Firearms and Federal Law: The Gun Control Act 1968

Firearms and Federal Law: The Gun Control Act of 1968
Part 2:

I. ORIGINS AND ANTECEDENTS

While firearms have always played an important part in American life, gun control has never been an important federal legislative topic. State and local attempts to regulate the carrying of concealed weapons date from the early nineteenth century,[8] with substantial legislative activity occurring during the period from 1880 through 1915, but there was no pressure generated to federalize the issue of firearms control during this time.[9] In 1915 Senator Shields of Tennessee proposed a bill to ban interstate commerce in handguns, but no bill that could properly be called an effort at firearms control was reported out of a congressional committee prior to the end of World War I.[10]

In 1919, a 10 per cent manufacturers’ excise tax on firearms was imposed as part of a larger War Revenue Act,[11] and though the primary motive of the legislation was fiscal, the legislative history of the tax also reveals concern with handguns as a public safety problem.[12] Like most emergency tax measures, the tax handily survived its emergency and is still, in amended form, a part of federal firearms policy.[13] The excise tax is also of lasting importance because the use of the taxing power and the vesting of regulatory responsibility in the Department of the Treasury, begun in 1919, set the pattern for later efforts at federal firearms control.

Urban crime and handgun use received an increasing amount of public attention during the post-World War I years,[14] and this period produced a significant amount of state and local firearms legislation, as well as more debate about a federal role in gun regulation. By 1924, more than a dozen [Page 136] federal firearms control bills, most of them regulating interstate commerce in handguns, were before Congress.[15]

In 1927 Congress enacted a law prohibiting the mailing of concealable firearms to private individual.[16] Directed against the undermining of state and municipal firearms control statutes through out-of-state handgun sources this law represented the first federal attack on "mail order murder." As an attempt to curtail interstate movement of handguns, the 1927 prohibition (which remained in effect until 1968) was deficient. Of all interstate carriers, only the United States mails were closed to handgun commerce. This partial closure was of little effect, since guns could be ordered by mail and delivered to the purchaser by private express companies.[17] Nevertheless, the effort was an important precedent for control of interstate firearms traffic in two respects. The 1927 law and dissatisfaction with its effectiveness led to proposals for tighter controls on interstate firearms sales to private citizens that culminated in the Gun Control Act of 1968’s near-total ban on such transactions. And by distinguishing between dealers (who were Allowed to receive concealable firearms) and other private citizens (who were not), the postal ban created some incentive for private citizens to be considered dealers and thus created the need to define the limits of the dealer category.[18] This problem was not important in the years immediately after 1927 because there were so many other ways for private citizens to circumvent the postal ban. But as succeeding generations of federal legislation made the status of "dealer" more attractive, they also made it necessary for any effective scheme of federal regulation to define, license, and regulate firearms dealers.[19]

It is easy to overestimate the public importance of firearms regulation during this period. While crime and criminals were major issues, there is little evidence that the "gun problem" and proposals to increase the federal role in firearms regulation were visible public issues.[20] The major public concern was crime control, and guns were perceived as one small part of that larger issue. There is also little to suggest that there was strong sentiment prior to the early New Deal period to think of crime control as a national problem meriting substantial federal regulation.

The focus of discussion during the 1920s was on uniform state laws regulating possession and use of handguns. In 1923 a draft of a uniform revolver [Page 137] law (prepared by the United States Revolver Association which hoped to preempt what it considered to be irresponsible permit schemes) was submitted to the National Conference of Commissioners on Uniform State Laws.[21] This proposal served as the model for the Conference’s 1926 proposed Uniform Firearms Act, which established license requirements for handgun dealers, a 48-hour waiting period prior to handgun purchase, and the registration of handguns purchased from dealers and supplementary penalties for handgun use in violent crimes.[22]

In 1927 the first National Crime Commission recommended a more stringent uniform state law as the primary national handgun policy, with supplementary federal legislation designed to forbid the importation of handguns and machine guns, and an extension of the ban on interstate shipment of handguns to cover common carriers.[23]

