Question

How is gun control a federal (national) issue, and how is gun control a state issue? Use the Constitution as your basis and explain thoroughly

Answer 1

FEDERAL ISSUE AND REGULATION

In 1927 congress passed the first federal regulation a prohibition on the sale of handguns to private individuals through the U.S. mail. Significantly, this proposal passed after others had failed, because it was promoted as a measure that supported state regulation. By banning the shipment of handguns through the mail, the federal government was attempting to stop the flow of handguns from states with weak laws governing the sale of guns into states with stricter laws. In essence, Congress was attempting to support state regulation more than impose federal regulation.

In the 1930s congress was forced to respond to Depression-era gangsters and the crime wave associated with such groups. The National Firearms Act of 1934 was aimed primarily at limiting access to machine guns, submachine guns and sawed-off shotguns—weapons of choice for gangsters. Handguns were removed from the bill prior to final passage at the urging of the NRA. Soon after, the Federal Firearms Act of 1938 was enacted, giving the Treasury Department control over the licensing of gun dealers, importers and manufacturers. However, at the urging of the NRA the bill was weakened prior to enactment by the addition of language that prevented the prosecution of dealers who sold guns to criminals unless the government could meet an almost impossible standard of proving that the dealer knew the purchaser was a criminal. In neither the 1934 Act or the 1938 Act did Congress attempt to become the exclusive regulator of firearms and thereby reduce the states’ role.

The issue of gun control remained relatively quiet from the 1930s until the assassinations in the 1960s of the Kennedy brothers and Martin Luther King, Jr. First, the Omnibus Gun Control and Safe Streets Act of 1968 was enacted, banning all shipment of handguns across state lines to individuals and also limiting the purchase of handguns to the state where the purchaser resided. Once again protection of state regulation was the primary motivation of the new federal law. A second law, the Gun Control Act of 1968, banned the interstate shipment of long guns (rifles and shot guns) as well as ammunition, and also prohibited the sale of guns to minors, drug addicts, mental incompetents and convicted felons.

In the 1980s the pendulum swung back in favor of gun owners with the presidential election of Ronald Reagan. In 1986, opponents of gun control succeeded in passing the Firearms Owners Protection Act of 1986. The 1986 Act, among other things, authorized interstate sales of rifles and shotguns so long as the sale was legal in the states of both the seller and the buyer. Although weakening the earlier attempts to restrict interstate sales, the 1986 Act reaffirmed the federal policy begun in 1927 of respecting states’ rights by requiring the interstate sale tobe legal in both the buyer’s and seller’s home state.

In the 1990s the pendulum once again swung back in favor of gun control with first the 1993 Brady Act and then the Assault Weapons Ban of 1994. During the debate over the proposed “waiting period” or cooling-off period in the Brady Act, the question of federal versus state regulation arose. At a critical point in the Senate debate, the NRA proposed that the existing waiting periods and background checks under the laws of more than twenty states be preempted by the proposed federal five-day waitingperiod. In essence, the proposal would have used the Commerce Clause and the constitutional doctrine of federal preemption to bar states from imposing longer waiting periods or stricter background checks than that contained in the Brady bill. The NRA proposal was defeated by gun control supporters because many states had waiting periods longer than five days and these would have been effectively repealed by the NRA-backed amendment. Once again states’ rights were respected.

STATE ISSUE AND REGULATION

The first significant state regulation of firearms was passed by the State of New York in 1911. Known as the Sullivan Law, the statute was passed in response to the large number of immigrants entering New York. The statute required citizens to obtain a police permit to possess a handgun. Since then, New York and other states have struggled to find the optimal balance between respecting the rights of gun owners and protecting the public health and safety of all citizens.

The regulation of firearms in Maine is not well documented. Although a significant number of laws affecting the use of firearms exist, Maine is not considered to have strict regulation. Most of the laws are limited to hunting or criminal activity involving the use of firearms rather than the ownership or sale of firearms. Although some of the laws regulating hunting are concerned with hunter safety, they focus on a relatively small part of the problem of gun violence. Furthermore, the criminal laws typically just increase the punishment if the criminal activity is committed with a gun. In these statutes, it is the criminal activity that is the primary focus of the law the use of afirearm in the commission of a crime is simply considered an aggravating circumstance. Setting aside such hunting and criminal laws, there is relatively little law in Maine directly designed to prevent gun violence. Not surprisingly, in several recent surveys of state gun laws, Maine’s overall gun laws are ranked as being one of the weakest of all fifty states. For example, in April 2000, the Open Society Institute issued a report comparing the regulation of firearms in all fifty states. The study focused on such areas as registration of firearms, licensing of gun owners, safety training, regulation of firearm sales, and safe storage of firearms. Based upon this study, Maine has the dubious distinction of having the weakest gun laws of all fifty states. Given the strong opposition to firearm regulation in Maine by the NRA and its ally, the Sportsman’s Alliance of Maine (SAM), it is hardly surprising that Maine has not been more willing to adopt tough regulations, much less those that merely complement the existing federal regulations. Nonetheless, the following will briefly summarize some of the state legislative activity in Maine to address gun violence.

Unlawful Possession.

