been challenged under the 1934 and 1938 acts as improperly curtailing the right to bear arms under the second amendment to the Constitution:

"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."

Since the basic purpose of this amendment is regarded as the preservation and efficiency of a well-regulated militia, in the absence of a showing that the possession or use of a specific type of firearm has a reasonable relationship to that end, firearms control legislation has been upheld. United States v. Miller (307 U.S. 174 (1939)); see Cases v. United States (131 F. 2d 916 (1st Cir. 1942)), cert. denied sub nom. Velazquez v. United States (319 U.S. 770 (1943)). Thus, the National Firearms Act of 1934 was held not to violate the second amendment in the Miller case, in the absence of a showing of any reasonable relationship between the individual possession of what amounted to a sawed-off shotgun and the preservation of a well-regulated militia. The 1964 act was based upon the taxing power, and in Sonzinsky v. United States (300 U.S. 506 (1937)), the Supreme Court refused to speculate as to the motives which moved Congress to impose the tax, and rejected the contention that the act's levy was not a true tax but a penalty imposed to suppress traffic of a type best left to regulation by the States. In addition, in United States v. Fleish (90 F. Supp. 273 (E.D. Mich. 1949)), the Court rejected an attack on the 1934 act as an unconstitutional invasion of the power of the States to regulate the sales of firearms within their borders, and thus as exceeding the powers of Congress. The Court, quoting Miller, and the numerous cases cited therein, concluded that no valid objection could be made to a constitutional exercise of a congressional power (i.e., the power to tax) merely because such exercise "may be attended by the same incident which attends an exercise by a State of its police power." Id. at 275.

As indicated in Cases v. United States, the constitutional basis for the Federal Firearms Act of 1938 was clearly intended by Congress to be the commerce clause. although the constitutionality of the statute on that ground was not a necessary determination in the case. The case involved the conviction of Jose Cases Velazquez in the U.S. District Court for Puerto Rico for violation of the Federal Firearms Act, and the Court of Appeals for the First Circuit, in reviewing the conviction, did not have to meet the issue of constitutionality under the commerce clause:

"It is clear that in enacting the Federal Firearms Act Congress was exercising the power conferred upon it by the commerce clause, but it is equally clear that Congress meant to deal comprehensively with the subject and to exert all the power which it had in respect thereto. *** Since its power as we have seen, as to a territory like Puerto Rico is plenary, except as limited by express constitutional restrictions, Congress is not fettered by the commerce clause, Constitution, article I, section 8, clause 3, in its power to legislate for Puerto Rico." (131 F. 2d at 923.)

At about the time that the Supreme Court denied certiorari in Cases, it declared unconstitutional section 2(f) of the 1938 act which created the presumption of interstate shipment of a firearm after the effective date of the act from possession of the firearm by a person with a previous conviction. Tot v. United States (319 U.S. 463 (1943)). Although not dealing with the status of the rest of the act, the Court made passing reference to the commerce clause:

"The Government *** urges that Congress, in view of the interstate commerce in firearms, might, in order to regulate it, have prohibited the possession of all firearms by persons heretofore convicted of crimes of violence; it is plain that Congress, for whatever reason, did not seek to pronounce general prohibition of possession by certain residents of the various States of firearms in order to protect interstate commerce, but dealt only with their future acquisition in interstate commerce." Id. at 472.3

We believe that the vast body of authority under the commerce clause supports further Federal control of the distribution of firearms by means of interstate commerce, and that prohibition of the interstate sale of firearms to specified groups, such as those convicted of felonies or those under a certain age. appears clearly within the power of Congress. We do not regard the second amendment, which

2 The scope of the second amendment has not been determined and it has been suggested. will have to be decided on a case-by-case basis "like cases under the due process clause." Cases v. United States (131 F. 2d at 922).

After the Tot decision, Velazquez again challenged the constitutionality of the 193S act by a motion for habeas corpus, but his contentions were again rejected by the court without reaching the constitutional question. Velazquez v. Hunter (159 F. 2d 606 (10th Cir. 1947), certiorari denied, 330 U.S. 846 (1947).

involves the right to have arms from the standpoint of maintaining a militia, as preventing reasonable regulation of interstate traffic in firearms in the interest of public safety.

As this committee has shown in recent reports, Federal legislation can be validly founded on the commerce clause even if it is regarded as directed in large measure at a "social" evil which is also the subject of State regulation under the police power. Thus, the commerce power may be used to reach a variety of noneconomic activities deemed to violate public policy although its exercise “is attended by the same incidents which attend the exercise of the police power of the States." United States v. Darby (312 U.S. 100, 114 (1941)).

