An analysis of the letter of the National Rifle Association shows that the letter does not furnish an accurate appraisal of the provisions of the bill and to a considerable extent is misleading as to the bill's objectives and effects. The association's letter contains statements which could cause fears on the part of sportsmen and other law-abiding firearms owners that the bill would, if enacted, result in eliminating "the private ownership of all guns." Such interpretation would be completely unfounded and contrary to fact. Since the letter contains inaccuracies and statements susceptible of creating a misleading interpretation as to the provisions of the bill, the following paragraph-by-paragraph analysis of the National Rifle Association's letter has been prepared. PARAGRAPH-BY-PARAGRAPH ANALYSIS Paragraph 1 (which refers to the introduction by Senator Dodd of S. 14 for the purpose of regulating the mail-order gun business) is a correct statement of fact not requiring comment. Paragraph 2 states that S. 1592 "goes far beyond the previously stated purpose of regulating only the mail-order gun business" but does not give an objective description of the purposes of the bill. The fact is that the bill proposes a comprehensive revision of the Federal Firearms Act and would, if enacted: (1) Prohibit interstate mail-order sales of firearms to individuals by limiting firearms shipments in interstate and foreign commerce to shipments between licensed importers, manufacturers, and dealers. (2) Prohibit sales by federally licensed importers, manufacturers, and dealers, of all types of firearms to persons under 21 years of age, except that sales of sporting rifles and shotguns could continue to be made to persons over 18 years of age. (3) Prohibit a Federal licensee from selling a firearm (other than a rifle or shotgun) to any person who is not a resident or businessman of the State in which the licensee's place of business is located. (4) Curb the flow into the United States of surplus military weapons and other firearms not suitable for sporting purposes. (5) Bring under Federal control interstate shipment and disposition of large caliber weapons such as bazookas and antitank guns, and destructive devices such as grenades, bombs, missiles, and rockets. (6) Revise the licensing provisions of the Federal Firearms Act by increasing license fees and imposing adequate controls regarding the issuance of licenses. so as to assure that licenses will be issued only to those persons actually engaging in business as importers, manufacturers, and dealers, and to persons who are likely to conduct their operations in conformity with the provisions of the act. (7) Provide Federal controls designed to make it feasible for States to control more effectively the traffic in firearms within their borders under their police powers. Paragraph 3 states that S. 1592 would prohibit all mail-order sales of firearms to individuals, and permit such sales only between licensed importers, manufacturers, and dealers. This is true as to mail-order shipments in interstate or foreign commerce. However, the bill would not prohibit shipment by a licensed importer, manufacturer, or dealer of a firearm to a person in the State where the licensee's business is located. Since the sales and shipments by licensees to persons within the same State would be transactions within the jurisdiction of the State, the States could effectively impose such conditions on such sales and shipments as they deemed necessary. Further, a mail-order firm which maintained a retail store (or catalog order store) in a State could consummate the sale through the branch retail (or catalog order) outlet in the State and have the firearm delivered at or shipped via the outlet in the State. Also, since interstate mail-order shipments to nonlicensees would be stopped, there would be an incentive for local businessmen to qualify as firearms dealers to supply locally the fiirearms previously procured direct by purchasers from interstate mail-order dealers, importers, or manufacturers. The purchaser could select from the catalog (or catalogs) the firearm of his choice. The local dealer could then procure the firearm for the purchaser from the importer, manufacturer, or mail-order dealer (as the case may be). Under this procedure, the law-abiding citizens who wished to procure firearms previously ordered from an out-of-State mail-order shipper could continue to obtain such firearms by procuring them through a local dealer. However, since these transactions would be consummated through a local dealer, the mail-order procedure could no longer be used to thwart and circumvent State and local controls. Further, there would be a local record of the transaction maintained by the local dealer which would be of aid for law enforcement purposes. Paragraph 4 states that if S. 1592 were enacted it would convey to the Secretary of the Treasury "unlimited power to surround all sales of guns by dealers with arbitrary and burdensome regulations and restrictions." [Italics supplied.) It is difficult to understand this expression of alarm as to the authority of the Secretary to implement and construe the statute. The executive official charged with the administration of a statute always has the duty and responsibility of construing the law he enforces and is customarily granted authority by the Congress to issue