Senate Floor Debates

Congressional Record ĺ─ţ- Senate

Proceedings and Debates of the 99th Congress, First SessionTuesday, July 9, 1985

[Begin Congressional Record Vol. 131 p. 18155;  note this is paginated to the bound, permanent edition , rather than the daily edition]

 

FEDERAL FIREARMS OWNERS PROTECTION ACT

The PRESIDING OFFICER. The clerk will report S. 49.

The assistant legislative clerk read as follows:

A bill (S. 49) to protect firearms owners' constitutional rights, civil liberties, and rights to privacy.

The Senate resumed consideration of the bill.

The PRESIDING OFFICER. Who yields time?

Mr. MCCLURE. Mr. President, I suggest the absence of a quorum, with time to be equally divided.

The PRESIDING OFFICER. Without objection, it is so ordered. The clerk will call the roll.

The bill clerk proceeded to call the roll.

Mr. HATCH. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. MCCLURE. Mr. President, in the heat of hammering out a piece of legislation as complex and controversial as the Firearms Owners Protection Act, it sometimes happens that the real reason for such an effort is forgotten. That reason is to protect honest firearms owners and dealers from the kind of abuse we have seen in the past. A bad law is like an accident waiting to happen. Real people have suffered, and we need to pause and remember a few of those real people.

Herb Van Buren, of Arizona, a collector, was persuaded to sell agents six firearms at several gun shows. Van Buren had no idea that, under various court decisions, this could be considered ĺ─¨engaged in the businessĺ─¨ of dealing in guns, which requires a license. He clearly had no criminal intent; he told one agent that he didn't even want to know anyone who would misuse a gun. He was convicted on Federal felony charges of dealing without a license.

Richard Boulin was a licensed gun dealer and private collector, veteran and former policeman. He was convicted of selling his private firearms without recording them in his business records. He was told by BATF agents that sales from private collection did not need to be recorded; while he was awaiting trial, the head of BATF made the same statement in a letter to Senator Hayakawa. He was convicted of an innocent act, so technical that even BATF's head thought it was legal.

The home of Bob Wampler, a Virginia corporate executive, was raided by BATF. The BATF confiscated his 70-gun collection-25 of which were antiques, and the remainder engraved, or gold inlaid. No criminal charges were brought. For 2 1/2 years he kept pushing for their return; BATF at one point threatened to prosecute if he didn't let them keep the guns. Nearly 3 years later, they returned them-all without any charges being filed.

David Jewell, of Denver, CO, had his expensive collection confiscated from his vehicle. The collection included a shotgun valued at $7,000. BATF, based on three sales over a period of months, charged him with dealing without a license. Although they dropped the charges in 1978, they did not return his guns until 1980.

These are only a few of the people who have suffered because of a law that does not do what it is supposed to do. The Gun Control Act of 1968 is snake oil. It is medicine that does not solve the ill of violent firearms abuse. It is about time we changed the dose.

The abusive enforcement of present Federal firearms law has been chronicled again and again. I have seen documented evidence in Senate hearings that makes very clear that when a law is loosely written, it can provide an irresistible temptation for the authorities to overstep the bounds of proper law enforcement, and seize citizen's property without due process, ruin them financially with endless redtape and litigation, and violate their constitutional rights.

We need to redirect law enforcement efforts away from what amounts to paperwork errors and toward willful firearms law violations that will lead to violent crime; for example, selling stolen guns, or selling firearms to prohibited persons. In order to work toward this goal, I have introduced the Firearm Owner's Protection Act, S. 914. I should like to point out some of the things this bill will do, once enacted into law:

Define ĺ─¨engaging in the businessĺ─¨ to clarify when dealers, gunsmiths, makers of ammunition and importers must have a license

Permit out of State purchase of firearms if the sale and possession are legal both in the State of purchase, and in the purchaser's State of residence.

Mandate an element of criminal intention for prosecution and conviction of Federal firearms laws violations.

Clarify procedures for dealer sales of firearms from his private collection.

Permit inspection of dealer's records for reasonable cause.

Require mandatory penalties for the use of a firearm during a Federal crime.

Limit seizure of firearms only to those specifically involved in a criminal transaction.

Provide for the return of seized firearms, and grant attorney's fees in spiteful or frivolous suits.

Allow the Secretary to grant relief from disability, and provide for judicial review of certain cases.

Remove requirement for affidavit for purchase of less than 50 pounds of black powder for sporting purposes.

Allow the interstate transportation of unloaded, inaccessible firearms.

Congressman VOLKMER and I worked extensively with the enforcement agencies during the last session of Congress to address their suggestions for changes in the law. The results of these negotiations have been incorporated into S. 49. Here are the most important:

ĺ─¨Importerĺ─¨ for the purposes of requiring a license is defined.

Unless a pardon expressly states that no firearms rights are granted, set aside, expunged or pardoned, convictions will regain these rights.

In interstate sales, a recipient may be prosecuted if he had reasonable cause to believe that he was violating the law. In a mail sale, parties must have met at least once, face to face except where otherwise permitted. Sales between nondealers not transacted through a dealer are eliminated. Presumption is provided that a dealer has knowledge of all published State or local ordinances. This refers to those laws published in the dealer rule book provided by BATF.

A dealer may sell a firearm from his private collection without doing paperwork after 1 year of transfer from his business stock. He cannot do this to evade paperwork. Inspections are permitted for reasonable cause or without warrant for tracing. Inspections for instructing dealers in proper record keeping procedures are permitted once in every 12 months.

An additional, but not mandatory sentence is provided for carrying a firearm during a Federal felony. Mandatory sentences are to be served consecutively. Forfeiture of seized firearms is allowed when criminal charges are not brought, or when they are voluntarily dismissed.

The Secretary may grant relief from disability. Judicial review of relief cases may be brought.

The legislative veto on regulations was dropped.

To wrap everything up, I think the Firearm Owners Protection Act is a measure that will bring us closer to sensible law enforcement, and the proper constitutional protection of honest American gunowners.

Mr. President, I ask unanimous consent that a statement by the distinguished Senator from Wyoming <Mr. WALLOP> be inserted in the RECORD, as if delivered, following my remarks at the opening of this measure.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. WALLOP. Mr. President, the need for protections such as those con-

 

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tained in S. 49 is carefully outlined in the January, 1980 issue of the legal journal ĺ─¨Case and Comment.ĺ─¨ This article discusses how many honest firearm collectors were victimized for actions which they believed were legal, and which most of us would probably believe were legal. Since the courts held that a person could be convicted despite the most innocent intent-one court even refused to let a collector prove he had relied on the advice of an attorney that his conduct was proper-many honest collectors were left with the brand of a felony record, a record which left them unable to touch a firearm for the remainder of their lives. I find it especially disturbing that one collector was convicted, let alone prosecuted, when the Government's own transcripts showed him telling the informant:

"I don't want to know anybody that does anything wrong with guns. No. I'm serious . . . I don't want, I would never want to contribute to anything that might make it look bad for all of us."

The collector was induced to sell five firearms from his collection. All five were sold legally, to a person legally entitled to own them, who assured the collector that he was a legitimate collector himself. But it was successfully argued that, although each sale was legal, the sales taken together amounted to dealing in firearms without a $10 dealer's license.

S. 49 would prevent legitimate collectors such as this gentleman from being convicted for unintentional and technical violations. Moreover, it would encourage the executive branch to use its power of clemency in cases such as these, so that the errors of the past may be repaired.

I aks unanimous consent to have the ĺ─¨Case and Commentĺ─¨ article printed in the RECORD.

There being no objection, the article was ordered to be printed in the RECORD, as follows:

GUN LAWS AND GUN COLLECTORS

(By David T. Hardy)

If firearm ownership is commonplace in America-and surveys repeatedly indicate that it is-then the firearm collectors comprise the aristocracy amid the popular movement. These collectors are virtually a ĺ─¨nation unto themselvesĺ─¨, with their own shows, at which they compete in display of their finest firearms, their own organizations, their own specialities-one may choose British military firearms 1760-1945, another may strive to obtain all calibers and chamberings of the Marlin 1893. There are also general collectors, and most specialists have a general collection ĺ─¨on the side,ĺ─¨ which may feature such favored pieces as the exquisitely crafted Parker shotguns (which begin at about $900), the Winchester Model 21 (the only American shotgun fitted to the individual's dimensions; the ĺ─¨economyĺ─¨ line starts at $3,500), or scarce ĺ─¨ presentation pieces,ĺ─¨ engraved and inlaid pieces given by inventors and companies to both Eastern and Western national leaders (Samuel Colt, in the 1870's and 1880's created quite a few of these pieces). They have their own magazine now, independent of all other firearm publications, in which it is not uncommon for a collector to take out a full page, tastefully illustrated advertisement to attract other collectors for purchase or exchange of a few unneeded pieces 

Even individuals who support strict firearm regulation might well be tempted to consider these individuals a relatively riskless segment of the population. Persons bent upon robbing a drugstore simply do not seek a Winchester 21; domestic homicides are unlikely to be settled at dawn with a cased pair of Durs Egg flintlock duelling pistols. Indeed, the federal agency which enforces the firearm laws, the Bureau of Alcohol, Tobacco and Firearms (BATF), has repeatedly claimed that criminals predominantly use cheap handguns-valued under $50, caliber .32 or less, barrel 3 inches or less. No true collector would even use one of these as a paperweight: the risk of being seen with it by other collectors would be too great. 

LAW ENFORCEMENT AGAINST COLLECTORS 

It is therefore surprising to note that federal agencies enforcing firearm laws have often appeared to devote a large amount of their energies to sending such collectors to jail, and confiscating their collections. It is even more surprising to discover that the federal government itself is becoming a large-scale collector-its collection established primarily by choice items appropriated, without compensation, from these collectors.

In part, the collector's very law-abiding qualities make them perfect targets for law enforcement. The BATF has been faced with some unique bureaucratic difficulties of late. Since 1972, the skyrocketing prices of sugar, main component of ĺ─¨moonshineĺ─¨, has drastically curtailed illegal brewing. Between 1972 and 1978, the number of ĺ─¨stillsĺ─¨ raided by BATF dropped from nearly 3,000 to only 381. The Bureau suddenly saw itself faced with obsolescence of its traditional area of enforcement, a rather unique experience in law enforcement (one may imagine the consternation at the Drug Enforcement Administration if the entire drug-using populace suddenly turned to meditation or alcohol). Self-preservation dictated a sudden increase in firearm enforcement. But agents seeking to push up their ĺ─¨body countsĺ─¨ of arrests and firearms seized were faced with serious problems. To invade fields where firearms are feloniously used is apt to prove quite dangerous; it also takes time, and this is unavailable when Washington makes it clear that arrests in your district must be doubled within the next year. A safe and easy target had to be located.

DEALER DEFINED

Agents therefore quickly evolved a method of entrapping collectors, through a technique which I term ĺ─¨implied dealershipĺ─¨. This depends upon a clause in the 1968 Gun Control Act which provides that ĺ─¨dealersĺ─¨ in firearms must be federally licensed, and makes it a felony to conduct business as a ĺ─¨ dealerĺ─¨ in firearms without such license. Private sales of one's own property by a nondealer are not subject to federal licensing.

The statute contains no definition of ĺ─¨dealerĺ─¨. Nor do the Bureau regulations, ostensibly promulgated to clarify and enforce the statute, provide such definition. Since 1972, the Bureau has actively discouraged applications for licensing, in a political move to create an impression of reduction in ĺ─¨ firearms trafficĺ─¨. Under its regulations, for example, the applicant must have business premises separate from his residence and must keep regular ĺ─¨business hoursĺ─¨.

Collectors who reported sales only to other collectors and hours ĺ─¨by appointmentĺ─¨ soon found their licenses being revoked. Moreover, a ĺ─¨dealer'sĺ─¨ premises are statutorily subject to search, without warrant or probable cause. Collectors, who asked whether licenses were needed, were usually informed that five to ten firearms sales per year did not constitute acting as a ĺ─¨dealerĺ─¨.

Actually, while the statute has no definition, federal appellate courts have defined ĺ─¨dealerĺ─¨ very broadly. They have repeatedly noted that there is no minimum number of sales necessary; that no minimum level of profit from sales of firearms is essential, and that the sole question is whether the jury believes the accused citizen to have engaged in ĺ─¨any businessĺ─¨ of selling firearms. The Bureau has frequently obtained collections on as few as four to six sales per year, and these actions have been universally upheld.

OBTAINING EVIDENCE

The agents thus can easily lead an individual, who all the while believes he is obeying the law, into a felony indictment. Undercover agents approach the collector at a gun show. Their routine is already choreographed and has been tested in previous cases. Different agents may make one or two purchases at this gun show, followed by a few more at the next gun show, until four to six sales are obtained. The agents offer a very high price, and purchase with little bargaining; thus the collector can easily be shown to have made a profit on their sale. As ĺ─¨icing on the cakeĺ─¨, they may lead the collector into stating that he could obtain an additional firearm from a different collector for them; at this point he is acting as a broker for matter not already in his collection.

After the evidence is obtained, the collector is indicted on felony charges. The burden on him is immense. Legal defense costs usually run between $3,000 and $20,000. Conviction on the felony count means total loss of right to possess firearms within the United States. It also carries a penalty of 5 years imprisonment and a $5,000 fine.

In an effort to add to these burdens, the Bureau generally confiscates the collector's prize collection. This is done under a provision of the Act which permits confiscation of firearms ĺ─¨involved in or used in or intended to be used inĺ─¨ any violation. The confiscation puts additional financial pressure on a collector who may already be impoverished by the legal costs.

These activities have been frequently reported among collectors, but little work to compile and analyze them has been done. Recently, I have had the privilege of serving as project director to a Task Force seeking to compile a comprehensive report on Bureau activities, which report was sponsored by the Second Amendment Foundation. The objective evidence which was compiled on this particular activity provided compelling. I could not escape the conclusion that the Bureau had carefully preyed upon misinformation as to the status of the law, some of which had been given out by the Bureau's own agents, in order to entrap law-abiding citizens and confiscate substantial amounts of their private property for the Bureau's own collection!

 

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ENTRAPMENT

First, the Bureau seeks to entrap law-abiding individuals who would not disobey the law, if it were not for the agent's activities and deception; it does not aim entrapment at individuals who would violate the law anyway and are but given an opportunity. Many of the individuals contacted, in various part of the nation, with no opportunity to confer with each other, reported acting on advice of agents that five or ten sales per year of their own firearms did not constitute ĺ─¨dealingĺ─¨. In one especially well documented case, we obtained a government transcript of a recording of the defendant speaking to the agent. ĺ─¨I don't want to know anybody what does anything wrong with guns. No, I'm serious. I collect, and, to me, there's a lot of fine people collecting. Several chiefs of police, several detectives here, and otherwise. . . . I don't want, I would never want to contribute to anything that might make it look bad for all of us. . . . There's a few people who are making it look bad for the many.ĺ─¨

This individual was enticed into the sale of a sufficient number of firearms, his collection was confiscated at a gun show, and, when he filed suit for their recovery eight months later, an indictment was handed down within ten days. He is today a felon on probation. Given that ĺ─¨the first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to crime . . .ĺ─¨, the entrapment of an individual of this type, solely for the virtue of increasing a ĺ─¨body countĺ─¨ of convictions and confiscations, is hardly justifiable conduct on the part of a public agency.

CONFISCATION

A second reprehensible aspect of the BATF attack on collectors is the tendency to focus on large and expensive collections. Confiscations tend to center upon these collections to the exclusion of the cheap firearms which the Bureau so often claims are the roots of violence. During the course of the Second Amendment Foundation study, I utilized the Freedom of Information Act to obtain copies of the Bureau's ĺ─¨Reports of Property Subject to Judicial Forfeitureĺ─¨, which gave inventories of seizures by collector name, value, firearms, and ultimate disposal. A few examples will suffice. In one, the Bureau confiscated 83 firearms from a Pennsylvania collector. The Bureau's own appraisal fixed the vlaue at $18,020.00. The collection was devoted primarily to antique Marlin rifles, especially the 1893 model, although some 1881 models in .40-.62 caliber and an especially rare .30-.40 ĺ─¨baby carbineĺ─¨ were included. Only five of the 83 were handguns-and the average handgun appraisal was $116. A second major example also came from Pennsylvania. There, 136 firearms valued at $28,335.00 were taken. These included five Parker shotguns (one valued at $1,000), a Winchester model 21 (undervalued at $900), and a number of French and German collector shotguns. Private reports have also been received (from time frames outside of the period requested under the statute) of numerous confiscations; an Eastern collector reported a seizure of $10,000 worth of items; two years after the confiscation, he has neither been charged with any offense nor has the collection been returned. A South Carolina collector reported seizure of over 100 firearms valued at over $15,000.00. He was acquitted of charges. Two weeks after the acquittal, the Bureau served him with notice of intent to forfeit his collection, maintaining that the criminal acquittal did not bind them in subsequent ĺ─¨civilĺ─¨ forfeiture proceedings. (Further, three persons, in Connecticut, Arizona, and Nebraska, reported that their automobiles were seized on claims that they had used the vehicles to transport firearms).