The first serious discussion of a more extensive federal role in firearms regulation came in the early years of the New Deal. By 1932 federal solutions to many problems were being advocated with increasing frequency.[24] Public concern with crime and criminals had shifted from worry about the "highwaymen" or "thugs" to the machine-gun-toting interstate gangster personified by John Dillinger.[25] The national fear of gangsters combined with the Roosevelt Administration’s willingness to stretch the limits of federal jurisdiction to produce an unprecedented package of federal anticrime initiatives, resulting in a bumper 1934 crop of laws creating, among others, the federal crimes of robbing a federally insured bank, assault of a federal agent, and interstate flight to avoid prosecution for certain state felonies.[26]

There were a number of reasons why a federal firearms control proposal could be expected as part of a larger crime-control effort. The submachine gun, then of public importance, was a natural candidate for public fear and legislative wrath. It is also worth noting that Franklin D. Roosevelt as Governor of New York had defended that state’s restrictive handgun licensing statute, had campaigned for a state ban on machine guns, and had publicly advocated federal regulation of interstate commerce in handguns.[27] [Page 138]

But the principal booster for a federal role in firearms control was Roosevelt’s first Attorney General, Homer Cummings. It was his justice Department that was the moving force behind the National Firearms Act of 1934,[28] and that attached a provision for federal registration of all handguns to the "anti-machine gun" measure sent to Congress in 1934.[29] When the handgun registration segment of the bill was deleted in the House, the justice Department continued to introduce handgun registration proposals, and to fight for them throughout the 1930s, long after crime control had lost its place in the hierarchy of New Deal legislative goals.

The firearms control campaign of the 1930s resulted in two pieces of federal legislation: the National Firearms Act of 1934,[30] and the Federal Firearms Act of 1938.[31] Neither law reflected the scope of Attorney General Cummings’ ambitions, but the two acts established a role for the federal government in firearms control, and these laws were the immediate precursors of the Gun Control Act of 1968.

The National Firearms Act of 1934, after the handgun registration provisions were deleted, was a concentrated attack on civilian ownership of machine guns, sawed-off shotguns, silencers, and other relatively rare firearms that had acquired reputations as gangster weapons during the years preceding its passage. Modeled on the Harrison Narcotics Act,[32] the N.F.A. based its regulatory powers on a tax imposed on traffic in the weapons, thus generating federal jurisdiction for intrastate as well as interstate transactions. The tax rate, $200 per transfer, did not seem calculated to encourage extensive commerce in these weapon.[33] The Act also provided for the immediate registration of all covered weapons, even if illegally owned¾a provision altered in 1968, after the United States Supreme Court held the 1934 provision to be an infringement on the constitutional privilege against self-incrimination.[34] [Page 139]

There are two respects in which the National Firearms Act influenced the shape of the 1968 gun-control effort. First, the N.F.A. put the government in the business of licensing manufacturers and dealers of firearms, although the number of weapons and dealers affected was relatively small. Second, the use of the taxing power again centered enforcement responsibility in the Department of the Treasury.[35]

The N.F.A. is often cited as an instance in which federal firearms controls succeeded in substantially achieving their purpose-in this case the extinction of the submachine gun and other gangster weapons.[36] On this issue the historical record is not completely clear. To be sure, the number of frightening incidents involving submachine guns diminished after the N.F.A. and a coordinated federal effort to halt production of the guns.[37] This was also -a period of intensive state effort at submachine gun control. The dangers of drawing a causal inference between federal regulation and the end of the "Tommy-Gun Era" are, however, manifold. Available data on the use of gangster weapons before the N.F.A. are not precise; thus a meaningful before-and-after study is difficult. More important, it is hard to determine whether the use of these weapons was a phenomenon that had reached an unnatural peak just before the advent of federal regulation and would have abated in any event.

