Firearms And Federal Law: The Gun Control Act of 1968

Firearms and Federal Law: The Gun Control Act of 1968
Part 3:

II. THE ENDS AND MEANS OF THE GUN CONTROL ACT

The Gun Control Act signed by President Johnson on October 22, 1968, was an omnibus measure reflecting a variety of congressional purposes. [Page 149] Included in the Act were amendments to the National Firearms Act of 1934, extending its coverage and relatively prohibitive tax to "destructive devices" (bombs, hand grenades, land mines, and similar mechanisms) and altering the registration provisions of the N.F.A. to rescue its registration requirement from a successful 1968 constitutional challenge.[99] The Act also mandated additional penalties for persons convicted of committing federal crimes with firearms.[100] But the major objectives of the Act were three:

(1) Eliminating the interstate traffic in firearms and ammunition that had previously frustrated state and local efforts to license, register, or restrict ownership of guns.

(2) Denying access to firearms to certain congressionally defined groups, including minors, convicted felons, and persons who had been adjudicated as mental defectives or committed to mental institutions.

(3) Ending the importation of all surplus military firearms and all other guns unless certified by the Secretary of the Treasury as "particularly suitable for ... sporting purposes."[101]

The centerpiece of the new regulatory scheme was the ban on interstate shipments to or from persons who do not possess federal licenses as dealers, manufacturers, importers or collectors, coupled with the declaration that it was unlawful for any person other than a federal-license holder to engage in the business of manufacturing or dealing in firearms, whether or not such a business involves interstate commerce.[102] The Act thus granted federal licensees a monopoly on interstate transactions and required a federal license to engage in any but isolated intrastate transactions.

While private citizens were to be excluded from commerce in guns, federally licensed dealers were to be much more strenuously regulated. The fees for all federal licenses were increased (the dealer license from $1 to $10),[103] minimum standards for licensees were set,[104] and the Secretary of the Treasury was given broad powers to establish mechanisms for regulating licensed manufacturers and dealers.[105]

Having established federal regulation of those in the business of making, selling and importing firearms, as well as all interstate aspects of commerce in firearms, the Act pursued its major alms with a series of criminal prohibitions. [Page 150]

A. State Aid

To effectuate the state aid goals of the Act, all nonlicensees were prohibited from shipping guns to other private parties in another state and from transferring guns to persons they knew or had reason to believe were residents of another state;[106] and dealers were prohibited from shipping to private citizens in other states and from selling to those who the dealer knew or had reason to believe resided out of state.[107] In the regulations promulgated under the Act, all dealers had to sign a form indicating a customer had produced identification showing he was not a resident of another state. This form, which also identified the firearms sold and gave the purchaser’s name, address and description, was retained by the dealer and made available for inspection by Alcohol, Tobacco and Firearms agents.[108] Thus, while the Act required the same showing of knowledge or notice to convict the dealer as the Federal Firearms Act of 1938, the duty of the dealer to obtain identification made a sale to an out-of-state resident depend on either false identification by the customer or willful law violation by the dealer. Private citizens, who could sell a gun or two from time to time, were not under a duty to verify the name and address of a transferee or to keep a record of the transaction.

The regulation of interstate traffic (in the Act and its regulations) was stronger than under the Federal Firearms Act, but there were, of course, opportunities for evasion. The sale of guns by nondealers was, from the beginning, outside of any record-keeping requirement of the Act. For a private party, the knowing transfer or interstate transportation of firearms was illegal but rarely dangerous.[109] Moreover, enforcing the ban on sales to residents of another state required federal agents to inspect the forms kept by the dealers.

The credibility of the enforcement system was tied from the outset to the amount of manpower the government invested in inspecting dealer records. However, from the dealer’s standpoint there was much greater risk in maintaining a high volume of illegal sales than was true before the Act, inasmuch as thorough periodic inspection could turn up patterns of illegal sales. For nondealers who used false identification to obtain guns and transport them to other, states the threat posed by the record system was far more modest; the use of a false name in a federal form meant that inspection of the form and an attempt by enforcement personnel to verify the identity of the purchaser could show that the law was broken but would give no clue as to who broke the law or where the gun or offender could be located. A nondealer [Page 151] could spread his purchases out among a number of legitimate dealers, thereby obtaining a fair number of guns with relative safety for long periods of time. In order to apprehend violators of this type, enforcement agents would have to intervene at the other end of an interstate, transaction, making, through undercover work) sales of firearms by nonlicensees hazardous.

Some of the problems associated with enforcing the ban on sales to nonstate residents can be tied to the decentralized nature of the firearms transaction records under the Act. The decision to keep records decentralized was made by the Treasury and endorsed by Congress[110] in part to keep the regulatory aspects of the federal law distinct from any system that could be called "gun registration." The decentralized records were a tightened-up version of the record-keeping required by the Federal Firearms Act of 1938, whereas "registration" was the second dirtiest word in the vocabulary of any opponent of federal firearms regulation (confiscation was the ultimate expletive but the two were often equated).[111] In part, the bad reputation of "registration" may stem from the use of a registration requirement in the National Firearms Act-where the real legislative intent was to reduce drastically ownership of covered weapons.[112] But whatever its origins this fear of central records is reflected in both the Gun Control Act and the regulations issued under its mandate.