OBTAINING COLLECTIONS

A third reprehensive aspect lies in the Bureau's use of its powers to furnish its own private collection. The reports obtained through the Freedom of Information Act requests showed that approximately one-third of the collections were being routed back to the BATF with the purpose of acquiring a ĺ─¨reference collectionĺ─¨. The two Pennsylvania seizures mentioned earlier alone contributed 75 firearms valued at $18,000 to this Bureau collection. The collection is not easily filled, obviously, especially with reference to the expensive shotguns; the Bureau apparently needed no less than five Parkers, three of the same gauge. Modern firmearms are also found useful. One report from a Texas case disclosed a seizure of 86 firearms valued at over $20,000.00. The local Bureau office chose to keep 48 of these firearms for their local arsenal (and, presumably, for issue to the agents who confiscated them). Interest in filling this collection may explain the Bureau's tendency, reported by several collectors, to dismiss charges or permit pleas to a misdemeanor in the event the collector would permit them to keep the collection. These offers were transmitted through the prosecutor's office to the defense attorney's office; in several cases, I was able to contact the defense attorney and confirm that such offers had been made.

VINDICTIVE INTENT

Finally, some of the seizures appear to display a vindictive intent. In a famous Texas case, the agents seizing an expensive collection were seen to deliberately drop the firearms to the floor before storing them. Several firearms, in ĺ─¨as manufacturedĺ─¨ condition and unfired, were ĺ─¨test firedĺ─¨, greatly reducing their collector value. Despite the dealer's acquittal, agents refused to return the firearms. Even after judgment was rendered in the collector's favor on a civil proceeding, they still refused. Only after contempt proceedings were brought against them did they return the collection, then disclosing that it had been stored in a damp warehouse which had seriously rusted many of the finer pieces. A Colorado defendant reported, and his attorney confirmed, that his collection (including a Parker valued at $10,000) was thrown across the room as each firearm was booked in, and permitted to fall to a concrete floor. A Virginia defendant reported (and, once again, his attorney confirmed) that his firearms were thrown into a 50-gallon drum and wheeled to court in that manner. They were taken out and slammed down in a pile during the trial. When a request was made to treat them more gently, the result was only more violent treatment. In several cases in addition to the Texas one mentioned above, the Bureau refused to return firearms despite acquittal and then brought civil proceedings to confiscate the collection. Some collectors reported having to give up their collection because the criminal trial had exhausted their financial resources and the legal expense of the fight would be $2,000 or more. The collector, of course, does not recover his attorney's fees in the event he is acquitted, nor does he secure the return of the firearms. The Bureau, on the other hand, is served by attorneys paid from tax funds contributed to by the dealer.

Is this apparent focus on the law-abiding gun collector an isolated occurrence, or part of a general pattern? Since the Bureau does not itemize prosecutions by collector status, it is most difficult to tell. One might expect a rational, albeit, ruthless, administrator to focus upon these individuals. As noted above, they are generally naive sorts who believe that ĺ─¨ since I am law-abiding, I have nothing to fear from the lawĺ─¨, are unlikely to shoot informants, are easily arrested without violence, and in short, make a perfect target for a quick increase in arrests at minimal risk. What information we do have suggests that the Bureau has been assessing its probabilities in this manner. During Project CUE, the Bureau published breakdowns of prosecutions in certain cities. In Washington, DC, for example, out of 1,603 investigations, only 206 dealt with felons in possession of firearms, only 58 with stolen firearms, and only 20 with use of firearms in a felony. Of Chicago's 1,980 investigations, 135 dealt with felony possession, 54 with theft, and only 9 with use in a felony. Considering that studies have repeatedly documented that approximately 25 percent of handguns used in crime are stolen, one might expect that more than 3.6 percent of the Bureau's Washington investigations, for example, would deal with firearms theft. But we must reflect that catching firearm thieves and marketers of stolen firearms may be dangerous and difficult, hardly the type of thing to undertake when large numbers of quick arrests are needed.

CONCLUSION

In short, it appears that the Bureau of Alcohol, Tobacco and Firearms has devoted a significant portion of its investigative and law enforcement efforts to entrapping naive collectors of firearms, of a type unlikely to be contributing to criminal firearm markets. This campaign has enabled the Bureau to boast of impressive statistics of convictions and firearms seizures, with minimal effort and personal risk. It has also permitted the seizure of significant numbers of collector items, of which substantial numbers are appropriated, without compensation, for the Bureau's own collection. The underlying practice of encouraging, rather than avoiding, crime can hardly be justified: its exploitation for Bureau property gains, or as part of a vengeance motive, is even more repugnant.

Mr. SYMMS. Mr. President, JIM MCCLURE and I see eye to eye on many issues. Nowhere are we more staunch allies than in the battle to protect our second amendment rights. Like the majority of Idahoans, we believe that every honest American has the right to keep and use firearms for any legal purpose, whether for hunting, target shooting, collecting, self-defense, or old-fashioned tin-can plinking.

We also believe that the Government exists to serve the people, and not the other way around. This is the main theme of the Constitution. When agents of the Government take advantage of a badly written law to run roughshod over the constitutional rights of gun dealers and owners, they need to be brought up short, and the only way to do this is to change the law that gives them leave to violate the Constitution.

 

[Begin p. 18158]

 

The Firearm Owners Protection Act was conceived in the notion that law enforcement needed to be directed at the real criminals, not someone who makes an honest mistake in his bookkeeping. It was obvious that the hastily enacted Gun Control Act of 1968, which Senator MCCLURE's bill refines, made it easy for over-zealous agents of the Bureau of Alcohol, Tobacco, and Firearms to spend a lot of enforcement effort snooping out vioations so far removed from the general notion of gun crime that it would be funny, if the results were not so tragic.

The sponsors and proponents of the Gun Control Act of 1968 claimed that it would significantly reduce the rate of crime, particularly crimes involvng the use of firearms. It has not. Instead, between 1967 and 1982, the national homicide and handgun-homicide rates rose 50 percent, while robbery rates and robberies involving the use of firearms have nearly tripled. Clearly, the 1968 act has served to reduce neither the rate of violent crime nor the use of firearms in the commission of crime. It has, however, increased the regulatory burden imposed on law abiding American citizens-gun owners and dealers-and subjected those same citizens to the threat of severe penalties for technical violations of the law caused by inadvertent errors. We saw this clearly in a long series of hearings.

Every point in the Firearm Owners Protection Act is designed to correct a documented problem. Every point is aimed at directing law enforcement toward those violations of Federal firearms law that are most likely to contribute to violent firearms crime-those who knowingly sell to prohibited persons, those who knowingly traffic in stolen firearms. It's just not cost effective to allow law enforcement to follow its old pattern of snooping after minor paperwork errors.

Today, nearly half the households in America own some kind of firearm: estimates suggest that private citizens in this country own between 120 and 140 million guns. Mr. President, these people are not criminals. They are decent, responsible men and women, union members, business executives, doctors, lawyers, teachers, civil servants, elected officials-including a number of U.S. Senators and Representatives, and others too numerous to mention. Their guns are purchased for hunting, sporting activities, collecting, self-defense, and other legal purposes. These American citizens should not be the victims of Federal agents seeking to administer Federal law.

Yet, my colleagues in this body should be aware that the Senate Subcommittee on the Constitution has found that 75 percent of Federal firearms prosecutions are aimed at ordinary citizens who had neither criminal intent nor any knowledge they were breaking the law. The Gun Control Act of 1968 allows the unreasonable and unwarranted infringement of rights guaranteed to all Americans under the second amendment to the Constitution. It is an intolerable situation which we must act to correct.

Federal firearms law is a complicated matter. Fine-tuning this portion of Federal law is no simple matter. JIM MCCLURE has worked long and hard to come up with corrections that answer every objection. I think he has succeeded-this legislation was voted out of the Judiciary Committee unanimously. I urge my colleagues to follow the committee's lead and cast their votes for this bill, for the right of the American citizen to keep and bear arms, and, ultimately, for the protection or our Constitution.

Mr. HELMS. Mr. President, as a cosponsor of the Federal Firearms Owners Protection Act, S. 49, I hope this important legislation will be given overwhelming support by the Senate.

The Gun Control Act of 1968 was never intended to be a vehicle for Federal Government harassment of law-abiding American citizens who buy, sell, and own guns. Yet to a considerable extent that is what it has become. The pending legislation will correct many of the abuses which have occurred under the 1968 act.

Mr. President, the right to keep and bear arms has a long and honorable history in the United States. It is, of course, enshrined in the second amendment to the Constitution and was reckoned as fundamental by our Founding Fathers-both Federalist and anti-Federalist.

It is important that we who serve in the Senate in 1985 pause to remember why the founders of our country viewed the right to own guns as fundamental. Of course, they knew the importance of firearms for hunting-not just for sport but for supplying food for the family. They also knew that, in a largely frontier society, guns were vital for self-defense against common criminals who were a constant threat to the safety and survival of innocent law-abiding citizens.

Today, these same arguments are presented in support of preserving the rights of gun ownership, and properly so because they are valid arguments.

However, for the Founding Fathers, neither of these arguments was the overriding reason in favor of an armed citizenry. For them, the most important reason for gun ownership was political-that is, armed citizens constituted an effective hedge against tyrants. Fresh from their victory over the British, they had indelibly impressed on their minds the political importance of citizens who owned and knew how to use guns.

Mr. President, many in Washington today do not want to be reminded of this political function of gun ownership. After saddling the American people with nearly $2 trillion in Federal debt, failing to act effectively to stop the spread of Communist tyranny around the world, and presiding over the destruction of fundamental American values such as innocent human life in the womb, religious liberty, the institution of the family, the neighborhood school, and public morality in general, it is small wonder that the Washington establishment would prefer to ignore the political reasons for the right to bear arms 

But we should not ignore these reasons, and we especially should not ignore them at a time when the Government seems incapable of protecting its citizens against international terrorism. Surely it takes no great wisdom to see that American citizens-with the full freedom to buy, sell, and own firearms-will be safer in their persons and possessions against terrorism than citizens without such freedom.

Mr. President, so that this debate will not occur without reference to the historical foundations for the right to keep and bear arms, I ask unanimous consent that an article by Stephen P. Halbrook, entitled ĺ─¨To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1791,ĺ─¨ appearing in 10 Northern Kentucky Law Review 13 (1982), be printed in the RECORD-including footnotes-at this point.

 

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[Article reprinted in the Record at this point]

 

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Mr. ABDNOR. Mr. President, I rise to speak in support of the legislation offered by Senator MCCLURE, and I want the record to reflect that I have supported this legislation since the days when I served in the House of Representatives. I have been particularly concerned about the tendency of courts and the Department of Justice to misconstrue some of the provisions of existing Federal law. I believe this bill and my remarks will clarify the intent with which those provisions were adopted 

When the Congress enacted the Gun Control Act of 1968, it contained a requirement of firearm dealer licensing which was begun with the 1938 Federal Firearms Act. That provision, as codified today in title 18, United States Code, section 922(A)(1) provides that:

It shall be unlawful-for any person, except a licensed * * * dealer, to engage in the business of * * * dealing in firearms or ammunition * * *.

The act defined ĺ─¨dealerĺ─¨ as including ĺ─¨any person engaged in the business of selling firearms or ammunition.ĺ─¨ These persons were required to pay a $10 occupational tax to the Treasury and to maintain records of their firearm inventory and disposition. When Congress enacted that bill it clearly had in mind the ordinary and common definition of a dealer-a person to whom firearms transactions were a business-a regular livelihood, rather than one who owned for his own sport or pride, a firearms collection. It seemed unlikely that so small a burden would pose any serious problems for gun owners. But the sad fact is that these vague legal definitions have created problems for ordinary American gun owners, hobbyists, and collectors.

The statute ĺ─¨requires no minimum number of sales, dollar volume of sales, or number of employees to constitute engaged in the business.ĺ─¨ The end result is tremendous confusion over who should possess a FFL license and who need not, and I am glad that this legislation will once and for all end this nightmare for legitimate gun owners.

Mr. President, the reason I am so concerned about this legislation being enacted into law is the awful situation that Florida businessman Howard Shaw was placed in when the U.S. attorney in Jacksonville, FL, and the FBI, and the Department of Justice decided to go after him for minor inadvertent technical violations of the Gun Control Act of 1968, although President Reagan, Attorney General Meese, former Deputy Assistant Secretary of Treasury Powis and BATF Director Higgins have all made crystal clear that this administration will not make felons out of otherwise law-abiding gun owners and dealers. The U.S. attorney in northern Florida with full knowledge of the administration policy to the contrary chose to prosecute Howard Shaw for negligent and inadvertent recordkeeping errors. The Department

 

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of Justice indicted Mr. Shaw on 88 recordkeeping errors which would have sent him to jail for 440 years and cost him $440,000. Let me say right now that BATF looked at this situation with respect to Mr. Shaw and would have nothing to do with it. As a matter of fact internal BATF memorandums state that the ĺ─¨alleged violations were technical and minor and would not have met the ATF standards for a full FFL criminal investigation.ĺ─¨

Mr. President, I want to tell the Senate about this Shaw case because hopefully the legislation we pass today will prevent an injustice like this from happening again.

The case began in the summer of 1983 when Shaw, a successful businessman and skeet shooting champion, was called to testify before a grand jury in Tampa investigating political corruption of public officials in north Florida. Shaw, who was not a suspect in the case and who had no knowledge of the alleged activities, refused to testify.

Immediately thereafter, the U.S. Department of Justice and agents from the FBI seized Shaw's business records and his records as a federally licensed firearms dealer.

In September, a grand jury indicted Shaw, alleging 86 counts of recordkeeping errors and two counts of misstatements to inspectors of the Bureau of Alcohol, Tobacco and Firearms during a routine compliance check in 1978. According to court documents, all 86 recordkeeping counts charged that Shaw waited more than 1 day to record firearms sales and acquisitions, a Federal felony under the Gun Control Act. All the guns involved were high-priced collectors items, primarily shotguns Shaw used for competitive shooting. The other two counts were minor errors which BATF testified it felt no need to pursue. Each count carried a maximum penalty of 5 years in jail and/or a $5,000 fine.

While BATF had no interest in the case, the Justice Department embraced it with a vengeance. In addition to subpoenaing Shaw's business and FFL records, the Department of Justice would not allow Shaw to touch a gun or hunt while the matter was in litigation. Isn't that a touching deprivation of liberty?

On February 6, 1984, Shaw went on trial in the U.S. District Court for the Middle District of Florida. Shaw maintained he was unaware of Federal requirements which stipulated that gun transfers must be recorded within 1 day, and it was pointed out in court that Shaw did keep paperwork necessary to conduct a firearms trace if BATF requested one.

On February 8, U.S. District Court Judge Susan H. Black dismissed 3 of the 88 counts, but ruled that the other 85 must be decided by the 12-member jury. After only 2 hours deliberation, the jury chose a foreman and voted unanimously for acquittal on the first ballot.

After the acquittal, jury foreman Harry Sieman told the press that, ĺ─¨We didn't find any criminal intent in this case. It was just sloppy recordkeeping but no wrongful intent to deceive.ĺ─¨

According to the Florida Times-Union, one juror, who asked not to be identified, said prosecutors had ĺ─¨an untold motiveĺ─¨ in bringing the case. ĺ─¨It sounded like they couldn't get him on anything else so they charged him with this,ĺ─¨ the paper quoted the juror as saying.

Mr. President, the National Rifle Association is just as upset about the prosecution of Howard Shaw as I am. In Milwaukee, WI, on May 29, 1984, the Board of Directors of the NRA passed a resolution alleging that the Shaw case was an abuse of prosecutorial discretion and requested U.S. Senate hearings. I hope they get those hearings. I want the Senate, and the country, to know that the Department of Justice in this administration, in effect imposed a $100,000 fine upon Howard Shaw, for that was the amount he had to pay his lawyers for his successful defense in fighting off 440 years in prison and $440,000 in fines.

Mr. President, I ask that this NRA resolution be printed in the RECORD at the conclusion of my remarks, and I urge speedy adoption of this legislation and its enactment and signing into law by President Reagan. The last thing we want is another Howard Shaw case.

Mr. President, I ask unanimous consent that the attached resolution be printed in the RECORD.

There being no objection, the resolution was ordered to be printed in the RECORD, as follows:

[Resolution inserted here]

Mrs. HAWKINS. Mr. President, there was an article recently in the National Rifle Association's Monitor magazine which revealed the results of the most recent Department of Justice report on violent crime. These results are horrifying: Last year, nearly 1 in 4 U.S. households was victimized by violent crime.

