I should think that the reasonableness of the regulations promul gated by the Secretary of the Treasury under the existing provisions of the Federal Firearms Act would contradict the assumption of "burdensome regulations."

Further, the Administrative Procedure Act assures all interested parties of an opportunity to be heard before the issuance of substantive rules and regulations. The NRA and other gun interests have, in the past, taken full advantage of this opportunity and clearly could do so in the future. And still further, the regulations are subject to review and reversal by the courts and by Congress should they be felt arbitrary and capricious.

It has also been suggested that S. 1592 requires anyone engaged in the manufacture of ammunition to pay $1,000 for a manufacturer's license. The bill does not do so. It does not cover shotgun ammunition at all, and the license fee for manufacturers of other types of ammunition is $500.

Senator DODD. This is a misrepresentation and I say again it is clearly outrageous. Anyone who reads the bill knows this is not true and here is this highly respected organization putting out this misinformation and mailing it to thousands of people in this country and Members of Congress. I cannot believe that was an innocent mistake. Attorney General KATZENBACH. It is true that anyone selling rifle ammunition, even .22 caliber, would be compelled to have a $100 dealer license. Why shouldn't he? He is dealing in ammunition for a lethal weapon. The many dealers in ammunition who also sell firearms would not, however, be required to pay an additional ammunition fee. Nor is there anything in the legislation that would, as has been stated, require a club engaged in reloading for its members to obtain a manufacturer's license.

A further specific objection raised against this bill is that it would forbid a dealer to sell to a nonresident of his State. The objection is stated in a misleading way. The bill does forbid such sales of handguns, but it specifically excepts weapons like rifles and shotguns most commonly used by sportsmen and least commonly used by criminals. A similar objection is made on the ground that the measure would prohibit all mail order sales of firearms to individuals. While this is an accurate description of the measure with respect to interstate and foreign commerce, the bill would not foreclose now allowable shipments within a State. Any control of such commerce is left to the States.

As has been pointed out, the major and responsible mail order houses do have local outlets in many States.

One last comment on the specific NRA objections, as expressed in the letter sent to its membership. The letter described this measure as one which conceivably could lead to the elimination of "the private ownership of all guns."

I am compelled to say that there is only one word which can serve in reply to such a fear, and that is preposterous.

Beyond specific objections to the legislation, opposition to it continues to be founded in the assertion that it is unconstitutional. Let me therefore now turn to discuss, as you have asked me to do, the ques tion of the constitutionality of the Federal firearms legislation, par ticularly S. 1592, from the standpoint of the second amendment to the

Constitution and of the congressional authority under which the legislation could be enacted.

With respect to the second amendment, the Supreme Court of the United States long ago made it clear that the amendment did not guarantee to any individuals the right to bear arms.

I offer for the record a memorandum, which I have had prepared in consultation with representatives of the Secretary of the Treasury. It documents the opinion that the right to bear arms protected by the second amendment relates only to the maintenance of the militia. (The document referred to was marked "Exhibit No. 7" and is as follows:)

EXHIBIT No. 7

MEMORANDUM RE FEDERAL FIREARMS CONTROL AND THE SECOND AMENDMENT The administration has proposed legislation to strengthen the Federal Firearms Act of 1938 (15 U.S.C. 901-909). This legislation has been introduced as S. 1592. The legislation would prohibit the transport, shipment, or receipt of firearms in interstate or foreign commerce except as between licensed importers, manufacturers, or dealers, or between such licensees and persons excepted from the application of the act, such as agencies of the Federal and State Government. The bill would prohibit the interstate mail-order traffic in fire arms, and a licensed person would be barred from selling firearms to residents of States other than the State of the licensee's place of business, except in the case of sporting type firearms. Furthermore, licensees would be prohibited from selling firearms to persons convicted of a felony and to persons under 21 years of age, or under 18 years in the case of rifles and shotguns.

It is anticipated that persons opposed to further restrictions on access to firearms will attack the proposed legislation on the ground that it violates the second amendment of the U.S. Constitution. Such an argument was rejected by Congress in connection with the adoption of the National Firearms Act of 1934 (now 26 U.S.C. 5801-5862) and the Federal Firearms Act, and the courts have rejected any incompatibility between the Federal legislation and the second amendment. Nevertheless, since the proposed restrictions are more stringent than those previously enacted by Congress, this opinion has been prepared to make as clear as possible the inapplicability of the second amendment to this legislation.

