Brooklyn Law Review
Note, 35 (1969): 433.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
THE EFFECT OF FEDERAL FIREARMS CONTROL ON CIVIL DISORDER
I. INTRODUCTION
"In recent months, murderous snipers have waged guerrilla warfare against law enforcement, officers in our city streets . . . ."[1] Statements such as these, and the circumstances which prompted them, have led to much of the turmoil in Congress in recent years regarding gun control legislation. But the regulation of firearms and other "destructive devices" has been considered a major area of importance for many years.[2] Prior to 1968; the federal government met the problem with diverse legislation covering conventional firearms,[3] gangster-type weapons,[4] handguns sent through the mails,[5] the use and possession of firearms on commercial aircraft,[6] confiscation of firearms from convicted felons,[7] possession and discharge of firearms or explosive devices on Capitol Grounds[8] and deportation of aliens.[9]
"The assassination of President Kennedy with a mail order rifle focused attention on the need for effective control of firearms"[10] (as did the subsequent deaths of Dr. Martin Luther King and Senator Robert F. Kennedy). Furthermore, "[i]n assessing the factors contributing to riots, the President's Commission on Civil Disorders cited the problem of sniper fire and guns, and recommend[ed] the enactment of strong federal, state and local gun legislation as a step towards preventing their recurrence."[11] The report went on to say that ease in acquiring firearms makes easier an incident which might spark a riot and increases the dangers to police and other law enforcement officers in trying to cope with the problems.[12]
Thus, in 1967, the Committee On the Judiciary of the House [Page 434] of Representatives proposed the State Firearms Control Assistance Act.[13] In general, the findings of the subcommittee were that firearms and destructive weapons (bazookas, mortars, etc.) and devices (explosives or incendiary grenades, bombs, missiles, etc.) were readily accessible to criminals, juveniles (without parental consent), narcotic addicts, mental defectives and armed groups. Furthermore, the availability of such weapons had a direct relationship to lawlessness and violent crime in the United States which local and state law enforcement agencies had trouble coping with.[14]
Thus, in 1968, a series of new acts to control the sale and distribution of firearms and destructive devices was passed.[15] An analysis of the new provisions (in view of the older statutes [Page 435] which have been repealed) and their interrelationship with the older laws which have survived repeal in 1968, will give a clear picture of the impact of federal gun control in the United States and its effect on the lawlessness today which may take the form of a para-military group or individual agitators who may or do cause riots or other civil disorders.
II. RECENT LEGISLATION
a. The Civil Obedience Act of 1968
The Civil Obedience Act of 1968[16] is primarily concerned with control of "professional agitators" or advocates of paramilitary groups and their use of firearms in the riot situation. Although it deals specifically with riot control, it does not effectively control the use and dispersion of firearms themselves.
The Act[17] prohibits the teaching or demonstrating "to any other person the use, application, or making of any firearm or explosive or incendiary device . . . [with the knowledge, belief or intent] that the same will be unlawfully employed for use in, or furtherance of, a civil disorder . . . ." (Emphasis added.)[18] Another provision of the same section[19] proscribes transportation of incendiary devices or firearms for use in a riot (again obviously aimed at the "professional agitator").
The term "firearm," as defined by this statute,[20] seems to be a midpoint between the definition in the Federal Firearms Act of 1938 and the more expanded definition under the Gun Control Act of 1968[21] in that it includes some of the provisions of the latter, but is not as specific as to types of weapons. In addition, the term "explosive or incendiary device"[22] is limited to a definition of the type of explosive which would be found in a riot and gives a detailed description of what is commonly known as a "Molotov cocktail."[23]
Section 233 provides that the statute is not intended to preempt the field.[24] This provision is in accord with similar pro- [Page 436] visions in the other 1968 legislation.[25] These provisions are in furtherance of the purpose of these gun control laws, i.e., to aid local and state law enforcement agencies.[26]
b. The Federal Firearms Act, The Omnibus Act, and The Gun Control Act of 1968
On June 19, 1968, the Omnibus Crime Control and Safe Streets Act[27] was passed. However, President Johnson did not seem satisfied with the coverage of this Act (although he conceded that it was a step forward), and in a special message to Congress requested a new gun control law with an expanded scope.[28]
Under the Federal Firearms Act of 1938, coverage extended to rifles, shotguns and haudguns,[29] but other provisions of the Act were deemed to be insufficient to provide adequate control. Hence, a new gun control law was passed in June, 1968[30]. Almost as soon as the Act was passed, it was criticized. The Act restricted handguns alone. Measures to control the sale of rifles and shotguns were called for.[31] Governor Hughes of New Jersey, testifying before the Senate Judiciary Committee after the Newark riots, called for a gun control law to take the guns out of the hands of "extremists who openly and criminally call for armed revolt in the cities of America."[32] Furthermore, statistics showed that "[i]n major riots in 1967, nine policemen and 75 civilians were killed¾many of them victims of snipers, lurking in windows and rooftops where they could shoot rifles with deadly accuracy."[33] In the light of criticisms and statistics such as these, the Gun Control Act of 1968[34] was born. A comparison [Page 437] of this Act with its predecessors will show how its coverage has expanded that of the prior statutes.
Under the 1938 Act, the definition of "interstate or foreign commerce,"[35] which at first was deemed to include Puerto Rico,[36] So was held not to include the "Commonwealth of Puerto Rico" in United States v. Rios.[37] To rectify this situation, and thereby specifically encompass persons moving between the United States proper and Puerto Rico, possibly fleeing prosecution or carrying arms between them, the term "State" in the Gun Control Act has been defined to include Puerto Rico, the Virgin Islands and the District of Columbia.[38]
Another of the more important changes came in the definition of the term "firearm."[39] The new statute covers unserviceable firearms, since they may readily be converted into a serviceable weapon. The unserviceable firearm, however, should be distinguished from the antique firearm, which is defined under the new statute[40] but is not controlled by it.[41]
Under the 1938 statute,[42] the term "firearm" was under constant scrutiny.[43] It was held that the statute intended to exclude both the airgun (since no explosive force was used) and the tear gas gun (since tear gas is not a projectile).[44] However, in [Page 438] United States v. Decker,[45] a case arising under the National Firearms Act,[46] it was shown that a particular tear gas gun was capable of firing shotgun shells. Such a weapon would clearly also come within the purview of the new provisions (i.e., "readily convertible . . . "). This phrase may also be deemed to include certain homemade firearms which are commonly called "zip-guns." Since these are built from materials which are readily available such as toy guns or automobile antennas[47] they may be utilized in riot areas on a large scale. Starter pistols, however, presented one of the greatest problems in this area. These are small caliber handguns made from inferior metals and designed to shoot blanks. They are usually used at athletic events. These are very cheap, particularly susceptible to conversion into a weapon, and are widely used by juveniles in the commission of crimes.[48] To cope with this particular problem starter pistols were specifically included in the definition of a "firearm"[49] under the Gun Control Act, thereby making them subject to the provisions and controls of this Federal statute.
The term "destructive device" (also encompassed by the term firearm) is new to firearm legislation and is more specifically defined under the statute currently in force[50] than under previous provisions. The reason for including this new category of firearm[51] is that in recent years the United States has been plagued with importation of castoff military weapons of other nations. Some of these weapons are handguns which are almost useless for sporting purposes. Other types of weapons include such highly destructive devices as "bazookas, mortars, antitank guns . . . grenades, bombs, missiles and so forth." These weapons, due to lack of control, have caused a great deal of the problem of lawlessness today.[52] Thus, highly dangerous arms [Page 439] which could fall into the hands of "civilian-military" groups and others, who may become engaged in civil disturbances or racial warfare, are controlled. The danger to police and the military in attempting to quell such a disturbance has been great enough in the past,[53] when snipers used conventional weapons (i.e., rifles), therefore, this measure was absolutely necessary to prevent the streets of our cities from being turned into what may be called a war zone.
The term "ammunition" has also been expanded to include virtually all types of ammunition, whereas in the June, 1968 Act,[54] it included only destructive device ammunition.[55] Thus, an agitator merely bringing rifle ammunition to a group in another state for use by snipers (a common occurrence in riots) may be prosecuted.
