TO AMEND THE FEDERAL FIREARMS ACT

FRIDAY, MAY 21, 1965

UNITED STATES SENATE,

SUBCOMMITTEE ON JUVENILE DELINQUENCY,

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee (composed of Senators Dodd, Hart, Bayh, Burdick, Tydings, Hruska, Fong, and Javits) met, pursuant to recess, at 9:25 a.m., in room 318, Old Senate Office Building, Senator Thomas J. Dodd presiding.

Present: Senators Dodd, Bayh, and Burdick.

Also present: Carl L. Perian, staff director; and William C. Mooney, chief investigator.

Senator DODD. The hearing will be in order.

Our first witness this morning is Gen. Franklin L. Orth, the executive director of the National Rifle Association.

Good morning, General-glad to see you again.

I want to say for the record that I am one who has a very high opinion for General Orth, a great respect for him as a man, a man of great integrity and ability. I feel I should say that, because I mean. it-although he and I have our disagreements.

Mr. ORTH. Thank you, Senator.

I would like to have the privilege, sir, of introducing our president, Mr. Harlon Carter.

Senator DODD. Yes, I know Mr. Carter, glad to see him again.

STATEMENT OF FRANKLIN L. ORTH, EXECUTIVE VICE PRESIDENT, NATIONAL RIFLE ASSOCIATION OF AMERICA; ACCOMPANIED BY HARLON CARTER, PRESIDENT

Mr. ORTH. Mr. Chairman, I appreciate this opportunity granted to me to testify before this committee with respect to the provisions of S. 1592. As executive vice president of the National Rifle Association, I speak for a shooter-sportsmen membership organization of 700,000 individuals and over 12,000 affiliated clubs and associations.

The National Rifle Association has been dedicated for almost a hundred years to the support of the national defense, law and order, and social welfare. It has conducted training in small arms marksmanship for the citizens of the United States who would be subject to military service. The history of the organization is replete with praise from our Presidents, the Cabinet, the Supreme Court, and outstanding senior citizens of our country for the work we have performed in each of those areas. During the 1930's the National Rifle Associa

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tion worked with the committees of the Congress, with the American Bar Association, and the National Conference of Commissioners on Uniform State Laws in the formulation of legislation which resulted in the basic national legislation pertaining to firearms; namely, the Federal Firearms Act and the National Firearms Act. As you know, this legislation was aimed at the gangster and other criminals who misused firearms and terrorized the public during the days when the Volstead Act was in effect. I think we all can agree that the legis lation overall was quite successful in accomplishing its purpose.

Today we have a new era of lawlessness in America due, in part, to social conditions and civil unrest. The fact that we have a critical crime situation in this country today is obvious to us all. President Johnson has said that he will create a commission to study the real causes of and the best way to prevent this problem. We commend the President for his vigorous leadership in this regard and favor the establishment of research projects on crime and a Presidential Commission on Crime. We agree with the President that, in the main, laws regulating the sale of firearms are within the province of the States. The fields of authority of the Federal Government are defined by the Constitution and the general police powers are retained by the States. We agree with the President that the sale of firearms in interstate commerce, as ordered through the mail, is a proper subject for legislation by the Federal Government. However, we view such highly restrictive legislation as herein proposed in S. 1592 as being unsound and premature.

The National Rifle Association has been seeking ways and means to assist law-enforcement organizations in accomplishing legitimate objectives and at the same time insure that the citizen and sportsman not be disarmed. We have worked with this committee for more than 4 years in order to obtain a bill which would be meaningful and helpful, aimed at preventing criminals and juveniles from obtaining firearms by order through the mails. Last year I thought we had agreed on such a bill, S. 1975, which was developed by this committee and by sportsmen and members of the firearms industry. It appeared to us last year that such a law would close the door to persons who would misuse firearms after receipt across State boundaries as a result of mail order, and would put a stop to those who were otherwise in violation of State law or local ordinance.