The second amendment to the Constitution provides: "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."

An examination of the relevant Federal and State cases, commentaries on constitutional law, and the legislative history of the National Firearms Act and of the Federal Firearms Act produces the following conclusions, which will be amplified and supported below:

(a) At the time of the passage of the National Firearms Act in 1934 and the consideration and passage by Congress of the Federal Firearms Act from 1935 to 1938, the second amendment was not considered to be an obstacle. (b) Decisions applying Federal firearms legislation hold that the second amendment was not, as the first amendment was, adopted with individual rights in mind, but was a prohibition upon Federal action which would interfere with the organization by States of their militia. The Federal firearms legislation was held not to interfere with such organization.

(c) The organized militia of the several States is today the National Guard of each State (and any Naval Militia) equipped by the Federal Government and trained in accordance with the discipline established under the authority of article 1, section 8, clause 16 of the Constitution. Consequently, it appears that

the "well regulated militia" referred to in the second amendment is at the present time the organized militia of the several States. The amendments to the Federal Firearms Act would in no way interfere with the organization, functioning, or expansion of the National Guard for Naval Militia).

(d) The concept of the right of the people to keep and hear arms, as expressed in State constitutions as well as in the second amendment, has been held not to prevent the States from regulating the carrying of deadly weapons by individ uals, or from prohibiting the formation of military organizations other than the organized militia. The concept of "bearing arms" is primarily a military concept and has been distinguished from the carrying of a weapon for personal purposes. Insofar as the right is deemed to exist in individuals, it is often identified with the right to participate in an organized milita. Moreover, several States decisions and commentators on constitutional law have concluded that the word "people" in the second amendment and like provisions in various State constitutions is used in the collective sense to mean the people organized as a body politic. (a) Consideration of the second amendment in the passage of prior Federal firearms legislation

In connection with the passage of the National Firearms Act in 1934 under the power of Congress to lay and collect taxes and to regulate interstate commerce. the Attorney General advised the Committee on Ways and Means that there was no constitutional objection to the legislation.' Members of the committee indicated agreement with this view. That this was the accepted view is indicated by the fact that the second amendment was not referred to in the 1935 hearings' preceding the passage of the Firearms Act of 1938, regulating interstate traffic in firearms, nor was it discussed in the several committee reports on this legislation.*

(b) Interpretation of the second amendment in Federal firearms prosecutions The argument that the second amendment inhibits Federal regulation of dealings in firearms was raised by defendants charged with, or convicted of, violation of the National Firearms Act or the Federal Firearms Act. In each case the second amendment was held not to bar the Federal legislation, one of the cases being decided by the Supreme Court and two being considered by that Court; United States v. Adams, 11 F. Supp. 216 (S. D. Fla. 1935); United States v. Miller, 307 U.S. 174 (1939); United States v. Tot, 131 F. 2d 261 (3d Cir. 1942), reversed on other grounds, 319 U.S. 463 (1943), and Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, sub nom. Velazquez v. United States, 319 U.S. 770 (1943). An analysis of these decisions, particularly those in Tot and Cases, demonstrates that the proposed amendments to the Federal Firearms Act are in no way invalidated by the second amendment.

The National Firearms Act of June 26, 1934, 48 Stat. 1236 (now 26 U.S.C. 5801-5862) levied taxes on dealers, manufacturers, and importers of defined firearms and on transfers of such firearms, and required that every person possessing any such firearm not acquired from a registered manufacturer or dealer or importer must register with the Secretary of the Treasury or his delegate the identification of the firearm and his own identification. Each transfer of such a firearm (except between registered dealers) was to be accompanied by a written order with an IRS stamp affixed.

In an early prosecution under this act, United States v. Adams, supra, the defendant demurred to the charge of violations of the act on several constitutional grounds including infringement by the act of the second amendment The court disposed of this argument by holding that the second amendment had no application to the Firearms Act. It declared that the Constitution "refers to the militia, a protective force of government; to the collective body and not individual rights" (at 219), citing Supreme Court and State court cases and a constitutional commentary on “The Right To Keep and Bear Arms,” by McKenna. discussed below.