SPECIFIC CONTROLS

The committee does not regard itself as sufficiently knowledgeable to comment on which of the various proposed control techniques might be most effective. We are, however, concerned about the provisions of S. 2345 which require a certificate by a local law enforcement officer with respect to the person seeking to receive a firearm in interstate commerce. The certificate is to include "any information available to such law enforcement officer with respect to the person seeking to receive a firearm in interstate commerce. The certificate is to include "any information available to such law enforcement officer as to probable mental competence and stability of such person, and his reputation for observance of law."

While it can be generally accepted that there is substantial public danger from possession of firearms by a person who is not mentally stable, the requirement that a local law enforcement officer furnish information as to the "probable mental competence and stability" of a purchaser seems to us to call upon such local officers to perform a function beyond their qualifications. Both that provision and the provision that the local law enforcement officer report information regarding the "reputation for observance of law" of a purchaser encourages resort to the grossest hearsay with no opportunity for the applicant to respond and no opportunity to evaluate the reliability of the source. The concomitant requirement that such information be delivered to a manufacturer or dealer, who has no obligation to keep it secret, adds to the evil of the requirement. Indeed, the files required to be maintained by the manufacturer or dealer, containing such statements as to probable mental competence, stability, and reputation, are to be avail. able for inspection by duly authorized representatives of any law enforcement officer or agency of any governmental subdivision in the United States, without any showing of necessity.

CONCLUSION

We conclude that Congress has ample power to meet such need as it may reasonably determine to exist for additional regulation of the sale and shipment of firearms by means of interstate commerce, and that the second amendment does not preclude Congress from extending the regulatory pattern.

THE TRUTH ABOUT GUNS

(By Robert M. Price)

Since the first neanderthal man picked up a rock and a stick to make a stone ax, men have been fascinated by weapons. Man, puny in body and slow of foot in comparison to most other animals on this planet, has long since become the dominant species because he had the intellect to develop weapons which gave him a lethal extension of his powers. And men, too, of all ages and for whatever reasons they felt they needed them, have managed to obtain weapons. Senator Dodd presents his latest bill as a giant step toward controlling the criminal use of modern weapons-firearms. The bill merits serious consideration only due to the danger it represents. If you finish this article, you will agree. There are many points to cover, but since this is about Senator Dodd's antigun law (Senate bill 14) let's first look at Senator Thomas J. Dodd. Senator Dodd

"Proposed Federal Civil Rights Laws Relating to Public Accommodations," two reports of committees of NYCBA, concerned with Federal legislation 41 (1963), 18 records of NYCBA, 593 (1963); "Proposed Federal Legislation Relating to Equal Employment Opportunity, three reports of committees of NYCBA concerned with Federal legislation 1 (1964), 19 record of NYCBA 230 (1964).

is a conscientious, hardworking, dedicated, well-intentioned man. He is not a Nazi, a Communist, or a political nut. His law is intended to reduce crime by making it more difficult for undesirables, particularly juvenile delinquents, to obtain weapons by mail. But the sweeping changes the Senator would usher in would leave even him sadly disappointed in the tangible results. For example, half the murders in the United States annually are already committed with weapons other than guns, according to FBI statistics. Therefore, the theoretical effectiveness of the bill is immediately cut by 50 percent and would have to be further pared to allow for substitution of other weapons (knives, blunt objects, etc.), guns obtainable from other sources, firearms already in people's hands, and so forth. Senator Dodd is trying to eradicate a problem which cannot be eradicated; i.e., weapons in the hands of undesirables. Notice that mail order guns was not mentioned, for guns are just the instrument and mail order just one (and the most publicized) method of obtaining them. The problem is the undesirables-those who should not have guns-and that must be remembered. However, the problem can be brought to an irreducible minimum-the best that could be expected under any law-and with far less effort and stringency than the Senator proposes. That will be discussed later.

The reason the Senator has been labeled with various titles of the political extremes, and this author is taking the Senator's word for he has personally heard no such comments, is because such a law is antiethical to our American heritage. As a political example, Senator Dodd listed a number of civilized countries which have strict registration and/or antigun laws: he neglected to mention, however, that Fascist Italy and Nazi Germany had antigun laws, as well as present day Russia, China, and the various satellite nations. To many people, though it is not Senator Dodd's intention, the law smacks of totalitarian government. The Senator also neglected to mention Sweden, where many private citizens own fully operable machineguns and participate in government subsidized shooting matches, and Switzerland, where every male citizen joins the army and takes his rifle home with him and remains a part of the national defense. Incidentally, neither nation has experienced any rise in crime rate and both have avoided being in wars for a long time. The Senator neglected to mention that when Hitler's legions were goosestepping their way across Europe they used the convenient registration lists to confiscate the few privately owned weapons, drastically curtailing resistance efforts until the United States and England could parachute drop weapons. During the Battle of Britain, England was so short of weapons that most of the homeguard and portions of the army were armed with pitchforks and shovels, and spears and battle-maces liberated from the ancient museums. In this day of thermonuclear guided missiles, such talk may seem foolish, but the Communist Party of the United States is on record as favoring strict registration laws. It should also be mentioned that not only does no totalitarian government in the world today allow the free, private ownership of firearms, no dictatorship has ever been imposed without first making the people register their weapons.

