Firearm Owners Protection Act

Under the Gun Control Act of 1968, the Bureau of Alcohol, Tobacco and Firearms (ATF) was given wide latitude on the enforcement of regulations pertaining to holders of Federal Firearms Licenses (FFL) (which enable an individual or a company to engage in a business pertaining to the manufacture or importation of firearms and ammunition, or the interstate and intrastate sale of firearms). Allegations of abuse by ATF inspectors after passage of the act arose from the National Rifle Association (NRA) and some FFL licensees. In particular, advocates claimed that ATF was repeatedly inspecting FFL holders for the apparent purpose of harassment intended to drive the FFL holders out of business (as the FFL holders would constantly be having to tend to ATF inspections instead of to customers).

A February 1982 report by a Republican-led Senate subcommittee that studied the Second Amendment to the United States Constitution concluded:

The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.[1]^:12

The report also said that 75 percent of ATF prosecutions "were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations." It suggested that reform of federal firearms law such as proposed in S. 1030 "would be largely self-enforcing" and "would enhance vital protection of constitutional and civil liberties of those Americans who choose to exercise their Second Amendment right to keep and bear arms."[1]

The Firearm Owners Protection Act of 1986 (FOPA) addressed the abuses noted in the 1982 Senate Judiciary Subcommittee report. Among the reforms intended to loosen restrictions on gun sales were the reopening of interstate sales of long guns on a limited basis, legalization of ammunition shipments through the U.S. Postal Service, removal of the requirement for record keeping on sales of non-armor-piercing ammunition, and federal protection of transportation of firearms through states where possession of those firearms would otherwise be illegal.[2]

The Act also contained a provision that banned the sale of machine guns manufactured after the date of enactment to civilians, restricting sales of these weapons to the military and law enforcement. Thus, in the ensuing years, the limited supply of these arms available to civilians has caused an enormous increase in their price, with most costing in excess of $10,000. Regarding these fully-automatic firearms owned by private citizens in the U.S., political scientist Earl Kruschke said "approximately 175,000 automatic firearms have been licensed by the Bureau of Alcohol, Tobacco, and Firearms (the federal agency responsible for administration of the law) and evidence suggests that none of these weapons has ever been used to commit a violent crime."[3]^:85

The Act mandated that ATF compliance inspections can be done only once per year. An exception to the "once per year" rule exists if multiple record-keeping violations are recorded in an inspection, in which case the ATF may do a follow-up inspection. The main reason for a follow-up inspection would be if guns could not be accounted for.

The bill was endorsed by the NRA. It was opposed to by police organizations, including the Federal Law Enforcement Officers Association, Police Foundation, International Association of Chiefs of Police, Fraternal Order of Police, National Troopers Coalition, Police Executive Research Forum, National Sheriffs' Association, National Organization of Black Law Enforcement Executives, International Union of Police Associations, National Association of Police Organizations and the New York City Police Commissioner.[4]

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

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

(2) This subsection does not apply with respect to— (A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

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

The ATF, as a representative of the U.S. and with authority from the National Firearms Act, can authorize the transfer of a machine gun to an unlicensed civilian. An unlicensed individual may acquire machine guns, with ATF approval.[5] The transferor must file an ATF application, which must be completed by both parties to the transfer:[5]

• executed under penalties of perjury[6]
• both parties must reside in the same state as the individual
• pay a $200 transfer tax to ATF[7]
• the application must include detailed information on the firearm and the parties to the transfer[6][8]
• the transferee must certify on the application that he or she is not disqualified from possessing firearms on grounds specified in law
• the transferee must submit with the application (1) two photographs taken within the past year; and (2) fingerprints[8]
• the transferee must submit with the application (3) a copy of any state or local permit or license required to buy, possess, or acquire machine guns
• an appropriate (local) law enforcement official must certify whether he or she has any information indicating that the firearm will be used for other than lawful purposes or that possession would violate state or federal law[8]
• the transferee must, as part of the registration process, pass an extensive Federal Bureau of Investigation criminal background investigation.[9]

If ATF denies an application, it must refund the tax.[5] Gun owners must keep approved applications as evidence of registration of the firearms and make them available for inspection by ATF officers.[5]

