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some new tyranny upon us. I hope very much that the witnesses and the Chair will bear that in mind as we work on this legislation.
Finally, like other Senators—and perhaps more so, because I have 18 million constituents—I have received an enormous amount of mail, really enormous, almost unbelievable, Mr. Chairman, expressing opposition to this bill. Some of it is from very well-intentioned people who use their firearms for sports and other recreation.
Personally, I think the chairman's original bill, S. 14, in which I joined, utilized a better approach than this one. But I know we must do something about this situation, responsibly. So, Mr. Chairman, I appreciate these hearings, which arise out of a desire to see if we can find some reasonable accommodation for the many-probably millions, from what I can see from my State-honest and well-intentioned people who want to use firearms for sports and other recreation. We have all taken our sons out in the backyard and shot a few tin cans, and we all understand the legitimate sports use. But at the same time, I will join the Chair in the responsibility of doing what must be done to see that America, either by criminals or by extremists, is threatened as little as possible by what seems to be an inundating flood of weapons capable of killing, sent in interstate commerce, and over which we have almost no control.
I thank the Chair very much for allowing me to speak these few words.
Senator Dodd. I would like to make a brief comment. There is nothing in this bill that need worry any legitimate sportsman or gun enthusiast. I think the reason you are flooded with mail-as I am, too-is that the gun runners and the gun lobbyists have misrepresented the bill. We will go into that a little later in these hearings, line by line in the literature which they put out. I do not believe they are innocent mistakes. I think they are too well informed for that. I think the public, as well as the Members of Congress, will be greatly interested in the false information they have disseminated about this proposed legislation. Senator JAVITS. I thank the Chair.
(At the request of Senator Roman Hruska his statement appears at this point in the record.)
STATEMENT OF SENATOR ROMAN L. HRUSKA
Mr. Chairman, I appreciate the opportunity to make a brief statement. As you know, I was not able to attend any of the sessions prior to this time because of long-standing prior commitments. We corresponded about the setting of these hearings well in advance of the final setting of these dates, but instead the chairman decided to go ahead and hold the first rounds even though he knew that it would not be possible for me to attend.
The fact that I have not been able to attend the hearings to date has not diminished my interest in them one bit. My mail, like that of most Members of Congress, has been extremely heavy. In fact, I have received many more letters on this question than any other so far this year. It has been evenly divided between residents of my own State and others from across the country. The mail has been virtually unanimous in its opposition to S. 1592. By actual count only 3 letters supporting the bill have been received so far out of more than 3,000.
Mr. Chairman, I have read over the transcripts of the hearings with great interest. A solid record is being made which shows the nature of the problem we are all trying to combat—the rise of serious crime in this country, particularly among a small element of our young people.
In my view, it is essential that this subcommittee maintain a calm atmosphere in which we objectively seek the facts about the nature of the problem and then examine existing legislation to see where it might be not only strengthened. but enforced better.
COMMENTS ON S. 1592 AND EXISTING LAW
Mr. Chairman, I would like to comment briefly on S. 1592 and the testimony relating directly to it. As I understand the bill, it has three main purposes First, it would ban the interstate sales and resulting shipment of firearms to all individuals in an effort to curb the mail-order traffic to juveniles, felons, and mental defectives. Second, it would ban the importation into this country of surplus military weapons and destructive devices. Third, it would greatly increase dealers', importers', and manufacturers' license fees and give the Secre tary of Treasury broad authority to regulate the issuance of these licenses among other regulatory powers.
No one would quarrel with the objectives that the bill seeks to achieve. It is desirable that all potential tools of crime, not just firearms, not get into the hands of juvenile delinquents, mental defectives, or convicted criminals.
It is desirable that the unrestricted flow into this country of millions of cheap low-quality nonsporting weapons and destructive devices be halted.
It is desirable that irresponsible persons be denied the ability to circumvent existing Federal, State, and local laws and regulations to sell firearms and destructive devices to persons who may misuse them, either over the counter or through the mails.
