Other salient gun control legislative issues.
Terrorist Watch List Screening and Brady Background Checks (339)
On November 5, 2009, U.S. Army Major Nidal Malik Hasan allegedly shot 13 persons to death and wounded over 30 at Fort Hood, TX. Prior to the shootings, Hasan had corresponded by email with a radical Muslim imam, Anwar al-Aulaqi, who U.S. authorities had long suspected of having substantial ties to al-Qaeda. (340) Although FBI counterterrorism agents were aware of Hasan's communications with al-Aulaqi, (341) it was unclear at what level Hasan was being scrutinized by the FBI. (342) If he had been the subject of a full counterterrorism investigation, FBI policy would have required that he be watch-listed. (343) Depending upon the sequence of events, had Hasan been watch-listed, there is a possibility that his purchase of a pistol (344) and the required Brady background check could have alerted FBI counterterrorism agents to that transfer, and they might have been able to take steps that would have prevented the shootings. The Fort Hood shootings renewed interest in the U.S. government's use of terrorist watch lists for firearms- and explosives-related background checks. (345)
Post-9/11 Modified NICS Procedures
Before February 2004, terrorist watch list checks were not part of the Brady background check process because being a suspected or known terrorist was and is not a disqualifying factor for firearms transfer/possession eligibility under federal or state law. As is the case today, to determine such eligibility, the National Instant Criminal Background Checks System (NICS) queries three databases maintained by the FBI. They include the National Crime Information Center (NCIC), the Interstate Identification Index (III), and the NICS index. The NICS index includes disqualifying records on persons that would not be included in the III or NCIC, for example, persons dishonorably discharged from the Armed Forces, adjudicated as a mental defective, or convicted of certain serious immigration violations, among others. The III contains criminal history records for persons arrested and convicted of felonies and certain serious misdemeanors. The NCIC contains law enforcement files on fugitives and persons subject to restraining orders, among other persons. NCIC also contains a file known as the Violent Gang and Terrorist Organization File (VGTOF). Prior to the 9/11 attacks, this file included limited information on known or suspected terrorists and gang members. NICS examiners were not informed of VGTOF hits, as such information was not considered relevant to determining firearms transfer/possession eligibility.
In November 2002, DOJ initiated a NICS transaction audit to determine whether prohibited aliens (non-citizens) were being improperly transferred firearms. (346) As part of this audit, NICS procedures were changed so that NICS examiners would be informed of VGTOF hits. Under Homeland Security Presidential Directive 6, moreover, the Administration initiated a broad-based review of the use of watch lists, among other terrorist identification and screening mechanisms. (347) In September 2003, the FBI-administered Terrorist Screening Center (TSC) was established and work was begun to improve and merge several watch lists maintained by the U.S. government into a consolidated Terrorist Screening Database (TSDB). (348) Following those efforts, TSDB lookout records from other agency watch lists were downloaded into VGTOF. By May 2007, VGTOF contained more than 100,000 records. (349) In 2009, the FBI created a separate file for "known and appropriately suspected terrorists (KST)" by splitting VGTOF into separate gang and terrorist files. (350) As of March 31, 2010, the KST included 278,219 terrorist watch list records. (351)
In November 2003, DOJ directed the FBI to revise its NICS procedures to include measures to screen prospective firearms transferees and permittees against terrorist watch list records (KST, formerly VGTOF). (352) Effective February 2004, the Brady background check process was altered to include a terrorist watch list check and to alert NICS staff when a prospective firearms transferee or permit applicant is potentially identified as a known or suspected terrorist. (353) In the case of a watch list hit, NICS sends a delayed transfer (for up to three business days) response to the querying FFL or POC. If NICS examiners cannot find a prohibiting factor, they immediately contact the TSC and FBI Counterterrorism Division (CTD) to (1) validate the hit and (2) allow FBI Special Agents in the field to check for possible prohibiting factors. If no prohibiting factors are uncovered within the three-day period, a firearms dealer may proceed with the transaction at his discretion, but FBI counterterrorism officials continue to work the case for up to 90 days, during which time the background check is considered to be in an "open" status. (354)
If and when a transaction is approved, all identifying information submitted by or on behalf of the transferee is to be destroyed within 24 hours. (355) At the end of the 90-day period, if no prohibiting factor has been reported to the NICS Center, all records related to the NICS transaction are destroyed except for the NICS Transaction Number (NTN) and date of the transaction. (356) If the FFL proceeded with the transaction at his discretion following three business days and the applicant is found to be disqualified, then the ATF is to be notified and a firearms retrieval action is to be initiated in coordination with a JTTF.