Senator Dodd also bemoans the lack of support for his bill. He states the National Rifle Association was behind him as it is a reputable gun group, but insidious "gunrunners" and "vested interests" lobbied behind the scenes for his bill's defeat. The National Rifle Association is a reputable organization of long standing, but it was not truly behind the Senator. It gave his bill grudging support as the least offensive before Congress at the time. It recognized that there was some merit in the bill, which will be discussed later. The additional lack of support is quite understandable when one looks at the last few paragraphs of his article: "The bill that I propose is only a beginning. It must be followed by appropriate laws and regulations in our States and in our communities ***. It is time for America to wake up."

To a gun collector, this reads as a promise, if he is foolish enough to support this law, of harsher ones to come. And that is exactly what the Senator promises. For example, New York's Sullivan Act is often held up as a "model law." Supposedly this law keeps guns out of the hands of criminals by establishing a permit and registration system, but there are numerous cases on record of honest citizens-stable, with no criminal record, and even experienced in the use of weapons, being denied the permits because the law depends too largely on bureaucratic whim. The law has a notorious history: Big Tim Sullivan was a political crook who forced his antigun law through the legislature in 1911. In 1912 he was committed to a mental hospital. Reportedly, his henchmen were encountering too many armed citizens in their efforts to shake down the local merchants, which

is why he wanted the law. In any event, the law stands as a monument to ineffectuality and stupidity, as New York has a staggering crime rate and criminals have no difficulty whatsoever procuring weapons. And, several articles have been written about how criminals with political influence even have the Sullivan act permits.

Another stupid law, from the point of reducing crime, is the National Firearms Act. This law restricts machineguns, sawed-off shotguns, and short-barreled rifles primarily, but again look at the history: the law was not adopted until 1934, at which time the Capone-style machinegun slaying was out of style due to public wrath. Crime had already gone underground as it is today, where the public could conveniently ignore it. If a criminal really wants a machinegun today, though, he can get it. They are easy to obtain or make. Generally, though, a criminal would prefer a sawed-off shotgun, and to obtain that all he needs to do is walk into a hardware store and buy a shotgun and a hacksaw.

Senator Dodd should know the facts stated, but he seems blind to them in light of the problem. Also, he claims the law enforcement officials are clamoring for more antigun laws, but this is untrue. The International Association of Chiefs of Police is on record as opposing strict antigun laws, and when one Congressman Anfuso, from New York, tried to get a law passed requiring the registration of all firearms with the FBI, the FBI said they did not want it. Incidentally, the FBI lists in its Uniform Crime Reports for the United States a number of factors which affect the rate of crime, including population of the city and adjacent areas; composition by age, sex, and race; economic status and activities of the population; climate (believe it or not there is more crime during a full moon); facilities for education, recreation, and religion; police per capita; police appointment standards and the policy of the prosecutors and the courts; the public's attitude toward law enforcement; and the efficiency of local law agencies. Guns and gun laws are not even mentioned.

The Senator's bill becomes even more ineffectual when one considers that there are between 50 million (the most conservative estimate seen) and 200 million firearms of all types in the United States. The amount of ammunition would have to be estimated in the billions of rounds. With this many weapons around it is doubtful if criminal sources would ever be caught short, but if they were, a gun or ammunition is simply not that difficult to make from scratch, or smuggle. Prohibition rather graphically demonstrated that people can get what they want, if they want it enough, law or no law.

In essence, what Senator Dodd is proposing is a preventative intent law, and however laudable such objectives might be, preventive laws are not feasible. He proposes to look into a man's mind and determine by statutes on lawbooks whether the person's desire for a gun is lawful or not. Our laws are customarily and of necessity punitive action in nature; that is, if you rob a bank, you will get 5 years in prison; if you murder someone, you will get life imprisonment or death, etc. By the Senator's reasoning, why not regulate matches and eliminate pyromaniacs?