According to the Bureau of Justice Statistics of the Department of Justice, urban residents fell victim to crime more often than those living in suburban or rural areas. In 1984, 1 out of 53 urban households was victimized by rape, robbery, or aggravated assault, compared to 1 in 111 suburban households. Only 1 in 200 rural households suffered a violent crime in 1984.

Although the total number of crime victims decreased in 1984, the Bureau of Justice statistics indicated that the number of households having a member victimized by rape increased by 33,000 compared to 1983.

Mr. President, these statistics represent an unacceptable situation. That is why I am working toward obtaining passage of S. 49, the Firearm Owners Protection Act of 1985. This proposal, considered by the full Senate today, is seen by many as vital to the protection of law-abiding gun owners and dealers throughout the country. With the violent crime that victimizes so many of American households, we must make sure that our right to self-protection is guaranteed. Under the present ambiguous language found in the Gun Control Act of 1968, this guarantee is not clearly provided. S. 49 would rectify this situation.

This proposal, introduced by my friend and colleague, Senator

 

[Begin p. 18167]

 

MCCLURE, and cosponsored by me, is designed to accomplish the following:

Define ĺ─¨engaged in the businessĺ─¨ of dealing in firearms to clarify who needs a Federal firearms license. Collectors who make occasional sales from their collections would not need a license;

Require that criminal intent be proved before citizens could be prosecuted for inadvertent violations of Federal firearms laws;

Protect against unreasonable search and seizure by requiring that reasonable cause exists before an inspection of dealer records;

Guarantee the return of all confiscated firearms after dismissal or acquittal of charges;

Clarify the law regarding dealer transactions from private collections;

Ease interstate sales of firearms-face-to-face transactions could take place as long as they are legal in the State of transfer and the State to which the gun is to be taken 

Allow interstate transportation of unloaded, inaccessible firearms;

Require mandatory minimum prison sentences for those convicted of using a gun during the commission of a crime.

Also, the Firearms Owners Protection Act of 1985 would redirect the efforts of the Bureau of Alcohol, Tobacco, and Firearms against criminals who misuse guns. The Agency has admitted that only 10 percent of its cases in recent years have been against felons in possession of guns or those selling to them.

S. 49 will not weaken existing Federal gun laws, but rather will strengthen provisions that prohibit certain classes of citizens from owning, possessing, or selling firearms. Persons in that class include criminals, adjudged mental incompetents, illegal aliens, dishonorably discharged military personnel, and drug or alcohol abusers

Mr. President, in total, this worthy proposal will provide all the protections necessary for law-abiding citizens that are missing from existing law. It would also strengthen current law by adding provisions directed against criminals and others who misuse firearms. I urge my colleagues not only to offer their support of S. 49, but also their active efforts to achieve this legislation's expeditious passage.

Mr. LAXALT. Mr. President, the right of Americans to own firearms has been recognized since the founding of our country. It is emphatically guaranteed against Federal encroachment by the second amendment. If this right is to be restricted or qualified in any way, the burden of showing the necessity for such qualification and the effectiveness of any proposed solution must be placed on those who propose it.

Consequently, I rise today in support of Senator MCCLURE's proposed legislation to amend the Gun Control Act of 1968 an restore the constitutional rights of honest, legitimate gun owners, and gun dealers. When Congress enacted the Gun Control Act, its intended purpose was to curtail criminal activity involving the misuse of firearms, not to place unnecessary restrictions on law-abiding citizens. The act clearly states:

It is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens of law-abiding citizens with respect to the acquisition, possession, or use of firearms for the purpose of hunting, trapshooting, target shooting personal protection, or any other lawful activity. ĺ─Â.

The 1968 act has, however, created numerous administrative and enforcement problems because of poor draftsmanship. As outlined in testimony before the Senate Judiciary Committee, the enforcement of the act's restrictions has resulted in infringements of basic individual civil liberties, such as abusive search an seizure practices and unwarranted prosecutions for mere technical violations of the law. S. 49 addresses these problems; it seeks to direct law enforcement efforts toward those firearms transactions most likely to contribute to violent crime.

The Federal Firearms Owners' Protection Act is a comprehensive, well-rounded package of badly needed legislation. This bill clearly defines the statutory phrase ĺ─¨engaged in the business,ĺ─¨ to enlighten individuals involved in firearms transactions as to exactly who needs a Federal firearms license. The bill also establishes clear procedures for the sale and transfer of firearms. Current law is ambiguous in its requirements, ensnaring many people who have neither the desire nor the intent to violate the law.

S. 49 seeks to tighten and make consistent the classification of ĺ─¨ high riskĺ─¨ individuals who may not own or possess a gun. Moreover, this bill would strengthen existing criminal laws by authorizing mandatory minimum prison sentences for criminals convicted of Federal crimes involving firearms. By directing the punishment at those who commit criminal offenses, these laws as amended by S. 49 would properly punish those who abuse gun ownership and possession without infringing upon the constitutional liberties of sportsmen and legitimate gun owners.

Would-be criminals and potential murderers must be aware that we will not tolerate the continuing threat of violent crime. We should not be held hostage by the criminal, nor should we be held hostage by overly restrictive and unpopular gun control laws. Therefore, I ask my colleagues in the Senate to join me in supporting Senator MCCLURE's efforts.

Mr. GARN. Mr. President, I rise in strong support of S. 49. This bill helps to reestablish the protection of the right of American citizens to keep and bear arms. It moves the gun laws of this country much closer to fulfilling the purpose of the Gun Control Act of 1968 outlined in section 101:

It is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity. ĺ─Â

Indeed, S. 49 is designed to deter criminals from using firearms when committing a crime. It does this by establishing a mandatory prison term for the use of a firearm in a violent crime of a minimum sentence of 5 years, with no parole or work release. Just as importantly, the bill is designed not to burden law-abiding citizens who wish to purchase a firearm for their own use and/or protection.

It is currently law that a convicted felon may not own or possess a gun. Yet, crimes continue to be committed by convicted felons with guns. The measures now in place because of the Gun Control Act of 1968 are not preventing criminals from obtaining firearms. They are, however, harassing and inconveniencing law-abiding citizens who wish to purchase firearms.

This bill seeks to strengthen our constitutionally guaranteed right to keep and bear arms. Richard Henry Lee, who was a delegate to the Continental Congress, initiator of the Declaration of Independence and a member of the first Senate which passed the Bill of Rights, said:

ĺ─˙To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike, especially when young, how to use them.ĺ─¨

While the historical context of this statement makes such a remark understandable, the intent of Congress and the thinking of the time is clear. All citizens have a right to keep and bear firearms, a right that the Government should protect and encourage-not stifle.

Often, citizens of the United States are purchasing firearms for the express purpose of self-defense. There are many people, myself among them, who feel that the overbearing regulations and intimidating paperwork that go along with the concept of gun control only deter those who would be protected by having firearms, rather than those who would use a gun to perpetrate a violent crime. We must pass this legislation to alter this unjustifiable situation.

The merits of this bill are many, and I urge my colleagues to support this much-needed reform.

Mr. DENTON. Mr. President, the time is long overdue for Congress to take action to put an end to the many inequities and hardships that result to

 

[Begin p. 18168]

 

law-abiding citizens from the questionable law enforcement practices that have been used to implement the Gun Control Act of 1968. S. 49 is designed to do just that.

The bill has been thoroughly scrutinized from every point of view for 6 years. As a result of this extensive review and the untiring efforts of Senator MCCLURE, we have a laudable piece of legislation that will help to strike the appropriate balance between the constitutional rights of law-abiding gun owners and dealers, on the one hand, and legitimate law enforcement interests, on the other. The bill represents a major step toward the modernization of our current laws to prevent the recurrence of the many abuses of the law which have been documented in detail before Judiciary Committee hearings.

In a time of increasing violent crime, it is the duty of the Government to enact and enforce laws that will serve to protect our citizens through the imposition of swift, severe, and certain penalties on people who use firearms in connection with violent crimes. At the same time, the laws must be carefully fashioned both to protect the interests of law-abiding citizens and to preserve the necessary tools for effective law enforcement. S. 49 is the best effort we have been toward accomplishing that task.

In retrospect, we know that the Gun Control Act of 1968, although well-intentioned, was rushed into law in an emotional response to a series of assassinations. As hearings have shown, the effect of the Gun Control Act of 1968 has been to subject honest firearms owners and dealers to unnecessary harassment while having no discernible effect on the use of firearms in violent crime.

Mr. President, the bill would make many significant changes to our current gun laws. Rather than talk about all of the changes, let me just mention what, in my mind, is one of the most significant provisions of the bill. That provision is section 104, which incorporates, with some modification, language from the Comprehensive Crime Control Act of 1984 to provide for a mandatory, determinate sentence for any person who uses or carries a firearm in furtherance of a violent crime.

I say that it is a particularly significant provision not because it will have any greater or more significant effect than the other provisions but because it embodies the essence of the entire legislative effort: The redirection of our law enforcement resources away from law-abiding gun owners and dealers toward those criminal elements and events that cause so many citizens to be afraid to walk the streets at night.

Mr. President, the bill has received broad support. It currently has 51 cosponsors in the Senate and 125 cosponsors in the House. I encourage my colleagues to continue to support the bill in the hope that we can move it swiftly through the 99th Congress and strike a major blow against crime.

Thank you, Mr. President.

 

AMENDMENT NO. 43 

Mr. HATCH. Mr. President, I send an amendment to the desk on behalf of Senators SYMMS and METZENBAUM-or perhaps METZENBAUM and SYMMS-and ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will report.

The bill clerk read as follows

The Senator from Utah, <Mr. HATCH>, for Mr. SYMMS and Mr. METZENBAUM, proposes an amendment

Mr. HATCH. I ask unanimous consent that further reading of the amendment be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered.

The amendment is as follows:

On page 29, strike out lines 5 through 14 and insert in lieu thereof the following:

TRANSPORTATION OF FIREARMS

SEC. 107. (a) Chapter 44 of title 18, United States Code, is amended by inserting between section 926 and section 927 the following new section:

ĺ─¨926A. Interstate transportation of firearms

ĺ─¨Any person not prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport an unloaded, not readily accessible firearm in interstate commerce notwithstanding any provision of any legislation enacted, or any rule or regulation promulgated by any State or political subdivision thereof.ĺ─¨.

(b) The table of sections for chapter 44 of title 18, United States Code, is amended by inserting between the item relating of section 926 and the item relating to section 927 the following new item:

ĺ─¨926A. Interstate transportation of firearms.ĺ─¨.

Mr. SYMMS addressed the Chair.

The PRESIDING OFFICER. The Senator from Idaho.

Mr. SYMMS. Mr. President, I thank the distinguished Senator from Utah for solving a dispute over authorship. If there has been any misunderstanding over it, it certainly was not the intention of this Senator.

The intent of this amendment that I have been working on with the distinguished floor leader of the bill is to protect the second amendment rights of law-abiding citizens wishing to transport firearms through States which otherwise prohibit the possession of such weapons. As written, S. 49 nullifies all State and local law and regulations which prohibit, or have the effect of prohibiting, interstate transportation of firearms or ammunition through such States. Such language is needed because citizens currently are unable to transport firearms through those States and local jurisdictions which ban firearm possession.

Some Senators have expressed concern, however, that the preemptive language of S. 49 could cause unnecessary confusion. They have been concerned that the current language of S. 49 may cloud the applicability of State and local regulations enacted to prevent the carrying of loaded and concealed weapons.

Therefore, rather than preempt all State and local regulations that prohibit the transportation of firearms and ammunition, this amendment would change section 107 to confer a right of interstate transportation of firearms. This amendment will allow law-abiding citizens to transport firearms safely through any State or municipality in the course of interstate travel. It, therefore, meets the objective of the preemptive language in S. 49 without causing unnecessary confusion about the ordinances to be preempted 

The PRESIDING OFFICER. The Senator from Idaho will suspend. The agreement provided that the amendment on interstate transportation would be offered by the Senator from Ohio <Mr. METZENBAUM>. Therefore, the Senator from Idaho is out of order.

Mr. HATCH. Mr. President, this agreement, if I recall, if the Chair will let me intervene, I think provided that either the Senator from Idaho or the Senator from Ohio would propose it. I think I presented the amendment on behalf of the-if you read the time agreementĺ─ţ

The PRESIDING OFFICER. The agreement provides specifically for an amendment offered by Senator METZENBAUM modifying the preemption provisions, 1 hour.

Mr. HATCH. Mr. President, I ask unanimous consent that we handle it in the way that I sent the amendment to the desk, and we have both Senators; both of them should be treated equally as far as being sponsors of this amendment. The actual agreement was for an amendment offered by Senator METZENBAUM modifying the preemption provisions, 1 hour.

The PRESIDING OFFICER. Does the Senator from Ohio offer this amendment?

Mr. METZENBAUM. I would have to object to that. The fact is that the Senator from Ohio is in extensive negotiations with respect to this matter and agreed not to discuss at great length the motion to proceed with this issue. I have no objection to proceeding with the understanding that it is the Metzenbaum amendment that is being offered and I would be delighted to have the Senator from Idaho as a cosponsor of the Metzenbaum amendment.

The PRESIDING OFFICER. The Senator will suspend while I state the agreement. The record shows that this

 

[Begin p. 18169]

 

amendment may be offered by either the Senator from Idaho or the Senator from Ohio but not by the Senator from Utah.

Mr. METZENBAUM. Let me make a parliamentary inquiry whether or not, on page 2 of the Calendar of Business, it does not provide in a unanimous-consent agreement that there be an amendment offered by Senator METZENBAUM modifying the preemption provisions, 1 hour. Is that not controlling?

The PRESIDING OFFICER. The Senate Journal is the final arbiter of Senate procedure. The Senate Journal clearly states that either the Senator from Ohio <Mr. METZENBAUM> or the Senator from Idaho <Mr. SYMMS> present the amendment.

Mr. SYMMS. Mr. President, who has the floor?

The PRESIDING OFFICER. At the moment, the Senator from Idaho has the floor.

AMENDMENT NO. 438

(Purpose: To provide a substitute for the preemption provisions)

Mr. SYMMS. Mr. President, I send an amendment to the desk on behalf of myself and the Senator from Ohio and ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will state the amendment.

The bill clerk read as follows:

The Senator from Idaho <Mr. SYMMS> for himself and Mr. METZENBAUM, proposes an amendment numbered 438.

On page 29, strike out lines 5 through 14 and insert in lieu thereof the following:

TRANSPORTATION OF FIREARMS

SEC. 107. (a) Chapter 44 of title 18, United States Code, is amended by inserting between section 926 and section 927 the following new section:

ĺ─¨s 926a. Interstate transportation of firearms

ĺ─¨Any person not prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport an unloaded, not readily accessible firearm in interstate commerce notwithstanding any provision of any legislation enacted, or any rule or regulation promulgated by any State or political subdivision thereof.ĺ─¨.

(b) The table of sections for chapter 44 of title 18, United States Code, is amended by inserting between the item relating to section 926 and the item relating to section 927 the following new item

ĺ─¨926a. Interstate transportation of firearms.ĺ─¨.

Mr. SYMMS. Mr. President, I just say that whoever wants credit for this amendment, there are 100 Senators here; I am willing for all Senators to have credit. I am interested in the results and what we are trying to do in this bill. If there is any misunderstanding, I certainly apologize to my colleagues who have assumed certain things.

I have the June 24, RECORD. On page S8685, it clearly states that the amendment will be offered by either Senator METZENBAUM or Senator SYMMS, modifying the preemption provisions. I certainly hope there are no hard feelings.

I ask unanimous consent that I may go on with my remarks. Then I ask ł╝nanimous consent that my earlier remarks be added to this speech.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. SYMMS. Mr. President, the intent of this amendment that I have been working on with the distinguished floor leader of the bill is to protect the second amendment rights of law-abiding citizens wishing to transport firearms through States which otherwise prohibit the possession of such weapons. As written, S. 49 nullifies all State and local law and regulations which prohibit or have the effect of prohibiting interstate transportation of firearms or ammunition through such States. Such language is needed because citizens currently are unable to transport firearms through those States and local jurisdictions which ban firearms possession.

Some Senators have expressed concern, however, that the preemptive language of S. 49 could cause unnecessary confusion. They have been concerned that the current language of S. 49 may cloud the applicability of State and local regulations enacted to prevent the carrying of loaded and concealed weapons.

Therefore, rather than preempt all State and local regulations that prohibit the transportation of firearms and ammunition, this amendment would change section 107 to confer a right of interstate transportation of firearms. This amendment will allow law-abiding citizens to transport firearms safely through any State or municipality in the course of interstate travel. It therefore meets the objective of the preemptive language in S. 49 without causing unnecessary confusion about the ordinances to be preempted.