B. Ownership Prohibitions

The second major aim of the Gun Control Act was to extend the list of classes prohibited by federal law from gun ownership and to strengthen the regulatory mechanism designed to enforce the federal prohibition. The Federal Firearms Act had prohibited the receipt of a firearm by felons, fugitives from justice, persons then under felony indictment in state or federal courts, and persons not qualified to own the firearm in question in their state or locality.[113] The list of prohibited classes in the 1968 Act was larger in the number of persons prohibited and included a wide variety of disqualified classes. The new federal prohibition barred licensees from the knowing transfer of a gun or ammunition to:

(1) Minors (under eighteen for shotguns and rifles; under twenty-one for handguns). [Page 152]

(2) Persons convicted of a state or federal felony, as well as the fugitives and defendants under indictment covered by the F.F.A.

(3) Adjudicated mental defectives and any person who had been committed to a mental institution.

(4) Persons who are* unlawful users of or "addicted to marijuana or any depressant or stimulant drug . . . or narcotic drug."[114]

In addition to these prohibitions, it was unlawful for any person in the prohibited classes to receive any firearm or ammunition that had been shipped in interstate commerce.[115] And Title VII of the Gun Control Act also prohibited felons, persons who have received dishonorable discharges former United States citizens and aliens illegally from the Armed Forces, in the United States from receiving, possessing or transporting guns "in commerce or affecting commerce."[116]

The purpose of these prohibitions was to deny access to guns and ammunition to these defined special risk groups or, failing that, to punish possession of a firearm as a federal offense whether or not the possession was in violation of local law. In order to understand how these prohibitions might work in practice, it is necessary to refer to the general scheme of regulation established by the Act. Since it is unlawful for a dealer, manufacturer or importer to transfer a firearm or ammunition to a nonlicensee only if the transferor knows or has reason to believe his customer is ineligible to receive the commodity, the dealer can be apprehended for violating the law only when the regulations governing his transfer require him to verify his customer’s eligibility.[117]

The federal ban on sales to minors was supported by a regulation requiring the dealer to verify his customer’s age by inspecting a document that shows the age on its face.[118] Unless the customer uses false identification, minors cannot buy guns from dealers who are in compliance with the Gun Control Act. This is not to say that firearms were unavailable to minors; guns could be purchased from nondealers, who were not required to verify age prior to transfer, and minors could always persuade adults to buy guns for them from federally licensed dealers. But the direct sale from dealer to minor was regulated by the verification requirement, in the same way that the ban against sale to nonresidents was supported by the requirement that a transferee’s address be verified.[119]

The ban against sales to felons, drug users and other prohibited classes was not supported by a similar verification procedure. A dealer needed only [Page 153] to take his customer’s word for the fact that he was not ineligible to receive a gun or ammunition; the customer who made false statements of this kind would be criminally liable if the transaction were later investigated, but the dealer was not in jeopardy. Thus, while obtaining a firearm is illegal for these persons, the regulation of dealers did not shut off the access to guns for those who were willing to misrepresent their status.

The Act’s limited dealer verification system approaches the natural boundaries of personal identification in the United States today. Age and address are two elements of personality that appear on drivers’ licenses, selective service cards, and other significant documents that almost all adults carry. We do not live in a society that issues cards to all citizens showing whether they have been committed to mental institutions or convicted of felonies. Verification of such status would thus have to depend either on taking the customer’s word for it (and auditing transfer records later to detect misrepresentation), or on creating separate screening procedures. One method of dealer verification would be a system where the dealer forwards a notice of a proposed transaction to a federal agency, which then checks a central record file to determine a customer’s eligibility. Such a system, if designed to verify eligibility before purchase, would require a waiting period before any covered firearm could be purchased. It would also require centrally stored federal records of all the data relevant to determining eligibility, or elaborate referrals to other state or federal record files.[120] An alternative system would be for persons who desire to purchase guns to establish their eligibility in advance by applying for a license and use the license as the means by which the dealer verifies that he is making a lawful firearm or ammunition sale.[121]

The Gun Control Act of 1968 stopped short of mandating either licensing or the cumbersome nationwide verification of individual transactions. With respect to felons, mental defectives, and drug users, the dealer’s position under the 1968 Act is similar to his status under the Federal Firearms Act of 1938. The illegal customer may, however, be at greater risk. If a felon uses his own name and lies about his eligibility on the Form 4473 he is required by regulation to fill out, an audit of the dealer and check of the customer’s criminal record will show he had violated at least two federal criminal laws,[122] and he can be traced from the purchase record.[123] If the customer uses false identification, gets someone else to buy from a dealer, [Page 154] or buys from a nonlicensee, the federal record system will not constitute a direct threat to him. However, if state or federal agents find him with a gun, a check of existing records will show whether the firearm was sold after the effective date of the Act and was thus received by him in violation of federal law.[124]

In sum, the scheme of regulation adopted in 1968 was of limited use in making firearms more difficult for ineligible classes to obtain, but the federal prohibitions and record-keeping requirements made it possible to convict persons ineligible to have guns if they were later apprehended with a firearm.

