Gun Trafficking and the Southwest Border
U.S. Gun Control Statutes and an Inter-American, Anti-Gun
Trafficking Convention
Four federal statutes govern U.S. commerce of firearms domestically
and internationally. Many
states supplement these federal statutes and have firearms laws of
their own that are more strict.
For example, some states require permits to obtain firearms and
impose a waiting period for
firearm transfers. Domestic commerce and importations into the
United States are generally
regulated under the National Firearms Act of 1934 (NFA) and the Gun
Control Act of 1968
(GCA). The exportation of firearms from the United States is
regulated by the Arms Export
Control Act of 1976 and, to a lesser extent, the Export
Administration Regulations (EAR). Federal
firearms laws are primarily enforced by the ATF. In addition, the
U.S. government is a signatory
to an inter-American, anti-gun trafficking convention.
National Firearms Act of 1934 (NFA)[24]
The NFA was enacted to make it difficult to obtain certain types of
firearms perceived to be
especially lethal or the chosen weapons of “gangsters,” most notably
machine guns and short-barreled
shotguns. This act also regulates firearms, other than pistols or
revolvers, that can be
concealed on a person (e.g., pen, cane, and belt buckle guns), and
destructive devices (grenades,
mines, bazookas, rockets, and missiles). Under the NFA, all aspects
of the manufacture and
distribution of such weapons are taxed. The statute also compels
manufacturers and buyers alike
to disclose, through registration with the Attorney General, the
production and distribution of
covered firearms and destructive devices. For the most part, the NFA
is administered by the ATF.
The Gun Control Act of 1968 (GCA)[25]
Under the GCA, as amended, the stated purpose of federal firearms
regulation is to assist federal,
state, and local law enforcement in the ongoing effort to reduce
crime and violence, while not
placing undue or unnecessary burdens on law-abiding citizens in
regard to the lawful acquisition,
possession, or use of firearms for hunting, trapshooting, target
shooting, personal protection, or
any other lawful activity. The GCA requires all persons
manufacturing, importing, or selling
firearms as a business to be federally licensed; prohibits the
interstate mail-order sale of all
firearms; prohibits interstate transfer of handguns between
non-licensed persons; sets forth
categories of persons to whom firearms or ammunition may not be sold
(such as persons under a
specified age or with criminal records); requires the Attorney
General to authorize the importation
of sporting firearms; requires that dealers maintain records of all
commercial gun sales; and
establishes special penalties for the use of a firearm in the
perpetration of a federal drug
trafficking offense or crime of violence.
As amended by the Brady Handgun Violence Prevention Act in 1993,26
the GCA requires
background checks to be completed for all non-licensed persons
seeking to obtain firearms from
federal firearms licensees. While the GCA is generally administered
by the ATF, Brady
background checks are administered by the Federal Bureau of
Investigation (FBI). Under the
GCA, background checks are not required for private, intrastate
transactions between nonlicensed
persons who are not “engaged in the business” as a firearms
dealer.27 Such transactions
and other matters such as possession, registration, and the issuance
of licenses to firearm owners
may be covered by state laws or local ordinances, however.
Regarding possession under federal law, the GCA prohibits certain
categories of persons from
possessing or purchasing firearms or ammunition. Those categories
generally cover: (1) persons
convicted in any court of a crime punishable by imprisonment for a
term exceeding one year;
(2) fugitives from justice; (3) users or addicts of drugs; (4)
persons adjudicated as a mental
defectives or committed to mental institutions; (5) illegal
immigrants and nonimmigrants;
(6) persons dishonorably discharged from the U.S. Armed Forces; (7)
persons who have
renounced their U.S. citizenship; (8) persons restrained under a
court-order from harassing,
stalking, or threatening an intimate partner or child of such
intimate partner; and (9) persons
convicted of misdemeanor domestic violence.28
The GCA does not distinguish between citizens and legal permanent
residents (legal immigrants);
both are eligible to receive, possess, and transfer firearms and
ammunition as long as they are not
in one of the categories of prohibited persons. As shown above,
among prohibited categories are
illegal immigrants and nonimmigrants (with exceptions for the
latter). Illegal immigrants are
those noncitizens (aliens) who have either entered the United States
without inspection or have
violated the terms of their nonimmigrant visas or entry by
overstaying or accepting unauthorized
employment. Illegal immigrants are prohibited from possessing
firearms with no exceptions.