NICS Record Retention
When Congress passed the Brady Act in 1994, the use of terrorist watch lists during firearms-related background checks was not considered. As a consequence, the Attorney General has no specific statutory authority to screen prospective gun buyers against terrorist watch list records. Nevertheless, the FBI adopted procedures to do this because being on such a list suggests that there may be an underlying factor that would bar a prospective background check applicant from possessing a firearm. Hence, a possible issue for Congress could be whether terrorist watch list checks should be incorporated statutorily into the Brady background checks for firearms.
In addition, a proviso attached to the FY2005 DOJ annual appropriation and every year thereafter requires that NICS-generated approved firearms transaction records be destroyed within 24 hours. (357) Nevertheless, as described above, the FBI has been retaining approved firearms transaction records for up to 90 days, if those records are related to terrorist watch list hits. Furthermore, information on the subjects of those checks are passed on to FBI investigators in the field. While the NICS records are eventually destroyed for non-denials, it is unknown what happens to the information generated by NICS-related terrorist watch list hits that are passed on to the FBI CTD and Special Agents in the field, who are usually assigned to Joint Terrorism Task Forces. Information about those firearms transactions is possibly recorded and stored electronically in the FBI's investigative case files.
In the Brady Act, however, there is a provision that prohibits the (1) transfer of any Brady system record to any other federal or state agency, or (2) the use of the Brady system as a national registry of firearms or firearms owners. (358) In light of the former prohibition, a second issue for Congress could be whether to grant the FBI greater authority to maintain and access NICS records for the purposes of counterterrorism, or should existing statutory limitations that were arguably designed to prevent the maintenance of and access to such records be strengthened. In light of the first two issues, it follows that a third issue for Congress could be whether the Attorney General should be given explicit authority to deny firearms transfers to watch-listed persons on a case-by-case basis, or should all known or suspected terrorists be statutorily prohibited from possessing firearms and explosives. (359)
Legislation in the 110th Congress and DOJ Draft Proposal
As described above, although watch-listed persons may be the subject of ongoing foreign intelligence, national security, and criminal investigations, they may not be persons prohibited from possessing firearms or explosives under current law. As subsequent events would indicate, DOJ concluded that it was limited under current law in its authority to use terrorist watch lists as part of the background check processes to deny firearms and explosives transfers to known or suspected terrorists. In hearings before the House Committee on the Judiciary, Attorney General Alberto Gonzales was questioned several times by Members of Congress about NICS procedures and terrorist watch list hits.
Representative Chris Van Hollen: "Does it make sense to you that we stop a person from boarding the airline in order to protect the public safety, [but] that an individual can turn around, get in their car, go to the local gun shop and buy 20 semiautomatic assault weapons?" Attorney General Gonzales: "I think we should be doing everything we can to ensure that people [who] are in fact terrorists shouldn't have weapons in this country, the truth of the matter is. But unless they are disabled [disqualified] from having a weapon under the statute there's not much that we can do other than maybe try and get them out of the country or, by the way, to see if there's any disability under the statute that would allow us to deny them a firearm." (360)
In 2005, then Attorney General Gonzales directed the DOJ to form a working group to review federal gun laws--particularly in regard to NICS background checks--to examine whether additional authority should be sought to prevent firearms transfers to known or suspected terrorists. (361) Nearly two years later, on April 25, 2007, DOJ proposed legislation that would give the Attorney General authority to deny a firearm transfer, state-issued firearms permit, or explosive license to any person found "to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism." (362) In the 110th Congress (2007-2008), Senator Lautenberg and Representative King introduced this proposal (S. 1237/H.R. 2074), but no further action was taken on either bill.
