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THE FIREARMS OWNERS' PROTECTION ACT: A HISTORICAL AND LEGAL PERSPECTIVE [| ] [Copyright © 1986 Cumberland Law Review. Originally published as 17 Cumb. 585-682 (1986). Permission for WWW use at this site generously granted by Cumberland Law Review () and the author. For educational use only.
The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.] THE FIREARMS OWNERS' PROTECTION ACT: A HISTORICAL AND LEGAL PERSPECTIVE David T. Note: this article has been cited as authority in Staples v. United States, 62 USLW 4379, 4387 n.4 (U.S.
1994) (Stevens, J., dissenting); U.S. Sherbondy, 865 F.2d 996, 1002 (9th Cir. Cassidy, 899 F.2d 543, 546 n.8 (6th Cir.
1990); United States v. Otiaba, 862 F.Supp. 251, 253 (D.N.D. 1994) (declining to follow circuit decision 'as that court did not have available to it Hardy's analysis of the legislative history'); Cisewski v. Dep't of Treasury, 773 F.Supp. 148, 150 (E.D.
1991); and In re Two Seized Firearms, 127 N.J. 84, 602 A.2d 728, 731 (1992).] Summary: The 1986 Amendments to the Gun Control Act were the result of a nearly-unparalleled legislative battle. A thorough understanding of the amendments is critical to a comprehension of Federal firearms laws as they now exist, since they effectively overruled decades of caselaw which construed the 1968 Act. Among the changes were elevations of the intent which must be proven to establish a violation (pp. Ff.), a narrowed definition of who must obtain a dealer's license (pp.
Ff.), restrictions on unreasonable search, seizure, and forfeiture (pp. Ff.), and provisions for recovery of attorney's fees in civil and even criminal cases (pp. Introduction On May 19, 1986, the Firearms Owners' Protection Act (FOPA) was signed into law.
The first comprehensive redraft of the federal firearm laws since 1968, FOPA was predictably lauded as 'necessary to restore fundamental fairness and clarity to our Nation's firearms laws' and damned as an 'almost monstrous idea' and a 'national disgrace.' The controversy was not limited to the rhetorical. Seven years passed between FOPA's introduction and its Senate vote; the House vote required passage of a discharge petition --only the eighth to succeed in the last twenty-six years. The controversy surrounding FOPA's genesis is commensurate to the legal impact of its provisions. FOPA effectively overrules six decisions of the United States Supreme Court, (p.586)moots what would have become a seventh, and negates perhaps one-third of the total caselaw construing the Gun Control (p.587)Act of 1968.
FOPA's impact, however, is not limited to the Gun Control Act, nor even to federal statutes. By expressly exempting interstate transportation of firearms from the reach of many state firearm laws, it affects state proceedings as well.
A detailed comprehension of FOPA is thus essential to an understanding of both federal and state firearm laws. (p.588) Unfortunately, such a comprehension is not easily achieved. FOPA reflects not a simple, single legislative decision, but a complex series of compromises, many of which are only partially reflected in the record. Even where the record is complete, it is rarely clear. The House bill that ultimately became FOPA is supported by a report, but the report explains not why FOPA should have been adopted, but rather, why it ought to have been rejected. The House bill's predecessor and Senate counterpart, S.
49, was never referred to committee and went instead to the floor with no report whatsoever. 49's ancestors were the subject of two reports which, unfortunately, are in hopeless conflict in certain aspects. To add to its original complexity, FOPA was, prior to its effective date, amended by a second enactment which was in turn modified by a concurrent resolution.
The need for a comprehensive review of this (p.589)controversial and convoluted legislation is thus clear. The statute's core can be found in the real consistencies obscured by seeming chaos. The purpose of this Article is to examine the Firearms Owners' Protection Act in both historic and legal perspectives. Accordingly, the Article first examines the framework of federal firearm legislation as it evolved prior to FOPA. Then, the seven-year evolution of FOPA itself is analyzed.
Finally, this Article evaluates the nature of the more significant changes embodied in this controversial enactment. Background to FOPA: Pre-1986 Federal Firearms Laws A. Nationalization of Firearm Regulation: The National Firearms Act of 1934 and Federal Firearms Act of 1938 Firearms and weapons control statutes are by no means a legislative novelty. The first American handgun ban was enacted in 1837, restrictions on sale or carrying of handguns were commonplace by the turn of the century, and the National Conference of Commissioners on Uniform State Laws spent seven years in the 1920s preparing a uniform state act on the subject. Nonetheless, prior to 1934, the sole federal (p.590)statute on the subject was a 1927 ban on use of the mails to ship firearms concealable on the person.
The late 1920s and early 1930s brought, however, a growing perception of crime both as a major problem and as a national one. Public officials did much to support the perception; Attorney General Homer Cummings, for instance, publicly estimated that America was being terrorized by half a million armed thugs, a force larger than the contemporary United States Army. The mobility of the automobile enabled criminals, in those pre-police radio days, to move between jurisdictions before police units could generally be alerted; such criminal gangs found the submachinegun (a fully automatic, shoulder-fired weapon utilizing automatic pistol cartridges) and sawed-off shotgun deadly for close-range fighting. The resulting quest for law enforcement solutions approached the incredible. At one 1933 hearing, for instance, a Senate subcommittee heard, with no recorded skepticism, calls for a ban on felons riding in automobiles, universal fingerprinting of all citizens, mandatory 'papers' for interstate travel, and enactment of national vagrancy laws authorizing warrantless search and arrest of anyone 'reputed' to 'habitually violate' the laws (with law enforcement officials to testify as to the arrestee's reputation). On a more practical plane, (p.591)the Department of Justice proposed what became the National Firearms Act of 1934. The constitutional basis for federal intervention, very much an issue in 1934, was resolved by patterning the firearm legislation after the Narcotic Drug Act of 1914.
The Narcotic Drug Act used the taxing power to support distributor licensing, requirements that sales be accompanied by a 'written order' preserved by the seller and subject to inspection, and a ban on interstate shipment by unlicensed persons. As the Narcotic Drug Act had survived legal challenge, albeit narrowly, it was consciously employed as a model for the new firearm legislation.
What became the National Firearms Act was introduced as H.R. 9066 would have applied to any 'firearm,' (p.592)a term defined to mean 'a pistol, revolver, shotgun having a barrel less than sixteen inches in length, or any other firearm capable of being concealed on the person, a muffler or silencer therefor, or a machine gun.' 'Machine gun' was in turn defined as any weapon capable of firing twelve or more shots without manual reloading. All persons engaged in the business of selling such 'firearms' were to register with the Collector of Internal Revenue; all sales were subject to a special tax and were to be made pursuant to a written order form. Absent payment of the tax, a firearm could not be shipped in interstate commerce; moreover, knowing possession of a firearm transferred in violation of these requirements was itself a crime.
During committee consideration, a substitute bill was prepared by the Justice Department. The substitute sought to fill a major gap in the original bill, which (consistent with its excise theme) would have applied only to firearms sold after its enactment. The substitute required existing 'firearm' owners to register their arms within sixty days, except 'with respect to any firearm acquired after the effective date of, and in conformity with the provisions of, this Act.' This would still be premised on the taxing power: 'it is important to be able to identify arms to see which possessors have paid taxes and which firearms have been taxed and which have not.'
The substitute also refined the definition of 'firearm' to exclude.22 caliber pistols and to include rifles and shotguns alike if their barrels were under eighteen inches. When ultimately reported out as H.R.
9741, the substitute embodied two additional and significant changes to the definition (p.593)of 'firearm.' First, pistols and revolvers were omitted, so that the bill applied to machineguns, sawed-off shotguns and rifles, silencers, and concealable firearms other than pistols and revolvers.
