Within the Heller/​McDonald/​Caetano/​NYSRPA framework, Congress now has a historic opportunity to begin restoring Americans’ right to keep and bear arms. To be sure, Cato Institute scholars have often opposed congressional legislation in the gun control arena on the ground that most federal regulations of firearms are not authorized under the Interstate Commerce Clause. That clause was intended to ensure the free flow of trade across state lines, not to sanction a federal police power. Regrettably, the battle to limit the interstate commerce power to actual interstate commerce appears to have been lost in the courts, which have expanded the scope of the Commerce Clause to cover regulation of nearly anything and everything. Yet Congress can still act to repeal or amend laws that offend the Second Amendment.

Indeed, even if a federal gun law were constitutionally authorized, that does not mean it would be constitutionally mandated. Accordingly, included in what we propose here are recommendations to repeal or amend statutes that are misguided on public policy grounds and that may also be infringements of the Second Amendment.

No jurisdiction in the United States worked as doggedly to disarm citizens as did the District of Columbia, our nation’s capital and, in the 1990s, the “murder capital” of America. Until the Heller decision, no handgun could be registered in DC. Even those handguns grandfathered in before the District’s 1976 ban could not be carried from room to room in the home without a license, which was never granted. Happily, the Supreme Court ruled that those provisions violate the personal right to keep and bear arms that is secured by the Second Amendment.

Today, DC still has some of the most regressive gun laws in the country. All firearms must be registered, and the registration process is onerous. The District also has a constitutionally dubious ban on magazines holding more than 10 rounds, which constitute about half the magazines in the United States. The District has one of the most sweeping bans on long guns in the United States, based on the false claim that many common and traditional rifles are “assault weapons.” The common-use test articulated in Heller and McDonald casts doubt on the constitutionality of laws prohibiting these arms.

Under Article I, Section 8, of the Constitution, Congress can and should exercise its plenary power over all legislative matters in the nation’s capital and compel the city to abide by the principles established by the Supreme Court. Home rule, arising out of authority delegated by Congress to the DC government, is not a license to violate the Constitution.

To begin with, Congress should enact legislation to alter how DC processes gun registrations. A streamlined registration process would be based on the congressionally created National Instant Criminal Background Check System, which is mandatory for all retail firearm sales in the United States. The system uses computerized databases to complete a background check within a few hours in most cases.

Congress should also repeal DC’s magazine restriction and relax the constraints on starting and maintaining gun stores. Gun stores can operate only in C‑2 zoned areas, and they cannot be within 300 feet of “(1) a residence or Special Purpose District; or (2) a church or other place of worship, public or private school, public library or playground,” which leaves very few available spaces. Because federal law prohibits interstate handgun sales, and because the DC government has made it nearly impossible for any gun store to operate in the District, a DC resident who wishes to keep a handgun at home must purchase the handgun in another state, such as Virginia, and then pay for the store to ship the handgun to one of the two Federal Firearms Licensees (FFL) in the District. Neither of the District’s two FFLs operates a retail gun store, and one is open only by appointment. They primarily act as go-betweens for those who want to transfer guns to the District, and they charge about $120 for the service. After passing a background check and receiving the handgun from the District FFL, a DC resident must then register the firearm with the District’s Metropolitan Police Department and pay more fees for another background check.

Finally, although courts struck down the District’s good-reason requirement for receiving a permit to carry a handgun—which required applicants to show a good reason, such as a personal threat, why they should carry a gun—Congress should streamline DC’s carry permitting process, which can cost over $500. Congress should make the process simpler, less expensive, and more like the carry license rules in the states. Like the states, the District has a legitimate interest in requiring applicants to understand the laws about deadly force and about places where licensed carry is not allowed, but state experience shows that the District’s process is far more cumbersome than needed.