implementing regulations. However, it is not true that the Secretary would be given "unlimited power" to impose "arbitrary" regulations. The power and duty of the Secretary, under the existing law, to "prescribe such rules and regulations as he deems necessary to carry out the provisions" of the act (15 U.S.C. 907) would be continued in the provisions of this bill. However, this power cannot fairly be characterized as "unlimited." By the very trems of the grant, the Secretary is limited in its exercise to the issuance of regulations which he believes to be necessary to carry out its provisions. The most casual review of the present regulations with respect to the Interstate Traffic in Arms and Ammunition (26 CFR pt. 177) demonstrates clearly that each provision closely reflects and is reasonably necessary in the enforcement of a corresponding statutory provision. Under the provisions of the Administrative Pocedure Act (5 U.S.C. 1001-1011) notice and opportunity for hearing is afforded to all interested parties prior to the issuance of substantive rules and regulations, and the NRA and other gun interests have in the past taken full advantage of such opportunity to express their views regarding proposed regulations relating to firearms. If a regulation were outside the statutory standards established by the Congress for the Secretary's action, or if it were not reasonably necessary to carry out the provisions of the statute, or if it were arbitrary or capricious, or if it were unreasonably burdensome, or if it were irregularly issued, it would be declared invalid by the courts. Thus, any rules and regulations issued by the Secretary of the Treasury must be reasonable and designed to effectuate the provisions of the statute. Paragraph 5 states that "Anyone engaged in the manufacture of ammunition would be required to have a $1,000 manufacturer's license. This is not correct. First, the bill does not cover shotgun ammunition. (See definition of “ammunition contained in section 1(15).) Second, the license fee for a manufacturer of ammunition (other than a manufacturer of ammmunition for a destructive device) is $500, not $1,000. Moreover, it is not intended that a gun club which merely reloads as a service for its own members by construed to be a manufacturer for the purposes of this act. The third sentence of paragraph 5 states that anyone selling rifle ammunition would be compelled to have a $100 dealer's license. This statement is correct. However, most dealers selling ammunition also sell firearms and would not be required to pay an additional fee in respect of the sale of ammunition. Paragraph 6 states that "If you transported your rifle or shotgun to another State, for a lawful purpose, such as hunting you would have to comply with such burdensome restrictions and redtape as might be required by the regulations." This does not correctly state the provisions of the bill. There are no restrictions in the bill pertaining to a person (other than a felon or a fugitive) traveling in interstate or foreign commerce, who transports his rifle or shotgun for a lawful purpose, such as hunting, and it would clearly appear to be beyond the authority conferred on the Treasury Department by the proposed bill to impose by regulations "burdensome restrictions and redtape" with regard to such transportation. The provisions for regulations concerning the "shipment" of rifles and shotguns in interstate and foreign commerce are intended to permit persons to have their shotguns or rifles transported for them as part of their household goods, or for other lawful purposes. Paragraph 7 states that "A dealer could not sell to a nonresident of his State." This statement is misleading, in that it implies that it is applicable to all kinds of firearms, whereas the bill specifically excepts sporting type firearms, such as shotguns and rifles (see sec. 2(b) (3)). Paragraph 8 states that a gun shipped for service repairs could only be shipped under the regulation of the Secretary of the Treasury, and then only for "authorized" service. There are no restrictions in the bill which would be applicable to the shipping of a gun for service repairs to a person located in the same State. As to shipments in interstate or foreign commerce, the bill contains a specific exemption (sec. 2(a)(3)) designed to permit individuals to ship rifles, shotguns, pistols, and revolvers, to a licensed importer, manufacturer, or dealer for repair or service, and for return of the firearm to the sender. Any regulations issued in this regard could not prohibit the shipment for service provided for in the bill. Paragraph 9 states that a dealer's license could be refused to an applicant if the Treasury believes that by reason of business experience, financial standing. or trade connections, he is not likely to operate in compliance with the act, and questions the meaning of this provision. The bill does provide that the SecTEtary may disapprove an application and deny a license under such conditions after notice and opportunity for hearing. The purpose of this provision is to make it possible to deny licenses to persons with bad records and reputations. The provisions of the Administrative Procedure Act would be fully applicable in such cases. The applicant would have to be issued a notice of contemplated denial of the application, setting forth the specific grounds on which it