Second, the definition of 'machinegun' was changed to cover firearms that fired more than once for each pull of the trigger, regardless of how many shots they might fire before reloading was necessary. The transfer tax on machineguns was fixed at $200, then about a 100% excise tax. While the Attorney General described the amended bill as little more than 'a Federal Machine-gun act,' it had little difficulty securing enactment as the National Firearms Act of 1934.
The National Firearms Act delayed, rather than defused, the drive for federal regulation of ordinary firearms and ammunition. In the Seventy-third Congress, Senator Royal S. Copeland introduced a bill proposing a 'Federal Firearms Act.' The bill, which had a number of doubtful features, died in committee.
Copeland permitted an ad hoc committee of staff, National Rifle Association representatives, and Department of Justice representatives to prepare an improved draft. Early in the Seventy-fourth Congress, Copeland (p.594)(noting, 'I am always amazed when people agree' ) introduced the result as S. 3 was based squarely upon the interstate commerce clause. It would have required any 'dealer' (defined as 'any person engaged in the business of selling firearms' or repairing them) to obtain a one dollar license from the Secretary of Commerce before transporting, shipping, or receiving any firearm in interstate or foreign commerce. The license could be revoked upon criminal conviction for any violation of the bill. Licensed dealers were required to keep records of sales and were forbidden to ship firearms in interstate commerce to persons under indictment for or convicted of a crime of violence, or who lacked any permit required by the laws of the state of destination. 3 would also have repealed the National Firearms Act of 1934, substituting in its stead a general ban on interstate shipment or transportation of machineguns.
The Department of Justice objected to this last provision, and it was deleted in committee. 3 passed the Senate, after floor amendments whose primary effect was to require proof of a 'knowing' state of mind. It died in the House with the adjournment of the Seventy-fourth Congress. Copeland reintroduced the measure, incorporating the Senate floor amendments, in the Seventy-fifth Congress, once again as S.
After assurances that the measure was supported by firearms groups, Copeland secured speedy passage by voice vote. The House passed S. 3 with amendments, primarily changing the administering agency from Commerce to Treasury. The Senate concurred in the House amendments, and the Federal Firearms Act of 1938 became law. The 1934 and 1938 Acts (p.595)comprised the substance of federal firearms law for the next three decades.
Expansion of National Firearms Laws: The Gun Control Act of 1968 The National Firearms Act and Federal Firearms Act formed the backdrop for the next major federal firearms legislation, the two statutes known collectively as the Gun Control Act of 1968. As is often the case, the dry legal history of that Act covers a complex legislative reality. The byzantine origins of the Gun Control Act are foreshadowed by the career of its prime sponsor, Senator Thomas Dodd.
A staunch conservative who kept a pistol in his desk and once tried to carry it onto the Senate floor, Dodd came from a state that was the center of the American firearms industry. In later years, this apparent paradox was explained--and another created--by the revelation that the early forms of the Gun Control Act were drafted with the assistance and encouragement of firearms manufacturers.
(p.596) In the postwar years, domestic firearms manufacturers encountered heavy competition from home hobbyists who converted inexpensive imported military arms into hunting and target rifles. 'Mail order houses' imported such arms for a pittance and resold them to a national market.
Domestic arms manufacturers saw their sporting markets undercut and began pressing for protective measures. Protests to the State and Defense Departments over issuance of surplus import licenses yielded little result. The industry then sought a legislative remedy and in 1958 secured passage in the House of a rider to the Mutual Security Act that would have barred virtually all surplus arms imports. The National Rifle Association took issue with the manufacturers and strongly opposed the amendment.
The Senate, citing possible violations of the General Agreement on Trades and Tariffs, limited the restriction to reimportations of American arms, a restriction which prevailed in conference. After this failure, the firearms manufacturers approached Senator Dodd, with arguments and suitable tribute. (p.597)Dodd's original effort, S. 1975, was introduced in August 1963 and had extremely limited scope.
1975 would have required mail-order purchasers of handguns to provide the seller with notarized affirmations that they met certain age and other requirements. In November and December, Dodd proposed amendments that would have applied to rifles and shotguns as well and would have required certification by the chief law enforcement officer of the purchaser's jurisdiction. Neither the original bill nor its successors were reported out of committee during the Eighty-ninth Congress. In part, this may have been due to Dodd's dilatory approach to legislation. The Ninetieth Congress was a different story. On the one hand, Dodd was no longer in real control, as censure proceedings steadily undermined his standing.
On the other, the Johnson Administration advocated stricter firearms control with increasing vigor. As the session began, Dodd introduced S.
1, which he quickly supplemented with Amendment 90. 1-90 would have supplanted the Federal Firearms Act: since S. 1-90 essentially laid the foundations of the Gun Control Act, its major provisions merit examination. Prohibited Persons S. 1-90 would have barred firearms receipt by fugitives (p.598)from justice and persons under indictment for, or convicted of, a crime punishable by imprisonment exceeding one year, a term defined to exclude antitrust, unfair trade, and similar infractions. These provisions were, in the main, borrowed from the Federal Firearms Act, which, however, applied this bar only to sales in interstate commerce. 1-90 would have allowed persons convicted of such violations-- other than violations of the federal firearms laws--to apply for an administrative 'relief from disabilities,' by which Treasury, upon proof of good character, might restore the right to own or deal in firearms.
The latter provision was taken from a 1965 amendment to the Federal Firearms Act, sponsored by Dodd to deal with the problems of a firearms manufacturer. Additionally, under S. 1-90, dealers would have been barred from selling rifles or shotguns to persons under eighteen years of age, or any other firearms to persons under twenty-one years of age, and they would have been generally forbidden to sell any firearm to those whom they knew or should have known 'could not lawfully purchase or possess in accord with applicable laws, regulations or ordinances of the State' or locality in which the transferee resided. Dealer Licensing S. 1-90 would have required persons 'engaged in the business' of firearms dealing to obtain licenses. This was an expansion of the Federal Firearms Act, which required licensing only if the person 'engaged in the business' and (p.599)shipped or received firearms in interstate commerce.
While the Federal Firearms Act licenses were issued upon request, and revoked only upon criminal conviction, S. 1-90 provided that the Secretary 'may' issue such licenses and must deny them if the applicant was 'by reason of his business experience, financial standing, or trade connections, not likely to commence business operations.' Persons who had willfully violated the Act or who lacked 'business premises' were likewise denied a license.
Dealers were obliged to maintain records fixed by regulation, and their premises were open to inspection at will during business hours. Interstate Sales The Federal Firearms Act barred interstate sales between nonprohibited persons only when the buyer's state required, and the buyer lacked, a license to purchase. 1-90 drew a line between 'long arms' (shotguns and rifles) and other firearms (primarily handguns). Persons who were not licensed dealers could purchase handguns only in their state of residence.
Residents of different states could sell each other rifles and shotguns so long as the receipt did not violate state or local law at the buyer's place of residence. Dealer 'mail order sales' of any firearms were barred by a provision barring a licensee from shipping firearms or ammunition to a nonlicensee in interstate commerce.
National Firearms Act Weapons The National Firearms Act required licensing of all machineguns, silencers, and short-barrelled rifles and shotguns. 1-90 would have imposed similar restrictions on 'destructive devices,' including bombs, grenades, and firearms with a bore over.50 caliber. Sales of National Firearms Act weapons and destructive devices by a licensed dealer required an affidavit of approval from the chief law enforcement officer of the purchaser's jurisdiction, and interstate transportation of such arms would have required approval by the Secretary. Importation S. 1-90 would have barred firearms imports subject to a few exceptions, the most important being rifles, shotguns, (p.600)and nonmilitary handguns 'generally recognized as suitable for or readily adaptable to sporting purposes.' The day before S. 1-90's introduction, Senator McClellan introduced S.
