"We are now arrived at the inquiry-what is this power? It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. * * *” Gibbons v. Ogden, 9 Wheat. 1, 196 (1824).

Although arising from the same source, in its application and limitation the congressional power to regulate foreign commerce differs somewhat from its power to regulate interstate commerce.

A. AS APPLIED TO FOREIGN COMMERCE

The proposed legislation would prohibit the importation of surplus military firearms and severely restrict certain other firearms importations (e.g., firearms not suitable for lawful sporting purposes). The Supreme Court has held that, under its commerce regulating power, Congress may, if it desires, completely prohibit importation of articles of commerce. In a 1915 decision concerned with regulation of opium traffic the Court took this position, and quoted from a previous decision as follows:

""*** Whatever difference of opinion, if any, may have existed or does exist concerning the limitations of the power, resulting from other provisions of the Constitution, so far as interstate commerce is concerned, it is not to be doubted that from the beginning Congress has exercised a plenary power in respect to the exclusion of merchandise brought from foreign countries; not alone directly by the enactment of embargo statutes, but indirectly as a necessary result of provisions contained in tariff legislation. It has also, in other than tariff legislation, exerted a police power over foreign commerce by provisions which in and of themselves amounted to the assertion of the right to exclude merchandise at discretion. This is illustrated by statutory provisions which have been in force for more than 50 years, regulating the degree of strength of drugs, medicines and chemicals entitled to admission into the United States and excluding such as did not equal the standards adopted.' Brolan v. United States, 236 U.S. 216, 218, 219 (1915), quoting Buttfield v. Stranahan, 192 U.S. 470, 492. See also Yee Hem v. United States, 268 U.S. 178, 183. An early exercise of this congressional power is seen in the act of March 2, 1907, entitled, "An Act to prohibit the importation of slaves into any part or place within the jurisdiction of the United States from and after the first day of January in the year of our Lord one thousand eight hundred and eight" (2 Stat. 426).

Since the field of foreign commerce is external and involves relations with foreign nations, it is in an area of exclusive Federal jurisdiction with State interference prohibited by section 10 of Article I of the Constitution. Hence, the reservation of State power over police matters and intrastate commerce arising from the 10th amendment are not limitations over the regulation of foreign

commerce.

Neither is the fifth amendment a limitation on the exercise of the foreign commerce regulation power. Regarding this matter the Supreme Court has said: "As a result of the complete power of Congress over foreign commerce, it necessarily follows that no individual has a vested right to trade with foreign nations, which is so broad in character as to limit and restrict the power of Congress to determine what articles of merchandise may be imported into this country and the terms upon which a right to import may be exercised. This being true, it results that a statute which restraints the introduction of particular goods into the United States from considerations of public policy does not violate the due process clause of the Constitution." Buttfield v. Stranahan, 192 U.S. 470, 493 (1904). See also Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 335 (1909).

B. AS APPLIED TO INTERSTATE COMMERCE

The proposed legislation, in order to achieve effective control over interstate transactions in firearms, would impose licensing requirements on all persons engaged in activities of a commercial nature with respect to firearms, without regard to whether their activities are interstate or intrastate, and would impose restrictions and requirements on all licensees with respect to certain transactions not necessarily interstate in nature. A major objective of the proposed amendments to the Federal Firearms Act is to assist State and local authorities, in the exercise of firearms controls within their borders under their police power, through effective control of interstate and foreign traffic in firearms. A reasonable

implementation of this purpose is the requirement that licensees sell only to residents of their States, since otherwise gun ownership controls of only local application could be frustrated. Another objective is to control interstate commerce in firearms destined for minors and criminals. Here again, a restriction on sales by licensees generally was deemed essential to achieve effective interstate control.

The Supreme Court has in numerous decisions since McCulloch v. Maryland, supra (4 Wheat. 316 (1819)), discussed the power of Congress to legislate in matters involving interstate commerce. It seems apparent from these many decisions that, in exercising its constitutional power to regulate, Congress may, for the common good, restrict or completely prohibit interstate commerce in specific articles, and may regulate intrastate transactions, as appropriate, to effectively achieve its purpose in regulating interstate commerce.

