2A legal primer

I figured it was time to give a somewhat condensed primer on discussion topics pertaining to the Second Amendment.   Over the past 20 years or so of reading and interacting with others on USENET (newsgroups), Web forums, Facebook, etc. I've come to take it for granted that people understand what I'm talking about with respect to certain watershed moments in our nation's history.

While this may be true inside certain circles, I feel like maybe it's time to go over the "basics" a bit.

First, I'm going to lay down two postulates that inform the rest of my views on the legal status of self defense, weapon ownership, and the like:

1) Laws restricting gun ownership, possession, or use are assumed to be prima facie Unconstitutional.  The Second Amendment says "Shall not be infringed".  There's no standard of scrutiny defined here. 

2) The Commerce Clause of the US Constitution has been willfully misinterpreted for decades, especially since the comically and tragically disastrous Wickard v. Filburn ruling in 1942.  What was clearly intended as a check against States levying duties and taxes on "imports/exports" between themselves has become carte blanche to pass any number of laws regulating behaviors using grade-school logic of "you touched it, so there".

Point 2 is extremely important with respect to point 1.   Without Commerce Clause chicanery, Federal gun laws would not be possible.  (actually, most Federal law would be impossible, but that's a larger topic).

Going backward in time from the present, I'll attempt to hit the main topics that one is likely to see in online debates; hopefully this can be used as a sort of "2A argument glossary".  But first, some common terms:

FFL: Federal Firearms License.  See entry below for GCA.

"Gun show" loophole:  Purported "loophole" wherein one private individual purchases a firearm from another private individual, presumably rampant at gun shows.  Inasmuch as a gun show is also a form of swap meet, it *is* fairly common.  Also common are private transactions between individuals that occur at private homes, parking lots, or anywhere else a private transaction may occur after communication via bulletin board, classified ad, etc.  Should actually be termed "Private sale loophole".   Also, this is not actually a loophole, if one considers operating within the law a "loophole" simply because your actions weren't covered by an existing law.  To wit (from Wikipedia):

"A loophole is an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the purpose, implied or explicitly stated, of the system."

Therefore, since the GCA never intended to regulate anything other than "interstate commerce" in arms, private sales between individuals residing in the same state are NOT taking advantage of a "loophole".

Assault Weapon: A nebulous term, if not meeting the strict definition of "weasel words" which means basically anything that a gun control supporter intends it to mean, usually if a rifle or shotgun has ergonomic or "military-style" feature.  Curiously, until the AR-15/AK-47 pattern rifles, military weapons and "civilian" weapons weren't a distinction most people made outside of fully automatic weapons.  First legal definition came in the 1994 AWB.  (see below)  It's also important to not that semi-automatic rifles have been around for over a hundred years, so banning weapons based on that technology is tantamount to a ban on *all* firearms that aren't lever action or bolt action.

Now to the significant legal landmarks:

McDonald v. Chicago: (2010) SCOTUS decision holding that the Second Amendment right to keep and bear arms is "incorporated", i.e. binding on state and local governments via the 14th Amendment.  Justices argued over whether this was due to the Due Process clause, or the Privileges and Immunities clause.


District of Columbia v. Heller: (2008) SCOTUS decision holding for the first time that the Second Amendment protects an individual right, as opposed to the common view amongst "progressives" that the right was tied to militia service.  DC had effectively made the right non-existent with the most draconian restrictions on gun ownership anywhere in the nation, even in the privacy of one's home.

  • Held that firearm ownership/possession is an individual right not requiring participation in a militia.
  • ruled a total ban on operative handguns in the home is unconstitutional
  • Somewhat maintained the "militia use" referred to in the Miller case (see below) but referred to that standard as "in common use". 