Legislation in the 111th Congress, GAO Follow-Up Report, and Senate Hearing
In the 111th Congress (2009-2010), several bills were introduced that would have addressed firearms- and explosives-related background checks and terrorist watch list checks. Senator Lautenberg and Representative King reintroduced their bill that was based on the DOJ draft proposal (S. 1317 and H.R. 2159). Representative McCarthy reintroduced her bill, newly titled the No Fly, No Buy Act of 2009, that would have allowed the Attorney General to deny firearms to persons who are on the TSA's No Fly terrorist watch list (H.R. 2401). And, Senator Lautenberg introduced a bill that would have allowed the Attorney General to maintain NICS records on approved transfers that were also related terrorist watch list hits (S. 2820). In addition, GAO provided Congress with updated data on NICS-related terrorist watch list hits, lending renewed impetus to the reintroduction of the DOJ draft proposal. And, the November 2009 Fort Hood shootings renewed interest in terrorist watch list records and firearms-related background checks.
GAO Follow-Up Report on NICS-Related Terrorist Watch List Hits (May 2009)
Nearly four years after the first GAO report, GAO issued a follow-up report on NICS-related terrorist watch list hits in May 2009. GAO reported that from February 2004 through February 2009 there were
* 963 NICS background checks that resulted in terrorist watch list matches and, of those checks, about 90% (865) were allowed to proceed and a firearms or explosives transfer may have occurred;
* however, only one explosives background check resulted in a proceed with transaction; and
* of the 10% that resulted in denials (98), the denials were based on felony convictions, illegal immigration status, fugitive from justice status, and the unlawful use of, or addiction to, a controlled substance. All of these denials involved firearms, as opposed to explosives. (363)
In this report, GAO also recommended that if Congress should move forward with legislation providing the Attorney General with the discretionary authority to deny a firearms transfer or permit, or an explosives license/permit, based on a terrorist watch list hit, then, consideration should be given to including a provision in that legislation that would require the Attorney General to promulgate guidelines that would delineate under what circumstances such authority could be evoked. Following this report, Representative King and Senator Lautenberg reintroduced the DOJ draft proposal as nearly identical bills (H.R. 2159 and S. 1317), which supporters dubbed the "Terror Gap" proposal.
Senate Homeland Security and Governmental Affairs Committee Hearing
On May 5, 2010, the Senate Committee on Homeland Security and Governmental Affairs held a hearing on "Terrorists and Guns: The Nature of the Threat and Proposed Reforms." GAO testified about measures taken by the FBI to improve firearms and explosives background checks for counterterrorism purposes. (364) GAO reported that from February 2004 through February 2010, there were 1,228 positive encounters with individuals watch-listed as terrorists through NICS related firearms or explosives transactions. (365) These encounters involved 650 individuals because 450 of these individuals were involved in multiple transactions. (366) Six of these individuals were involved in 10 or more transactions. (367) In 1,119 encounters, the transactions were allowed to proceed. (368) In 109 encounters, the transactions were denied. (369) From March 2009 to February 2009, moreover, there were 272 positive encounters and all of the transactions were allowed to proceed, including one that involved explosives. (370)
Senator Joseph Lieberman, chair of the committee, noted that firearms had been used in at least two deadly terrorist plots perpetrated by Muslim extremists. Those incidents included the Fort Hood shootings noted above and the June 2009 Little Rock, AR, recruiting center shootings, where two U.S. servicemen were shot--one was killed and the other wounded. In several other thwarted plots, conspirators were arrested for planning to use firearms to attack servicemen at Fort Dix, NJ, in 2006 and the Quantico, VA, Marine base in 2009. (371) Senator Lindsey Graham, however, voiced opposition to the Terror Gap proposal. He maintained that denying a firearms transfer based upon a felony conviction in a lawful court was fundamentally different from doing so based on a terrorist watch list record that was created by an investigator or intelligence analyst. (372)
Firearms-Related Terrorist Watch List Legislation in the 112th Congress
In the 112th Congress, Senator Lautenberg and Representative King have reintroduced the Terror Gap proposal (S. 34 and H.R. 1506). As in the preceding two Congresses, these nearly identical bills are based upon the April 2007 DOJ proposed legislative language.
