records and if they have adequate records it requires a court order to obtain release of the name of the individual who has been so confined. We have been studying this for years. It is a very, very difficult problem and the laws are so diversified among the States that we haven't found an overall solution.

Individually, among the States, certain types of waiting periods have proved effective, where the law of the particular State provides that such a list shall be maintained by the State hospital for the criminally insane, or some such hospital, or the State board of health. In such cases where those names could be reached by the police for check, then you have some kind of a solution to the problem as to who has and who has not been confined to a mental institution.

You have other confusing problems in that people who have gone for medical help to psychiatrists and who are definitely of unsound mind are not always confined or no list is made of these people. It is something which we can probably take a whole morning here to discuss. (Subsequently, Mr. Orth supplied the following:)

Medical authorities have expressed concern over divulging names of mental patients for the reason that it violates the inviolate right of confidential communication between doctor and patient. Furthermore, it has been pointed out that once it becomes widespread knowledge that doctors report on the condition of mental patients, it will discourage people with mental diseases from consulting physicians for treatment and cure.

Suffice it to say there is not adequate machinery at the present time available and this matter should definitely be studied and assistance should be offered.

Mr. RAILSBACK. I take it from your response that you would not be opposed if there was some kind of uniform reporting system. Mr. ORTH. We would not.

Mr. RAILSBACK. And in addition, with respect to your proposal, would you go one step farther and instead of just relying on the false affidavit and prosecution under the provisions that relate to a false affidavit, would you be willing to go a step farther and actually permit, within certain guidelines, that the local law enforcement officer report back to the seller that the purchaser comes under one of the provisions, which would mean that a gun probably should not be sold to him and give him the power or make it mandatory that the seller not go ahead with the sale, which you don't do in your proposal?

Mr. ORTH. I think that in my experience I know of no legitimate dealer who would deliver a firearm to a person who had a criminal record, or for some other reason was prohibited by law from having firearms. They would not get their licenses renewed if they did.

Mr. RAILSBACK. You would not have any objection if we spelled that out?

Mr. ORTH. No.

Mr. BEISTER. Supposing that I wanted to buy a gun for criminal purposes and had been convicted of a felony in my State and I went to a shop across the State line and sought to buy a pistol in the adjoining State. If I were willing to commit a crime and had committed a crime before, would I not similarly be willing to lie on the affidavit about my name and address or other such data?

If there is no waiting period how can the dealer know whether I am. telling the truth or not?

Mr. ORTH. Are you talking about over-the-counter sales?

Mr. BEISTER. Yes.

Mr. ORTH. That is dealt with by State but not Federal law. Mr. BEISTER. Supposed I lived in a State which has a State policy implemented by law but the other State hasn't?

Mr. ORTH. We would like to see a sworn statement somewhat as follows, spelled out in the bill that we have suggested: "Under penalties of perjury, I swear that I am 21 years or more of age; that I am not prohibited by the Federal Firearms Act of 1938 from receiving a handgun in interstate or foreign commerce; and that my receipt of this handgun will not be in violation of any statute of the State in which I reside."

As to the specific matter of controlling the sale over the counter, there, again, the laws of the various States are in control and we certainly want to assist and see to it that no criminal, mental incompetent, drug addict, habitual drunkard or any of these undesirable classes of people obtain firearms.

(Subsequently, Mr. Orth supplied the following sworn statement:) Further the true title, name, and address of the principal law enforcement officer of the locality to which the handgun will be shipped are

Signature

_Date_.

Mr. BEISTER. Then you would be willing to consider legislation and would accept legislation which went further than simply calling for an affidavit wherein a criminal, or a drug addict may be willing to lie, and provided some way in which there would be a waiting period for checking out the affidavit.

If I want to lie about it no one is going to prosecute me because I am not going to be found-I haven't given the right address or name. Mr. ORTH. How can you find a law that can cure that?

Mr. BEISTER. By having a waiting period.

Mr. ORTH. We recommend, in that connection, that it applies to both mail-order purchasers and those going across the State line to purchase a handgun. There would be a waiting period for that purpose. Mr. BEISTER. You would agree to that?

Mr. ORTH. Yes.

Mr. BEISTER. Under those circumstances, I take it you agree?

Mr. ORTH. As a matter of fact that was spelled out in S. 3767 last year and I would like to read it.

