Report of the Section of Criminal Law
Recommendation
Resolved, That the American Bar Association urges the Congress of the United States to enact S1592, 89th Congress, or similar legislation which would amend the Federal Firearms Act to prohibit the shipment of firearms in interstate commerce except between federally licensed manufacturers, dealers and importers; to prohibit sales by federally licensed dealers of shotguns and rifles to persons under 18 years of age, and of all other types of firearms to persons under 21 years of age; to prohibit felons, fugitives and persons under indictment of felonies from shipping or receiving firearms in interstate commerce, and to control commerce in large caliber weapons; to restrict the sale of handguns to residents of the state where purchased; and to limit the unrestricted volume of imported weapons.
Be It Further Resolved, That the Section of Criminal Law be authorized to present the views of the American Bar Association to the appropriate committees of Congress on such proposed legislation.
Report
Federal action directed at the control of firearms originated, for modern purposes of criminal control, in the National Firearms Act of June 26, 1934, which is now set out in Sections 5801-62 of the Internal Revenue Code of 1954. This Act, passed in reaction to the gang wars of the Prohibition Era and the post-Prohibition crime waves, was directed at preventing criminals from obtaining firearms, such as machine guns, cane guns, sawed-off shotguns, silencers and similar weapons, which are particularly suitable for criminal use. The Act provides for special licensing taxes on importers, manufacturers, dealers and pawn brokers dealing in such arms, imposes heavy transfer taxes on the transfer of such arms, requires the registration of such arms upon transfer and the registration of persons possessing such arms. Although written as a revenue measure, it was clearly intended to control the criminal commerce in firearms of a criminal character and provided penalties of up to five years' imprisonment.
The Federal Firearms Act of June 30, 1938, 15 U.S.C.§§901-09, was designed to suppress crime by regulating the traffic in firearms and ammunition, and applied to all firearms. Its legislative history shows particular concern with "roaming racketeers and predatory criminals who know no state lines-a situation beyond the power of control by local authorities to such an extent as to constitute a national menace." United States v. Platt, 31 F. Supp. 788, 790 (S.D. Tex. 1940); see Hearings on HR9066 Before House Committee on Ways and Means, 73d Cong., 2d Sess. (1934). The Act requires a dealer to obtain a federal dealer's license by filing an application with the Internal Revenue Service and paying a fee of one dollar. However, because of the simplicity of this requirement and of the other record-keeping required by the law, this Act has been called a "mail order operation" in itself. Hearings Before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 88th Cong., 1st Sess., pt. 14, at 3209 (1963).
The assassination of President John F. Kennedy on November 22, 1963, with a rifle reported to have been purchased by the accused assassin through the mails, brought public and congressional scrutiny to bear on the availability of firearms in the United States through mail orders and other uncontrolled channels of distribution. However, consideration of this problem had preceded that tragic event; concern with juvenile crime in which the use of "mail-order" weapons was an increasing factor led to hearings by the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary during early 1963, and legislation directed at the types of weapons used by juvenile criminals was introduced in August 1963 by Chairman Dodd and other members of the subcommittee. The assassination brought the introduction of numerous other bills, the expansion of the Dodd bill, and greater concern about this problem.
S.1975, 88th Cong., 1st Sess., was introduced on August 2, 1963, by Senator Dodd for himself and other members of the Juvenile Delinquency Subcommittee, but this proposal was not enacted. Other legislation proposing varying techniques for controlling the interstate shipment of firearms was introduced in the House of Representatives and in the Senate. In addition, resolutions were introduced in the House of Representatives authorizing an investigation of the sale of firearms in interstate and foreign commerce.
On March 22, 1965, Senator Dodd introduced S1592, a bill to amend the Federal Firearms Act. Basically, the proposed legislation is designed to accomplish the following:
First: It would prohibit the shipment of firearms in interstate commerce, except between federally licensed manufacturers, dealers, and importers. This provision would have the effect of prohibiting the so-called mail-order traffic in firearms to unlicensed persons. It would leave to each state the responsibility and authority for control ling the sale and disposition of firearms within its borders. There are several important exceptions to this general prohibition against interstate shipment. Sportsmen could continue to take their shotguns or rifles across state lines. Pistols could be carried in interstate commerce but only for a lawful purpose and only in conformity with state laws. Further, firearms could be shipped to a licensee for service and return to the sender. However, a non-licensee could no longer buy weapons from out-ofstate mail order dealers. Sales would be made by retail dealers and would thus be subject to record-keeping requirements. These records would then have new meaning; they would not be rendered futile by an unrecorded flow of mail-order guns.
