firearms Transfers, 2009--Statistical Tables, by Michael Bowling et al., available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2214. (a.) Denials by reason subtotals are based upon percentages reported by BJS, which were applied to total denials by the FBI and state and local officials. Consequently, denials by reason may not sum precisely to the totals. Table 6. NCHIP Appropriations, FY1995 though FY2012 (dollars in millions) Fiscal Year Appropriation FY1995 100.000 FY1996 26.500 FY1997 51.750 FY1998 47.750 FY1999 45.000 FY2000 35.000 FY2001 35.000 FY2002 38.000 FY2003 42.721 FY2004 32.634 FY2005 27.577 FY2006 12.796 FY2007 12.805 FY2008 12.220 FY2009 13.000 FY2010 14.500 FY2011 9.500 FY2012 6.000 Total 562.753 Source: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Table 7. NICS Improvement Authorizations and Appropriations under P.L. 110-180 (dollars in millions) Fiscal Year Section 103(e) Section 301(e) Actual Appropriation FY2009 125 62.5 10.000 FY2010 250 125.0 20.000 FY2011 250 125.0 16.567 FY2012 125 62.5 5.000 FY2013 125 62.5 Total 875 437.5 51.567 Figure 3. Federal Sentences Imposed Nationally under 18 U.S.C. [section][section]922(a)(6) and 924(a)(1)(A) FY2004-FY2010 sentences under sentences under [section] 922(a)(6) [section] 924(a)(1)(A) in months in months >61 months 7.5%(116) 13.2%(149) 37 to 60 months 9.3%(144) 9.4%(106) 25 to 36 months 7.6%(117) 6.0%(68) 13 to 24 months 17.4%(269) 14.6%(165) 1 to 12 months 20.7%(319) 22.6%(256) Not imprisoned 37.4%(578) 34.0%(385) Life 0.1%(1) 0.3%(3) Source from U.S. Attorney's Office. Figure created by CRS. Note: Table made from pie chart. Figure 5. ATF Appropriations, FY2013 Request FY2013 Request dollars in millions ($1,153.3) Arson & Explosives ($253.7) 22% Alcohol & Tobaccoo ($23.1) 2% Firearms ($875.5) 76% Construction ($0) Source: ATF Congressional Budget Submission, FY2013. Note: Table made from pie chart. Figure 6. ATF Appropriations: FY2012 Requested and Enacted Compared (dollars in millions) FY2012 Request FY2012 Enacted $1,147.3 million $1,152.0 million Arson & Explosives 23% 22% Alcohol& Tobacco 2% 2% Firearms 75% 76% Source: ATF Congressional Budget Submissions, Fiscal Years 2012 and 2013. Note: Table made from pie chart.
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|Title Annotation:||Gun Control Legislation|
|Author:||Krouse, William J.|
|Publication:||Congressional Research Service (CRS) Reports and Issue Briefs|
|Date:||Nov 1, 2012|
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