Firearm Owners' Protection Act of 1986

Note that this report relates to HR 4332 as introduced, and not to HR 4332 as passed by the House after striking its original text and substituting the language of the Volkmer bill:

HOUSE REPORT NO. 99-495

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March 14, 1986

 

The Committee on the Judiciary to whom was referred the bill (H.R. 4332) to amend chapter 44 (relating to firearms) of title 18, United States Code, and for other purposes, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass.

 

PURPOSE OF THE LEGISLATION

 

H.R. 4332 is designed to relieve the nation's sportsmen and firearms owners and dealers from unnecessary burdens under the Gun Control Act of 1968, to strengthen the Gun Control Act of 1968 to enhance the ability of law enforcement to fight violent crime and narcotics trafficking, and to improve administration of the Act.

 

OVERVIEW OF THE LEGISLATION

 

BENEFITS FOR SPORTSMEN

 

Permits interstate sale of rifles and shotguns if the sale is made face to face between buyer and seller and complies with laws of both states.

 

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Assures the rights of individuals to travel in and between states with a secured, unloaded, not readily accessible rifle or shotgun for the purpose of participating in legal sporting activities or for changing their residence.

 

Eliminates recordkeeping in the sale of ammunition in quantities of less than 1,000 rounds except for armor-piercing ammunition.

 

Limits the forfeiture of firearms to only those involved in or intended to be involved in felony violations of the law.

 

Improves the ability of deserving members of the public to petition the Secretary to obtain relief from the disabilities of the Gun Control Act.

 

BENEFITS FOR LAW ENFORCEMENT

 

Provides an important new weapon against narcotics traffickers by mandating that a person who uses or carries a firearm during and in relation to a drug trafficking crime shall be subject to a mandatory prison term of five years.

 

Provides a mandatory prison term of ten years for using or carrying a machine gun during and in relation to a crime of violence or a drug trafficking offense, and a mandatory twenty years for any subsequent offense.

 

Bans the future sale of silencers and silencer kits.

Provides for notification of law enforcement authorities of a handgun purchase to permit a check of records of criminal conviction or other disqualification of the purchaser. There is no waiting period.

 

Controls all parts designed or intended to be used for converting weapons into machine guns.

 

Makes it a crime for any non-licensee to transfer a firearm to another person knowing that such person is unqualified.

 

Modernizes the prohibition on receiving firearms by a person who is an addict to a controlled substance.

Enacts the current regulation requiring reporting multiple handgun sales.

 

Clarifies the law by combining in one section all of the offenses related to sale of firearms to unqualified persons, and the offenses of receipt, possession and transport of firearms by unqualified persons.

Permits the Secretary of the Treasury to consider any state law disqualifications when issuing licenses.

Bans the importation of key components of 'Saturday night specials.'

 

Provides an additional weapon against narcotics traffickers by mandating that a person who uses or carries a firearm loaded with armor-piercing ammunition during and in relation to a drug trafficking crime shall be subject to a mandatory prison term of five years.

 

BENEFITS FOR GUN DEALERS

 

Requires proof of a knowing state of mind for felony violations.

 

Reduces recordkeeping offenses to a misdemeanor.

 

Permits sales at a gun show by a licensee.

 

Limits information required on license applications to information necessary to determine eligibility for licensing.

 

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Limits compliance inspections to 3 per 18 month period unless personally approved by the Secretary or Director of BATF.

 

Gives the Secretary a sanction of license suspension to punish less serious violations of the Gun Control Act.

 

HISTORY OF THE LEGISLATION

 

There has been substantial concern since 1968 that the Gun Control Act had serious omissions that limited its ability to keep firearms out of the hands of criminals. Others have voiced concerns about the impact of enforcement of the act sportsmen. In each Congress since 1968 legislation has been introduced both to substantially strengthen the Act or to repeal or lessen its requirements.

 

In the 94th Congress the Subcommittee on Crime held hearings on close to 100 bills pending in the subcommittee that ranged from repeal of the 1968 Gun Control Act to prohibiting most private ownership of handguns, in eight cities around the nation taking testimony on 24 days totalling some 100 hours from 220 witnesses. [FN1] (Mr. Hughes, Chairman of the Subcommittee on Crime, was a member of the Subcommittee in the 94th Congress.) The Judiciary Committee favorably reported the bill, H.R. 11193, but no action was taken on it in the House of Representatives.

 

During the 1970s it was asserted by firearms owners and dealers that a number of the requirements of the act are onerous and do not serve legitimate law enforcement purposes. It has also been asserted that enforcement of the Gun Control Act had been overzealous.

 

In the 96th Congress hearings were held to explore those issues. [FN2] Representative Harold Volkmer introduced H.R. 5225 to address those concerns (which was the precursor of H.R. 945 and S. 49 discussed below).

 

Representative Peter W. Rodino, Jr., Chairman of the Committee on the Judiciary Committee, introduced the Handgun Crime Control Act of 1979, H.R. 5823, on November 7, 1979. To bill would have banned the manufacture, importation, assembly or sale of 'Saturday night specials', required a 21 days waiting period before the purchase of handguns for FBI and local police record checks for disqualifications, prohibited the purchase of more than 2 handguns per year without approval by the U.S. Attorney General, prohibited sales of handguns by pawnshops, required reporting of the loss or theft of a handgun, raised license fees for handgun dealers to $500 per year and for handgun manufacturers to $5000 per year, and transferred firearms law enforcement from the Treasury Department to the Justice Department.

        

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In the 97th Congress, Rep. Harold Volkmer reintroduced the legislation as H.R. 3300, and Senator James McClure introduced S. 1030, a companion bill. S. 1030 was the subject of three days of hearings lasting a total of 6 1/2 hours. [FN3] After four days of mark up it was reported on April 21, 1982 (S. Rep. 476 (97th Cong. 2d sess.) but was not brought to the Senate for consideration. Chairman Peter W. Rodino, Jr. reintroduced his legislation as H.R. 3200.

 

In the 98th Congress, Rep. Volkmer reintroduced his legislation as H.R. 2420. Senator McClure reintroduced his as S. 914. The Senate Judiciary Committee held a day of hearings on October 4, 1983. That Committee met on four occasions between November 17, 1983 and May 10, 1984 to mark up S. 914. It was finally reported on May 10, 1984 (S. Rep. 98-583). The bill was never brought to the Senate floor. Chairman Rodino reintroduced his legislation to control handguns as H.R. 1543.

 

At the beginning of the 99th Congress, Rep. Volkmer reintroduced his legislation with a number of amendments, as H.R. 945. Senator McClure reintroduced his legislation, S. 49, with a number of amendments to the Committee-reported bill, and omitting a major provision of the Committee-reported bill, a prohibition on interstate sale of concealable handguns. S. 49 was placed on the Senate Calendar and was not referred to Committee. No hearings were held nor was a report issued by the Senate Judiciary Committee. The bill was debated, amended and passed by the Senate on July 9, 1985. Chairman Rodino reintroduced his legislation to control handguns as H.R. 1442.

 

On August 1, 1985 Chairman Peter W. Rodino, Jr. introduced a new bill, H.R. 3155, the Racketeer Weapons and Violent Crimes Control Act of 1985.

 

H.R. 3155 provided a 15 day waiting period to allow a record check of prospective handgun purchasers to determine if there is a criminal conviction, adjudication of mental incompetence or other disqualifying circumstance.

 

Second, it prohibited the transfer and possession of machine guns, used by racketeers and drug traffickers for intimidation, murder and protection of drugs and the proceeds of crime. The bill allowed possessers of lawfully registered machine guns to continue their legal possession. The bill enabled a person to dispose of an unwanted legally registered machine gun by permitting the Secretary to buy a machine gun from such person.

 

Third, it prohibited the transfer and possession of silencers, used in assassinations and contract murders, in the same manner as the section on machines guns.

 

Fourth, the bill allowed the Secretary to consider whether applicable State law would bar a prospective licensee from any conduct required to carry out the business of the Federal licensee.

 

Fifth, the bill closed a number of loopholes concerning possession of firearms by illegal users of drugs.

 

Sixth, the bill provided regulatory reforms that the NRA and the nation's gun owners, sportsmen, and licensed firearms dealers have

 

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long desired which will not compromise BATF's law enforcement capabilities.

 

(a) The bill allowed licensed dealers to sell firearms at gunshows.

 

(b) It eliminated record keeping requirements for the sale of ammunition, except for large quantities, and eliminates record keeping requirements for transfers of curios between licensed collectors.

 

(c) It provided the Secretary an alternative penalty in a case of violation of the regulations of the GCA of license suspension, an alternative to the only penalty currently available, license revocation.

(d) The bill expanded the class of persons eligible for relief from the disabilities imposed under the Act. It benefits persons who had been convicted of a crime or who had once been adjudicated mentally incompetent, have been subsequently determined to have reformed or adjudicated as restored to mental competence.

