Restoring Your Constitution Right to Firearms (Guns)

Prohibition & Firearms Act

The first major federal firearms law passed in the 20th century was the National Firearms Act (NFA) of 1934. It was passed after Prohibition-era gangsterism peaked with the Saint Valentine's Day massacre of 1929. The era was famous for criminal use of firearms such as the Thompson submachine gun (Tommy gun) and sawed-off shotgun. Under the NFA, machine guns, short-barreled rifles and shotguns, and other weapons fall under the regulation and jurisdiction of the Bureau of Alcohol, Tobacco and Firearms (ATF).

Gun Control Act of 1968

The Gun Control Act of 1968 (GCA) was passed after the assassinations of President John F. Kennedy, Senator Robert Kennedy, and African-American activists Malcolm X and Martin Luther King, Jr. in the 1960s. The GCA focuses on regulating interstate commerce in firearms by generally prohibiting interstate firearms transfers except among licensed manufacturers, dealers, and importers. It also prohibits selling firearms to certain categories of individuals defined as "prohibited persons."

NICS Background Check

Since the passage of the Brady Handgun Violence Prevention Act of 1993, those who purchase firearms from licensed dealers in the United States must submit to a background check to determine if they are eligible to buy and possess a gun.

Licensed dealers must check each person who tries to buy a firearm through the FBI's National Instant Criminal Background Check System (NICS).

If the buyer qualifies, the dealer then requests a NICS check. NICS has three business days to approve or deny the sale. If the three days pass without a NICS determination, then the dealer can process the sale of the firearm (depending on local laws) or wait until NICS responds.

Slightly more than 1 percent of firearm transfers are denied by the NICS system.

Prohibited Criteria for Denial

The FBI publishes category-by-category breakdowns of how many gun sales it has denied under each of criteria. The list below show which prohibitions have blocked the most sales since NICS’s launch in November 1998.

If you have been denied or prohibited from purchasing a firearm, contact Wexford Law to discuss your gun rights. Free consultation.

1) Convicted of a crime punishable by more than one year or a misdemeanor punishable by more than two years.

Prospective buyers who want to purchase firearms must first provide the dealer with photo identification and a completed Firearms Transaction Record, or Form 4473. If the buyer answers yes to any of the questions on Form 4473, the dealer is required to deny the sale. It is a felony, punishable by up to five years in prison, to lie when completing the form.

2) Fugitive from Justice

A surprising number of people on the run from open arrest warrants walk into gun stores and try to buy firearms. When a purchaser is flagged as a fugitive, the FBI contacts the agency that issued the warrant to see if it’s still open and if the person has fled the state that issued the warrant. The examiner then alerts those authorities to the address of the Federal Firearms License holder that processed the check. In a few states with proactive policies, this sometimes results in an arrest in the gun store.

3) Convicted of Misdemeanor Domestic Violence

This red flag is strictly limited to misdemeanor convictions for abusing a spouse, live-in significant other, or child. A misdemeanor for violence against a sibling, parent, or an intimate partner who neither shares a child with nor lives with the person charged would not disqualify a purchaser — an aspect of the law sometimes referred to as “the boyfriend loophole.”

4) Unlawful User/Addicted to a Controlled Substance

Despite the fact that the National Institutes of Health estimates almost 25 million Americans used an illicit drug in the past month, the NICS Indices – the FBI database set aside for records of persons banned from guns – only has about 24,000 active drug-related records.

5) State Prohibitor

Many states have their own additional categories of prohibited purchasers that they report to the NICS. California for example,prohibit people convicted of offenses like misdemeanor assault that fall short of the federal requirements for denying a gun sale. Many times a modification of the conviction may be helpful.

6) Restraining Order Prohibitor

Restraining orders remain in NICS as long they are in effect. Sometimes the orders are permanent, but they can also be temporary, in contrast to convictions for crimes which are permanently prohibiting. Gun restrictions on those who have received such orders are believed to be among the most effective reducers of domestic homicide.

7) Under Indictment

Anyone who is under indictment for a crime carrying a potential year-long jail sentence — but not yet convicted — is barred from owning a gun while the case is being resolved. These are among the most difficult categories of prohibitions to confirm, since the disposition of charges may not be automatically submitteds to the databases that a gun background check scans.

8) Adjudicated Mental Health

Disqualifying mental health records form the second-largest body of records held by the NICS Indices. Simply receiving a diagnosis of a severe mental illness like schizophrenia is not enough to bar an American from gun ownership — a judge must legally declare a person mentally unfit to own a gun or involuntarily commit him or her to a mental institution. A simple 5150 hold is not enough to disqualify an individual from gun ownership.

9) Illegal/Unlawful Alien

The NICS Indices hold more records on illegal/unlawful aliens than any other type of prohibited purchaser — more than 7 million. But few unlawful immigrants try to buy guns from licensed dealers and wind up raising flags, especially compared to would-be buyers with criminal pasts.

10) Federally Denied Persons File

This is a catch-all category that includes various people whom the FBI deems ineligible to possess a firearm even though the relevant state records may not be entered into NICS or the National Crime Information Center. Also included in the Federally Denied Persons File are people who may not possess guns as a result of a deferred judgement.

11) Dishonorable Discharge

Violations of military conduct are handled by the armed services’ internal judicial system, which does not distinguish between the felonies and misdemeanors that become the basis for gun bans for civilians. To account for the military personnel kicked out of the services under the most serious circumstances — a dishonorable discharge — the gun background check system includes these records as their own category.