Nonimmigrants are admitted for temporary stays – sometimes for
several years. In general,
nonimmigrants are not eligible to purchase and take possession of
firearms or ammunition in the
United States.29 There are limited exceptions, however, for certain
nonimmigrants who:
• have resided in a state for 90 days that they intend to make their
home, in which
case they may purchase handguns in their state of residence, or
purchase long
guns (rifles or shotguns) in any state;
and establish that they are either:
• official representatives of a foreign government who are
accredited to the United
States government or the nonimmigrant’s government mission to an
international
organization that is headquartered in the United States and
possession of a
firearm is necessary to their official capacity;
• officials of foreign governments or distinguished visitors who
have been
designated by the State Department and possession of a firearm is
necessary to
their official capacity;
• foreign law enforcement officers of a friendly foreign government
entering the
United States on law enforcement business; or
• visitors admitted to the United States for lawful hunting or
sporting purposes or
are in possession of a valid hunting license or permit lawfully
issued in the
United States.30
Arms Export Control Act of 1976 (AECA)[31]
Section 38 of the Arms Export Control Act (AECA) authorizes the
President to control the export
and import of “defense articles” and “defense services;” to
designate articles and services that are
to be considered as such; and to issue regulations governing the
import and export of these items.
The United States Munitions List (USML) includes items that are
designated by the President as
defense articles and defense services.32 Weapons on the USML include
non-automatic and semiautomatic
firearms to caliber .50 inclusive (12.7mm); fully automatic firearms
to .50 inclusive
(12.7mm); firearms or other weapons having special military
application regardless of caliber;
combat shotguns; silencers and similar items for such weapons;
riflescopes manufactured to
military specifications; barrels, cylinders, receivers or complete
breech mechanisms for such
weapons; and components and parts for the above-listed articles.33
The U.S. Department of State
implements controls over the export and temporary import of items on
the USML under the
International Traffic in Arms Regulations.34 The exportation of
items that are not contained on the
USML may either be subject to the exclusive control of other federal
agencies or to export
controls administered by Department of Commerce.35 The AECA imposes
strict criminal and civil
penalties for those persons who violate its provisions.
Export Administration Regulations (EAR)[36]
The Department of Commerce (DOC), through its Bureau of Industry and
Security (BIS),
implements controls on the export of goods subject to DOC
jurisdiction in the EAR.37 DOC
export controls were originally authorized in the Export
Administration Act of 1979, but upon the
expiration of the act in 2001, DOC export controls have been
maintained under an executive
order issued under the International Emergency Economic Powers Act (IEEPA).38
IEEPA grants
the President broad authorities to control exports from the U.S. as
well as to regulate other
international economic transactions by persons subject to U.S.
jurisdiction, provided that he first
declare a national emergency due to “an unusual and extraordinary
threat, which has its source in
whole or substantial part outside the United States, to the national
security, foreign policy, or
economy of the United States.”39
Firearms are controlled in the Commerce Control List (CCL) under
Category 0, “Nuclear
Materials, Facilities and Equipment and Miscellaneous Items,” and
are listed under Subgroup A,
“Systems, Equipment and Components.” The following items are
covered:
• (0A984) Shotgun, barrel length 18 inches (45.72 cm) inches or
over; buckshot shotgun
shells, except equipment used exclusively to treat or tranquilize
animals, and except
arms designed solely for signal, flare, or saluting use; and parts,
n.e.s. [not elsewhere
specified];
• (0A985) Discharge type arms (for example, stun guns, shock batons,
electric cattle
prods, immobilization guns and projectiles) except equipment used
exclusively to treat
or tranquilize animals, and except arms designed, solely for signal,
flare, or saluting use;
and parts, n.e.s.;
• (0A986) Shotgun shells, except buckshot shotgun shells, and parts,
n.e.s.; and
• (0A987) Optical sighting devices for firearms (including shotguns
controlled by
0A984), and parts, n.e.s.
In general, these items are regulated for crime control reasons,40
implementation of certain U.N.
embargoes, and the Inter-American Convention Against the Illicit
Manufacturing of and
Trafficking in Firearms, Ammunition, Explosives, and Other Related
Materials (CIFTA, a
Spanish acronym41; discussed below), and in some cases,
anti-terrorism purposes. The EAR
provides information as to the specific licensing requirements for
each item, including
requirements for exports to particular countries. License exceptions
are not available for these
items. Like the AECA, the EAR imposes strict criminal and civil
penalties on those persons who
violate its provisions.
BIS maintains a licensing system for the export of shotguns and
related items to all Member
countries of the Organization of American States (OAS), including
Mexico and Canada, an action
based on the OAS Model Regulations for the Control of the
International Movement of Firearms,
Their Parts, and Components and Munitions (OAS Model Regulations),
which were developed to
aid OAS Member countries in implementing CIFTA.42 Although the
Senate has not ratified the
Treaty, the United States maintains the above-described export
regulations, which are aimed at
furthering the goals of CIFTA.43
OAS Convention on Illicit Firearms Trafficking (CIFTA)
On November 13, 1997, the OAS adopted the Inter-American Convention
Against the Illicit
Manufacturing of and Trafficking in Firearms, Ammunition,
Explosives, and Other Related
Materials (CIFTA). CIFTA is a multilateral treaty designed to
prevent, combat, and eradicate
illegal transnational trafficking in firearms, ammunition, and
explosives. Under CIFTA, a state
would be committed to:
• establishing as criminal offenses the illicit manufacturing and
trafficking of
firearms;
• setting up and maintaining a system of licenses and authorizations
for export,
import, and transit of firearms;
• marking firearms at the time of manufacture, and when they are
imported;
• sharing information needed by law enforcement when investigating
arms
trafficking offenses;
• strengthening controls at export points; and
• ensuring that law enforcement personnel receive adequate
training.44
CIFTA was signed by the United States and 28 other OAS member states
on November 14,
1997,45 and it went into effect on July 1, 1998. As of February 5,
2009, twenty-nine OAS Member
states have ratified the Convention, while four other OAS Member
states (including the United
States) are signatories but have yet to ratify the treaty.46
President Clinton transmitted the
Convention to the Senate on June 9, 1998, with his recommendation
“that the Senate give early
and favorable consideration to the Convention, and that it give its
advice and consent to
ratification.”47 The Senate has not voted on the treaty.