 

The bill raised the annual license fees of licensed dealers, pawnbrokers, manufacturers and importers from $10, $25, $50 and $50 per year, respectively, to $200 per year. A fund from the license fees received under the GCA would be created to be used for 'grants. . . to State and local governmental agencies for the purposes of providing assistance in enforcing this chapter or the operation of firearm safety program operated under State or local law.'

 

SUBCOMMITTEE HEARINGS

 

In September, 1985, the Subcommittee on Crime announced hearings on all the firearms legislation pending before the Subcommittee.

 

[long list of witnesses deleted here]

 

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PROBLEM AREAS IN H.R. 945 AND S. 49

 

The Subcommittee on Crime uncovered the following problem areas with H.R. 945 and S. 49.

 

Preemption of state law--transportation of a firearm

 

S. 49: This provision had the potential to undermine state law enforcement authority significantly. This provision entitles persons who are not disqualified from receiving weapons under the Gun Control Act of 1968 (GCA) to���

 

���transport an unloaded, not readily accessible firearm in interstate commerce' notwithstanding any provision of state or local law.��� (S. 49, sec. 107, page 31, lines 12-18)

 

Interstate commerce is an extremely broad term. One does not have to cross a state line to be 'in interstate commerce.' It could create a Federal defense to state and local prosecutions for unlawfully carrying a firearm. It is unclear how long a person remains in interstate commerce after entering interstate commerce. The provision could even exempt the residents of a State from that State's law when it is shown, as is easily the case, that the person was 'in interstate commerce.'

 

H.R., 945: The approach in H.R. 945 is even broader than in S. 49.

 

���Any provision of any legislation enacted, or any rule or regulation promulgated, by any State or political subdivision which prohibits or has the effect of prohibiting the transportation of a firearm or ammunition in interstate commerce through such State or political subdivision, when such firearm is unloaded and not readily accessible, shall be null and void.���(H.R. 945, sec. 107, page 20, lines 9-18, emphasis added.)

 

Among other effects, this provision could have the effect of invalidating State laws prohibiting felons or mental incompetents from possessing firearms.

 

Immunity from prosecution

 

S. 49 and H.R. 945 provide that if any crime is uncovered in the course of a regular inspection of a Federal firearms licensee, 'no criminal charges shall be brought against the licensee except for willful violation of the recordkeeping requirements' or for sales or dispositions of firearms in violation of 18 U.S.C. 922(d). This provision creates immunity for prosecution for all crimes uncovered in such an inspection. (S. 49, sec. 103(6), page 15, lines 9-13; H.R. 945, sec. 103(7), page 14, lines 18-21)

 

Interstate sale of firearms

 

Permits over-the-counter sales of firearms (including handguns) to out-of-state residents (S. 49, sec. 102(3) and (4), pages 6-7, lines 23-23; H.R. 945, sec. 102(4), pages 7-8, lines 22-14). Licensees would be required to fully comply with the state and local laws applicable to the place of sale and the place of residence of the purchaser. However violations of this requirement would only be punishable if

 

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they were 'willful.' (S.49, sec. 104(1), page 22, line 14; H.R. 945, sec. 104(1), page 16, line 11). Willful violations would be more difficult to prove than the usual 'knowing' standard, particularly in reference to the laws of various states. Sales which do not fully comply with applicable state and local law would violate Federal law but if the failure was due to a mistake of law or fact or due to negligence on the part of the licensee, the violation of the law most likely would not be punishable. Many witnesses wondered how licensees will be able to familiarize themselves with the often complex laws of other states and jurisdictions. A State could not have any ability to prosecute dealers whose sales are made out of State and which violate that State's law--the burden of such enforcement would be solely upon the Federal government.

 

Many counties have their own laws regarding the purchase of firearms. Since most common forms of identification do not indicate the county in which a person lives, it may be impossible for firearms dealers to know if a county ordinance applies to the sale. [FN4]

 

To guide Federal licensees, BATF now publishes an annual compilation of State and local firearms laws. [FN5] On December 18, 1985 the Treasury Department transmitted proposed legislation to 'eliminate the requirement for the annual publication of ordinances concerning firearms laws.' (Executive Communication 2419). The explanation of this proposed measure by the General Counsel of the Department of the Treasury is that an annual publication 'is considered of little value to the licensee because local ordinances change frequently between publications.' This illustrates some of the limitations of a provision that interstate sales may be made if they are in compliance with the law of place of residence of an out of state purchaser.

 

Weakening current mandatory penalty for using or carrying a firearm in the commission of a crime of violence (S. 49 only)

 

The current mandatory prison term for the use or carrying of a firearm, during and in relation to any federal crime of violence, is five years without probation or parole (18 U.S.C. 924(c), P.L. 98-473, (section 1005(a)), October 12, 1984.

 

18 U.S.C. 924(c) is only triggered if the use or carrying of the firearm is 'during and in relation' to an underlying crime of violence. To successfully prosecute, proof of the defendant's commission of the crime of violence is necessary.

 

S. 49 adds an unnecessary element to the offense that the carrying be 'in furtherance of any such crime of violence.' (S. 49, sec. 104(2), page 23, line 14). Proof of this element would involve additional analysis of the defendant's conduct, the circumstances of the violent crime and evidence of the defendant's state of mind. It would be a substantial burden on the prosecution and is unnecessary to prevent injustice.

 

S. 49 also contains a proviso that evidently intends to create a defense of 'self-defense,' (S. 49, sec. 104(2), page 24, lines 10-21). Essentially this defense would apply to the criminal who armed

 

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himself in anticipation of 'perceived immediate danger' from another criminal similarly armed, or that he might be arrested by a police officer 'unlawfully'.

 

The defense does not follow the Federal rule of self-defense which follows the Common Law--that the belief of the defender must be reasonable under the circumstances as they appear at the moment. [FN6] It appears that this formulation may create, for the first time in Federal law, a statutory right to use force to resist an unlawful arrest. The defense fails to address the most common problems in the law of self-defense such as cases of mutual combat, cases in which the defender initiated the assault but then gave up the attack and retreated, and cases in which the reasonable belief of the defender was in error.

Proponents of the self-defense amendment point out that the defense is not available to one protecting himself 'from the danger which was the direct result of the commission of or attempt to commit a felony.' They argue that a felon who uses a a gun in the commission of a felony or in a shoot out with police while fleeing cannot therefore claim self-defense, since he is protecting himself from a danger that was the direct result of the felony.

 

While this reasoning may rule out a successful self-defense claim in most situations in which the use branch of the offense forms the basis of the mandatory penalty prosecution, it would not have the same weight in the case of prosecution for carrying a firearm during the commission of a felony. Indeed, the 'carrying' branch of the offense might be decimated, in that the felon could claim that he was only carrying the weapon for defense against other felons, and cite the fact that he did not actually use the weapon as proof of his claim. For example, a drug trafficker, if charged with carrying a firearm under 18 U.S.C. 924(c) in connection with drug trafficking, might be able to reasonably sustain a claim that it was carried for protection against rival traffickers.

 

Although the provision, section 924(c) of title 18, U.S.C., is frequently referred to as a penalty enhancement provision it is in reality a separate offense from crimes of violence such as assault with a dangerous weapon. [FN7] It is inconsistent to provide a statutory defense for 924(c) and not for other crimes. This defense could result in prosecutors avoiding the use of 924(c). Eliminating the need to elect between 924(c) in 1984.

 

Making Prosecutions of GCA Violations More Difficult

 

Requires proof of 'willfulness' to convict for many GCA violations (S. 49, sec. 104(1); H.R. 945, sec. 104(1)). Case law interpreting the criminal provisions of the GCA have required that the government prove that the defendant's conduct was knowing, but not that the defendant knew that his conduct was in violation of the law. [FN8]

 

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The criminal law traditionally does not require proof that the defendant knew that his conduct was in violation of the law. [FN9]

 

It appears that the intent of the authors of the 'willfulness' requirement of S. 49/H.R. 945 is that the prosecution have to prove that the defendant knew the details of the law, understood that his conduct would violate the law, and intentionally set out to violate the law. This would constitute an almost impossible, and almost unprecedented burden on the prosecution. Proponents of the willfulness standard argue that the offenses for which the standard would apply are mere regulatory offenses, for which a conscious and specific intent to violate the law should be required. However, a person violating a city's vehicular speed limit cannot successfully assert that he had not read the city ordinance nor seen a posted speed limit; a toxic waste dumper cannot escape prosecution by claiming he had not kept up on the environmental protection laws; a money launderer cannot continue to engage in the business of servicing drug traffickers and organized crime by defying the government to prove that he knew that federal law requires that large cash transactions at financial institutional must be reported to the Treasury Department. The Committee believes that, similar to these examples, a person who engages in the business of selling hand grenades or machine guns should not escape prosecution solely on the grounds that the government cannot produce witnesses to whom the defendant admitted knowledge that such conduct requires a federal license, and a determination to violate that law.

 

Determining who needs a license

 

A feature with major impact is the change in defining who is required to obtain a license as a dealer, manufacturer or importer. This is an area that has many who use firearms very upset. Persons who are 'engaged in the business' of manufacturing, importing, or buying and selling firearms are required to obtain a license.

