How the 1986 Firearm Owners Protection Act passed with a machine gun ban

The law that did more for American gun owners in the twentieth century than any other is also the law that froze the supply of new civilian machine guns at whatever was already on the federal registry. Same statute. Same President's signature. Same day. So much for the notion that gun-rights law only ever moves in one direction.

That is the story of the Firearm Owners Protection Act of 1986, Public Law 99-308, and it is one of the best lessons in how Congress actually works. A reform that took years to build, that fixed real abuses, that moved through the Senate and the House on the strength of a grassroots movement, got a rider bolted onto it on the House floor that the people who wrote the bill did not want and could not remove without losing everything else. If you have ever voted for a good bill that came with a bad piece of luggage, you already understand this one. If you have not, pull up a chair, because the timeline is short, the dates are checkable, and the moral is still with us.

I am going to walk through it in order. Then I am going to tell you what the law did, what it cost, and what a gun owner should take from it.

Where the story starts: the law everyone was living under

The federal rulebook before 1986 was the Gun Control Act of 1968, which you can read about in Inside the Gun Control Act of 1968 and the rules you still follow today. It created the modern licensing system for dealers, the prohibited-persons categories, and the paper trail every sale still leaves behind. It was written fast, in the shadow of the assassinations of 1968, and it showed.

By the early 1980s the complaints were piling up. Dealers said a clerical slip on a form could be treated as a crime. Hobbyists said that selling a few guns from a personal collection could be turned into unlicensed dealing. Travelers said that the rules for moving a lawful firearm from one state to another were a trap, because every state and city was free to write its own rule and none had to honour the last one. Gun owners said the agency enforcing all this, the Bureau of Alcohol, Tobacco and Firearms, behaved as though the paperwork was the crime. Whether every one of those complaints was fair is a question for the hearings, and I will not pretend the record is spotless on either side. What matters is that the complaints had a movement behind them, and the movement found allies in the Senate.

February 1982: the Senate subcommittee report

The first dated entry is not a bill at all. In 1982 a subcommittee of the Senate Judiciary Committee, the Subcommittee on the Constitution, which Senator Orrin Hatch chaired at the time, issued a report titled The Right to Keep and Bear Arms. It reviewed the history of the Second Amendment, the English tradition behind it, the debates of the founding era, and the way the Fourteenth Amendment had been understood by the men who wrote it. Its conclusion was that the amendment protects an individual right.

Why does a committee report matter? Because it is how a legislative majority builds its record. For decades the reflex in much of the legal academy had been to treat the amendment as a relic about state militias. The 1982 report was a United States Senate subcommittee putting the other reading on the record, with footnotes. It gave the sponsors of the next bill a constitutional foundation to stand on, and it showed that this was not just a lobby asking for favours but a body of law and history asking to be taken seriously. You can trace a straight line from that report to the way the Supreme Court read the amendment in Heller a generation later, which I discuss in Why Heller got it right and the 'militia only' reading falls apart.

1985: the McClure bill clears the Senate

The vehicle was a bill led in the Senate by James McClure of Idaho, and in the House by Harold Volkmer, a Democrat from Missouri. Remember that detail, because it ruins the cartoon. The Firearm Owners Protection Act is often called the McClure-Volkmer bill, and half of its name belonged to a Democrat. This was never a clean party-line fight.

The Senate acted first. In July 1985 it passed the bill, which was then headed for a House where the committee of jurisdiction, the Judiciary Committee under Chairman Peter Rodino, had no interest in hurrying it along. In the Senate the bill had already been trimmed and negotiated, and the compromises were the kind that bring in votes from both parties. The point to carry forward is that the Senate version did not contain a machine gun ban. Nothing in the original sponsors' plan did. They were trying to loosen 1968, not tighten anything.

Early 1986: the House goes around its own committee

In the House the committee's leadership favoured a different bill, one that kept more of the 1968 structure and added new restrictions. The sponsors of McClure-Volkmer did what members do when a committee sits on a measure the majority wants. They went around it. Volkmer used a discharge petition to force the issue to the floor, and in the spring of 1986 the House took up the bill with a substitute that reflected the Senate's approach.