Endnotes
24 26 U.S.C. § 5801 et seq.
25 18 U.S.C. § 921 et seq.
26 P.L. 103-159, codified at 18 U.S.C. § 922(t).
27 A person is “engaged in the business” as a
firearms dealer if he devotes time, attention, and labor to dealing
in
firearms as a regular course of trade or business with the principal
objective of livelihood and profit through repetitive
purchase and resale of firearms. The term does not apply to a person
who makes occasional sales, exchanges, or
purchase of firearms for the enhancement of a personal collection or
hobby, or who sells all or part of his personal
collection of firearms. 18 U.S.C. § 921(a)(21).
28 18 U.S.C. §§ 922(g) and (n).
29 18 U.S.C. § 922(y).
30 For further information, see ATF brochure,
“Nonimmigrant Aliens Purchasing Firearms and Ammunition in the
United States (ATF P 5300.18),” (Washington, July 2002).
31 22 U.S.C. §2778 et seq. This section was written
by Jeanne J. Grimmett, Legislative Attorney, x75046.
32 The USML is set out at 22 C.F.R. Part 121.
33 See Category I of USML.
34 The International Traffic in Arms Regulations are
set forth in 22 C.F.R. Parts 120-130. The U.S. Attorney General,
through the ATF, controls the permanent importation of defense
articles from foreign countries by persons subject to
U.S. jurisdiction under 27 C.F.R. Part 447. Items subject to ATF
controls are enumerated in the U.S. Munitions Import
List set out at 27 C.F.R. § 447.21.
35 See 15 C.F.R. § 734.3(b) for a list of items whose
export is exclusively controlled by other federal agencies (e.g.,
the
Department of Energy).
36 This section was written by Jeanne Grimmett,
Legislative Attorney, x75046. For further information on the EAA,
see
CRS Report RL31832, The Export Administration Act: Evolution,
Provisions, and Debate, by Ian F. Fergusson.
37 15 C.F.R. Parts 730 et seq.
38 Executive Order 13222, 73 Fed. Reg. 43603 (2008).
39 IEEPA, P.L. 95-223, as amended, § 202, 203, 50
U.S.C. §§ 1701, 1702.
40 See 15 C.F.R. § 742.7(a): this regulation requires
licenses for the export and re-export of crime control and detection
equipment, related technology and software “[i]n support of U.S.
foreign policy to promote the observance of human
rights throughout the world.”
41 CIFTA stands for “Convención Interamericana contra
la Fabricación y el Trafico Illicitos de Armas de Fuego,
Municiones, Explosivos y otros materiales relacionados.”
42 15 C.F.R. § 742.17 (a). The full list of OAS
countries is set out at 15 C.F.R. § 742.17(e). The text of the
Convention
is available at
http://www.oas.org/juridico/English/treaties/a-63.html
43 See generally Export of Firearms, 64 Fed. Reg.
17968 (Apr. 13, 1999) and Senate Treaty Doc. 105-49, at
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_documents&docid=f:td049.105.pdf;
Although
the U.S. is a signatory to the treaty, lack of ratification means
that the treaty is not legally binding upon the United
States.
44 Matthew Schroeder, “Small Arms, Terrorism, and the
OAS Firearms Convention,” Federation of American
Scientists, Occasional Paper No. 1, March 2004, available at,
http://fas.org/asmp/library/OAS/FullReport.pdf.
45 See Message from the President of the United
States Transmitting the Inter-American Convention Against the
Illicit
Manufacturing of and Trafficking in Firearms, Ammunition Explosives,
and Other Related Materials, Treaty Doc. 105-
49, 105th Cong., 2d Sess. at III (June 9, 1998) (hereinafter
referred to as “Treaty Doc. 105-49”).
46 See United States Department of State, Bureau of
Western Hemisphere Affairs, Fact Sheet on the Inter-American
Convention Against the Illicit Manufacturing of and Trafficking in
Firearms, Ammunition, Explosives, and Other
Related Materials, February 5, 2009. Available at
http://www.state.gov/p/wha/rls/fs/2009/114984.htm. Although the
U.S. is a signatory to the treaty, lack of ratification means that
the treaty is not legally binding upon the United States.
47 See Treaty Doc. 105-49 at III.
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