The Federal Firearms Act of 1938[38] was the most significant pre-1968 attempt to impose federal controls on the commerce and possession of a broad spectrum of firearms. Shepherded through the Congress by the National Rifle Association, the 1938 Act was pressed more to submerge than to further the schemes for federal handgun registration that regularly commuted from the justice Department to the Congress (and back) during the 1930s.[39] [Page 140]

The 1938 Federal Firearms Act spread a thin coat of regulation over all firearms and many classes of ammunition suitable for handguns. All manufacturers, importers and dealers handling guns shipped in interstate commerce were required to obtain federal licenses ($25 for manufacturers and importers, $1 for dealers).[40] Licensees were prohibited from knowingly shipping a firearm in interstate commerce to some felons, a fugitive from justice, a person under indictment, or anyone required to have a license under the law of the seller’s state who did not have a license.[41] All these prohibited owner classes were also forbidden to receive guns which were or had been in interstate commerce. Dealers were also required to keep records of firearms transactions. Enforcement responsibility was vested in the Secretary of the Treasury, who delegated the assignment to the Internal Revenue Service.[42]

The apparent aims of the 1938 legislation were to create an independent federal policy banning the receipt of firearms by what must have been thought of as the criminal class of society, and to aid state and local efforts at tighter control by prohibiting transactions that would violate local laws. As a strategy to accomplish these goals, however, the Federal Firearms Act was deficient in a number of respects, and further crippled by a tradition of as less-than-Draconian enforcement by the Internal Revenue Service. One major problem was that the Act prohibited only the transfer of weapons to the prohibited classes when the transferor knew or had reasonable cause to believe his transferee was a felon, fugitive, etc.[43] but transferors were not required to obtain positive identification of their customers or to take other steps to verify the eligibility of customers under the act. From the standpoint of prosecuting dealers for violation of the federal ban against sale to felons, the requirement of knowledge, coupled with the absence of a verification system, rendered the Act stillborn. When local law required a license, however, the license requirement made both dealer and customer liable under federal law if they were aware of the local requirements.

Two other prominent loopholes in the 1938 Act deserve special mention because they determined the shape of the 1968 Act. First, the modest cost of a dealer’s license and the fact that dealers could freely receive firearms in interstate commerce created strong incentives for private parties to receive [Page 141] dealer licenses. This in turn resulted in a large number of dealers (over 100,000 in the mid-1960s)[44] and made any serious effort to monitor dealer compliance with the act an enormous undertaking for an Internal Revenue Service that did not, in any event, give the F.F.A. a very high priority. A second problem was that customers from states that required licenses could purchase guns in states that did not, as long as they did not give the dealer in the no-license state any reason to have knowledge of their lack of eligibility. The customer might have to lie to his supplier and would himself be subject to federal criminal penalties, but guns were readily available through this route.[45]

The Commissioner of Internal Revenue had been designated by the Secretary of the Treasury to promulgate regulations to facilitate the enforcement of the Act, but the regulations governing administration of the F.F.A.[46] fell far short of the powers delegated by Congress. Under the act, dealers were required to maintain "permanent records"[47] of firearms transactions; under the regulations in effect until 1958 records had to be maintained for six years (ten years after 1958),[48] and there was very little effective policing of dealer compliance with the record-keeping provisions.[49] The F.F.A. regulations did not require serial numbers on firearms (necessary to identify a particular gun as having been the subject of a transaction) until 1958, and then exempted .22-caliber rifles from the serial number requirement. More significantly, no attempt was made to end by regulation the immunity from prosecution enjoyed by dealers because they did not have to verify the eligibility of their customers. Vale it was probably beyond the rule-making power delegated by the Act to impose a waiting period or the compulsory notification of police departments as to firearms transactions, it could easily have been considered within the Commissioner’s authority to require transferees to positively identify themselves.[50] Indeed, it is a fascinating exercise to debate how many of the changes brought about by the Gun Control Act of 1968 could have been accomplished by rule-making power under the Federal Firearms Act of 1938 and other prior federal laws.[51] [Page 142]