917, 'The Safe Streets and Crime Control Act of 1967.' In committee, the bill was renamed 'The Omnibus Crime Control and Safe Streets Act of 1967' and a new Title IV, dealing with firearms, was added. Title IV tracked S. 1-90 in all but a few details; it did not, for example, prohibit mail order sale of rifles and shotguns, nor place minimum age limits on their purchasers. After lengthy debate, the Senate passed S. 917 with several amendments. One amended the exemption for 'antique' firearms, which were not subject to the Act, advancing the cut-off date to 1898 from the committee's 1870 cut-off.
A second changed the prohibition on dealer's sales in violation of state or local law or ordinance. Under the amendment, the dealer's obligation was to avoid sales barred by state law or a 'published ordinance,' the latter being one determined by the Secretary of the Treasury (the Secretary) to be relevant to purposes of the Act and so published in the Federal Register. A third amendment was more significant and, regrettably, less well thought out. It amended S. 917 to add a new title VII, which prohibited certain persons not only from receiving, but also from possessing firearms. The list of prohibited persons did not, however, tally with that in Title IV.
To Title IV's list of convicted felons and fugitives from justice, Title VII added persons given a dishonorable discharge by the military, those judicially adjudged 'mentally incompetent,' (p.601)those who had renounced U.S. Citizenship, those who were aliens unlawfully within the U.S., or those who were acting in the course of employment of any of the other classes.
Nor did the discrepancy end there: Title IV had defined a felon as one convicted of a crime punishable by more than one year's imprisonment, excluding certain business-related offenses, while Title VII simply used the term 'felony.' Title IV excepted from this class a person given 'relief from disability'; Title VII excepted a person pardoned and 'expressly authorized' to own firearms. The Senate substituted S. 917, with these amendments, for the House-passed version of the bill, and the House accepted the Senate version. Thus did Titles IV and VII become law. Even before their enactment, however, it become apparent that these would not be the only gun controls enacted in 1968.
During the Senate consideration, the United States Supreme Court struck down the machinegun registration provisions of the National Firearms Act, necessitating a redrafting of that statute. In April 1968, while S. 917 was in Senate committee consideration, Rev. Martin Luther King (p.602)was murdered by a sniper. The day before the House vote, Robert F.
Kennedy was killed. The day of the House vote, President Johnson publicly denounced S.
917 as a 'half-way measure' that 'leaves the deadly commerce in lethal shotguns and rifles without effective control,' and the chairman of the House Judiciary Committee announced plans to introduce a new bill. The new bill, H.R. 17735, was indeed introduced on June 10, 1968; a move to report it out of Judiciary Committee the following day failed on a tie vote. As originally introduced, the main change worked by the bill would have been to ban sales of rifles and shotguns to nonresidents of the seller's state, to eliminate their sale by mail order and impose a minimum age of eighteen for their purchase from a dealer, to increase controls on handgun ammunition transfers and sales, and to redraft the National Firearms Act to avoid the fifth amendment flaw. Breaking the tie in committee required addition of several amendments. Chief among these were two narrow exemptions from the interstate transfer ban, and a major narrowing of the Secretary's power to deny a dealer's license.
Under the latter amendment, the Secretary was required, not merely authorized, to license a qualified individual within forty-five days of application; any denial was subject to de novo review in district court; and the applicant was no longer required to demonstrate trade connections proving his entrance into business within the license period. The committee amendments would also have expanded Title IV's list of 'prohibited persons' to include any person adjudicated 'a mental defective' or judicially committed to a mental institution, and persons unlawfully using or addicted to certain drugs. Unfortunately, no effort was made to coordinate these (p.603)with the list of Title VII 'prohibited persons.' On the House floor, the committee amendments were immediately accepted by voice vote without debate.
Over the course of the floor debates, other amendments were adopted: a class of 'licensed collectors' was added, with power to purchase curio and relic firearms interstate; importation of all military surplus arms, not just handguns, was banned; an additional penalty (mandatory only upon second offense) for use or illegal carrying of a gun in a federal crime was added; and Title IV's reference to 'published ordinances,' dropped by the committee in favor of 'local law,' was restored. The Senate substituted the text of a similar bill, S. 3633, but the House bill prevailed in conference.
The (p.604)resulting legislation, under the now-familiar name of 'The Gun Control Act of 1968,' supplanted both the earlier enactment of Titles IV and VII and large portions of the National Firearms Act. Enactment of the Firearms Owners' Protection Act One of the last House amendments to the Gun Control Act added section 101, declaring that 'it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law abiding citizens with respect to the acquisition, possession, or use of firearms.'
Enacting FOPA nearly two decades later, the Congress expressly found that 'additional legislation is required to reaffirm the intent of the Congress, as expressed in section 101 of the Gun Control Act.' Between the two statements lay eighteen years of experience and a seven-year legislative gestation period whose intricacies rivaled those of the Gun Control Act itself.
Enforcement of the Gun Control Act was initially delegated to the Alcohol and Tobacco Tax Division of the Internal Revenue Service, which had previously enforced the National Firearms Act and Federal Firearms Act. In 1969, this agency became the Alcohol, Tobacco, and Firearms Division; three years later it achieved full bureau status as the Bureau of Alcohol, Tobacco and Firearms (BATF).
To the stresses of growth was added the virtual collapse of BATF's traditional duties of enforcing the alcohol taxes. Almost forty percent of BATF's manpower (p.605)was directed at a law enforcement problem that had all but vanished. The agency response was a series of heavily publicized projects to demonstrate a potential for firearms operations. Agents and supervisors were implicitly or explicitly assigned quotas and older agents were increasingly replaced with younger, more zealous operatives. Pressure for results, coupled with extremely loose control, led to stringent enforcement of the Gun Control Act's provisions. This was hardly the first time a statute with broad enforcement powers had been pushed to the limit but BATF's victims were typically appealing citizens and were (p.606)represented by relatively well-connected organizations.
Even so, the opening skirmish came not over law enforcement, but over the Gun Control Act's creation of a secretarial power to require submission of reports by licensees. BATF's attempt to use this power to require manufacturers, importers, and wholesalers to report firearm transfers for agency data processing led to a credibility-damaging legislative fight and prohibitory riders on Treasury appropriations. The serious conflict soon followed. Beginning in early 1979, Senate hearings publicized a number of cases of serious abuses of enforcement powers. This documentation (p.607)was later cited as the empirical foundation of FOPA. Within months of the first hearing, the earliest versions of FOPA were introduced in both House and Senate.
These versions proposed extensive amendment of the Gun Control Act. Their main provisions may be summarized as follows: Dealer Licensing A dealer's license would be required of anyone 'whose time, attention and labor is occupied by dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of an inventory or [sic] firearms.'
Persons making occasional sales or selling all or part of a 'personal collection' were expressly excluded. Interstate Sales Sales to nonresidents by dealers and nondealers alike would be allowed unless receipt of the firearm by the purchaser 'would be in violation of any published ordinance or law of the state or locality where such person resides.' Prohibited Persons Inconsistencies between Title VII and Title IV (p.608)prohibitions would be resolved by repealing Title VII and merging its prohibited person classes with those of Title IV. The result would be a single set of provisions barring possession or receipt by, and sale or transfer (by dealer and nondealer alike) to a list of prohibited classes. The bar on possession by felons would be narrowed to those convicted of certain 'disabling crimes' defined as violations of twenty-three chapters of the United States Code 'or any similar crime.'
Persons under indictment were not included within the proscription, nor were persons with convictions 'set aside or expunged.' Enforcement Criminal prosecution would require proof of a willful violation. Forfeiture would require conviction; any verdict other than guilty, or failure to prosecute within 120 days of seizure, would require return of the seized property.