Since the overall objectives of the National Rifle Association and the Federal Government are aimed at a common objective, the question may properly be asked why there should be a difference of opinion as to the method used and the degree of control deemed to be adequate for prevention of crime. Dean Roscoe Pound, in his book "The Development of Constitutional Guarantees of Liberty" states:

Throughout the course of development which leads to the beginnings of the system of Anglo-American law or, as we call it, the common law, there is the problem of, on the one hand, effective ordering of conduct in a civilized society. and, on the other hand, such limitations of and checks upon those to whom that ordering is committed as to preserve due balance between the general security and the individual life.

Of the two chief systems of law in the world of today one, the modern Roman or civil law, is characteristically administrative; the other, the English or common law, is characteristically judicial.

Whereas in the final Roman theory law proceeded from the Emperor-was made by him in the English theory it was preexisting and was found by the King or by his justices and applied to the cases before them as something binding on them no less than on the parties.

As a result of this difference of attitude toward the law, the one system thinking of it as wholly the product of the government, the other thinking of a fundamental law binding the agencies of government, there is a characteristic difference as to declarations of rights and guarantees of liberties in the two systems. In the modern Roman system they are hortatory. They are exhortations addressed to the agencies of government as to how they ought to act. In the commonlaw system they are precepts of the supreme law of the land, binding citizen and official alike and enforcible by the courts in ordinary proceedings at the suit of persons aggrieved.

Thus it is that the citizen interested in the problem of crime and also in maintaining his liberties in respect to the constitutionally guaranteed use of firearms espouses a somewhat different point of view than the government which is charged with the administration and enforcement of the law. We have a dual objective, a willingness and a keen desire to assist the law enforcement personnel, on the one hand, and, on the other hand, the attempt to prevent such highly restrictive legislation which would discourage or eliminate the use of firearms by the average law-abiding citizen.

The answer to the crime problem does not lie in "passing another law." The main solution lies with institutions, public and private, that instill respect for property and person into the habits and thinking of citizens of all ages.

The Federal Bureau of Investigation has for years published its annual report, "Uniform Crime Reports," tabulating crime statistics throughout the Nation. In addition to this statistical data, the FBI lists factors which, in its opinion, affect the crime rate in any community. Most importance among these factors are:

The economic status and mores of the population.

The educational, recreational and religious facilities.

The police force its effective strength, its degree of efficiency, the standards governing appointment to it.

The attitude of the public toward law-enforcement problems. The policies of the prosecuting officials and the courts. These factors are excellent guides for study and for prompt and effective action where it is needed.

There is another potent factor in our crime problem today; the crescendo of violent crime portrayed on the television screen and the lurid emphasis in other public media, the pornographic books and magazines that obviously make a very considerable contribution to our national crime problem. This is particularly true among our susceptible young people, and this is the group producing the greatest increase in crime statistics. I am positive that there is agreement on this among the American public. Yet the situation gets worse each year.

While a great deal is unknown about the causes of crime, we do know from experience that any community that will support its law enforcement officers, insist on punishment to fit crimes committed, weed

out corruption in local government, give financial and moral support to its social agencies, will have a minimum of crime. These responsibilities cannot be abdicated to the Federal Government.

As shown by our support of the enactment, years ago, of the National and Federal Firearms Acts, the National Rifle Association has studied this matter of firearms control legislation for many decades. We will support legislation which can effectively reduce the criminal use of firearms, but the NRA stands squarely on the premise that the ownership of firearms must not be denied American citizens of good repute so long as they use them for lawful purposes.

Mr. Chairman, there is no evidence to indicate that, acting alone, laws restricting privately owned firearms have any effect on the rate at which crimes are committed. It appears that once the criminal intent is formed, the instrument to be used is only incidental. If a firearm is handy, it will be used due to its convenience, but if a gun is not available, then a knife, a board, an icepick, or simply the bare hands will be used. With specific relation to murder, a very comprehensive study was made in the Philadelphia area of every homicide occurring from 1948 through 1952 resulting in an authoritative book, "Patterns in Criminal Homicide," by Dr. Marvin E. Wolfgang, professor of sociology at the University of Pennsylvania. In this book the professor says:

It is probably safe to contend that many homicides occur only because there is sufficient motivation or provocation, and that the type of method used to kill is merely an accident of availability. It is the contention of this observer that few homicides due to shooting could be avoided merely if the firearm were not immediately present, and that the offender would select some other weapon to achieve the same destructive goal. Probably only in those cases where a felon kills a police officer, or vice versa, would homicide be avoided in the absence of a firearm.