was proposed that the application be denied. The applicant would be afforded a full hearing on the record before a hearing examiner and he would be entitled to a judicial appeal on any administrative decision to deny the application. Identical statutory language was construed in the recent Seaway Beverages case (Seaway Beverages, Inc. v. Dillon, 319 F. 2d 722, cert. den. 375 U.S. 9231, in which the court held that the close business association of the applicant with a notorious underworld character provided a reasonable basis for denial or permit applications. The language has also been construed in many other court decisions, including Pincourt v. Palmer, 190 F. 2d 390. Indeed, it is rather surprising that these standards for denial of a license should be questioned at this date, since they were suggested by the Supreme Court in the Ma-King case (MoKing v. Blair, 271 U.S. 479) many years ago as proper standards for the denial of a license or permit. Paragraph 10 states that an importer could not bring in any new firearm unless the Secretary deems that such importation "would not be contrary to the public interest" and questions the meaning of this provision. The meaning to be given to such statutory language would be a matter of administrative interpretation and ultimately of judicial construction. The Secre tary or his delegate cannot act arbitrarily. It is believed that there would have to be some very substantial reason in the general public interest for excluding a particular type of firearm under this provision. One example of a type of firearm that might be excluded under this provision is the so-called starter pistol, which was ruled a firearm subject to the Federal Firearms Act because it would chamber .22 caliber ammunition. The projectile is fired at a 45-degree angle through a vent in the barrel which is supposedly to permit the expelling of gas and smoke. Since this particular type of firearm would appear to serve no useful purpose, and could be a danger to the person using it, as well as a deceptive weapon, it is probable that a supportable case could be made that the importation of this particular type of firearm would be contrary to the public interest. This weapon has recently received considerable publicity in the District of Columbia. A person appearing to have lowered the barrel of the gun so that it pointed to the ground could shoot an arresting officer due to the angle at which the projectile would be fired Paragraph 11 states that "This bill conceivably could lead to administrative decisions imposing such a burden on the sale, possession, and use of firearms for legitimate purposes as to totally discourage, and thus to eliminate, the private ownership of all guns." This paragraph is a conjectural and purely speculative assertion based on an exaggerated and unfounded fear of what the bill would do. The bill was not intended to, and does not, impose any substantial additional burdens on the possession and use of firearms by law-abiding citizens for lawful purposes. Clearly, the bill would not "destroy our skeet and trap clubs, hunting activities. target ranges, olympic shooting team, the National Rifle matches, etc." as bas been asserted in correspondence received as a result of the NRA letter. At most, as to law-abiding persons, the bill could cause some inconvenience in obtaining firearms. However, S. 1592 was proposed as an important part of the President's program against lawlessness. The fear of personal inconvenience, in most cases greatly exaggerated, should properly be weighed against the great public need for more effective control over the traffic in firearms in combating the increasing prevalence of crime. (A letter dated August 5, 1965, from Franklin L. Orth to the Honorable Thomas J. Dodd was marked "Exhibit No. 64" and is as follows:) EXHIBIT No. 64 NATIONAL RIFLE ASSOCIATION OF AMERICA, Hon. THOMAS J. DODD, Washington, D.C. DEAR SENATOR DODD: In testimony before your subcommittee on firearms legislation, the U.S. Attorney General, Mr. Katzenbach, introduced an opinion of his own with respect to the second amendment to the U.S. Constitution, guaranteeing the "right of the people to keep and bear arms." The Attorney General questions whether the right guaranteed under this amendment applies to individuals for private purposes not connected with a militia. This question was posed as a subject matter in the 1965 Samuel Pool Weaver Constitutional Law Essay Competition, sponsored annually by the American Bar Foundation. This year's winning essay was by Mr. Robert A. Sprecher of the Illinois bar. It presents a point of view considerably at variance with that expressed by the Attorney General. I am enclosing a reprint of this winning essay, taken by permission from the American Bar Association Journal for June and July 1965; also, an article by a former NRA president, Judge Bartlett Rummel, entitled "To Have and Bear Arms," a discussion of legal decisions and interpretations of the second amendment to the Constitution. I would be very grateful if you would append these two reprints to my testimony given before your subcommittee and make them a part of the official record as etsablishing our position on the meaning of the second amendment and in rebuttal to the opinion voiced by the Attorney General. Cordially, FRANKLIN L. ORTH, Executive Vice President. (Reprint from A.B.A. Journal, June