But is a bill that is so all-encompassing and sweeping as this one necessary to achieve these goals? I think not. And the record of these hearings so far gives powerful support to that view.
CURBING UNDESIRABLE FOREIGN IMPORTS
On May 20 Mr. Robert Margrave of the State Department testified before the subcommittee. I was shocked and appalled by his testimony. Mr. Margrave in. dicated that section 414 of the Mutual Security Act of 1954 gives the President more than ample authority to control the importation or exportation of firearms. ammunition, and implements of war. There is authority to ban even the importation of bows and arrows, dartguns, and blunderbusses, if need be. The language of section 414 says in part:
"The President is authorized to control, in furtherance of world peace and the security and foreign policy of the United States, the export and import of arms, ammunition, and implements of war * * *." This is broad language-much broader than the comparable language in S. 1592. which alludes only to the public interest. No further legislation is necessary in this area. All that is required is judicious enforcement of that law. The de structive devices we have sitting back of this room were probably imported under a license approved by Mr. Margrave himself-assuming that he has any records of the transaction. He or one of his predecessors in all probability approved the shipment that contained the rifle which was used by Lee Harvey Oswald.
S. 1592 calls for the adoption of what looks like a protectionist point of view on the importation of firearms. It may well be that there are other policy considerations to be taken into consideration in foreign commerce in firearms. A blanket prohibition against all imports may do serious damage to our trade relations with friendly nations. All these factors should be taken into consideration in the granting of import licenses or the regulation of the flow of foreign imports, new or surplus.
Other language of section 414 requires registration of manufacturers and importers of firearms and ammunition and to set fees therefor. Strict penalties are set forth with up to a 2-year term and a $25,000 fine authorized.
If foreign imports are a problem, why aren't these provisions being enforced at the present time? Why were Mr. Hy Hunter and his like able to continue to get import licenses for surplus antitank weapons, bazookas, and the like? Mr. Chairman, I would like to find out the answers to these questions and more. Mr. Margrave should be recalled.
One point is very clear: There is ample legislative authority to curb, indeed stop entirely, the flow of not only surplus military weapons, but all firearms into this country by enforcing present law.
Mr. Chairman, I ask that the full text of section 414 be inserted in the hearing 12 record at this point along with an analysis of the legislative history of the la section which was prepared by the Legislative Reference Service.
CONTROLLING THE FLOW OF MAIL-ORDER FIREARMS
Not only can the source of much of this undesirable traffic be eliminated under A present law, but the flow can be halted by local authorities if they feel the need 001: to do so. Chief Layton of the District of Columbia testified eloquently about the TE plan in effect in the District of Columbia since 1962 which has cut off mail-order lon shipment of firearms to undesirables by close cooperation with the common caror rier. He cited the problem of over-the-counter sales in nearby communities to do District of Columbia residents, some of whom have criminal records. However, b. it was also noted that Prince Georges County adopted a regulation which will to help rectify this situation significantly. And Attorney General Sills, of New
Jersey, cited the arrangement his people have worked out with Maryland law re i enforcement officials for notification when a New Jersey resident purchases a ir handgun in Maryland.
Perhaps section 902 of the Federal Firearms Act can be improved to allow local oft jurisdictions who so desire to more effectively control mail-order sales of firearms
to persons within their jurisdictions. Perhaps even the approach of S. 14 or S. me 1965 is necessary. But I can see no justification for a flat ban on the interstate IT sale and shipment of firearms to individuals at this point.
SALES OF SURPLUS U.S. GOVERNMENT WEAPONS
Another significant step has been taken, under existing law, by the administration which can help considerably. The Department of Defense and the General Services Administration announced a new change in the existing regulations on sales of surplus weapons from U.S. Government stocks.
Henceforth, surplus weapons can be sold only as scrap after total destruction for to assure that they are “rendered completely inoperative and to preclude their The being made operative." This is a laudable step and one which was long overdue. Ti It will help dry up the source of some of the troubles.
I ask unanimous consent that the regulation be placed in the record at this
the point. re
It is this kind of action which can be and is being taken without resorting to the harsh remedies proposed in S. 1592.