Only firearms named and 'individually identified' as involved in or used in (not 'intended' to be used in) a willful violation would be subject to forfeiture. License revocation would be barred if criminal charges were filed and the licensee was not convicted. Attorneys' fees 'shall' be allowed to victorious claimants in forfeiture actions and 'may' be allowed in other actions in which the court finds charges were without foundation, or brought vexatiously, frivolously or in bad faith. Records Warrantless inspection of the premises of a licensee would be allowed only when reasonable grounds existed to believe evidence of a violation of the chapter might be found. Rulemaking A minimum of ninety days' public notice would be required; 'One-House Veto' provisions were established.
No rule could require records to be transferred to a federal or state facility, or establish a system of firearm registration. Mandatory Sentencing The Gun Control Act's additional sentence (technically, an additional offense) for use or unlawful carrying of a firearm (p.609)in a federal crime would be made mandatory on first offense, rather than on second. Interstate Transportation Any state law or regulation prohibiting the transfer of a firearm in interstate commerce through the state 'provided that the firearm is unloaded and not readily accessible' would be rendered null and void. These original forms of FOPA saw no legislative action in the Ninety-sixth Congress. A successor, S. 1030, was introduced in the Ninety-seventh Congress.
1030 as introduced contained several significant changes from S. 1030 added a prefatory statement of purpose, citing the objective of protecting individual rights under the second, fourth, fifth, ninth and tenth amendments along with rights granted under the Privacy Act, and adding a finding that the purposes of the Gun Control Act had been thwarted by harassment of law-abiding citizens. A second, substantive change completely restructured treatment of 'prohibited persons.'
1862's attempt to define specific 'disabling' offenses was dropped, and the Gun Control Act's broad inclusion of nonbusiness felonies was retained, together with its bar on receipt (but not possession) by those under indictment. In exchange, the scope of administrative relief from disability was expanded. Such relief was made available to any 'prohibited person,' thus making it available to those barred by reasons other than a conviction and to those whose convictions were for Gun Control Act and National Firearms Act violations. The Secretary was to grant such relief, unless his investigation indicated that the person was likely to violate the law or endanger the (p.610)public safety, and a denial could be reviewed de novo in the district court. A second major change came in the forfeiture section. Criminal conviction would no longer be a prerequisite for forfeiture, but in return forfeitures were limited to willful violations and an acquittal or dismissal of the owner on criminal charges barred forfeiture on those allegations. 1030 also added a recognition that a licensed dealer might maintain a firearm collection separate and apart from his inventory.
Interstate sales, on the other hand, were required to conform not only with the laws of buyer's place of residence, but also with those of the seller's. Many of these changes bear the appearance of a quid pro quo. This is not without reason; most grew out of the early stages of negotiation between the National Rifle Association (NRA), the main private supporter of the bill, and Treasury Department (Treasury) officials, and were in fact based upon detailed bargaining and exchanges. These meetings continued over the year that passed between S. 1030's introduction and its committee markup. The Judiciary Committee, following that markup, reported out an amendment by way of substitute which incorporated several amendments negotiated in these meetings. 1975, University of Arizona.
Staff attorney, Office of the Solicitor, U.S. Department of the Interior, Washington, D.C. The opinions expressed in this Article are those of the author and are not intended to reflect any position of his Department. The author thanks C. Garner Sanford, Jeffery R. Barber, and James R.
Grisham for their assistance in preparing this Article for publication. Note: The author may be contacted at: 8987 E. Tanque Verde, Suite 265, Tucson, AZ 85749. E-mail: dhardy@indirect.com. Home page: ] Firearm Owners' Protection Act, Pub.
99-308, 100 Stat. 449 (1986) [hereinafter FOPA]. See The Gun Control Act of 1968, Pub. 90-351, 82 Stat. 225 (codified as 18 U.S.C. §§ 921-29 (1982)). Minor amendments to the Gun Control Act included the Act of Dec.
21, 1982, Pub. 97-377, 96 Stat.
1923, which relieved licensed dealers of recording requirements on.22 rimfire ammunition, the Act of Oct. 12, 1984, Pub. 98-473, 98 Stat. 2138, which expanded mandatory sentencing provisions for use of a firearm in a federal crime, and the Act of Oct.
30, 1984, Pub. 98-573, 98 Stat. 2991-92, which allowed importation of most military surplus arms that qualified as curios and relics. See 132 Cong. H1665 (daily ed. 9, 1986) (statement of Rep.
At H1696 (statement of Rep. Scheuer); 132 Cong. H1751 (daily ed. 10, 1986) (statement of Rep.
FOPA was originally introduced in the Senate as the Federal Firearms Reform Act of 1979. 1862, 96th Cong., 1st Sess., 125 Cong. 27,383 (1979). H1173-74 (daily ed. Telephone interview with Mary K. Jolly, former General Counsel, Subcommittee on the Constitution of the Senate Judiciary Committee (Mar. Clearly negated is United States v.
One Assortment of 89 Firearms, 465 U.S. 354 (1984), which interpreted the Gun Control Act to permit forfeiture actions for alleged violations on which the owner had previously won a criminal acquittal. § 104(d) of FOPA bars forfeiture under these circumstances. The Senate report on the immediate predecessor to FOPA singles out this decision as overruled, S.
583, 98th Cong., 2d Sess. 25 n.56 (1984); the report on FOPA's predecessor in the previous Congress endorsed the circuit ruling which the United States Supreme Court later reversed. 476, 97th Cong., 2d Sess. The former report also indicates that FOPA is meant to render inapposite Dickerson v. New Banner Institute, 460 U.S.
583, 98th Cong., 2d Sess. 7 n.16 (1984).
Dickerson held that a guilty plea constituted a disabling conviction as a matter of federal law, even though entered under a state procedure whereby the court did not make a final judgment of guilt. Section 101(5) of FOPA provides that the determination of whether a court proceeding resulted in a felony conviction shall be determined by reference to state law. Partially negated is United States v. Biswell, 406 U.S. 311 (1972), which upheld warrantless searches, not based upon cause, of a licensed firearms dealer's premises.
Section 103(g) of FOPA requires a reasonable cause and a warrant for such inspections, albeit with broad exceptions. Section 103(a) of FOPA requires proof of a willful violation for most Gun Control Act prosecutions and proof of a knowing violation for the remainder. It, thus, negates or narrowly limits United States v. Freed, 401 U.S. 601 (1971), which interpreted portions of the Gun Control Act which required registration of, inter alia, hand grenades, as requiring no proof of scienter.
The Court singled out the unusual nature of the weapons involved, Freed, 401 U.S. At 609, Brennan's concurrence suggested that proof was required that the defendant knew the items involved were of the type named in the statute, id. At 612, and the Court soon stressed that 'strict or absolute liability is not imposed.'
United States v. International Minerals & Chem.
Corp., 402 U.S. 558, 560 (1971). Despite all these factors, the lower courts construed Freed broadly as requiring no proof of knowledge for any requirements of the Gun Control Act. See, e.g., United States v. Ware, 758 F.2d 557 (11th Cir.
1985) (defendant's belief that he could lawfully receive firearms would be irrelevant and inadmissible); United States v. Pruner, 606 F.2d 871 (9th Cir. 1979) (trial court committed no error in not permitting the jury to consider whether defendant knew it was illegal for him to receive a firearm); United States v. Ruisi, 460 F.2d 153 (2d Cir. 1972) (government need not establish that defendant knew it was illegal for him to receive firearms). Two additional decisions that were good law prior to the 98th Congress are inapposite today, although not solely by virtue of FOPA.
United States, 435 U.S. 6 (1978) and Busic v. United States, 446 U.S. 398 (1980) both held that a defendant charged with an offense which embodied enhanced punishment for use of a weapon could not also be charged under the Gun Control Act with the offense of using a firearm in a federal felony. Both decisions were premised upon the absence of statutory history to the contrary: section 104(2) of FOPA expressly includes enhanced-punishment offenses within the ambit of the Gun Control Act offense, and the Senate reports both indicated that these decisions would no longer be good law. 583, 98th Cong., 2d Sess.
