By - Tim Rosado
Assault Weapons
Washington state became the latest state to ban the sale of assault weapons (April 25), the tenth US state to do so. Washington joins California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, and New York with similar bans (Giffords Law Center) Three other states have put safety requirements and regulations on assault weapons––Virginia, Minnesota, and Washington.
The Washington state law bans the sale, transfer, distribution, manufacture and importation of 62 gun models/model types, such as AK-47s and AR-15s. The law also bans specific features, such as semi-automatic rifles shorter than 30 inches, guns with detachable magazines or fixed magazines with a capacity of more than 10 rounds, and those with detachable magazines that are equipped with features such as flash suppressors, folding stocks and shrouded barrels. Law violation penalties generally apply to new sales, not to firearms people already own. The law also exempts persons who inherited banned weapons.
Last year (2022) in the last Congress, the House passed (July 29) an assault weapons ban proposal by a vote of 217-213, with 2 Republicans joining 215 Democrats to approve the bill. 5 Democrats joined 208 Republicans against the bill. One Republican did not vote. The Senate did not vote on any ban given the lack of adequate support.
President Biden has repeatedly called on the Congress to pass a Federal ban, but even the consideration of a ban is unlikely in the current Congress.
New Michigan Laws
Michigan enacted new gun laws (April 13) requiring universal background checks for all gun sales and new requirements on the safe storage of firearms.
Anyone purchasing any gun in Michigan will have to undergo a background check if they do not already have a gun license. The requirement did not previously apply to purchasers of long-guns (e.g., assault rifles) and shotguns.
With respect to safe storage, Michigan gun owners living with minors will be required to store firearms in a locked box or container, or lock the firearm with a locking device rendering it inoperable by any individual other than the owner or an authorized user. Gun owners entering other premises with a firearm must take similar actions (e.g., some else's home or their own car).
Violators face misdemeanor charges punishable by up to 93 days in prison, a fine of up to $500 or both, unless a violations occur and actual weapons discharges and injuries occur, which then will turn misdemeanor violations into felony violations. Maximum felony prison terms range from 5 to 15 years depending on the severity of injuries or death.
Michigan is also in the process of completing consideration of a red flag law for the state.
Votes on the 2022 Bipartisan Gun Law
In light of shooting events in Texas, Kentucky, Tennessee, here is a breakdown of voting by relevant Tennessee and Kentucky Federal members of Congress on the 2022 Bipartisan Gun Law.
Allen, Texas. Texas Senator John Cornyn (R-TX) was a leader in helping to develop a version of the law acceptable to some Senate Republicans, which he also supported. Senator Ted Cruz (R-TX) voted against the law. Keith Self, a Republican from the 3rd District where the Allen shooting occurred is a new Member of Congress this year. On his website with respect to gun proposals, the Congressman says that it "is crucial that we not give rise to those who wish to incrementally strip away our right to self-defense. I will remain steadfast against any effort to restrict our Second Amendment rights."
Nashville, Tennessee. Both Republican Senators from Tennessee voted against the legislation–– i.e., Marsha Blackburn and Bill Hagerty. In addition, two of the three Nashville-area Republican Members of House voted against the legislation–– i.e., John Rose of the 6th District, and Mark Green of the 7th District. Andy Ogles, a Republican from the 5th District where the Nashville shooting occurred, is a new Member of Congress this year. Representative Ogles posted a holiday photo on social media of his family all holding assault-style weapons.
Louisville, Kentucky. Senator Mitch McConnell (R-KY) voted for the law and Senator Rand Paul (R-KY) voted to oppose it. The current member of the House of Representatives from Louisville–Congressman Morgan McGarvey (D-KY)–is a new member of Congress this year who recently expressed support for addressing gun-related violence.
Texas State Gun Rules
Core elements of Texas gun laws include:
No waiting period between purchase and delivery of a firearm.
Prohibits ownership of a firearm if the person has been convicted of a felony crime of violence, for persons who have been convicted of certain domestic assault-related misdemeanors involving a member of the person’s family or household, and persons who are subject to a protection order.
No requirement of a license or permit to own or purchase a gun, and the state does not require owners to register firearms. Texas does require a license to carry a handgun (concealed or open).
Texas has no red flag laws.
Persons under 21 cannot publicly possess handguns, but there is no age limit on possession of rifles, including assault weapons.
Tennessee State Gun Rules
Core elements of Tennessee gun laws include:
No waiting period between purchase and delivery of a firearm.
