99. APPENDIX I - The Biggest Myths of "Gun Control": A Look At U.S. Federal Legislation (talk.politics.guns Official Pro-Gun FAQ)
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This article is from the talk.politics.guns Official Pro-Gun FAQ, by Ken Barnes (kebarnes@cc.memphis.edu) with numerous contributions by others.
99. APPENDIX I - The Biggest Myths of "Gun Control": A Look At U.S. Federal Legislation (talk.politics.guns Official Pro-Gun FAQ)
The Biggest Myths of "Gun Control": A Look At U.S. Federal Legislation
[Disclaimer: Firearms laws change frequently, and vary from state
to state. None of the information contained in Appendix I should
be considered legal advice or a legal restatement of any Federal
firearms laws or regulations. Consult a lawyer, your local law
enforcement, and/or the Bureau of Alcohol, Tobacco and Firearms for
further information regarding firearms laws and taxes in your area.]
"Nonmailable Firearms Act" of 1927 - Public Law 69-583
--
This act, actually titled "An Act Declaring pistols, revolvers, and
other firearms capable of being concealed on the person nonmailable
and providing penalty," may well be the first "gun control" law
enacted at the federal level in the United States. It provided for a
fine of up to $1,000 and/or 2 years in prison for sending concealable
firearms through the the mail, with exceptions for the military,
other government agencies, and the repair and return of firearms by
the manufacturer.
National Firearms Act (NFA'34) - Public Law 73-474
--
The violence associated with alcohol Prohibition, and the threat of
Communist and anarchist subversion during the 1930s, prompted in 1934
the restriction of so-called "gangster weapons" from availability
to the general public. The weapons defined as "firearms" under the
NFA include machineguns, short-barreled rifles and shotguns, "zip"
guns (homemade firearms) which use rifle or shotgun ammunition,
silencers, and "destructive devices" (artillery, bombs, grenades,
and other guns over .50 caliber, excluding ordinary shotguns). The
act also considers any parts of these restricted weapons, or any
weapons easily convertible into a restricted weapon, whether assembled
or not, to be equally restricted. Because of the Second Amendment's
limitation on the power of the Federal Government to simply ban these
weapons outright, a strategy of licensing, registration, and taxation
was used to limit the ownership of weapons which the Congress deemed
undesirable. The act gave regulatory and tax collecting powers to
the Treasury Department's "revenooers" (who were at the time busting
up stills and "speakeasies" and barrels of moonshine), a department
which eventually grew into the current Bureau of Alcohol, Tobacco, and
Firearms (BATF), a tax collection agency with its own SWAT team.
All NFA weapons are subject to a $200 tax every time their ownership
changes from one federally registered owner to another, and each new
NFA weapon is subject to a manufacturing tax when it is made, and it
must be registered with the BATF in its National Firearms Registry.
To become a registered owner of NFA weapons, a complete FBI background
investigation is done, checking for any criminal history or tendencies
toward violence, and an application must be submitted to the BATF
including two sets of fingerprints, a recent photo, and sworn affidavit
that transfer of the NFA firearm is of "reasonable necessity" and that
sale to and possession of the weapon by the applicant "would be
consistent with public safety." Because the transfer tax for one NFA
weapon is just as high as the cost of a Class III dealer's license, most
machinegun enthusiasts opt for the dealer's license also, if they want
to buy more than one NFA weapon. The Class III FFL (Federal Firearms
License) is good for three years, and a renewal fee of $90 must continue
to be paid in order to maintain the license, every three years. The
license fee to be a dealer in "destructive devices" (tanks, artillery,
and bombs, for example) is considerably steeper, at $1,000_a year." Even
with a dealer's license, the transfer taxes must still be paid, but some
of the paperwork involved in the transfer is reduced, such as for the
background investigation. Since 1986, no new machineguns have been
available to Class III licensed civilians, despite an unblemished
record of lawful civilian ownership of these guns. (See Firearms Owners
Protection Act, below.)