476, 97th Cong., 2d Sess. However, between the 1984 committee action and the Senate floor vote, the critical language was separately enacted. See Act of Oct. 12, 1984, Pub. 98-473, 98 Stat.
Section 104(a)(2) of FOPA in turn reincorporates the language of the 1984 enactment. Department of Treasury, 602 F.
682 (D.N.J.), prob. Noted, 106 S.
307 (1985), vacated, 106 S. 2683 (1986), a challenge to the Gun Control Act's failure to include a mechanism whereby those disabled from gun ownership by a prior mental commitment can obtain a 'relief from disability' (the Gun Control Act's relief provisions are, on their face, limited to those disabled by a felony conviction), is mooted by section 105 of FOPA. The author's quick count of caselaw listed in the United States Code Service (Lawyers' Co-op, 1979) under 'elements of the offense' and 'defenses' for 18 U.S.C. 922 indicates the interpretations of the Gun Control Act in about 70 cases would be entirely negated, the interpretations of the Act in about 10 cases would be partially negated, and the interpretations of the Act in about 156 cases would be unaffected. The cases thus legislatively overruled span the breadth of the Gun Control Act. See, e.g., United States v. Cody, 702 F.2d 147 (8th Cir.
1983) (expungement of state conviction for firearms-related felony not an absolute defense to federal ban on gun possession by a convicted felon: overruled by section 101 of FOPA, redefining disabling convictions to exclude expunged convictions unless such expungement limits the right to transport or possess firearms); Perri v. Department of Treasury, 637 F.2d 1332 (9th Cir. 1981) (on appeal from administrative revocation of license, court reconsiders administrative record and may avoid taking additional evidence unless dealer raises 'substantial doubt' as to record: overruled by section 103(5) of FOPA, which requires de novo hearing); United States v. Scherer, 523 F.2d 371 (7th Cir. 1975) (licensed dealer cannot transfer personally-owned firearms without complying with all requirements for ordinary sale by a dealer: largely overruled by section 103(3) of FOPA, exempting such personal-collection sales so long as firearm was owned more than a year and transaction was not willful evasion of Act), cert. Denied, 424 U.S. 911 (1976); Thrall v.
Wolfe, 503 F.2d 313 (7th Cir. 1974) (gubernatorial pardon for state firearms-related felony conviction does not give exemption from federal ban on gun possession by convicted felon: overruled by section 101 of FOPA, redefining disabling convictions to exclude pardoned offenses unless the pardon itself prohibits the recipient from possessing firearms), cert. Denied, 420 U.S.
972 (1975); United States v. Jackson, 352 F. Ohio) (dealer cannot obtain license for temporary premises such as a 'gun show': overruled by section 103(7) of FOPA, which specifically authorizes licenses for such premises), aff'd, 480 F.2d 927 (6th Cir. Denied, 424 U.S. Section 107 of FOPA adds to the nonpreemption provisions of the Gun Control Act, 18 U.S.C. § 927, a proviso that any person not barred from transporting arms by the act may transport an unloaded, inaccessible firearm in interstate commerce, notwithstanding state law or regulation.
It has been estimated that laws of at least 21 states may be affected. S9117-18 (daily ed. July 9, 1985) (statement of Sen. The Attorney General of Massachusetts has already ruled that the Massachusetts firearms law (which, with its mandatory one-year sentence for unlicensed carrying, is one of the nation's strictest) is inapplicable to travellers who comply with FOPA's pass-through provisions. Letter from Francis X. Belloti, Attorney General, to Charles V. Barry, Secretary, Executive Office of Public Safety (Oct.
31, 1986) (copy in possession of Cumberland Law Review). FOPA's provision, in section 101(5), that a state expungement or restoration of civil rights following conviction restores federal rights to possess firearms, absent a state provision to the contrary, may also have a secondary effect on state laws.
Some states have extremely liberal provisions on restoration of rights. See generally infra notes. Such states may desire to clarify whether there are conditions under which the restoration of rights should be taken to extend to firearm possession. The most crucial of these compromises were reached in a series of 1983 meetings between representatives of the Treasury Department and representatives of the National Rifle Association, aimed at achieving a bill acceptable both to the enforcing agencies and to the major private group endorsing FOPA.
See generally infra notes. In the House, the majority leadership was numbered among FOPA's opponents. When it became apparent that the discharge petition was approaching success, the House Judiciary Committee reported out a bill, H.R. 4332, which embodied some of FOPA's provisions and was intended to siphon off support from its rival.
See infra notes. On the House floor, FOPA was substituted for H.R. See 132 Cong. H1752-53 (daily ed. FOPA thus became H.R.
4332, assuming the numbering of its erstwhile rival. FOPA's underlying report is, thus, designated as the H.R. 495, 99th Cong., 2d Sess. In fact, H.R. 495 urges that the original H.R.
4332 ought to be adopted and argues for the rejection of its rival, FOPA. 523-27 (daily ed. 476, 97th Cong., 2d Sess. 23 (1983); S. 583, 98th Cong., 2d Sess. The most significant difference was in the definition of 'willful' as used in section 104 of each bill.
See generally infra notes. Act of July 8, 1986, Pub.
99-360, 100 Stat. This amendment originated when the House-passed version of FOPA was returned to the Senate. The Senate agreed to some further amendments as the price of obtaining a filibuster-preventing time agreement from FOPA's opponents. The amendments could not simply be incorporated in FOPA itself, or the Senate would be required again to return it to the House, where the leadership would likely let it die. The Senate instead passed the House bill, then introduced and passed S. 2414 to amend it. S5367-68 (daily ed.
May 6, 1986). 152, 99th Cong., 2d Sess., 132 Cong.
S5367-68 (daily ed. May 6, 1986). This was necessary since some of FOPA's provisions took effect immediately and the remainder six months later. 2414 would have amended both types of provisions and had no specified effective date.
The resolution indicated that each section of S. 2414 would take effect on the date the section it amended would have. This need is, unfortunately, hardly obviated by the promulgation of regulations implementing FOPA. 39,612; 39,635 (1986). The regulations were promulgated without notice or opportunity for comment, and they contain no explanation of changes made or their justification under the new statute. 25, 1837, Digest of the Statute Laws of the State of Georgia in Effect Prior to the Session of the General Assembly of 1851, at 818 (1851). 'Such pistols as are known and used as horsemen's pistols' were exempted; these were the largest and heaviest then in use.
The statute was voided as a violation of the second amendment to the U.S. Constitution in Nunn v. See, e.g., Act of Mar. 18, 1889, 1889 Ariz.
Laws 16 (prohibiting carrying of pistols within any settlement, town, village or city); Act of Apr. 1, 1881, 1881 Ark. Acts 191 (prohibiting sale of 'any pistol except such as are used in the army and navy of the United States'; upheld in Dabbs v. State, 39 Ark. 353 (1883)); Act of Feb. 4, 1889, 1889 Idaho Sess.
Laws 23; Un Acto Prohibiendo el Porte de Armas Mortiferas, 1868-69 Leyes del Territorio del Nuevo Mejico 61; Act of June 11, 1870, ch. 13, 1870 Tenn. Acts 28 (prohibiting carrying of handguns and certain other weapons in 'public assemblies of the people'; partially struck down in Andrews v. State, 50 Tenn. (3 Heisk.) (1872)); Act of Apr. 12, 1871, ch. 34, 1871 Tex.
Laws 25 (upheld in English v. State, 35 Tex.