SERIOUS CRIME IS PRIMARILY A PROBLEM OF HIGHLY POPULATED AREAS
It has been repeated many times during the course of these hearings so far S that the uniform crime reports for the year 1963 indicate that the incidence of
gun homicides in cities was 53 percent, in suburban areas 62 percent and in rural The
areas, 68 percent. From this statement it was concluded that there is a need
across the Nation for legislation of the type proposed in S. 1592. The statement rei cited above presents only a part of the story and is entirely misleading when up taken by itself.
As has been stated before in these hearings, there are three types of serious crimes where firearms—along with assorted other weapons—are tools of the criminal. These are murder, aggravated assault, and robbery. First, as to murder. Page 6 of the FBI report states that the number of willful killings has remained at about the same rate since 1958 as has the murder rate. And that
police cleared up about 91 percent of the murders by arrest of the offender. hus' This in itself is a remarkable record and stands as a fine tribute to our law.
enforcement agencies across the Nation. But is murder as much of a problem in all parts of our Nation? Let me quote directly from the report at page 6:
"Murder per unit of population was highest in the Southern States and large American cities. The murder rate in the cities over 250,000 population in 1963 was 7.9 victims per 100,000 population. This was over twice the rate in the rural and suburban areas."
Now this refers to the rate not absolute numbers. When the figures themselves are compared in the tables later in the report we find that there were more murders committed in Chicago, Los Angeles, New York, and Washington than were committed in 30 States, even though the population of those States is substantially higher than those cities.
Let's look at aggravated assault. On page 9 of the report is the following:
"The average serious assault rate per unit of population in the 54 cities with over 250,000 population was almost 5 times greater than recorded in the suburban and rural areas."
And what of robbery? On page 13 of the report it states :
“The rate in cities over 250,000 was 7 times greater than the rate in the suburban areas surrounding large cities and 15 times the rate in the rural sections of our country. Cities over 1 million population had a robbery rate 4 times the level of all other cities, 9 to 1 more than suburban areas and about 19 times higher than the incidence rate in rural areas."
Why should the citizens of all States be subject to the same stringent rules and regulations as the big crime centers? It seems to me that a strong case can be made for an amendment to this bill-assuming for the moment that S. 1592 represents the right approach—which would incorporate a "triggering device" so that the law would apply only to areas where the serious crime problem is the worst and beyond the control of local authorities. I feel certain that the Attorney General and his staff could easily draw up suitable language for such change because of the recent experience they have had with the voting rights bill.
THE QUESTION OF THE SECOND AMENDMENT
Mr. Chairman, to me there are grave doubts about the constitutionality of significant provisions of S. 1592 in its present form.
The second amendment to the Constitution reads :
"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.”
Now there are two observations I want to make about this provision of the Bill of Rights. First, is its sweeping language. "* * * the right of the people to keep and bear arms shall not be infringed." That is strong language. Nowhere in the Constitution can be found stronger wording. Second, is the fact that it is the second amendment, not the fifth or the ninth. Its placement at the top of the list is indicative that our Founding Fathers considered this right of major importance certainly not to be treated lightly by later generations and eroded away.
The arguments presented by the Attorney General in his testimony and buttressed by the lengthy memorandum he placed in the record do not impress me that much. The reasoning offered seems to be a rationale propounded by a law. enforcement officer rather than a detached view of a constitutional scholar. I suspect that the Criminal Division, the Bureau of Prisons and Treasury had more to do with the preparation of the study than the Civil Rights Division.
The main thrust of the argument seems to be that even though this bill totally bans interstate sale of firearms to individuals, it is all right because there would still be intrastate commerce in these items. I find this to be totally without merit. It is as if one were to contend that it would not be a violation of the first amendment right of freedom of the press to bar further publication of newspapers because the people could still read magazines and watch television newscasts.
