April 15, 2020

73M107.6

REPORT NO. 6 OF THE SECTION OF CRIMINAL LAW
RECOMMENDATION

Resolved, That the American Bar Association reaffirms the position it took in 1965 recommending, in principle, the enactment of appropriate state and federal legislation providing effective control of the importation, sale, transportation and possession of firearms; and

Be It Further Resolved, That the President or his designee be authorized to present the views of the American Bar Association to the appropriate committees of Congress.

REPORT

The above recommendation is submitted to the American Bar Association's House of Delegates with the unanimous approval of the Council of the Section of Criminal Law which acted for the Section on December 7, 1972. The purpose of this proposal is to update the Association's long-standing and prudent practice of endorsing legislation aimed at reducing gun-related crime in America.

In a report to the House of Delegates during the 1965 Annual Meeting, the chairman of the Criminal Law Section, Major General Kenneth Hodson, wrote that, "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." The report's recommendation that the Association support passage of S. 1592, a bill aimed principally at controlling the interstate commerce in firearms, was overwhelmingly adopted by the House of Delegates by a vote of 184 to 26. Due to congressional inaction on that bill, the House of Delegates reiterated its support for the firearms control bill in a second resolution adopted during the 1966 Annual Meeting. The Association's 1965 resolution specifically indicated support for federal legislation which would "(1) prohibit the shipment of firearms in interstate commerce except between federally licensed manufacturers, dealers and importers; (2) prohibit sales by federally licensed dealers of shotguns and rifles to persons under 18 years of age; (3) prohibit sales by federally licensed dealers of all other types of firearms to persons under 21 years of age; (4) prohibit felons, fugitives and persons under indictment of felonies from shipping or receiving firearms in interstate commerce; (5) control commerce in large caliber weapons; (6) restrict the sale of handguns to residents of the state where purchased; and (7) limit the unrestricted volume of imported weapons."

Although S. 1592 was not enacted, Congress did pass the 1968 Gun Control Act (P.L. 90-618, 82 Stat. 1213) and the 1968 Omnibus Crime Control and Safe Streets Act (P.L. 90-351, 197). Together, these two laws accomplish most of the goals urged by this Association in 1965. However, the long-range effect of these laws has proven both effective and faulty.

One of the major goals of this Association's 1965 resolution was to stop the massive importation of foreign-made, easily concealed and usually poorly constructed handguns which, because of their low-cost availability and small size, are used in a large percentage of armed crimes of violence. Thus, the 1968 Act had the positive effect of substantially reducing the importation of foreign-made handguns "not suitable for sporting purposes." For the first six months of 1968, foreign-made handguns were being imported at an annual rate of 1,239,930. In 1970, the total number of imported handguns had dropped to 279,536 (Cong. Rec., Aug. 7, 1972, S. 12926). However, an unforeseen loophole in the Act quickly became apparent as domestic manufacturers skirted the restriction on handgun importation by importing handgun parts instead.

In contrast to the above figures of imported handguns, the Internal Revenue Service reports that, in the first eleven months of 1971, domestic manufacturers produced 1,447,664 handguns for private sale. (Cong. Rec. July 20, 1972, S. 11341)

During the past two years of the 92nd Congress, some sixty-eight "gun control" bills were introduced. Although none was passed, those bills which generated the most interest - one of which passed the Senate - were aimed primarily at closing the loophole of the 1968 Act by applying the same standards to domestically produced handguns as have applied for the past four years to foreign-made handguns. The hearings and debates which accompanied these bills brought to light some startling statistics and facts.

