History of American Gun Control

The first gun control law in what would later become the United States was passed in the Virginia territory in 1640 that explicitly banned blacks from owning firearms, even if they weren't slaves.  In 1751 the French Black Code in Louisiana required any colonists to beat, and kill if necessary, "any black carrying any potential weapon, such as a cane."  Tennessee made it clear that blacks were not to be included under their Constitutional rights: "That the free white men of this State have a right to keep and to bear arms for their common defence."   New Spain in the sixteenth century prohibited all blacks, free or slave, from carrying arms, as well.  Gun control in America was clearly born of overtly racist origins.

After the Civil War, the south had to make adjustments to their laws to appear to be race-neutral, but still effective in preventing blacks from owning firearms.  The former states of the Confederacy, that had previously recognized the right to openly carry arms (for whites) before the war, suddenly found the need to qualify that right, often requiring a permit to own or carry a firearm be granted by a Sheriff or Chief of Police in a "may issue" system that allowed them to simply deny any application they wanted.  In many jurisdictions, only whites were granted permits, and in other jurisdictions it went even further and permits were only granted to those in power and their friends.  Many northern states adopted similar laws as they recognized the political power they would gain by doing so, creating a very corrupt system.  With westward expansion, such laws were used not only against blacks, but also against other forms of 'undesirables' that were more prevalent in the west such as Chinese or Indians from possessing firearms.  Policies regulating firearms and weapons have always been used to disarm the enemies of those in power.

The era of alcohol prohibition in the United States from 1920 to 1933 created a huge opportunity for a black market in alcohol to meet the needs of Americans nationwide whose thirst for alcohol did not diminish with the passage of Prohibition.  This resulted in a huge uptick in criminals and organized criminal activity that was built up to supply the needs of Americans to drink alcohol.  The U.S. Treasury's Bureau of Prohibition was the primary agency tasked with enforcing this law.  In 1933, prohibition was finally repealed resulting in thousands of Treasury agents with nothing to do.

President Franklin Roosevelt believed in dramatically increasing the scope and power of the federal government, and did not let this opportunity go to waste.  He wanted to create a national firearm registry and tax system to both increase the power of the federal government, and create a new role for the U.S. Treasury agents of the Alcohol Tax Unit who would later become the Bureau of Alcohol Tobacco and Firearms (ATF).  Ultimately, the National Firearms Act (NFA) required that a tax of $200 be paid for most machine guns, sawed-off shotguns, suppressors, short-barreled rifles, and "destructive devices."  The original bill included all handguns as well, but there was some push back from the NRA and women who relied on handguns for their protection.  Roosevelt pushed this as an anti-crime revenue generating measure even though it had nothing to do with crime, as prohibition had been over for over a year and crime dropped dramatically as a result.  Attorney General Homer Cummings had advised that to reduce the possibility of the law being struck down as unconstitutional, it would be presented as a tax, not a ban, even though in practice it was a ban due to the exorbitant size of the tax, which was multiple month's income for most people at the time.  The NFA's long title was "An Act to provide for the taxation of manufacturers, importers, and dealers in certain firearms and machine guns, to tax the sale or other disposal of such weapons, and to restrict importation and regulate interstate transportation thereof."  At the time the National Rifle Association (NRA), while in existence, was primarily a shooting sports organization, and not used to having to deal with federal infringements on the right to keep and bear arms and was not prepared with any opposition.  When asked if the Second Amendment imposed any limitations on what Congress could do in regulating guns, the NRA president’s reply was surprising: “I have not given it any study from that point of view.”  

Franklin Roosevelt was successful in passing yet another gun control law titled the Federal Firearms Act of 1938.  It imposed a federal license requirement on gun manufacturers, importers, and persons in the business of selling firearms.  The term federal firearms licensee (FFL) is used to this day to identify those entities, usually a gun dealer.  It required maintaining customer records in a bound book, and made it illegal to transfer to a firearm to certain classes of "prohibited persons" such as felons.  This was the first step toward registration of all firearms, since the NFA had already accomplished total registration for specific classes of firearms.