In addition, in the June, 1968 Act a definition of the term "pawnbroker" was introduced, presumably, on the theory that they are very often engaged in the business of dealing with firearms and should be controlled. Control is indeed essential, for this type of dealer has particular importance in the riot situation. The reason for this inclusion is that many pawnshops are located in or around areas where riots have occurred[56] and that the local residents often frequent these establishments.
In the Omnibus Act[57] and the Federal Firearms Act[58] the definition of the term "fugitive from justice" is substantially the same. The Omnibus Act[59] and the Gun Control Act[60] are similar in defining "crime punishable by imprisonment for a term exceeding one year." The Gun Control Act definition excludes a "State offense (other than one involving a firearm or explosive) classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or [Page 440] less."[61] However, the term "crime punishable by imprisonment for a term exceeding one year," is replaced simply by the term "crime," although in the older statutes the former expression was used. This may be explained by the intent of the Congress to expand the definition to include "any person seeking to avoid prosecution for a crime and not just those fleeing a felony prosecution.[62] (Emphasis added.) However, those fleeing across state lines who are under indictment must still be guilty of a felony.[63] The provision[64] is similar to that of the Federal Firearm Act under which H. "Rap" Brown was recently prosecuted when he escaped across state lines after an indictment in Maryland.[65] The new statute will permit prosecution of a rioter who participates in the disorder and almost necessarily becomes subject to prosecution under state or local law[65a] (even if a misdemeanor), who flees across state lines with a firearm in his possession.
Next, after the definition of terms in all of the three statutes, follows a series of proscribed acts.[66]
The statute makes unlawful the engaging in the business of manufacturing, importing or dealing in firearms and ammunition.[67] The terms "manufacturer" and "importer" include the phrase "for purposes of sale or distribution . . ." which may be most important in the control of professional agitators. (Emphasis added.)[67a] Thus, one who comes into the country with a load of arms for distribution to a militant group on more than one occasion may possibly be classified an importer and brought within the purview of this section. On its face, this appears to be comparable to prior law.[68] However, the language here being "to engage in the business of . . . ," it is the intent of Congress to make unlawful engaging in this business even if only in intrastate commerce.[69] Presumably, the fact that the dealer is licensed by the federal government and the Congressional find- [Page 441] ings that there is great deal of interstate traffic in firearms[70] allows Congress to effectuate such a control. Thus, the local sporting goods store or pawnbroker[71] is effectively covered and must be licensed under this Act.
The statute goes on to proscribe the shipping or transporting of a firearm or ammunition by one licensed under this Act to another who is not such a licensed party.[72] This is the common situation of a licensed dealer who mails or ships a firearm to a person who sends in a coupon clipped from a magazine with the required amount of money.
This provision, despite the exceptions stated below, when viewed in conjunction with section 922(c)[73] will effectively prevent the sales of firearms to those persons who would use them unlawfully in a riot situation. Section 922(c)[74] requires the submission to the licensee (i.e., licensed dealer, manufacturer or importer) of an affidavit stating, basically, that the purchaser is of age, the shipment and sale will violate neither state nor local statute and "the true title, name and address of the principal law enforcement officer of the locality to which the firearm is to be delivered."[75]. (Emphasis added.) It seems that if the word "whom" were used instead of the word "which" the reference would be to the law enforcement officer rather than the locality. Thus, almost no fraud could be perpetrated by some group of agitators seeking arms. (In other words the licensee would have to ship the firearm to the law enforcement officer who would then deliver it to the purchaser.) Some provision is made, however, for control, in that the licensee must send the law enforcement officer a copy of the sworn statement by certified mail and delay delivery seven days after receipt of notification of delivery of the receipt.[76] Obviously, the seven day waiting period is for the law enforcement officer to mail an approval or rejection of ability of the purchaser to receive such firearm. But, what will happen, if, through administrative delay, the return letter is not received or is forgotten about entirely by the law enforcement agency or, as may happen, goes astray in the mails? Obviously, after the seven day period there are no longer any restrictions on the licensee and he may ship the firearm despite the fact that the purchaser is actually under some legal disability and is not permitted to possess such a weapon. [Page 442]
There are, however, basically, two exceptions:[77] the first permits a return of a firearm or a replacement firearm of the same and type to a person from whom it was received,[78] the second permits mailing a handgun in compliance with postal regulations.[79]
Also made unlawful is the transportation into or receiving within a person's state of residence (unless a licensee[80]) any firearm purchased outside of that state,[81] or transportation or receipt in interstate or foreign commerce, by an unlicensed per son, of weapons similar to those covered under the National Firearms Act[82]. The next provision, perhaps more important in the riot situation, is a transfer of a firearm between two unlicensed persons, where the transferor knows or has reason to believe that the transferee does not reside in his state.[83] This would preclude one who has a cache of weapons in one state from delivering them to a member of a group in another state who will use them in a disturbance. There is an exception,[84] [Page 443] however, which is disturbing. The exception states that a transferor (from out of state) may loan or rent a firearm "for temporary use" for "lawful sporting purposes." True, such an exception is necessary so there will be no infringement on the rights of the true sportsman to engage in his favorite pastime, either hunting or target shooting. However, what of the militant who wants to obtain a gun? Clearly, under this provision, under the guise of a hunter or target shooter, one may represent that he was just passing through and forgot his rifle. If an individual or a target club is by some means deluded and loans or rents a firearm to him, what is to prevent him from leaving the state immediately with his newly obtained weapon? True, he would be subject to prosecution under another section of the Act,[85] but he has easy access to a firearm which can be used to harass, wound, or kill police and innocent bystanders.
Provision is also made for recording, by the particular licensee, of the name and age of any purchaser of a firearm or ammunition.[86] In fact, no sale is lawful, even if made by a licensee, unless such records are kept.[87] Although there were similar provisions to these in the original Federal Firearms Act of 1938, a problem arose in a series of cases concerning the assassination of President Kennedy, where forfeiture of a firearm was involved.[88] Lee Harvey Oswald had given a false name to a licensed dealer, who entered the false name in his records assuming it to be accurate. In order for there to be a forfeiture of the weapon there had to be a violation of the provisions of the Federal Firearms Act.[89] The Government contended a violation in that Oswald willfully caused the dealer to keep false records (a violation of the Federal Firearms Act) by deliberately giving a false name.[90] To free the Government from [Page 444] futile attempts at such legal contortions a provision was added to the Gun Control Act of 1968 which prohibits "any person in connection with acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious or misrepresented identification, intended or likely to deceive . . . with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under provisions of this chapter.[91] (Emphasis added.)
Thus, the mere making of a false statement when purchasing a weapon will lead to a violation and forfeiture of the weapon. Again, however, the prospective rioter has an easy access to a firearm and by leaving a false name and address he will be difficult to trace.