Gun Trafficking-Related Proposals in the 112th Congress
In the 112th Congress, four proposals that address gun trafficking have been introduced (H.R. 2554, S. 1973, H.R. 4190, and H.R. 6195). While no further action has been taken on any of these proposals, as described above, several Members have voiced their support for such a proposal and the Attorney General has indicated that the Administration would work with Congress to develop such a proposal.
Stop Gun Trafficking and Strengthen Law Enforcement Act of 2011 (H.R. 2554) (373)
On July 15, 2011, Representative Carolyn Maloney introduced the Stop Gun Trafficking and Strengthen Law Enforcement Act of 2011 (H.R. 2554). This proposal would amend the GCA to establish a new federal "trafficking in firearms" offense under two provisions.
Under the first proposed provision, it would be unlawful for any person to receive, transfer, or otherwise dispose of two or more firearms that have been shipped or transported in interstate or foreign commerce (regardless of whether anything of value is exchanged), while knowing, or having reasonable cause to believe, that one or more of those firearms would be transferred subsequently to another person whose receipt of a firearm would be unlawful, or who intends to or will use, carry or possess, or dispose of the firearm unlawfully. (374)
Under the second proposed provision, it would be unlawful for any person knowingly to direct, promote, or facilitate such conduct. (375) Violations of either provision would be punishable by a fine and/or not more than 20 years' imprisonment. (376) Moreover, it would provide that any person who acts in the capacity of an organizer, supervisory position, or any other management position, in concert with five or more other persons would be subject to not more than 25 years' imprisonment. (377)
In addition, under H.R. 2554 it would also be unlawful to conspire to violate the first provision, (378) and the proposal would make such a conspiracy punishable by a fine and/or not more than 10 years' imprisonment. (379)
Gun Trafficking Prevention Act of 2011 (S. 1973)
On December 18, 2011, Senator Kirsten Gillibrand introduced the Gun Trafficking Prevention Act of 2011 (S. 1973). (380) This proposal would amend the (Gun Control Act of 1968 (GCA) and establish a new federal "trafficking in firearms" offense. (381) Under this provision, it would be unlawful for any person knowingly to
* ship, transport, transfer, or otherwise dispose of two or more firearms to another person if he (the transferor/seller) knows or has reasonable cause to believe that such actions would be, or would result in, a violation of any federal, state, or local law that is punishable by a term of imprisonment exceeding one year (excluding misdemeanors punishable by two years or less of imprisonment);
* receive two or more firearms from another person if he (the transferee/buyer) knows or has reasonable cause to believe that such receipt would be, or would result in, a violation of federal, state, or local law that is punishable by a term of imprisonment exceeding one year (excluding misdemeanors punishable by two years or less of imprisonment);
* make materially false statements to an FFL, and purchase, receive, or otherwise acquire two or more firearms for, or on behalf of, any other person (a straw purchase); (382) and
* direct, promote, or facilitate the unlawful conduct described above.
Violations of any of the four subparagraphs described above would be punishable by a fine and/or not more than 20 years' imprisonment for a violation. (383) This provision would also establish an affirmative defense to any prosecution under the subparagraphs described above if the firearm(s) in question were transferred following a background check pursuant to 18 U.S.C. [section]922(t) that showed that the "actual buyer" was not a prohibited person under either federal or state law. (384) S. 1973 would also make it unlawful to conspire to commit such violations, and would make such a conspiracy punishable at the same level as the actual criminal act(s), a fine and/or not more than 20 years' imprisonment. Regarding such conspiracies, the proposal would direct the U.S. Sentencing Commission to recommend increased penalties for graduated offense levels for violations that involve
* more than 4, but fewer than 15 firearms;
* more than 14, but fewer than 25 firearms;
* more than 24, but fewer than 100 firearms; or
* more than 100 firearms.