Since 1934, only one legally owned machinegun (of some 100,000+)
has ever been used in crime, and that was a murder committed by a
law enforcement officer. On September 15th, 1988, a 13-year veteran
of the Dayton, OH police department, Patrolman Roger Waller, then 32,
used his fully automatic MAC-11 .380 cal. submachinegun to kill a
police informant, 52-year-old Lawrence Hileman. Patrolman Waller
pleaded guilty in 1990, and he and an accomplice were sentenced to
18 years in prison. The 1986 'ban' on sales of new machineguns does
not apply to purchases by law enforcement or government agencies.
---
Thanks to the staff of the Columbus, OH Public Library
for the details of the Waller case.
Federal Firearms Act of 1938 (FFA'38) - Public Law 75-785 (repealed)
--
This legislation, not to be confused with the National Firearms Act
passed four years previously, was repealed by Public Law 90-351 in
preparation for the Gun Control Act of 1968 (see below). It required
licensing of manufacturers and dealers for transportation of firearms
and ammunition in interstate and foriegn commerce, and prohibited
interstate and foreign commerce in firearms and ammunition if a valid
license was not held by both parties. It further prohibited transfer
of firearms or ammunition in interstate or foreign commerce to persons
under indictment for a violent crime, convicted violent criminals, and
fugitives from justice; transfer of stolen firearms in interstate or
foreign commerce; and defacement of firearm manufacturer's serial
numbers. It also authorized recordkeeping regulations for firearms
and ammunition dealers. Government agencies and the military were
exempted from the provisions of the act, as were certain other
entities (such as museum firearms collections, and companies
transporting money or valuables) that were exempted by the Treasury.
Violations of the act were punishable by a fine of up to $2,000
and five years in prison.
Gun Control Act of 1968 (GCA'68) - Public Law 90-618
--
Amended the National Firearms Act of 1934 (which is a section of
the Internal Revenue excise tax code) to ban the interstate shipment
(primarily mail order, but also just transportation) of firearms
and ammunition, and out-of-state purchase of firearms by individuals,
require record keeping for sales of firearms and ammunition, impose
stiff penalties for use of firearms in the commission of federal
felonies, and prohibit sale of firearms and ammunition to felons
and other dangerous classes of persons. This legislation was pushed
hard by President Johnson and his Attorney General (the notorious
Ramsey Clark), and enacted in the wake of the assassinations of
presidential candidate Robert F. Kennedy and civil rights leader
Dr. Martin Luther King, Jr. This law is believed to be modeled after
Germany's_Waffengesetz" [Law on Weapons] of March 18, 1938 (published
in_Reichgesetzblatt_1938, Teil [Part] I, pp. 265-276), because the
Act's author, late U.S. Senator Thomas J. Dodd (D-CT), had in his
possession a copy of the Nazi Weapons Law around the time he was
drafting the 1968 Gun Control Act. He later requested an English
translation of the German text, a Xerox copy of which_he supplied"
to the Library of Congress, although the Library had copies of its
own which he could have requested to be translated. This was an effort
on his part to fend off criticism that his legislation closely resembled
the law passed under the Third Reich. Senator Dodd didn't need the
translation himself, since he could speak German, and had been a
prosecutor at Nurnberg during the War Crimes Trials of 1945-46, so
he was familiar with German law. The parallels between the two laws
"are_striking (including for the first time the introduction into
American firearms law of the European concept of "sporting purpose,"
a direct translation of "Sport-zwecke" in the 1938 statute), and there
was no apparent reason for Senator Dodd to own a copy of the Nazi
Waffengesetz, or any other Nazi law which did not figure in the
evidence at Nurnberg. Yet own it he did. For more information about
this incident, and a line-by-line comparison of the two laws, see
the book ""Gun Control" Gateway to Tyranny,"by Jay Simkin and Aaron
Zelman, published by JPFO (see above), as well as_Federal Firearms
Legislation - Hearings Before the Subcommittee to Investigate Juvenile
Delinquency of the Committee on the Judiciary,"United States Senate,
90th Congress, second session, June 26-28 and July 8-10, 1968;
SuDoc# Y4.J89/2:F51/3 , pp.489-496.