Under the Federal Firearms Act there was no provision for prohibition of sale of firearms to minors. This was remedied later[91a] in that sales of firearms other than rifles and shotguns (no mention is made of ammunition) could not be sold even by a licensee to a minor under 21 years of age. Congress had also been made aware of the fact that there was a "causal relationship between the easy availability of firearms other than a rifle or a shotgun and juvenile and youthful criminal behavior, and that such firearms have been widely sold by federally licensed importers and dealers to emotionally immature or thrill-bent juveniles and minors prone to criminal behavior.[92] (Emphasis added.) The provisions of the Omnibus Act could not have been enough to solve the problem involved, although a basis was laid for later action. Teenagers who have obtained rifles or shotguns legally could be just as effective as any adult sniper during a civil disorder. Due to the fact that they are "emotionally immature" and "thrill-bent juveniles and minors prone to criminal behavior" they could easily be convinced to take part in a civil disorder as a sniper by militant adults. Thus, under the Gun Control Act, sales of rifles, shotguns and ammunition are, prohibited to anyone the licensee "knows or has reasonable cause to believe is less than eighteen years of age.[93]
Pursuant to President Johnson's message to Congress on [Page 445] Gun Control,[94] which called for more state control in addition to better federal control, a section was added which makes sale or delivery "to any person in any State" by a licensee unlawful if purchase or possession would be unlawful due to state or local law.[95]
Control is extended also (and sale prohibited) where the licensee knows or has reasonable cause to believe that the purchaser does not reside in the state of sale.[96] There are provisions for exception, however: the first permits sale of a rifle or shotgun to any person who is a resident of a contiguous state where the sale will not violate the laws of either state;[97] the second permits loan or rental for temporary use for lawful sporting purposes (again the argument can be made that a rioter will be given easy access to firearms) ; the third permits a sale to an out of state resident where: (a) he is participating in an organized shooting match, or hunting, (b) his rifle or shotgun has been lost, stolen or become inoperative while in that state, and (c) he presents to the dealer a sworn statement to the effect that his "rifle or shotgun was lost or stolen or became inoperative while participating in such a match or contest or while hunting " and " the name of the chief law enf orcement officer " of the applicant's local residence "to whom such licensed dealer shall forward such statement . . . ."[98] (Emphasis added.) Again an opportunity is provided, this time perhaps for a group to say that their guns had been stolen, thus enabling them to obtain firearms through false information, subsequently fleeing the state with these weapons. The name of the chief law enforcement officer may just as readily be contrived as a name or address. An attempt to limit this practice is perhaps the fact that the exceptions apply only to rifles or shotguns (i.e., the weapons usually used for legitimate sporting purposes). Rifles, however, have been one of the main causes of police deaths in the riot situation.[99] [Page 446]
There seem to be no legitimate purposes for destructive devices such as bazookas, rockets and mortars other than those of a collector or museum. A proposal of Senator Dodd calling for prior approval of local police in the form of a sworn statement before a person could purchase one of these weapons was accepted and enacted under the Omnibus Act.[100] A sworn statement was required from the chief law enforcement officer that no law will be violated by the sale and that he is satisfied that the purchaser will use the device for a lawful purpose.[101] This requirement has been dispensed with under the Gun Control Act and it now provides that the licensee is prohibited from selling destructive devices and other gangster-type weapons, "except as specifically authorized by the Secretary consistent with public safety and necessity.[102] The provisions under the Omnibus Act, however, seem to permit greater control and it would seem puzzling as to why they would be dropped in favor of more nebulous regulations by the Secretary which cannot be readily applied to local situations. Thus, the sworn statement might have been retained to implement the policy of state control.[103]
The new law in its provisions seems to be in conformity with established case law implying that the Secretary can reasonably control dealers in these weapons.[104]
Congress has determined that there are several categories of persons in whose hands a firearm would be a hazard to the safety of the public. These include: (1) one "under indictment for, or who has been convicted in any court of, a crime punish- [Page 447] able by a term exceeding one year"; (2) one who is "a fugitive from justice "; (3) one who is "an unlawful user of or addicted to marihuana or any depressant or stimulant drug . . . or narcotic drug"; (4) one who "has been adjudicated a mental defective or has been committed to any mental institution."[105] With respect to such persons, (1) a licensee is prohibited from selling to or disposing of a firearm or ammunition to a person with such disability if he knows or has reason to know of the disability,[106] and (2) any person falling into one of such categories may not ship, transport[107] or receive[108] any firearm or ammunition in interstate or foreign commerce.[109]
For the first time[110] provisions have been added which concern carriers. It is made unlawful for "any person to knowingly . . . deliver or cause to be delivered to any common or contract carrier . . . " for interstate or foreign shipment to someone other than a licensee[111] any package or container in which a firearm or ammunition is contained. This provision complements section 922 (a) (2) and section 922 (c). In considering all of these in conjunction with each other it is plain to see Congress' intent to stop "mail order guns" whether sent through the mails or by carrier. Since the written notice provision is not alone enough, penalties are provided against the carrier if it delivers firearms or ammunition[112] and has a reasonable belief or knowledge that such delivery will violate the provisions of the Act.[113] The exception allows a passenger, who legally possesses a firearm on board a common or contract carrier to "deliver the firearm into the custody of the pilot, captain, conductor or operator . . . for the duration of the trip without violating any of the pro- [Page 448] visions of . . . [the] . . . chapter."[114] This exception, if looked at quickly, might be thought to apply to the rioter who is fleeing from the scene of a civil disorder, boards a bus to leave town and is carrying a revolver. This is not the case because to come within the exception one must be in legal posession of the weapon. This exception seems to be aimed at a federal statute which prohibit's possession of handguns while in flight in an airplane.[115]
One series of proscribed acts is perhaps all that remains after two changes in the statute. The first concerns the pawning of stolen firearms[116] and the second concerns the transportation, in interstate or foreign commerce, of stolen firearms or ammunition "knowing or having reasonable cause to believe that the firearm or ammunition was stolen."[117] There are at least two requisites in a prosecution under this section: first, that the firearm was in fact stolen,[118] and second, that accused knew or had reason to believe that his conduct would result in interstate commerce.[119] Furthermore, to infer guilty possession under the doctrine of Wilson v. United States,[120] the defendant must be apprehended within a reasonable time.[121] The last of the three acts deals with transporting or shipping in interstate commerce any firearm which has had the manufacturer's or importer's serial number "removed, obliterated, or altered.[122] This section was altered slightly from its predecessor in the Federal Firearms Act, by deleting the presumption that a firearm with a serial number which had been obliterated was presumed to have moved in interstate or foreign commerce.[123] Since this presumption was declared unconstitutional, it was deleted.[124] Licensed importers and manufacturers are required to identify each firearm by means of a serial number engraved on the frame or [Page 449] receiver of the firearm.[125] In addition, in the case of rifled[126] firearms, they must keep a test bullet identified with the barrel number of the weapon from which it was fired.[127]
It is clear from these provisions that an attempt is being made to aid local law enforcement officers in tracing weapons to their owners and apprehending criminals. If the aforementioned provisions do not make it perfectly obvious that state and local agencies are intended to be aided, then section 923(g) must. Under this section the Secretary of the Treasury is specifically authorized to make the records of licensees available to local law enforcement officers.[128]
Finally, the importation and receipt of both weapons and ammunition from without the country is regulated.[129] These provisions appear to prohibit all importation, even that by a licensed importer, unless the provisions of subsection (d) of section 925[130] are followed.
Licensing provisions were in existence under all three acts but under the Gun Control Act of 1968 they are much more extensive. The policy of imposing very modest fees for those persons not engaging in the sale of "destructive devices"[131] seems to imply that sales of firearms for sporting purposes, such as hunting and competitive shooting, are not intended to be curtailed as are the sale of "destructive devices" which lend themselves almost exclusively to use in civil disturbances and other forms of lawlessness. Under the new Act license requirements are dangerously loose since a license shall issue on filing of the proper application and payment of the prescribed fee by a qualified applicant.[132] The statute also provides means and [Page 450] processes for reviewing a failure to issue or renew a license or a revocation of a license by the Secretary.[133]
Although penalty provisions were common to all of the acts, those under the Gun Control Act are perhaps the most specific in dealing with the problems involved. Harsher penalties are provided for more serious violations of the Act,[134] whereas under the Federal Firearms Act there appeared to be a uniform penalty for all violations.
In addition, a forfeiture provision is retained.[135] Perhaps, this provision will be the most instrumental in taking weapons out of the hands of those persons who would use them for unlawful purposes. Once convicted of a violation of this Act, a [Page 451] weapon involved in the violation may be taken by the Government without the necessity of compensation.
Exceptions from the provisions of the Gun Control Act aid the individual minimally since many of the provisions relieve the Armed Forces,[136] members thereof,[137] and departments and states of the United States.[138] However, the Act is not totally devoid of provisions which relieve civilians. For instance, if a licensee is indicted for a crime punishable by imprisonment for a term greater than one year, he may go on selling, pursuant to his license (assuming it has not expired) until he is convicted.[139] Even if this is the case, he may be relieved of this disability, if he can establish to the satisfaction of the Secretary of the Treasury that by virtue of the circumstances of the conviction, appellant's record and reputation, he "will not be likely to act in a manner dangerous to public safety and . . . relief . . . would not be contrary to public interest."[140]
It is curious to note that Congress, although it makes an exception to the allowance for relief from disability in the case of one convicted of a violation of the National Firearms Act of 1968 or of this Act, permits a licensee who is indicted under a section of the Gun Control Act to continue in business until his conviction. During this time, he might (if he thought conviction and revocation of his license inevitable), supply enough persons with firearms to start a small scale war with police and National Guard and Reserve troops. A temporary suspension until conelusion of trial might be in order to prevent a situation such as this.
Provision is also made for separability.[141] Also there is no intent on the part of Congress to preempt this field,[142] thus implementing its purpose of aiding local and state law enforcement.