In United States v. Miller, 307 U.S. 174 (1939) the Supreme Court upheld the conviction of two men who transported in interstate commerce a shotgun which came within the definition of a "firearm" under the National Firearms Act and was not registered as required by that act nor covered by a stamp-affixed order.

1 Hearings on H.R. 9066, 73d Cong., 18-19 (Apr. 16, 1934).

2 Id. at 53-54.

Hearings before the Senate Committee on Commerce on S. 3, 74th Cong. (Apr. 16, See S. Rept. 997, 74th Cong., H. Rept. 2663, 75th Cong., and S. Rept. 82, 75th Cong.

1935).

The act was challenged by the defendants as unconstitutional under the second amendment. The Court found that the second amendment did not guarantee the right to keep and bear any weapon not having a "reasonable relationship to the preservation or efficiency of a well-regulated militia." The Court stated that the obvious purpose of the amendment was to assure the continuation and render possible the effectiveness of the militia subject to call and organization by Congress under article 1, section 8, clauses 15 and 16 of the Constitution and that the amendment must be interpreted and applied with that end in view (at 178).

The Supreme Court recognized that at the time the Constitution was drafted the militia was considered to be a "body of citizens enrolled for military discipline" and that “ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time" (at 179). The Court further recognized that as of 1934, most, if not all, of the States had adopted provisions regulating the right to keep and bear arms and concluded that none of these laws affected the right of the Federal Government to adopt the National Firearms Act (at 182).

Any implication in the reasoning of the Court that the more efficient a weapon might be for purposes of a well regulated militia the less subject it might be to congressional regulation was dissipated in the two circuit court holdings which the Supreme Court did not disturb. Cases v. United States, 131 F. 2d 916 (1st Cir. 1942), certiorari denied, sub nom. Velazquez v. United States, 319 U.S. 770 (1943); United States v. Tot, 131 F. 2d 261 (3d Cir. 1942), reversed on other grounds, 319 U.S. 463 (1943). These cases upheld convictions under the Federal Firearms Act enacted June 30, 1938 (15 U.S.C. 901-909). The provision of the act which had been violated in each of these cases was section 902 (f) making it unlawful for any person convicted of a crime of violence to receive firearms or ammunition transported in interstate or foreign commerce. The defendants in both cases invoked the second amendment.

In the Tot decision the circuit court held that it was abundantly clear from the discussions of the second amendment contemporaneous with its proposal and adoption, and from the analysis of the amendment by learned writers since then, that unlike the first amendment, it "was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachmetns by the Federal power" (at 266). It further stated that "weapon bearing was never treated as anything like an absolute right by the common law" but was regulated by statute as far back as the statute of Northampton in 1328 and on many occasions since (at 266). The court concluded that the Federal statute providing a general regulation of interstate and foreign commerce in firearms was consistent with the history and purpose of the second amendment. The Court affirmed the lower court decision (United States v. Tot, 28 F. Supp. 900, 903 (D.N.J. 1939)) which had cited with approval the opinion in the Adams case that the amendment referred to a collective protective force and not to individual rights.

In the Cases decision the first circuit also pointed out that the right to keep and bear arms "is not a right conferred upon the people by the Federal Constitution" and that whatever rights they might have depended on local legislation (at 921). Furthermore, while the only function of the second amendment was to prevent the Federal Government from infringing that right, the limitation imposed was not absolute (at 922). The court concluded that the framers of the amendment did not intend to give private individuals a right to possess deadly weapons of any character, whether or not they were of the kind that would be useful to a well-regulated miiltia. Specifically, the possession of ammunition by the defendant in that case for purposes of his own was not a right guaranteed by the second amendment.

(c) The present day "well-regulated militia"

In 1792, the year following the adoption of the second amendment, Congress acted under its power in article I, section 8, clauses 15 and 16 of the Constitution to provide for calling forth the State militia as necessary to meet invasion or insurrection, with payment the same as for U.S. troops," and to provide for the enrollment and organization in the State militia of able-bodied men between prescribed ages with the requirement that they provide their own arms as specified."