In 1938, two men, Jack Miller and Frank Layton, were stopped by the Arkansas State Police after traveling from Oklahoma to Arkansas.  While no other violations were found, they were found to have a sawed-off shotgun in their truck, and they admitted that they had just driven from Oklahoma, establishing interstate commerce.  US Attorney Clinton Barry charged them with violating the NFA, as the federal government had been looking for an opportunity to craft a case that would "legitimize" the NFA in the courts.  Miller and Layton actually pled guilty, but the Judge Heartsill Ragon, previously a Congressman and a vocal advocate for federal gun control laws and Roosevelt's New Deal, did not accept that and appointed Paul Gutensohn as their counsel, who demurred that the indictment was a violation of the Second Amendment - something that he obviously did not personally believe.  The judge accepted the demurr and dismissed the case, knowing that the US Attorney would appeal it to the US Supreme Court, and that Miller and Layton would be long gone by that time.  And that is exactly what happened.  The fix was in, and they had set this up as an ideal 'test case' for the NFA designed to legitimize the constitutionality of a clearly unconstitutional law.  The US Supreme Court accepted the case, the defendants could not be found, and the following day Governor Bailey appointed Gutensohn to finish the term of late State Senator Fred Armstrong, and so he was unavailable to travel to Washington D.C. to mount any defense.  The US attorney (the only attorney present) argued before the Supreme Court in 1939 that the NFA is merely a revenue-collecting measure, and the Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia [i.e. machine guns] and does not protect a "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" as no evidence had been presented that such a firearm was used in any militia organization.  The Supreme Court Justices, also unaware of any use of a sawed-off double-barrel shotgun by the military, ruled that “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”  Had Miller and Layton had a machine gun similar to one used in military service rather than a sawed-off shotgun, the results may have been very different, but that is bizarre and tenuous case, at which the defense attorney and defendants were absent, that the National Firearms Act's legitimacy rests upon to this day in the courts.

Those who have studied the history of gun control in other nations know that the prerequisite to total control is confiscation of all privately held firearms, or at least those firearms held by your political opposition, as Hitler had done.  And the prerequisite to that is firearm registration.  The government needs to know who owns the firearms and where they live so they can target them.  Thus, it is no surprise that when the political winds next aligned in 1968, after the assassinations of Martin Luther King, Jr. and Robert Kennedy, and fears of potential armed uprisings of black populations in cities, Lyndon Johnson sought to achieve national gun registration.  This time, the NRA was firmly opposed, as were many lawmakers primarily from the south who had finally come to realize that the shoe was on the other foot, and that gun control was being used against all American citizens, not just those who they wanted kept in a state of subordination.  Ironically, Californian Republicans like Ronald Reagan and Richard Nixon supported the bill, as did a Texas congressmen named George H.W. Bush.  Fortunately, through the efforts of the NRA, the Gun Control Act of 1968 (GCA) was scaled back.  When enacted, it banned the possession of firearms by felons and drug users, prohibited interstate transfer of firearms outside of Federal Firearms Licensees, prohibited the mail order of firearms, raised the age to purchase handguns to 21, prohibited the import of firearms that were not "generally recognized as particularly suitable for or readily adaptable to sporting purposes" [a criteria that had never been used before], and required all firearms to have serial numbers, but it did not directly achieve Johnson's goal of universal gun registration.  It required that a federal form - form 4473 - be filled out during the purchase of all firearms from an FFL dealer to certify that they were not a prohibited possessor.  A record of the transaction in the dealer's bound book, and those 4473 forms are to be kept by the gun dealer, and used in the future in the event a firearm trace request is made (via a trace request sent to the manufacturer, then to the distributor, then to the dealer) to identify the purchaser of the firearm in question.  ATF agents regularly inspect dealer's records, sometimes making photos, and upon the closure of the dealer, the dealer is required to turn in the bound book and forms to the ATF.  Thus, this is indirect firearm registration and a grave concern of many.