Prohibits ownership of a firearm if the person has been convicted of a felony crime of violence, an attempt to commit a felony crime of violence, or a felony involving the use of a deadly weapon have been convicted of a misdemeanor crime of domestic violence; are subject to an order of protection or are prohibited from possessing a firearm under any other state or federal law. Handgun ownership is prohibited for any felony conviction.
No requirement of a license or permit to own or purchase a gun, and the state does not require owners to register firearms (concealed carry does require a permit).
Tennessee has no red flag laws.
Persons under 18 cannot possess handguns, but there is no age limit on possession of rifles including assault weapons.
Kentucky State Gun Rules
Core elements of Kentucky's gun laws include:
No state waiting period or license or requirement to purchase a firearm, and no gun registration requirement.
No license requirement to carry a concealed firearm. Persons aged 21 or older can carry a concealed weapon.
Persons convicted of a felony, including youthful offenders, cannot own a firearm unless granted relief or a full pardon.
Kentucky has no red flag laws.
Kentucky has no rules limiting assault weapons outside of general age limits on firearms ownership.
Persons under 18 years old cannot own a firearm unless with permission of a parent or when hunting.
Guns & Restraining Orders
The Justice Department appealed to the Supreme Court (March 20) an Appeals Court decision in February that struck down Federal law that prevents persons with domestic violence restraining orders from possessing firearms.
The Appeals Court decision was based mostly on a separate Supreme Court decision in 2022 on a case unrelated to domestic violence which held that firearm regulations must be consistent with the US "historical tradition" (e.g., second amendment rights) and that lower courts can no longer consider societal benefits of gun policy.
Justice argues that the Appeals Court decision is "profoundly mistaken;" that, governments have long disarmed individuals who pose a threat to the safety of others, and [Federal law] falls comfortably within that tradition. The Fifth Circuit’s contrary decision misapplies this Court’s precedents, conflicts with the decisions of other courts of appeals, and threatens grave harms for victims of domestic violence."
Justice is hoping for a ruling before the current Supreme Court session ends and decisions are issued.
2022 Bipartisan Gun Law
Last June (2022), bipartisan gun safety and control legislation was enacted. Key elements of the law included:
Red Flag Law Funding. Created a new $750 million fund for States to support the creation and administration of State red flag laws, also called "State crisis intervention orders."
Boyfriend Loophole. Added domestic violence abusers in dating relationships within the Federal background check system (i.e., to close the so-called "boyfriend loophole"). Such persons will have the ability to be removed from the system five years after completion of a sentence, assuming that there are no additional prohibited crimes and similar offenses.
Firearms Dealer Definition. Clarified the definition of a Federally-licensed firearms dealer to prevent efforts to evade Federal laws and regulations.
Enhanced Under-21 Background Checks. Implemented an "enhanced review" process for under age 21 weapons purchases that will include juvenile and mental health records, as well as checks with State databases and local law enforcement. The Federal background check system will have up to 3 days to conduct the initial review, and up to an additional 7 days to conduct an investigation of any derogatory information (for a total of a 10 day background check process maximum period).
Straw Weapons Purchases. Created Federal criminal offenses for straw purchases of weapons.
Violence Prevention. Provided $250 million for community-based violence prevention activities.
Additional Mental Health Funding. Provided additional funding for mental health programs such as $250 million for community health services; $80 million to support primary care physicians in rapidly accessing mental health services for their patients; $60 million over five years in primary care physician mental health care training of children and youth; $120 million over four years to train and prepare community members and first responders in responding to individuals with mental health disorders; and, $40 million over four years for post-trauma services.
Additional School Mental Health/Safety Funding. Among other things, an additional $240 million was provided over four years for mental health awareness (and school-based trauma) of school-aged youth, training for school personnel and other adults to detect and respond to mental health issues, and for connecting youth and families to services; $500 million in additional funding over five years for school-based mental health services; $500 million in additional funding over five years to grow and strengthen the school-based mental health workforce including counselors, social workers, and psychologists; and, $300 million in additional funding for school safety measures, violence prevention, and training for personnel and students.
Executive Order Guns
The Biden Administration issued (March 14) an Executive Order (EO) covering a variety of gun policy matters, such as background checks on gun sales, gun shipping, detection evasion, and gun victim assistance.
The most significant actions concern gun sales. Specifically, the EO directs the Department of Justice:
To clarify, to the extent possible without changes in law, the gun sellers that fall into the statutory definition of being engaged in the business of selling firearms, in order to improve the clarity of who is required to conduct background checks of gun purchasers.