Firearms Owners' Protection Act
(McClure-Volkmer Act) - Public Law 99-308
--
Amended the Gun Control Act of 1968 to repeal some of the sillier
provisions of that enactment, including the ban on transportation
of one's own firearms to another state (which had been a hassle
particularly for hunters), the record keeping requirement on the
sale of ammunition (which generated enormous quantities of useless
paper), the ban on interstate sales of long guns (which, then as
now, are infrequently used in crime); and limited the surprise
inspections of licensed gun dealers' premises to just once a year.
It also made it a federal offense, whether a Federally licensed
firearms dealer or not, to transfer or sell a gun to any individual
who is prohibited by the GCA '68 from owning guns, such as a felon.
In a peculiar procedural move, the House-passed version of this
NRA-backed legislation contained a ban on the possession and transfer
of new machineguns by civilians, which became effective when President
Reagan signed the Act into law, May 19, 1986. Machineguns which
were manufactured prior to that date are regulated under the National
Firearms Act, but those manufactured after the ban cannot be sold
even to civilians who are already licensed to own machineguns.
The Senate approved the machinegun ban language of the House bill
without a roll call vote, though their original bill did not include
the ban amendment added in the House and sponsored by U.S. Rep. William
J. Hughes (D - N.J.). (The parliamentary shenanigans surrounding this
are quite strange, and are found in Congressional Record v.132 p.H1751
and p.S5358.) Essentially, at what was literally the last minute, the
acting chairman of the Committee of the Whole in the then-Democrat-run
House, New York congressman Charles Rangell, declared in a simple voice
vote that Rep. Hughes' "poison pill" amendment had been adopted, and
that the "ayes" had it. This ban has later been found unconstitutional
in the case of_U.S. v. Rock Island Armory"(Federal Supplement, v.773
p.117) but the decision was not appealed to the Supreme Court.
Armor Piercing Ammunition - Public Law 99-408
--
Banned the manufacture and importation of handgun bullets made
of tungsten, steel, iron, brass, bronze, copper, or depleted
uranium, or alloys of these hard metals. (Depleted uranium is
currently used in ammunition for the U.S. Army's M1 Abrams main
battle tank, so presumably the government can keep track of its
limited supply of such an exotic material!) An exemption exists
in the law for steel shotgun shot, which is needed by waterfowl
hunters for compliance with environmental regulations. Armor-
piercing handgun ammunition is regulated as a "destructive device"
under the National Firearms Act, requiring federal permission to
own and manufacture. This law also strengthened penalties for
federal felonies committed with armor-piercing handgun ammunition,
though at the time, no cops had been killed by so called "cop-
killer" bullets. The NRA helped draft the version of the law
which was adopted, so as to exclude ammunition for hunting rifles
and shotguns, which is also capable of defeating soft body armor.
President Clinton has recently revived the "cop-killer bullet"
strategy for "gun control," but it is unlikely that his proposal
will be accepted by the Republican majority in Congress (see 3.4).
Undetectable Firearms Act - Public Law 100-649
--
This 1988 legislation banned production and sale of "plastic" guns
undetectable by metal detectors and X-ray machines, a threat which
(aside from that assassin's derringer in the 1993 Clint Eastwood
movie "In The Line Of Fire") did not exist at the time, and still
doesn't exist. The NRA helped to rewrite this law so as to narrow
its scope, and exclude detectable polymer-frame guns like the light
weight Glock 17 pistols now in common use by police departments.