Under federal law, a person who is not a licensed dealer—that is, a Federal Firearms Licensee—may acquire a handgun only within that person’s own state. The acquirer may, however, purchase the handgun from an out-of-state FFL, providing an arrangement is made for the handgun to be shipped to an FFL in the purchaser’s state of residence. There, the purchaser can obtain the handgun after complying with all necessary background checks. That rule does not apply to rifles and shotguns. A buyer may acquire a rifle or shotgun, in person, at a licensee’s premises in any state, provided the sale complies with laws applicable in both the state of sale and the state where the purchaser resides. So a person who resides in New Mexico can buy a shotgun from a licensed firearms dealer in South Dakota (who must, by federal law, get prior approval for the sale from the National Instant Criminal Background Check System). The New Mexican can then take the gun home to New Mexico, in compliance with New Mexico law.

No persuasive reason exists for why the framework applicable to rifles and shotguns should not be equally applicable to handguns. No relevant state laws would be violated, and all background checks would be completed. In short, Congress should repeal the federal restrictions on interstate handgun sales.

The unique situation in Washington, DC, compels timely action. Because of the District’s 1976 ban and its present restrictive zoning, there are currently no stores within the city where a handgun can be obtained, and there are only two FFLs willing to take delivery from out-of-city parties, on a limited basis. Thus, it is difficult for someone who lives in DC to acquire a handgun either inside or outside the city. Residents of the city who do not own a handgun are seriously impaired from exercising the right, guaranteed by the Constitution and affirmed by the Supreme Court, to acquire handguns for lawful purposes, including self-defense.

Suppressors, which are sometimes inaccurately called silencers, are currently covered by the National Firearms Act of 1934 (NFA), which is the same law that regulates possession of fully automatic machine guns. Under the NFA, to legally purchase a suppressor, an applicant must undergo a lengthy registration process and background check with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and pay a $200 tax. Next, purchasers must also undergo the same background check as those purchasing an ordinary gun. In short, the legal requirements for acquiring a suppressor are the same as those for acquiring an ordinary gun and for acquiring a machine gun.

America’s heightened restrictions on suppressors are bizarre and anomalous, even when compared internationally. Although American gun laws are less onerous than those of many other nations, suppressors are far less restricted in nations such as Finland, France, Germany, Italy, and the United Kingdom (the last of which is known for having some of the strictest gun laws in the world. Although getting a gun in those countries is more difficult than in America, those who can legally have a firearm can always have a suppressor—often one that comes preattached to the gun.

Except for the lowest-powered firearms, such as .22 caliber, suppressors do not really make firearms quiet. A typical silencer reduces the volume of a gunshot by about 30 decibels. A shot from a typical 9‑millimeter handgun is about 160 decibels, which is approximately the same as a jet taking off. With a silencer, at 130 decibels, the gun would be as loud as a jackhammer. Reducing gunshot noise by 30 decibels mitigates the damage loud gunshots can cause—especially repeated shots in a day of target practice at a range. Physical ear protection, such as earplugs or earmuffs, is helpful, but it is even better when augmented by a suppressor.

Suppressors have numerous benefits in addition to hearing protection. They reduce the loud noises heard by people who live near a range. They help prevent beginning shooters from developing a habit of flinching when they press the trigger. They also substantially reduce perceived recoil so that the user can fire the gun more accurately and safely.

As for criminals, lowering a gunshot to the sound level of a jackhammer will not produce a wave of silent shootings—as the experience of the aforementioned nations confirms.

The inclusion of suppressors in the NFA was a result of ignorance, misinformation, and, yes, even racism. In a 1913 book called Our Vanishing Wildlife: Its Extermination and Preservation, William T. Hornaday, director of the Bronx Zoo, warned that overhunting would soon wipe out many types of American wildlife. Modern hunters, he alleged, were using advanced guns that were more accurate and had a longer range. They were also using suppressors, supposedly so their shots wouldn’t scare away the game.

But the real problem for Hornaday was that the lower classes, particularly immigrants from southern Europe, were lawfully hunting. “The slaughter of song, insectivorous and all other birds by Italians and other aliens from southern Europe has become a scourge to the bird life of this country,” he wrote. One solution was to ban suppressors, and some states did so. In 1934, silencers were included in the NFA with little discussion. It’s time for Congress to end this irrational regulation. Removing suppressors from the National Firearms Act would still leave them covered by the Gun Control Act of 1968, so all suppressor buyers would still go through the same background check required for the purchase of handguns or long guns.