 

S. 49 and H.R. 945 define 'engaged in the business' in terms of 'the principal objective of livelihood and profit' whose underlying intent is 'predominantly one of obtaining livelihood and pecuniary gain' (emphasis added) (S. 49, sec. 101(b), pages 3-5) and 102(1); H.R. 945, sec. 101(6)). This definition, which does not follow the case law, is likely to have a serious weakening effect on the GCA. Current law permits ordinary firearms owners to sell their firearms but not to 'engage in the business' of selling firearms without a license.

 

These provisions expand the number of persons who can engage in firearms transactions or importation without needing a license or having to comply with the record keeping requirements of the law. This definition has loopholes for a person, believing the public ought to be armed for self-protection, who sells large volumes of firearms at no markup or a price which does not make a profit, who would not be 'engaged in the business.'

 

Unfortunately, this new definition does not solve the ambiguity that confronts an active collector. Certainly one motive of a person

 

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collecting firearms, and frequently the predominant motive shared with other collectors, is to upgrade the value of the collection by making trades or sales that are profitable. A shrewd, lucky or enthusiastic collector may remain confused whether he is 'engaged in the business' within the meaning of this new definition.

 

Courts have not been unanimous regarding the question whether a profit motive is an essential ingredient in determining of one is 'engaged in the business' of firearms. However, even among those federal appellate courts which have held that a purpose of making a profit must be shown, none have reqired that profit making be shown as the primary or predominant purpose, as S. 49 and H.R. 945 do. [FN10]

 

A principal concern of the Committee is that we not permit individuals to buy, sell, and distribute firearms on a repetitive, continuing basis without the necessary records being kept in order to permit tracing if these weapons later wind up being used in crimes. We believe the 'principal objective of livelihood and profit' requirement of the proposed definition has this effect. A requirement of proof of objective or motive, unlike a conduct-oriented standard, calls for proof of subjective matters, and is for this reason of questionable wisdom. In a prosecution for engaging in business without a license it is unreasonable to require that the prosecution prove that livelihood and profit was the principal objective of one who maintains that he buys and sells guns to make a little extra money to add to his personal collection of guns, or because he enjoys learning all about the various firearms that pass through his hands in buying and selling them. While these are legitimate objectives of gun collectors and enthusiasts, the Committee does not believe that one who is, for all intents and purposes, a firearms dealer, should be excused from the licensing and recordkeeping requirements simply by showing that he had other motives beyond just livelihood and profit.

 

Weakening the Firearms Tracing Program by weakening recordkeeping and restricting Secretary's ability to examine and keep records

 

In addition to changing the requirements concerning who needs to have a license (and therefore must keep records) and raising the state of mind necessary to prove violations of the requirement to keep accurate records (making such violations harder to prove), these bills weaken the firearms tracing program because they���

 

(1) Restrict the authority of BATF to inspect the records and inventory of GCA licensees to assure compliance to only one visit per year and only after advance notification (S. 49, sec. 103(6), page 15, lines 7-9; H.R. 945, sec. 103(7), page 14, line 12).

(2) Exempt transactions to and from the 'personal collection of firearms' of licensees from the recordkeeping requirements for licensees (S. 49, sec. 103(3), pages 12-13, lines 15-4; H.R. 945, sec. 103(4), pages 11-12, lines 18-6). Currently a licensee is required to maintain a record of all his firearms transactions.

 

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(3) Regarding (i) any records of out-of-business licensees, (ii) any reports from licensees concerning information contained in their records, and (iii) any reports of multiple handgun transfers to a non-licensee, S. 49 prohibits the Secretary from keeping this information in a centralized location or from entering it into a computer for storage or retrieval (Only S. 49, sec. 103(6), page 20, lines 1-5. H.R. 945 has no comparable provision.)

 

(4) Regarding records of out-of-business licensees, S. 49 requires that the records be sent to the joint custody of the Archivist of the United States and the Secretary to be stored in a record center operated by the Archivist, limits access of the Secretary to the records solely for the purpose of determining from whom a licensee acquired a firearm and to whom such licensee disposed of such firearm, and requiring the Archivist to destroy these records twenty years after they are received.

 

For example, BATF could not use these records to investigate whether a firearm purchaser from such an out-of-business licensee had made a false statement in connection with such purchase. (Only S. 49, sec. 103(6), page 17, line 8--page 18, line 13. H.R. 945 has no comparable provision.)

 

Limitations on seizure of contraband and forfeiture of firearms and ammunition

 

A potentially significant problem is that the authority to seize and forfeit is limited only to firearms or quantities of ammunition 'particularly named and individually identified as involved in or used in' specified violations of law. (S. 49, sec. 104(3), pages 25-28; H.R. 945, sec. 104(2), pages 17- 18, lines 24-4). This is narrower than interpretations of the Fourth Amendment requirement that a warrant 'particularly' described the place to be searched and the persons or things to be seized, and the exceptions involving objects in 'plain view' and 'inadvertent discovery.' It would appear that contraband firearms could not be seized if they has not been specifically identified in the search warrant as being used in a specific violation of the law.

 

Sales at gun shows--inspection of inventory prohibited

 

S. 49 allows all licensees to conduct business at any temporary location in the State in which they are licensed if the location is the site of a gun show or event sponsored by any national, state or local organization devoted to the collection, competitive use, or other sporting use of firearms, or an organization that sponsors events devoted to the collection, competitive use or other sporting use of firearms, but appears to bar examination of the inventory of the licensee at the temporary location (S. 49, sec. 103(7), pages 20-21).

 

H.R. 945 has no such provision.

 

Acquittal of criminal charges bars civil actions

 

These bills provide that an acquittal on criminal charges is a bar to a revocation of a GCA license based in whole or in part on facts which formed the basis of the criminal charge (even though the standard of proof for a revocation is much lower). This would force

 

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the Secretary of the Treasury to elect how to proceed against licensees who violate the law. The government could either undertake a criminal prosecution which it, and a grand jury determined was warranted, but which required a high burden of proof beyond a reasonable doubt, and thus risk both an acquittal and the inability to proceed civilly to revoke a license, or simply to proceed civilly and permit the criminal violations go unpunished. Forcing this type of election is unwarranted and very rare. It has never been held to offend the Fifth Amendment prohibition against double jeopardy to allow a civil proceeding to follow an unsuccessful criminal prosecution. (S. 49, sec. 103(5)(C), page 13, line 14--page 14, line 2; H.R. 945, sec. 103(6)(B), pages 12-13, lines 17-4).

 

Liberalizing the importation of firearms

 

Opens up the importation of firearms by mandating the Secretary to authorize importation of a firearm if there is a sporting purpose and eliminating the requirement that the importer has the burden of satisfying the Secretary of the sporting purpose (S. 49, sec. 105(2), page 29, lines 6-22; H.R. 945, sec. 105(2), pages 18-19, lines 19-4). It is their failure to meet the sporting purpose standard which currently prohibits Saturday Night Specials from being imported into the United States.

 

Ammunition dealers and recordkeeping

 

H.R. 3155, would eliminate the need to keep records for sales of ammunition involving less than one thousand rounds. S. 49 and H.R. 945 go much further by eliminating any recordkeeping requirement for sales of ammunition by essentially removing the sale of manufacture from the coverage of the law.

 

If the legislation passed by the House and the Senate to control the sale of armor piercing ammunition (H.R. 3132) is enacted, then the S. 49/H.R. 945 provisions which remove ammunition dealers from the licensing requirements altogether would be likely to hinder effective enforcement of that act. (The provisions relating to ammunition permeate the GCA, S. 49 and H.R. 945).

 

Additional drafting problems

 

(1) The provisions in S. 49 to update the disqualification from receiving or possessing a firearm by drug addicts has a problem in that it would fail to apply to persons who are unlawful users or addicts of most hallucinogenic drugs, including the notorious violence-inducing drug phencyclidine (PCP), methaqualine, tranquilizers or designer drugs. (S. 49, sec. 102(5), (6) and (7) page 8 lines 10-13, page 9 lines 5-8, and page 10 lines 10-13. H.R. 945 does not attempt to modernize the law in this area.)

(2) The provision relating to obtaining and executing a search warrant in the new inspection provisions in 18 U.S.C. 923(g) (S. 49, sec. 103(6), pages 14-15, lines 12-2) differs significantly from those in Rule 41 of the Federal Rules of Criminal Procedure which is likely to create confusion in the enforcement of the GCA.

 

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POSITIVE FEATURES OF S. 49 AND H.R. 945

 

Strengthening provision--sale to disqualified persons

 

Both bills strengthen the GCA by extending the prohibition on transferring firearms to disqualified persons from only licensees to private individuals as well. The state of mind is knowing or having reasonable cause to believe that the purchaser is in the disqualified class. (S. 49, sec. 102(5), page 8, lines 3-23; H.R. 945, sec. 102(5), pages 8-9, lines 23-2).

 

H.R. 4332 includes such a provision.