Several statutory presumptions existed under the Federal Firearms Act but were eliminated in the 1968 enactments because they had been declared unconstitutional. The most important perhaps[143] was the presumption that a firearm, in the possession of one previously convicted of a crime of violence [Page 452] or a fugitive from justice, was presumed to have been received by him in interstate commerce.[144]
Other attacks have been made on the constitutionality of the Act. In Smith v. United States,[145] it was contended that this was an ex post facto law, as applied to the defendant, since he had been convicted prior to its enactment. The statute was upheld on the ground that Congress could make such regulations despite the fact that the conduct took place before enactment. In United States v. De Pugh,[146] it was contended that the statute was not valid on an equal protection basis since the classification of one indicted for a crime punishable by imprisonment for a term exceeding one year was not valid. Needless to say the argument failed.
What the violator of this statute need fear is multiple violations arising from a single act. For instance, transportation of a single item in different trips or subsequent shipments of a single item in violation of the Act are each separate offenses;[147] there are two distinct crimes if a fugitive carries a stolen firearm across state lines;[148] and separate and distinct crimes have been held to exist when a revolver and the ammunition contained in it are transported in violation of the Act in interstate commerce.[149]
Title VII of the Omnibus Crime Control and Safe Streets Act[150] included other gun control legislation. "[F]elons, veterans discharged under dishonorable conditions,[151] mental incompetents, aliens who are illegally in the country, and former citizens who have renounced their citizenship . . ."[152] are declared unfit to receive, transport or possess any firearm.[153] In fact, any employee of any person having one of the aforementioned disabilities is likewise subject to penalties for receipt, transportation or possession in the course of employment.[154] [Page 453]
It is odd, however, to note that ammunition which is encompassed within the Gun Control Act of 1968 is not covered within the scope of this statute.
c. The National Firearms Act
An important statute which has played an instrumental role, particularly in the control of "gangster type" weapons, is the National Firearms Act,[155] a provision of the Internal Revenue Code. This also has been substantially amended in 1968.
Transfers of firearms within the new Act are permitted only upon application to the Secretary of the Treasury, payment of the tax, identification of the transferee (including fingerprints and a photograph), identification of the transferor, and identification of the firearm. The Secretary will deny the application if transfer, receipt or possession would place the transferee in violation of law.[156] Thus, if state laws controlling firearms have been enacted, as is contemplated by Congress, the Secretary will obviously deny the application. A central registry to keep a record of every firearm manufactured or imported within the purview of this act is also provided for.[157]
Under the amendment the term firearm which previously was aimed at what were categorized as "gangster-type weapons" has now been expanded.[158] In addition to its previous scope, it now covers destructive devices,[159] new types of "gangster-type weapons"[160] and what have been termed "conversion [Page 454] kits" for t urning other weapons into machine gun.[161]
Perhaps the most important change made in this statute has been the elimination of provisions which have been declared unconstitutional as against the fifth amendment right against self-incrimination and a redrafting of the statute to cover the problems involved.[162] The problem first arose in Russell v. United States,[163] wherein it was held that one could not be prosecuted for failure to register because such registration would lead to admission of possession which would be a violation of the Act.
For years, it was held that the doctrine in Russell did not apply when one was prosecuted for possession[164] of a firearm which was not registered.[165] This distinction was discarded in Haynes v. United States[166] in which the Court stated that the two situations are not distinguishable. Soon after Haynes,[167] a series of cases came down in rapid succession following its doctrine.[168] An interesting problem, however, arose, i.e., whether the self-incrimination which one was subjected to under the registration provisions applied to incrimination under state statutes[169] or not.[170] A further problem arose as to whether the Haynes[171] [Page 455] doctrine could be applied to registration required of a maker[172] of a firearm.[173] These problems, however, have all been alleviated by the new statute. Under the new amendment[174] "registration information may not be used directly or indirectly to prosecute a natural person for an offense prior to or concurrent with his registration."[175] (Emphasis added.) It must be emphasized that it is only in indictments for concurrent or prior violations that the information in the records cannot be used. Thus, the records may be used in the prosecution of anyone who uses a weapon which has been registered unlawfully, much the same way an automobile's registration can be used to trace a driver who flees the scene of an accident in which he was involved. If it were not for this limitation on the restriction of the use of the records, the registration provisions would obviously be of no value whatsoever. (Obviously because they would not be usable under any circumstances.) The records kept under the Gun Control Act may be similarly utilized. Although no requirement comparable to registration under the National Firearms Act exists, certain records must be kept by the licensed dealer, manufacturer, importer, or collector.[176]
It should be remembered that although many of the definitional aspects are the same, there exist here two distinct statutes, i.e., the Gun Control Act of 1968 and the National Firearms Act, and prosecution for a single act may be had under various provisions of both.[177]
III. STATUTES IN FORCE ENACTED PRIOR TO 1968
Other federal statutes also provide sanctions against the use of firearms. One provides that use of a firearm in the commission of a felony under the laws of the United States leads to increased penalties and forfeiture of the weapon.[178] This may [Page 456] have a bearing on prosecutions under the Civil Obedience Act of 1968 in which the teaching of the use of firearms is proscribed when it is intended it will be used in a manner which will interfere with the flow of commerce.[179] There are also forfeiture provisions under both the Gun Control Act[180] and the National Firearms Act[181] but both are conditioned on use of firearms in violation of the act.
Under postal regulations, pistols and other firearms capable of being concealed on the person are non-mailable, except to certain designated parties.[182]
In the case of an alien who might come to this country in order to incite riots, the Attorney General may have him deported if he is "at any time after entry . . . convicted of possessing or carrying in violation of any law any weapon which shoots or is designed to shoot automatically or semi-automatically more than one shot without manual reloading, by a single function of the trigger, or a weapon commonly known as a sawed off shotgun."[183] It appears that this definition will cover almost any type of modern conventional firearm other than a shotgun (i.e., which has not had the barrel cut down).
An escaping rioter who carries with him a concealed weapon on board an airplane is subject to penalty, whether[184]or not[185] he threatens any airline personnel with it. In this case, the fleeing rioter may prevent prosecution under the Gun Control Act by turning the weapon over to the pilot[186] (assuming he had legal possession of the weapon, which is highly unlikely). He may still be prosecuted under another statute, however, because one who merely attempts to board an airplane with such a concealed weapon is subject to penalty.
IV. CONCLUSION
Thus, it seems that federal gun control regulation is, to say the least, quite comprehensive. This, however, was not the opinion of President Johnson. In his State of the Union Mes- [Page 457] sage on January 14, 1969, the President stated that "one of my greatest disappointments is our failure to secure passage of a licensing and registration act for firearms."[187] This statement points up one of the only major deficiencies of federal firearms control. Perhaps, this deficiency will not need remedial action by the federal government if state and local governments all pass adequate gun control legislation.
The only other major deficiency in federal firearms control is that of enforcement and effective administration of the criminal law. This problem has several factors including ". . . overworked and understaffed enforcement agencies and similarly overworked, but frequently too lenient, prosecutors and courts. The record shows that indictments and convictions under the existing Federal firearms statutes have been relatively few, and the comparative rarity of successful action in the courts by the Federal Government have contributed to a compounding of the problems of reasonable and effective firearms regulation."[188]
Under the Federal Firearms Act of 1938, it is illegal for a licensed dealer to ship firearms interstate to any person in any other state whose laws require that an owner possess a license, unless the license is first exhibited to the dealer. Evidence tends to show that there are many firearms shipped in violation of this section. However, a recent indictment[189] under this section in the Southern District of New York, was the first since the Federal Firearms Act was enacted thirty-four years ago.[190] Perhaps, this is the beginning of a trend which will continue under the expanded provisions of the newly enacted legislation.
Paul B. Wright
1. 2 U.S. Code Cong. & Ad. News 2251 (1968).
2. C.V. Imlay, The Capper Firearms Bill, 1 Fed. B. Ass’n J. 22 (1932); R. C. Jacobs, Firearms Control, 42 St. John’s L. Rev. 353 (1968) ; S. B. Warner, The Uniform Pistol Act, 29 J. Crim. L.C. & P.S. 529 (1938); Note, Firearms¾A Comparative Analysis of Proposed Federal Controls, 15 DePaul L. Rev. 164 (1965).