Short-barreled rifles (SBRs) and short-barreled shotguns—with barrels of less than 16 inches and 18 inches, respectively—are also covered by the NFA, with the same restrictions as suppressors and machine guns. Their inclusion is also to some extent a historical accident. Because the original draft of the NFA would have covered handguns, including short-barreled rifles and short-barreled shotguns in the bill was thought necessary to prevent circumvention of the handgun regulations with small rifles. Handguns were removed from the final version of the bill to get the National Rifle Association’s support, leaving in place the strange regulation of short-barreled rifles and short-barreled shotguns. Oddly, it is fully legal to own a pistol with a 16-inch barrel.

The presence of SBRs in the NFA creates much confusion with defining a “rifle,” and the ATF has changed the rules over the years. Braces that attach to the back of a pistol allow easier firing with one hand, and they are especially useful to handicapped shooters. In 2015, the ATF issued a rule that said firing a pistol equipped with a brace from the shoulder—somewhat like firing a rifle—would instantaneously convert the weapon to an SBR and turn the shooter into a felon. In 2017, the bureau tried to clarify this rule by saying that a shoulder-fired braced pistol would not be considered an SBR if the shoulder firing was only “incidental, sporadic, or situational.” Now the Biden administration is in the process of finalizing a rule that will retroactively turn millions of brace owners into felons, because a brace supposedly turns a handgun into a short-barreled rifle.

Because violating the NFA can carry a 10-year prison sentence and up to a $250,000 fine, the ATF should not be able to create felonies so easily. The best fix to this concerning situation is to simply remove short-barreled rifles and short-barreled shotguns from the NFA.

Federal law, under 18 U.S.C. § 922(g), currently lists a wide variety of people who are prohibited from possessing a firearm even for a moment. Some of the prohibitions are sensible (violent felons, fugitives from justice), but some are not. Of particular concern are prohibitions affecting people who are not violent. As the Supreme Court held in Heller, the right to keep and bear arms is fundamental, and Congress should be wary of taking away that right from entire classes of nonviolent people.

As of March 2022, adults can now legally purchase and consume marijuana in 18 states and the District of Columbia. Nevertheless, federal law still classifies marijuana as a Schedule I drug, thus making marijuana simultaneously legal under those states’ laws and federally illegal. That puts marijuana users in those states in a difficult spot when it comes to purchasing a gun. The federal form they must fill out asks whether they are a user of marijuana. If they say yes, they will be unable to purchase a gun; if they lie and say no, they will be committing a felony punishable by up to five years in prison.

Medical marijuana users are also prohibited from purchasing a gun, as federal law still doesn’t recognize the legitimate medical uses for the drug. Nineteen states that do not allow recreational marijuana do allow medicinal marijuana. Becoming an authorized medicinal user often includes registering with a state database or permitting system. That makes the act of lying on the federal form when purchasing a gun even more hazardous.

At the very least, Congress should remove from the list of prohibited persons marijuana users in those states that have legalized either medicinal or recreational use. More broadly, controlled substance users should not automatically have their Second Amendment rights taken from them. Drug users with no history of dangerous behavior still have a right to self-defense. State laws can appropriately address the issue, as they do with alcohol; for example, a person’s demonstration of dangerous lack of self-control when under the influence (e.g., impaired driving convictions) can lead to revocation of a handgun carry permit.

In recent years, calls for universal background checks on all firearm purchases have received a lot of attention. Congress should be aware that expanding background checks will be unlikely to affect the gun crime rate, and many bills that claim to be about universal background checks for gun sales are laden with poorly drafted rules that can turn nearly every gun owner into a felon.