PLCAA:  (Protection of Lawful Commerce in Arms Act).  2005 Federal law intended to provide some protections from frivolous lawsuits against gun manufacturers and retailers, e.g. suing Remington because one of their rifles was used in a murder, etc.   Often referred to derisively by gun control advocates who frame the issue as "special protection for one industry".   Counter argument is "nobody sues Ford when one of their cars is used in a crime".


AWB: Federal Assault Weapons Ban. (1994) Part of the " Violent Crime Control and Law Enforcement Act of 1994".  The AWB had a "sunset" provision that took effect in 2004 since reauthorization did not happen. 

  • Prohibited sale of "semiautomatic assault weapons" as defined by the Act.
  • The Act named around 650 particular models of firearm
  • created the 10 round magazine limit, among other things
  • Exemption for law enforcement/military

Brady: (Brady Handgun Violence Prevention Act).  1993 Federal law named after Reagan press secretary James Brady who was wounded during the assassination attempt on Reagan in 1981.

Implemented Federal background check requirement for all firearms purchases made through an FFL.


FOPA: (Firearm Owners Protection Act) 1986 Federal law that amended the 1968 Gun Control Act due to recorded abuses by the ATF, among other things.  Notable provisions:

  • Reopened interstate sales of long guns on a limited basis (remember long guns are used relatively infrequently in crimes)
  • (re)Legalized shipment of ammunition through the USPS
  • removed the record-keeping requirement of ammunition purchases (except for armor-piercing, which is another sub-thread I can address later)
  • Protection of transport of firearms through states where said firearms were otherwise illegal (safe passage, in a sense)
  • Limited private ownership of "machineguns" to weapons manufactured prior to the date of passage of the bill.   Effectively froze the number of fully automatic firearms in private hands, which is the reason an Uzi submachinegun now goes for $15,000 and up.    Law enforcement/military are exempt.
  • Forbade the Federal Government from establishing a registry of firearms ownership (but kept the 4473 form records-keeping requirements)


GCA: (sometimes GCA68) Gun Control Act of 1968.   Established Title 1 of US Federal firearms law.   Passed in response to the assassination of President Kennedy, this law established the modern licensing system for firearms retailers, manufacturers, etc.  Prior to 1968, firearms were available by mail order, and Lee Harvey Oswald is reported to have purchased his rifle via mail order from an advertisement in American Rifleman magazine.

  • Created the FFL system
  • Created the "sporting purposes" standard for firearms importation, then considered to only include hunting and competitive target shooting. 


Miller:   (United States v. Miller).  1939 Supreme Court challenge to the NFA, decided after the plaintiff had been murdered.  Miller was a known bank robber charged with violating the NFA since he had not registered his "sawed off shotgun" and paid the $200 tax, and he had also transported his weapon from Oklahoma to Arkansas and was therefore subject to "Interstate commerce" regulation.

  • SCOTUS held that NFA was constitutional, since a "short barreled shotgun" as defined by the NFA had no relation to militia service, and was therefore not "covered" by the Second Amendment.
  • SCOTUS ignored evidence that short shotguns had been routinely used by troops in trench warfare during World War 1.

NFA: (sometimes NFA34)  The seminal Federal level gun control law, passed in response to "gang violence" related to Prohibiton and the attempted assassination of President Roosevelt in 1933. (Note how many of these laws result from assassination attempts on the President or particular notable incidents of crime like the Valentine's Day massacre and not overall crime trends)

  • Created classes of restricted firearms:  machineguns, short barreled rifles and shotguns, etc.
  • Restricted suppressors
  • confusing as hell with regard to parts and what makes a machinegun
  • $200 tax stamp required for registration was intended to be exclusive, i.e. adjusted for inflation, would amount to over $3800 today.  (Consider an M4 rifle sells to the US military for a contract price under $1000)


This is by no means intended to be an exhaustive or definitive list of historical court cases or gun control laws (particularly their origins in the Jim Crow period); my intent is to provide something of a "Cheat sheet" folks can use to better understand the various 2A discussions.   More in-depth discussion to come as circumstances warrant.


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