A. Firearm Regulations at the State Level
There are probably few areas where legal permissions and prohibitions are less consistent from state to state, or even city to city within a particular state, than firearms laws. In some jurisdictions, such as California, handguns must be listed on an approved roster[1] and cannot have a magazine capacity in excess of ten rounds[2] while most states have no such roster or no magazine limitations. A minority of states, such as Illinois, require a Firearm Owner Identification (FOID) card before residents can even possess or purchase firearms or ammunition of any type.[3] Even at the state level an attorney must consider how the state law interacts with federal law, such as whether the bearing of arms in national parks is permitted[4] or whether a concealed carry licensee may carry a firearm on school property.[5] It is beyond the scope of this article to discuss the firearm regulations in all fifty states.
As a very general summary of Mississippi’s firearm regulations here are the answers to questions most frequently asked:
- Mississippi has no firearm registration requirements except for firearm suppressors (also known as silencers).[6]
- Mississippi does not require a license to own or purchase a firearm.
- Mississippi does not require background checks by private sellers or firearms dealers; however, federally licensed firearm dealers must use the National Instant Criminal Background Check System (NICS).[7]
- Mississippi law prohibits the transfer of deadly weapons to known criminals and persons under the age of eighteen[8] while federal law prohibits transfer to some out-of-state residents.[9]
- Mississippi has no waiting period for the purchase of a firearm, nor does Mississippi limit the number of firearms which may be purchased within a particular timeframe.
- No license is required to carry a firearm, concealed or unconcealed, in a person’s home, place of business, or vehicle.[10]
- No license is required to openly carry a firearm.
- No license is required to carry “a loaded or unloaded pistol or revolver carried in a purse, handbag, satchel, other similar bag or briefcase or fully enclosed case.”[11]
- Mississippi has no limitations on (ammunition) magazine capacity or the physical features of a weapon. Mississippi does not have a roster of approved weapons.
- Mississippi is a “shall issue” state, meaning that a qualified applicant for a concealed carry license shall be approved. Unlike some other states, an applicant need not show any particular justification, reason, or specific threat to justify her request.[12]
B. Federal Laws
1. National Firearms Act of 1934
Passed as a tax bill because of the Congress’ concern whether the Commerce Clause would give it jurisdiction over firearm activity, the National Firearms Act (NFA) was the first major federal gun legislation. As the BATFE website admits, “the NFA had an underlying purpose unrelated to revenue collection. As the legislative history of the law discloses, its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms.” [13] So-called “NFA firearms” include rifles and shotguns with barrels and overall lengths under certain parameters, machineguns, and firearm suppressors (silencers).
The one-time tax in the amount of $200.00 was substantial at the time the NFA was passed but since it has not been adjusted in many decades the $200.00 “tax stamp” no longer has the discouraging effect it did in 1934. In fact, sales of suppressors and other NFA items are at an all-time high, so much so they are garnering even the POTUS’s attention.[14]
In addition to paying a special tax, the NFA also required the owner to register the firearm with the Secretary of the Treasury.
At the time it was the practice of the Secretary of the Treasury to provide a list of NFA possessors to state authorities for prosecution under state law. In the United States Supreme Court case of Haynes v. United States, 390 U.S. 85 (1968) the SCOTUS found the NFA violated the Fifth Amendment’s protection against self-incrimination. According to the BATFE, “The Haynes decision made the 1934 Act virtually unenforceable.”[15] For this reason the NFA was largely supplanted by the National Firearms Act of 1968 (also known as the Gun Control Act of 1968) to remove the registration requirement for possessors of NFA items (but not registration of the NFA item itself) and to prohibit use of any NFA application or registration as evidence in a criminal proceeding.[16] The SCOTUS found in the case of United States v. Freed, 401 U.S. 601 (1971) that these changes rectified the deficiencies of the NFA.
2. Gun Control Act of 1968
As noted above, the Gun Control Act of 1968 (GCA) was passed to rectify the problems of the NFA. The GCA may be found at 18 U.S.C. § 921. The GCA is designed to regulate interstate commerce of firearms to transactions mostly among federally licensed dealers (FFLs) but has recently been held to violate the Constitution because “the federal interstate handgun transfer ban burdens conduct that falls within the scope of the Second Amendment” and less restrictive alternatives to the outright prohibition are available (including the requirements for rifles and shotguns which the court found “narrowly tailored”).[17]
Although the GCA carries a different name, its roots to the NFA are demonstrable in that most firearms affected by the GCA are called “Title I” items, a nod to the fact that most “NFA items” fall under Title II.[18]
The basic provisions of the GCA are:
- Requirement that almost any interstate transfer of a firearm go through a FFL.