Mr. President, in a June 18, 1985, editorial, the Washington Post called this meritorious provision ĺ─¨an all-or-nothing provision allowing all sorts of dangerous or untrained handgun packers to roam anywhere.ĺ─¨ I was not surprised by the inaccuracy of the statement or the inflated rhetoric used. The problem is that the Post is talking about apples in a bowl of oranges. My amendment and the bill to which it is attached seek to protect the rights of law-abiding citizens wishing to transport firearms which are both unloaded and not readily accessible.

The rationale of my amendment is quite simple. There is no reason for us to prevent law-abiding sportsmen and hunters from changing their State of residence or attending a sporting event in another State simply because they are forced to avoid entire States in their travels. That is really what this is all about, Mr. President.

The argument that this amendment will hamper law enforcement efforts is fallacious. A firearm kept in a compartment where it is both not readily accessible and not loaded should not be subject to State and local firearm possession restrictions. Of course, once the firearm is loaded and/or removed from the compartment, or otherwise becomes accessible to the carrier, it cannot legally be transported in interstate commerce under this legislation.

Some may argue that an unloaded and inaccessible handgun poses a greater danger that a long gun in the same conditions. However, a hunter's not readily accessible, unloaded handgun constitutes no greater threat than an Olympic marksman's inaccessible, unloaded rifle.

These, Mr. President, are the reasons why I have offered this amendment today. I do not seek to invalidate State and local laws regarding firearm possession. Rather, my amendment confers a right on law-abiding citizens to transport their firearms through States otherwise prohibiting them from possessing such weapons. Nor does my amendment overturn State restrictions on the possession of concealed and/or loaded handguns. Handguns which are unloaded and inaccessible pose no danger either to local citizens or law enforcement officials.

The second amendment rights of law-abiding citizens transporting their firearms must be upheld. I believe this amendment accomplishes this goal.

Mr. President, this bill has been a long time coming. My distinguished senior colleague, Senator MCCLURE, certainly deserves the praise and support of all of us, along with the distinguished floor manager of the bill, the Senator from Utah. I compliment both of them. I know, from my personal friendship and working with the distinguished senior Senator from Idaho, that he has worked long and hard and very ably to get to this point today. I urge passage of the bill. I urge passage of this amendment. I urge all my colleagues to stay with the leadership and the committee on this legislation because I believe they have done a good job for the individual rights and the protection of the second amendment to the Constitution. It is an important piece of legislation. It will be landmark legislation. I appreciate the work my colleagues have done. I know I speak for the many thousands of constituents in my State-legitimate firearms dealers, sportsmen, and others who are law-abiding citizens who have had unnecessary harassment from BATF in the enforcement of the 1968 Gun Control Act. I think this will put the focus where it should be, on the criminals, and will allow the law-abiding citizen to exercise his constitutional rights.

I say again my compliments to my colleagues who have made this possible. I yield the floor.

 

[Begin p. 18170]

 

Mr. HATCH. Mr. President, I rise in support of this amendment, and I heartily congratulate my colleagues, Senators SYMMS and METZENBAUM, for the leadership they have shown in bringing this amendment to the floor. I congratulate Senator SYMMS for sponsoring S. 45, a bill with many similar objectives to this amendment, and, of course, both Senators METZENBAUM and SYMMS for offering this amendment to S. 49.

This amendment by Senators METZENBAUM and SYMMS will grant a right of interestate transportation to law-abiding firearms owners who may be traveling with an unloaded firearm which is not readily accessible through a State or local jurisdiction that forbids firearm possession or carrying.

Many firearm owners currently travel through Massachusetts or some localities, like New York City, where local laws may forbid possession of firearms and may be used to harass interstate travelers of commerce. These travelers may be on their way through the locality on a hunting trip or on the way to a marksmanship competition or simply on their way to a new home in a distant State. If these travelers are detained in a speeding violation, for example, and local authorities discover a firearm that is unloaded and not readily accessible, they may still be prosecuted for violation of a local ordinance banning possession or carrying of a firearm. This amendment will correct that injustice.

S. 49, as introduced, dealt with this problem by preempting these State statutes to the extent they were inconsistent with this right of interstate transportation of unloaded and less accessible firearms. In fact, this original provision would not have nullified any of the 30 or so State statutes regulating carrying of a firearm because these State statutes governed intrastate carrying of concealed and loaded weapons while S. 49 concerned only interstate transportation of unloaded and not-readily-accessible weapons. Nonetheless, this amendment creating a right to interstate transportation is a far more efficient means of achieving a goal for which they and others have worked for years. I commend them again for this worthy amendment and urge my colleagues to approve this amendment.

Mr. President, will the Senator from Idaho join the Senator from Utah in a brief colloquy in order to clarify the scope of his amendment?

Mr. SYMMS. I will be happy to engage in a colloquy with my distinguished colleague, the floor manager for the bill.

Mr. HATCH. I thank the Senator. First, let me say that I am pleased to be a cosponsor of this amendment. I believe it meets the concerns voiced by some Members regarding the preemptory language in section 107 of the bill. Rather than declaring certain State laws ĺ─¨null and void,ĺ─¨ this amendment simply confers on all law-abiding citizens a right to transport their firearms in a safe manner in interstate commerce. This is a legitimate and appropriate use of Congress' constitutionally delegated authority to regulate interstate commerce.

While the amendment clearly allows, individuals to transport firearms while traveling between States, it is the Senator's understanding that the amendment also would allow an individual to have his or her fireams shipped from one State to another by a commercial moving company

Mr. SYMMS. I thank the Senator for his question and his supportive remarks. It is my understanding that the amendment would allow individuals to ship firearms between States as long as the firearms are unloaded and not readily accessible to the moving company employees responsible for transporting them. The amendment would protect the individual shipper, the moving company, and its employees from liability under any State or local laws which would otherwise prohibit the interstate transport of firearms through their jurisdictions. Thus, the legislation would allow individuals moving from one State to another to have a moving company ship their firearms along with their personal and household property.

Mr. HATCH. I thank the Senator for his remarks, and I concur with his understanding of the scope of the amendment.

Mr. METZENBAUM. Mr. President, we can accept the amendment on this side of the aisle, and I share the Senator's understanding of the applicability of this amendment to individuals shipping firearms by moving van when those firearms are unloaded and not readily accessible.

The PRESIDING OFFICER. Has the Senator from Utah yielded the floor

Mr. HATCH. I yield to the Senator from Ohio.

Mr. METZENBAUM. Mr. President, there seemed to be some confusion about this amendment, and the Senator from Ohio will explain his perception of it.

When the leadership of the Senate indicated his intent to move forward with the gun control bill, some Senators including myself, felt very strongly that it was a bad bill-it is still a bad bill. It will be a bad bill when this amendment is accepted-but that it might be made somewhat better. It is a bill that had no hearings. It is a bill that was introduced and held at the desk.

And so, when a motion was made to proceed, I had no difficulty in indicating my concerns and that I intended to explain to the Members of the Senate, as well as the people of this country, how we were proceeding in connection with this legislation. As is normal, not unusual, in the processes of the Senate, there then developed an extended period of negotiations. Out of these negotiations, the Senator from Ohio and the sponsors of this legislation as well as the leadership of the Senate came to an understanding that two amendments would be accepted. One of the amendments had to do with the import of parts for guns that are not to be used for sporting purposes. When the motion to proceed was taken up the other day, I had come to an understanding and agreement and felt that it was appropriate that I leave to catch a plane. The Senator from Utah was to introduce those amendments on my behalf.

Now with no disrespect to the Senator from Utah, who is my friend and an extremely honorable man, I think some misunderstanding developed at that point because I think that while the Senator from Ohio was negotiating with some Members of the Senate and the leadership on this issue of section 107, the Senator from Utah was at the same time negotiating with the Senator from Idaho. The Senator from Ohio was not aware of that fact and I guess would have been as surprised as I was today when I came to the floor of the Senate to find that the Senator from Idaho and the Senator from Ohio were so much in accord that we were in disagreement as to who was to offer the amendment, because we do come from a different posture with respect to the overall aspects of the bill. But having said that, let me address myself to the issue itself.

Section 107 of the bill, whether intended or not, has a potentially disastrous effect on State and local laws because it risks invalidation of many of those laws.

In particular, the bill, if enacted in its current form without the amendment, would make null and void any State or local statute or regulation which has the effect of prohibiting the transportation of a firearm or ammunition in interstate commerce through such State when such firearm is unloaded and not readily accessible.

That meant no limits whatsoever except that the firearm could not be loaded.

The effect of this broad language is to drastically alter the current relationship between the States and the Federal Government in the area of regulating firearms because currently section 927 of title 18 of the United States Code provides that no provision of current Federal gun control laws shall be construed as indicating a congressional intent to preempt State laws unless there is an irreconcilable conflict between State and Federal laws.

 

[Begin p. 18171]

 

In other words, Congress recognized that States and localities may decide to regulate the ownership and transportation of firearms, and the intent of Congress was that these laws should remain in effect unless there was no possible way of resolving a conflict between State and Federal law.

S. 49 in its current form, however, would totally nullify State laws under a broad range of circumstances. For example, State licensing laws that prohibit the carrying of firearms without a permit may be construed as prohibiting the transporting of a firearm through the State. In such a case, section 107 in S. 49 would nullify the law entirely. Consequently, rather than simply create a defense to an individual prosecution, the statute would be nullified in all circumstances.

The purpose of this amendment is to make clear that it is the intention of Congress that State and local statutes and regulations shall remain in effect except that in certain narrow circumstances involving travel through one or more States other than the State of residence, a defense is available to prosecutions under State and local gun control laws.

The circumstances under which a defense would be created under this amendment are limited to cases where a person is transporting a firearm in interstate commerce and the firearm is unloaded and not readily accessible. For example, under this amendment a person traveling through a State who keeps an unloaded firearm locked in the trunk of his car would not be liable in a State prosecution under State law for carrying a weapon without a State license. This amendment would not prevent a conviction: First, if the firearm were loaded during the period when the person traveled through the State; second, if the person reached his destination within the State; third, or if the firearm was moved to an accessible position, for example, into the interior of the automobile. If any of the circumstances required by this amendment are no longer present, State or local laws are fully applicable and no defense to a prosecution under this amendment is available.

This amendment will insure that State and local laws are given their full effect, subject only to the justifiable exception involving the transporting of a firearm through the State when it is unloaded and not reasonably accessible to a potential user.

Mr. President, I ask unanimous consent that a very helpful and thorough analysis of the problems raised by section 107 of S. 49, prepared by the law firm of Wilmer, Cutler & Pickering, be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

ĺ─˙ANALYSIS OF SECTION 107 OF MCCLURE-VOLKMER BILL

Section 107 of the McClure-Volkmer Bill, S. 49, a provision relating to the preemption of state law, could, if enacted, trigger a fundamental restructuring of the present relationship between state and federal authority in one important area of firearm regulation. This provision, which would preempt certain restrictions by states on the transportation of firearms in interstate commerce, could nullify, in whole or in part, as many as twenty-one state ĺ─¨ license to carryĺ─¨ laws or other state statutes prohibiting the carrying of firearms.

State license to carry statutes require persons wishing to carry handguns, or in a few instances other firearms, within that jurisdiction to obtain a permit before doing so. The comprehensiveness of such schemes varies considerably from state to state. Several states restrict the carrying of a handgun only if concealed on one's person; others contain broader restrictions prohibiting the carrying of a firearm in any manner without a license. Still other statutes contain specific language restricting the vehicular transportation of handguns. Most of the licensing schemes carve out exemptions from their requirements for certain classes of gun carriers, such as hunters and target shooters, common carriers, licensed gun dealers or their agents, nonresidents with permits to carry from another state, and individuals traveling from place of purchase or repair. Some states qualify their exemptions with specific requirements as to the manner in which a firearm may be carried.

Currently, all questions relating to federal preemption of state firearms laws are governed by section 927 of Title 18 of the United States Code. This section provides:

ĺ─¨<N>o provision . . . shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.ĺ─¨

18 U.S.C. 927 (1984). Proposed section 107 of the McClure-Volkmer Bill would create the following exception to section 927

ĺ─¨Provided, however, That any provision of any legislation enacted, or of any rule or regulation promulgated, by any State or a political subdivision which prohibits or has the effect of prohibiting the transportation of a firearm or ammunition in interstate commerce through such State, when such firearm is unloaded and not readily accessible, shall be null and void.ĺ─¨

While the intent of proposed Section 107 may be only to prevent states from applying their license to carry laws to prohibit interstate travelers from transporting unloaded and inaccessible firearms through such states, its language could be read to extend far beyond this limited purpose. As a result, enactment of Section 107 potentially could result in the preemption of state license to carry statutes in their entirety or as they pertain to any form of firearm transportation within a vehicle.

Proposed Section 107 would render ĺ─¨null and voidĺ─¨ not only those statutory provisions which directly ĺ─¨prohibit<>ĺ─¨ the transportation in interstate commerce of an unloaded, not readily accessible firearm, but also those that ĺ─¨ ha<ve> th<is> effect.ĺ─¨ As a result, if any provision of a state license to carry law or other statute prohibiting carrying intrudes to any extent upon the federal right to transport firearms created by Section 107, that provision will be struck down by Section 107, not just as the state statute is applied to restrict the interstate transportation of an unloaded, not readily accessible firearm, but in its entirety.

Twenty-one of the states with license to carry laws or other prohibitions on carrying may place some restriction on the interstate transportation of unloaded, not readily accessible firearms. Many of these states, such as California, Pennsylvania, Michigan, and Massachusetts, have statutes which specifically prohibit the vehicular transportation of a handgun without a license, as well as other forms of carrying, and contain exceptions to their proscriptions which may not be broad enough to encompass all conceivable types of interstate transportation of unloaded, inaccessible firearms. In such cases, Section 107 could preempt that portion of the statute which restricted the transportation of a firearm in a vehicle.

Several other states, such as New York, New Jersey, and Wyoming, have statutes which simply prohibit the carrying of a handgun or other firearm in any manner without a permit and which contain exemptions which may not be broad enough to cover all interstate transportation of an unloaded, inaccessible firearm. These statutes do not contain a provision specifically prohibiting the carrying of a firearm in a vehicle. In such cases, the intrusion on the federal right would derive from the provisions establishing the entire licensing scheme. Since Section 107 could have the effect of rendering those provisions null and void, the entire license to carry schemes in effect in these states could be struck down by operation of proposed Section 107.

Three other states-South Carolina, Virginia, and Utah-prohibit the carrying of handguns in general, subject to certain exemptions, and issue permits to carry only to law enforcement personnel or other individuals whose employment places them in physical danger. The exemptions to these statutes may not be broad enough to include all forms of interstate transportation of an unloaded, inaccessible firearm. Since the intrusion of the federal right here too would stem from the statutory scheme as a whole, Section 107 also could conceivably preempt these statutes entirely. Whether these and many of the other statutes described above would in fact be preempted by Section 107 would depend upon the construction ultimately given to the proposal's unclear language

While the words of Section 107 are unambiguous in their creation of a federal right of interstate transportation of an unloaded, inaccessible firearm, the provision is far too vague to serve as the basis for preempting state laws coming into conflict with that right, particularly since the section operates to nullify any conflicting state provision. For example, Section 107 does not define the phrase ĺ─¨through such state.ĺ─¨ Suppose a nonresident traveler with an unloaded, inaccessible gun in the trunk of his automobile spent the night at a roadside motel in State A or stopped there for a few days to visit friends before reaching his ultimate destination in State B. Would State A's statute requiring that individual to have a license to carry be preempted by Section 107?

Moreover, the plain language of Section 107 does not limit its protection of interstate firearms transportation to interstate travel by nonresidents. What if a resident employed as a common carrier drove ĺ─¨throughĺ─¨ his home state while making a

 

[Begin p. 18172]

 

coast-to-coast delivery of a cargo of firearms? Or if a resident who owned a summer cottage in a State A purchased a gun in a State B, and drove ĺ─¨ throughĺ─¨ her home state, State C, to that summer house, stopping in State C overnight? Does Section 107 prevent a state from regulating the carrying of firearms within its own jurisdiction by such residents? Indeed, Utah, for example, exempts all nonresidents who transport unloaded firearms in a case, gun box, gun rack, or locked trunk from its prohibition on carrying of a concealed weapon. [fn. 1] If Section 107 does protect these residents described above, the existence of this type of blanket exemption for nonresidents would not be sufficient to protect a state scheme from federal preemption.