The power of Congress under the commerce clause has been described as plenary and supreme and subject to no limitations other than those prescribed by the Constitution itself. Prudential Insurance Co. v. Benjamin (328 U.S. 408, 423, 434 (1946)); Carolene Products Co. v. United States (304 U.S. 144, 147 (1938)); Kentucky Whip & Collar Co. v. Illinois Central Railroad Co. (299 U.S. 334 (1937)). The Supreme Court has stated that:

"The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control.” United States v. Darby (312 U.S. 100, 115 (1941)), citing McCray v. United States (195 U.S. 27); and Sonzinsky v. United States (300 U.S. 506, 513).

The power to regulate means the power "to prescribe the rule by which commerce is to be governed." Gibbons v. Ogden (9 Wheat. 1, 196).

A permit or licensing system is one congressional method of regulating interstate commerce. Hanf v. United States (235 F. 2d 710, 717 (8th Cir. 1956), cert. denied 352 U.S. 880 (1956)); and Arrow Distilleries v. Alexander (109 F. 2d 397, 401, 402 (7th Cir. 1940), cert. denied 310 U.S. 646). These decisions, which upheld a permit system applicable to intrastate as well as interstate liquor traffic, cite as authority other Supreme Court cases also holding that the commerce power of Congress may, when necessary to achieve effective interstate regulation, extend to

1. Regulation of intrastate rail rates (Minnesota Rate Cases, Simpson v. Shepard (230 U.S. 352 (1913));

2. Regulation of intrastate milk prices (United States v. Wrightwood Dairy Co. (315 U.S. 110 (1942)); and

3. Regulation of intrastate tobacco market (Mulford v. Smith (307 U.S. 38 (1938)).

The Wrightwood Dairy decision includes the following language:

"It follows that no form of State activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power." (315 U.S. 110 at -118, 119.)

and in Darby, supra, the Court said:

"The power of Congress over interstate commerce is not confined to the regulation of commerce among the States. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce." [Italic supplied.] United States v. Darby (312 U.S. 100 (1941) at 118, 119), citing McCulloch v. Maryland (4 Wheat. 316, 421) and other Supreme Court cases.

See also Katzenbach v. McClung (379 U.S. 294 (1964)) and Heart of Atlanta Motel v. United States (379 U.S. 241 (1964)) for reaffirmation of this position. The legislative record before Congress concerning traffic in firearms will undoubtedly amply demonstrate that the licensing of all persons engaged in the business of manufacture or dealing in firearms is an appropriate and necessary means to the attainment of the legitimate end of regulating firearms traffic across State lines; otherwise such traffic cannot be traced and effectively brought under control.

With respect to the prohibition on the interstate shipment of firearms, except between licensed persons, it is well recognized that the assistance of States in the exercise of their police power or the enforcement of their domestic policies

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is a valid purpose for regulation of interstate commerce. Kentucky Whip & Collar Co. v. Illinois Central Railroad Co., supra, and cases cited (299 U.S., pp. 341, 342, 347, 351, 352). In this case, upholding as constitutional a law regulating interstate shipment of prison-made articles, the Supreme Court said:

“* * * And, while the power to regulate interstate commerce resides in the Congress, which must determine its own policy, the Congress may shape that policy in the light of the fact that the transportation in interstate commerce, if permitted, would aid in the frustration of valid State laws for the protection of persons and property." (299 U.S. 334 at 347, citing Brooks v. United States, 267 U.S. 432; Gooch v. United States, 297 U.S. 124.)

In achieving its avowed purpose, Congress may impose restrictions or requirements which are applicable in States which have not enacted legislation on the same subject matter. Kentucky Whip, supra, 297 U.S. at 353; and Darby, supra, 312 U.S. 100 at 113, 114.