While it must be admitted that firearms are used in crimes of violence, it does not at all follow that they are the principal weapon of the criminal. Indeed, they are not. For example, the annual report of the Metropolitan Police Department for the Nation's Capital, for the year 1964 reports 2,754 aggravated assaults in which a weapon was used. Out of 104 murders, a firearm was used in approximately one-third of the cases. Of the total number of armed assaults, pistols and revolvers were used in 467, or 17 percent; rifles, a total of 20, 7.3 percent; shotguns, a total of 27, 9.7 percent; knives, on the other hand, were used in 1,081 cases, 39.2 percent.

We must find solutions to the crime problem more likely to produce results than restrictions on the purchase and transporting of firearms. We have the following comments on S. 1592:

The association does not object to the definitions of "persons," "interstate or foreign commerce, or "firearm" as contained in section 1 (1), (2), (3). We do take issue, however, with the inclusion of "destructive device" in the definition of a "firearm" because of the broad definition of such a "device" itself. This category includes such items as bombs, grenades, rockets, missiles and launching devices therefor, as well as any weapon having a bore of one-half inch or more in diameter. I would recommend that such items should not be contained in a bill to regulate the interstate commerce of firearms, but should rightfully be the subject of separate legislation that would accomplish the purpose. The National Rifle Association does not take

exception to the intent of such regulation. More logically, such regulation of these "devices" should be within the purview of the National Firearms Act which already provides a maximum transfer tax of substantial proportions on weapons of a certain type commonly thought of as "gangster weapons," and which required that such weapons be registered with the Treasury Department.

We take exception to the definition of a "destructive device" that includes any weapon having a bore of one-half inch or more in diameter. Our objections are based on the simple fact that many legitimate sporting arms and collectors' items are included in this definition. Most muzzle-loading rifles and pistols, whether a part of a collection or used in so many Civil War enactments, are of à caliber greater than .50. Many famous and expensive big-game rifles are more than .50 caliber. The fact that the Secretary of the Treasury may exclude from this defintion any device which he considers not to be a firearm is of small consequence in the long run when you consider that each type of firearm would have to receive a separate ruling by the Secretary, or his delegate (in all likelihood, the Alcohol and Tobacco Tax Division), as is presently the case in the "any other weapon" category in the National Firearms Act. The time and redtape involved in receiving such a ruling, together with the expense of engaging in hearings before the Treasury Department is, in many cases, a discouraging factor that is detrimental to the legitimate use of certain types of sporting weapons by the ordinary citizen. To state that the Secretary of the Treasury can take steps to remove certain inequities contained in the bill, if he deems such steps to be necessary, is easy to say; getting him to take such steps or, in some cases, to correct certain errors made by Treasury Department clerks, is quite another thing.

In the event of separate legislation as amendments to the National Firearms Act, additional safeguards are necessary which would protect the interest of firearms collectors. This could be accomplished by adoption of language as follows:

"Provided, that nothing contained in this section shall be construed to include those firearms that are designed for use with loose power and ball, or which are incapable of being fired with self-contained primed cartridges, or to firearms held as a curiosity or decoration that would require cartridges of an obsolute pattern no longer manufactured and readily available through commercial channels. These exemptions shall apply only to those firearms of all types manufactured prior to 1898."

The association does not differ with the definition of a "short-barreled shotgun" or a "short-barreled rifle." But since these types of weapons are already subject to the terms of the National Firearms Act regardless of the channel through which the possessor obtained the weapons, I am of the opinion that their inclusion in this bill is unnecessary.

We do not differ with the definitions of "importer," "manufacturer," "dealer," "pawnbroker," "indictment," "fugitive from justice," "crime punishable by imprisonment for a term exceeding 1 year," "Secretary, or "ammunition" except for the references to a "destructive device" in the light of my previous comments on this point.

In section 2(a) (1) an individual is allowed to transport a shotgun or rifle in interstate or foreign commerce, or have such weapons trans