Firearm Owners Protection Act
Encyclopedia : F : FI : FIR : Firearm Owners Protection Act
United States federal law that revised many statutes in the Gun Control Act of 1968.
Federal Firearms License Regulatory Reform
Under the Gun Control Act, the Bureau of Alcohol, Tobacco and Firearms, now the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) was given wide latitude on the enforcement of regulations pertaining to Federal Firearms License (FFL) holders. Allegations of abuse by ATF inspectors soon arose from the National Rifle Association (NRA) and certain targeted Federal firearms licensees. The gun rights movement lobbied Congress to pass the FOPA to prevent the abuse of regulatory power -- in particular, to address claims that the 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).The Act mandated that ATF compliance inspections can be done only once per year and, at a minimum, must be done once every 3 years. 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 Machine Gun Ban
A last-minute provision that was added to the act prevents the ATF from accepting the federal tax mandated by the National Firearms Act for the civilian registration of a fully-automatic firearm, automatic sear, drop-in sear, or similar device which provides fully automatic fire, the date of manufacture for which was after May 19, 1986. This effectively banned their manufacture except for law enforcement, military, or export, which require different registration forms. However, fully automatic firearms and sears manufactured and registered with ATF prior to May 19, 1986, can still be transferred to private citizens after payment of the $200 transfer tax.While the name of the act may seem contradictory at first in light of its effectively restricting some firearms, the provision to protect traveling individuals, along with familiarity of a common occurrence in the American legislative process, helps clarify the provisions of the act. The act as introduced by its sponsors originally did not contain the language that effectively banned the manufacture of automatic firearms for civilian ownership; that portion was added later by legislators and signed into law by President Reagan.
\"Safe Passage\" Provision
One of the law's provisions was that persons traveling from one state to another for a shooting sports event or any other lawful activity cannot be arrested for a firearms offense in a state that has strict gun control laws if the traveler is just passing through (short stops for food and gas) and the firearms and ammunition are securely locked, unloaded, and not immediately accessible.An example of this would be that someone driving from Virginia to an IPSC competition in Vermont with a locked hard case containing an unloaded handgun and a box of ammunition in the trunk could not be prosecuted in New Jersey or New York City for illegal possession of a handgun provided that he did not stop in New Jersey or New York for an extended period of time.
With these considerations in mind, it is advisable for travelers with firearms to maintain a low profile while passing through any such states that have severe restrictions on gun ownership.
Registry Prohibition
The act also forbade the U.S. Government or any agency of it 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 (2) (a)) being: No such rule or regulation prescribed 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.The Brady Handgun Violence Prevention Act of 1993 created a national background check system to prevent firearms sales to such "prohibited persons." In order to comply with the prohibition on a Federal registry of non-NFA items, records of background checks are legally required to be destroyed after 24 hours. The proper enforcement of this provision has been a goal of gun rights groups.
Clarification of Prohibited Persons
The older Gun Control Act of 1968 prohibits firearms ownership in the United States of America by certain broad categories of individuals thought to pose a threat to public safety. However, this list differed between the House and the Senate versions of the bill, and led to great confusion. This list was later augmented, modified, and clarified in the Firearm Owners Protection Act of 1986. The 1986 list is:
- Anyone who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding 1 year.
- Anyone who is a fugitive from justice.
- Anyone who is an unlawful user of or addicted to any controlled substance.
- Anyone who has been adjudicated as a mental defective or has been committed to a mental institution.
- Any alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa.
- Anyone who has been discharged from the Armed Forces under dishonorable conditions.
- Anyone who, having been a citizen of the United states, has renounced his or her citizenship.
- Anyone that is subject to a court order that restrains the person from harassing, stalking, or threatening an *intimate partner or child of such intimate partner. (Added in 1996, with the Lautenberg Amendment)
- Anyone who has been convicted of a misdemeanor crime of domestic violence. (Added in 1996, with the Lautenberg Amendment)[link]
- A person who is under indictment or information for a crime punishable by imprisonment for a term exceeding one *year cannot lawfully receive a firearm. Such person may continue to lawfully possess firearms obtained prior to the indictment or information.
In 1999, a U.S. District Court judge ruled that the Lautenberg Amendment, 18 U.S.C. ยง 922(g)(8), violated the Second and Fifth Amendments to the United States Constitution, and was therefore unconstitutional, in United States of America v. Timothy Joe Emerson, U.S. District Court for the Northern District of Texas, San Angelo Division, 46 F. Supp. 2d 598, April 7, 1999.[link]
This case was subsequently reversed by the U.S. Court of Appeals two years later; see U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001).[link] The Supreme Court has not granted certiorari, a necessary first step for further examination by the Supreme Court, hence the 5th Circuit Court of Appeals ruling stands.
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