Episode 109: January 13, 2013
by Adam Freedman
Today’s topic: The rights--and wrongs--of bearing arms.
In today’s article I’ll tackle the question: Who can own a gun?
Who Can Own a Gun?
First, let’s look at the constitutional status of gun laws. The Second Amendment to the Constitution states:
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.
In 2008, the Supreme Court struck down a District of Columbia gun control law on the grounds that the Second Amendment does not merely protect the right of militia members--notwithstanding those opening words about a well-regulated militia--but rather, the right of each individual citizen to “keep and bear arms.”
Federal law does not outlaw guns; nor does it allow outlaws to own guns.
The Supreme Court’s ruling does not affect the vast majority of federal, state, and local gun laws that seek to regulate gun ownership but don’t amount to a total ban. In this article, I’ll focus mainly on federal laws, but there are thousands of state and local laws concerning firearms. Be sure to check all state and local laws before attempting to purchase a gun.
Can Convicted Felons Buy Guns?
Under the federal Gun Control Act of 1968, certain categories of persons are not eligible to possess a firearm or ammunition. These include
Fugitives from justice
Unlawful users of certain drugs
Those committed to a mental institution
Those convicted of crimes punishable by imprisonment for more than one year (which generally covers felonies)
Those convicted of crimes of domestic violence
The federal law not only creates a permanent ban on gun ownership for anyone convicted of a felony, it even applies to those under indictment for a felony.
Domestic Violence and Gun Laws
With respect to “domestic violence,” that term is interpreted very broadly in the context of the Gun Control Act. In 2009, the Supreme Court held that the Act’s prohibition extends to anyone convicted of any crime involving “physical force or the threatened use of a deadly weapon” against a person with whom the perpetrator had a domestic relationship--even if the crime is just plain old “assault and battery” rather than a specific “domestic violence” charge.
Under the Gun Control Act, the conviction itself is enough to trigger the prohibition. It doesn’t matter whether the person actually served a sentence for the felony or crime in question.
Can I Seek an Exception to Federal Law?
If you want a gun but you fall into one of the prohibited categories under federal law, do not attempt to purchase a firearm illegally. If you really want a gun, it appears that your only legal recourse is to apply to the Attorney General of the United States for an exception to the Gun Control Act. You’ll probably want an attorney to assist you with that.
Antique Collectors are Generally Excluded from Gun Control Laws
The other option might be to purchase an antique firearm. Many federal and state prohibitions have exemptions for collectors of antiques, which generally includes guns manufactured before 1898. But those exemptions vary considerably from state to state, so you should familiarize yourself with state and local laws.
Who Can Buy a Gun Legally?
If you’re not otherwise prohibited by federal, state, or local laws, then the basic rules for buying a gun include the following:
You have to be 18 or older to purchase a rifle or shotgun;
You have to be 21 or older to purchase a handgun;
You must buy your gun from a federally-licensed dealer in your state;
You must submit to a background check that the dealer will arrange, using an FBI database
Summary of Gun Laws
To sum up, federal law does not outlaw guns; nor does it allow outlaws to own guns. People with criminal records often cannot buy guns, except possibly antiques. Be sure to follow all applicable laws when trying to purchase a firearm. When in doubt, that 18th Century musket might be your best bet.
Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful Life. One more thing: we’re welcoming a new show to the Quick and Dirty Tips network this week. Jason Marshall is the Math Dude! Although Jason is smart—he’s literally a rocket scientist!—his show is all about making math understandable and even fun for the rest of us. You’ll find the Math Dude on iTunes and at QuickandDirtyTips.com. Welcome Jason!
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