It is noteworthy that the federal Sentencing Guidelines since 1987 have included a graduated table of sentencing enhancements based on the number of firearms involved. (385) It was last amended in 2001 so that an offense level, used to determine the sentencing range, could be enhanced if the unlawful activity involved 3-7 firearms, 8-24 firearms, 25-99 firearms, 100-199 firearms, or 200 or more firearms. (386) As the Sentencing Guidelines attempt to provide the most appropriate sentencing range based on the severity of the crime and the extent of the offender's criminal record, this bill would possibly impose a more severe sentencing range on a first-time or low-level offender because it would take a lesser number of firearms to trigger a sentence enhancement. (387)
In addition, S. 1973 includes several provisions designed to "crack down" on corrupt gun dealers, who knowingly violate certain provisions of the GCA, National Firearms Act (NFA), and Arms Export Control Act (AECA). With regard to firearms trace data, the proposal would require the Attorney General to annually identify certain FFLs who posed a "heightened risk of firearms being diverted to criminal use." Such determinations would be made based on a "specific criteria" that would include the following elements:
* short "time-to-crime" (388) for firearms traced to the dealer,
* incomplete crime trace results for firearms sold by a dealer,
* significant or frequent reports by a dealer of firearms losses or thefts, and
* other violations of federal firearms laws by a dealer.
Furthermore, it would increase penalties for certain recordkeeping violations from "not more than" one year to "up to" three years' imprisonment. Finally, it would require GAO to conduct a study on firearms that are either lost or stolen in transit between FFLs.
Straw Purchaser Penalty Enhancement Act (H.R. 4190)
On March 8, 2012, Representative Adam Schiff introduced the Straw Purchase Penalty Enhancement Act (H.R. 4190). This bill would amend the GCA to create a mandatory minimum sentence of two years' imprisonment for any person who makes a false statement in violation of either 18 U.S.C. [section][section]922(a)(6) or 924(a)(1)(A) in the firearms transfer records (ATF Form 4473) that FFLs are required to maintain under current law, if the transferee
* knows or has reason to believe that the false statement will further the transfer of two or more firearms to a prohibited person; and
* has the intent to conceal the identity of the prohibited person to whom the firearm is to be transferred. (389)
Detectives Nemorin and Andrews Anti-Gun Trafficking Act of 2012 (H.R. 6195)
On July 25, 2012, Representative Peter King introduced H.R. 6195, the Detectives Nemorin and Andrews Anti-Gun Trafficking Act of 2012. (390) This proposal would have amended the GCA by creating a new subsection at 18 U.S.C [section]924--Penalties. This amendment would have created a new separate "gun trafficking" crime punishable by a fine and/or imprisonment of not more than 20 years for committing a certain offense under the GCA under one of two sets of conditions.
The first set of conditions would have been the offering for sale, transfer, or barter of two or more handguns, semiautomatic assault weapons, (391) short-barreled shotguns, short-barreled rifles, or machine guns, of which at least one was transported, received or possessed by that person and stolen or had the importer's or manufacturer's serial number removed. The second set of conditions would have been the offering for sale, transfer, or barter of two or more handguns, semiautomatic assault weapons, short-barreled shotguns, short-barreled rifles, or machine guns, of which at least one was offered by sale, transfer, or barter to another who is either prohibited by federal or state law from possessing a firearm, not 18 years of age, is in a school zone, or is not a resident of the state in which he has attempted to acquire the firearms.
If someone committed one of the offenses already punishable by the GCA, (392) each of which carries its own penalty, under either of these conditions, such a person could be prosecuted under this separate gun trafficking crime and face a fine and/or imprisonment of not more than 20 years. This bill was silent as to whether the sentences for the proposed "gun trafficking" crime and the individual predicate GCA offenses, if a person was prosecuted under both provisions, would have been served consecutively or concurrently. It appears that such a matter would have likely been influenced by the U.S. Sentencing Commission guidelines.