3. Federal Firearms Act of 1938, 52 Stat. 1250 (1938), 15 U.S.C. § 901 et seq. (hereinafter Federal Firearms Act).
4. Int. Rev. Code of 1954, § 5801 et seq., 68A Stat. 722, formerly Int. Rev. Code of 1934, § 2720 et seq., 48 Stat. 1236-40, 1481 [hereinafter National Firearms Act], (The 1954 provisions have been amended in the Gun Control Act of 1968.)
5. 18 U.S.C. § 1715 (1964).
6. 49 U.S.C. § 1472(l) (1964).
7. 18 U.S.C. § 3611 (1964).
8. 40 U.S.C.A. § 193(f) (Supp. 1968).
9. 8 U.S.C. § 1251(a)(14) (1964).
10. Note, Firearms: Problem of Control, 80 Harv. L. Rev. 1328 (1967), citing N.Y. Times, Nov. 28, 1963 at 20, col. 6; Harpers, Dec., 1964, at 62.
11. 2 U.S. Code Cong. & Ad. News 2257 (1968).
12. Id.
13. Hearings on H.R. 5037, H.R. 5038, H.R. 5384, H.R. 5385, H.R. 5386 (and related bills) Before Subcomm. No. 5 of the House Comm. on the Judiciary, 90th Cong., 1st Sess., ser. 3, at 447.
14. Id. at 448-49. In the course of the hearings opponents of the bill set forth many arguments. James V. Bennett, President of the National Council for a Responsible Firearms Policy and representing the American Bar Association refuted many of these arguments: (1) small dealers would not be forced out of business due to high license fees because under the bill such fees will be reduced to an amount as low as $10.00; (2) the argument that it will not reduce crime because criminals will always get guns anyway is equally untenable because under such reasoning we would have no laws "against dangerous drugs, fraud, anti-trust, bank robbery or any other crime;" (3) an armed citizenry is not important to resist "enemy invasion and occupation. . . . and is worth nothing as a military defense against foreign attack. . . . [according to] . . . Mr. Robert McNamara. . . . ; " (4) a recording of weapons, it is argued, will provide a subversive group with information as to the identities of members of an armed resistance. This is dispensed with as utter nonsense. Id. at 492-94. Another objection was that under the Omnibus Act (§ 922(b)) commercial firearms dealers would be subjected to severe criminal penalties without the ability to protect themselves from such criminal responsibility. The objection was that there was no provision for a sworn statement from the purchaser, a copy of which could be sent to local police for verification of his qualifications. Still another provision which was attacked was that which prohibited a sale by a dealer when he believes or has reason to know that the sale will be in violation of state or local law. In many states the law is exceedingly vague. Texas, where one is prohibited from selling to "undesirable" persons, is cited as an example. Under the Omnibus Act all sales which technically violate any statute or local ordinance are a federal crime. This places a harsh burden on dealers. 2 U.S. Code Cong. & Ad. News 2291 (1968). This situation does not seem to have been remedied under the Gun Control Act, Pub. L. No. 90-618, § 102 (October 22, 1968), 1 U.S. Code Cong. & Ad. News 1397 (1968), designated as 18 U.S.C. § 922(b).
15. Civil Obedience Act of 1968, 18 U.S.C.A. §§ 231, 232, 233 (Supp. 1968); Omnibus Crime Control and Safe Streets Act¾Title IV, 18 U.S.C.A. § 921 et seq. (Supp. 1968), 82 Stat. 226 (1968), as amended, Pub. L. No. 90-618, §102 (October 22, 1968), 1 U.S. Code Cong. & Ad. News 1397 (1968), [hereinafter Omnibus Act]; Gun Control Act of 1968, Pub. L. No. 90-618, §102 (October 22, 1968), 1 U.S. Code Cong. & Ad. News 1397 (1968), designated as 18 U.S.C. § 921 et seq., formerly 18 U.S.C.A. § 921 et seq. (Supp. 1968), 82 Stat. 226 (1968) [hereinafter Gun Control Act] (The Gun Control Act repealed the Omnibus Act); National Firearms Act, Pub. L. No. 90-618, § 201 (October 22, 1968), 1 U.S. Code Cong. & Ad. News 1413 (1968), designated as Int. Rev. Code of 1954, §5801 et seq., formerly Int. Rev. Code of 1954, § 5801 et seq., 68A Stat. 722 (1954) [hereinafter National Firearms Act of 1968].
16. 18 U.S.C.A. §§ 231, 232, 233 (Supp. 1968).
17. 18 U.S.C.A. § 231 (Supp. 1968).
18. 18 U.S.C.A. § 231(a)(1) (Supp. 1968).
19. "Whoever transports or manufactures for transportation in commerce any firearm or explosive or incendiary device, knowing or having reason to know or intending that the same will be used unlawfully in furtherance of a civil disorder . . . [s]hall be fined . . . or imprisoned. . . . " 18 U.S.C.A. § 231 (a) (2) (Supp. 1968).
20. 18 U.S.C.A. § 232(4) (Supp. 1968).
21. Omnibus Act § 921(3).
22. 18 U.S.C.A. § 232(5) (Supp. 1968).
23. 18 U.S.C.A. § 232(5)(c) (Supp. 1968); the provision of the Gun Control Act of 1968, seems to be more specific and would cover a larger range including military weapons. Gun Control Act § 921(4).
24. 18 U.S.C.A. 233 (Supp. 1968).
25. See Omnibus Act § 927 and Gun Control Act § 927.
26. 1 U.S. Code Cong. & Ad. News 270 (1968).
27. Omnibus Act.
28. H.R. Doe. No. 332, 90th Cong., 2d Sess. (1968). The President stated that although traffic in handguns was prohibited by the Omnibus Act, he wanted an act to control "interstate traffic in shotguns and rifles and ammunition." Furthermore, he suggested that states pass comprehensive licensing statutes to complement federal provisions. H.R. Doc. No. 332, 90th Cong., 2d Sess. (1968). A letter from the Attorney General requested passage of a bill similar to the Gun Control Act of 1968 rather than a "watered down" version as had been passed under the Omnibus Crime Control and Safe Streets Act of 1968. 3 U.S. Code Cong. & Ad. News 4425 (1968).
29. See King v. United states, 364 F. 2d 235 (5th Cir. 1966) (rifle); United States v. Lauchli, 371 F.2d 303 (7th Cir. 1966) (Browning automatic rifle) ; Rivera v. United States, 151 F.2d 47 (1st Cir. 1945) (pistol) ; Giardano v. United States, 139 F.2d 198 (9th Cir. 1943) (revolver).
30. Omnibus Act.
31. See Views of Senator Tydings on Title IV, 2 U.S. Code Cong. & Ad. News 2247 (1968).
32. Id. at 2252.
33. Id. at 2257.
34. Gun Control Act 921 et seq.
35. Federal Firearms Act § 901 (2). "The term ‘interstate or foreign commerce’ means commerce between any State, Territory or possession (not including the Canal Zone), or the District of Columbia, and any place outside thereof; or between points within the same State, Territory, or possession (not including the Canal Zone), or the District of Columbia, but through any place outside thereof; or within any Territory or possession or the District of Columbia." Federal Firearms Act § 901(2).
36. Rivera v. United States, 151 F.2d 47 (1st Cir. 1945) ; see Quinones v. United States, 161 F.2d 79 (1st Cir. 1947); Cases v. United States, 131 F.2d 916 (1st Cir. 1942).
37. 140 F. Supp. 376 (D. P.R. 1956) (which held that since Puerto Rico is now a commonwealth and no longer a territory, the Federal Firearms Act of 1938 does not apply).
38. Gun Control Act § 921 (a) (2). It is odd, however, to note that the Civil Obedience Act of 1968, 18 U.S.C.A. §§ 231, 232, 233 (Supp. 1968), has not been Similarly amended.
39. Gun Control Act § 921(a)(3). "The term 'firearm' means (A) any weapon (including a starter gun) which is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm." Gun Control Act § 921(a) (3). Under the old statute it was "any weapon . . . designed to expel a projectile . . . by the action of an explosive and a firearm muffler or firearm silencer, or any part or parts of such weapon." Federal Firearms Act § 901(3).
40. Gun Control Act § 921(a)(16).
41. Gun Control Act § 921(a)(3). The definition of the term "firearm" specifically excludes the antique firearm.
42. Federal Firearms Act.
43. See United States v. Lauchli, 371 F.2d 303 (7th Cir. 1966) ; Lunde Arms Corp. v. Stanford, 107 F. Supp. 450 (S.D. Cal. 1952), aff’d, 211 F.2d 464 (9th Cir. 1954); United States v. Tot, 43 F. Supp. 252 (D. N.J. 1941), rev'd on other grounds, 319 U.S. 463 (1943).