Few resources were invested in the enforcement of the Federal Firearms Act. In 1967 the Alcohol, Tobacco and Firearms division of the Internal Revenue Service reported an investment of 35 man-years in enforcing both the National Firearms Act of 1934 and the Federal Firearms Act of 1938.[52] During the period 1966-1968, a total of 275 arrests were reported under the Federal Firearms Act, and it has been asserted that no dealers were charged with violating the Act until 1968.[53]

The lack of aggressive enforcement may obscure a deeper reason for the failure of the F.F.A.: the tasks of keeping firearms out of the hands of a small criminal class and keeping firearms from crossing those state lines where they are unwelcome was an excruciatingly difficult job in a country that averaged more than one gun per household[54] during the career of the F.F.A. Strict regulation of gun dealers could have done part of the job, but would have required enormous federal effort, particularly since the great majority of all states did not require licenses of gun purchasers.[55] And even if all dealers were regulated, about half of all guns are acquired used in the United States, and more than half of these guns are acquired from private individuals.[56] The only way to attempt to control this secondary or hand-to-hand market would be the registration of firearms in order to reduce the hand-to-hand "float" of guns from eligible to ineligible owners.[57] Yet few states had handgun registration during the life of the F.F.A.,[58] and no state required the registration of all weapons.[59]

This is not to say that the Federal Firearms Act was useless, or that more energetic enforcement would not have made some impact on the problems created by the criminal use of firearms. The F.F.A. provided an additional charge that could be lodged against a suspect arrested by authorities for another offense and found in possession of a gun he was prohibited from acquiring; even after the presumption that such a gun had been in interstate [Page 143] commerce after the F.F.A. became effective was struck down,[60] it was often possible to trace the commercial history of the particular gun and file federal firearms charges against a defendant in lieu of or in addition to the offense for which he was arrested.[61] The law also could be and was used as a tool to generate criminal liability for a convicted felon who had come to the special attention of federal authorities for other reasons¾in much the same fashion that Al Capone’s income tax, rather than the origins of his income, proved his undoing.[62]

Although Homer Cummings was disappointed, the record seems to indicate that Congress got pretty much what it wanted in the F.F.A.: a symbolic denunciation of firearms in the hands of criminals, coupled with an inexpensive and ineffective regulatory scheme that did not inconvenience the American firearms industry or its customers. The justice Department continued to recommend more extensive firearms legislation for a few years,[63] but the Department’s emphasis on such proposals faded after Cummings’ departure in 1939. Whatever the faults of the F.F.A. as a regulatory scheme, they went unnoticed in a nation where violent crime rates had been declining since the mid-1930s, and the larger issues of war and economic recovery preoccupied public attention.

The period from 1939 (when the initial regulations under the F.F.A. were issued) through 1957 (when new regulations were proposed) was almost completely uneventful in relation to federal firearms control. There was also very little legislative activity on the state and local level.

In 1957 the Commissioner of Internal Revenue proposed a number of changes in the regulations governing the manufacture and sale of firearms [Page 144] under the F.F.A., including a serial number requirement for all firearms, a rule requiring that "permanent" dealer-records be maintained permanently rather than the six years provided in the earlier regulations, and a series of changes in the type of records that dealers were required to keep.[64] The proposals, encountered stiff opposition from industry and gun-user groups, and the regulations adopted in 1958 were somewhat less ambitious: the record requirement was set at ten years, and serial numbers were required for all firearms except .22-caliber rifles.[65] More important than the details of these regulations was the continued low profile maintained by the Internal Revenue Service in the enforcement of the Act, and the lack of any evident pressure on the Service or on the Congress for more stringent controls. While rates of violence remained high in the United States in comparison with other western industrial countries, violent crime rates were at far lower levels than had been experienced in the 1920s and ‘30s, and the public fear of crime had diminished to levels that, in hindsight, symbolized domestic tranquility.