Second: Licensed retail dealers would be required to limit sales of handguns to residents of their state who are 21 years of age or older; they would be prohibited from selling any firearm to a person under the age of 18. In accordance with regulations to be prescribed by the Secretary of the Treasury, licensed dealers would be required to ascertain the identity and place of residence of a purchaser. Further, it would be unlawful for a dealer to sell a firearm to any person when he knows or has reasonable cause to believe that such person is under indictment for or has been convicted of a felony, or is a fugitive from justice. These provisions of the proposed legislation do not address themselves to the question of permits to possess or to use firearms, leaving it to the states and local com munities to decide what they need and want in that regard. Thus, for example, while the bilt limits the sale of shotguns and rifles to persons who are at least 18 years of age, it does not preclude such persons from using guns if such use is permitted by state or local law.
Third: The bill would raise the annual license fees for a dealer from the present token of $1.00 to $100. It would also establish a license fee of $250 for a pawnbroker who deals in firearms. Specific standards are established under which an application for a license shall be disapproved, after notice and opportunity for a hearing. The purpose of this provision of the proposed legislation is to limit the issuance of licenses to bona fide dealers. Under existing law, anyone other than a felon can, upon the mere allegation that he is a dealer and the payment of a fee of $1.00, demand and obtain a license. According to the Secretary of the Treasury, some 50 or 60 thousand people have done this, some of them merely to put themselves in a position to obtain personal guns at wholesale. There would be nothing to prevent them from obtaining licenses in order to ship or receive concealable weapons through the mails, or to circumvent state or local requirements.
Fourth: The bill would permit the Secretary of the Treasury to curb the flow into the United States of surplus military weapons and other firearms not suitable for sporting purposes. However, weapons imported for science, research, or military training, or as antiques and curios, could be allowed.
Fifth: The importation and interstate shipment of large caliber weapons, such as bazookas and antitank guns, and other destructive devices would be brought under effective federal control.
The Subcommittee to Investigate Juvenile Delinquency of the Senate Judiciary Committee has been holding hearings on S.1592, commencing shortly after the introduction of this legislation. The testimony of witnesses appearing before the subcommittee has generally favored enactment of the legislation, particularly the testimony of witnesses who are concerned with any facet of law enforcement. The principal objections to the legislation seemed to stem from the National Rifle Association and its members. The position of the NRA was commented upon by Attorney General Katzenbach in a statement to the subcommittee on May 19, 1965, excerpts of which appear below:
"This measure is not intended to curtail the ownership of guns among those legally entitled to own them. It is not intended to deprive people of guns used either for sport or for self-protection. It is not intended to force regulation on unwilling states.
"The purpose of this measure is simple: it is, merely, to help the states protect themselves against the unchecked flood of mail-order weapons to residents whose purposes might not be responsible, or even lawful. S.1592 would provide such assistance to the extent that the states and the people of the states want it.
"There is demonstrable need for regulation of the interstate mail order sale of guns. This bill is a response to that need. It was carefully drafted; it is receiving detailed attention from this Subcommittee.
"But, nevertheless, S1592 now has itself become a target for the verbal fire of the National Rifle Association and others who represent hunters and sporting shooters. These opponents feel their views most deeply, as is evident from the bitterness and volume of their opposition. It is no secret to any member of Congress that the NRA sent out a mailing of 700,000 letters to its membership urging a barrage of mail to Senators and Congressmen.
"There is no question that the views of the NRA should be heard and given full weight. There is no question that so many people with an interest in gun legislation should have every opportunity to express it. But those views also need to be evaluated and thus I would like now to turn to analysis of the opposition arguments.