I want you to appreciate how unusual that is. A discharge petition is a blunt instrument, and most of them die on the vine. The fact that this one worked tells you how many House members, of both parties, were hearing from people back home who had had enough of the 1968 regime. This was a bottom-up bill, and it reached the floor because voters made it politically expensive not to let it through.

May 1986: the Hughes amendment

Then the floor fight. The man in the middle of it was William Hughes, a Democrat from New Jersey who chaired the House Judiciary subcommittee on crime and who opposed the bill. In May 1986 he offered an amendment of his own. It would make it unlawful to transfer or possess a machine gun, with an exception for guns lawfully possessed before the law took effect and for government use.

The amendment was adopted by a voice vote. No tally, no names, no record of who stood where. A rider that changed the legal status of an entire class of firearms was added to a major bill on a chorus of ayes and noes.

Now the strategic question, and here I will say what I think. The sponsors were stuck. They could fight the Hughes amendment, and some did, but the larger bill had enemies in the House who would happily use the fight to sink all of it. They could swallow it and send the bill to the Senate with the rest intact. They chose to keep the bill alive. You can argue that they chose wrong, and plenty of gun owners have argued exactly that for forty years. But put yourself in their chairs. They had spent years getting the bill that far. The price of losing was the whole package: the safe-passage rule, the limits on warrantless inspections, the protection against a registry. A bird in the hand has been an argument in Congress since the first one.

May 19, 1986: the signature

The Senate accepted the House's version, and on May 19, 1986, President Ronald Reagan signed the bill into law. Read that sentence again with the other half of the story in mind. The signature that gave gun owners the most protective federal statute they had ever had also put the machine gun cut-off into the United States Code.

Hold that thought, because the law deserves a proper inventory, both columns.

What the law gave gun owners

Here is what Public Law 99-308 did on the pro-gun side of the ledger, and it is a long list.

1. Safe passage. Section 926A of Title 18 gives a person who is lawfully allowed to have a firearm at both ends of a trip the right to transport it through states that would otherwise punish him, as long as the gun is unloaded and neither the gun nor the ammunition is readily accessible from the passenger compartment. If the vehicle has no separate compartment, the items go in a locked container that is not the glove box or console. If you drive across state lines, read before you drive across state lines with a gun, run this checklist before your next trip.
2. Limits on ATF inspections. The law limited unannounced compliance inspections of a licensed dealer's premises to once in a twelve-month period, with exceptions for a criminal investigation or tracing a firearm. Before that, an inspector could knock whenever he liked.
3. A better definition of the business. Congress defined who is "engaged in the business" of dealing in firearms, which decides who needs a federal license. The 1986 language required someone who devoted time, attention and labor to dealing as a regular course of trade with the principal objective of livelihood and profit, and it said that occasional sales, exchanges or purchases to enhance a personal collection or for a hobby did not count. It was a protection for the collector and the family selling a few guns, and the language has been amended since.
4. A knowledge standard for crimes. The law changed the mental-state requirement for most of the federal firearms offenses to "knowingly," and kept "willfully" for paperwork violations by licensees. The idea was that an honest mistake should not put a citizen in a cell.
5. A ban on a federal registry. Section 926 now says that no rule or regulation may require records to be kept in a facility owned or controlled by the federal government, and that no registry of firearms, firearm owners or transactions may be established. That sentence is why the argument over the registry question hiding inside every universal background check bill is still a live one. Dealers keep their records. The government does not hold a central list of who owns what.
6. Sales across state lines for long guns. A dealer may sell a rifle or shotgun in person to a resident of another state if the sale is lawful in both. Handguns stayed tied to the buyer's home state.
7. Gun shows and ammunition. The law allowed licensed dealers to do business at gun shows in their own state and relaxed the old ammunition record-keeping rules.

That is a real list. Every item is something a hunter, a sport shooter or a home defender notices.