Finally, what does Section 107 mean by the words ĺ─¨not readily accessibleĺ─¨? Is it enough to keep the guns locked in a box in the driver's compartment? must they be locked in the trunk? need they be locked in a box in the trunk? will locking them in the glove compartment suffice? Some current state statutes contain specific exemptions for vehicular transportation of firearms if a gun is unloaded and secured in a specified manner. For example, Minnesota authorizes the transportation of a pistol without a permit in a vehicle if the gun is unloaded, and contained in a fastened case, gun box, or securely-tied package. [fn. 2] In contrast, Michigan creates an exemption for certain hunters, target shooters, and antique gun holders if their pistols are unloaded and placed in a wrapper or container in the trunk of a vehicle. [fn. 3] South Carolina exempts individuals from its general ban on carrying provided only that they secure their pistols in a closed glove compartment or closed trunk. [fn. 4] Whether these and other statutory exemptions would be sufficient to enable a state to avoid preemption of its statute would depend upon the interpretation that ultimately was given to the phrase ĺ─¨not readily accessibleĺ─¨ in Section 107.

Appended to this Memorandum is a state-by-state analysis of twenty-one state statutes which could be preempted, in whole or in part, by the passage of Section 107. Although this Appendix contains references to a number of cases found to be relevant to the preemption question, the analysis of these state schemes is based primarly upon the language of the statutes themselves, and does not purport to be a comprehensive compilation of all those cases which conceivably could bear on this issue.

[Adrienne Masters-Beth Kramer, a law clerk in the office of Wilmer, Cutler & Pickering, assisted in the preparation of the Appendix to this Memorandum.

ĺ─ţĺ─ţ

APPENDIX-STATE-BY-STATE ANALYSIS OF IMPACT OF SECTION 107 OF MCCLURE-VOLKMER BILL

ALABAMA

 

Alabama state law requires that persons obtain an annual permit to carry a pistol in a vehicle or concealed on or about the person, stating in pertinent part: ĺ─¨<n>o persons shall carry a pistol in any vehicle or concealed on or about his person, except on his land, in his own abode or fixed place of business without a license.ĺ─¨ Ala. Code s 13A-11-73 (1982). Although the statute expressly provides a method only for residents to obtain a license to carry, Ala. Code s 13A-11-75 (1982), the statute's requirements would seem to apply to non-residents as well, 1 since the statute prohibits any ĺ─¨personĺ─¨ from carrying a pistol. Relevant exemptions to the license to carry law include: (1) any persons engaged in manufacturing, repairing, or dealing in pistols; (2) the agents or representatives of ĺ─¨such person possessing, using, or carrying a pistol in the usuual or ordinary course of business;ĺ─¨ (3) any licensed common carrier except taxicabs; and (4) any persons carrying an unloaded pistol in a secured wrapper from place of purchase to home or business, or to place or repair, or when moving. Ala. Code s 13A-11-74 (1982).

Although the statute creates several exceptions that limit the applicability of the license to carry law to interstate travelers, these exceptions are not broad enough to include all transportation ĺ─¨throughĺ─¨ the state of an unloaded firearm which is not readily accessible. Several classes of interstate travelers would appear to fall outside the above-mentioned exemptions. A hunter or interstate traveler would not be authorized to carry an unloaded and inaccessible firearm without a license unless he happened to be moving or going from place of purchase or repair. Since the scope of the agent exemptions is limited by the phrase ĺ─¨usual and ordinary course of business,ĺ─¨ certain representatives of such dealers also might not fall within an exemption. 2 Hence, because the statute could in certain circumstances have the effect of prohibiting interstate transportation of firearms, and since there is no severable provision relating solely to interstate travel, it is quite possible that Section 107 could preempt Alabama's license to carry scheme entirely as it relates to carrying a pistol in a vehicle, an integral part of the statutory scheme as a whole.

 

CALIFORNIA

 

The California license to carry law provides that it is unlawful for ĺ─¨any person <to> carr<y> concealed within any vehicle which is under his control or direction . . . any firearm capable of being concealed upon the person without having a license to carry such firearm.ĺ─¨ Cal. <Penal> Code s 12025(a) (West Supp. 1985). The statute also prohibłĘts the carrying of a concealed firearm upon one's person. Id. s 12025(b). The relevant exemptions to this license to carry law include: (1) transportation by any merchant of unloaded firearms as merchandise; (2) licensed hunters while engaged in hunting or while going to or from hunting expeditions; and (3) members of shooting or antique gun clubs. Cal. <Penal> Code s 12027 (West Supp. 1985). Although the statute only specifies the procedure by which residents may obtain a license, See Cal. < Penal> Code s 12050 (West 1982), the statute's requirements would seem to apply to nonresidents as well 3 since the statute states that ĺ─¨any personĺ─¨ will be subject to criminal penalties if he or she carries a firearm without a license.

Although the California license to carry scheme contains several broad exceptions, the statute will in several circumstances prohibit the transportation through the state of an unloaded, inaccessible handgun if that weapon is ĺ─¨concealedĺ─¨ in the car. One California court already has held that the placing of a weapon in a closed glove compartment constitutes ĺ─¨ concealment.ĺ─¨ 4 A court could easily apply this logic to conclude that an unloaded handgun in the trunk of the car was ĺ─¨concealedĺ─¨ as well. Although the statute carves out exceptions for licensed hunters and those ĺ─¨transport<ing> firearms as merchandise,ĺ─¨ an interstate traveler driving through California for some other purpose would be subject to the license to carry requirement. For example, a person who drove ĺ─¨throughĺ─¨ the state with a concealed handgun to be used for personal protection upon his or her arrival in another state would be unable to do so without a permit, even if the gun was unloaded and not readily accessible. Since this statute could be construed to restrict the interstate transportation of firearms in these limited instances, it is conceivable that a court could construe Section 107 as presently drafted to nullify that provision of the state statute which prohibits the carrying of a firearm in an automobile, thus, significantly impairing the effectiveness of the statutory scheme as a whole.

COLORADO

Colorado's license to carry scheme prohibits ĺ─¨a personĺ─¨ from carrying a concealed firearm, on or about the person, whether unloaded or loaded, but creates an affirmative defense for anyone who has obtained a permit to carry. Colo. Rev. Stat. s 18-12-105(1)(b) (1978). The procedure for obtaining such a license to carry is available both for residents and persons not within the jurisdiction. Colo. Rev. Stat. s 18-12-105.1 (Supp. 1983) A person in a private automobile or other private means of conveyance carrying a weapon for lawful protection while traveling has an affirmative defense and does not need a license to carry. Colo. Rev. Stat. s 18-12-105(2)(b) (1978).

It is possible that if the ĺ─¨lawful protectionĺ─¨ exemption were literally construed to exclude those interstate travelers who carried their weapons for sport or business rather than for protection, Section 107 could potentially render Colorado's license to carry scheme invalid. The statute reaches all residents and nonresidents who carry a concealed weapon ĺ─¨on or about the person.ĺ─¨ This phrase could conceivably be construed to include a traveler who kept an unloaded firearm locked in his glove compartment or in a gunbox in the passenger compartment. If the phrase ĺ─¨not readily accessibleĺ─¨ contained in proposed Section 107 were held to encompass such behavior, and these two definitions thus overlapped, the Colorado statute would in this limited instance, prohibit interstate transportation of a firearm in a manner protected by Section 107. Since the Colorado statute contains no severable provision which alone would prohibit such interstate travel, Section 107 as presently drafted could conceivably be held to preempt the entire state statutory scheme.

CONNECTICUT

The Connecticut license to carry statute renders it unlawful for ĺ─¨any person who knowingly has, in any vehicle owned, operated or ocupied by him, any weapon for which a proper permit has not been issued.ĺ─¨ Conn. Gen. Stat. Ann. s 29-38 (West 1975). The statute also prohibits any person from carrying a pistol or revolver upon his person without a license. Conn. Gen. Stat. Ann. s 29-35 (West. Supp. 1984). Exceptions listed in connection with this latter provision include: (1) transportation of pistols or revolvers as merchandise; (2) persons carrying from place of sale to residence or business, or for moving or repairing; or (3) any person carrying a pistol or revolver in or through the state for the purpose of taking part in a competition if such person has a permit or license to carry issued by another state.

 

[Begin p. 18173]

 

 Conn. Gen. Stat. Ann. s 29-35 (West Supp. 1984). Both nonresidents possessing a valid permit in their state and in-state residents may obtain a permit to carry pistols or revolvers in Connecticut. Conn. Gen. Stat. Ann. s 29-28 (West 1975).

Although the interrelationship between these two proscriptions is ambiguous, and it is thus unclear whether the exemptions also apply to the transportation of a firearm in a vehicle, it would seem clear that in either case Section 107 could conceivably preempt Connecticut's statutory license to carry scheme as it applies to vehicular travel altogether. If the exceptions to the ĺ─¨upon the personĺ─¨ provision do not reach transportation in a vehicle, then the statute would prohibit any interstate transportation of an unloaded, inaccessible firearm. If, instead, these exemptions serve additionally as exemptions to the vehicular travel provision, the statute would still restrict some forms of interstate transportation of such a firearm. For example, the statute prohibits an interstate traveler wishing to carry a firearm for personal protection or a hunter without a license to carry from his or her home state from carrying an unloaded and inaccessible firearm. Since the statute contains no provision which directly prohibits interstate transportation of an unloaded, not readily accessible firearm, proposed Section 107 would, in its present form, preempt Connecticut's restrictions on automobile transportation of a firearm without a license, clearly an intricate part of the state's license to carry law

DISTRICT OF COLUMBIA

The District of Columbia license to carry law provides in pertinent part that ĺ─¨<no> person shall carry either openly or concealed on or about his person . . . a pistol, without a license. . . .ĺ─¨ D.C. Code Ann. s 22-3204 (1981). The pertinent exemptions to the license to carry scheme include: (1) any person engaged in the business of manufacturing, repairing, or dealing in firearms, or the agent or representative of any such person carrying a pistol in the usual or ordinary course of business; and (2) any person carrying a pistol unloaded in a secure wrapper from place of purchase to residence or business, for purposes of repair, or when moving. D.C. Code Ann. s 22-3205 (1981). The statute provides a procedure by which residents, persons with a place of business in D.C., and nonresidents with a license to carry a concealed pistol issued by another state can obtain a license to carry, D.C. Code Ann. s 22-3206 (1981); the broad language of the statute, however, would encompass all ĺ─¨persons,ĺ─¨ including nonresidents who have never been issued a permit in any state.5

The potential for preemption of the District of Columbia's license to carry scheme depends on whether the definition of ĺ─¨not readily accessibleĺ─¨ in proposed Section 107 could conceivably overlap with that of ĺ─¨on or about the person,ĺ─¨ as contained in the D.C. statute. If a court were to conclude that a firearm locked in a glove compartment or in a gun box in the passenger compartment were both ĺ─¨about the personĺ─¨ and ĺ─¨not readily accessible,ĺ─¨ the exemptions in the D.C. scheme would not be broad enough to cover all classes of interstate travelers.6 For example, a hunter or targetshooter driving from Maryland through the District destined for Virginia, and carrying an unloaded handgun in this manner, would be prohibited from doing so without a license to carry. Similarly, the exemption for persons engaged in the ĺ─¨businessĺ─¨ of manufacturing, repairing or dealing in firearms or their agents carrying a firearm in the ĺ─¨usual and ordinary course of business,ĺ─¨ would not include individuals who repair firearms as a hobby.7 Since the prohibition on this form of interstate travel would derive not from any specific provision relating to interstate transportation or automobile travel, but rather from the statutory scheme as a whole, application of Section 107 as proposed could conceivably result in the preemption of the District of Columbia statute in its entirety.

INDIA

Indiana's license to carry scheme provides that ĺ─¨a person shall not carry a handgun in any vehicle or on or about his person . . . without a license.ĺ─¨ Ind. Code Ann. s 35-47-2-1 (Burns 1985). The pertinent exemptions to this statutory scheme include: (1) any person engaged in the business of manufacturing, repairing, or dealing in firearms; (2) the agent or representative of such person carrying a handgun in the usual or ordinary course of business; and (3) any person carrying an unloaded handgun in a secure wrapper from place of purchase to his or her residence or business, for purposes of repair, or when moving. Ind. Code Ann. ss 35-47-2-2(10)-(11) (Burns 1985). Although the statute expressly provides a method only for residents and nonresidents with a regular place of business or employment in Indiana to obtain a license to carry, Ind. Code Ann. s 35-47-2-3 (Burns 1985) the statute applies to any ĺ─¨personĺ─¨ which should include other nonresidents as well. 8 Indiana will, however, recognize a nonresident's license to carry issued in another state. Ind. Code Ann. 35-47-2-21(b) (Burns 1983). The statute specifies that hunters must obtain a qualified license to carry handguns. Ind. Code Ann. s 35-47-2-4 (Burns 1985).

Despite Indiana's broad exemptions to its license to carry scheme, the statute will still prohibit certain interstate transportation of an unloaded, not readily accessible firearm. For example, the exemptions do not reach transportation of a firearm by an interstate hunter or nonresident traveler who wished to transport a handgun to a contiguous state to be used for personal protection. 9 Since there is no severable provision which has only the effect of prohibiting this type of transportation, proposed section 107, as currently drafted, could have the effect of nullifying that provision of Indiana's statute which prohibits the vehicular transportation of a handgun, clearly a critical part of the statutory scheme.

MAINE

Maine's statutory license to carry scheme provides that ĺ─¨no person may . . . conceal about his person any firearmĺ─¨ unless such person has been issued a permit. Me. Rev. Stat. Ann. tit. 25, ss 2031 (Supp. 1984). The licensing provision explicitly permits both residents and nonresidents to obtain a permit to carry. Me. Rev. Stat. Ann. tit. 25, s 2032(1), (5) (Supp. 1984). The statute contains no exemptions to its license to carry provisions

Provided that the phrase ĺ─¨about his personĺ─¨ were interpreted to overlap with at least one of the conditions ultimately found to satisfy the ĺ─¨not readily accessibleĺ─¨ requirement contained in proposed Section 107-possibly, for example, the placing of a gun in a locked gun box or secure wrapper, or in a trunk or glove compartment-and assuming that locating a gun in such a manner would constitute ĺ─¨concealment,ĺ─¨ 10 the Maine statute clearly would prohibit an interstate traveler from carrying an unloaded, not readily accessible firearm without a license. Since Maine's scheme contains no severable provision relating solely to vehicular travel or to interstate transportation, Section 107 as currently drafted could have the effect of nullifying Maine's license to carry scheme in its entirety.

MASSACHUSETTS

The Massachusetts license to carry scheme provides that ĺ─¨ whoever . . . carries on his person, or carries on his person or under his control in a vehicle, a firearm, loaded or unloaded . . .ĺ─¨ without a license to carry violates the statute. Mass. Gen. Laws Ann. ch. 269, s 10 (West Supp. 1985). Licenses to carry will be issued to any person residing or having a place of business in the jurisdiction, Mass. Gen. Laws Ann. ch. 140, s 131 (West Supp. 1985), and authorizes nonresidents to obtain a temporary license to carry firearms for purposes of participating in a firearms competition. Mass. Gen. Laws Ann. ch. 140, s 131F (West Supp. 1985). The statute permits nonresidents with a valid permit or license from another state to carry a pistol or revolver in or through the Commonwealth for purposes of competition or hunting. The interstate hunter traveling in or through Massachusetts is exempt from the license to carry laws if he has on his person a hunting or sporting license issued by Massachusetts or his state of destination. Mass. Gen. Laws Ann. ch. 140, s 131G (West Supp. 1984). The statute also requires an ID card in order to possess a firearm without a license to carry. Mass. Gen. Laws Ann. ch. 140, s 129B (West 1974 & Supp. 1985). The statute contains several other exemptions relating to possession of firearms, but, since violation of this provision is a separate offense, these exemptions would not be applicable when solely the license to carry provisions are in question. 11

The question of whether proposed Section 107 could preempt the Massachusetts scheme would depend on the construction of the term ĺ─¨under his controlĺ─¨ in the state statute. If the driver of a vehicle who had the keys to a trunk, gunbox or glove compartment were held to have ĺ─¨controlĺ─¨ of a firearm so located, 12 the Massachusetts statute would prohibit the interstate transportation of certain unloaded, inaccessible firearms in some cases. For example, a resident who purchased a handgun in a state to the south, and drove his car ĺ─¨throughĺ─¨ Massachusetts to a state to the north would be prohibited from doing so without a license to carry. A nonresident would also be prohibited from carrying an inaccessible, unloaded handgun through the state if, he had no license from his home state, and was a hunter without a valid hunting license, or was carrying a gun to be used for personal protection at his place of destination. Since the statute contains no severable provision which applies to interstate travel, proposed Section 107 as currently drafted could conceivably preempt that portion of the Massachusetts license to carry scheme which places a restriction on carrying a handgun in a vehicle. Without this provision, the Massachusetts license to carry scheme would be rendered ineffectual.