- Prohibition on private individuals acquiring handguns from outside their state of residence but allowing transfers of rifles and shotguns through a FFL (see above Mance case holding this provision unconstitutional).
- Almost total prohibition on private sales between residents of different states.
- It is illegal to sell or convey any firearm or ammunition to anyone convicted of or under indictment for a crime punishable by imprisonment for a term exceeding one year, a fugitive, a drug user, a mental defective, an illegal alien, or other identified persons.
- Of interest given recent national trends, holders of a state-issued marijuana card are also prohibited persons.[19]
- General prohibition on firearm possession by persons under 18 years of age.[20]
- Added a “sporting purposes” restriction on the importation of firearms.[21]
3. Firearms Owners Protection Act of 1986
The Firearms Owners Protection Act (FOPA) revised several provisions of the GCA with the primary intent of reigning in what were regarded as abuses of FFL holders by the BATFE. The FOPA provides that the BATFE cannot randomly audit FFLs more than once per year unless there are noted violations or guns traced back to the dealer.
However, during debate the FOPA legislation was amended to ban civilian ownership or transfer of fully automatic weapons (machine guns) not registered as of May 19, 1986. The constitutionality of this provision of the FOPA is currently being litigated in several cases across the country on the basic argument that weapons manufactured after May 19, 1986 pose no unique danger compared to those manufactured beforehand, thus passing the test of United States v. Miller,[22] and are protected under Heller,[23] and thus the prohibition does not pass the applicable level of scrutiny.
The FOPA, at 18 U.S.C. § 926(A), also provides that a non-prohibited person may move a firearm in interstate transportation for any legal purpose from any legal origin to any legal destination, despite the laws of any jurisdiction in between, so long as the firearm is stored unloaded with the firearm and ammunition kept separate and not readily accessible from the passenger compartment.
The FOPA also prohibits the United States government from keeping a registry of non-NFA items traceable to their owners.[24]
Finally, the FOPA clarified the definition of “Prohibited Persons” contained in the GCA to reflect the categories now listed on Federal Form 4473.
4. Brady Handgun Violence Protection Act of 1993
Named after James Brady, press secretary to President Ronald Reagan who was seriously and permanently injured by John Hinckley, Jr., the “Brady Bill” requires that a background check be performed by a FFL prior to a conveyance to an individual, subject to certain exceptions.[25] The Brady Bill is what led to the development of the National Instant Criminal Background Check System (NICS) which has been run by the FBI’s Criminal Justice Information Services Division since November 20, 1998.[26] From November 30, 1998, to December 31, 2013, a total of 181,567,975 transactions were processed with 1,075,781 transactions denied (0.59%). Enforcement of the law is exceedingly rare.[27] Constitutional concerns about this system loom because the FBI is so overloaded with appeals of denials that it has basically stopping processing appeals.[28]
Provisions of the Brady Bill requiring local law enforcement officers to conduct background checks were found to be a violation of the 10th Amendment to the Constitution in the case of Printz v. United States, 521 U.S. 898 (1997).
5. Violent Crime Control & Law Enforcement Act of 1994
This law ushered in what its proponents called the “federal assault weapons ban” (also known as the “Public Safety and Recreational Firearms Use Protection Act”) which was in effect from September 13, 1994, to September 2004. The AWB applied only to semi-automatic weapons and did not apply to machine guns or NFA items. The AWB contained a ten year sunset clause which was not renewed. Thus, the AWB is no longer good law.
During the time of its application the AWB put limitations on the number of rounds in a magazine (ten), and limited certain cosmetic features of weapons. For instance, a semi-automatic weapon which accepted removable magazines could not have two or more of the following features: folding or telescoping stock; pistol grip; bayonet mount; flash suppressor, or threaded barrel designed to accommodate one; or grenade launcher mount. The AWB also banned a number of firearms outright.
During the ten years of the AWB companies manufacturing magazines and firearms prohibited for civilians for law enforcement use would frequently stamp “Law Enforcement Only” on the magazine for firearm. These items are no longer restricted and may be sold and possessed like any other magazine or firearm.
6. Law Enforcement Officers Safety Act of 2004
The Law Enforcement Officers Safety Act (LEOSA) permits qualified law enforcement officers to carry a concealed weapon throughout the United States, regardless of any local jurisdiction’s law, so long as the officer meets the requirements of the LEOSA found in 18 U.S.C. § 926(A)-(B). The LEOSA also applies to qualified retired law enforcement officers but subjects those retired officers to the same restrictions as private persons.
