with arms might be put out to service, and this became a permanent part of the legislation of the colony [Massachusetts].'

"Also Clauses intended in insure the possession of arms and ammunition by all who were subject to military service appear in all the important enactments concerning military affairs.'"

The court cited provisions of the laws from not only Massachusetts, but from New York and Virginia, all dated in Colonial times. These reveal that not only must the individual have had a musket or a rifle and the necessary ammunition and other equipment in his possession, but he must have purchased them at his own expense. He had to be ready at all times to produce these arms, and could be punished for his failure to do so. This case demonstrates that the right to bear arms was a right accorded to the individual person.

Those who contend that the right to have and bear arms is not an individual right but only a collective right accorded to the militia as a body, frequently point to the case of Salina v. Blaksley, decided in 1905 by the Supreme Court of Kansas.1 This is the only case research has turned up which unequivocally holds that the right to bear arms applies only to the right to bear them as a member of the militia. As authority for this bland statement, it cites a Massachusetts case" as strongly supporting this position, but an examination of the Massachusetts decision reveals it did not discuss this proposition at all, but only sustained the right of the State to prohibit parades of privately armed organizations which were not a part of the State militia. As legal precedent, the Kansas decision appears to be of doubtful value.

What is all this discussion leading to, and why is it so important? It is important because the Supreme Court of the United States is gradually getting around to holding that all the provisions of the Bill of Rights have been incorporated into the Constitution, as applied to the States, by the enactment of the 14th amendment.

JUSTICE BRENNAN SPEAKS

In 1962, William J. Brennan, Jr., another Associate Justice of the Supreme Court of the United States, also appeared in lectures at the New York University School of Law. His subject was exactly what we have been referring to, i.e., "The Bill of Rights and the States." 15 It is revealing to read some of his statements. As to natural or basic rights he says:

"The constitutions of the original States anticipated the national Constitution in declaring the doctrine that there are human liberties which are inalienable. This doctrine has ever since been the center and core of the American idea of limited government. The government of each State was the creation of the people of the State; the source of power was the people of that State. The only end and aim of government was to secure the people in their natural and civil rights."

Justice Brennan traces the history of the cases which have marked the steady progress of the court toward applying the provisions of the Bill of Rights to the States.

18

In Adamson v. California, in 1947, an appeal was taken to the Supreme Court by Admiral Dewey Adamson while California was waiting to execute him for murder. He contended that the adoption of the 14th amendment to the Constitution resulted in making the Bill of Rights applicable to the States and that certain rights accorded him by the Bill of Rights had been violated. The 14th amendment, section 1, is in these words:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny any person within its jurisdiction the equal protection of the laws."

Nevertheless, the majority of the court still clung to the doctrine of the old decisions and held that the Bill of Rights was not activated as to the States by the 14th amendment. Justice Black, however, wrote a famous dissent in which he contended that the Framers intended by the 14th amendment, to apply the Bill of Rights to the States.

12 83 Pac. 619, 3 LRA (NS) 168.

14 44 NE 138.

15 NYU Law Rev., vol. 36, p. 761. 18 332 U.S. 46 (1947).

MORE RECENT DECISIONS

Justice Brennan points out that, although the Supreme Court has not accepted the incorporation of the Bill of Rights as a whole, it has proceeded piecemeal to hold that certain of the 10 amendments restrict the States. The Court has extended the first amendment's protection as regards freedom of religion, speech, press, assembly, and petition. The requirements of the fifth as to just compensation being paid for private property taken for public use have long been upheld. Due process has required counsel for an accused in criminal cases as stated in the sixth. Due process applies against unreasonable searches and seizures secured under the fourth. The rights granted under the fifth as to confessions have been applied.

When we ask ourselves the question, "Is the right to bear arms a natural and basic right?" we are supported in the affirmative by the following quote from Justice Brennan's lecture:

"The Bill of Rights is the primary source of expressed information as to what is meant by constitutional liberty. The safeguards enshrined in it are deeply etched in the foundations of America's freedoms."

Does not this quote strengthen our right to assert that the second amendment expresses a basic right? Our Founding Fathers thought the right to bear arms so important that it was incorporated in the Bill of Rights directly after the first amendment protecting freedom of speech and religion.

Mr. Norman Redlich, professor of law at New York University School of Law, in an article concerning this same subject, the Bill of Rights," also reviews decisions of the Supreme Court which extend many of the restrictions to the States. In addition to those already mentioned, he includes the eighth amendment. He predicts the future in these words:

"As already indicated, however, most of the major provisions of the Bill of Rights have either been incorporated into the 14th amendment, or are likely to be in the near future."