Apropos the validity of utilizing the commerce power to restrain sales of firearms to minors and criminals, the following language of the Supreme Court is considered relevant:

"That the United States lacks the police power, and that this was reserved to the States by the 10th amendment, is true. But it is nonetheless true that when the United States exerts any of the powers conferred on it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power, or that it may tend to accomplish the same purpose." Hamilton v. Kentucky Distilleries Co., 251 U.S. 146 (1919) at 156, citing Lottery Case, 188 U.S. 321, 357; McCray v. United States, 195 U.S. 27; Hipolite Egg Co. v. United States, 220 U.S. 45, 58; Hoke v. United States, 227 U.S. 308, 323; Seven Cases v. United States, 239 U.S. 510, 515; United States v. Doremus, 249 U.S. 86, 93–94.

On the record before it Congress may reasonably find that the incidence of the use of handguns for criminal purposes among older juveniles is so great as to justify a prohibition on the sale of firearms (except for a shotgun or rifle) to all minors. In this respect Congress would follow the lead of many States which prohibit such sales, and in so doing this legislation would strengthen the enforcement of State laws.

See also Kentucky Whip, supra, 299 U.S. 334 at 347 and United States v. Darby, 312 U.S. 100 at 114 where it is said:

"Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose use in the States for which they are destined it may conceive to be injurious to the public health, morals, or welfare, even though the State has not sought to regulate their use." (Citing cases.)

"Such regulation is not a forbidden invasion of State power merely because either its motives or its consequence is to restrict the use of articles of commerce within the States of destination; and is not prohibited unless by other constitutional provisions. It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the States." (Citing cases.)

In a case construing the statutory controls over interstate shipment of gambling devices an opinion in which three Justices joined indicated that the Court had not yet fully decided all constitutional questions relating to the power of Congress to require uniform registration, which would include registration by persons operating only intrastate, and of requiring information on strictly intrastate transactions. United States v. Gambling Devices, 346 U.S. 441. However, it seems clear from such cases as Hanf v. United States and Arrow Distilleries v. Alexander, supra, that where, in order to achieve effective regulation of interstate commerce, Congress deems it necessary or appropriate to require uniform licensing, it is within the congressional power to do so. By the same token, the cases would indicate that there would be no constitutional bar to imposing uniform requirements on persons federally licensed under laws arising from the interstate commerce power, where to except requirements as to intrastate transactions would tend to render ineffective the controls over interstate commerce. This concept would seem to be clearly within the scope of the Court's holding in McCulloch v. Maryland, supra, in its discussion of the latitude given Congress by the “implied power" clause in determining the appropriate means for achieving its purpose in regulating interstate commerce.

As the Court has repeatedly maintained, at least since Marshall's 1824 decision in Gibbons v. Ogden, 9 Wheat. 1, the only limitations on the congressional power

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to regulate interstate commerce are those found in the Constitution itself. If such limitations exist, they abide in the 5th and 10th amendments. Previously discussed Supreme Court cases conclusively show that the reservation expressed in the 10th amendment does not constitutionally bar Congress from enacting statutes which burden intrastate commerce or which amount to the exercise of police power, so long as this action is reasonable and necessary to effectively accomplish the interstate commerce regulation undertaken.

With respect to the fifth amendment, the Supreme Court has consistently held that where the subject of commerce is one as to which the power of the State may constitutionally be exerted by restriction or prohibition in order to prevent harmful consequences, the Congress may act to restrict or prohibit interstate commerce relative to the same subject without violating the due process of law. Kentucky Whip & Collar Co. v. Illinois Central Railroad Co., 299 U.S. 334, 351; United States v. Darby, 312 U.S. 100, 125; Heart of Atlanta Motel v. United States, supra.

It is concluded that the provisions of S. 1592, designed to amend the Federal Firearms Act, are constitutional as within the power of Congress to regulate interstate and foreign commerce and are subject to no limitation prescribed in the Constitution. The act and the proposed amendments thereto are intended to regulate interstate and foreign commerce in firearms. The fact hat there is also intended some incidental regulation of intrastate commerce does not invalidate the proposed legislation. Although the regulation of firearms traffic under the proposed legislation may have some characteristics of the exercise of "police power." it is not a usurpation of a power reserved to the States by the 10th amendment; and it is not violative of the due process clause of the 5th amendment.