Critics of this law argue that it creates a special class of concealed carry licensees who are “more equal” and that the dangers faced by these officers are not unique. Lobbying efforts continue, with the LEOSA as a model for the legislation, to enact a national right-to-carry reciprocity at the federal level.
7. Stafford Disaster Relief and Emergency Assistance Act of 1974
Amended several times, including after the illegal firearm seizures following Hurricane Katrina, the Stafford Disaster Relief and Emergency Assistance Act found at 42 U.S.C. § 5207 now prohibits United States agents, military members, anyone else operating under the color of federal law, and any state or local agency which receives federal funds, from confiscating lawfully possessed firearms during emergencies. Mississippi has its own similar provision.[29]
8. Protection of Lawful Commerce in Arms Act of 2005
The Protection of Lawful Commerce in Arms Act can be found at 15 U.S.C. § 7901 et seq. The PLCAA found that “Businesses . . . engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition . . .are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.”[30] Congress declared that “The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation’s laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.”[31]
To carry out its goals, Congress declared that subject to six specified exemptions no person or entity licensed as a firearm manufacturer, seller, or trade association could be liable in state or federal courts for the criminal misuse of its products. As one example, see the case of Phillips v. Lucky Gunner, LLC[32] where the parents of one of the victims of the Aurora movie theater shooting sued a number of online retailers for “failing to screen the gunman and making it too easy for him to buy ammunition, tear gas and body armor.” Finding “Plaintiffs have not pleaded facts that support their allegation that the federal statute was ‘knowingly’ violated” by the online retailers, the court dismissed the suit[33] and awarded $203,001.86 in costs and attorney fees to the defendants.[34] The U.S. Department of Justice intervened in support of the constitutionality of the PLCAA.
The six exceptions to the PLCAA are:
(i) an action brought against a transferor convicted under section 924 (h) of title 18, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;
(ii) an action brought against a seller for negligent entrustment or negligence per se;
(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including—
(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or
(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18;
(iv) an action for breach of contract or warranty in connection with the purchase of the product;
(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or
(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of title 18 or chapter 53 of title 26.
The PLCAA does not apply to private individuals or entities which are not manufacturers, sellers, or trade associations. However, other federal laws might reach the same result. In the case of Vesely v. Armslist, LLC (7th Cir. Aug. 12, 2014) the plaintiff sued Armslist, an on-line firearm auction site, on the theory that the website’s design facilitates illegal gun sales to unlawful gun buyers with no background checks and no questions asked, and encourages and enables users to evade laws that allow private sellers to sell firearms only to residents of their own state by enticing prospective buyers to search for and find gun sellers throughout all 50 states.[35] The plaintiffs lost the case under Illinois tort law, but Professor Eugene Volokh argues that they would have also lost under 47 U.S.C. § 230 “which generally bars lawsuits against Internet service or content providers based on speech posted by other parties. Section 230 applies to advertisements as much as to other speech.”[36]
9. Gun-Free School Zones Act
Initially passed in 1990, portions of the GFSZA were struck down by the Supreme Court in the case of United States v. Lopez, 514 U.S. 549 (1995) on the basis that the provisions of the law violated the Commerce Clause. Subsequently amended, 18 U.S.C. § 922(q) provides generally that it is illegal to have a firearm within 1,000 feet of a school zone unless the firearm is: on private property not part of the school’s grounds; possessed pursuant to a state-issued permit issued following a background check;[37] unloaded in a locked container within a motor vehicle; being used for a school program; pursuant to a contract between the school and the person or his employer; or unloaded and possessed while traversing the area to access public or private hunting lands. The GFSZA also makes it illegal to fire or attempt to fire a gun in a school zone, with certain exceptions.
10. Gun-Free Schools Act of 1994
The Gun-Free Schools Act (GFSA) imposes a federal requirement on school districts to adopt zero-tolerance policies and minimum one-year expulsions from school for gun possession in exchange for federal funds for district schools. The GFSA was repealed and re-enacted as part of the “No Child Left Behind” Act (NCLBA) contained in 20 U.S.C. § 7151. “The strict zero-tolerance policy associated with the GFSA is softened somewhat under the newer version by allowing states to permit the chief administering officer of a local educational agency to modify an expulsion for a student, in writing, on a case-by-case basis. Furthermore, the GFSA provides that a state may allow a local educational agency that has expelled a student from the student’s regular school setting to provide an alternative educational setting.”[38]
[1] http://certguns.doj.ca.gov/ (“Effective January 1, 2001, no handgun may be manufactured within California, imported into California for sale, lent, given, kept for sale, or offered/exposed for sale unless that handgun model has passed firing, safety, and drop tests and is certified for sale in California by the Department of Justice. Private party transfers, curio/relic handguns, certain single-action revolvers, and pawn/consignment returns are exempt from this requirement.”)