Mr. BEISTER. Why not include high-powered rifles along with handguns?

Mr. ORTH. We don't think it is necessary or justified. Over 70 percent of the criminal activities, accidents, and all the rest of the problems we have with firearms are with "concealables"-handguns and illegal sawed-off shotguns and rifles.

Mr. BEISTER. Perhaps I misunderstood the statement earlier. I recall earlier that you voiced in your statement a proposition that there should be no distinction made on the size of the weapon?

Mr. ORTH. To explain the position on handguns in all States, concealable weapons are in a separate category. They have been separately classified for control purposes for many, many years.

However, guns are not the real problem. The problem is the lack of enforcement of the present laws, plus the easy standards to get out on

parole and a soft attitude towards criminals generally, with very little thought being given to the crime and the victim has produced disrespect for law and order. We have thrown up in our society, it seems to me, a whole set of protections around the person who is charged with a criminal offense and I think in this respect, while this is necessary and just, we have forgotten somehow about the people in our society who have been assailed, mutilated, robbed, and beaten without any justification and no one has suggested that we pass a law to assist these innocent victims of criminal brutality or provide counsel for them or to do anything to assist them.

We have gone a long way in the direction of aiding the criminal and it seems to me we must find a way back.

Mr. BEISTER. I think we are all interested in trying to find some way to save lives and I am concerned with high-powered rifles in view of the report of the sniper from New York. There a man bought a rifle for protection and couldn't avoid using it and shot and killed a man. I am interested in saving future lives like that too.

Mr. ORTH. The matter of crime and weapons is one which has confused and confounded mankind since the beginning of time. As a matter of fact, there were more crimes per capita at the time of the Caesars and just before the fall of Rome than in any time in history.

They didn't have guns, but they had many other instruments for committing murder and crime. We see how confused people become with the idea that the instrument is the cause of the crime.

Mr. BEISTER. This seems to me that firearms are unique in that they may permit one to implement criminal behavoir more devastatingly. Mr. ORTH. That is why we have these laws presently.

Mr. BEISTER. A high-powered rifle, while it may not cause criminal behavior, permits the scope of the behavior to extend to a wider range than a knife or razor.

Mr. ORTH. If the future should so indicate I would be willing to go along with you on this.

Chairman CELLER. I read an article entitled "Celler Creates Gun Bill Crisis in Congress," in the American Rifleman, which states:

Analysis indicates that the Celler Bill, if passed, would *** Place Federal firearms controls under U. S. criminal law for the first time, instead of under Title 15, U.S. Code, on interstate and foreign commerce." That is not accurate. The National Firearms Act and the Federal Firearms Act provide sanctions and penalties for the violation of those acts and therefore they are criminal in their nature so that this would not be the first attempt to place firearms control under the so-called criminal law.

Mr. ORTH. We readily admit that section 15 has been the place where the Federal Firearms Act has been placed in the wisdom of the Congress and it is only at this time that an attempt has been made to place it under section 18 of the criminal code.

Chairman CELLER. That is a different thing than saying "For the first time firearms controls are to be placed under criminal law." For example, the Federal Firearms Act, section 561, provides for penalties and the penalties involve fines of $2,000, or imprisonment for not more than 5 years or both.

Mr. ORTH. That is perfectly true and all our people are aware of this. As far as putting it under title 18, this is exactly what we were talking about.

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Chairman CELLER. All I would like you to do in your next publication is clarify that situation and not categorically say, "This is the first time there has been an attempt to place firearms control under criminal law." That is not the case.

Mr. ORTH. We will be happy to make that clarification.

Chairman CELLER. The American Rifleman states that: "None of the spokesman for stiffer gun laws has told the American public (as of mid-February) what their real goal is." The impression from that statement is that we have not told who are interested in providing for more rigid gun laws. It indicates we who are anxious for safer gun laws have not disclosed our real purpose or goal and you add the words "as of mid-February."

We have had bills in this committee prior to February and statements that our goal is primarily the reduction of crime by making it much more difficult for those who are not skillful in the use of firearms or unable to use firearms, imbeciles, drunkards and drug addicts and those kinds of people who should not have easy access to guns.

That is one of the purposes of this act and this proposed legislation along with many other purposes. I think you ought to eliminate that provision or state that there have been disclosures made by Members of the Congress who are interested in these bills.