Federal law currently requires all persons engaged in the business of selling firearms to have a Federal Firearms License. Among the many regulations on license holders is the requirement that they contact the FBI or a state equivalent agency for a background check on every person to whom they transfer a firearm. No background check is required when a sale or loan occurs between two private individuals. In other words, you can sell your hunting rifle to your neighbor or let him borrow it for a weekend without doing a background check on him.

There is some dispute about how many guns are transferred via this so-called private sale loophole. Many gun control advocates have inaccurately claimed that the number is 40 percent. That claim, which relies on data that are two decades old and predates the inauguration of our current background check system in 1998, received “three Pinocchios” from the fact checkers at the Washington Post. More accurate studies have found non-background-check gun acquisitions to be around 20 percent of gun sales—and many of those are gifts between family members.

Surveys of criminals have long indicated that their guns are rarely obtained through legal avenues. Instead, the black market is the overwhelming source for guns used in crimes. That makes sense: criminals are unlikely to submit to a background check, which they are likely to fail. Therefore, most criminals acquire guns in unlawful ways.

Nevertheless, it is also overreaching to say that background checks could never help keep guns away from any criminal. There will always be marginal criminals who are weakly motivated to acquire a gun. But the vast majority can either access the black market or find a surrogate to buy the gun for them. This method is called a “straw purchase” and has been a federal felony since 1986. The ATF and the trade association for the firearms industry, the National Shooting Sports Foundation, have a joint program to educate firearm retailers about detecting straw purchasers.

Before any talk of expanding the federal background check system, Congress should first fix the system so it stops denying lawful purchasers. For example, would-be buyers are sometimes denied a purchase because of records that show an arrest but not the disposition of a case, or because the buyer is confused with a criminal who has the same name. Presently, in such cases, the purchaser’s only recourse is to ask the state agency to correct the record, and such requests are often ignored.

The federal background check law should be changed so that when the background check agency (the FBI or a state equivalent agency) denies a purchase on the basis of inaccurate or incomplete records in another jurisdiction, the background check agency should contact the other jurisdiction directly. A jurisdiction with defective records is more likely to respond to a request from the FBI than from an ordinary citizen.

The unstated but obvious purpose of so-called universal background checks is universal gun registration. Indeed, as Greg Ridgeway, former acting director of the National Institute of Justice during the Obama administration, acknowledged in a 2013 memorandum, requiring background checks for gun sales by non-FFLs would be unenforceable without universal gun registration. Such a registry would be contrary to the Firearm Owners’ Protection Act and other provisions of federal law.

Further, universal background check bills at the federal and state level are Trojan horses that often criminalize gun owners’ ordinary activities that have nothing to do with firearm sales. At minimum, any proposed federal bill should be heavily scrutinized to ensure that it doesn’t produce the absurd consequences of state universal background check laws.

In Washington State—which has enacted one version—the normal, everyday practices of gun owners, safety instructors, hunters, and even museums have been turned into felonies. The state’s background check law exempts some types of temporary transfers, but many harmless firearm transfers—such as lending a rifle to a friend to go to a shooting range—are prohibited without first processing the transfer through an FFL. That is because the state of Washington defines a transfer as “the intended delivery of a firearm to another person without consideration of payment or promise of payment including, but not limited to, gifts and loans.” The state law applies to permanent, temporary, and even momentary transfers.

Running a background check is no simple matter. The recipient of a firearm in an FFL transfer must fill out federal paperwork consisting of dozens of questions, including offensive and irrelevant ones, such as the transferee’s racial or ethnic background. A knowingly false answer is a federal crime punishable by up to five years in prison. Filling out the form in a manner not approved by the ATF (such as writing one’s state of residence as “Wash.” rather than “WA”) will get the store in trouble. So store clerks understandably spend a lot of time making sure that customers fill out the paperwork correctly. Of course, the store charges a fee for the service, since time spent processing the loan is time not spent selling the store’s own firearms. On top of the store’s fee, the state government may collect its own fee for conducting the background check.

Imposing this process on firearm loans is pointless and bureaucratic. It also makes firearm loans impossible except during hours that a nearby gun store is open and is willing to process the transaction. Many stores refuse to do so, since they want their employees to spend time selling their own inventory, rather than risking liability for paperwork errors involving other people’s guns.