To publicly release ATF records from the inspection of firearms dealers cited for violation of federal firearm laws, in order to “empower the public and policymakers to better understand the problem,” so as to guide future gun law improvements that hold problem gun dealers accountable.
Other notable elements of the EO include a provision directing Federal agencies to encourage effective use of extreme risk protection orders and expand existing Federal campaigns and other efforts to promote safe storage of firearms.
The EO also requires the Federal Trade Commission (FTC) to issue a public report analyzing how gun manufacturers market firearms to minors and all civilians, including through the use of military imagery.
Florida Carry Law
Florida enacted a law (April 3) permitting persons to carry a concealed weapon without a specific license for this purpose as long as you meet the state's gun ownership requirements, which previously required a mandatory background check and a firearms training course before receiving a license.
The new law does not change so-called "open carry" rules for Florida, however, where a weapon is kept in plain sight or partially concealed. Open carry remains prohibited.
Supreme Court & NY Carry Laws
The US Supreme Court decided (January 11) that certain New York State handgun carry laws can remain in effect as challenges are considered in the courts.
Last summer, the Supreme Court issued an opinion (June 23) that generally opposes State laws restricting the ability of persons to carry handguns outside of a home. The issue before the Court was a long-time New York State law requiring a licensed gun owner to seek approval and have “proper cause” to carry a firearm.
Later last year, a Federal Appeals Court (2nd Circuit) ordered a pause in a lower District Court ruling in a separate case that would have blocked parts of New York law banning concealed carry in certain locations, in part because of the Supreme Court’s summer ruling. The Supreme Court has now decided that the pause can remain in effect (meaning the New York law can continue to be enforced) while the case is being considered in the courts.
Supporters of New York carry laws are concerned with the future proliferation of persons carrying weapons in the streets and in public places where large numbers of persons are gathered who could face risk from gunfire exchanges. Opponents believe that the Constitution fundamentally permits the ability of persons to carry guns for self defense no matter where they are.
Bump Stock Ban at Risk
A Federal Appeals Court (5th Circuit) issued a decision on a case (December 6) that could eventually lead to the removal of a federal rule that effectively bans so-called “bump stock” devices for semi-automatic weapons.
The Justice Department rule, that took effect in 2019, clarifies that a weapon that is modified by a bump stock to allow automatic fire qualifies as a machine gun. Machine guns are strictly regulated, and persons prosecuted, for illegal possession and use of such weapons.
Bump stocks are devices that use a rifle’s recoil to repeatedly pull the trigger, enabling a semi-automatic weapon to fire nearly as fast as a traditional automatic weapon. The gun’s trigger bucks against a shooter’s finger as the gun’s recoil causes it to jerk back and forth. This causes the gun to repeatedly fire.
The Appeals Court held that based on a plain reading of statute providing authority to regulate machine guns, as well as how a semi-automatic firearm works mechanically, that a bump stock is excluded from the technical definition of machine gun set forth in the Gun Control Act and National Firearms Act. The law defines a machine gun as one that fires multiple times with a “single function of the trigger,” but bump stocks help facilitate multiple trigger functions of a semi-automatic weapon to make it act more like a machine gun.
Ultimately, the Appeals Court believes that this matter should be considered by Congress, and changes made to law, if there is a desire to specifically prohibit bump stocks. Some legal analysts believe that the Appeals Court’s interpretation of the law is overly conservative, and while clarification of the law would be helpful it should not be necessary for keeping restrictions in place for now.
The case considered by the Appeals Court will now move back to a District Court, and there is speculation that the matter could end up before the Supreme Court. In the meantime, the Justice Department will have to determine if/how to prosecute bump stock cases while this matter moves through the courts, and whether or not to at least temporarily suspend the 2019 rule.
Guns & Serial Numbers Court Case
A Federal District Court judge ruled (October 12) that a ban on firearms with a serial number altered or removed is unconstitutional, claiming that there is no historical tradition in law for restricting gun possession on the basis of a serial number.
The judge based his decision on a June 2022 U.S. Supreme Court decision in a separate case, where the majority opinion stated that gun regulation had to be justified by demonstrating that it is “consistent with this Nation’s historical tradition of firearm regulation.”
Federal law prohibits persons from transporting a gun with the serial number removed across state lines, or from possessing such a gun if it has ever been transported across state lines. In general, serial numbers (which are connected to provisions of the Federal Gun Control Act of 1968) are intended to prevent illegal gun sales and make it easier to solve crimes through gun traceability.
It is not clear what the Justice Department will do next in the case, such as taking the case to a higher court. It is possible this case could eventually make it to the Supreme Court.
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