In the morning hours of April 10, 1986, H.Amdt.777 Amendment passed the House by voice vote, and the House held recorded votes on three amendments to FOPA in Record Vote No's 72, 73, and 74. Recorded Vote 72 was on H.AMDT. 776, an amendment to H.AMDT 770 involving the interstate sale of handguns; while Recorded Vote 74 was on H.AMDT 770, involving primarily the easing of interstate sales and the safe passage provision. Recorded Vote 74 was the Hughes Amendment that called for the banning of machine guns. Rep. Charles Rangel (D-N.Y.), at the time presiding as Chairman over the proceedings, claimed that the "amendment in the nature of a substitute, as amended, was agreed to." However, after the voice vote on the Hughes Amendment, Rangel ignored a plea to take a recorded vote and moved on to Recorded Vote 74.[10][11][12] The bill, H.R. 4332, as a whole passed in Record Vote No: 75 on a motion to recommit. Despite the controversial amendment, the Senate, in S.B. 49, adopted H.R. 4332 as an amendment to the final bill. The bill was subsequently passed and signed on May 19, 1986 by President Ronald Reagan to become Public Law 99-308, the Firearms Owners' Protection Act.

One of the law's provisions (codified in section 926A of title 18 of the U.S. Code) was that persons traveling from one place to another have a defense for any state firearms offense in a state that has strict gun control laws if the traveler is just passing through (short stops for food and gasoline), provided that the individual is not otherwise prohibited from possession of a firearm, the firearms and ammunition are not readily accessible, that the firearms are unloaded and, in the case of a vehicle without a compartment separate from the driver's compartment, the firearms are located in a locked container other than the glove compartment or console.[13][14]

This section has also been interpreted to protect air travel.[15][16]

Definitions of certain terms in the law include:

• Transporting. Not staying for any determined length of time. Passing through on the way to some place.
• Unloaded. No ammunition in the firearm. In the case of McDaniel v. Arnold, the courts upheld a conviction based on the interpretation that the accused had a loaded firearm despite not having a round in the chambered position.[17]
• Not readily accessible. There are no clear court decisions or interpretations available but this term is widely regarded as meaning Not capable of being reached quickly for operation.
• Locked container. A hard-sided container that is locked such as to prevent unauthorized users from gaining access.

The Act also forbade the U.S. Government agency from keeping a registry directly linking non-National Firearms Act firearms to their owners, the specific language of this law (Federal Law 18 U.S.C. 926 <https://www.law.cornell.edu/uscode/text/18/926>) being:

No such rule or regulation prescribed [by the Attorney General] after the date of the enactment of the Firearms Owners Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or disposition be established. Nothing in this section expands or restricts the Secretary's authority to inquire into the disposition of any firearm in the course of a criminal investigation.

Nevertheless, at one point the ATF's National Tracing Center (NTC) contained hundreds of millions of firearm tracing and registration records, and consisted of several databases; but as of May 2016, many of these databases have been deleted to fall inline with record deletion requirements, per the Government Accountability Office (GAO).[18]

1. Multiple Sale Reports. In accordance with the Gun Control Act of 1968, Federal Firearms Licensees (FFLs) are required to report the sale of multiple handguns to the same person within 24 hours or within five consecutive business days,[19] a program overseen by the ATF and reported through ATF Form 3310.4, which requires disclosure of the firearms sold and new owner and address. The program is used by the ATF to detect, investigate and prevent firearms trafficking. Increasing by about 140,000 per year.) Reported as 4.2 million records in 2010.[20]

2. Suspect Guns. All guns suspected of being used for criminal purposes and that "may or may not be in the possession of an LEA (law enforcement agency)."[21] This database includes (ATF's own examples), individuals purchasing large quantities of firearms, and dealers with improper record keeping. May include guns observed by law enforcement in an estate, or at a gun show, or elsewhere. Reported as 34,807 in 2010.[20]

3. Traced Guns. Over 4 million detail records from all traces since inception.[20] This is a registration record which includes the personal information of the first retail purchaser, along with the identity of the selling dealer.

4. Out of Business Records. Data is manually collected from paper out of business records (or input from computer records) and entered into the trace system by ATF. These are registration records which include name and address, make, model, serial and caliber of the firearm(s), as well as data from the 4473 form - in digital or image format. In March, 2010, ATF reported receiving several hundred million records since 1968.[22]

5. Theft Guns. Firearms reported as stolen to ATF. Contained 330,000 records in 2010.[20] Contains only thefts from licensed dealers and interstate carriers (optional).[20] Does not have an interface to the FBI's National Crime Information Center (NCIC) theft data base, where the majority of stolen, lost and missing firearms are reported.

• Gun ownership
• Gun law in the United States
• Gun politics in the United States

• "Right to Keep and Bear Arms: Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, Ninety-seventh Congress, Second Session" (PDF). constitution.org. Constitution Society. Retrieved July 5, 2014. A more accessible facsimile of the 1982 Senate subcommittee report.

• ATF Firearms main page