MICHIGAN

The Michigan license to carry law provides that no person shall carry a pistol without having first obtained a license. Mich. Comp. Laws Ann. s 28.422 (1981). The scheme makes it a criminal offense for a person to carry a concealed weapon on or

 

[Begin p. 18174]

 

about his person, ĺ─¨. . . or whether concealed or otherwise in a vehicle operated or occupied by him without a license to carry.ĺ─¨ Mich. Comp. Laws Ann. s 750.227 (West Supp. 1984). Exemptions to the criminal provision include: (1) a person holding a valid license to carry issued by another state, except where the pistol is carried in nonconformance with any restriction appearing on the license; (2) the regular and ordinary transportation of a pistol as merchandise by an authorized agent of a person licensed to manufacture firearms; (3) a person carrying a pistol unloaded in a wrapper or container in the trunk of a vehicle, if in possession of a valid Michigan hunting license or a member of an organization having pistol shooting range facilities, while en route to or from a hunting or target shooting area, or if such firearm is an antique, while en route to an exhibit or demonstration; and (4) a person carrying a pistol unloaded in a wrapper or in a container or the trunk of a vehicle from the place of purchase to his home or residence, for repair purposes, or when moving. Mich. Comp. Laws Ann. ss 750.231a. (1)(a)-(b), (d)-(e) (Supp. 1984). A person may also carry an unloaded pistol in the passenger compartment of a vehicle without a trunk if he or she otherwise complies with (3) or (4) and the wrapper or container is ĺ─¨not readily accessibleĺ─¨ to an occupant. Mich. Comp. Laws Ann. s 750.231a(l)(f) (Supp. 1984). The transportation of firearms other than pistols is also exempt if such firearms are unloaded and inaccessible from the interior of the vehicle, are carried in the trunk of vehicle, or are enclosed in a case. Mich. Comp. Laws Ann. s 750.227d(l)(a)-(d) (Supp. 1984). Although the statute specifies that only residents of Michigan for at least six months are eligible for licenses to carry, Mich. Comp. Laws Ann. s 28.426 (1981), the statute clearly would seem to be applicable to nonresidents, since Michigan recognizes licenses to carry issued by other states and since the language of the statute applies to any ĺ─¨ person.ĺ─¨ 13

Although the Michigan license to carry scheme does contain several broad exceptions, the statute will in limited circumstances prohibit the transportation of an unloaded and inaccessible handgun ĺ─¨thoughĺ─¨ the state. For example, an interstate traveler who has no license to carry issued in another state is prohibited from carrying an unloaded and inaccessible pistol which he or she intends solely to use for personal protection in a contiguous state. Similarly, the statute would apply to an interstate hunter without a valid Michigan hunting license. Since there is no provision which directly prohibits these forms of interstate transportation in the statute, Section 107, as it is proposed, could be held to preempt that important provision of the Michigan law which relates to the carrying of a firearms in a vehicle, leaving the statute without an integral part of Michigan's license to carry scheme.

MINNESOTA

Minnesota renders it unlawful for ĺ─¨a person . . . <to carry> . . . a pistol in a motor vehicle . . . or on or about his clothes or person . . . without first having obtained a permit to carry.ĺ─¨ Minn. Stat. Ann. s 624.714 (West Supp. 1985). Although specifically addressing only the procedure by which residents may obtain a license to carry, Minn. Stat. Ann. s 624.714 Subd. 2. (West Supp. 1985), the statute's broad language making it unlawful for ĺ─¨a personĺ─¨ to carry without a license should render the scheme applicable to both residents and nonresidents. 14 Relevant exemptions to the scheme include: (1) carrying a pistol from place of purchase to residence or business or for purposes of repair; (2) carrying a pistol between one's dwelling house and place of business; (3) carrying a pistol in the woods for purpose of hunting or target shooting; and (4) transporting a pistol in a motor vehicle if the pistol is unloaded; and contained in a closed and fastened case, gun box, or securely-tied package. Minn. Stat. Ann. s 624.714 Subd. 9.

Although the scheme establishes an extensive series of exemptions to the license to carry law, some interstate travelers may nontheless be prohibited from carrying an unload and inaccessible firearm ĺ─¨throughĺ─¨ the state. The exemption for transportation of an unloaded pistol in a gun box, fastened case, or securely-tied package, if literally construed, would not be broad enough to cover two other methods which could conceivably be found to make a firearm ĺ─¨not readily accessibleĺ─¨ for purposes of applying proposed Section 107-locking a gun in the trunk or in the glove compartment of a car. An interstate traveler who so carried a handgun and did not fall within any of the other exemptions in the statute, including a common carrier, an interstate traveler who sought to use a handgun for person protection in a contiguous state, and perhaps even a hunter who is not yet ĺ─¨in the woodsĺ─¨ but rather is still on the highway, would not be able to carry an unloaded handgun locked in a trunk or glove compartment without a permit. Since there is no provision which directly prohibits the interstate transportation of an unloaded, not readily accessible firearm, Section 107 as drafted could conceivably strike down Minnesota's key prohibition against carrying a firearm in a vehicle if the statutes are so construed.

NEW JERSEY

The New Jersey license to carry law states that it is unlawful for ĺ─¨any person <to> knowingly <have> in his possession any handgun, without having obtained a permit to carry.ĺ─¨ N.J. Stat. Ann. s 2C-39-5(b) (West 1982). The statute provides a procedure for both residents and nonresidents to obtain a permit. N.J. Stat. Ann. s 2C-58-4(c) (West 1982). Exemptions include: (1) licensed dealers and registered employees during the course of their normal business, see N.J. Stat. Ann. 2C-39-6(b)(2) (West Supp. 1984); (2) transportation of weapons from any place of purchase to residence or place of business, in the course of moving, or for repair; (3) members of a rifle or pistol club going to or from target practice; or (4) travel to or from any place for purpose of hunting if the person has a valid hunting license, provided that such weapon is carried unloaded and contained in a closed and fastened case, a gun box, or a securely-tied package, or is locked in the trunk of an automobile. N.J. Stat. Ann. ss 2C-39-6(e)-(f)(1)-(3), (g) (West Supp. 1984)

Despite these broad exemptions, this statute would prohibit the interstate transportation of an unloaded and inaccessible handgun in some circumstances. For example, an interstate hunter without a valid hunting license, an out-of-state traveler who seeks to keep a handgun for protection at his or her state of destination, or someone transporting a handgun as merchandise who is not a licensed dealer or a registered employee of such dealer would all be prohibited from transporting an inaccessible, unloaded handgun through New Jersey without a license to carry. Moreover, if a court were to construe the phrase ĺ─¨not readily accessibleĺ─¨ in proposed Section 107 to include locking a gun in a glove compartment, it is possible that the owner of that handgun would not fall within the exemption discussed above for hunters, which explicitly provides that a gun must be placed in a box or a securely-tied package, or be locked in a trunk. Since the statute clearly would apply to some interstate travelers seeking to transport unloaded and inaccessible guns, and since the statute contains neither a specific provision prohibiting interstate transportation of such firearm, nor even a provision relating solely to vehicles, it is conceivable that passage of Section 107 in its present form could result in preemption of New Jersey's entire license to carry scheme.

NEW YORK

The New York license to carry law provides that ĺ─¨a license for a pistol or revolver shall be issued to have and carry concealed any firearm 15 without regard to employment or place of possession,ĺ─¨ N.Y. <Penal> Law s 400.00 2. (f) (McKinney Supp. 1984), and establishes the crime of criminal possession. 16 N.Y. <Penal> Law s 265.01(5) (McKinney 1980). Although the statute provides no procedure by which a nonresident traveler can obtain a permit to carry, the statute has been held nonetheless to apply to nonresidents. 17 Exemptions from violations for unlawful possession include: (1) possession of rifle or shotgun if by a licensed hunter who is not a citizen of the United States; (2) the regular of ordinary transportation of pistols or revolvers by a manufacturer of firearms or his or her agent; and (3) possession of a pistol or revolver by a nonresident while attending an organized competitive pistol match, provided that such firearm is transported unloaded and locked in an opaque container. N.Y. <Penal> Law s 265.20 (McKinney 1980 & Supp. 1984). 18

Despite the inclusion of these exceptions in New York's license to carry scheme, the statute will nonetheless prohibit transportation of some unloaded, not readily accessible firearms through the state if the term ĺ─¨concealedĺ─¨ is construed to encompass locking a firearm in a trunk or glove compartment, 19 if placing a firearm in such a manner also would satisfy Section 107's requirement that a firearm be ĺ─¨not readily accessible.ĺ─¨ Although the statute contains an exemption for the regular and ordinary transportation of firearms as merchandise, the scope of the exception would depend upon the interpretation of ĺ─¨regular ordinary transportation;ĺ─¨ Moreover, it requires that the firearm be locked in an opaque container. If the merchandise was placed in a sealed cargo area, for example, but not placed in a container, the statute would require a permit to carry. In addition, the statute would appear to require all hunters who are U.S. citizens to obtain licenses to carry to transport even an inaccessible firearm. Finally, this statute has already been applied to an interstate, nonresident traveler who passed through New York en route to visit friends in another state. 20 Since the New York statute conceivably could prevent the transportation of an unloaded, inaccessible firearm ĺ─¨throughĺ─¨ the state, and since this result stems not from a severable provision which directly prevents the interstate transportation of a firearm, or relates to vehicular travel, but rather derives from the statute as a whole, Section 107 as presently drafted conceivably could preempt New York's license to carry scheme in its entirety.

 

[Begin p. 18175]

 

NORTH DAKOTA

The North Dakota license to carry law provides that: ĺ─¨no person without a license shall carry a pistol, either openly or concealed, in any vehicle or on or about his person.ĺ─¨ N.D. Cent. Code s 62-01-05 (1960). Relevant exemptions include: (1) any person engaged in manufacturing, repairing or dealing in pistols; (2) their agents if carrying is in the usual or ordinary course of such business; (3) any common carrier; and (4) the carrying of a pistol in an unloaded and secure wrapper from its place of purchase to one's home or business, for repair purposes, or when moving. N.D. Cent. Code ss 62-01-05(5)-(7) (1960). Although the statute only establishes a procedure to enable residents to obtain a license, as well as nonresidents who already have a license to carry a pistol issued by another state, N.D. Cent. Code s 62-01-07 (Supp. 1983), the broad language of the statute would clearly apply to nonresidents without such licenses. 21 The statute also requires that no person carry conealed ĺ─¨about his personĺ─¨ any loaded or unloaded gun unless to effect a lawful and legitimate purpose. N.D. Cent. Code s 62-03-01. (Supp. 1983).

Although the North Dakota license to carry scheme contains several broad exceptions, the statute will in several circumstances prohibit the transportation of an unloaded and inaccessible pistol ĺ─¨throughĺ─¨ the state without a license to carry. For example, the statute would require an interstate hunter or an out-of-state traveler who wanted to use a handgun for personal protection in another state from transporting an unloaded, inaccessible handgun ĺ─¨throughĺ─¨ North Dakota. Moreover, a manufacturer's agent transporting a pistol not in the ĺ─¨ordinary course of businessĺ─¨ could not avail himself of that exemption. Since the statute contains no provision which directly prohibits the interstate transportation of such firearms, proposed Section 107 could nullify the provision of the North Dakota law which importantly prohibits the vehicular transportation of a firearm without a license.

OREGON

The Oregon license to carry scheme provides that it is unlawful for ĺ─¨any personĺ─¨ to ĺ─¨carry concealed upon his person or within any vehicle which is under his control or direction any pistol, revolver, or any other firearm capable of being concealed upon the person, without having a license to carry.ĺ─¨ Or. Rev. Stat. s 166.250 (1983). Relevant exemptions to the license to carry law include: (1) transportation by any merchant of unloaded firearms as merchandise; (2) target shooters going to or from the target range; and (3) licensed hunters while going to or from a hunting expedition. Or. Rev. Stat. ss166.260(3), (7)-(8) (1983). The language of the statute, which refers to ĺ─¨any personĺ─¨ would suggest that the statute would apply to both residents and nonresidents. 22

Despite Oregon's inclusion of several pertinent exceptions to its license to carry scheme, the statute nonetheless prohibits the transportation ĺ─¨ throughĺ─¨ the state of an unloaded, inaccessible handgun by the person in control of such vehicle in certain instances. For example, a nonresident hunter without a license, an interstate traveler seeking to carry a handgun for personal protection into a contiguous state, and an individual who is commercially transporting a handgun but is not a ĺ─¨merchant,ĺ─¨ could not drive through the state with an unloaded gun locked in a gun box or the trunk of a car. Since the Oregon statute contains no provision which directly prohibits the interstate transportation of a handgun in this matter without a license, Section 107 as presently drafted, could conceivably be held to preempt the provision of the Oregon's license to carry scheme which restricts the carrying of a handgun in a vehicle, an integral part of the statutory scheme.

PENNSYLVANIA

The Pennsylvania state law provides in pertinent part: ĺ─¨no person shall carry a firearm in any vehicle or concealed on or about his person . . . without <annually obtaining> a license.ĺ─¨ 18 Pa. Cons. Stat. Ann. s 6106(a) (Purdon 1983). Those exempted from this requirement include: (1) any person engaged in manufacturing, repairing, or dealing in firearms; or (2) the agent or representative of any such person, carrying a firearm in the usual or ordinary course of business; (3) any person carrying a firearm unloaded and in a secure wrapper from place of purchase to home or business, for the purposes of repair, or when moving; (4) those persons licensed to hunt in Pennsylvania, if such persons are actually hunting or going or returning from a hunting expedition, and register the make of the firearm in order to prove they come within the exemption; and (5) target shooters if going to or returning from target practice. 18 Pa. Cons. Stat. Ann. ss 6106(b)-(c) (Purdon 1983). the licensing provision specifies a procedure by which ĺ─¨any personĺ─¨-resident or nonresident-can obtain a license to carry. Pa. Cons. Stat. Ann. s 6109(a) (Purdon 1983).

Proposed Section 107 could significantly preempt the Pennsylvania license to carry law. Although the scheme contains numerous exceptions to the requirement that all persons obtain a permit to carry a firearm in a vehicle, certain classes of interstate travelers would appear to be prohibited from carrying even an unloaded and inaccessible firearm ĺ─¨throughĺ─¨ the state. For example, an interstate traveler who carried an unloaded and not readily accessible pistol through Pennsylvania for self-protection to be used at a place of destination outside the state would be required to obtain a permit unless he or she was coincidentally traveling from the place of purchase or repair, or was moving. A hunter who is licensed to hunt in another state or who fails to register the make of the firearm with Pennsylvania authorities is also prohibited from carrying an unloaded and inaccessible firearm without a permit. The applicability of the exception for a manufacturer's agent also will depend upon the scope of the term ĺ─¨usual or ordinary course of business.ĺ─¨ Because the Pennsylvania scheme prohibits interstate transportation of an unloaded, not readily accessible firearm in these instances, but does not contain a severable provision directly relating to such interstate transportation, Section 107 could conceivably nullify that portion of the statute which proscribes carrying a firearm without a permit in a vehicle. Preemption of this important provision would significantly impair the viability of the entire licensing scheme.

RHODE ISLAND

Rhode Island's license to carry law provides in pertinent part that: ĺ─¨<n>o person shall without a license or permit . . . carry a pistol or revolver in any vehicle or conveyance or on or about his person whether visible or concealed. . . .ĺ─¨ R.I. Gen. Laws s 11-47-8 (1981). The provision's requirements do not apply, however, to any nonresident holding a valid permit or license in another state that allows him to carry a pistol or revolver in any vehicle or conveyance, or on or about his person, provided that the nonresident is merely transporting the firearm through Rhode Island in a vehicle without any intent on the part of the nonresident to detain himself or remain within the state. Other relevant exemptions to the scheme include: (1) the regular or ordinary transportation of pistols as merchandise; and (2) the carrying of an unloaded and securely wrapped pistol from place of purchase to home or business or when moving. R.I. Gen. Laws s 11-47-9 (1981). 23 The scheme also exempts a target shooter carrying a pistol or revolver to or from the target range. R.I. Gen. Laws s 11-47-10 (1981). Although the statute authorizes the issuance of a permit to carry only to a resident or nonresident who already holds a similar permit from another state, R.I. Gen. Laws s 11-47-11 (1981), the broad language used in the statute indicates its applicability to all nonresidents. 24

Although Rhode Island's license to carry scheme contains several broad exemptions, in several circumstances the statute would still prohibit transportation of an unloaded and not readily accessible handgun ĺ─¨throughĺ─¨ the state. For example, a hunter from a state without a licensing scheme could not under any circumstance carry an unloaded and not readily accessible pistol. Although the nonresident traveler with a license to carry from his home state is exempted from Rhode Island's license to carry requirement if he transports the firearm with no ĺ─¨intent . . . to detain himself or remain . . . within the state,ĺ─¨ it is unclear whether this exemption would still apply if the traveler stayed overnight in a roadside hotel or a friend's cottage. If a court were to find the exemption inapplicable in such a case, but were to conclude that the traveler was traveling ĺ─¨throughĺ─¨ the state for purposes of applying Section 107, Rhode Island's statute could be found to impermissibly restrict travel of even an individual who holds a license to carry in his or her home state. Since there is no provision which directly prohibits these forms of interstate travel without a permit, proposed Section 107 could conceivably preempt Rhode Island's license to carry law as it pertains to carrying a handgun in a vehicle, a provision critical to the scheme as a whole.