The absurdly overbroad controls on loans criminalize most gun owners for innocent activity. They are particularly problematic for gun safety instructors, who pass guns back and forth between themselves and students while teaching safety courses. They are also problematic for people in rural areas who may live hours away from any gun store, and even for museums that may wish to display guns but cannot obtain, move, or clean them without submitting to a background check.

In 2013, Colorado amended its universal background check bill to exempt all temporary transfers of less than 72 hours. That made the law more sensible but did not solve all the problems. Someone who wishes to store his gun at his cousin’s house while he goes on vacation for a month would need a background check on his cousin and then another on himself when the gun is returned. Every single firearm would require its own multipage paperwork, twice.

Some think that people would never be prosecuted for these minor infractions, even if they are technically illegal. But relying on the restraint of federal prosecutors is never a good idea. Gun owners are constantly prosecuted for similar, or even smaller, transgressions. For example, in 2002, John Mooney seized a firearm from his ex-wife when she, while intoxicated, pointed it at his head. He then walked seven blocks to the bar where he worked to hand the weapon over to the police. Because Mooney was a convicted felon, however, he was charged with the unlawful possession of a firearm.

Even if a universal background check law were a good idea, it should apply only to sales and permanent dispositions; loans and returns should be exempted. And every effort should be made to reduce the burden on gun buyers—including fees, paperwork, and trips to gun stores.

Furthermore, law enforcement officers and those who already hold concealed carry permits issued by their state should not have to undergo additional background checks when they purchase a gun from a private seller. Concealed carry permit holders typically have submitted to biometric identity verification, background checks, and safety training. Making them go to a gun store for a lower-quality background check when they borrow a gun, or buy one from a friend, is duplicative and unnecessary.

Background checks can be accomplished in many ways without requiring a seller and a buyer to find a gun store to carry one out. Private citizens should be able to accomplish any required background check by contacting the appropriate state agency by phone or the internet. Any universal background check bill that really aims for background checks on gun sales—rather than the mass criminalization of innocent gun owners—will contain all the exceptions above. And finally, it should be noted that proposals for universal background checks distract Congress from the more meaningful debate about policy changes that could significantly lower gun violence, such as ending the war on drugs and improving rehabilitation and mental health treatment for prisoners.

Abusive practices by the ATF led Congress to enact the Firearms Owners’ Protection Act (FOPA) in 1986, which, among other things, prohibited the creation of a federal gun registry. Yet there are backdoor ways of creating a gun registry through the records the ATF requires FFLs to maintain. Over the years, appropriations riders have prevented the ATF from using gun dealer records to compile a computerized national registration database of gun owners. The ATF has claimed that a computerized database of every sale ever conducted by every retired FFL is not a national gun registry in violation of FOPA. (FFLs who retire must send all their records to the ATF.) Other appropriations riders protect citizen privacy by preventing the ATF from disclosing gun-tracing data (e.g., the name and address of a person whose gun is stolen) to the general public. The data can still be disclosed in connection with a bona fide law enforcement investigation. Those disclosure rules should be permanently codified as well.

Federal law has long required licenses for persons who commercially manufacture firearms and for persons who engage in the business of gunsmithing. The licenses are issued by the ATF. In July 2016, the Obama administration issued guidance requiring many gunsmiths to obtain a separate license, costing $2,500, from the Department of State’s Directorate of Defense Trade Controls. Supposedly, these licenses are necessary for compliance with the Arms Export Control Act, but the administration required them from people who never export anything. The Trump administration rescinded that requirement in 2020, but the Biden administration could change it back. The ATF should not be allowed to rewrite our gun laws so easily, especially when violations can result in severe criminal penalties. Congress has the ability to clear this up, and at the minimum it should clarify that gunsmiths who don’t export anything don’t need an export license.