6 Act of May 2, 1792, c. 28, 1 Stat. 264. Act of May 8, 1792, c. 33, 1 Stat. 271.

However, in 1808 Congress provided that a certain number of arms should be annually supplied to the whole of the enrolled militia. An annual appropriation of $200,000 was provided for this purpose. The arms were to be distributed to the States in the proportion that each militia bore to the whole, and in accordance with State regulations, while title to the arms was to pass to the States. This arrangement continued until 1897 when Congress, dissatisfied with the 1808 act, doubled the annual appropriation and required the States to create and maintain a regular, enlisted, organized, and uniformed, active militia in order to be eligible for the Federal arms. Moreover, Congress required the States to account for the property furnished and provided that it was to remain the property of the United States. Soon thereafter Congress provided that the "regularly organized armed and equipped militia" (generally known as the State National Guard) || could exchange its arms, either furnished by the Federal Government or purchased by the State out of its own appropriation, for an equivalent number of caliber .45 Springfield rifles. Congress also provided that the States could purchase for the use of their militia other arms and supplies from the Army for cash.10 It was recognized that the States continued to purchase arms and equip

ment for their militia from their own appropriations."

From 1887 to the present day the Federal Government has supplied arms to the State militia under legislation prescribing the kind, quality, care, and accounting of such arms, with the provision that the arms remain the property of the United States.12

In 1903 Congress provided that the "regularly enlisted, organized, and uniformed active militia in the several States" should constitute the "organized militia" and be known as the National Guard (or such other name as the State might give), that all other able-bodied men between the ages of 18 and 45 should be known as the Reserve Militia, that Federal equipment could be distributed only to the organized militia, and that any State could procure from the War Department additional arms for its organized militia where that body met certain specified training requirements." Since that time the organized militia of the States has been the National Guard (and the Naval Militia)," and the remaining eligible manpower form "the unorganized militia" which has no status until members are called into the National Guard under State or Federal law (see 10 U.S.C. 311). This distinction between the organized militia known as the National Guard (or the Naval Militia) and the unorganized reserve is followed in State laws. (For example, see New York, military law, sec. 2: Pennsylvania, 51 P.S., secs. 1-202 1-203; Virginia, sec. 44-1 ;and Texas-Vernon's Ann. Civ. St. Art. 5765.)

It appears from the foregoing that for nearly a century and a half Congress has provided for the arming of the enrolled, organized militia, the arms being similar to or identical with those provided to the defense forces, and that for at least the past half century no member of the organized militia has been required or permitted to supply his own arms.' Moreover, during almost all of the 20th century the only organized militia has been the National Guard, and since 1914 the Naval Militia. These may consequently be described as the "well-regulated militia" of the present day.

15

Act of Apr. 23, 1808, c. 55, 2 Stat. 490; see the pertinent part of the debates in Congress on this act in 18 Annals of Congress 2176, 2181-2185, 2195-2197 (April 1808). 8 Act of Feb. 12, 1887, c. 129, 24 Stat. 401; sec. S. Rept. 41 and H. Rept. 1267, 49th Cong.

Act of Feb. 24, 1897, c. 310, 29 Stat. 592.

10 Ibid.

11 28 Congressional Record 2933.

12 See acts in this century so providing: Act of Jan. 21, 1903, c. 196, sec. 13, 32 Stat. 775, 777; act of May 27, 1908, c. 204, sec. 8, 35 Stat. 399, 401-402; act of June 3, 1916, c. 134, secs. 67, 83-87, 39 Stat. 166, 199-200, 203-205; act of Aug. 10, 1956, c. 1041, 70A Stat. 615 (32 U.S.C. 710(a)).

13 Act of Jan. 21, 1903, c. 196. sec. 1, 32 Stat. 775.

14 The organized Naval Militia was created in 1914; see act of Feb. 16. 1914. c. 21, 38 Stat. 283; it was to be composed of State Naval Militia which had been established in some of the States approximately beginning in 1880 and thereafter; see H. Rept. 94 and S. Rept. 167, 63d Cong., and 10 U.S.C. 7851.

15 As early as December 1807, Congress recognized that the requirement that militiamen provide their own weapons (see footnote 2) had not been adhered to in many parts of the United States (17 Ann. of Cong.. 1040-1041). In 1903 this 1792 requirement that each enrolled militiaman provide his own "musket or firelock" was finally repealed tact of Jan. 21, 1903, c. 196. sec. 25, 32 Stat. 775, 780). It was then recognized that even the requirement of enrollment had been obsolete for over 100 years (H. Rept. 1094, 57th Cong., 11).