The first indication that a further federal role in firearms regulation might come, and the first modem origin of the Gun Control Act of 1968, was the increase in inexpensive imported firearms, largely military surplus, that started to make serious inroads into the United States market in the mid-1950s. In 1955 domestic manufacturers produced 556,000 rifles for the United States civilian market, and only 15,000 rifles were imported into this country for domestic sale;[66] by 1958 the number of rifles imported into the United States had increased to 200,000 whereas domestic production had fallen to 405,000.[67]

In 1958 Senator John F. Kennedy of Massachusetts, a gun-producing state, proposed a bill to prohibit "the importation of firearms originally manufactured for military purposes."[68] This frankly protectionist bill did not pass, but the Congress did prohibit the re-importation of those weapons that the United States had sent abroad under its foreign-assistance act.[69]

Foreign handguns, both military surplus and new production, began to make some impact on the United States market during the same period. In 1955, about 67,000 handguns were imported for sale to United States civilians. By 1959 annual imports were 130,000; by 1966 the figure rose to 500,000; and by 1968 unit volume of imported handguns had exceeded the million mark.[70] The inexpensive, low-caliber, new-production handguns that com- [Page 145] prised the bulk of United States imports by the mid-1950s did not present the same type of direct competition to established American firms as the rifle imports of the 1950s¾domestic handguns were thought to be of higher quality, and the civilian handgun market was growing quickly enough after 1965 to accommodate substantial increases in both domestic and imported weapons.[71] Yet the imported handgun was a specially vulnerable weapon to legislative attack, because it was cheap and thus available to a broader spectrum of the population, it was without the redeeming social virtue of a law enforcement or sporting use, and the importers of such weapons had far less political influence than domestic manufacturers.[72]

Some observers have suggested a direct connection between the increase in gun imports and the renewal of congressional interest in the easy availability of guns in the United States,[73] but the evidence on this is Spotty.[74] When Senator Thomas Dodd of Connecticut (a major gun-producing state) became chairman of the Senate Subcommittee on juvenile Delinquency in 1961, he "directed the staff of the Subcommittee to initiate a full-scale inquiry into the interstate mail order gun problem."[75] During 1961-1962 staff studies of mail order guns sold to residents of the District of Columbia and several states provided evidence that "criminals, immature juveniles, and other irresponsible persons were using the relative secrecy of the mail order-common carrier method of obtaining firearms, because they could not purchase guns under the laws in their own jurisdictions."[76]

Armed with these studies, the Dodd Committee conducted hearings in 1963 that sought to draw public attention to Dodd’s proposal to prohibit the sale of handguns by mail order to persons under eighteen, and require a notarized affidavit to be submitted with handgun mail orders stating that the customer was old enough to purchase the gun and otherwise legally entitled to receive it.[77] The emphasis in these hearings was on the mail order mechanism, juveniles and felons as purchasers, and "the cheap products which are so fre- [Page 146] quently sold via mail order."[78] The bill was drafted with Department of the Treasury help, and received support from an industry spokesman at the 1963 hearings.[79]

Five days after the assassination of John F. Kennedy, Senator Dodd amended his bill to cover mail order traffic in shotguns and rifles.[80] The bill died in the Senate Commerce Committee in 1964,[81] but the forces leading to the adoption of the Gun Control Act of 1968 were already at work.

In March of 1965, President Johnson sent Congress a message on crime that requested an extension of the federal role in firearms regulation.[82] The administration proposal, introduced as Senate Bill 1592, had been drafted by the Treasury staff with support from the Department of Justice. The bill contained most of the key strategic elements of the Gun Control Act of 1968: increases in the fees and regulation of firearms dealers; a federal minimum age requirement for handgun (21) and long gun (18) purchase; and a prohibition of handgun sales to residents of another state. The bill was not referred out of committee.[84]

In January 1967 a similar bill was introduced by Senator Dodd and later amended to conform to the administration proposal forwarded that February.[85] The bill was referred to the Judiciary Committee, the parent committee of Dodd’s Subcommittee on Juvenile Delinquency. In April 1968, after failing to support the administration proposal, the Judiciary Committee reported out a bill modeled on the President’s proposal but limiting the ban on sales to citizens of another state to handguns.[86] This bill became Title IV of the Omnibus Crime Control Act of 1968, passed by the Senate in May 1968 and by the House on June 6, the day after the shooting of Robert F. Kennedy.[87] [Page 147]

In the aftermath of the Robert Kennedy assassination, a number of new firearms control measures were introduced, and the proposal to ban interstate sales of long guns received new support. In October 1968 a revised Gun Control Act was signed by the President.