This bill also included numerous other provisions oriented toward gun trafficking. Among other things, the bill would have (1) increased funding for Project Safe Neighborhoods; (2) required the AG to give a biennial report to Congress on firearms tracing and prosecutions; (3) required the FBI to give ATF access to its stolen gun files maintained in its National Crime Information Center; (4) required the AG to establish a "national instant stolen gun check system"; and (5) made it unlawful to transport, possess, or receive a firearm that had the importer's or manufacturer's serial number removed, obliterated, or altered, regardless of one's awareness of this fact.
ATF Modernization Act
On at least two occasions during the 111th Congress, the Senate Judiciary Committee postponed hearings on the Bureau of Alcohol, Tobacco, Firearms and Explosives Reform and Firearms Modernization Act (S. 941). Senator Mike Crapo and Senator Patrick Leahy, chair of the Judiciary Committee, introduced this bill on April 30, 2009. Representatives Steve King and Zack Space introduced a companion bill (H.R. 2296). In regard to regulating federally licensed firearms dealers, this proposal would have
* established a two tier, graduated penalty system for violations characterized as being of a minor or serious nature;
* established a process by which ATF licensing decisions could be reviewed by an administrative law judge;
* required the Attorney General to issue guidelines governing ATF investigations of GCA violations; and
* defined the "willful" standard of intent to mean "knowingly and intentionally" disregarding a "legal duty."
Proponents for this proposal argue that these provisions would allow federal firearms licensees greater opportunity to address non-substantive recordkeeping issues that under current law could lead to the revocation of their licenses. Opponents argue that relaxing such provisions would weaken ATF authority and efforts to reduce the number of "kitchen table top" dealers, who are not substantively engaged in the business and, hence, are ineligible for such licenses, and "rogue" dealers, who are not adequately controlling and accounting for their firearms inventories. (393) Additional provisions in the bill would have addressed several other firearms-related issues concerning machine guns, firearms parts, and handgun possession of a minor in the presence of a parent or legal guardian. In the 112th Congress, Representative Steve King and Senator Mike Crapo have reintroduced this proposal (H.R. 1093/S. 835).
Gun Shows and Private Firearms Transfers
Federal law does not regulate gun shows specifically. Federal law regulating firearms transfers, however, is applicable to such transfers at gun shows. Federal firearms licensees--those licensed by the federal government to manufacture, import, or deal in firearms--are required to conduct background checks on non-licensed persons seeking to obtain firearms from them, by purchase or exchange. Conversely, non-licensed persons--those persons who transfer firearms but who do not meet the statutory test of being engaged in the business--are not required to conduct such checks. To some, this may appear to be an incongruity in the law. Why, they ask, should licensees be required to conduct background checks at gun shows but not non-licensees? To those opposed to further federal regulation of firearms, it may appear to be a continuance of the status quo (i.e., non-interference by the federal government into private firearms transfers within state lines). On the other hand, those seeking to increase federal regulation of firearms may view the absence of background checks for firearms transfers between non-licensed/private persons as a loophole in the law that needs to be closed. A possible issue for Congress is whether federal regulation of firearms should be expanded to include private firearms transfers at gun shows and other similar venues.
Among gun show-related proposals, there are two basic models. The first model is based on a bill (S. 443) that was introduced in the 106th Congress by Senator Lautenberg, who successfully offered this proposal as an amendment to the Senate-passed Violent and Repeat Juvenile Offender Act (S. 254). Several Members introduced variations of the Lautenberg bill in the 107th Congress. In the 108th Congress, Representative Conyers--ranking minority Member of the Judiciary Committee--introduced H.R. 260, which was very similar to the Lautenberg bill. In addition, former Senator Daschle introduced the Justice Enhancement and Domestic Security Act of 2003 (S. 22), which included gun show language that was similar to the Lautenberg bill. The second model is based on a bill (S. 890) introduced in the 107th Congress by Senators McCain and Lieberman. (394) In the 108th Congress, Senator McCain reintroduced this proposal as well (S. 1807). And, Representative Michael Castle introduced a similar gun show proposal (H.R. 3832).