44. United States v. Tot, supra note 43.
45. 292 P.2d 89 (6th Cir. 1961).
46. National Firearms Act.
47. See L.L. Smith, Unusual Handguns¾Unlawfully Possessed or Used in Crimes, 6 J. For. Sci. 501 (1961) (where the author discusses the many varieties of home. made firearms).
48. 2 U.S. Code Cong. & Ad. News 2295 (1968).
49. Gun Control Act § 921(a) (3).
50. Gun Control Act § 921(a) (3) (D) & (4).
51. The term "firearm" is defined to include a "destructive device." Gun Control Act § 921(a) (3) (D).
52. 1 U.S. Code Cong. & Ad. News (1968). It is probably for this reason that the classification of "importer" (". . . [one] engaged in the business of importing or bringing firearms or ammunition into the United States for purposes of sale or distribution . . . . ") has been added. Gun Control Act § 921(a) (9). Exceptions are also made, so that devices which are beneficial to society are not within the statute (i.e., " . . . any device, which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; . . . or any other device the Secretary of the Treasury finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting purposes." Gun Control Act § 921(a) (4)).
53. See p. 433 supra.
54. Omnibus Act § 921(a) (16).
55. It is said to be the intent of Congress, that under the new Act, the term ammunition is not intended to include shotgun pellets or buckshot. 3 U.S. Code Cong. & Ad. News 4417 (1968). It might be argued that since other definitions under the Act generally, are specific, if Congress intended to exclude these it would have specifically excluded them. Under the old Act, i.e., the Federal Firearms Act § 901(7), ammunition was defined to include substantially pistol or revolver ammunition only.
56. See Violence in the City¾An End or a Beginning. A Report by the Governor's Commission on the Los Angeles Riots 25 (1965) (where it is stated that pawnbrokers and sporting goods stores are among the first to be looted in a riot situation¾in order to obtain weapons).
57. Omnibus Act § 921(a)(14).
58. Federal Firearms Act § 901(6).
59. Omnibus Act § 921(b)(3).
60. Gun Control Act § 921(a)(20).
61. Id.
62. 3 U.S. Code Cong. & Ad. News 4417 (1968).
63. Gun Control Act § 921(a) (14).
64. Omnibus Act § 922 (e).
65. Brown v. United States, 392 F.2d 189 (5th Cir. 1968).
65a. See, e.g., N.Y. Penal Law 240.05 (McKinney 1967) (riot in the second degree); N.Y. Penal Law § 240.06 (McKinney 1967) (riot in the first degree).
66. Federal Firearms Act § 902.
67. It is unlawful, unless licensed, " . . .to engage in the business of importing, manufacturing, or dealing in firearms or ammunition, or in the course of such business to ship, transport, or receive any firearm or ammunition in interstate or foreign commerce." Gun Control Act § 922 (a) (1).
67a. Gun Control Act §§ 921(a) (9), (10).
68. The Federal Firearms Act which states that[i] t shall be unlawful for any manufacturer . . . except a manufacturer . . . having a license . . .to transprort, ship or receive . . . Federal Firearms Act § 902 (a).
69. 3 U.S. Code Cong. & Ad. News 4418 (1968).
70. See p. 434 supra.
71. The definition of the term "dealer" includes a pawnbroker. Gun Control Act § 921(a) (11). See note 53 supra.
72. Gun Control Act 922 (a) (2).
73. Gun Control Act 922 (c).
74. Id.
75. Id.
76. Id.
77. In actuality there are three exceptions. The third allows a delivery "by a licensee in the District of Columbia to a resident thereof (the exception also applying to Puerto Rico and possessions)." 3 U.S. Code Cong. & Ad. News 4418 (1968). The language of the statute, however, despite the intent of Congress seems only to restate the policy of treating Puerto Rico, the District of Columbia and possessions as states for purpose of the Act.
78. Gun Control Act § 922 (a) (2) (A). This subsection goes on to say that a firearm owned in compliance with federal, state and local law, is not precluded by this paragraph from being mailed to a licensed dealer, manufacturer or importer "for the sole purpose of repair or customizing." It appears, however, that if the firearm is a handgun, such mailing may be proscribed under the postal regulations, 18 U.S.C. § 1715 (1964), discussed, infra, at p. 456. Licensed dealers and licensed manufacturers only are within the exceptions listed in the postal regulations. Thus, in view of the fact that licensed importers are not included and that § 928(c) specifically states that this Act is not intended to supersede 18 U.S.C. 1715 (1964), it seems as though there exists a trap for the unwary.
79. Gun Control Act § 922 (a) (2) (B). Postal regulations, 18 U.S.C. 1715 (1964), are discussed, infra, at p. 456.
80. Such an exception is necessary in view of § 922 (a) (2) which allows shipment by a licensee under certain circumstances.
81. Gun Control Act § 922 (a) (3). There was no comparable provision of the Federal Firearms Act and the scope of the Omnibus Act is expanded in conjuction with the purpose of the whole Act to regulate rifles and shotguns. Also, there are two exceptions provided for: the first allows one, other than a licensee, to a firearm if it is in compliance with state and local laws and it is acquired through bequest or inheritance; the second allows possession of a rifle or shotgun obtained in conformity with § 922 (b) (3), discussed, infra, at p. 445. Gun Control Act 922(a)(3).
82. I.e., ". . . destructive device, machinegun . . . shortbarreled shotgun or short barreled rifle. . ." Gun Control Act § 922 (a) (4). Obviously, no similar provision existed under the 1938 Act since the concept of destructive device did not exist. A similar provision did, however, exist under the Omnibus Act. Gun Control Act § 922(a)(4).
83. Id.
84. There is also another exception which does not, however, concern itself with the riot situation, that is, when the out of state, unlicensed transferee obtains a firearm as part of a bequest or inheritanee. Id.
85. Gun Control Act § 922 (i).
86. Provision is also made to allow the Secretary to inspect such records and to give any information derived therefrom to local law enforcement agencies. Gun Control Act § 923(g).
87. Gun Control Act § 922 (m).
88. King v. United States, 364 F.2d 235 (5th Cir. 1966); King v. United States, 292 F. Supp. 767 (D. Colo. 1968); United States v. One 6.5 mm. Manulicher-Carcano Military Rifle, 250 F. Supp. 410 (N.D. Tex. 1966). What essentially happened, was, that after the assassination of President Kennedy the rifle was seized by agents of the United States. King, without knowledge or notice of a claim by the United States, purchased all right, title and interest in the rifle from the executor of Oswald's estate, namely, his wife. King paid an exorbitant sum. The United States then claimed the rifle to be forfeited under provisions of the Federal Firearms Act and therefore no compensation was due King. Finally, King won his battle but was not permitted to introduce into evidence the reasonable market value of the rifle nor the theoretical loss of profits (obviously, from public display) in determination of the compensation owing to him from the United States.
89. Similar provisions have been retained in the Gun Control Act of 1968. Gun Control Act § 924(d).
90. King v. United States, 363 P.2d 235 (5th Cir. 1966); United States v. One 6.5mm. Mannlicher-Carcano Military Rifle, 250 F. Supp. 410 (N.D. Tex. 1966).
91. Gun Control Act § 922 (a) (6). There are also sanctions against the licensee who "knowingly . . . make[s] any false entry in . . . fail[s] to make appropriate entry in, or . . . fail[s] to properly maintain, any record which he is required to keep pursuant to section 923 of this chapter or regulations promulgated there under." Gun Control Act § 922(m).
91a. Omnibus Act § 922(b)(1).
92. 1 U.S. Code Cong. & Ad. News 270 (1968).
93. Gun Control Act § 922(b)(1).
94. See p. 436 supra.
95. Gun Control Act 922(b) (2). (This provision does not, however, apply to transactions between licensees.) There are exceptions also made where the licensee knows or has reason to believe that a violation of state or local law will not occur. The intent is that this provision will "encourage States to publish and circulate statewide and local firearms regulations." 3 U.S. Code Cong. & Ad. News 4419-20 (1968). This provision also had a basis in the Federal Firearms Act, where sales to anyone in a state where a license was required were prohibited by a "licensee," unless such license was exhibited first. Federal Firearms Act § 902(c).