SOUTH CAROLINA

South Carolina's comprehensive statutory scheme provides that ĺ─¨it is unlawful for anyone to carry <any pistol> about the person, whether concealed or not.ĺ─¨ S.C. Code Ann. s 16-23-20 (Law. Co-op. 1985). Relevant exemptions to this provision include: 25 (1) target shooters going to or from target practice; (2) licensed hunters while engaged in hunting or going to or from hunting expeditions; (3) any pistol in any vehicle where the pistol is secured in a closed glove compartment or closed trunk; (4) any person carrying a pistol unloaded and in a secure wrapper from place of purchase to his or her home or business or in process of moving his or her home or business; or (5) any person ĺ─¨regularly engaged in the businessĺ─¨ of manufacturing, repairing, repossession or dealing in firearms or his or her representative while carrying ĺ─¨in the usual or ordinary course of business.ĺ─¨ Id. ss 16-23-20 (3)-(5), (9)-(10) The statute's requirements would clearly cover both residents and nonresidents since the broad language of the statute prohibits ĺ─¨anyoneĺ─¨ who is not exempted from carrying a pistol. See S.C. Code Ann. s 16-23-20 (Law. Co-op 1985).

 

[Begin p. 18176]

 

Although the South Carolina's scheme contains several extremely sweeping exemptions, the statute could conceivably, in one instance, have the effect of prohibiting transportation ĺ─¨throughĺ─¨ the state of an unloaded pistol or revolver, even if that pistol is not readily accessible. 26 If the term ĺ─¨not readily accessibleĺ─¨ in proposed Section 107 were interpreted to include firearms which were locked in a gun box in the back seat of a car, the state's ĺ─¨inaccessibleĺ─¨ gun exception would not appear to be broad enough to govern. Hence, someone who did not fall within any of the other exceptions, such as a person who engaged in gun repairing as a hobby or an interstate traveler who wished to use a handgun for protection at his or her ultimate state of destination, could not drive through South Carolina so carrying an unloaded gun. Since there are no provisions specifically prohibiting either this type of interstate transportation or carrying in a vehicle without a permit, this limited class of cases could conceivably result in the total preemption of the South Carolina scheme if proposed Section 107 is enacted in its present form.

SOUTH DAKOTA

The South Dakota license to carry law provides that it is unlawful for ĺ─¨any personĺ─¨ to carry a pistol or revolver, loaded or unloaded, concealed in any vehicle operated by him without a license to carry. S.D. Comp. Laws Ann. s 22-14-9(2) (1979). Such person is also prohibited from carrying a pistol or revolver ĺ─¨concealed on or about his person.ĺ─¨ S.D. Comp. Laws Ann. s 22-14-9(12) (1979). Relevant exemptions to the license to carry scheme include: carrying unloaded weapons, provided such weapons are carried (1) in the trunk or other closed compartment of the vehicle; or (2) in a closed container which is too large to be effectively concealed on the person or within his clothing. The container may be carried in the vehicle. S.D. Comp. Laws Ann. s 22-14-10 (1979). Because a license can be obtained by ĺ─¨any person,ĺ─¨ see S.D. Comp. Laws Ann. s 23-7-7 (1979), the statute's requirements clearly apply to both residents and nonresidents.

Although the South Dakota license to carry scheme contains several broad exemptions, the statute could conceivably, in one instance, prohibit transportation ĺ─¨throughĺ─¨ the state of the unloaded, not readily accessible firearm in a vehicle operated by an interstate traveler. 27 An interstate traveler who kept an unloaded handgun in a small gun container which was not ĺ─¨ too large to be effectively concealed on the person or within his clothing,ĺ─¨ S.D. Comp. Laws Ann. s 22-14-10 (1979), in the back seat of a car, must, under the statute, obtain a license to carry. If the words ĺ─¨not readily accessibleĺ─¨ in proposed Section 107 were construed to extend to this situation, Section 107 could preempt that critical portion of the state statute which requires a license to carry a handgun within a vehicle, despite the inclusion of these extremely broad exemptions.

UTAH

The Utah statutory scheme provides that it is unlawful for ĺ─¨any personĺ─¨ <to carry> a concealed dangerous weapon, . . . except that a firearm that contains no ammunition and is enclosed in a case, gun box, or securely-tied package shall not be considered a concealed weapon.ĺ─¨ Utah Code. Ann. s 76-10-504(1) (Supp. 1982). The scheme, however, permits a person to ĺ─¨keep<>ĺ─¨ a firearm capable of being concealed upon the person in a vehicle with no restrictions provided that such vehicle is under that person's ĺ─¨control.ĺ─¨ Utah Code Ann. s 76-10-510 (1978). 28 From the broad language in this statute, which refers to ĺ─¨any person,ĺ─¨ it is clear that the statute's requirements are applicable to nonresidents as well as to residents. Relevant exemptions to this license to carry law include: (1) common carriers while engaged in the regular and ordinary transportation of firearms as merchandise; (2) nonresidents traveling in or through state provided that any firearm is unloaded and enclosed in a case, gun box, or securely-tied package, held securely in a gun rack, or locked in the trunk of an automobile in which the nonresident is transporting the firearm, see Utah Code Ann. ss 76-10-523(4)-(5) (1978); (3) any resident or nonresident hunter with a valid hunting license or who is lawfully engaged in hunting; and (4) patrons of shooting ranges. Utah Code Ann. ss 76-10-512(3)-(4) (1978).

While Utah's exemptions to its statutory scheme extend to almost every possible type of interstate transportation of a firearm, there is one situation in which proposed Section 107 could conceivably preempt the Utah statute. 29 Although the Utah scheme specifies numerous methods of storing an unloaded firearm which will avoid a violation of the statute, such methods of storage do not include locking a gun in a glove compartment. If the phrase ĺ─¨not readily accessibleĺ─¨ in Section 107 were interpreted to permit placing a handgun in a locked glove compartment, Utah's statutory scheme would prevent an individual who was not in ĺ─¨controlĺ─¨ of the car-a passenger-from carrying such firearm for purposes other than hunting. While this may be an extreme illustration, its significance is profound. Were a court to conclude that the Utah scheme did apply to this single instance, proposed Section 107 would leave the court only two options: rewrite the statute to include the exemption for glove compartments, which appears to have been carefully omitted from the statute, or strike down the entire statutory scheme, since there is no provision which specifically prohibits this method of interstate transportation of a firearm

VIRGINIA

Virginia's statutory scheme prohibits the carrying of a concealed weapon, making it unlawful: ĺ─¨<if> any person carr<ies> about his person, hidden from common observation, any pistol, revolver or other weapon designed or intended to propel a missile of any kind. . . .ĺ─¨ Va. Code s 18.2-308A (Supp. 1984). 30 Relevant exemptions to the scheme include: (1) any regularly enrolled member of a target shooting organization who is at, or going to or from, an established shooting range, provided that the weapon is unloaded and securely wrapped while being transported; (2) any member of a weapons collecting organization going to or from a bona fide weapons exhibition, provided that the weapon is unloaded and securely wrapped while being transported; and (3) any person carrying such weapons between his or her residence and place of purchase or repair provided that the weapon is unloaded and securely wrapped while being transported. Va. Code s 18.2-308(B)(3)-(5) (Supp. 1984).

As long as the phrase ĺ─¨about his personĺ─¨ were interpreted to encompass a firearm which was ĺ─¨not readily accessibleĺ─¨ under the federal statute-which might be the case if a gun were placed in a gun box, in the trunk of a car, or in a glove compartment 31 -the statute would, in various circumstances, prohibit the transportation of an unloaded and not readily accessible firearm ĺ─¨ throughĺ─¨ the state. A traveler who drives through the state with a handgun for any reason other than carrying it from place of purchase or repair, attending a weapons exhibit, or going to or from a shooting range (but only if he or she was a member of a shooting organization), would be liable under the statute. Such individuals would include a common carrier, a hunter, or an individual seeking to use a handgun for personal protection in a contiguous state. Since the statute contains no severable provision which directly prohibits such interstate transportation, nor even a provision which renders the scheme applicable to carrying in a vehicle, the enactment of Section 107 as presently drafted could conceivably preempt Virginia's prohibition on carrying a concealed weapon in its entirety.

WYOMING

The Wyoming license to carry law provides that it is unlawful for a ĺ─¨personĺ─¨ to wear or carry a concealed deadly weapon without a permit. Wyo. Stat. s 6-8-104 (1983). This language would indicate that the statute applies to both residents and nonresidents. 32 The only exemption to Wyoming's license to carry scheme is for law enforcement officers. Wyo. Stat. s 6-8-104(a)(i).

As long as the word ĺ─¨concealedĺ─¨ in Wyoming's statute is held to encompass some condition that also would be found to satisfy the ĺ─¨not readily accessibleĺ─¨ requirement-possibly, for example, the placing of a firearm in a gun box, a trunk, or a glove compartment-the statute would clearly prevent interstate transportation of an unloaded, ĺ─¨not readily accessibleĺ─¨ firearm without a permit. This would be true in almost any conceivable situation. Because the prohibition on such interstate transportation would derive from no specific, severable provision, but rather from the statutory scheme as a whole, passage of proposed Section 107 could result in the preemption of Wyoming's entire license to carry scheme.

1 See People v. Perez, 67 Misc. 2d 911-13, 915, 325 N.Y.S.2d 183, 184-85, 188 (1975) (upholding constitutionality of applying license to carry laws to nonresident traveler where statute provided no pro-

 

[Begin p. 18177]

 

cedure by which a nonresident could obtain a license).

2 Cf. Cormier v. United States, 137 A.2d 212, 215 (D.C. 1957) (requiring person not engaged in ĺ─¨businessĺ─¨ of repairing firearms, but who instead repairs firearms as hobby to obtain a license to carry).

3 See People v. Perez, 67 Misc. 2d 911, 911-13, 915, 325 N.Y.S.2d 183, 184-85, 188 (1975) (upholding constitutionality of applying license to carry laws to nonresident traveler where statute provided no procedure by which a nonresident could obtain a license).

4 See, e.g., People v. Smith, 164 P.2d 857, 858 (Cal. 1946).

5 Cf. People v. Perez, 67 Misc. 2d 911, 911-13, 915, 325 N.Y.S.2d 183, 184-85, 188 (1975) (upholding constitutionality of applying license to carry law to nonresident traveler where statute provided no procedure by which a nonresident could obtain a license).

6 Indeed, the fact that the statute contains an exemption for the carrying of a pistol in a secure wrapper when moving provides strong support for the argument that the District of Columbia's statute could be construed to prohibit the transportation of a firearm in a gun box next to the driver of a vehicle.

7 See, e.g., Cormier v. United States, 137 A.2d 212 215 (D.C. 1957) (violation of statute, inter alia, where defendant was not ĺ─¨engaged in the business of repairing firearms.ĺ─¨).

8 See People v. Perez, 67 Misc. 2d 911, 911-13, 915, 325 N.Y.S.2d 183, 184-85, 188 (1975) (upholding constitutionality of applying license to carry laws to nonresident traveler where statute provided no procedure by which a nonresident could obtain a license).

 

9 See also Beck v. State, 414 N.E.2d 970, 973 (Ind. 1981) (defendant not within unloaded and secured wrapper exception when gun found under front seat of auto with cylinder removed since firearm was within reach and could have been reassembled easily 

10 See, e.q., People v. Smith, 164 P.2d 857, 858 (Cal. 1946) (weapon placed in closed glove compartment deemed ĺ─¨concealedĺ─¨).

11 Mass. Op. Att'y Gen. 95, 96 (Aug. 7, 1975). Some of the relevant exceptions to the possession requirement include: (1) possession of rifles and shotguns by nonresident hunters with valid nonresident hunting licenses during hunting season; (2) possession of rifles and shotguns on a firing or shooting range; and (3) traveler's possession of rifles or shotguns traveling in or through the state provided the firearm is unloaded and enclosed in a case; and (4) the regular and ordinary transport of firearms as merchandise by a common carrier. Mass. Gen. Laws Ann. ch. 140; s 129C (West 1974 & Supp. 1985)

12 See, e.g., Commonwealth v. Collins, 417 N.E.2d 994, 996 (Mass. App. 1981) (ĺ─¨controlĺ─¨ of firearms in truck established where defendant owned and operated car, assisted in packing trunk, and had possession of ammunition).

13 See 1930-1932 Mich. Att'y Gen. Biennial Rep. 568, 570; see also People v. Perez, 67 Misc. 2d 911, 911-13, 915, 325 N.Y.S.2d 183, 184-85, 188 (1971) (upholding constitutionality of applying license to carry requirements to nonresident traveler carrying weapon without a permit en route to friends in another state, where statute provided no procedure by which a nonresident traveler could obtain a permit).

14 See People v. Perez, 67 Misc. 2d 911, 911-13, 325 N.Y.S.2d 183, 184-85 (1975) (applying license to carry laws to nonresident traveler although statute provided no procedure by which a nonresident traveler could obtain a permit).

15 The term ĺ─¨firearmĺ─¨ is defined as a pistol or revolver, a shotgun having one or more barrels less than 18 inches in length or any weapon made from such shotgun, if the weapon has an overall length of less than 26 inches, or a rifle having one or more barrels less than 16 inches in length, or any weapon made therefrom with an overall length of less than 26 inches. N.Y. <Penal> Law s 265.00(3) (McKinney Supp. 1984).

16 The statutory scheme actually creates an exemption from application of statute to anyone with a license to carry. N.Y. <Penal> Law s 265.20(a)3. (McKinney 1980)

17 See People v. Perez, 67 Misc. 2d 911, 915, 325 N.Y.S.2d 183, 188 (1971) (upholding constitutionality of applying statute to nonresident traveler).

18 The scheme also provides that the New York state license to carry is not valid within New York City unless a special permit is granted or unless those firearms purchased from a licensed dealer in New York are being transported immediately from the dealer, and are transported in a locked opaque container. N.Y. <Penal> Law s 400.00(6) (McKinney Supp. 1984).

19 See People v. Smith, 164 P.2d 857, 858 (Cal. 1946) (weapon placed in closed glove compartment deemed ĺ─¨concealedĺ─¨).

20 People v. Perez, 67 Misc. 2d 911, 911-13, 325 N.Y.S.2d 183, 184-85 (1971).

21 Cf. People v. Perez, 67 Misc. 2d 911, 911-13, 915, 325 N.Y.S.2d 183, 184-85, 188 (1975) (upholding constitutionality of applying license to carry laws to nonresident travelers where statute provides no procedure by which a nonresident can obtain a license).

22 The statute provides a procedure by which any applicant can request a license to carry, and does not restrict the granting of such applications to residents. See Or. Rev. Stat. s 166.290 (1983).

23 The person exempted for transporting firearms as merchandise or household goods, however, is not given the right to carry a concealed firearm by virtue of this exemption. R.I. Gen. Laws s 11-47-9 (1981).

24 Cf. People v. Perez, 67 Misc. 2d 911, 911-13, 915, 325 N.Y.S.2d 183, 184-85, 188 (1975) (upholding constitutionality of applying license to carry laws to nonresident traveler where statute provided no procedure by which a resident could obtain a license.)

25 South Carolina's statutory scheme is a blanket prohibition on carrying of a pistol about the person with relevant exceptions. The only license to carry contemplated by the statute is one available to law enforcement personnel, see S.C. Code Ann. ss 16-23-120(6), (12) (Law Co-op. 1985), and those whose business or employment regularly exposes them to dangerous circumstances. S.C. Code Ann. s 23-31-120 (Law Co-op. 1977 & Supp. 1983) 

26 Although the language of the statute requiring the pistol to be carried ĺ─¨about the personĺ─¨ would, at first glance, appear to suggest that the firearm would have to be near the individual in the car, the statute contains a broad exemption for guns secured in a closed trunk. This strongly suggests that a firearm which is anywhere in the automobile could be considered ĺ─¨aboutĺ─¨ the person for purposes of application of this provision.