   Since 1955, Maine has prohibited anyone convicted of a serious crime from owning or possessing a firearm for five years after the sentence is served and thereafter, only with a permit from the commissioner of public safety. In recent years, this has been expanded to include certain juvenile offenders and also those who are subject to domestic violence restraining orders. Given the difficulty of enforcing this type of prohibition in a state with over one million firearms and thousandsof convicts and other offenders, it is not clear how much gun violence is eliminated by this provision. In addition, Maine law prohibits the transfer of firearms to anyone under the age of sixteen. Like the unlawful possession statute above, this does not lend itself to strict enforcement. Furthermore, the age of sixteen is noteworthy because the minimum age under federal law is twenty-one for handguns sold by federally licensed dealers and eighteen for all other sellers and all other types of firearms.

Concealed Weapons Permits.

   Like many other states, Maine has a concealed weapons permit statute. Since 1981, Maine has required a permit to carry a concealed weapon. The permit is issued by a municipal official, such as the municipal chief of police, to anyone who has demonstrated “good moral character”; is at least eighteen years of age; and is not otherwise disqualified from possessing a firearm. Despite the broad discretion associated with the phrase “good moral character,” police chiefs are generally reluctant to use this authority to deny an application for a concealed weapons permit.

Protection from Abuse Orders.

Roughly onehalf of the approximately twenty-five homicides in Maine each year are the end result of escalating domestic or family violence. Since 1979, Maine has had a system whereby potential victims of domestic violence are allowed to seek a court order (known as a Protection from Abuse Order or PFA Order) requiring the abuser to have limited or no contact with the potential victim. In such cases the judge has discretion to impose specific conditions in the PFA Order, including custody of children and possession of the marital home. In 1997, the PFA statute was amended to give the judge discretion to prohibit the abuser from possessing a firearm during the time the PFA Order is in effect. In 2001, at the urging of the NRA and SAM, a proposal to expand the law to give judges discretion to also include a “no firearm” clause in temporary PFA Orders, which are often issued as an initial interim step in a PFA case, was defeated.

Safety Education.

In 1991, the state of Maine enacted two separate statutes designed to warn citizens of the dangers of firearms. First, all federally licenseddealers must:

(1) include a basic firearm safety brochure with every firearm sold

(2) offer to demonstrate to the purchaser the use of a trigger locking device

(3) post information about local voluntary firearm safety programs.

Second, all gun dealers and all “organized gun shows” must conspicuously post a warning that if a firearm is left within easy access of a child, the person doing so may be committing the crime of “endangering the welfare of a child.” Unfortunately, the penalties for failing to abide by these requirements are weak. The safety brochure statute contains no specific penalty for violation and actually exempts from civil liability those who produce firearm safety brochures. A violation of the child endangerment statute is only a civil violation, subject to a maximum fine of $200.

Municipal Preemption.

Like the issue of federal preemption of state regulation discussed above, the question has arisen as to whether the state should preempt municipal regulation of firearms. Specifically, the issue of municipal preemption calls into question the need for one uniform set of regulations within a state versus allowing different regulations for different municipalities within the state. In recent years the NRA has made municipal preemption a high priority in its lobbying at the state level. As of 1988, thirty-four states have passed some form of such legislation. Although arguably justified by the need for uniformity, critics of the NRA suggest that the true motive for advancing such legislation is to allow the NRA to concentrate its lobbying efforts in the fifty state capitals and avoid having to fight the issue of gun control in thousands of city and town halls across the country.

In Maine, the state has enacted a strict municipal preemption statute that prohibits Maine municipalities from enacting any regulation of firearms, except regulations governing the discharge of firearms. In 1995, the Maine Supreme Judicial Court gave this prohibition a broad interpretation by ruling that the statute prevented the Portland Housing Authority from including a “no firearms” clause in leases with its tenants.

In 1999, Maine went even further and joined a growing number of states prohibiting municipalities from bringing lawsuits against gun manufacturers for damages resulting from gun violence within that municipality.This prohibition backed by the NRA attempted to stop possible future litigation against gun manufacturers from following in the footsteps of the litigation against the tobacco industry.

This brief look at the history of United States and Maine firearm regulation offers no clear support for either federal or state regulation. Although Congress in 1934 and 1994 prohibited the sale of certain types of machine guns and assault weapons, it did not try to stop states from expanding the types or categories of firearms that should be prohibited. Similarly, Congress has prohibited the sale of firearms to minors and criminals. However, it did not stop the states from expanding the categories of citizens prohibited from purchasing firearms. Overall, Congress has shied away from taking the step of prohibiting states from going beyond the federal rules. Despite occasional calls for more consistency in our firearm regulations, Congress has never attempted to block states from adopting stricter regulations than those contained in federal law.

Given the political strength of the NRA in Washington, it is puzzling why the NRA has not tried harder to convince Congress to impose a weak but uniform set of regulations on all fifty states. However, the NRA’s support draws heavily from the more conservative members of Congress who are generally critical of a large intrusive federal government. Moreover, allowing states to set their own policy on firearm regulations gives members of Congress a justification for not enacting stricter federal regulations.

In Maine, the state has not been aggressive in adopting firearm regulations. Although there are a number of statutes regulating the sales and use of firearms, the laws are not easily enforced and the penalties are fairly weak. In fact, the Maine Legislature has taken steps to protect gun owners and gun manufacturers from both regulation and law suits by municipalities. Overall, neither the federal government nor the state of Maine has shown an inclination to take the lead in regulating firearms.