I must admit that the case law on the second amendment is not particularly helpful. There have only been four Supreme Court decisions on this question since the founding of the Republic_hardly an overwhelming body of precedent. Three of the four, the Cruikshank, Presser, and the first Miller cases held that the second amendment placed limitations only on the Federal Government and not the States. This view is hardly in favor today. The rights of the first eight amendments have been applied to the States in a series of cases. To mention only a few that come immediately to mind: The Mapp case in 1961 held the 4th amendment's right of privacy against search and seizure was enforceable through the 14th amendment. In the Gideon case in 19963 the right to counsel in all criminal cases was made obligatory on the States by the 14th amendment. In 1964 in the Malloy case the 5th amendment's right against compulsory selfincrimination was protected by the 14th against abridgement by the States. All of these cases overruled prior decisions,
During the recent spring term, the Supreme Court held in the Griswald case that a State statute that conflicted with the "right of privacy," a right not specifically mentioned in the Bill of Rights, was unconstitutional. The right of privacy was made applicable to the States by the due process clause of the 14th amendment. Certainly, if the right of privacy can be made applicable to the States, the guarantees of the second amendment could also apply.
In the second Miller case in 1938, the Court passed directly on the second amendment right for the first time. It upheld the National Firearms Act of 1934 as to the placing of limitations upon the use of sawed-off shotguns. The Court held that the second amendment did not guarantee the right to keep and bear such an instrument for the preservation and efficiency of a well-regulated militia. However, Mr. Justice Black recently has commended that, “Although the Supreme Court has held this amendment to include only arms necessary to a well-regulated militia, as so construed, its prohibition is absolute." The emphasis is mine.
The Chief Justice of the United States, writing in a recent Law Review article stated :
“Despite these safeguards, the people were still troubled by the recollection of the conditions that prompted the charge of the Declaration of Independence that the King had 'affected to render the military independent and superior to the civil power.' They were reluctant to ratify the Constitution without further assurances, and thus we find in the Bill of Rights amendments two and three, specifically authorizing a decentralized militia, guaranteeing the right of the people to keep and bear arms, and prohibiting the quartering of troops in any house in time of peace without the consent of the owner.”
At least two Supreme Court Justices would seem to take a somewhat differing view from that of the Attorney General.
In my view the question of the second amendment and S. 1592 is not so settled as some would have us believe.
Perhaps the right of the people under the second amendment is outmoded in this day of the atom bomb and the large standing army. But perhaps in this day of organized and increasing crime the citizen who has a firearm and knows how to use it properly in defense of his family and property should be encouraged. To be sure, I am not suggesting for 1 minute that we return to the days of the vigilantes or suggesting that each man take the law into his own hands. But it seems to me that one reason that the armed robbery rate in cities is 19 times that in rural areas is because potential criminals probably know that most farm families have and know how to use firearms.
In conclusion, Mr. Chairman, I would again quote from the writings of the Chief Justice when he advises us :
"We may happily note that the Constitution has remarkably weathered a variety of crises. Some were as acute as those we face today. Today, as always, the people, no less than their courts, must remain vigilant to preserve the principles of our Bill of Rights, lest in our desire to be secure we lose our ability to be free."
Senator Dodd. We have with us this morning the distinguished Secretary of the Treasury, Mr. Henry H. Fowler.
Mr. Secretary, we are very pleased that you found the time to come here in spite of your busy schedule. We know you have to be at another hearing, and the Attorney General has very graciously consented that you precede him, as I understand. We will be glad to hear
STATEMENT OF HON. HENRY H. FOWLER, SECRETARY OF THE
Secretary FOWLER. Thank you, Mr. Chairman. I do regret that in order to meet a request from the House Ways and Means Committee for an appearance in connection with its executive session, concerned with the problems of excise tax reduction, it will be necessary for me to depart shortly, with the permission of the Chair. I trust the committee will forgive me for not remaining to the end of the session to hear and deal with this most pressing and crucial problem, that your opening remarks have so clearly outlined.
The Attorney General is here to discuss the bill more fully, particularly in its relationship to the President's overall program against crime. As you know, the Alcohol and Tobacco Tax Division of the