Also in the 108th Congress, on March 2, 2004, during consideration of the Protection of Lawful Commerce in Arms Act (S. 1805), the Senate passed a gun show-related amendment (S.Amdt. 2636) offered by Senator McCain by a yea-nay vote of 53-46 (Record Vote Number: 25). However, the bill's floor manager, Senator Larry Craig, pulled this bill from further floor consideration before a final vote could be taken on the measure rather than risk passage of a bill that included gun control and assault weapons ban provisions (the latter provision is described below).
In the 109th Congress, Representative Castle reintroduced his proposal (H.R. 3540), but a similar measure was not introduced in the Senate. In the 110th Congress, Representative Castle and Senator Lautenberg reintroduced separate gun show proposals (H.R. 96 and S. 2577). Senator Biden included similar provisions in the Crime Control and Prevention Act of 2007 (S. 2237). In the 111th Congress, Senator Lautenberg and Representative Castle again reintroduced similar measures that would have required background checks for private firearms transfers at guns shows (S. 843 and H.R. 2324). In the 112th Congress, Senator Lautenberg has reintroduced this measure (S. 35) and Representative McCarthy has introduced a companion measure (H.R. 591).
Expired Semiautomatic Assault Weapons Ban
In 1994, Congress banned for 10 years the possession, transfer, or further domestic manufacture of semiautomatic assault weapons (SAWs) and large-capacity ammunition feeding devices (LCAFDs) that hold more than 10 rounds that were not legally owned or available prior to the date of enactment (September 13, 1994). The SAW-LCAFD ban expired on September 13, 2004. The SAW ban statute classified 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 telescoping stock, (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. (395) There were similar definitions for pistols and shotguns that were classified as semiautomatic assault weapons. (396) Semiautomatic assault weapons that were legally owned prior to the ban were not restricted and remained available for transfer under applicable federal and state laws. Opponents of the ban argue that the statutorily defined characteristics of a semiautomatic assault weapon were largely cosmetic, and that these weapons were potentially no more lethal than other semiautomatic firearms that were designed to accept a detachable magazine and were equal or superior in terms of ballistics and other performance characteristics. Proponents of the ban argue that semiautomatic military-style firearms, particularly those capable of accepting large-capacity ammunition feeding devices, had and have no place in the civilian gun stock.
During and following World War II, assault rifles were developed to provide a lighter infantry weapon that could fire more rounds, more rapidly (increased capacity and rate of fire). To increase capacity of fire, detachable self-feeding magazines were developed. These rifles were usually designed to be fired in fully automatic mode, meaning that once the trigger is pulled, the weapon continues to fire rapidly until all the rounds in the magazine are expended or the trigger is released. Often these rifles were also designed with a "select fire" feature that allowed them to be fired in short bursts (e.g., three rounds per pull of the trigger), or in semiautomatic mode (i.e., one round per pull of the trigger), as well as in fully automatic mode. By comparison, semiautomatic firearms, including semiautomatic assault weapons, fire one round per pull of the trigger.
According to a 1997 survey of 203,300 state and federal prisoners who had been armed during the commission of the crimes for which they were incarcerated, fewer than 1 in 50, or less than 2%, used, carried, or possessed a semiautomatic assault weapon or machine gun. (397) Under current law, any firearm that can be fired in fully automatic mode or in multi-round bursts is classified as a "machine gun" and must be registered with the federal government under the National Firearms Act of 1934. Furthermore, it is illegal to assemble a machine gun with legally or illegally obtained parts. The population of legally owned machine guns has been frozen since 1986, and they were not covered by the semiautomatic assault weapons ban.
In the 108th Congress, proposals were introduced to extend or make permanent the ban, whereas other proposals were made to modify the definition of "semiautomatic assault weapon" to cover a greater number of firearms by reducing the number of features that would constitute such firearms, and expand the list of certain makes and models of firearms that are statutorily enumerated as banned. A proposal (S. 1034) introduced by Senator Dianne Feinstein would have made the ban permanent as would have a proposal (H.R. 2038/S. 1431) introduced by Representative McCarthy and Senator Lautenberg. The latter measure, however, would have modified the definition and expanded the list of banned weapons. Senator Feinstein also introduced measures that would have extended the ban for 10 years (S. 2109/S. 2498). In addition, on March 2, 2004, the Senate passed an amendment to the gun industry liability bill (S. 1805) that would have extended the ban for 10 years, but the Senate did not pass this bill. (398)
In the 109th Congress, Senator Dianne Feinstein introduced a bill that would have reinstated previous law for 10 years (S. 620). Representative McCarthy and Senator Lautenberg reintroduced their bills to make the ban permanent (H.R. 1312/S. 645).