The Commissioners appointed a special committee to draft such a law at their 1923 meeting; seven years later a third draft at length secured approval. See, e.g., Third Report of the Committee on a Uniform Act to Regulate the Sale and Possession of Firearms (1926); Report of the Committee on a Uniform Firearms Act (1930). The Uniform Act, as finally adopted, required licensing of handgun dealers, forbade dealers to sell to certain classes of persons (those with a record of criminality, narcotics addiction, alcoholism, or mental defect), and required a permit to carry a handgun outside the home or business. See generally T.
Mahl, A History of Individual and Group Action in Promoting National Gun Control Legislation During the Interwar Period, 1919-1941 (unpublished manuscript) (Master's thesis, Kent State Univ., 1972). The prohibition survives to this day. See 18 U.S.C. § 1715 (1982). Available evidence suggests that crime rates then were not astonishing by modern standards, but were seen as increasing beyond the capacity of existing law enforcement systems to cope.
Chicago's increase in homicides, for instance, was enough to cause virtual collapse of the city's criminal processing system; yet, the reported rate was only about one-third that reached in more recent years. Illinois Law Enforcement Comm'n, Statistical Analysis Center, Patterns of Change in Chicago Homicide: The Twenties, the Sixties and the Seventies 11, 13 (Apr. 1980) (noting that only about four percent of Chicago homicides were solved in 1926, even where the offender was known; yet, 1926's homicide rate of 10.4 per 100,000 population was far exceeded by its 1974 rate of 29.2). National Firearms Act: Hearings on H.R. 9066 before the House Comm.
On Ways and Means, 73d Cong., 2d Sess. Since the U.S. Population was then but half its present level, id. At 31, the figure does seem a bit high. Investigation of So-called 'Rackets': Hearings Pursuant to S. 74 before a Subcomm. Commerce Comm., 73d Cong., 2d Sess., vol.
3 at 283, 307-8, 316 (1933). One proponent of a national vagrancy law proposed a constitutional amendment to remove any question as to its constitutionality, explaining: '[W]hen our Constitution was framed there is no question but what it was a great work and was framed with the utmost sincerity.
At that time there were no gangsters, however. At that time they did not have these corrupt syndicates and organized rings.
[T]oday the man who takes advantage of personal liberty is the gangster, the gunman, the kidnapper.' Indeed, it would remain an issue for several more years. The following year saw Schechter Poultry Corp. United States, 295 U.S. 495 (1935), which held the interstate commerce clause an insufficient underpinning for requirements of a 40-hour week, a minimum wage and a restriction on child labor; these aspects of manufacture were held to have an insufficiently 'direct' effect on interstate commerce. The following year saw United States v.
Butler, 297 U.S. 1 (1936), which restricted use of the taxing power to achieve nonrevenue ends. Only in 1937, with the famed 'switch in time that saved nine' ( West Coast Hotel Co. Parrish, 300 U.S.
379 (1937) and its successors N.L.R.B. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) and N.L.R.B. Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1937)) did the Court initiate the current, expansive view of the interstate commerce power. 63-223, 38 Stat.
United States v. Doremus, 249 U.S. Four Justices, including the Chief Justice, dissented on grounds that the statute invaded the reserved police powers of the state. '[W]e have followed the Harrison Anti-Narcotic Act in language so as to get the benefit of any possible interpretation that the courts may have made of that act.' National Firearms Act: Hearings on H.R. 9066 before the House Comm.
On Ways and Means, 73d Cong., 2d Sess. 6 (1934) (testimony of Attorney General Homer Cummings) [hereinafter Hearings on H.R.
73d Cong., 2d Sess. (1934) (reprinted in Hearings on H.R. 9066, supra note, at 1-3). The bill got a very slow start due to rather gross mishandling by the Justice Department. Since the bill was based on the taxing power, U.S.
I, § 7, it should have originated in the House. Yet the Justice Department referred the bill to Senator Henry Ashurst for introduction. Apart from being in the wrong chamber, Ashurst was hardly likely to be enthusiastic--he carried a.45 for self-protection. When Justice realized its constitutional and practical mistakes, it compounded them by asking Rep. Hatton Summers to champion the bill. Summers, an advocate of state's rights and no friend of Homer Cummings, was already sitting on a dozen Administration anticrime bills and had just finished an infuriating verbal clash with President Franklin D.
Roosevelt over them. Only the fortuitous arrival of Raymond Moley, an FDR associate whom Summers trusted, calmed him sufficiently to discuss introduction of H.R. 9066 and the other bills. Mahl, supra note, at 127-31. 9066, supra note, at 1. When the possibility of registering firearms already owned was first raised, Attorney General Cummings replied 'I am afraid it would be unconstitutional,' apparently due to lack of any connection with revenue or interstate commerce. Hearings on H.R.
9066, supra note, at 13. While intended to eliminate a double registration requirement for those who registered prior to the expiration of the sixty days, the exemption led to the registration requirement being stricken as a violation of the fifth amendment's self-incrimination clause some 34 years later. See Haynes v. United States, 390 U.S. Hearings on H.R. 9066, supra note, at 87 (testimony of Ass't Att'y Gen.
Joseph Keenan). 1780, 73d Cong., 2d Sess. The House report notes: 'Your committee is of the opinion that limiting the bill to the taxing of sawed-off guns and machine guns is sufficient at this time. It is not thought necessary to go so far as to include pistols and revolvers and sporting arms.' The amendment deleting pistols and revolvers carried by one vote.
Mahl, supra note, at 152. Since the definition of concealable arms other than pistols and revolvers was retained, there remained a requirement to register these obscure items, largely cane-guns, knife-pistols, 'palm pistols' and other small firearms not readily classified as a traditional pistol or revolver. See Hearings on H.R. 9066, supra note, at 12. Address by Homer Cummings, Firearms and the Crime Problem at 8 (before 1937 annual convention of the International Assn.
Of Chiefs of Police). 73-474, 48 Stat. 2258, 73d Cong., 1st Sess., 78 Cong. See also To Regulate Commerce in Firearms: Hearings on S.
3680 before a Subcomm. Of the Senate Commerce Comm., 73d Cong., 2d Sess. 1-3, 8 (1934). Among other obvious problems, only licensed manufacturers, not dealers, could ship firearms in interstate commerce.
Bullets were to be stamped 'on the ends' with a district code, in the hopes the stamp would survive impact and that knowledge of the multistate region into which the ammunition had been shipped would aid in the solution of crimes. 2258, supra note, §§ 2(a), (i). 11,973 (1935) ('[F]inally the bill was worked out by a committee consisting of the Rifle Association, the Pistol Association, members of the so-called Crime Committee and our own experts.' ); To Regulate Commerce of Firearms: Hearings on S. 3 before the Senate Comm. On Commerce, 74th Cong., 1st Sess.
1 (1935) [hereinafter To Regulate Commerce of Firearms]. To Regulate Commerce of Firearms, supra note, at 1. 3, 74th Cong., 1st Sess., 79 Cong. See also To Regulate Commerce of Firearms, supra note, at 1-3. To Regulate Commerce of Firearms, supra note, at 27. 11,973-74 (1935). 75th Cong., 1st Sess., 81 Cong.
The record reflects no reason for the change; likely it was a simple economy move, as Treasury was already enforcing the National Firearms Act. Federal Firearms Act, Pub. 75-785, 52 Stat. The 'Gun Control Act of 1968' is today used to refer to the statutes codified at 18 U.S.C.
§§ 921-27, app. §§ 1201-03 (1985). In fact, these reflect two separate enactments, Titles IV and VII of the Omnibus Crime Control and Safe Streets Act, 82 Stat. 225, 236, and the later Gun Control Act, 82 Stat. A favorite of J. Edgar Hoover, Dodd functioned during the late 1960s as acting Chairman of the Senate Committee on Internal Security. 22, 1963 remark--'I'll say of John Kennedy what I said of Pope John the day he died.