 

Mandatory penalty of carrying or using a firearm during and in relation to a drug trafficking crime

 

S. 49, as a part of its rewrite of the mandatory penalty provisions strengthened in the last Congress (18 U.S.C. 924(c)), would apply the penalty to a person who uses or carries a firearm during and in relation to 'any felony described in the Controlled Substances Act, the Controlled Substances Import and Export Act' or the 'Marijuana on the High Seas Act' (21 U.S.C. 955a). (S. 49, sec. 104(2), page 23, lines 5-9). H.R. 945 has no such provision.

 

H.R. 4332 includes such a provision.

 

Relief from disabilities

 

S. 49 includes a feature which is law enforcement neutral and which genuinely serves the interests of the nation's sportsmen and hunters by extending to all persons prohibited from possessing, receiving or transporting firearms the ability to seek relief from the disability. (S. 49, sec. 105(1), pages 28-29). H.R. 945 has no such provision.

 

This addresses the issue raised by the United States District Court for New Jersey which has invalidated the prohibition on the sale of firearms to those who have been committed to mental institutions or adjudicated mentally defective because the GCA does not authorize the Secretary of the Treasury to relieve that disability for former mental patients as it does for ex-convicts. [FN11] The court held this failure to violate the equal protection and due process protections of the Fifth Amendment. The court stayed the effective date of the order to permit Congress to correct the constitutional infirmities of these provisions. The government has filed a direct appeal in the Supreme Court and the court has further stayed its order pending the appeal. The Supreme Court noted jurisdiction of Galioto on November 4, 1985 and requested full scale briefing of this case. Argument of this case is likely this term. [FN12]

 

H.R. 4332 includes such a provision.

 

Barring importation of 'Saturday Night Special' barrels

 

This section of S. 49 would extend the ban on the importation of critical parts of Saturday night specials to include barrels. Frames and receivers of such firearms cannot now be imported. (S. 49, sec. 105(2)(C), page 29, lines 14-20).

 

H.R. 4332 includes such a provision.

 

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Clarifying the disabilities under the Gun Control Act

 

Currently the prohibitions on who may receive, possess and transport firearms are divided among two subsections of the GCA and a subsection of title VII of the Omnibus Crime Control and Safe Streets Act. S. 49 and H.R. 945 would add to the GCA provisions three conditions it does not now cover (which are in title VII): A person who (1) being an alien, is illegally in the United States; (2) has been discharged from the Armed Services under dishonorable conditions; and (3) having been a citizen of the United States, has renounced his or her citizenship.

 

H.R. 4332 includes such a provision.

 

Lesser penalties for merely technical violations of the GCA

 

S. 49 would provide a misdemeanor penalty for licensees who fail to make required entries or who fail to properly maintain their records. (S. 49, sec. 104(1), pages 22-23, lines 19-3. H.R. 945 has no such provision.)

 

H.R. 4332 includes such provisions.

 

VIEWS OF THE ADMINISTRATION

 

At the Subcommittee's hearing on February 19, 1986, the Deputy Assistant Secretary of the Treasury Edward T. Stevenson conceded that there would be serious problems for law enforcement under these bills. He, with reluctance, turned over to the Subcommittee a seven page 'assessment' of S. 49, prepared by the Bureau of Alcohol, Tobacco and Firearms, which contained six positive aspects and eighteen negative aspects which follows:

 

ASSESSMENT BY THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS

 

DEPARTMENT OF THE TREASURY,

BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,

Washington, DC, February 10, 1986.

CC-34,270 FE:SRR

 

Memorandum to: Assistant Secretary (Enforcement and Operations).

From: Director.

Subject: S. 49, the 'Firearms Owners Protection Act'.

 

As you requested at the Heads of Bureaus' meeting, I have prepared a memorandum giving our assessment of the strengths and weaknesses of S. 49 (Firearms Owners Protection Act) from an administrative and law enforcement perspective. We provided most of these same comments to the Department when the bill was being considered in the Senate; and, as you can see, some of our concerns were accepted while others were rejected. As the agency responsible for enforcing the Gun Control Act of 1968, a fair hearing of our concerns was probably the most we could expect. We obviously hoped our recommendations would have resulted in more changes than ultimately occurred.

 

         [end p. 16]

 

17

 

POSITIVE ASPECTS OF S. 49

 

1. Ammunition Licensing and Recordkeeping. The bill would eliminate dealers, pawnbrokers and collectors in ammunition only from the Gun Control Act's licensing provisions. However, importers and manufacturers of ammunition would continue to be licensed. In addition, all recordkeeping provisions concerning ammunition would be repealed. The Bureau and the Department have recognized that current recordkeeping requirements for ammunition have no substantial law enforcement value. In addition, their elimination would remove an unnecessary recordkeeping burden from licensees. Felons and other proscribed persons would still be prohibited from transporting or receiving ammunition in commerce.

 

2. Sales to Prohibited Persons. The bill makes it unlawful for any person, not only licensees, to sell or otherwise dispose of firearms to certain prohibited categories of persons, e.g., a convicted felon. Under existing law it is only unlawful for a licensee to sell or otherwise dispose of firearms knowing or having reasonable cause to believe that such a person is in a prohibited category. This proposal would close an existing loophole whereby qualified purchasers have acquired firearms from licensees on behalf of prohibited persons.

 

3. Repeal of Certain Provisions of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968. The bill would repeal most of Title VII and incorporate its provisions into the Gun Control Act. Thus, all provisions of Federal firearms laws imposing disabilities on felons and other prohibited persons would be combined in the GCA and existing inconsistencies between Title VII and the GCA would be eliminated. The Armed Career Criminal Act, imposing mandatory penalties based upon previous robbery or burglary convictions, would be retained in Title VII. Both ATF and the Department have supported legislation of this nature in the past.

 

4. Gun Shows. The bill would permit licensed importers, manufacturers and dealers to conduct business temporarily at locations other than that specified on their license, within the same State, pursuant to regulations issued by the Secretary. This provision is similar to regulations recently promulgated which allow licensees to conduct business at gun shows if the gun show is located in the same State as that specified on the license. See 27 C.F.R. �� 178.000. The bill would remove any doubt concerning the statutory validity of such regulations.

 

5. Importation of Certain 'Saturday Nite Special' Parts. Current law prohibits, among other things, the importation of firearms, including firearms frames or receivers, not particularly suitable for or readily adaptable to sporting purposes. Generally, easily concealable and inexpensive handguns are not importable under existing law. The bill would add a new prohibition against the importation of barrels for nonsporting handguns. This change will, to some extent, discourage the existing circumvention of the importation controls which allows the assembly of nonsporting handguns from imported parts.

 

6. Mandatory Penalties. The bill would provide that those who carry or use firearms in the commission of Federal drug offenses will be subject to the Act's mandatory penalties. This amendment

 

         [end p. 17]

 

18

 

would resolve the current uncertainty whether such crimes are crimes of violence and, thus, fall within the existing mandatory penalty provision. However, there are significant negative aspects of the mandatory penalty provision which are discussed below.

 

NEGATIVE ASPECTS OF S. 49

 

1. Definition of 'Engaged in the Business.' The definition is too narrow since it requires a person to engage in a 'regular course of business for the purpose of livelihood and profit.' Consequently, some criminal activity that may be prosecuted under existing law for engaging in a firearms business without a license may not be prosecutable under S. 49. For example, an individual who on several occasions disposed of firearms at cost to terrorists for the purpose of facilitating their crimes may not be held to be ���engaging in the business.���

 

2. Interstate Sales. The bill would permit interstate sales of firearms, including handguns, by licensees to nonlicensees if applicable State and local laws are complied with. State and local laws in the State wherein the purchaser resides would be defeated since, as a practical matter, licensees will not have knowledge of such laws. The problem is not cured by the requirement that the Secretary annually provide licensees with a publication containing such laws since the publication would not cover all local ordinances and would never be current. Purchasers' violations would be difficult to prove in view of the requirement to prove willfulness on their part, i.e., the purchaser knew that State or local law was violated. While the bill would create a presumption of knowledge of applicable State and local laws on a licensee's part, no such presumption would exist on the part of the purchaser.

 

3. Warrantless Inspections of Licensees' Records and Inventory. (a) The prohibition against unannounced inspections would enable unscrupulous licensees to conceal violations of the law; (b) limiting compliance inspections to a single, annual inspection would have the same result and would be too infrequent to ensure compliance; and (c) the prohibition against use of evidence uncovered in such inspections in prosecutions for other than willful recordkeeping violations and sales to proscribed categories of persons would preclude prosecutions for serious crimes discovered, e.g., narcotics offenses, illegal possession of machineguns and silencers, illegal interstate firearms sales.

 

4. Recordkeeping. The bill's provision allowing licensees to dispose of firearms without maintaining records of such transactions, if the firearms have been in the licensee's personal collection for at least 1 year, would enable unscrupulous licensees to easily circumvent the recordkeeping requirements. Moreover, it would hamper law enforcement's ability to trace firearms and, hence, solve crimes. The exception for transfers into a personal collection to 'evade' the recordkeeping requirements could not, as a practical matter, be proved.