12) Renounced U.S. Citizenship

According to the State Department, anyone who formally renounces American citizenship also “must renounce all the rights and privileges associated with such citizenships.” That includes Second Amendment rights. Denials under this category are exceedingly rare.

New California Residents

Pursuant to Penal Code sections 17000 and 27560, any person who moves into California with a firearm is considered a "Personal Firearm Importer" and is required by California law to do one of the following within 60 days:

• • Complete and submit a New Resident Report of Firearm Ownership (BOF 4010A) along with $19.00 to the California Department of Justice, Bureau of Firearms;
  
• • Sell or transfer the firearm to a California licensed firearms dealer or to another individual using a California licensed firearms dealer to conduct the transaction; or
  
• • Sell or transfer the firearm to a California police or sheriff's department. Persons choosing this option should contact the law enforcement agency for instructions prior to transporting the firearm to the agency.

TRANSPORTING HANDGUNS Any person transporting handguns into California is required under California law to transport those handguns unloaded and in a locked container other than the glove compartment or utility compartment of a vehicle.

ASSAULT WEAPONS Please be advised that it is generally unlawful to bring assault weapons into California. Additionally, machine guns and ammunition feeding devices with the capacity to accept greater than 10 rounds may not be transported into California.

5150 Hold versus a 5150 Admission

When an individual is placed on a 72 hour hold on grounds of danger to self or others (but not grounds of grave disability) and admitted to a treatment facility, he or she is hereafter prohibited from purchasing or possessing firearms for a period of five-years. California case law has established that the hold does not have meaning in terms of firearm possession unless the patient is admitted.

Pursuant to 18 U.S.C. § 922(d), it is unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person “has been adjudicated as a mental defective or has been committed to any mental institution.” As interpreted by the U.S. Bureau of Alcohol, Tobacco, and Firearms, involuntary detention in a psychiatric facility “for observation" (as in California’s 72-hour hold) is specifically excluded so if one is not admitted to the hospital then the federal law does not apply.

California firearm laws relating to mental health treatment (5150, et al) are located in Welfare and Institutions Code, sections 8100-8108. The subsection of the law with the broadest application is 8103(f)(1). The Journal of Psychiatric Practices summarizes this provision succinctly:
Added in 1990, this provision provides that, when an individual is placed on a 72-hour hold on grounds of danger to self or others (but not grounds of grave disability) and admitted to a treatment facility, he or she is thereafter prohibited from purchasing or possessing firearms for a period of 5-years. As described in Welfare and Institutions Code section 5150 et seq., the process of involuntary inpatient psychiatric treatment in California begins with a 72-hour hold. The hold is initiated when, based on a face-to-face evaluation, an authorized evaluator (a psychiatrist, a social worker, or a peace officer) determines that there is probable cause to believe that, as a result of a mental disorder, the individual poses a danger to self or others or is gravely disabled. Once initiated, the 72-hour hold is not subject to any process of appeal or review, except when the hold has been placed “in the field” (e.g. by a peace officer). In the latter case, the receiving clinician at the treatment facility decides whether to continue the hold and admit the patient, or terminate the hold and release the patient (sections 5151 and 5152). California case law has established that the hold does not have meaning in terms of firearm possession unless the patient is admitted.

(Simpson, Joseph R. (2007). Issues Related to Possession of Firearms by Individuals with Mental Illness: An Overview Using California as an Example. Law and Psychiatry, Vol. 13 (No.2), pp. 1-2.)

Ca. Welf. & Inst. Code § 8100.
A person shall not have in his or her possession or under his or her custody or control, or purchase or receive, or attempt to purchase or receive, any firearms whatsoever or any other deadly weapon if … he or she has been admitted to a facility and is receiving inpatient treatment [for a mental disorder], is a danger to self or others, even though the patient has consented to that treatment.

Ca. Welf. & Inst. Code § 8103.
No person who has been adjudicated by a court of any state to be a danger to others as a result of a mental disorder or mental illness shall purchase or receive, or attempt to purchase or receive, or have in his or her possession, custody, or control a firearm or any other deadly weapon unless there has been issued to the person a certificate by the court of adjudication upon release from treatment or at a later date stating that the person may possess a firearm or any other deadly weapon without endangering others, and the person has not, subsequent to the issuance of the certificate, again bee adjudicated by a court to be a danger to others as a result of a mental disorder or mental illness.

Ammunition Purchase Authorization Program

Effective July 1, 2019, persons seeking to purchase or transfer ammunition will have to undergo an eligibility check, and be approved by the State of California, prior to the sale or transfer, except as otherwise specified. Departmental approval shall occur electronically through a licensed ammunition vendor. Pursuant to Penal Code sections 30352 and 30370, the Department will determine that a person is eligible to purchase or transfer ammunition if they meet one of the following requirements:

• • The person has a current Certificate of Eligibility issued by the Department
  
• • The person’s information matches an entry in the Automated Firearms System (name, date of birth, current address, and driver license or other government identification) and does not fall within a class of persons who are prohibited from owning or possessing ammunition. The Department shall make this determination by cross-referencing the Prohibited Armed Persons file (also known as the Armed and Prohibited Persons System).
  
• • The person is not prohibited from purchasing or possessing ammunition. The Department determines eligibility based on a comprehensive review of its records (similar to a firearm eligibility check).

Please note: this eligibility check requires a manual review of records by a Department analyst. As such, the Department may take longer to respond with a determination as to eligibility. Response times may take several days.