During the debates on the Gun Control Act and its predecessors, two other strategies of federal gun control were widely discussed. One was the creation of federal jurisdiction and mandatory prison sentences for violent crimes committed with guns.[88] This type of proposal was generally offered as an alternative to stricter controls on gun traffic by legislators generally opposed to gun-control laws. It received at least symbolic approval in the Gun Control Act’s provision for additional penalties when crimes which are federal felonies are committed with guns.[89] A second approach widely discussed after the Robert Kennedy assassination was for some system of federal firearms owner registration or licensing.[90]

The Gun Control Act of 1968, like its 1938 ancestor, was thus something of a compromise candidate at the time of its passage-representing concessions on the part of those opposed to any further federal controls and those who desired extensive further federal involvement. The primary goal of the statute, federal assistance to state efforts at control, was not the chief aim of its sponsors nor the principal fear of its opponents.

There are other parallels between the processes leading to the 1938 and 1968 Acts. In each case, administrative concern, spearheaded by the justice Department, provided a necessary, if not a sufficient, backdrop for congressional action.[91] And the symbolism of gun control seemed more important to the vast majority of Congress than the specifics of regulation. Finally, the gun control issue remained a relatively unimportant one for the Congress. No serious effort was made to oversee or evaluate the administration of the Act.[92] No committee of Congress maintained any special competence in the substantive issue of federal gun regulation.[93]

The links between domestic violence during the 1960s and the 1968 Act are important but susceptible to overstatement. The John Kennedy assassina- [Page 148] tion helped focus attention on the ready availability of mail-order guns; the Martin Luther King and Robert Kennedy killings put pressure on Congress at crucial points in the legislative career of the Act, just as the escape from jail of John Dillinger had expedited the passage of the National Firearms Act of 1934. But the basic approach of the 1968 Act had been worked out by the Treasury Department in 1965. And the only legislative initiatives produced by the Robert Kennedy shooting, a series of proposals for a national strategy of licensing gun owners, did not affect the shape of the 1968 Act.

If the violence of the mid-1960s had little impact on the provisions of the Gun Control Act, it had a profound effect on the problems that the act addressed. Urban riots during the period 1964-1968 and increased fear of crime had a manifold impact on the quality of American urban life. One consequence of this increasing turmoil and fear was an increased demand for firearms as instruments of self-defense, particularly in big cities. Handgun sales, the best index of demand for urban self-defense weapons, averaged 600,000 a year during the first four years of the 1960s; by 1966 the market for handguns had doubled to 1.2 million; by 1968 the market had almost doubled again, to an estimated 2.4 million, although this figure may have been abnormally high because importers and private citizens were rushing to purchase imported handguns before the import restrictions in the 1968 act came into effect.[94] The increase in urban gun ownership was paralleled by an increase in urban gun violence. Perhaps the most spectacular case study of gun violence was the city of Detroit. In 1965 Detroit experienced a total of 140 homicides; 55 of these, or 39 per cent, were committed with guns. Three years later 72 per cent of Detroit’s 389 killings were committed with guns.[95] The increase in gun violence in other urban areas, though less pronounced, was steady and substantial: during the period 1964-1968, gun homicide in the United States had increased 89 per cent, while homicide by all other means had increased 22 per cent.[96] By 1969 a simple majority of homicides in major urban areas were committed with handguns, and the interstate flow of handguns into cities with restrictive state and local controls was greater than at any other time since the 1930s.[98]