Gun-Free School Zones Act of 1990 (void)
(Part of the "Crime Control Act of 1990") - Public Law 101-647
--
Made possession and/or discharge of a firearm on, or within 1000
feet of the grounds of, a public, private, or parochial school
a federal felony punishable by a $5,000 fine and/or 5 years in
prison. The legislation did not apply to non-school private
property located within such a zone, or uses of firearms which
had been approved by the school or by government (such as school
rifle teams, and police). The U.S. Supreme Court in 1995 ruled
this Act to be an unconstitutional extension of the "interstate
commerce" clause (U.S.C. Art I. sec. 8 cl. 3) in_U.S. v. Lopez,"
(U.S. Reports v. 514 p.549, Lawyer's Edition 2nd series v. 131
p.626, Supreme Court Reports v.115 p.1624, 1995) in part because
the Federal government was unlawfully encroaching upon the
traditional powers of the states concerning matters of education
and law enforcement. The Feds had rather tenuously argued that
the effect of guns in schools upon learning, and hence upon
U.S. economic competitiveness, gave them the power to enact
such legislation. The implications of this case upon other
Federal authority to ban possession of weapons within the borders
of the states, and upon the very nature of American federalism
itself and the increasing growth of the Federal law enforcement
function, seem to be substantial. Indeed, the_Lopez_decision was
cited as part of the Court's 1997 ruling in "Printz v. U.S."(see
below) declaring parts of the Brady Act to be unconstitutional.
Brady Handgun Violence Prevention Act (void in part)
- Public Law 103-159
--
Imposes a five working-day waiting period (in reality, a seven day
wait) on the purchase of a handgun, and initially required that
the chief law enforcement officer of the jurisdiction where the
sale is to take place make a "reasonable effort" to determine
whether the purchaser is legally able to own the gun. Though the
Feds had attempted to argue that a "reasonable effort" could mean
"no effort at all_under certain circumstances, the impositions of
the Brady Act on local law enforcement officers were voided as
unconstitutional by the U.S. Supreme Court in their June 20, 1997
ruling in "Printz v. U.S."(U.S. Reports v."_" p."__", Supreme Court
Reports v.117 p.2365, Lawyer's Edition 2nd series v.138 p.914).
Cases brought by Sheriff Jay Printz of Ravalli County, Montana
"Printz v. U.S."(Federal Supplement v. 854 p.1503); and Richard
Mack of Graham County, Arizona "Mack v. U.S."(Federal Supplement
v. 856 p.1372) were considered simultaneously by the high court,
after having been appealed from the U.S. Ninth Circuit. Writing
for the 5-4 majority, Justice Antonin Scalia described the Brady
Act as promoting "forced participation of the States' executive in
the actual administration of a federal program," and thus offensive
to the Constitution's system of dual soveriegnty of the state and
Federal governments. Federal power, the Court argued, "would be
augmented immeasurably if [the Federal government] were able to
impress into its service--and at no cost to itself--the police
officers of the 50 States." In particular, Congressional power
would be enhanced, and "the power of the President would be subject
to reduction, if Congress could act as effectively without the
President as with him, by simply requiring state officers to execute
its laws." Further, noted the Court, "[b]y forcing state governments
to absorb the financial burden of implementing a federal regulatory
program, Members of Congress can take credit for 'solving' problems
without having to ask their constituents to pay for the solutions
with higher federal taxes. And even when the States are not forced
to absorb [a program's] costs [...]they are still put in the position
of taking the blame for its burdensomeness and for its defects."
In addition to the Montana and Arizona rulings overturned by the
Ninth Circuit and reinstated by the U.S. Supreme Court in "Printz,"
three other lower federal court jurisdictions, namely Vermont,
Mississippi, and Louisiana, had earlier held the background check
portions of the Act to be unconstitutional, leaving only the waiting
period standing. See_Frank v. U.S."(Federal Supplement v.860 p.1030),
"McGee v. U.S."(Federal Supplement v.863 p.321), and_Romero v.