 

5. Records in the Custody of the Government. The bill provides that licensees' reports to the Government and out-of-business records may not be kept by the Secretary at a central location. The requirement to decentralize the storage of such records is totally

 

         [end p. 18]

 

19

 

unnecessary and, from an administrative standpoint, is costly and burdensome.

 

6. License Denial and Revocation. The bill would not permit license denial or revocation on grounds for which that applicant or licensee was prosecuted in a criminal case and acquitted. Because the burden of proof on the Government is less stringent in civil actions, a civil license denial or revocation proceeding should not depend on the outcome of the criminal case. No constitutional rights are violated by the civil proceeding when the applicant or licensee was previously acquitted of criminal charges.

 

7. Forfeiture. (a) The bill would generally preclude forfeiture of firearms on grounds for which the owner or possessor was prosecuted in a criminal case and acquitted. Because the burden of proof on the Government is different in civil actions, a civil forfeiture of the firearms should not depend on the outcome of the criminal case. No constitutional rights are violated by the forfeiture of firearms subsequent to the owner's or possessor's acquittal of criminal charges. United States v. One Assortment of 89 Firearms, 465 U.S. 354 [FN12a] (1984). (b) The bill would allow the seizure and forfeiture of firearms 'intended to be used' in a violation of the GCA only in connection with certain specified offenses. The list of specified crimes is too narrow, e.g., while firearms intended to be received by persons under indictment may be seized, firearms intended to be received by persons such as felons, fugitives, mental incompetents and illegal aliens would not be subject to seizure and forfeiture.

 

8. Relief from Disabilities. Current law provides for the Secretary's granting of relief from Federal firearms disabilities to persons convicted of crimes punishable by imprisonment for a term exceeding 1 year. The bill would extend the right to apply for relief to other proscribed persons, e.g., fugitives, adjudicated mental incompetents, illegal drug users and addicts, and illegal aliens, and provide for de novo judicial review of administrative action denying relief.

 

9. Interstate Transportation of Firearms. The bill allows the transportation of an unloaded, inaccessible firearm in interstate commerce notwithstanding any State law to the contrary. This provision would erode the integrity of State laws and impede the efforts of State and local law enforcement officials to enforce such laws. In other words, State prosecutors will find it difficult to rebut violators' contentions that their firearms were moving in interstate commerce. Issues raised in State prosecutions relative to when interstate commerce began and when it ended will be difficult to resolve. Furthermore, a prosecution involving a purely intrastate transportation of a firearm may be defeated by the possessor's contention that an interstate journey with the firearm had just commenced.

 

10. Penalties for Violation GCA. (a) The bill provides a knowledge or intent element of proof with respect to all GCA offenses, 'knowledge' as to some and 'willfulness' as to others. Willfulness may be interpreted to mean knowledge of the requirements of law and the specific intent to violate legal requirements. The willfulness element would make it extremely difficult to successfully prosecute many cases, e.g., a nonlicensee's illegal interstate firearms purchases. (b) By reducing all licensee recordkeeping violations to

 

         [end p. 19]

 

20

 

misdemeanors, serious violations could not be adequately prosecuted and punished, i.e., a dealer's sale of firearms off-record and his willful refusal to make or maintain any required record could only be prosecuted as misdemeanors.

 

11. Mandatory Penalties for Criminal Misuse of Firearms. The bill weakens the existing mandatory penalty provision relative to the use or carrying of firearms in commission of a Federal crime of violence by: (a) adding an element to the carrying offense that the carrying be 'in furtherance of' the violent crime (existing law already requires that the carrying be 'in relation to' the underlying crime); and (b) allowing the court to avoid imposing the penalties if the defendant acted in self-defense. Relief from the mandatory penalties would occur after the defendant has been found guilty of using a firearm to commit a violent Federal crime. Moreover, the penalties could be removed even though the defendant failed to prove self-defense as a defense to the violent crime. The bill may be interpreted to allow a fleeing felon to avoid the penalties where he used a firearm to make his escape.

 

12. Definition of Conviction. The bill provides that what constitutes a felony conviction would be determined by the law of the jurisdiction where the conviction occurred. This would require the Bureau to examine the peculiar laws of each State to determine whether a person is convicted for Federal purposes. Further, any conviction which has been expunged or pardoned would not be considered a disabling offense under GCA. Under present law, State pardons and State court proceedings which set aside a plea or verdict of guilty upon a successful completion of probation do not eliminate the underlying conviction insofar as Federal law is concerned and such a person must still apply for and receive relief from Federal firearms disabilities.

 

13. Collector Recordkeeping. The bill would require that licensed collectors maintain only a record of acquisition and disposition of firearms, i.e., the so-called 'bound book.' Firearms Transaction Records, Forms 4473, executed by the purchaser and used by the seller to establish the purchaser's eligibility and identity would be eliminated. The Act was recently amended to permit the importation of surplus military curio or relic firearms and since 1984 thousands of such weapons have been imported.

 

Many of these weapons now eligible for importation are standard military weapons manufactured as late as 1945. Because of these influx of the weapons into the country, law enforcement's need for licensed collectors to maintain Forms 4473 still exists.

 

In your assessment of the accuracy of the above analysis of the bill's strengths and weaknesses, you should be aware that we have primarily approached it from the standpoint of its ease of administration and its impact on law enforcement. The firearms industry (including licensed dealers), the various special interest groups, and other concerned and affected members of the public in all probability view our concerns from an entirely different perspective. Accordingly, they may well perceive strengths where we see weaknesses and vice versa. Nevertheless, I hope the above analysis will better prepare you to address questions concerning the bill over the months to come.

 

         [end p. 20]

 

21

 

I believe that the appropriate role of ATF is to provide technical and professional comments to you and other decision makers. Whatever the final outcome, we will enforce the law (and any changes) as effectively as we can within existing resources.

 

                  STEPHEN E. HIGGINS.

 

ACTION BY THE SUBCOMMITTEE ON CRIME

 

The Subcommittee caucused on March 4 and 5, 1986 and determined to develop its own bill to address the needs of the firearms using community and the needs of law enforcement. On March 5, 1986, Mr. Hughes introduced H.R. 4305, the Federal Firearms Law Reform Act of 1986.

 

The Subcommittee on Crime marked up H.R. 4305 on March 6, 1986. Five amendments were adopted by the Subcommittee (discussed in the section by section analysis). The bill was approved unanimously and ordered reported as a clean bill. It was introduced on March 6, 1986 as H.R. 4332.

 

ACTION BY THE COMMITTEE

 

On March 11, 1986, a quorum being present, the Committee on the Judiciary approved H.R. 4332 by a recorded vote of 35-0 with an amendment in the nature of a substitute.

 

SECTION-BY-SECTION ANALYSIS

 

Section 1 is the short title.

 

Section 2. Prohibition on transfer and possession of silencers

 

(a) The definition of silencer is amended to include any part designed or redesigned and intended to be used as a silencer for a firearm. This will help to control the sale of incomplete silencer kits that now circumvent the prohibition on selling complete kits.

 

(b) This section prohibits the transfer and possession of silencers after the effective date of the Act not lawfully possessed on the effective date.

It allows current possessors of lawfully registered silencers to continue their legal possession and transfer such registered silencers in conformity with the law (the National Firearms Act).

 

The Subcommittee began examination of the criminal misuse and availability of silencers at a hearing on May 24, 1984. As of May 24, 1984 there were 12,801 silencers lawfully possessed and registered with the Secretary of the Treasury pursuant to the National Firearms Act. Yet during FY 1983, a total of 916 silencers were taken into custody by BATF, a significantly large number in comparison to the total number of legal silencers. [FN13]

 

This provision is substantially different from a provision relating to silencers in H.R. 3155 in that the status of all legally possessed silencers remains unchanged. The Committee adopted an amendment

 

         [end p. 21]

 

22

 

eliminating authority for the Secretary of the Treasury to purchase silencers that may be surrendered to the Secretary.

 

(c) This subsection conforms the definition of the terms 'firearm' in the Gun Control Act and the National Firearms Act to the amendments made by subsection (a). Paragraph (3) extends the current provisions of the Gun Control Act (i) prohibiting non-licensees from transporting, in interstate or foreign commerce, machine guns short-barreled rifles, short-barreled shotguns and destructive devices (except as specifically authorized by the Secretary consistent with public safety and necessity) to silencers, (18 U.S.C. 922(a)(4)) and (ii) prohibiting a licensee to sell or deliver a destructive device, machine gun, short-barreled rifle and short-barreled shotgun to any person (except as specifically authorized by the Secretary consistent with public safety and necessity) to silencers (18 U.S.C. 922(b)(4)).

 

Section 3. Lawful interstate sale of long guns

 

This section modifies the limitation in 18 U.S.C. 922(b)(3) on licensees to sell firearms to persons who do not reside in the State in which the licensee's place of business is located to permit sale or delivery of any rifle or shotgun to a non-resident if 'the transferee meets in person with the transferor to accomplish the transfer' and the sale, delivery and receipt fully comply with the legal conditions of sale in both States. Licensees shall be presumed, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States.