[2] https://oag.ca.gov/firearms/pubfaqs#9
[3] https://www.ispfsb.com/Public/FOID.aspx
[4] As summarized on the National Park Service’s website, “a 2009 federal law made national parks – and national wildlife refuges – generally subject to applicable federal, state, and local firearms laws.” http://www.nps.gov/appa/learn/management/questions-and-answers.htm
[5] The Gun-Free School Zones Act (18 U.S.C. § 922(q)) generally prohibits carrying a firearm in a school zone. However, sub-section (q)(2)(B)(ii) says the prohibition does not apply “if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license.”
The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) in a letter dated July 25, 2013, explained that “A license qualifies as an exception only if the law of the State or political subdivision requires law enforcement authorities to verify that the individual is qualified under law to receive the license.” http://goo.gl/QAjXYn Thus, the exception does not apply to licenses issued by a state other than the state in which the school is situated or to unlicensed carry.
[6] § 97-37-31. Mississippi Code § 97-37-31 was amended effective April 9, 2015, to remove armor piercing ammunition from the list of items which must be registered with the Department of Public Safety.
[7] http://www.fbi.gov/about-us/cjis/nics
[8] § 97-37-13.
[9] 18 U.S.C. § 922(a)(5). Exceptions are made for “(A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes.”
[10] § 97-37-1.
[11] § 45-9-101(24) (eff. July 1, 2015).
[12] § 45-9-101(2) (“The Department of Public Safety shall issue a license if the applicant” meets the statutory requirements.)
[13] https://www.atf.gov/content/firearms/firearms-industry/national-firearms-act
[15] https://www.atf.gov/content/firearms/firearms-industry/national-firearms-act
[16] Id.
[17] Mance v. Holder, Case 4:14-cv-00539-O, U.S. Dist. Ct. N.D. Texas (Memorandum Opinion and Order dated February 11, 2015), available here: https://goo.gl/bz8pRn On appeal the case has been re-styled Mance v. Lynch, and is case number 15-10311 before the Fifth Circuit Court of Appeals. Oral argument was held on January 6, 2016. The audio recording is available here: http://goo.gl/FJUHIE
[18] Title II of the 1968 Gun Control Act is the National Firearms Act codified at 26 U.S.C. sec. 5801 et seq.
[19] See “Open Letter to All Federal Firearms Licensees” from BATFE dated September 21, 2011 available at https://goo.gl/J9VuGg.
[20] 18 U.S.C § 922 (x).
[21] 18 U.S.C § 922 (r).
[22] United States v. Miller, 307 U.S. 174 (1939) focused on the particular weapon’s reasonable relation to the preservation or efficiency of a well regulated militia.
[23] District of Columbia v. Heller, 554 U.S. 570 (2008).
[24] 18 U.S.C. § 926(a)(3).
[25] 18 U.S.C. § 922(t). For instance, individuals holding a concealed carry license need not have a NICS check.
[26] http://www.fbi.gov/about-us/cjis/nics/reports/2013-operations-report
[27] In the first year of the Act, 250 cases were referred for prosecution with 217 of them were rejected. Implementation of the Brady Handgun Violence Prevention Act,” Report to the Committee on the Judiciary, U.S. Senate, and the Committee on the Judiciary, U.S. House of Representatives, GAO/GGD-96-22 Gun Control, January 1996, pp. 8, 45
[28] USA Today article entitled “FBI official: ‘Perfect storm’ imperiling gun background checks” which was first published on January 20, 2016, and can be found here: http://goo.gl/LE2koz
[29] § 45-9-53(d). See also § 33-7-303(2) (martial law may not allow for confiscation of weapons) and § 45-9-53(3) (preemption exceptions do not allow for contravention of § 33-7-303).
[30] 15 U.S.C. § 7901(a)(5).
[31] 15 U.S.C. § 7901(a)(6).
[32] Case 1:14-cv-02822-RPM, United Stated District Court for the District of Colorado.
[33] The “Memorandum and Order” are available here: https://goo.gl/BU63A4
[34] A copy of the “Judgment” can be found here: https://goo.gl/8WgGr8
[35] http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/13/brady-campaign-loses-lawsuit-against-armslist/
[36] http://volokh.com/2012/12/13/brady-campaign-lawsuit-against-armslist-com-preempted-by-federal-law/
[37] See footnote 5.
[38] http://smartgunlaws.org/federal-law-on-guns-in-schools/ citing 20 U.S.C. § 7151(b)(1)-(2).