96. Gun Control Act § 922 (b) (3).
97. It must be emphasized that the purchase and possession will violate neither a law of the state of sale nor a law of the state of purchaser's residence. See note 11 supra.
98. Gun Control Act 1922 (b) (3) (C). It should be emphasized that this exception is limited only to rifles and shotguns.
99. See p. 436 supra.
100. 2 U.S. Code Cong. & Ad. News 2293 (1968).
101. Omnibus Act § 922 (b) (4).
102. Gun Control Act § 922 (b) (4). This provision does not apply to any research organization designated by the Secretary nor to transactions between licensees.
103. The provision was probably removed due to several arguments, all of which centered around the burden on local law enforcement officers. It was first questioned whether the federal government could place an affirmative duty to act on local police. Actually, there is no way to force police to comply and there is no appeal process. (Proponents of the Dodd provision argued that the duty to obtain the statement was placed on the purchaser and the dealer. It must be conceded that the effective burden is on the local police because it is they who must process these applications.) Secondly, since explosives are included in the definition of destructive devices, every sale of dynamite, gunpowder for reloading cartridges and even fireworks would require police approval. The third argument, and perhaps the most tenuous, is that prior approval by a law enforcement officer is objectionable because it may serve as a precedent for future bills which will control conventional firearms although this one deals only with destructive devices. 2 U.S. Code Cong. & Ad. News 2294 (1968).
104. See also Scherer v. Brennan, 379 F.2d 609 (7th Cir. 1967) (where Treasury agents assigned to protect the President were declared to have immunity, where they trespassed and interfered with dealer's right to access to and possession of his place of residence where he had canon and other weapons at his home and the President was at a nearby hotel).
105. Gun Control Act §§ 922(d), (g), (h). The latter two categories (i.e., addict and mental defective) were added pursuant to the House bill. It was the intention of the conference committee in the case of mental defectives and committed persons not to require prior court action since "mental boards and commissions constitute the adjudicating or committing authority in some jurisdictions." 3 U.S. Code Cong. & Ad. News 4430 (1968).
106. Gun Control Act § 922(d). Under this subsection there is an exception, however, its provisions not applying to a sale to a licensee, who, under § 925(b) "is not precluded from dealing in firearms or ammunition, or to a person who has been granted relief from disabilities" under § 925(c).
107. Gun Control Act § 922 (g).
108. Gun Control Act § 922 (h).
109. The ramifications and application of this section have been discussed, supra, p. 440, as concerns a fugitive from justice or one under indictment for a crime punishable by imprisonment for a term exceeding one year.
110. In actuality, limited provisions were made in the Omnibus Act § 922(d). Under the Federal Firearms Act 904(4), carriers were specifically excepted from its provisions.
111. Gun Control Act § 922(e). If shipment is to a licensee, it is not proscribed.
112. Ammunition was included under the Gun Control Act of 1968, although a similar, but more limited, provision did exist under the Omnibus Act 922(d).
113. Gun Control Act § 922 (f).
114. Gun Control Act § 922 (e).
115. 49 U.S.C. § 1472 (1) (1964). See discussion, p. 456 infra.
116. Gun Control Act § 922(j). "It shall be unlawful for any person to receive, conceal, store, barter, sell, or dispose of any stolen firearm or stolen ammunition or pledge or accept as security for a loan any stolen firearm or stolen ammunition, which is moving as, which is a part of, or which constitutes, interstate or foreign commerce, knowing or having reasonable cause to believe that the firearm or ammunition was stolen."
117. Gun Control Act § 922 (i).
118. United States v. Numrich, 144 F. Supp. 812, 813 (D. Mass. 1956).
119. Nicolopoulos v. United States, 332 F.2d 247 (1st Cir. 1964).
120. 162 U.S. 613, 619 (1896).
121. Giardano v. United States, 139 F.2d 198 (9th Cir. 1943).
122. Gun Control Act § 922(k). See generally V. Krema, Identification of Pistols by Serial Numbers and Other Markings, 6 J. For. Sci. 479 (1961).
123. Federal Firearms Act § 902 (i).
124. Minski v. United States, 131 F.2d 614, 617 (6th Cir. 1942), cert. denied, 319 U.S. 775 (1943).
125. Gun Control Act § 923 (i).
126. "Rifled" is defined as when spiral grooves have been cut on the inner surface of the barrel to give the bullet a rotary motion and thus render its flight more accurate. Webster's Third New International Dictionary 1954 (14th ed. 1961).
127. 3 U.S. Code Cong. & Ad. News 4423 (1968).
128. Gun Control Act 923 (g).
129. Gun Control Act 922 (l).
130. Gun Control Act 925 (d). Under § 925 the Secretary may authorize an importation if it is established to his satisfaction that the firearm or ammunition either: "(1) is being imported or brought in for scientific or research purposes, or is for use in connection with competition or training pursuant to chapter 401 of title 10 [training of the armed forces] ; (2) is an unserviceable firearm, other than a machinegun . . . (not readily restorable to firing condition), imported or brought in as a curio or museum piece; (3) . . . does not fall within the definition of a firearm as defined . . . [in the National Firearms Act] . . . and is . . . suitable . . . or readily adaptable to sporting purposes, excluding surplus military firearms; or (4) was previously taken out of the United States or a possession by the person who is bringing in the firearm or ammunition." In addition, conditional importation for examination may be allowed to see if importation, under this section, will be permitted. The section is quite obviously aimed at the problem of controlling the importation of foreign military equipment.
131. Gun Control Act § 923(a).
132. Gun Control Act 1 923(c). The qualifications are: (1) at least 21 years of age; (2) "the applicant . . . is not prohibited from transporting . . . or receiving . . . under section 922 (g) and (h) . . .;"(3) "has not willfully violated any of the provisions of this . . . [Act];" (4) applicant has not wilfully made any false statement or omitted any material information on his application; (5) the applicant has a place from where he does or intends to conduct his business. Gun Control Act § 923 (d). The last requirement is designed to prevent any individual who does not intend to run a business from applying for and being granted a license. However, it seems doubtful that an investigation will be made as to the appropriateness, of each address given, as a business property. Hence, licenses may be obtained by persons not intending to go into business, but to acquire a degree of mobility in the interstate movement of arms. This hypothesis is substantiated by the fact that under the Federal Firearms Act there is a regulation which is, in essence, the same as the last requirement and it is but selectively enforced. The problem is created by the definition of "business premises." 2 U.S. Code Cong. & Ad. News 2292 (1968). There is, however, one proposal which was not incorporated into either the Omnibus Act or the Gun Control Act. It required that "the applicant by reason of his business experience, financial standing or trade conueetions, is . . . likely to commence business operations or to maintain operations in compliance with this Act." The argument which may have caused the demise of this proposal was that it armed the Secretary with very broad powers to deny the issuance of licenses and that the small scale dealer may be injured (e.g., the crossroads gas station who does a small business for the convenience of his customers) and unable to take advantage of the appeal process due to his limited financial resources. 2 U.S. Code Cong. & Ad. News 2292-93 (1968). The provision seems, however, to be a logical complement to the business premises requirement if a license is to be truly issued to a dealer, manufacturer, importer or collector.
133. Gun Control Act §§ 923(d)(2), (e), (f).
134. Gun. Control Act § 924. Under the Federal Firearms Act, provision was made only for one who wilfully made false statements in applying for a license or an exception from the provisions of the Act. Federal Firearms Act § 905(a). The penalties under the new Act have been increased and now cover, in addition, to these two areas false statements wilfully made into the records of a licensee. Gun Control Act § 924(a). Other areas are also specifically covered. Firstly, where one with intent to commit a crime punishable by imprisonment for a term exceeding one year or where one with knowledge or reason to believe a crime such as the one stated above is to be committed transports, ships or receives in interstate commerce a firearm or ammunition. Gun Control Act § 924(b). Secondly, where one uses a firearm to "commit a felony which may be prosecuted in a court of the United States" or unlawfully carries a firearm "during the commission of any felony which may be prosecuted in a court of the United States. " The term "unlawfully"' probably refers to a violation of either state, local or federal law. The reason is that the Act is intended to encourage state and local enactments and another is to complement such state and local legislation. Gun Control Act 924(c).