"It has been suggested, for example, by Franklin Orth, executive vice president of the NRA, that S.1592 gives the Secretary of the Treasury 'unlimited power to sur round all sales of guns by dealers with arbitrary and burdensome regulations and restrictions.'
"I fear this is an exaggeration flowing from the heat of opposition. The Secretary's regulations must be reasonable. I should think that the reasonableness of the regulations promulgated by the Secretary of the Treasury under the existing provisions of the Federal Firearms Act would contradict the assumption of 'burdensome regulations.'
"Further, the Administrative Procedure Act assures all interested parties of an opportunity to be heard before the issuance of substantive rules and regulations. The NRA and other gun interests have, in the past, taken full advantage of this opportunity and clearly could do so in the future. And still further, the regulations are subject to review and reversal by the courts and by Congress should they be felt arbitrary and capricious.
"It has also been suggested that S1592 requires anyone engaged in the manufacture of ammunition to pay $1,000 for a manufacturer's license. The bill does not do so. It does not cover shotgun ammunition at all, and the license fee for manufacturers of other types of ammunition is $500.
"It is true that anyone selling rifle ammunition, even .22 caliber, would be compelled to have a $100 dealer license. Why shouldn't he? He is dealing ammunition for a lethal weapon. The many dealers in ammunition who also sell firearms would not, however, be required to pay an additional ammunition fee. Nor is there anything in the legislation that would, as has been stated, require a club engaged in reloading for its members to obtain a manufacturer's license. "A further specific ·objection raised against this measure is that it would forbid a dealer to sell to a non-resident of his state. The objection is stated in a misleading way. The bill does forbid such sales of hand guns, but it specifically excepts weapons like rifles and shotguns most commonly used by sportsmen and least commonly used by criminals.
"A similar objection is made on the grounds that the measure would prohibit all mail-order sales of firearms to individuals. While this is an accurate description of the measure with respect to interstate and foreign commerce, the bill would not foreclose now allowable shipments within a state. Any control of such commerce is left to the states. "One last comment on the specific NRA objections, as expressed in the letter sent to its membership. The letter described this measure as one which conceivably could lead to the elimination of 'the private ownership of all guns.' I am compelled to say that this is not conceivable. I am compelled to say that there is only one word which can serve in reply to such a fear – preposterous.
"More generally, I really cannot understand why the legislation we are talking about should seem a threat at all to sportsmen, hunters, farmers and others who have a productive or necessary or enjoy able interest in the use of rifles, shotguns or sporting hand guns. Nothing that we propose here could intelligently be construed as impairing the enjoyment they derive from shooting.
"This legislation would, indeed, make some changes in the distribution of firearms. It would, indeed, by outlawing mail-order sales of firearms between states, bring about changes in the commercial firearms world. It would, indeed, challenge interests which have thrived on the present state of unregulated chaos. But such a challenge is tragically overdue.
"Which is more significant, the right not to be slightly inconvenienced in the purchase of a firearm, or the right not to be terrorized, robbed, wounded, or killed?
"As the chief law enforcement officer of the United States, I come before you today to ask you to supply the only conceivable answer to that question. I come, with all the urgency at my command, to ask the Subcommittee to report this measure favorably and to ask the Congress to enact it without delay."
Two further objections have been made to the proposed legislation. The first that it is unconstitutional, and the second is that, even if enacted, the criminal will still get guns by the simple process of stealing them or buying them from a "gun bootlegger."
With respect to the constitutional issue, both the Secretary of the Treasury and the Attorney General of the United States have affirmed that the bill was carefully drafted to insure its constitutionality. It is the view of the Section of Criminal Law that there is no merit to an objection to the legislation on constitutional grounds. The vast body of authority under the Commerce Clause supports federal control of the distribution of firearms by means of interstate commerce. Further, it seems clear that the right to bear arms protected by the Second Amendment relates only to the maintenance of the militia; that Amendment does not prevent the reasonable regulation of interstate commerce in firearms in the interest of public safety. It should be noted that the legislation does not apply to agencies and departments of Federal, State, and local governments.