The federal prohibitions on firearm possession are extremely broad and ex post facto. The Gun Control Act of 1968 banned gun possession by anyone convicted of a felony or dishonorably discharged from the military. Thus, a person who pleaded guilty to a nonviolent tax offense in 1959 is barred for life from possessing a gun. The 1994 ban on gun possession by someone guilty of a domestic violence misdemeanor is also ex post facto—applying to people who might have pleaded guilty decades earlier, even if they had done nothing wrong but could not afford a lawyer and found it simpler to resolve the case for a $50 fine.

To provide a safety valve for the expansive bans, the Gun Control Act allows relief from disability. People who can prove they have a long record of law-abiding behavior and good conduct can petition the ATF for restoration of their Second Amendment rights. Granting a petition is entirely at the discretion of the ATF. Yet since 1992, annual appropriations riders have forbidden the ATF from processing petitions for restoration of rights. Those riders should end, and the ATF should be directed to set up a process in which such petitions are funded by a fee charged to the petitioner.

Federal law also bans gun possession by people subject to temporary restraining orders. The law should be clarified so that it applies only to cases where a judge has made a particularized finding that a person has threatened, or constitutes a threat to, another person. Routine orders directing one or both parties in a divorce to stay away from and not harm each other should not be the basis for deprivation of a constitutional right. The change can be effectuated by changing the word “or” to “and” in 18 U.S. Code § 922(d)(8)(B)(i) and in (g)(8)(C)(i).

Many have called for the federal government to prohibit those on the so-called no-fly list from purchasing firearms. This practice not only should be resisted, but should be seen as setting a dangerous precedent for the government’s stripping citizens of constitutionally enumerated rights by secretly placing them on government-maintained lists.

The no-fly list has been called a Kafkaesque bureaucracy by the American Civil Liberties Union. The list is secretive, unaccountable, and discriminatory. Someone can be listed based on suspicion or hunch; according to the government’s guidelines for adding people to the list, “irrefutable evidence or concrete facts are not necessary.” In 2014, a federal district court ruled that it violates due process to doom individuals to indefinite placement on the list without telling them why they’re on it or giving them an opportunity to challenge their inclusion.

According to the Associated Press, more than 1.5 million names—most of them not U.S. citizens or residents—have been added to the list, and subsequent reporting found that half of those were marked as having “no recognized terrorist group association.”

Although the proposals in Congress are labeled as “no-fly, no-buy,” they go much further than simply stopping future gun purchases. Anyone secretly put on the no-fly list would become a prohibited person, meaning that the person’s possession or temporary use of a firearm (e.g., borrowing a gun at a target range) would be a federal felony. Yet because the no-fly list is secret, such persons would never know that their firearms possession is illegal—until they are arrested.

On top of these concerns, a no-fly, no-buy law would have no effect on mass shootings or terrorist attacks. Even if would-be terrorists appeared on the list, terrorists and other mass shooters are highly motivated criminals who are not deterred by being told no at a gun store because their name appears on a list. Such laws are political theater at its finest—scoring solid points on rhetoric and doing nothing to solve the problem—while setting a dangerous precedent for eliminating civil liberties through government-maintained secret lists.

The Second Amendment secures “the right of the people” by guaranteeing the right of each person. Over the years, our elected representatives have adopted a dangerously court-centric view of the Constitution: a view that decisions about constitutionality are exclusively left to the judiciary. But members of Congress also swear an oath to uphold the Constitution. Congress can make good on that oath by legislating to restore our right to keep and bear arms.

Burrus, Trevor. “Gun Policy Is Hard.” Forbes, June 27, 2016.

———. “Let’s Commit to Lowering Gun Deaths by 50 Percent in Ten Years, Will the Parkland Students’ Proposals Help? — A Report Card.” Cato at Liberty (blog), March 27, 2018.

Johnson, Nicholas. Negroes and the Gun: The Black Tradition of Arms. New York: Prometheus, 2014.

Kleck, Gary. Point Blank: Guns and Violence in America. London and New York: Routledge, 2005.

Kopel, David B. The Truth about Gun Control. New York: Encounter Books, 2013.