U.S."(Federal Supplement v.883 p.1076) which was a 1994 case in the
Federal District Court for Western Louisiana. There was one opposing
ruling: "Koog v. U.S."(Federal Supplement v.852 p.1376) which
was decided in Texas. The_McGee_and_Koog" cases were combined,
(Federal Reporter 3rd series v.79 p.252) and both lawmen won their
appeals prior to the Supreme Court decision in_Printz." The appeal
in the_Frank_case was decided after the Supreme Court ruling in
"Printz"(Federal Reporter 3rd series v.127 p.273), as was an appeal
in the case of_Lee v. U.S.,"which was brought by a New Mexico lawman,
and appealed to the U.S. Tenth Circuit. The Supreme Court had spoken,
and other pending cases were made moot. A question left unresolved
by_Printz_is whether licensed handgun dealers must still forward
Brady forms to their local chief law enforcement officers (CLEOs)
even if CLEOs do not have to accept them!
Remarkably, the Brady Act does not exempt persons who already own
a handgun from the waiting period or background check (as though they
would require a_new_gun each time if they were inclined to commit a
crime!). A reasonable way to do this would be to exempt all holders
of concealed carry permits. The Brady Act sunsets to a computerized
instant background check system in those states which adopt such, and
what remains of the Brady Act is scheduled to expire November 30, 1998,
unless renewed.
It is anticipated that a national instant-check FBI database will be
in place by that time, but delay in implementing instant-check might
be used as an excuse to renew Brady, although a repeat of the hard-won
political struggle which produced this constitutionally misbegotten Act
in the first place seems unlikely to proceed with a Republican-dominated
Congress. The instant check provisions of the Brady Act were added
thanks to lobbying by the NRA. And yes, it's true, the Brady law
wouldn't have stopped John Hinckley. He had no prior felony record,
his mental illness was covered up by his wealthy family, and he had
bought the .22 revolver he used months earlier.
Public Safety And Recreational Firearms Use Protection Act
(part of the Violent Crime and Law Enforcement Act of 1994,
a.k.a. the "Crime Bill" which was signed by President Clinton
on September 13, 1994) - Public Law 103-322
--
Defines a new class of firearms "semi-automatic assault weapons"
based upon their military-style appearance, despite the fact that
they are functionally identical to and shoot the same ammunition as
many other rifles, pistols and shotguns. Prohibits the manufacture
of "semi-automatic assault weapons" for sale to civilians after the
effective date, a provision which is prima facie unconstitutional
under the Second Amendment. Classifies magazines which hold more
than 10 rounds of ammunition as "high capacity ammunition feeding
devices" and bans their manufacture for sale to civilians after the
effective date, a provision affecting both handguns and long guns.
Exempts customers of pawnbrokers from the Brady Act when recovering
their pawned handguns. The parliamentary shenanigans surrounding
this legislation are also curious, since the initial House rules
vote effectively killed the Crime Bill, but the Republicans weren't
content to declare victory, and subsequently the House trimmed a
bit of the fat out of the spending portion of the bill, and passed
it anyway, sending a crime bill opposed by the NRA, the ACLU, and most
Americans on to the Senate for final passage. Democrats, despite
being the majority in both houses, and holding the White House, found
difficulty passing a supposed anti-crime measure in an election year!
The Democrats subsequently suffered an historic defeat at the polls
in November, leading to the election of Republican majorities in
both houses of Congress, and the first Republican House since 1952.
The most immediate effect of the "assault weapons" legislation was
to encourage gun manufacturing and sales prior to the enactment date,
including speculative investment in the banned weapons, some of whose
prices increased greatly (though they have now begun to decline again).
The ban is scheduled to repeal itself ten years after its date of
enactment, which will be on September 13, 2004. Lawsuits are currently
pending which attack the semi-auto ban as being unconstitutionally
vague-- in other words, so poorly written that it is difficult to
determine what type of weapons are permissible.
1994 was certainly a banner year!
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