In reviewing what these authorities have said we are really trying to answer this question: What would the Supreme Court rule if it was confronted today with the specific problem of the right to bear arms contained in the second amendment? From what I have said, I believe it is a fair statement to conclude that we have much more than a feeble hope. Based on substantial probability, we have a reasonable expectation that the Supreme Court would extend the restrictions of the second amendment to all of the States. Certainly if the right to bear arms is a basic, natural right, the Court logically can hardly do otherwise. Should this happen, do not conclude that suddenly utopia has arrived for the gun owner. Despite all constitutional provisions, under the police power of the States the courts generally have upheld what they have considered the reasonable regulation of concealed weapons, the possession of weapons not ordinarily used for defense or warfare, the firing of guns in populous areas, and many other like regulations. Although the Federal Government has no police power and can impose controls over firearms only through its right to regulate commerce, its right to tax, and its jurisdiction over the mails, all the States do have what is known as police power. Police power is the right to regulate the conduct of persons in furtherance of the health, the safety, and the general welfare of the citizens. Such powers may be extended by a state to its governmental subdivisions, such as cities and counties, which is one reason why the surveillance of antigun legislation is so difficult. However, extension of the second amendment to the States would mean that the amendment would apply to those States having no constitutional restriction, and it could lead to more uniformity and a more sensible type of legislation.

Because the 15 States which have no constitutional provision regarding the right to have and bear arms include New York, Illinois, and California, the number of persons who would be affected, if the provisions of the second amendment were extended to the States, would be 40 percent of the population.

In conclusion, we should note that Justice Douglas, speaking in January 1963, 11 months before the brutal assassination of President Kennedy, said these prophetic words:

"Fear of assassination often produces restraints compatible with dictatorship, not democracy."

" 18

17 NYU Law Review, vol. 37, p. 787. 18 NYU Law Review, vol. 38, p. 210.

It is important, in these most difficult times, that we stoutly stand up for our constitutional rights, those liberties which are rightfully ours.

The imporance of the National Rifle Association and our affiliated State associations and clubs in informing our members and the public about detrimental legislation, can be characterized by this further quote from Justice Douglas: "We have a Bill of Rights designed to keep government out of private domains. But the fences have been broken down; and machinery to restore them has been denied. The Bill of Rights-with the judicial gloss it has acquired— plainly is not adequate to protect the individual against the growing bureaucracy. He faces a formidable opponent in government, even when he is endowed with funds and with courage. The individual is almost certain to be plowed under, unless he has a well-organized active political group to speak for him. The church is one. The press is another. The union is a third. But if a powerful sponsor is lacking, individual liberty withers—in spite of glowing opinions and resounding constitutional phrases."

Senator DODD. Senator Fannin?

STATEMENT OF HON. PAUL J. FANNIN, A U.S. SENATOR FROM THE STATE OF ARIZONA

Senator FANNIN. Mr. Chairman, my appearance here today is on behalf of the many individuals and organizations in my State of Arizona who are opposed to S. 1592. I realize that many witnesses want to testify on this important legislation and I want to thank the chairman for granting me the privilege to make a brief statement.

In the interest of conserving time, Mr. Chairman, I ask permission to have two prepared statements included in the record following my remarks. One is Senate Memorial No. 1 of the 27th Arizona Legislature, adopted unanimously by the Arizona State Senate and approved by the Governor on May 14, 1965. The other is a statement submitted on behalf of the Arizona State Rifle & Pistol Association by its president, Dr. Leonard Brewster, of Tucson, and the secretary, Mr. Ben Avery, of Phoenix. Both statements present logical and factual arguments in opposition to S. 1592, and, in addition, I believe they are an accurate reflection of majority opinion in my State.

This is borne out by the volume of letters and telegrams I have received from Arizona citizens. Very few have indicated support for the bill, while a substantial number have expressed strong opposition to it.

All of us, I am sure, share the conviction that an effective attack must be mounted against the rising crime rate in this country. But the regulations embodied in S. 1592 would not prevent the determined criminal from obtaining firearms; instead, it would impose severe penalties on millions of honest, law-abiding citizens.

There are many small businesses in my State and throughout the country which would suffer severely under this bill. Many of these are small custom shops that produce fine sporting and target arms for mail-order sale all over the world.

In addition to these small dealers, there are many sparsely populated areas of Arizona where service stations and small general stores handle firearms and ammunition as an accommodation to the ranchers and farmers who need them.

They also serve the more than 150,000 Arizonans who engage in hunting and whose sport is an important part of game and range management in our State. They could ill afford the drastic increase in dealer fees and recordkeeping contemplated by S. 1592.

It might be argued that the private interests of a relatively small number should not be allowed to take priority over the general public interest in preventing criminals from access to weapons. But this requires proof that S. 1592 would accomplish this-and my evidence is strongly to the contrary.

Any person seeking a gun for illegal purposes, whether he be a dope addict, hardened criminal, or juvenile delinquent, would still be able to get one. For that matter, there already are adequate laws in most States against the use of firearms illegally and preventing their use or possession by juveniles without adult supervision.

I know the subcommittee is aware that much of the current difficulty with firearms control has resulted from our Government's policy of permitting the dumping of foreign surplus rifles and pistols in this country. Our late President, John F. Kennedy, sponsored legislation in 1958 to curb these imports and in fact, I understand they could be curtailed now by administrative action of the executive branch of the Government.