It will take us fifty years to undo the damage he did to us in three years'--suggests that he could hardly be considered on the 1960s left. Boyd, Above the Law 9, 55, 106 (1968). Interview with Charles Grey (Nov. Grey, a dedicated and opinionated man whose memory matched his personal library, recalled overhearing Dodd, who was then in the Senate lobby preparing for the reading of his censure, send an aide for the handgun, which he slipped into his pocket. The first aide asked a second whether Dodd might intend to shoot someone else; the second replied, 'No, but he might mean to kill himself.' The second aide then engaged Dodd in conversation and removed the gun from his pocket; the distraught Dodd made no protest. Dodd was elected from Connecticut, the home ground of Samuel Colt.
Then, Connecticut was the headquarters not only of Colt, but also of High Standard, Remington, Mossberg, Winchester-Western, Sturm-Ruger, and Marlin. Connecticut is to firearms what Michigan is to automobiles. Jack Anderson later charged that '[t]he Big Five--Colt, Olin-Mathieson, Sturm-Ruger, Remington Arms, and Winchester--all have plants in Connecticut. We now learn that Dodd seldom made a move on gun legislation without consulting them.'
Washington Post, Aug. 9, 1966, at B15, col. During hearings on later drafts of Dodd's bill, the president of the firearm and ammunition manufacturers' trade association testified, '[T]his country has in recent years been flooded with millions of cheap surplus military firearms. Since 1961 we have cooperated with this Subcommittee in seeking to formulate legislation along these lines.' Statement of E.C.
Hadley, President of the Sporting Arms and Ammunition Manufacturers' Institute, Remington News Letter, June 1965, at 3-4 (copy in possession of Cumberland Law Review). The conversion was not particularly difficult. The surplus arms were primarily bolt-action rifles outmoded by the adoption of semi- and full-automatic arms during the 1950s and 1960s. Most were based upon the Mauser 1898 action, which is also the starting point for the design of most modern sporting rifles. A simple conversion consisted of no more than trimming the wooden stock to reduce weight; more complex conversions could include restocking, rebarrelling, and fitting of a telescopic sight.
One petition alleged that domestic rifle production had fallen 60% during the 1950s and that with continued sales 'the entire small arms industry sales of centerfire rifles could be blanketed up to the end of this century!' Letter from E.C. Hadley, President of Sporting Arms and Ammunition Manufacturers' Institute to Neil McElroy, Secretary of Defense (Sept.
15, 1958) (copy in possession of Cumberland Law Review). 1696, 85th Cong., 2d Sess. 45-46 (1958). NRA Bulletin, May 1958 (copy in possession of Cumberland Law Review). 1627, 85th Cong., 2d Sess.
22-23 (1958). See Mutual Security Act of 1958, § 205(k), 72 Stat. Several of Dodd's staff later charged that while Dodd was 'drafting, with the collaboration of the arms industry, legislation to control the interstate shipment of firearms and other matters of fundamental interest to that industry, he accepted upwards of $4,000 in political and personal donations from arms industry officials.' Boyd, supra note, at 270. During a re-election campaign following passage of the Gun Control Act, Dodd issued a pamphlet stating that the Act 'guarantees that legitimate firearms manufacturers in Connecticut will not be forced to lay off employees due to unfair competition from small irresponsible out-of-state garage operations which had glutted the market before the Dodd Act.' Dodd Campaign Headquarters, 'The Dodd Gun Rights Act' (copy in possession of Cumberland Law Review).
13,945 (1963). Dodd said the bill 'has been thoroughly discussed with the gun industry and the gun clubs, [and] they have approved and endorsed the provisions of our proposal.' At 13,946-47. He added that NRA had 'worked closely with the Committee throughout its investigation and [had] participated willingly in the development of the bill.'
His previous investigations of the insurance, entertainment and drug industries had been characterized by delays while the industry's willingness to back its position with fiscal support was verified. Boyd, supra note, at 187, 195, 264-65.
The investigating committee delivered its report in April 1967; the censure vote came in June. On Standards and Conduct, Rep. 193, 90th Cong., 1st Sess. The investigation was heavily publicized through the following year. It was, for instance, the cover story for the Saturday Evening Post, Jan. For example, the President's State of the Union Address in January 1968 called for Congress 'to stop the trade in mail order murder, to stop it this year by adopting a proper gun control law,' 1 Pub.
Papers 25, 30 (1968); five months later, a presidential letter criticized Senate passage of 'a watered down version of the Gun Control Law I recommended.' Papers 14, 694 (1970).
During the Ninetieth Congress, Dodd referred to his amendments as submitted on behalf of the administration, 113 Cong. 3255 (1967); similar statements were made by sponsors of S. 917, the rival to Dodd's measures. 3257-60 (1967). As originally enacted, the Federal Firearms Act had only banned firearm receipt by those convicted of a 'crime of violence.' In 1947, this was defined so as to include burglary, house breaking, and many forms of assault.
10, 1947, 61 Stat. In 1961, the prohibition was extended to anyone convicted of a 'crime punishable by imprisonment for a term exceeding one year,' thus including nonviolent offenses as well as some violations technically classed as misdemeanors under certain state laws. 3, 1961, 75 Stat. 15, 1965, Pub.
89-184, 79 Stat. The manufacturer, Olin-Mathieson, had pleaded guilty to offenses involving the overseas sale of pharmaceuticals financed by U.S. Under the Federal Firearms Act the firm, as a 'person' convicted of a felony, would have been barred from interstate shipment of firearms and, more importantly, ammunition. The court stayed judgment of conviction to give the firm an opportunity to seek legislative change.
After a few visits and donations, Dodd sponsored the amendment which allowed the firm to obtain a 'relief from the disabilities.' Washington Post, Aug. 9, 1966, at B15, col.
3,258 (1967). 917, 90th Cong., 1st Sess., 113 Cong. 2902-04 (1967). 1097, 90th Cong., 2d Sess. 20-27 (1967).
14,793 (1968). The sponsor, Senator Bayh, explained that otherwise the dealer might be held responsible for 'knowing every ordinance dealing with firearms in all of the villages and hamlets of the country.' Revisions were to be made annually and supplied to all licensed dealers. This floor amendment by Senator Long came with little explanation; the explanation ended with 'Several Senators: Vote! At 14,772-75. Title VII was codified at 18 U.S.C. § 1202 (1982).
It was repealed by FOPA, which incorporated its categories into the Title IV structure and ended the legislative and logical schism here described. Technically, Title VII as passed forbade gun possession by any person who had 'been discharged from the Armed Forces under other than honorable conditions.' Omnibus Crime Control and Safe Streets Act of 1968, § 1201, 82 Stat.
After various veteran's groups pointed out that this would encompass certain persons legally classified as 'veterans,' but discharged for minor misbehavior, this was amended to its present form. See 114 Cong. 22,765 (1968). Even this does not exhaust the list of discrepancies. Title IV barred its prohibited persons from receiving a firearm 'which has been shipped' in interstate commerce; Title VII prohibited its classes from receiving or possessing 'in commerce or affecting commerce.' The punishment for violating Title IV was five years' imprisonment and/or a $5,000 fine; that for violating Title VII was two years and/or $10,000. 1097, 90th Cong., 2d Sess.
14,798 (1968). The procedure of substituting a bill by way of amendment onto a bill passed by the other house is not meant purely to annoy researchers, although it certainly has that effect. The substitution enables a conference to be called, by ensuring that both houses have passed a bill numbered, in this case, H.R. 5037--even though the H.R. 5037 as passed by the Senate is actually little but the House bill number tacked onto a bill originated and passed by the Senate. 16,271; 16,300 (1968).