After the passage of the GCA, the NRA had done their research and had come to realize the intent of the founders in writing the the Second Amendment, and that it refers to an individual right to keep and bear arms for self-defense, and protection against criminals and tyrants alike.  The NRA threw their support behind presidential candidate Ronald Reagan, who had given up his previous support for gun control in an effort to form a conservative coalition that was ultimately successful in his election to the office of President.  Reagan remained an ally of the NRA and gun owners throughout his presidency.  In 1982, a Senate subcommittee had studied the Second Amendment and 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."  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" bolstering claims by FFL's that the ATF was harassing them.  The legislation put forth to correct these violations came in the form of the Firearm Owners Protection Act (FOPA) which passed in 1986.  The FOPA made a number of changes to the GCA including re-opening interstate sales of long guns in adjacent states, legalization of ammunition shipments through the US Postal Service, removal of record keeping requirements on non armor piercing ammunition, limiting ATF inspections of FFL's to once per year, and federal protection of transportation of firearms through states where possession of those firearms would otherwise be illegal.  The FOPA also prohibited the federal government from keeping a registry directly linking non NFA firearms with their owners.  However, there was a catch.  Slipped into the FOPA at the last minute via a questionable voice vote was the Hughes Amendment which prohibited the transfer of machine guns that were not previously registered prior to the enactment of the FOPA.  This artificially limited the availability of transferable machine guns in the US to approximately 175,000 machine guns that were registered at that time, despite none of those firearms ever having been used to commit a violent crime.  That is why machine guns are so expensive to purchase today.

With the election of the anti-gun president Bill Clinton, Democrats had a renewed opportunity to pass more gun control.  The Brady Bill, passed in 1993, was named after President Reagan's press secretary Jim Brady who was shot in the assassination attempt in 1981.  The Brady Bill mandated background checks of gun buyers in order to attempt to verify that buyers were not prohibited persons, beyond their self-certification on Form 4473, that was the case prior to the Brady Bill.  The Brady Bill required a 5 day waiting period during which a background check was to be conducted by the FBI, until a National Instant Check System (NICS) could be implemented by the FBI, which was required by the bill to be in place by 1998, at the insistence of the NRA which fought against the legislation.  There were, and are, exceptions to the background check / NICS check in some states where purchasers possess a state-issued handgun carry or purchase permit, that would have required a similar background check to already have been conducted.  92% of checks are completed during a phone call by the gun dealer to the FBI.  In the remaining 8%, if the records are not clear, the FBI has up to 3 days to conduct a more in-depth investigation and provide a no answer to the gun dealer, otherwise they can proceed with the sale in 3 days if the FBI does not respond.  There were multiple legal challenges to the constitutionality of the Brady Act and the case of Printz v. United States reached the US Supreme Court which ruled that per the Tenth Amendment, the federal government could not require state or local law enforcement to conduct background checks, as the Brady Act had required prior to the NICS system.  Since the implementation of the NICS system, over 202 million background checks have been conducted, and 0.6% of purchases were denied primarily due to previous convictions.  However, despite the attempted purchase of a firearm by a felon being illegal, prosecutions for that act are extremely rare, despite the NRA, and many gun owners, clamoring for increased prosecution of prohibited possessors attempting to purchase firearms illegally.

The Assault Weapons Ban of 1994, in the eyes of many gun owners, was one of the most offensive gun control bills ever passed.  It defined a number of semi-automatic magazine fed firearms with two or more cosmetic features including a pistol grip, collapsible/folding stock, bayonet mount, flash suppressor, or grenade launcher as assault weapons, and banned their manufacture for civilian use, as well as the manufacture of "large capacity" magazines or magazines holding more than 10 rounds for civilian use.  The bill was passed by Congress on September 13, 1994 following a close Senate vote of 52-48.  Clinton signed the bill the same day.  The ban included a sunset provision expiring the law in 10 years, again at the insistence of the NRA who had fought against the legislation.  All attempts to renew the ban before and after expiration failed.  A 2004 study by the National Institute of Justice stated that since these types of rifles are rarely used in gun crimes, the results of the ban, and possible subsequent renewal were small, perhaps too small for reliable measurement.  The Assault Weapons Ban was absurd in that it did not have anything to do with the functionality or effectiveness of the weapons, but essentially banned "scary looking" guns with "scary sounding" features.  As a result of the passage of the Brady Bill and the Assault Weapons Ban in 1994, Democrats lost control of both the House and the Senate for the first time in fifty years resulting in what became known as the "Republican Revolution."