and July 1965 (vols. 51, Nos. 6 and 7) entitled "The Lost Amendment" was marked "Exhibit No. 65" and is as follows:) EXHIBIT No. 65 [Reprinted (by permission) from the American Bar Association Journal, June and July 1965, vol. 51, Nos. 6 and 7] THE LOST AMENDMENT What does the second amendment, guaranteeing "the right of the people to keep and bear arms," mean? Does the guarantee extend to the keeping and bearing of arms for private purposes not connected with a militia? These perplexing questions were posed as the subject matter for the 1965 Samuel Pool Weaver Constitutional Law Essay Competition, which is sponsored annually by the American Bar Foundation. Mr. Sprecher's essay was the winner, and the Journal is publishing it in two installments-the first herewith and the second next month (By Robert A. Sprecher of the Illinois Bar (Chicago)) The wisdom of the Founding Fathers has proved to have been "infinite" enough to enable the United States for almost the first 200 years of its history to exist and prosper under its 1789 Constitution with remarkably few amendments. Insofar as the tremendous scientific and technological advances during this time have resulted in a constantly shifting economy and in vastly changed political and social environments, the framework of the original document has proved durable enough to encompass great flexibility through the device of judicial interpretation. Even before, but especially since, the advent of ever-potential atomic warfare, can any continuing meaning be derived from the second amendment? It provides that: "A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." Does the second amendment guarantee extend to the keeping and bearing of arms for purely private purposes not connected with the maintenance of a militia? Do the citizens of the United States now need, or will they ever need, the "right" (as opposed to any possible duty) to bear arms either for private purposes or for maintaining a militia? Except for the third amendment, prohibiting the quartering of soldiers in private houses, no amendment has received less judicial attention than the second. However, courts have been confronted with none or few third amendment cases because there is universal agreement as to its meaning and desirability, whereas the second amendment is not at all clear in its meaning and reasonable minds have differed widely as to the desirability of any assigned interpretation. Lacking the thorough judicial treatment accorded most of the guarantees of the Bill of Rights, the history of both the right (or duty) to bear arms and of the militia becomes important. Plato, observing in about 340 B.C. that "no man can be perfectly secure against wrong *** and cities are like individuals in this," counseled that-"*** Wherefore the citizens ought to practice war-not in time of war, but rather while they are at peace. And every city which has any sense, should take the field at least one day in every month, and for more if the magistrates think fit, having no regard to winter cold or summer heat; and they should go out en masse, including their wives and their children *** and they should have tournaments, imitating in as lively a manner as they can real battles." " About the same time Aristotle noted that oligarchies prevailed where the land was adapted for cavalry or heavy infantry since only the rich could afford horses or cannon, while democracies existed in countries suitable for the light arms owned by most citizens. "Citizen soldiers" early became identified with democratic government. Rousseau looked back in history and found that “*** all the victories of the early Romans, like those of Alexander, had been won by brave citizens, who were ready, at need, to give their blood in the service of their country, but would never sell it. Only at the seige of Veii did the prac tice of paying the Roman infantry begin. * * * [The mercenaries'] swords were always at the throats of their fellow-citizens, and they were prepared for general butchery at the first sign. It would not be difficult to show that this was one of the principal causes of the ruin of the Roman Empire." Machiavelli detected a similar pattern in Italy: "[Mercenaries] are useless and dangerous *** disunited, ambitious, and without discipline, unfaithful, valiant before friends, cowardly before enemies; they have neither the fear of God nor fidelity to men. *** the ruin of Italy has been caused by nothing else than by resting all her hopes for many years on mercenaries. * * *"5 Adam Smith concluded in "The Wealth of Nations" that: "Men of republican principles have been jealous of a standing army as dangerout to liberty. * The standing army of Caesar destroyed the Roman Republic. The standing army of Cromwell turned the Long Parliament out of doors.” Mercenaries and standing armies began to be identified with imperialism, sup pression of individual liberty, and, eventually, moral and economic decay. Toynbee ascribed as one cause of the breakdown and disintegration of civilizations the "suicidalness of militarism." 1 Miller, "The Constitution," 646 (1893). 2 Plato, "Laws" vili: 829 (Jowett translation). Aristotle, "Politics," book VI, ch. 7. Rousseau, "Discourse on Political Economy" (38 Great Books 380). "The Prince," ch. XII (23 Great Books 18). Book V, ch. 1, pt. 1 (39 Great Books 308). 71 Toynbee, "A Study of History," 336 (2 vol. ed.). |