 

This section was added by amendment offered by Rep. Shaw adopted by the Subcommittee on Crime. It is adapted from H.R. 945/S. 49.

 

Section 4. Unlawful sale, possession, or receipt of firearms and ammunition-- extension of prohibition on sale to unqualified persons

 

This section makes it a crime for any person to transfer a firearm to another person knowing that such other person is unqualified. This section extends the prohibition which now applies only to Federal firearms licensees to all persons who transfer a firearm. (Current 18 U.S.C. 922(d) prohibits licensees to sell or dispose of firearms to anyone in one or more of four classes of unqualified persons 'knowing or having reasonable cause to believe' that such person is unqualified.)

 

The Committee adopted an amendment offered by Mr. McCollum to set forth only a knowing state of mind for non-licensees which would require slightly more culpability than the 'knowing or having reasonable cause to believe' standard carried forward for licensees. [FN14]

 

         [end p. 22]

 

23

 

This section also combines in one section (18 U.S.C. 922(g)) all of the offenses related to sale of firearms to unqualified persons, and offenses of receipt, possession and transport of firearms by unqualified persons (or their employees) now divided between Title I of the Gun Control Act (18 U.S.C. 922(d), (g) and (h) and Title VII of the Omnibus Crime Control and Safe Streets Act (18 U.S.C. 1202(a) and (b). The Committee adopted technical amendments carrying forward the prohibition in 18 U.S.C. 1202(b) in this section and substituting the phrase 'has renounced' for the work 'renounces'.

 

Persons are now unqualified from receiving, possessing or transporting firearms in interstate or foreign commerce or firearms which have been shipped or transported in interstate or foreign commerce if they are or have been:

 

(1) under indictment for or convicted of a felony; [FN15]

(2) a fugitive from justice;

(3) an unlawful user of or addicted to any controlled substance (N.B., infra);

(4) adjudicated as a mental incompetent or committed to any mental institution;

(5) discharged from the Armed Forces of the United States under dishonorable conditions;

(6) has renounced their United States' citizenship; or

(7) an alien illegally in the United States.

 

(N.B. This section also replaces and correctly modernizes the prohibition on receiving firearms or ammunition by a person 'who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 201(v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954)' by substituting 'who is an unlawful user of or addicted to a controlled substance as defined in the Controlled Substances Act.' Current law does not include hallucinogenic drugs that were controlled by the Controlled Substances Act, including the violence-inducing drug phencyclidine (PCP), various tranquilizers, designer drugs and other substances that have been added to the schedules of controlled substances.)

 

In subsection (b) Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 is repealed. The Armed Career Criminal Act of 1984, which was an amendment to title VII would be reenacted by section 8 of this bill. Section 923(d)(1)(B) of title 18, U.S.C., which authorizes the Secretary to deny a license under the Gun Control Act if a person is unqualified from receiving, shipping or transporting a firearm, is amended to conform to the changes made in this section.

 

This section is adapted from H.R. 945/S. 49.

 

         [end p.23]

 

24

 

Section 5. Gun show sales

 

This section creates a new subsection (18 U.S.C. 922(h)) to permit the sale of a firearm to a person who does not appear in person at the licensee's business premises (in addition to the exception in 18 U.S.C. 922(c)) to permit sale in person at a temporary gun show or event sponsored by organizations devoted to, or that sponsor events devoted to, the collection, competitive use, or other sporting use of firearms and the location of the sale is in the state in which the licensee's business premises are located. Records of such dispositions of firearms shall be kept in the permanent records of the licensee at the location specified on the license. Business may not be conducted from a motorized or towed vehicle.

 

The Committee adopted an amendment offered by Mr. McCollum providing that any inspection or examination of inventory or records under this chapter by the Secretary at such temporary location shall be limited to inventory consisting of, or records relating to, firearms held or disposed at such temporary location. (The current provisions of 18 U.S.C. 922(h) are transferred to section 922(g) of title 18 U.S.C. by the amendment in section 4 of this bill.)

 

Subsection (b) of this section prohibits the Secretary from imposing any additional license fees (under 18 U.S.C. 923(a)) upon dealers who exercise the privilege of engaging in business at a temporary gun show or event.

 

This section is from H.R. 945/S. 49.

 

Section 6. Prohibition on the importation of Saturday Night Special barrels

 

This section expands the current prohibition in 18 U.S.C. 923(1) on the importation of key components of 'Saturday night specials' to ban the import of barrels for Saturday night specials. 18 U.S.C. 922(1) prohibits the importation of any firearm that is not imported under the provisions of 18 U.S.C. 925(d) which generally requires that the firearm be 'generally recognized as particularly suitable for or readily adaptable to sporting purposes.' The Secretary has determined that handguns commonly know as 'Saturday night specials' are not so recognized, and thus may not be imported. The frames and receivers of firearms are considered firearms under the definition of the term 'firearm' (18 U.S.C. 921(a)(3)) and thus cannot be imported currently.

 

The Attorney General's Task Force on Violent Crime specifically recommended that the importation of the unassembled parts of Saturday night specials be prohibited. [FN16]

 

This section is taken from S. 49.

 

         [end p. 24]

 

25

 

Section 7. Administrative flexibility for invoking license-related penalties and other licensing-related matters

 

(a) This subsection limits the Secretary to requiring information on applications for licenses only that information necessary to determine eligibility for licensing.

 

This provision is taken from S. 49 and was added by amendment adopted by the Subcommittee on Crime.

 

(b) This subsection aids law enforcement by broadening the circumstances to be reviewed by the Secretary in approving applications for a license under the GCA. Currently applications for a license cannot be approved if the applicant is prohibited from transporting, shipping, or receiving firearms or ammunition under Federal law. The bill permits the Secretary to deny a license application if the applicant is 'prohibited by applicable State law from engaging in conduct necessarily incident to business subject to license' under the Gun Control Act (for example, relating to the receipt or transportation of firearms under State law, collecting state sales taxes, or otherwise operating a business). It makes no sense for the Secretary to have to issue a license for a person to engage in business in a State when the Secretary is aware such person is forbidden by the law of that State from engaging in that business, or any other business.

 

This subsection is taken from H.R. 3155.

 

(c) Administrative Flexibility for Invoking License--Related Penalties:

 

This subsection gives the Secretary an alternative, less severe sanction that may be used to punish less serious violations of the Gun Control Act by licensees. It would allow the Secretary to suspend a license as an alternative to the sole penalty now available of revocation of the license. Revocation would remain an available sanction where appropriate. This subsection is taken from H.R. 3155.

 

Subsection (d) limits the number of compliance inspections the Secretary may conduct to not more than three in any 18 month period unless the Secretary or the Director of the Bureau of Alcohol, Tobacco, and Firarms personally approves such inspection. The authority to approve compliance inspections in excess of three in any 18 month period may not be delegated below the level of the Director of the Bureau of Alcohol, Tobacco and Firearms. This limitation was adopted by an amendment offered by Mr. McCollum and adopted by the Subcommittee on Crime.

 

Section 8. Modification of penalty provisions and reenactment of armed career criminal provisions

 

Paragraphs (1) and (2) require proof of a knowing state of mind for the prohibited conduct for the felony violations of the GCA. Case law interpreting the criminal provisions of the Gun Control Act have required that the government prove that the defendant's conduct was knowing, but not that the defendant knew that his conduct was in violation of the law. [FN17] It is the Committee's intent,

 

         [end p. 25]

 

that unless otherwise specified, the knowing state of mind shall apply to circumstances and results. This comports with the usual interpretations of the general intent requirements of current law. [FN18]

The Committee specifically rejected the proposals in S. 49 and H.R. 945 that a standard of 'willfulness' be adopted as a state of mind requirement for certain offenses. It had been suggested, in support of the state of mind formulations in S. 49, that 'A firearms law concerned about right and wrong and those who do evil will make intent to do evil, an element of the violation.' [FN19] Yet the criminal law traditionally does not require proof that the defendant knew that his conduct was in violation of the law [FN20] or that the defendant intended to violate the law. [FN21] In fact the term 'willful' fails to give courts any clear guidance of the scienter required. '[T]he term 'willful' has been construed by the courts in a variety of ways, often inconsistent and contradictory. The courts have defined a 'willful' act as an act done voluntarily as distinguished from accidentally, an act done with specific intent to violate the law, an act done with bad purpose, an act done without justifiable excuse, an act done stubbornly, an act done without grounds for believing it is lawful, and an act done with careless disregard whether or not one has the right to so act.' [FN22]

 

This provision is adapted from H.R. 945/S. 49.

 

Misdemeanor penalty for violation of recordkeeping requirements

 

Paragraph (3) reduces the penalty for knowing violation of recordkeeping requirements of the Gun Control Act (18 U.S.C. 922(b)(5) and 922(m)), and for violation of the requirement that the licenses be kept posted (18 U.S.C. 923(h)), to a misdemeanor.