The Second Amendment reads "A well-regulated militia, being necessary to the security of a free state; the right of the people to keep and bear arms shall not be infringed."  It should be clear by now that all of the above laws are in clear violation of the Second Amendment to the Constitution.  Unfortunately, the courts have been mixed, at best, in properly understanding the Second Amendment, it's clear language, and the intent of the founders which was well-documented.  In the context of English language use in the eighteenth century, "well-regulated" was an adjective often applied to a good clock, as in to make regular, or active, training regularly.  Based on all of the commentaries of the writers, it most certainly did not mean regulated in terms of government regulation, because the intent was to counter the force of a standing army.  Local civilian militias (that were intentionally not part of the national army) were common during the eighteenth century in America, and previously in England, and always required individual citizens to be "masters of their own arms" and were specifically designed to counter a national standing army.  It wasn't until the mid nineteenth century that laws requiring compulsory service in militias gave way to voluntary service in much of the country.  A simple modern translation of the Second Amendment might read "an active armed citizenry, necessary for the protection of the people against criminal and governmental threats; the right of the people to own and carry firearms shall not be restricted."  That is consistent with the writings of the founders who wrote the Second Amendment.  It's primary intent was to ensure that the people had a means not only to protect themselves and their property, but to band together to resist the federal government in the event that it became oppressive- because in the context of the passage of the Bill of Rights, the anti-federalists were concerned that the federal government could form a standing army that could act against the people or the states and impose its will upon them, as the British had recently done with their standing army.  Noah Webster summed up it's purpose in his analysis when he said "The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States."  The armed populace of the United States was always intended to be superior in scope and capability to any professional armed force that could be fielded by any government.

Thanks in large part to originalist and textualist Justice Antonin Scalia, the US Supreme Court made a landmark decision in the 2008 case Heller vs. DC.  Dick Heller, a police officer, challenged a law in Washington D.C. which prohibited his ownership of his semi-automatic handgun in his home.  Ultimately the U.S. Supreme Court ruled that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."  Scalia, in the majority opinion, further stated that "Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way." "Just as the First Amendment protects modern forms of communications... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment." He went on further to explain that the right does not come from government, or even from the Constitution: "The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it“shall not be infringed.”  "As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . .”   This is the best opinion we've had out of the U.S. Supreme Court thus far regarding the Second Amendment.

Since this case was brought in Washington D.C. and not a state, a second case would be required to "incorporate" the Second Amendment via the Due Process Clause of the Fourteenth Amendment with regard to the states, in other words, determine that the Second Amendment not only applies to the federal government, but also applies to state and local governments as well.  That case came two years later in the form of McDonald vs. Chicago.  The City of Chicago had an ordinance which banned the possession of handguns as well as other regulations affecting rifles and shotguns.  The case reached the U.S. Supreme Court which held that the Second Amendment does indeed apply to state and local governments, not just the federal government.

These rulings bring us closer to the original intent and purpose of the Second Amendment, but the forces supporting gun control regulation are aggressive and are constantly attempting to pass further regulations that push the boundaries of the Supreme Court decision, which ultimately require further litigation and a constant insistence that the Constitution be followed at all levels of government.  Ultimately, it's up to every citizen to read and understand the Constitution, and every government official to honor their oath to uphold and defend the Constitution, and not defer to the opinion of a court.  We must remain vigilant if we are to retain the rights necessary to maintain our freedom.

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