Mr. ОRTH. I have stated earlier in my statement here, Mr. Congressman, that this is a matter of method and solution. We stated that there is a crime problem and it is the matter of how we solve it and the difference is only the methods used in its solution.

We have had as a consistent policy for 25 years in the National Rifle Association a policy that there should be adequate laws aimed at those persons who misuse the privilege of owning firearms.

Mainly, the criminal, the fugitive from justice, the drug addict, the habitual drunkard, the person of unsound mind and unsupervised juveniles under the age of 21.

Chairman CELLER. That may be your aim, but this statement does not reflect accurately what your purpose is. You ought to correct that also or leave that provision out so as not to give misinformation.

Mr. ORTH. Well, the fact is, there is a statement made by the President which may have misled us. At any rate, it is a fact that it has been stated that this is a necessary first step and that in order to make this law meaningful every State should pass the so-called Sullivan law, as in your State of New York.

If this is true, then this bill might mean much more than otherwise would be the case. That isn't the subject here this morning. The fact is, however, that there is this fear among our people that this kind of restrictive legislation in effect would cut off firearms from civilian ownership and use by leaving it in the hands of the police as a totally discretionary thing, to determine whether or not citizens should have a firearm of any kind.

Traditionally, this seems to be quite an unfair proposition for the police, because they have to make a determination as to who should and who should not obtain a firearm. If they make a mistake then the local desk sergeant or the lieutenant has the onerous job of going up before the police board and explaining why he issued this license for that person, so the tendency has drifted toward not allowing anyone to obtain a license except if you are somehow connected with law enforcement.

Chairman CELLER. What do you mean by the words "gun bill crisis"? Mr. ORTH. Well, I mean there is a crisis that is created before the Congress in respect to having legislation which seems to us to be adverse to the interest of our membership.

Chairman CELLER. Do you think that is a fair statement? Does having a hearing on bills necessarily raise a crisis?

Mr. ORTH. Well, it may create a crisis. It is a matter of judgment, I would say, Mr. Chairman, as to whether it is or is not a crisis.

As Americans, we think that our freedoms and basic rights involved in our constitutional rights spelled out in the first 10 amendments of the Constitution and the Bill of Rights, is a very important thing

for us.

Chairman CELLER. Are you a lawyer, sir?

Mr. ОRTH. Yes, sir.

Chairman CELLER. You are aware, are you not, that the so-called amendment on bearing arms does not give every citizen the absolute right to bear arms. It must be considered in connection with the establishment of a suitable militia. That interpretation has been placed on that amendment by the Supreme Court. Unless it involved something in the nature of organizing a militia or maintaining a militia, it is not the right of the citizen to bear arms, are you aware of that?

Mr. ORTH. I am sure that you must know, Mr. Chairman, that there have been a considerable number of studies in this respect. I offered two articles for the record here this morning.

Chairman CELLER. Name one single case that gives you the right absolutely, without any consideration of militia, to bear arms. Can you cite one single case?

Mr. ORTH. Well, Mr. Chairman, at the Federal level

Chairman CELLER. No. I would like you to answer the question. Can you or can you not cite a case?

Mr. ORTH. No, but we don't think that it is gone into in depth in the decided cases; the matter has not been brought up on the broad basis that it should be brought up on, and if it is, that the Supreme Court will either reverse its decision or interpret the second amendment to include both the citizen and the militia. That is my personal opinion.

Chairman CELLER. But the Supreme Court at this juncture has ruled against you and you only have the pious hope that the Supreme Court will change its view.

Is that it?

Mr. ORTH. I would say this. That serious students of the subject, Mr. Chairman, have made studies and come up with different conclusions, even on the basis of the decided cases, and that I offered into the evidence, two such learned articles here this morning.

One is entitled "The Lost Amendment," written by Robert A. Sprecher of the Illinois bar, appearing in June and July of 1965 in the American Bar Association Journal, volume 51, Nos. 67 and, in which he was awarded the 1964 Constitutional Law Essay competition of the American Bar Association, and he comes out with a different conclusion.

Chairman CELLER. You might be interested to know that the American Bar Association supports this bill.

Mr. ORTH. Yes, I know it was taken up, and there was quite a disagreement in the house of delegates.