With respect to the second objection, viz., that, even if the legislat9ion is enacted, it will not prevent the criminal from obtaining a gun, the statement made by the Secretary of the Treasury to the subcommittee is illuminating. Excerpts follow:
"Mr. Chairman, I am happy to appear before your Committee in association with my colleague, the Attorney General, and other representatives of the Administration in support of S1592 to amend the Federal Firearms Act, because I feel that enactment of this piece of legislation is of great importance to the welfare of this country and its citizens.
"S1592 is designed to implement the recommendations which the President set forth with respect to firearms control in his message to the Congress of March 8, 1965, relating to law enforcement and the administration of justice.
"The President, in that message, described crime as 'a malignant enemy in America's midst' of such extent and seriousness that the problem is now one 'of great national concern.' The President also stated, and I quote from his message, 'The time has come now, to check that growth, to contain its spread, and to reduce its toll of lives and property.'
"As an integral part of the war against the spread of lawlessness, the President urged the enactment of more effective firearms control legislation, and cited as a significant factor in the rise of violent crime in the United States 'the ease with which any person can acquire fire arms.'
"The President recognized. the necessity for state and local action, as well as federal action, in this area and he urged 'the governors of our states and mayors and other local public officials to review their existing legislation in this critical field with a view to keeping lethal weapons out of the wrong hands.' However, the President also clearly recognized in his message that effective State and local regulation of firearms is not feasible unless we strengthen at the federal level controls over the importation of firearms and over the interstate shipment of firearms. The President advised that he was pro posing draft legislation to accomplish these aims, and stated, and I quote, 'I recommend this legislation to the Congress as a sensible use of federal authority to assist local authorities in coping with an undeniable menace to law and order and to the lives of innocent people.'
"Anyone who reads the papers today or hears the news on radio and television cannot help but be appalled at the extent of crime and lawlessness in this country and at the extent of the loss of lives through the use of weapons in the hands not only of criminals but also juveniles, the mentally sick and other irresponsible people. Every day the lives of decent American citizens, our greatest national asset, are being snuffed out through the misuse and abuse of firearms by persons who should not have access to them.
"What the bill does is to institute federal controls in areas where the federal government can and should operate, and where the state governments cannot, the areas of interstate and foreign commerce. Under our federal constitutional system, the responsibility for maintaining public health and safety is left to the state governments under their police powers. Basically, it is the province of the state governments to determine the conditions under which their citizens may acquire and use firearms. I certainly hope that in those states where there is not now adequate regulation of the acquisition of firearms, steps will soon be taken to institute controls complementing the steps taken in this bill in order to deal effectively with this serious menace.
"Since a bureau of my Department is responsible for the administration of the Firearms Act, I am particularly anxious that the changes proposed in the bill with respect to the issuance of licenses to manufacture, import and deal in firearms be adopted. Under existing law, anyone other than a felon can, upon the mere allegation that he is a dealer and payment of a fee of $1.00, demand and obtain a license. Some 50 or 60 thousand people have done this, some of them merely to put themselves in a position to obtain personal guns at wholesale. The situation is wide open for the obtaining of licenses by irresponsible elements, thus facilitating the acquisition of these weapons by criminals and other undesirables. The bill before you, by increasing license fees and imposing standards for obtaining licenses, will go a long way toward rectifying this situation.
"One misconception about this bill which has been widely publicized is that it will make it possible for the federal government to institute such regulations and restrictions as will create great difficulties for law-abiding citizens in acquiring, owning or using fire arms for sporting purposes. This is absolutely not so. Sportsmen will continue to be able to obtain rifles and shotguns from licensed dealers and manufacturers subject only to the requirements of their respective state laws. Indeed, they can travel to another state and purchase a rifle or shotgun from a licensed dealer there and bring it home with them without interference. Only two minor inconveniences may occur for the sportsmen of this country. They will not be able to travel to another state and purchase a pistol or concealable weapon, and they will not be able to obtain a direct shipment from another state of any type of fire arm. On this latter point, the inconvenience is more apparent than real because the large mail order houses have outlets in most of the states and the bill will permit mail order shipments to individual citizens from these outlets.
"These minor inconveniences have been found to be necessary in order to make it possible for the states to regulate effectively the acquisition and possession of fire arms. Obviously, state authorities cannot control the acquisition and possession of firearms if they have no way of knowing or ascertaining what firearms are coming in to their states through the mails or, in the case of concealable weapons, by personally being carried across state lines.