The 1971 Uniform Crime Reports, compiled by the FBI, indicates that' 51% of the estimated 17,630 murders committed in 1971 were accomplished with a handgun. Including rifle and shotgun murders, the percentage rises to 65 percent. The FBI notes that, "the significant fact emerges that most murders are committed by relatives of the victim or persons acquainted with the victim. It follows, therefore, that criminal homicide is, to a major extent, a national social problem beyond police prevention." (U.C.R., p. 9) This statement is substantiated by the apalling fact that over seven of every ten murders occur either within the family unit or were the result of romantic triangle and lover's quarrels and other arguments. The remaining murders resulted from suspected and known felonious activity such as robberies and sex crimes. These figures suggest an ironic and distressing conclusion, for it appears that since the majority of murders are committed with a handgun in the heat of anger or disagreement, with the antagonists at least known to each other, if not related, and considering the National Commission on Causes and Prevention of Violence's estimates that half of this nation's 60 million households are armed, the resulting conclusion is that an individual is more likely to die by handgun fire simply by possessing such a weapon for self-defense. In fact, this point was substantiated in Senate testimony (Cong. Rec., Aug. 7, 1972, S. 12928); the mere presence of a firearm in a home subjects the owner to a four times greater risk of death or injury by gunfire than if the same person faced a burglar, rapist or kidnapper unarmed.

An additional misconception is highlighted by the fact that the estimated 30 million armed households frequently provide the most available source of criminal's weapons. It is indeed ironic that the very weapons owned for purposes of self-protection against housebreakers usually end up to be the weapon a housebreaker uses to ply his trade. Though complete figures of the number of stolen weapons used criminally are impossible to compile, law enforcement officials generally agree that most illicit weapons were stolen from households and businesses.

On June 26, 1972, my predecessor, Justice William H. Erickson of the Colorado SupremeCourt, wrote the Chairman of the House Judiciary Committee who was then presiding over hearings on a number of handgun control bills. Noting that, "neither the Section of Criminal Law nor the House of Delegates of the American Bar Association has studied these bills", Justice Erickson wrote that, "I have no authority to address myself to these specific pieces of legislation... However, as spokesman for our Section, I am most eager to express the previously established support and encouragement of the American Bar Association, in principle, for legislation aimed at reducing crime through control of the sale, registration and possession of firearms."

Because the Association's 1965 resolution had been officially deleted as obsolete, Justice Erickson requested the former Director of the Federal Bureau of Prisons and past chairman of this Section, James V. Bennett, to head a special committee to study the current relationship between firearms abuse and the soaring crime rate. Justice Erickson felt that it is "increasingly important that the Section of Criminal Law take prompt action in recommending an up-to-date position on [firearms regulations] which might become the subject of a report with a recommended position for adoption by the House of Delegates so that the American Bar Association will not be found wanting."

This report and recommendation is in partial fulfillment of that request. During the past five months, Mr. Bennett's committee has begun a study of the history of federal and state attempts to reduce gun-related crime and violence, the various procedures by which such crime might be reduced and how the legitimate interests of sportsmen can be protected. That committee has recommended two ways by which the previously established commitment of this Association to the principle of reducing gun-related crimes would be enhanced. The first suggestion is embodied in the attached recommendation: that the Association update its seven-year-old policy statement as an indication of its continuing concern for the soaring crime rate. The second suggestion., not a part of the attached recommendation, is simply that continued effort be focused on procedures by which state, local and the federal government might cooperate to reduce gun-related crime, violence and delinquency.

This Section is persuaded that the beginning of a new Congress is an ideal time for the Association to reiterate its past support for attempts to reduce gun-related crime. However, this Section feels that the immense difficulties encountered in studying any type of proposed firearms regulations require caution and extreme objectivity. Thus, this recommendation would allow the Association to become involved in current debate without being limited to supporting a particular proposal. The attached recommendation is based on the premise that the federal legislation enacted since the American Bar Association's last official statement, over seven years ago, dictates a present need to reiterate our concern. Such a statement as the attached recommendation does not bind the Association to support a specific bill but, rather, states a firm conviction that the organized legal community will continue to serve in its traditional role of advisor to Congress and leader in its concern for law enforcement and criminal justice.

Because of the interest of other segments of this Association, copies of this report have been distributed to the National Conference of Commissioners on Uniform State Laws, the Division of Judicial Administration, the National District Attorney's Association, National Association of Attorneys' General, the Committee on State Legislation, the Section of Family Law, the Section of Local Government Law, the Section of Individual Rights and Responsibilities, the Department of Justice, the Law Student Division, the Young Lawyers's Section and National Association of Criminal Defense Lawyers.

KEITH MOSSMAN
Chairman