“Law Office History” and The Firearms Owners’ Protection Act of 1986

In light of the upcoming thirtieth anniversary of the 1986 Firearms Owners’ Protection Act, the Editors reconnected with David T. Hardy, who penned a comprehensive overview of the legislation for our pages in the 17th Volume (David T. Hardy, The Firearms Owners’ Protection Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585 (1987)). Having been involved in the extensive negotiations between the NRA and Treasury Department that informed much of the law’s major provisions, Mr. Hardy was uniquely situated to provide an in-depth legislative history of the bill and gauge its implications. To read Mr. Hardy’s FOPA article, please click here.

—The Editors

 _________________________________________________________________________________________________

     Nearly thirty years after its enactment, the Firearms Owners’ Protection Act of 1986 (FOPA) remains the most extensive redraft of the Federal firearms laws. It rewrote the Gun Control Act of 1968, changing its scienter requirements, narrowing the requirement to obtain a dealer’s license, restricting the power to seize and forfeit firearms, together with a host of other changes. FOPA effectively overruled six Supreme Court rulings and approximately one-third of the lower court rulings construing the Gun Control Act.

FOPA’s breadth was matched by the complexity of its enactment, a process that spanned seven years and culminated in a bill with no Senate report and whose House report often contradicted the statutory text. (The bill described in the Judiciary Committee report was a rival to FOPA: on the House floor it was amended by deleting its text and substituting that of FOPA). One section of FOPA had to be amended before its effective date, and then the amendment itself had to be amended.

This article will begin with a history of Federal firearm law prior to FOPA, with emphasis upon the problems that FOPA was meant to address. It will then turn to a comprehensive legislative history of FOPA, showing the changes that occurred in the legislation over its seven-year history. Finally, it will examine the changes that FOPA made to previous law, and interpret its provisions in light of its history.

When this article appeared in Cumberland Law Review, less than a year after FOPA was signed into law, it was the first comprehensive coverage of FOPA, its history, and its meaning. Three decades later, it remains FOPA’s most comprehensive coverage, and has been cited in a Supreme Court dissent,[i] by twenty rulings from ten U.S. Circuit Courts of Appeals,[ii] and by many other authorities.[iii]

—David T. Hardy

 

            Hardy’s forthcoming article for the Cumberland Law Review will appear in the Winter edition of Volume 46. This article is an examination on the use of “law office history” and its ability to manipulate historical data. In particular, this examination will focus on the use of “law office history” in relation to the recent controversy surrounding the Supreme Court’s recognition of an individual’s right to keep and bear arms.

[i] See Staples v. United States, 511 U.S. 610, 626 n.4 (1994) (Stevens, J., dissenting).

[ii] See United States v. Andrade, 135 F.3d. 104, 109 n. 3 (1st Cir. 1998); Torraco v. Port Authority, 615 F.3d 129, 143 (2d Cir. 2010); Ass’n of N.J. Rifle and Pistol Clubs v. Port Authority, 730 F.3d 252, 256-57 (3rd Cir. 2013); United States v. Hayden, 64 F.3d 126, 129 (3d Cir. 1995); United States. v. Langley, 62 F.3d 602, 605 (4th Cir. 1995) (en banc); United States v. Golding, 332 F.3d 838, 841 (5th Cir. 2003); United States. v. Kirk, 70 F.3d 791, 798 n.1 (5th Cir. 1995), en banc, 105 F.3d 997, 1006-07 (1997); United States. v. McGill, 74 F.3d 64, 67 (5th Cir. 1996); United States v. Knutson, 113 F.3d 27, 30 (5th Cir. 1997): United States. v. Rodriguez, 132 F.2d 208,211 (5th Cir. 1997); United States. v. Golding, 332 F.2d 838, 841 N. 12 (5th Cir. 2003); United States. v. Cassidy, 899 F.2d 543, 546 n.8 (6th Cir. 1990); United States. v. Choice, 201 F.3d 837, 841 n. 5 (6th Cir. 2000); United States v. Kenney, 91 F.3d 884, 886 (7th Cir. 1996); United States v. Farrell, 69 F.3d 891, 893 (8th Cir. 1995); United States. v. Sherbondy, 865 F.2d 996, 1002 (9th Cir. 1988); United States v. Marchant, 55 F.3d 509, 514 (10th Cir. 1995); United States v. Wilkes, 58 F.3d 1518, 1519 (10th Cir. 1995); United States v. Haney, 264 F.3d 1161, 1169 (10th Cir. 2001); Lomont v. O’Neill, 285 F.3d 9, 11 (D.C.Cir. 2002).

[iii] See, e.g., 2A Kevin O’Maley, et al., Federal Jury Practice and Instructions §39.09 at 36 (5th Ed. 2000); 78 Wisc. Opinions of the Atty’y Gen. 22 (1989); In re Two Seized Firearms, 127 N.J. 84, 602 A.2d 728, 731 (1992.

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