"Today, the people of the United States are living under the most ideal conditions which have ever existed for any peoples anywhere on earth. Yet much of this is threatened by the spreading cancer of crime and juvenile delinquency. It is absolutely essential that steps such as those proposed in this bill be taken to bring under control one of the main elements in the spread of this cancer, the indiscriminate acquisition of weapons of destruction. In concluding my statement, may I say that the Department's experience with the existing Federal Firearms Act has resulted in a feeling of frustration since the controls provided by it are so obviously inadequate in the ways that I have indicated. In drafting S1592 we have had in mind these inadequacies and now have, we believe, a bill, which, when enacted, will provide effective controls without jeopardizing or interfering with the freedom of law-abiding citizens to own firearms for legitimate purposes. I strongly support the enactment of S1592."
For a number of years, the Section of Criminal Law has considered that the loose and ineffective controls on the sale of firearms, particularly handguns, has been a contributing factor to the increasing crime rate. At the Midyear Meeting of the American Bar Association in February, 1964, the Section recommended to the House of Delegates that action should be taken by the Association "to draft a uniform state firearms statute and appropriate federal legislation." During the Annual Meeting in August, 1964, the Section presented a program on the subject, "The What, When and Why of Gun Legislation." Distinguished speakers, including a law enforcement officer, a judge, a private citizen, and representatives of the National Rifle Association explored the subject in depth and detail. Although no formal action of the Section followed this panel program, it was clear that the sentiment of the large majority of the members attending the session favored more effective firearms controls.
In summary, in determining whether the American Bar Association should support the enactment of S1592, or similar federal legislation, the following specific questions and answers should be considered:
First: Does the relatively free interstate traffic in firearms contribute materially to the increasing crime rate in the United States? Answer: The available evidence indicates clearly that a considerable number of crimes are committed by persons who have been able to acquire firearms easily, particularly handguns.
Second: Is it within the constitutional power of the federal government to establish controls on the interstate movement of firearms? Answer: No lengthy legal brief is necessary to show that the federal government under the Commerce Clause is empowered to establish reasonable controls upon the interstate movement of firearms.
Third: If the states and local governments enacted stringent controls on the purchase, possession, and use of fire arms, would it be necessary or desirable for the federal government to legislate in this area? Answer: Although stringent state and local control of firearms would assist materially in reducing the possession and use of firearms for unlawful purposes, state and local controls cannot be effective unless the federal government prevents the relatively free and unimpeded flow of fire arms into the several states through the channels of interstate commerce.
Fourth: Are the controls contained in S1592 reasonable? Answer: Few persons will interpose reasonable objections to the purpose or to the major provisions of S1592. Reasonable men might differ as to the necessity for certain of the specific provisions. For example, it can be argued that the provisions which preclude a licensed retail dealer from selling rifles and shotguns to persons under the age of 18, or from selling handguns to persons under the age of 21, are an unwarranted usurpation of the power of the states and local governments to decide who may possess and use firearms. However, almost everyone would agree that these restrictions are reasonable if firearms are to be kept out of the hands of irresponsible juveniles.
Further, it is clear that the control of such sales, even though local in nature, can best be established by federal insistence, through licensing procedures, that dealers adhere to fixed standards in all of the states. Otherwise it would be difficult to prevent juvenile from purchasing a firearm in a state where the sale is permitted and carrying it to a state where such sale is prohibited.
The Council of the Section of Criminal Law is of the opinion that S1592 represents a reasonable and desirable step forward in law enforcement. Although this legislation will cause minor inconvenience to the law abiding citizen who desires to buy a gun, it will not prevent him from acquiring one. This minor inconvenience is the price that must be paid if the federal government is to do its part to assist the states in maintaining effective control over firearms.
For the above reasons, the Section of Criminal Law, acting through its Council in accordance with Section 6 Article VI, of its By-Laws, recommend that the American Bar Association support the enactment of S1592, or similar federal legislation.
Respectfully submitted,
KENNETH J. HODSON,
Chairman