135. Gun Control Act § 924(d).
136. Gun Control Act § 925 (a) (2), (3).
137. Gun Control Act § 925(a)(4).
138. Gun Control Act § 925(a)(1).
139. Gun Control Act § 925 (b).
140. Gun Control Act § 925(c). In fact, under this subsection, he may go on selling after conviction during the pendency of his appeal until linal action is taken by the Secretary.
141. Gun Control Act § 928. See Ex parte Greene, 138 F.2d 668 (9th Cir. 1943).
142. Gun Control Act § 927.
143. Tot v. United States, 319 U.S. 463 (1943); McMullen v. Squier, 144 P.2d 703 (9th Cir. 1944); Minski v. United States, 131 F.2d 614 (6th Cir. 1942).
144. Federal Firearms Act § 902 (d).
145. 312 F.2d 119 (10th Cir. 1963).
146. 266 P. Supp. 453 (W.D. Mo. 1967), aff’d, 393 F.2d 367 (8th Cir. 1968).
147. United States v. Thoresen, 281 F. Supp. 598 (N.D. Cal. 1967).
148. Wilson v. Taylor, 295 F.2d 527 (10th Cir. 1961) (where the court stated that the test for separate violations was whether different facts have to be proven for each violation).
149. Rivera v. United States, 151 F.2d 47 (1st Cir. 1945). Contra, Rayborn v. United States, 234 F.2d 368 (6th Cir. 1956).
150. Title VII of The Omnibus Crime Control and Safe Streets Act (Unlawful Possession or Receipt of Firearms), 1 U.S. Code Cong. & Ad. News 283 (1968). (Hereinafter Title VII.)
151. This is the new wording provided for in the amendment to this Act in the Gun Control Act. See 1 U.S. Code Cong. & Ad. News 1424 (1968).
152. Title VII § 1201.
153. Id. Penalties are provided for violations of Title VII § 1202(a) under that section.
154. Title VII § 1202 (b).
155. National Firearms Act of 1968 § 5801 et seq.
156. National Firearms Act of 1968 § 5812(a). Possession is not to be transferred, however, until approval is given. National Firearms Act of 1968 § 5812(b).
157. National Firearms Act of 1968 § 5841. Under this system every firearm in this country will be able to be located and its owner found. The registry shall include identification of the firearm, date of registration, and address of any person entitled to possession.
158. "The term 'firearm' means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel . . . of less than 18 inches in length; (3) a rifle having a barrel . . . less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel . . . of less than 16 inches . . . ; (5) any other weapon, as defined in subsection (e); (6) a machine gan; (7) a muffler or a silencer for any firearm whether or not such firearm is included within this definition; and (8) a destructive device." Antique firearms are excluded from its coverage. National Firearms Act of 1968 § 5845.
159. National Firearms Act of 1968 § 5845(f). Destructive devices are defined in the same way as under the Gun Control Act. Gun Control Act § 921(a) (4). Hence, a violation concerning a destructive device may lead to a violation of both Acts. It has also been stated that the provisions concerning destructive devices here (i.e., National Firearms Act of 1968) will provide better control. 2 U.S. Code Cong. & Ad. News 2289-90 (1968).
160. Under the old provisions sawed-off rifles which were less than .22 caliber were excluded. National Firearms Act § 5848. There is no such exclusion under the amendment. See also United States v. Decker, 292 P.2d 89 (6th Cir. 1961) (tear gas gun capable of firing a shotgun shell held a firearm within the National Firearms Act). But cf. United States v. Thompson, 202 F. Supp. 503 (N.D. Cal. 1962).
161. This is accomplished by expanding the definition of machine gun to include any combination of parts designed or intended for use in converting a weapon into a machine gun and "any combination of parts from which a machine gun can be assembled." National Firearms Act of 1968 § 5845(h). This language enacts what had been established under the case law. See 3 U.S. Code Cong. & Ad. News 4434 (1968). United States v. Leavell, 386 F.2d 776 (4th Cir. 1967); United States v. Lauchli, 371 F.2d 303 (7th Cir. 1966); United States v. Kokin, 365 F.2d 595 (3d Cir. 1966) (transfer of an M-1 carbine with parts to convert it to an M-2 was a violation).
162. 3 U.S. Code Cong. & Ad. News 4435 (1968). One problem which was dealt with by the courts was whether the tax on dealers was a constitutional use of the taxing power; the courts held that it was. Sozinsky v. United States, 300 U.S. 506 (1937); Sipes v. United States, 321 F.2d 174 (8th Cir. 1963); United States v. Adams, 11 F. Supp. 217 (S.D. Fla. 1935).
163. 306 F.2d 402 (9th Cir. 1962).
164. National Firearms Act § 5851.
165. Pruitt v. United States, 364 F.2d 826 (6th Cir. 1966); Castellano v. United States, 350 F.2d 853 (10th Cir. 1965); Starks v. United States, 316 F.2d 45 (9th Cir. 1963); United States v. Boy, 270 P. Supp. 58 (D. Mont. 1967); Hazelwood v. United States, 208 F. Supp. 622 (N.D. Cal. 1962).
166. 390 U.S. 85 (1968). Even prior to Haynes, there was a lower court decision in which the court would not distinguish. See Dugan v. United States, 341 F.2d 85 (7th Cir. 1965).
167. Haynes v. United States, supra note 166.
168. Upshaw v. United States, 399 F.2d 149 (5th Cir. 1968); Sizemore v. United States, 393 F.2d 656 (8th Cir. 1968) ; Drennon v. United States, 393 F.2d 342 (8th Cir. 1968); Cedillo v. United States, 391 F.2d 607 (9th Cir. 1968); Dillow v. United States. 389 P.2d 381 (8th Cir. 1968).
169. Barkey v. Firearms Control Bd., 293 P. Supp. 420 (S.D.N.Y. 1968).
170. United States v. Della Rocca, 388 P.2d 525 (2d Cir. 1968).
171. 390 U.S. 85 (1968).
172. National Firearms Act of 1968 § 5861(a).
173. Several cases have held that the provisions would not be held uneonstitutional. Mares v. United States, 319 F.2d 71 (10th Cir. 1963); United States v. Casson, 288 F. Supp. 86 (Del. 1968); United States v. Taylor, 286 F. Supp. 683 (E.D. Wis. 1968). One other would follow the reasoning in Haynes. United States v. Stevens, 286 F. Supp. 532 (D. Minn. 1968).
174. National Firearms Act of 1968 § 5848(a).
175. 3 U.S. Code Cong. & Ad. News 4435 (1968).
176. Gun Control Act § 923 (g).
177. Montos v. United States, 291 F.2d 855 (6th Cir. 1961). Rayborn v. United States, 234 F.2d 368 (6th Cir. 1956); United States v. Hardgrave, 214 F.2d 673 (7th Cir. 1954). It should also be remembered that separate offenses exist under the National Firearms Act. United States v. Forgett, 349 F.2d 601 (6th Cir. 1965); Wright v. United States, 243 F.2d 546 (6th Cir. 1957); Rayborn v. United States, supra; United States v. Hardgrave, supra.
178. 18 U.S.C. § 3611 (1964).
179. 18 U.S.C.A. §§ 231, 232, 233 (Supp. 1968).
180. Gun Control Act § 924(a).
181. National Firearms Act of 1968 § 5872(a).
182. 18 U.S.C. § 1715 (1964). Basically, the exceptions apply to the Armed Forces and law enforcement officers and dealers and manufacturers who are licensed (see n.67 supra). The firearm must be a weapon. Stanford v. Lunde Arms Corp., 211 F.2d 464 (9th Cir. 1954) (combination cap pistol and B.B. gun which merely gave a stinging sensation was not within the purview of the Act.)
183. 8 U.S.C. 1251(a)(14) (1964).
184. 49 U.S.C. 1472(l) (1964).
185. 49 U.S.C. 1472(j) (1964).
186. Gun Control Act § 922(e).
187. 1 U.S. Code Cong. & Ad. News 7, 9 (February 5, 1969), citing 115 Cong. Rec. H.274.
188. 2 U.S. Code Cong. & Ad. News 2202 (1968).
189. See Barkey v. Firearms Control Bd., 293 F. Supp. 420 (S.D.N.Y. 1968).
190. 2 U.S. Code Cong. & Ad. News 2202 (1968).