 

This paragraph is adapted from H.R. 945/S. 49.

 

This section reenacts the Armed Career Criminal Act of 1984 to conform to the amendments made by section 4. The Armed Career Criminal Act is consistent with Recommendation 21 of the Final Report of the Attorney General's Task Force on Violent Crime regarding Federal prosecution of felons apprehended in the possession of a firearm. [FN23] This avoids a defect of H.R. 945 which would have repealed that act.

 

         [end p. 26]

 

27

 

 Section 9. Recordkeeping and reporting amendments

 

(a) Eliminate ammunition sale recordkeeping

 

This subsection would eliminate recordkeeping in the sale of ammunition in quantities of less than 1,000 rounds except for armor-piercing ammunition. This would eliminate extensive recordkeeping which serves no law enforcement purpose. (The House passed on December 17, 1985, H.R. 3132, The Law Enforcement Officers Protection Act of 1985, to control the manufacture, importation and sale of armor-piercing ammunition. The Senate passed H.R. 3132 with an amendment in the nature of a substitute (the text of S. 104, as amended) on March 6, 1986. The recordkeeping exception for armor-piercing ammunition is in recognition of the serious threat presented to law enforcement officers by the availability of armor piercing ammunition and in anticipation of the enactment of additional controls on such ammunition.)

 

This approach avoids the total decontrol on the sale of ammunition that would result from the amendments of H.R. 945 and S. 49. Under that approach, no license would be required for the sale of ammunition.

 

This provision is adapted from H.R. 945 and S. 49, and H.R. 3155.

 

(b) Codification of existing regulation requiring reports of multiple firearm sales

 

This subsection enacts the current regulation requiring multiple firearms sales, adding it to 18 U.S.C. 923(g). [FN24] This provision is taken from S. 49 and was added by amendment offered by Rep. McCollum and adopted by the Subcommittee on Crime.

 

Section 10. Mandatory penalty for the use of a firearm, or the use or carrying of a firearm loaded with armor-piercing ammunition, during and in relation to drug trafficking crimes

 

(a) This subsection provides that whoever uses or carries a firearm during and in relation to the manufacture, distribution, or importation of controlled substances shall be subject to a mandatory prison term of five years in prison. This section expands the coverage of the mandatory prison term for using or carrying firearm during and in relation to a Federal crime of violence enacted in October 1984. This amendment is consistent with Recommendation 17 of The Attorney General's Task Force on Violent Crime that the mandatory prison term for the use of a firearm apply not only to the commission of crimes of violence but to the commission of Federal felonies generally. [FN25] This provision is adapted from S. 49.

 

(b) This subsection was added by amendment adopted by the Subcommittee on Crime to the mandatory penalty for using or carrying a firearm loaded with armor-piercing ammunition during and in relation to the commission of violent crimes (18 U.S.C. 929(a), enacted October 12, 1984) to cover such conduct during and in relation to drug trafficking crimes.

 

         [end p. 27]

 

28

 

Section 11. Enhanced penalty for machine gun use in crime and other machine-gun related matters

 

Subsection (a) adds a new manadatory prison term of ten years for using or carrying a machine gun during and in relation to a crime of violence or a drug trafficking offense for a first offense, and twenty years for a subsequent offense to the mandatory penalty provision of 18 U.S.C. 924(c).

 

Subsection (b) amends the definition of machine gun to include any part designed and intended to be used for converting any weapon into a machine gun. It amends the definition of machine gun in the National Firearms Act and defines 'machine gun' for the Gun Control Act by cross reference to the National Firearms Act. This will help to control the sale of incomplete machine gun conversion kits that now circumvent the prohibition on selling completed kits.

 

Section 11 incorporates a recommendation by the Administration. [FN26] This provision is also related to Recommendation 20 of the Attorney General's Task Force on Violent Crime regarding the easy conversion of semi-automatic weapons into fully automatic weapons. [FN27] This section is new to this legislation.

 

Section 12. Limitation on forfeiture of firearms to felony violations

 

This section limits the forfeiture of firearms permitted under 18 U.S.C. 924(d) only to those involved in or intended to be involved in felony violations of the law. This is a major narrowing of the current law which now permits forfeiture of firearms involved in or used in any violation of the Gun Control Act or its regulations. It addresses a major concern of firearms licensees who have, on occasion, had their inventory of firearms forfeited due to errors in the records required to be kept under the act.

This section is adapted from H.R. 945/S. 49.

 

Section 13. Broadened relief from disabilities

 

This section reforms the provisions of 18 U.S.C. 925(c) to improve the ability of the deserving members of the public to obtain relief from the legal disqualification from firearms ownership (possession or receipt).

 

The current law (Title I of the Gun Control Act, 18 U.S.C. 922(d), (g) and (h)) and title VII of the Omnibus Crime Control and Safe Streets Act (18 U.S.C. Appendix II, section 1202)) provides that seven categories of persons are unqualified from receiving, possessing, shipping, transferring, or transporting firearms in interstate or foreign commerce or which have been shipped or transported in interstate or foreign commerce. (See section 4 of this bill which amends 18 U.S.C. 922(g) and combines those provisions in a single subsection).

 

A procedure for relief from such disabilities (18 U.S.C. 925(c)) is now provided only for persons who have been convicted of certain felonies. The Gun Control Act did not permit persons convicted of

 

         [end p. 28]

 

29

 

felonies under the Gun Control Act, many of which are administrative in nature, to petition for relief of the disability. This omission has been felt to be an unjust discrimination by the sporting public.

The failure of the Gun Control Act to provide a procedure for relief of former mental patients resulted in a challenge to the validity of this disqualification for mental patients that was upheld by the United States District Court of New Jersey, and which is now on appeal to the United States Supreme Court. [FN28]

 

This section would allow any person in the disqualified class to petition the Secretary for relief of the disability.

 

This section is taken from S. 49.

 

Secondly, in the evolution of State law statutes are often enacted which have the effect of expunging criminal convictions for conduct that is no longer deemed criminal or felonious. The Secretary is empowered to declare that each person obtaining relief under such State law is relieved from disability under Federal law. This subsection was adapted from H.R. 3155 and was simplified by an amendment adopted by the Subcommittee on Crime.

 

Section 14. Interstate transport of rifles and shotguns

 

This section has been included to assure the right of an individual to travel in and between States with a rifle or shotgun, notwithstanding the firearms laws of those States (and any local jurisdictions through which such individual may pass), (1) if such individual can lawfully possess such a firearm: (2) if the rifle or shotgun is secured (it is enclosed or cased, it is not readily accessible, and it is unloaded); and (3) it is transported for the purpose of participating in or returning from legal hunting, shooting events, or sporting activity, or for changing such individual's State or residence.

 

This provision has been drawn very narrowly because it is preemption of the laws of the various States and their subdivisions. The Committee is very sensitive to the fact that many States and a great many local jurisdictions have enacted specific controls upon the carrying and transportation of handguns. Handguns are widely used to commit crimes of violence. According to the Attorney General's Task Force on Violent Crime, 77.8% of the firearm murders in the United States in 1978 involved the use of a handgun. [FN29] The Uniform Crime Reports since that time show that the involvement of handguns in murders committed with firearms has stayed at equally high levels. [FN30]

Many states have adopted comprehensive systems to control the manner in which handguns may be acquired, carried and transported. In fact some 8 States include in their State constitutional guarantee of a right to keep and bear arms a specific exception regarding the carrying of concealed weapons. [FN31]

 

Some 34 States require

 

         [end p. 29]

 

30

 

some form of a permit to carry a handgun. [FN32] Consequently the Committee was unwilling to extend this preemption to cover easily concealed firearms.

This provision does not exempt any resident of a state or local jurisdiction from any of the requirements of such State or local law.

 

This provision is adapted from H.R. 945/S. 49. An amendment was offered by Rep. Shaw and adopted by the Subcommittee on Crime to permit such travel with a secured rifle or shotgun for any lawful sporting activity.

 

Section 15. Record check for criminal convictions and other disqualifications for the purchase of handguns

 

This section provides for a notification to law enforcement authorities of a handgun purchase to permit a check of records of criminal conviction or other disqualification of the purchaser.

 

The notification is made by the licensee by mailing a copy of the form required to be filled out by the purchasers of firearms, (1) to the chief law enforcement officer of the place of residence of the purchaser, and (2) to the FBI. The form includes a sworn statement by the purchaser setting forth full name, sex, height, weight, race, residence address, date of birth, place of birth, and a declaration whether or not they are subject to any of the disqualifications of the law. (Representative of the type of form the Committee contemplates is Firearms Transaction Record Part I (ATF Form 4473 (5300.9) Part I (2-85))). The licensee completes the form by stating either that the purchaser is known to the licensee or that the purchaser identified himself in a manner described on the form specifying the type of identification (e.g. driver's license) and any number on the identification (which in many instances will be the purchaser's social security number). The FBI shall examine its criminal history records which may reveal a circumstance making illegal the receipt or possession of the handgun by the transferee. If the FBI finds evidence of such a disqualification, it shall notify such chief law enforcement officer.

