For the third part of this series on firearms legislation in the United States, we will cover the Firearm Owners Protection Act of 1986 (henceforth referred to as “FOPA”).
The FOPA, signed into law on May 19, 1986, by President Ronald Reagan, is largely a modification of the previous legislation we discussed – the Gun Control Act of 1968 (“GCA”). If you recall, the GCA granted significant power to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the “ATF”) to monitor Federal Firearms Licensed sellers of firearms (“FFLs”) and those to whom they sold firearms. According to a Senate subcommittee investigation, “The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.” So, the Senate affirmed the Second Amendment in its application to the citizens of the United States (which unfortunately seems to be in question these days).
Additionally, the Senate found that “75 percent of ATF prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations.” Thus, a new law should be made to deal with the excessive power placed into the ATF’s hands that “would enhance vital protection of constitutional and civil liberties of those Americans who choose to exercise their Second Amendment right to keep and bear arms.” The NRA supported this idea and lobbied for the bill that would become known as the FOPA to pass.
Now that we know the backstory, let’s look at the actual bill itself. First, the FOPA mandated that the ATF could only inspect FFLs once per year instead of the unlimited inspections (that were eating into the FFLs ability to actually conduct business) that the GCA allowed. There is a caveat that the ATF may inspect a second time that year if there are multiple record-keeping violations upon the first inspection.
Second, the bill provides for the “Safe Passage” of firearms through states that may be considered illegal in that state. In other words, if you drive from North Carolina to Maine, you will be passing through some harsh gun control states: Maryland, New York, Connecticut, Rhode Island, Massachusetts, etc. As long as your firearms that would be under question in those states are not “readily accessible” (i.e. locked in a container not in the driver’s compartment), then you may drive through those states scot free, provided you do not remain in those states for an “excessive period of time.”
Third, the FOPA clarified some of the restrictions on firearms ownership (i.e. the questions you answer on the Form 4473 when you purchase a firearm at an FFL). I will not go into detail on this list, but the FOPA made definitions clearer than they were with the passage of the GCA in 1968.
So far, this bill seems like it was a good thing for gun ownership. However, there is still one major part of the bill to discuss.
In spite of the name of the act of the FOPA, there was one major detriment to gun owners in this bill: the ban on civilian ownership of newly manufactured machineguns. While the bill was in its final stages, it required compromise between the Republican and Democratic parties which unfortunately led to this addition, known as the “Hughes Amendment.” Though machine guns manufactured before May 1986 were “grandfathered in,” any new machine guns that have been made since have been available for purchase only to government, military, and law enforcement entities. Machine guns made before the FOPA went into effect are NFA items and owners must go through the proper process to obtain one. Due to the imposed scarcity of machine guns legal for civilian purchase (until we build a time machine to go back in time and make more machine guns), the price to purchase them are quite high – mostly in the five figure range. There are only about 175,000 machine guns available to be purchased by civilians (and most of them have probably been bought and sold many times over the years). Interestingly, there is no evidence to suggest that any of these have been used in the commission of a crime – lending more credence to the idea that machine guns are simply another form of firearm and not to be vilified as they have been.
As we can see, this bill did help to fix some of the issues created by the GCA, but due to compromises with those in support of more gun control, we did lose rights in the process. The Hughes Amendment is a clear example of the Second Amendment being violated: if the military, law enforcement, and other government agencies can have access to machine guns, should not the citizens who are supposed to comprise those entities be allowed the same? Is not the purpose of the Second Amendment to grant the citizen the same power of the government, to act as further “checks and balances” against an abusive, tyrannical government? It seems that the Founding Fathers would have agreed, given that the citizens used the exact same weapons their military oppressors did in the Revolutionary War.
Historical facts verified by: https://en.wikipedia.org/wiki/Firearm_Owners_Protection_Act