Legislation to ban these foreign weapons, mostly castoff military rifles and cheap pistols, would have broad support throughout the country. It would also be a specific step in reducing the availability of guns for illegal use, because the bulk of these weapons are not purchased by hunters and sportsmen.

Finally, Mr. Chairman, I am concerned over the infringement of basic constitutional rights represented by provisions of S. 1592, and I know many thoughtful Americans share this concern. It is my sincere belief that the public interest would be far better served by more rigid enforcement of existing laws with respect to illegal use and possession of firearms.

Thank you, Mr. Chairman.

(The statements referred to follow :)

Senator DODD. Senator, we are glad to have your views.

I only want to point out-I notice you say any person seeking a gun for illegal purposes, whether he be a dope addict, hardened criminal, would still be able to get one.

Well, that is not true. The whole purpose of this bill is to prevent criminals and juveniles from getting firearms. That is what the bill

says.

Senator FANNIN. Mr. Chairman, I understand that. But I cannot visualize how that could be operated to a successful conclusion.

Senator DODD. Well, I know you have a different viewpoint. I want you to understand that.

Do you have much firearm regulation in Arizona?

Mr. FANNIN. Yes. We have not had severe difficulties. I can say it has been very satisfactory as far as our control of the firearms sales in Arizona, from the standpoint of the type of illegal sales that would result, and problems.

Senator DODD. Well, I think I ought to make clear on the recordwe have had a study conducted of firearm regulations throughout the United States. We found in two places-in Dallas, Tex., and Phoenix, Ariz.-firearms regulations are practically nonexistent. The percentage of homicides committed by guns in 1963 was 72 percent in Dallas and 65.9 percent in Phoenix. And in cities where there are relatively strong regulations, for example, in Chicago, the rate was only 46.4 per

cent; Los Angeles, 43.5 percent; Detroit, 40 percent; Philadelphia, 36 percent; and New York City, with the much maligned Sullivan law, the rate of murder by gun was only 25 percent.

Now, do you think this might indicate that something needs to be done in Phoenix?

Senator FANNIN. I would say we need stronger law enforcement throughout the country. I certainly agree on that.

Senator DODD. That is a pretty high percentage about the highest in the country. And New York is a tremendously big city. There has been much criticism of that law. But there are the figures. They are not mine, but I can assure you they are accurate.

It seems to me those who argue that this should be controlled by the States ought to start to do something in their States.

Senator FANNIN. Well, this bill, as I stated, is opposed by this resolution unanimously adopted by the senate in the State of Arizona. Senator DODD. Thank you, Senator.

Senator FANNIN. Thank you.

(The statements referred to were marked "Exhibits Nos. 67 and 68" and are as follows:)

(An additional statement was received from Senator Fannin on June 9, 1965, to be printed at this point in the record.)

EXHIBIT No. 67

SENATE MEMORIAL NO. 1

A MEMORIAL URGING THE CONGRESS OF THE UNITED STATES TO OPPOSE FEDERAL LEGISLATION WHICH WOULD PROHIBIT THE SALE OF FIREARMS WHERE SHIPMENT ACROSS A STATE BOUNDARY IS INVOLVED

To the Congress of the United States:

Your memorialist respectfully represents:

Whereas S. 1592, a bill to amend the Federal Firearms Act, has been introduced into the Senate of the 89th Congress of the United States and is being considered by the Subcommittee of Juvenile Delinquency of the U.S. Senate Judiciary Committee; and

Whereas S. 1592, if enacted, will prohibit the sale of firearms of every type to individuals where shipment across a State boundary is involved; and

Whereas the enactment of S. 1592 would impose undue restrictions on the honest citizen, particularly in rural areas like Arizona where a firearm is a virtual necessity in daily living for many of our citizens, and where more than 150,000 of our citizens engage in the sport of hunting to help harvest our game herds as a vital part of range management in a livestock growing area; and

Whereas the Bills of Rights of the Constitution of the United States and the declaration of rights of the constitution of Arizona guarantee to citizens the right to keep and bear arms and which therefore implies the right to purchase arms; and

Whereas such Federal legislation would have little or not effect on a criminal because a criminal rarely waits to order a firearm by mail in order to commit a crime; and

Whereas the enactment of S. 1592 would not curb the use of firearms by unsupervised juveniles nor would it curb others who are incapable of responsible use of firearms but who nonetheless possess firearms for legal purposes; and

Whereas the amendment of the Federal Firearms Act, in the manner proposed by S. 1592, would destroy many small businesses in Arizona and throughout the United States by curtailing the work of many fine craftsmen who make fine sporting and target firearms. Wherefore your memorialist, the Senate of the State of Arizona, prays:

1. That the Congress of the United States and the Subcommittee of Juvenile Delinquency of the United States Senate Judiciary Committee examine carefully the substance of S. 1592, and vigorously oppose any part of the bill which 49-588-65-17