In the 110th Congress, Representative McCarthy reintroduced a similar proposal (H.R. 1022) and another measure (H.R. 1859) that would prohibit the transfer of a semiautomatic assault weapon with a large-capacity ammunition feeding device, among other things. Representative Mark Steven Kirk introduced the Assault Weapons Ban Reauthorization Act of 2008 (H.R. 6257). Senator Biden included provisions to reauthorize the ban in the Crime Control and Prevention Act of 2007 (S. 2237).
In the wake of the Tucson shootings, Representative McCarthy introduced a measure that would reinstate the large capacity ammunition feeding device ban (H.R. 308). Senator Lautenberg introduced a similar measure (S. 32).
Long-range .50 Caliber Rifles
In the 109th Congress, legislation was introduced to regulate more strictly certain .50 caliber rifles. Some of these rifles are chambered to fire a relatively large round originally designed for the Browning Machine Gun (BMG) and have been adopted by the U.S. military as long-range "sniper" rifles. Gun control advocates argue that these firearms have little sporting, hunting, or recreational purpose. They maintain that these rifles could be used to shoot down aircraft, rupture pressurized chemical tanks, or penetrate armored personnel carriers. Gun control opponents counter that these rifles are expensive, cumbersome, and rarely, if ever, used to commit crimes. Furthermore, they maintain that these rifles were first developed for long-range marksmanship competitions and then adopted by the military as sniper rifles.
The Fifty Caliber Sniper Weapons Regulation Act of 2005 (S. 935), introduced by Senator Dianne Feinstein, would have amended the National Firearms Act (NFA) (400) to regulate ".50 caliber sniper weapons" in the same fashion as short-barreled shotguns and silencers by levying taxes on the manufacture and transfer of such firearms and by requiring owner and firearms registration. In the 110th Congress, Senator Feinstein introduced a similar measure (S. 1331).
The other proposal introduced by Representative James Moran, the 50 Caliber Sniper Rifle Reduction Act (H.R. 654), also would have amended the NFA to include those weapons, but it would have also amended the Gun Control Act (401) to effectively freeze the population of those weapons legally available to private persons and to prohibit any further transfer of those firearms. In other words, H.R. 654 would have grandfathered-in existing rifles but would have banned their further transfer. Consequently, the proposal would have eventually eliminated those rifles all together from the civilian gun stock. It would have been likely that covered .50 caliber rifles would have had to be destroyed or handed over to the ATF as contraband when the legal firearm owner died or wanted to give up the firearm. H.R. 654 included no compensation provision for rifles destroyed or handed over to the federal government.
Furthermore, both proposals (S. 935 and H.R. 654) would have defined ".50 caliber sniper weapon" to mean "a rifle capable of firing center-fire cartridge in .50 caliber, .50 BMG caliber, any other variant of .50 caliber or any metric equivalent of such calibers." Many rifles, and even some handguns, are chambered to fire .50 caliber ammunition, meaning the projectile is about one-half inch in diameter. Opponents of this legislation note that this definition was very broad and would have likely covered .50 caliber rifles that would not be considered "long-range" or "sniper" rifles. The .50 BMG caliber round, on the other hand, is an exceptionally large cartridge (projectile and casing), which was once used almost exclusively as a heavy machine gun round. Representative Moran also offered an amendment to the FY2006 Department of Commerce appropriations bill (H.R. 2862) that would have prohibited the use of funding provided under that bill to process licenses to export .50 caliber rifles, but that amendment was not adopted by the House.
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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|
|Previous Article:||Issues in the 112th Congress.|
|Next Article:||Appendix A. Legislation in the 111th Congress.|