C. Limitation of Imports

Two provisions of the Gun Control Act of 1968 establish a federal strategy for limiting imported guns. Section 922(1) declares it unlawful "for any person knowingly to import or bring into the United States any firearm or ammunition . . ." or "knowingly . . . to receive" any imported firearm or ammunition "except as provided in section 925(d)."[125] Section 925(d) allows the Secretary of the Treasury to permit importation if "the person importing . . . the firearm or ammunition establishes to the satisfaction of the Secretary" that the firearm

(1) is being imported for scientific, research or training purposes; or

(2) is unserviceable and is being imported as a curio or museum piece; or

(3) is not a weapon covered by the revised National Firearms Act "and is generally recognized as particularly suitable for or readily adaptable to sporting purposes, excluding surplus military firearms"; or

(4) is being reimported by the person who took it out of the United States.[126]

Apparently, the Secretary of the Treasury was not compelled by the Act to permit the importation of any firearm or ammunition (he "may authorize" imports, rather than being told he "shall authorize" them), but he is forbidden to authorize imports except in the four circumstances outlined above. Of the exceptions listed by the section, only subsection (3) is of importance to the importation of firearms for the civilian market. Subsection (3) expressly bans the importation of surplus military firearms and allows the authorization of other firearms and ammunition only if they are "generally recognized as particularly suitable for or readily adaptable to sporting purposes."[127]

While the general intent of Congress in limiting firearm imports is reason- [Page 155] ably clear, the intended scope of the exception in section 925(d) is not readily discernible from its language or legislative history.[128] The term "sporting purposes" is not defined in the statute, making it difficult to give a meaning to the phrase "particularly suitable to sporting purposes." Does this mean that a firearm must be a fungible sporting weapon, as useful as but no more useful than a domestically produced firearm, or that a firearm must be in some way uniquely suitable to a particular sporting purpose, so that exclusion of the gun would deny United States residents access to a form of shooting sport? If the latter is the correct interpretation, why must a gun that needs no adaptation be "particularly suitable," while a gun that needs adaptation must only be "readily adaptable" to a sporting purpose?

There are reasons to suppose that Congress wanted to give this exception a narrow meaning. The other exceptions described in section 92 5 (d) are quite specific and apply to particular firearms rather than classes of firearms, and the language introducing the section appears to give the Secretary discretion to ban the import of even those weapons that could qualify under 925(d).[129]

The regulations issued to implement the ban on importation delegated responsibility for approving import permits to the Commissioner of Internal Revenue and provided that he could decide the "sporting purposes" issue "with the assistance of an advisory board to be appointed by the Commissioner."[130] The regulations did not attempt to define what was meant by "sporting purposes." They did, however, provide for the compilation of an "import list" of firearms, thereby permitting the approval of guns for import in large numbers by different firms, once the specific model had been approved.[131]

It is difficult to characterize with precision the theory that animated the provisions of section 925(d) and its supporting regulations. As "protectionist" legislation, the ban on military surplus makes sense, but the further restriction on firearms not suitable for sporting purposes is puzzling. Certainly a simple ban on military surplus would have produced fewer objections to the effect that the United States was discriminating against its trading partners by prohibiting the importation of weapons it allowed to be domestically produced.[132] Further, the "sporting purposes" test would seem to have [Page 156] allowed the importation of firearms, particularly shotguns, that had been troublesome competition for American manufacturers,’" while excluding firearms, particularly low-priced handguns, that had not posed an important competitive threat to the established United States firearms industry.[134] Finally, if the scheme of regulation was protectionist, one would have expected a more protectionist interpretation of the broad powers delegated by Congress than turned out to be the case.[135]

At least in part, Congress seems to have been responding to a perceived threat to public safety that resulted from the importation of low-priced "Saturday Night Specials" from abroad. Testimony before Congress suggests three themes associated with these guns: (1) they were cheap and plentiful; (2) they were low-quality and unsafe; (3) they were used in violent crimes. The image projected was not just that of a gun but of a gun and a user class. And the goal implicit in the legislation apparently was to reduce access to guns for high-risk groups by restricting the supply of cheap guns, particularly cheap handguns.[136]

If this was the congressional design, the legislative scheme was deficient in at least three respects. First, there was no guarantee that imposing a "sporting purposes" test would automatically reduce the number of cheap imported handguns involved in crime. Second, while the law covered both firearms and ammunition, it did not explicitly cover the importation of firearms parts; while the Act defined two major parts of a firearm as "firearms" and thus subject to restriction, other parts could be imported from abroad and assembled in the United States.[137] Finally, of course, there was no guarantee that the same weapons that had been imported could not be domestically produced at slightly higher price and cause the same problems. A ban on imports might have important short-run effects on civilian acquisition of firearms and some long-term impact as a result of increased prices. But if the law was addressed to the issue of civilian ownership of firearms unsuitable for sporting purposes, the artificial distinction between foreign and domestic manufacture in the Gun Control Act of 1968 left an aura of [Page 157] cognitive dissonance that was to become one of the major gun control issues of the 1970s.