90-351, §§ 902-07, 1201-02, 82 Stat. 226-33, 236-37 (1968). United States, 390 U.S. The Supreme Court found a fifth amendment infraction based upon the unusual drafting of the registration clause. As discussed supra, the National Firearms Act had been heavily based on the taxing power, and the registration of machineguns already owned at the date of enactment came in as an afterthought. This was accomplished by a clause requiring registration within 60 days of the effective date.
Because some might already have been registered and taxed after the effective date and before expiration of the 60 days, an exception was inserted for firearms which had been lawfully transferred and the tax on which had been paid. Haynes, who had illegally come into possession of the firearm decades after the 60 days had passed, was thus being prosecuted for having failed to register himself essentially as a recipient of a machinegun under illegal conditions. Papers 1968-69, at 694 (1970). The compilers of the papers note that the letter was also read for radio and television broadcast. 16,272 (1968).
Kukla, Gun Control 351 (1973). 17,735, 90th Cong., 2d Sess., 114 Cong.
22,223-26 (1968). The ban on receiving firearms from a nonresident would have been made subject to two exceptions: one for acquisitions by bequest or intestate succession, and the other for purchases of rifles and shotguns in a physically contiguous state, where the law of the recipient's state permitted such acquisitions. 1577, 90th Cong., 2d Sess.
2 (1968), reprinted in 1968 U.S. Title VII's prohibitions included several classes (persons with dishonorable discharges, illegal aliens, and those renouncing U.S.
Citizenship) that would not have been barred under Title IV as amended. The differing definition of a disabling conviction, and the exceptions thereto, not to mention the differing definitions of 'firearm' and the necessary connection with commerce, would not have been reconciled. While the amendment would have added mental adjudications to Title IV, Title IV would refer to persons judged a 'mental defective' or committed, while Title VII referred to those judged 'mentally incompetent.'
Apart from this, while each Title would recognize ways in which a person disabled by a conviction might remove the disability, by pardon or administrative relief, neither would recognize a way by which the other classes might remove the disability. See generally supra notes. 22,226-29 (1968). The Committee's reporting of the original bill with a separate list of amendments--rather than actually making the amendments in the reported bill--and the acceptance of the amendments without objection underlines their compromise nature. It might be mentioned that after the report, further compromise (largely the Chairman's agreement to oppose national firearm registration if proposed as an amendment either on the floor or in conference) was necessary to secure a favorable vote in the House Rules Committee. Kukla, supra note, at 414-15. 22,763; 23,072 (1968).
At 22,779-80. At 23,069-70. Unfortunately, the sponsor of this amendment apparently was unaware that Title IV used 'published ordinance' as a term of art, see supra notes, explaining that he had in mind 'that local ordinances should either be published in newspapers.
Or in pamphlet form.' 23,070 (1968). Fortunately, the conference adopted a portion of the Senate bill, which also restored the definition of 'published ordinance.' 1956, 90th Cong., 2d Sess. 27,491 (1968). Technically, the conference drafted a substitute for both bills. Practically, however, the substitute accepted H.R.
17,735, adding on a number of minor Senate amendments--expanding ammunition controls to cover rifle and shotgun ammunition, defining 'published ordinance,' authorizing the Secretary to define the 'curios and relics' that licensed collectors might ship interstate, and including persons administratively, rather than judicially, committed to a mental institution as 'prohibited persons.' See generally H.R. 1956, 90th Cong., 2d Sess.
(1968), reprinted in 1968 U.S. 90-616, 82 Stat. 22,773 (1968); see Gun Control Act of 1968, Pub.
90-618, § 101, 82 Stat. Firearms Owners' Protection Act, Pub.
99-308, § 1(b)(2), 100 Stat. Hardy, The BATF's War on Civil Liberties 7 (1979). As the agency name might suggest, pre-1968 enforcement of the firearms laws was regarded as an agency sideline. In the early 1970s the retail price of sugar, the main raw material of 'moonshine,' skyrocketed. Illegal manufacture of alcohol became largely unprofitable. The number of illegal distilleries raided by BATF fell from 2,981 in 1972 to only 361 six years later. It was hard to justify retaining five to six hundred agents to raid barely 300 'stills,' many quite small, annually.
See generally id. In 1973, for instance, BATF fielded 952 agents for firearms enforcement, and 670 agents for nonfirearms enforcement. Virtually all of the latter were charged with alcohol tax enforcement; enforcement of federal (as opposed to state) tobacco taxes has never been much of a problem. The crowning project was 'Operation Concentrated Urban Enforcement (CUE),' which focused on a 1977 effort to dramatically increase the number of BATF agents assigned to three cities. See generally U.S. Bureau of Alcohol, Tobacco and Firearms, Concentrated Urban Enforcement (1977).
See also Hardy, Firearm Ownership and Regulation: Tackling an Old Problem with Renewed Vigor, 20 Wm & Mary L. 235, 271-83 (1978). As the head of one agents' association wrote: Enormous pressure was placed on agents sent to the CUE cities to 'produce statistics.' One agent was given an advertisement from an Alexandria, Virginia newspaper offering two guns for sale. Acting undercover he purchased one (a.22 caliber target pistol) and reported that the seller was not a 'dealer' and had only one other for sale, a.22 caliber rifle.
He was told to return to the citizen, purchase the rifle and charge him with carrying on the business of a firearms dealer without a license. Approximately 65 agents were transferred from the SE [Southeastern region] to the Washington, D.C. Area for CUE. Because of the pressure exerted against them, only two of them are still in that area and only about 10 are still in the federal service. Those that were not eligible for optional retirements sought disability retirements.
The Special Agent in Charge who pressured these agents was later commended by the BATF. Letter from William Pace, Exec. Dir., Nat'l Ass'n of Treasury Agents, to the author (Dec. 8, 1978), reprinted in Gun Control and Constitutional Rights: Hearings Before the Subcomm. On the Constitution of the Senate Judiciary Comm., 96th Cong., 2d Sess.
At one point, the Bureau indicated that between 1972 and 1979, only seven agents were disciplined for arrest-related misconduct--and this included two oral and four written reprimands. Oversight Hearings on BATF before the Senate Comm. On Appropriations, 96th Cong., 1st Sess. 471 (1979) [hereinafter Oversight Hearings]. Considering that the agency then had approximately a thousand agents enforcing firearm laws, this indicated either angelic behavior or lack of oversight.
As shown infra, the former explanation is not warranted by the facts. See generally D. Hardy, supra note; Hardy, Gun Laws and Gun Collectors, 85 Case & Com. See also infra note. For example, the lead-off witness at the first oversight hearing was a disabled veteran, set up in the gunsmithing business by the Veterans' Administration.
When approached by an informant with an offer to buy guns illegally, he had responded by telephoning BATF with the informant's license plate number and a request for his prosecution. He was nonetheless charged with a technical violation--possession of a semiautomatic firearm with a receiver arguably, and unknown to him, meant for a machinegun. The District Court dismissed charges and apologized on behalf of the United States. See Oversight Hearings, supra note, at 20-26. The National Rifle Association had at that time (and, for that matter, has today) five full-time federal lobbyists. While this is hardly an army, it is comparable with many national associations. See, e.g., Pub.
96-74, 93 Stat. 560 (1979); Pub.
95-429, 92 Stat. Since the data contained in these hearings constitutes the perceived problems at which FOPA was aimed, an outline of the major cases is appropriate: Oversight Hearings, supra note: David Moorhead: enforcement of strict liability, on technical point, against person with no illicit intent; Curtis Earl: search, seizure, and unsuccessful request for indictment based on erroneous agency records; R.C. Lindsey: denial of dealer's license based upon too few (three) sales; hearing officer discovered to have been engaged in prosecution of case; A.W. Phillips: Attempted revocation of dealer's license based on criminal charges earlier dismissed on motion for directed verdict.
Oversight Hearings on BATF, Part 2, before Senate Comm. On Appropriations, 96th Cong., 2d Sess.
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