The only sort of preventive law that would be of any effectiveness would be one which flatly banned all firearms. But to be effective at all, it would have to entail extreme regulation of the military (for many, many guns used in crimes are stolen from the Government); rigid policing of every machine shop, lathe, garage, forge, file, and basement workshop, controls over brass, steel, copper tubing, lead, and various chemicals which could make gunpowder; an iron curtain of armed guards and barbed wire surrounding the country to keep any guns or materials from being smuggled in; and in a State police with extraordinary powers to search every house, barn, garage, attic, cellar, warehouse, automobile, and possible burial site. In short, complete confiscation would be impossible without the surrender of freedom as we enjoy it today.

The first part of this article has been a general broadside against antigun laws; this is only fair as Senator Dodd's article was largely an antigun piece. But what about his bill to regulate mail-order guns?

To be sure, there is a problem existing today, and gun enthusiasts do not minimize it. But the Senator overemphasizes it, and he incites opposition with stupid statements; for example, he quoted an ad for a 20-millimeter antitank cannon: "Get that rabbit with the first shot or near miss * Senator Dodd

quoted the ad out of the surrounding context of other ads, which are similarly written. They are not written that way to appeal to the imbecile mentality the Senator depicts, but rather to inject a note of satirical humor in ads to

sophisticated collectors who know full well what such weapons are capable of doing.

Senator Dodd portrays a composite picture of gun collectors as mentally defective 3-year-olds whose arms hang down to their knees, and who, when not shooting up their neighbors for pure spite and letting their children blow one another's heads off, are running around in their Nazi uniforms and shooting themselves in the leg as they practice quick draw. "Gun collectors"--and the term is used to include all the shooting sports-are human, too, and they deeply resent being mislabeled.

Senator Dodd dwelt quite heavily on the death of President Kennedy with a mail-order gun (and also the police officer). President Johnson has also come out in favor of a law banning mail-order guns. In fact, so has Mad magazine. Well, mail-order guns may be a convenient scapegoat, but they are not at fault. Oswald could and would have obtained a weapon from some other source had the mails not been open to him. Why not ask why Oswald was allowed back into the country after renouncing his American citizenship? Why not ask why wasn't he being watched as a known subversive? Why did President Kennedy make the trip to Dallas when an attempt had been made just a short time earlier on Major General Walker? Why was the President allowed to ride in an exposed vehicle? Why was the exact route published so far in advance?

President Kennedy's death was a deep and tragic loss for our Nation, but he was a man who believed and fought for freedom and stripping the American citizen of a basic right hardly seems a fitting testimonial. And making political hay over a great man's grave is abominable.

Sepecifically, let us look at the five points Senator Dodd proposes, and the ones he forgot to mention :

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1. Prohibit the shipment of firearms to persons under 18 years of age. one objects to this provision. If a person is under age, their parents should order for them. Gun enthusiasts like to see kids with BB guns and boys with .22's, provided they are under parental supervision. The Senator's method of preventing them from obtaining weapons is wrong, however.

2. Increase the fee for a Federal firearms license from $1 to $10 a year. This will be resisted. Many collectors also deal on the side, and this will hit them hard. Also, the Alcohol and Tobacco Tax Division of the Internal Revenue Service, which enforces the Federal Frearms Act, is aware that many of the persons holding licenses are not dealers in the true sense, but no qualifications are set up defining a dealer. Also, a person holding a Federal license can receive handguns in the mail, which results in a considerable saving of express shipping. This provision betrays the true intention of the act: harassment, not regulation. Holders of Federal firearms licenses must, of necessity, be of good moral character and have no criminal record. Dealings among them should be encouraged, not penalized. In fact, Senator Dodd should eliminate all the provisions of his bill except the Federal licensing. The answer to his problem is a Federal license. A Federal license for all mail-order firearms would be aceptable to the majority of gun owners provided (1) such a license was free or at nominal cost and guaranteed to remain as such; (2) the issuance of such a license was mandatory to persons of good character (which would have to be specified in the act); and (3) the compulsory registration of firearms was not required. Such licenses could be of two types: dealer and general (for collectors, hunters, target shooters, and the like). A simple license like that would accomplish everything possible in the Senator's objectives, without the bad effects, for, in essence, the problem is simply one of identifying the purchaser. The license, or a photostat, could simply be enclosed with each order, thereby eliminating innumerable headaches for all concerned. Cost is important though, for if a license can be raised from $1 to $10, why can't it be raised to $100 or $1,000, thereby indirectly prohibiting guns.

3. A notorized affidavit, which the Senator claims to be a key provision, is out of the question. This would have to be enclosed with every order, and it would put untold expense and trouble on the honest gun collector, who wants to comply with the law. The license mentioned above would do the same thing. Besides, how would a notary know the person has no criminal record or mental illness? Is he a policeman or psychiatrist? Besides, it is rather senseless to make a man continually go to that expense and trouble to identify himself when he already has firearms. The second, third, and fourth guns do not make him that much more dangerous than the first.