What the Hughes amendment did

Now the other column. The amendment became section 922(o) of Title 18. In plain terms it says it is unlawful for anyone to transfer or possess a machine gun, except for sales and possession by government agencies, and except for a machine gun that was lawfully possessed before the cut-off date. The cut-off, in common usage, is May 19, 1986, the day the law was signed.

Think about what that means in practice. Machine guns have been regulated since the National Firearms Act of 1934, which I cover in Why the National Firearms Act of 1934 taxed guns instead of banning them. Before 1986 a law-abiding adult who passed the federal process, paid the transfer tax and got approval could own one. After 1986 the legal civilian supply was the set of guns already on the National Firearms Registry. No new ones can join it. Supply is fixed, demand is not, and you can guess what that does to prices without a degree in economics. The law that was meant to stop the government from treating collectors like criminals ended up creating the most expensive collectibles in the country.

And here is the irony I promised you. The same law that bans a federal registry of firearms owners preserves, and in a sense depends on, the one registry Congress built in 1934 for machine guns and other NFA items. The Hughes line is drawn against the contents of that list.

The best argument on the other side, and the answer

Let me state the case against my own side as fairly as I can. A defender of the Hughes amendment would say this. One: fully automatic weapons are the military's tools, and the 1934 Act was a bargain in which Congress regulated them heavily instead of banning them. Two: that bargain assumed the registry would stay open, but it also meant Congress always had the power to close it. Three: closing it in 1986 cost lawful owners very little, because almost no crime was committed with registered machine guns, and it prevented a future in which they became cheap and easy to obtain. Four: the Supreme Court said in Heller that the amendment protects weapons in common use, and machine guns are not.

That is the strongest version, and parts of it hold up. The legislation did not pass in a vacuum, and a voter who is uneasy about fully automatic fire in civilian hands is not a lunatic. Courts of appeals that have looked at section 922(o) have upheld it.

Here is where I part company. First, the process was the problem, not just the policy. A major change in the law of an entire class of arms was made by voice vote, on the floor, as an amendment to a bill that was supposed to protect the owners. Second, it was written by the bill's opponents, not by its friends, and everybody in the chamber knew it. Third, the claim that registered machine guns were not a crime problem cuts the other way: if lawful ownership under the NFA process was safe, then the ban punished the safe system. And fourth, the cost fell on the wrong people, the ones who followed every step. Reasonable people can still land on the other side of that. But a rider that nobody had to put their name to is no way to decide it.

What a gun owner should learn

I draw three lessons from the timeline.

Read the amendments, not just the bill. The title said "Firearm Owners Protection," and that told you very little about the last-minute text that mattered to a part of the community. In every legislature, the sections that do the most damage are usually the ones nobody read aloud.

The compromise is the product. FOPA is the model of a bill that was won by patient work: a hearing record, a Senate report, a bipartisan pair of sponsors, a petition to get around a committee. It was a win for freedom because its supporters were willing to count votes and take most of what they could get. That is not a betrayal of principle. It is how a minority movement becomes a law.

Rights get defended in the boring sections. Safe passage, limits on inspections, the registry ban: these are not slogans. They are the technical provisions that decide whether an ordinary person can drive from Pennsylvania to Georgia without a felony charge. Those are the sections the next Congress will tinker with, in either direction.

The bottom line

• The 1986 Firearm Owners Protection Act was the most significant gun-rights statute of its century, and it was built by years of hearings, a 1982 Senate subcommittee report, and a bipartisan pair of sponsors.
• The machine gun cut-off in section 922(o) came from an amendment offered on the House floor by a member who opposed the bill, adopted by voice vote, and signed into law on May 19, 1986, with everything else.
• Every gun owner lives under both halves today: safe passage and the registry ban on one side, a frozen civilian machine gun supply on the other.
• When Congress moves a bill that carries your name on the label, read the amendments and ask who offered each one and why.
• If you travel with firearms, study section 926A and your destination state's law before you leave, not after you are stopped.