Attorney General KATZENBACH. Today, of course, the organized, or "well-regulated" militia is the National Guard of the individual States. Therefore, in considering the relationship of S. 1592 to the second amendment, the question is whether it would interfere with the maintenance and training of the National Guard.

The answer is "No." The Federal Govermnent supplies arms to maintain and train the Guard and this would be unaffected by the bill.

Further, section 4 of the bill exempts State departments and agencies, and independent establishments from its restrictions just as they are exempted by section 4 of the original act. So, S. 1592 would in no way regulate or disarm the National Gaurd.

Even beyond this, the second amendment argument fails. Even if it were applicable, the fact remains that this measure does not infringe on the right of the people to keep and bear arms. It may make the purchase of weapons a little more inconvenient, but it does so for a reason: So that any State which itself wishes to regulate firearms more closely may effectively do so."

More generally, I really cannot understand why the legislation we are talking about should seem a threat at all to sportsmen, hunters, farmers, and others who have a productive or necessary or enjoyable interest in the use of rifles, shotguns, or sporting handguns. Nothing that we propose here could intelligently be construed as impairing the enjoyment they derive from shooting.

This legislation would, indeed, make some changes in the distribution of firearms. It would, indeed, by outlawing mail-order sales of firearms between States, bring about changes in the commercial firearms world.

It would, indeed, challenge interests which have thrived on the present state of unregulated chaos. But such a challenge is tragically overdue.

I have sought, Mr. Chairman, to make it plain that S. 1592 applies only to the sale and distribution of firearms; their use would remain a question for State and local law. I have sought to make it plain that our effort is, as the President said in March, to keep "lethal weapons out of the wrong hands.'

These issues have been widely debated over a period of years. There have been extensive congressional hearings. There has been wide debate among the public and in the press. The pros and cons have been fully discussed. Now we approach the time of decision.

The NRA warned, in the letter to its membership, that if "the battle is lost, it will be your loss, and that of all who follow."

It is impossible for me to understand the NRA's view of what battle is being fought and what the stakes are. In my view, we are all joined in a nationwide battle-a battle against rape and robbery and muggings and murder-and the stakes are public order and safety for every citizen.

Which is more significant, the right not to be slightly inconvenienced in the purchase of a firearm, or the right not to be terrorized, robbed, wounded, or killed?

As the chief law enforcement officer of the United States, I come before you today to ask you to supply the only conceivable answer to that question. I come, with all the urgency at my command, to ask the subcommittee to report this measure favorably and to ask the Congress to enact it without delay.

Thank you, Mr. Chairman.

Senator DODD. Thank you, Mr. Attorney General. That was an excellent statement and will be helpful to us and very helpful to all the Members of Congress. I am sure it will likewise be helpful to the people of this country to get an accurate and truthful understanding of this bill.

Senator Fong?

Senator FONG. I have no questions. I want to thank you, Mr. Attorney General for this very, very excellent statement which is very concise and logical. I think this will dispel a lot of things which have been said about the bill which is not true.

Attorney General KATZENBACH. Thank you, Senator. I hope it serves the purpose.

Senator DODD. Mr. Perian?

Mr. PERIAN. Mr. Katzenbach, we have been repeatedly informed by the National Rifle Association that criminals will obtain guns no matter how many laws there are on the books. In your experience in law enforcement, do you feel this is an accurate statement?

Attorney General KATZENBACH. I believe the criminals will continue to obtain guns. I think this is going to make it more difficult and will also mean that some people will not obtain guns and will not become criminals as a result. I do not expect the enactment of this bill to eliminate all crime or all murder in the United States. I do think it is a reasonable and responsible measure and that it will help the States to help themselves in controlling the possession and use of firearms by the criminal elements.

I suppose some criminals would continue to get firearms. I would doubt that it would be possible to completely prevent that by the process of law and regulation.