 

The licensee may transfer the handgun as soon as is permitted under State and local law after the purchaser completes the necessary forms.

One of the major recommendations of the Attorney General's Task Force on Violent Crime (appointed by President Ronald Reagan's first Attorney General, William French Smith) was that the Gun Control Act of 1968 should be amended to prohibit 'dangerous individuals from acquiring firearms' by providing

That a waiting period be required for the purchase of a handgun to allow for a mandatory records check to ensure that the purchaser is not in one of the categories of persons who are proscribed by existing federal law from possessing a handgun. [FN33]

 

         [end p. 30]

 

The Task Force made a number of salient points. First, 'There is, at present, no effective method to verify a purchaser's eligibility.' Second, 'Since drug addicts, felons, mental defectives, and the like are not the best risk for 'the honor system,' a waiting period between the time of signing the presently required form and delivery of the handgun to the purchaser to verify the purchaser's eligibility is sensible and necessary to effectuate the purposes of the Acts.' (emphasis added). Third, '. . . to be effective there should be adequate record check methods available.' [FN34]

 

The Subcommittee on Crime and the Committee discussed the question of a waiting period extensively. Although there was strong support for a 15-day waiting period, there was also strong opposition, to some degree on the basis of the inconvenience to the prospective handgun purchaser, but in large measure based upon a concern that inclusion of a waiting period provision would preclude the establishment of a broad consensus in support of the Committee's bill.

 

As a compromise, the Subcommittee developed the approach included in this section to give to law enforcement the best possible means of learning when disqualified persons may be illegally acquiring handguns.

 

The Committee believes that this notification will provide support to law enforcement efforts to identify and prosecute armed felons. It will enable law enforcement resources to be directed against convicted felons known to have broken the law by buying a handgun.

 

All reports received under this section must be destroyed within 90 days of being received if there is no evidence that the receipt of the handgun by the transferee was illegal.

 

This provision is new and does not create a waiting period.

 

COMMITTEE APPROVAL

 

On March 11, 1986, a quorum being present, the Committee on the Judiciary approved H.R. 4332 by a recorded vote of 35-0 with an amendment in the nature of a substitute.

 

Footnotes

 

FN1 Hearings before the Subcommittee on Crime of the House Committee on the Judiciary on Firearms Legislation. (94th Cong. 2d sess., Feb. 18, 20, 27, March 5, 6, 13, 26, April 9, 14, 15, May 14, June 9, 10, 16, 23, July 17, 21, 23, 24, 25, September 24, October 1 and 9, 1985) Serial No. 11.

 

FN2 Hearings before the Subcommittee on the Constitution of the Senate Judiciary Committee on Gun Control and Constitutional Rights, 96th Cong. 2d sess. and Hearings of the Senate Committee on Appropriations on Oversight of the Bureau of Alcohol, Tobacco and Firearms, 96th Cong. 2d sess.

 

FN3 Hearings before the Senate Committee on the Judiciary on S. 1030, a bill to protect firearms owners' constitutional rights, civil liberties and right of privacy. (97 Cong. 1st and 2d sess., December 9 and 11, 1981; and February 8, 1982, Serial No. J-97-87.)

 

FN4 See 'State Laws and Published Ordinances--Firearms,' U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 16th Edition, December 1984.

 

FN5 Ibid.

 

FN6 S. 1030 and H.R. 3300 (97th Congress) both correctly defined the defense in terms of a 'reasonably' perceived immediate danger. H.R. 2420 (98th Congress) eliminated any reference to self-defense in this section, evidently relying upon the Common Law rule. H.R. 945 does not amend 18 U.S.C. 924(c) and thus it appears that Rep. Volkmer is satisfied with the Common Law rule.

 

FN7 Simpson v. United States, 435 U.S. 6, 10 (1978).

 

FN8 United States v. Freed, 401 U.S. 601, 607-610 (1971).

 

FN9 United States v. Currier, 621 F.2d 7, 9-10 (1st Cir. 1980).

 

FN10 See e.g. United States v. Gross, 451 F.2d 1355 (7th Cir. 1971), United States v. Swinton, 521 F.2d 1255 (10th Cir. 1975).

 

FN11 Galioto v. Department of Treasury, 602 F. Supp. 682 (D.C.N.J., Feb. 7, 1985).

 

FN12 Galioto v. Department of Treasury, 602 F. Supp. 682 (D.C.N.J., Feb. 7, 1985); ---- U.S. ----, 106 S.Ct. 307, jurisdiction noted, Nov. 4, 1985.

 

FN12a. 104 S.Ct. 1099, 79 L.Ed.2d 361.

 

FN13 Letter from Stephen E. Higgins, Director, Bureau of Alcohol, Tobacco and Firearms, U.S. Department of the Treasury, to William J. Hughes, Chairman, Subcommittee on Crime in Hearings of the Subcommittee on Crime on H.R. 641 and Related Bills: Armor Piercing Ammunition and the Criminal Misuse and Availability of Machineguns and Silencers (97th Cong. 2nd sess., May 17, 24 and June 27, 1984, Serial No. 153) at 210-211.

 

FN14 The requirement that the Government prove that prohibited conduct was 'knowing' has been held to include 'willful blindness.' United States v. Jewell, 532 F.2d 697 (9th Cir.), cert. denied, 426 U.S. 951 (1976); and United States v. Jacobs, 475 F.2d 270 (2d Cir.), cert. denied sub nom. Thayer v. United States, 414 U.S. 821 (1973).

 

Willful blindness requires an awareness of a high probability of the existence of the circumstance. (See United States v. Jewel, 532 F.2d 697, 700 n.7 (9th Cir. 1976) quoting Glanville Williams, Criminal Law:

A court can properly find willful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is willful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. (emphasis added).

 

FN15 Persons under indictment are prohibited from receiving or transporting firearms but may continue to possess them.

 

FN16 'Recommendation 19:

'Title I of the Gun Control Act of 1968 prohibits the importation of certain categories of handguns. However, the Act does not prohibit the importation of the unassembled parts of these guns, thereby permitting the circumvention of the intended purpose of this title of the Act. It is therefore recommended that the Act be amended to prohibit the importation of unassembled of handguns which would be prohibited if assembled.' Final Report of the Attorney General's Task Force on Violent Crime, U.S. Department of Justice, August 17, 1981 at 29.

 

FN17 United States v. Freed, 401 U.S. 601, 607-610 (1971).

 

FN18 'In a general sense . . . 'knowledge' corresponds loosely with the concept of general intent.' United States v. Bailey, 444 U.S. 394, 405 (1980).

 

FN19 Statement submitted to the Subcommittee on Crime of Mr. Jerry Prieser, President, Federation of New York State Rifle and Pistol Clubs, Inc., October 28, 1985, at hearing in New York City.

 

FN20 United States v. Currier, 621 F.2d 7, 9-10 (1st Cir. 1980).

 

FN21 Mr. Justice Holmes defined general intent, 'If a man intentionally adopts certain conduct in circumstances known to him, and that conduct is forbidden by the law under the circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent.' Ellis v. United States, 206 U.S. 246, 257 (1907). See also United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976), cert. denied sub nom. Ehrlichman v. United States, 413 U.S. 933 (1977); United States v. Byrd, 352 F.2d 570 (2d Cir. 1965).

 

FN22 Senate Rep. 97-307 to accompany S. 1630, The Criminal Code Reform Act of 1981 (97th Cong., 1st sess.) at 63-64. See also Working Papers of the National Commission on Reform of Federal Criminal Laws, July 1970, Vol. I at 148, and cases cited therein.

 

FN23 Recommendation 21, Final Report of the Attorney General's Task Force on Violent Crime, U.S. Department of Justice, August 17, 1981 at 30.

 

FN24 27 Code of Federal Regulations �� 178.126a Reporting multiple sales or other dispositions of pistols and revolvers.

 

FN25 Recommendation 17, Final Report of the Attorney General's Task Force on Violent Crime, U.S. Department of Justice, August 17, 1981 at 29.

 

FN26 Testimony of Stephen E. Higgins, Director of the Bureau of Alcohol, Tobacco and Firearms, U.S. Department of the Treasury, at hearings before the Subcommittee on Crime, February 19, 1986.

 

FN27 Recommendation 20, Final Report of the Attorney General's Task Force on Violent Crime, U.S. Department of Justice, August 17, 1981 at 29, 32.

 

FN28 Galioto v. Department of the Treasury, 602 F. Supp. 682 (D.C.N.J., Feb. 7, 1985); ---- U.S. ----, 106 S. Ct. 307, jurisdiction noted, Nov. 4, 1985.

 

FN29 Final Report of the Attorney General's Task Force on Violent Crime, U.S. Department of Justice, August 17, 1981 at 29-33, Recommendations 17-22; Report to the Nation on Crime and Justice: The Data, Bureau of Justice Statistics, U.S. Department of Justice, October 1983 at 14