27 It is obvious from the exemptions contained in the statute that the term ĺ─¨concealedĺ─¨ is intended to encompass the placing of a pistol in at least some of the locations which would make such firearm ĺ─¨not readily accessible.ĺ─¨ See also People v. Smith, 164 P.2d 857, 858 (Cal. 1946) (weapon placed in closed glove compartment deemed ĺ─¨concealedĺ─¨).

28 The statutory scheme takes the form of a ban on carrying weapons altogether, subject to numerous qualifications and exemptions as described herein. The statute also authorizes certain law enforcement authorities to issue a license to carry a concealed weapon for ĺ─¨good cause.ĺ─¨ This licensing provision contains no residential requirement. See Utah Code Ann. s 76-10-513 (1978).

29 Although the state statute applies only to ĺ─¨concealedĺ─¨ weapons, it is clear from the exemptions to this provision that a weapon would be consider ĺ─¨ concealedĺ─¨ if it was placed in a trunk or other enclosed area. See also People v. Smith, 164, P.2d 857, 858 (Cal. 1946) (weapon placed in closed glove compartment deemed ĺ─¨concealedĺ─¨).

30 Virginia's statutory scheme is a blanket prohibition on carrying of a concealed weapon about the person with relevant exceptions. ĺ─¨Any personĺ─¨ may apply for a permit to carry a specific type of weapon, however, if he or she demonstrates ĺ─¨a need to carry such concealed weapon.ĺ─¨ Va. Code s 18.2-308D (Supp. 1984).

31 Indeed, the fact that the exceptions themselves contemplate that firearms be ĺ─¨securely wrappedĺ─¨ adds support for the proposition that ĺ─¨about his personĺ─¨ might be so construed.

32 Indeed the statute directs county sheriffs to issue permits to travelers, as well as others whose employment requires them to carry a weapon. Wyo. Stat. s 6-8-104(b) (1983).


Mr. METZENBAUM. Mr. President, I ask unanimous consent that the names of Senator KENNEDY and Senator KERRY be added as cosponsors of this amendment.

The PRESIDING OFFICER. Without objection, it is so ordered.

The names of Senators HATCH, and MCCLURE were added as cosponsors of the amendment.

Mr. MCCLURE. Mr. President, will the Senator from Utah yield the Senator from Idaho 5 minutes on the amendment?

Mr. HATCH. I am delighted to yield.

Mr. MCCLURE. I thank the Senator for yielding.

Mr. President, I commend the junior Senator from Idaho and the Senator from Ohio <Mr. METZENBAUM> for offering this amendment, because I think it does what we intended to do, to avoid the harassment that has occurred and the unintended circumstances that have occurred in the past when people innocently found themselves in a jurisdiction where there were restrictions on firearm ownership or transportation and were then prosecuted, without any conscious intention on their part to violate the law of the local jurisdiction, whether a State statute or a city ordinance.

I believe this amendment clarifies what was intended by the original bill; therefore, I commend both Senators for having offered this amendment to make certain that it says what was intended, and no more than what was intended.

With respect to there not having been hearings on the bill, I say to my distinguished friend from Ohio that there probably has never been a piece of legislation that arrived on the floor of the Senate with more painstaking scrutiny than has this bill.

While it has not had hearings in the committee during this session of Congress, it has had hearings in previous sessions of Congress. With four exceptions, the bill before the Senate is identical to the one that was not only introduced and heard before the Committee on the Judiciary but also was subjected to intensive markup sessions in that committee; and it was unanimously reported by that committee after those hearings and that markup during the last Congress. There are four exceptions.

One is a very significant exception, a difference. Senator KENNEDY had offered-and I expect will offer again-a provision with respect to the sale of a handgun in a State not the residence of the purchaser. He had offered that amendment in the committee, and it had been adopted in the committee before they voted to report the bill.

In introducing the bill this year, I omitted that provision, because it was obvious that either it would be in the bill and an amendment would be offered to strike it, or it would not be in the bill and an amendment would be offered to add it to the bill

Since I was introducing the bill, I felt that it should come as close as possible to my own view of what the bill should have in it, and I elected to leave it out and to leave it to the proponents of that provision to offer an amendment to insert it.

In all honesty, I will oppose it as strenuously as I can, and those on the opposite side will support it as strenuously as they can.

This amendment is not a controversial one, in that sense, and therefore I hope the Senate will adopt it and that we can move on to the other amendments, some of which will be controversial and others of which I hope will not be.

Mr. DOLE. Mr. President, I am pleased to rise in support of this amendment which is supported by the administration.

The amendment is consistent with the intent of S. 49 which is to protect legitimate gun owners, hunters, and sportsmen who are traveling from their home State to another State with an unloaded, inaccessible weapon.

Under current law, such persons can be prosecuted under some State and local gun laws even where they are

 

[Begin p. 18178]

 

simply on a hunting trip, traveling to a sporting event, or moving.

The unfairness of the situation is highlighted by the fact that in some States, such nonresidents cannot even obtain a gun permit.

The amendment is an improvement over S. 49 insofar as it creates a Federal right for such persons to travel interstate with unloaded, inaccessible weapons, as opposed to the provision in the bill, as introduced, which could conceivably result in the invalidation of an entire State or city gun control law on the basis of a single prosecution.

Mr. President, I regret that there was a misunderstanding about the sponsorship of this amendment, but the fact that two Senators with such diverse views would both claim authorship perhaps underscores how valid and sound the amendment is

The PRESIDING OFFICER. Is all time yielded back?

Mr. HATCH. I yield back the remainder of my time.

Mr. METZENBAUM. I yield back the remainder of my time.

Mr. SYMMS. I yield back my time.

The PRESIDING OFFICER. The question is on agreeing to the amendment.

The amendment (No. 438) was agreed to.

Mr. HATCH. Mr. President, I move to reconsider the vote by which the amendment was agreed to.

Mr. METZENBAUM. I move to lay that motion on the table.

The motion to lay on the table was agreed to

Mr. HATCH. Mr. President, when Congress enacted the Gun Control Act of 1968 its goal was to reduce violent crime; its goal was not to allow the easy prosecution of and making of cases against law-abiding citizens who did not understand the intricate, detailed, and complex technicalities of the Gun Control Act. Yet such activity has been the history of the enforcement and administration of this act. It has not been used as a tool for prosecuting violent criminals but rather as a tool for making cases against law-abiding citizens ignorant of the complexities of the law. As a consequence, significant Federal law enforcement, judicial, and correctional resources, which are already too thinly stretched, have been diverted from attacking violent crime. It is the purpose of this bill to shift the focus of those resources away from the prosecution of technical violations so that the criminal justice system can better deal with violent crime.

Anyone in the Senate who is serious about controlling crime should urge the swift passage of this legislation because it redirects our firearms laws toward control of criminal abuse rather than technical regulatory violations. For example, under current law, the simplest recordkeeping oversight is a Federal felony, just as is the most severe criminal abuses. The hearings over the years have shown that this results in scarce law enforcement resources becoming occupied with prosecuting minor violations instead of focusing on violent crime. For instance, even Senator Bayh concluded his hearings with the comment that: ĺ─¨I am very much disturbed by some of the allegations that have been presented to this subcommittee about abuses by the Government in enforcing the law.ĺ─¨ This bill will provide a mens rea standard for violations under the code and redirect enforcement efforts toward violent intentional crimes, instead of recordkeeping errors. For example, in New Hampshire the BATF spent 5 days once inspecting a dealer's records only to find a single violation, he was 5 pounds over his black powder storage limit. It would perhaps make more sense to have those officers inspecting crime-infested neighborhoods, for 5 days.

This bill will aid the fight against crime and should have our support. It is true that current gun laws are technical and complex, that they contain numerous exceptions and that the regulations springing from this law are as complex as the law itself. But all these are reasons to simplify and redirect the current law.

Let me give an example that demonstrates why this bill is important. It is not a hypothetical, but a tragic story uncovered by our hearings on this bill. This example involves a retired policeman, a French national who had won his American citizenship by volunteering for military service during the worst of the Vietnam war. While a policeman, he obtained a Federal firearm dealer's license, in order to sell to other police. Another gun collector asked to purchase a few of his firearms. Since these were part of his personal collection, he felt he could sell them without the paperwork required of a licensed dealer's sales from inventory. After all, the Federal agent who issued him the license had told him that this was legal 

A few months later he awakened to a nightmare. A team of Federal agents arrested him, executed a search warrant on his family's house, searched his father's business, and confiscated his entire firearms collection. When his case came for trial he seemed to have the best defense imaginable. There was no question he had thought his conduct was legal. In fact, he manged to prove that the Director of the prosecuting agency agreed! A Senator had written to complain of prosecutions on these grounds and the Director, not being informed that one was at that moment pending a few miles away, wrote a denial. Citing his agency's publications, the Director wrote that the agency recognized that a person could lawfully do exactly what the policeman had done.

I wish I could conclude with the vindication of this citizen. But the court concluded that the Gun Control Act provisions he was charged under were strict liability: No matter how honest his intent, no matter that the head of the prosecuting agency thought his conduct was legal, if in fact he erred, it was a crime-a felony-and justified confiscation of his collection. The policeman summed up his situation:

They took an ordinary person who had never been arrested for anything, who did not even have a traffic ticket against him, and made him into a felon. I cannot get a mortgage today. I cannot find a job today ĺ─Â (It) made me the same type of felon as the guy who goes out on the street and pushes drugs or kills his wife. ĺ─Â

The real problem was that the policeman's case was typical of the way certain agencies were using the Gun Control Act to generate easy cases. Our Senate committees heard all too many similar stories-of a disabled veteran charged with felonies on grounds so weak the judge not only dismissed them but publicly apologized on behalf of the United States; of others who won acquittal, only to find the agency proceeding to confiscate their museum-grade collections; of many who, after long and successful fights against flimsy allegations or falsified charges, found themselves vindicated but financially ruined

At the same time, we found clear evidence that investigative priorities had followed the course of least resistance, away from penetration of genuine criminal markets and toward the making of easy cases. Although the Gun Control Act was mainly meant to keep felons from getting guns, we found that less than 10 percent of GCA cases were for sale to, or purchase by, a felon. One expert, himself described as the dean of Treasury law enforcement, estimated 75 percent of Federal gun cases were being brought against ordinary citizens who had inadvertently violated some technical requirement.

The evidence was clear that a change was needed-a fundamental redirection of the law and of its enforcement. That is why I sponsored S. 49, a bill to protect firearm owners' constitutional rights, civil liberties and rights to privacy. S. 49 is hardly revolutionary. It extends the most simple elements of due process to Amercian citizens who choose to own firearms. No longer is honest intent irrelevant; most violations must be proven willful, undertaken with illegal intent. If a person is acquitted, their property cannot be confiscated on the same charges. If a person must sue to get improperly confiscated property back, or to defend against frivolous charges, he can recover an attorney's fee from the agency. A dealer can sell to a res-

 

[Begin p. 18179]

 

ident of another State if the sale is completely legal under both State's laws. Regulations imposed must be only those necessary to the purposes of the law.

These are reasonable reforms, aimed at keeping the law and its enforcement on the right track-aimed at the real criminal. For exactly that reason, this legislation is endorsed by the Fraternal Order of Police and the National Sheriffs' Association, both of which feel it would actually make the Gun Control Act more enforceable-against the real criminal.

The opposition to S. 49 does not come from law enforcement, which supports it. It seems to come mainly from persons who have never read it or its endorsements. Curiously, many of these opponents are the same persons who consider themselves civil libertarians yet they will gladly embrace entrapments, unreasonable search and seizures, and even physical brutality-so long as these are directed at firearm owners. To such persons, of course, no reforms of the Gun Control Act can ever be good news. To the rest of us-to law-abiding gunowners, to law enforcement, and to free men and women in general-it can be nothing but.

Mr. President, I should like to address some frequent questions which have arisen concerning this bill, and then I will answer them, because I think there has been much misconception with regard to this bill by some of the people who have been opponents of the bill throughout the last number of days.

No. 1: Wouldn't this bill allow escaping criminals, felons, and terrorists to get guns? The answer is that 18 U.S.C. 922 (g) and (h)-which currently prohibits sales to fugitives from justice, convicted felons, drug abusers, and adjudicated mental incompetents-is strengthened by this bill. Instead of only licensed dealers being prohibited from selling or transferring to these prohibited persons, anyone who does so is guilty of a felony. The bill is stronger on this point than current law.

No. 2: Wouldn't this forbid inspections of dealers except those preceded by advance notice? The answer is that this bill authorizes five different kinds of inspections for tracing, compliance, enforcement, and other purposes. Only one of these, the courtesy visit, is preceded by notice. The others are allowed anytime the Federal officers have reason to believe a law has been violated or need access to records for law enforcement

No. 3: Wouldn't the bill allow mail-order sales? The answer is that 18 U.S.C. 922(a)(1) and 18 U.S.C. 1715 and 18 U.S.C. 922(c) now ban mail order sales. The bill does absolutely nothing to change those provisions of present law

No. 4: Wouldn't the bill allow an individual to walk across a border to get a gun his State law prohibits? The answer is clearly no. Interstate sales may be made only when three circumstances are met: First, the sale must be face-to-face with a dealer across his business counter; second, the sale must be subject to recordkeeping for tracing purposes; and third, the sale must comply with the law of both the buyer's and seller's State. Compliance with State law is required by the bill; a violation of this command is a felony.

No. 5: Why not a waiting period? I can say that 34 States have rejected such restrictions. Why should the Federal Government resume to impose one?

We prefer to allow the States to make up their minds and to do whatever they decide is right in this area.

The leading law enforcement agencies-Department of the Treasury and Department of Justice-agree that these waiting periods do little or nothing to deter crime and they oppose a national waiting period. Criminals, of course, do not wait in line and subject themselves to recordkeeping and potential tracing to get a firearm. They steal or get their guns through other unlawful means. A high percentage of crimes committed are committed with illegally obtained weapons.

Studies have shown that over 80 percentage of all crimes committed with guns were committed with guns which were obtained through illegal channels. A waiting period would have little effect on crime but would burden sportsmen and other law-abiding gun owners.

Mr. President, I ask unanimous consent to have printed in the RECORD a factsheet on the Firearms Owners Protection Act; a statement of Ferris E. Lucas, executive director, National Sheriffs Association; a statement of Vince McGoldrick, chairman, National Legislative Committee, Fraternal Order of Police; and a statement by our colleague, Senator SASSER, entitled ĺ─¨Gun Control Act Amendments Needed Now.ĺ─¨

There being no objection, the material was ordered to be printed in the RECORD, as follows:

FACT SHEET: THE FIREARMS OWNERS PROTECTION ACT

1. Engaged in the Business.-Existing law requires those engaged in the business of gun dealing obtain a license, but doesn't expressly define ĺ─¨engaged in the business.ĺ─¨ The result is a hodgepodge of definitional interpretations found in court rulings, interpretations which vary from circuit to circuit. This has led to many collectors being convicted for just a few sales which were made during the regular and normal course of their collecting or hobby activities. The Protection Act expressly defines ĺ─¨engaging in the businessĺ─¨ to include only dealing with the intent of making livelihood and profit (business and commercial motives). Hobbyists and collectors who intend only to enhance their personal collections or hobby by their activities are specifically protected from the threat of prosecution

2. State of Mind.-For the most part existing law requires no proof of criminal intent, resulting in felony prosecutions and convictions for acts which were unintended (e.g. ĺ─¨engaging in the businessĺ─¨ by a few gun sales) or based on inadvertent violations. The Protection Act creates a demanding intent requirement for each violation of the 1968 Gun Control Act. Those violations generally applicable to persons possessing specialized knowledge of gun laws (e.g., legal machine gun owners) or violations which contain elements that target real criminals (e.g., transportation of a stolen firearms, knowing or having reasonable cause to believe that the firearms are stolen) would require a ĺ─¨knowingĺ─¨ criminal intent standard. Those violations susceptible to unintentional commission are governed by the higher ĺ─¨willfulĺ─¨ standard. Under these provisions alone, some estimates state that 75% of BATF's victims would have been acquitted.

3. Warrantless Inspection.-Current law allows warrantless inspection of dealers' premises anytime during business hours. The Protection Act generally makes reasonable cause and an administrative warrant a requirement for inspection of dealers' premises. Limited exceptions are provided; (1) for a criminal investigation of someone other than the dealer who is being inspected; (2) for regulatory inspection-but only once a year, only after notice, and no charges may be based on the regulatory inspection except for willful recordkeeping violations and sales to prohibited persons (e.g., convicted felons); (3) for tracing of particular firearms, as a part of a bona fide criminal investigation. Licensed collectors are also protected by the Act. The Protection Act would essentially end mass, random audits.

4. Ammunition Recordkeeping.-The Protection Act eliminates ammunition recordkeeping and the requirement of dealers' licenses for ammunition-only dealers.

5. Pardons, Etc.-The Protection Act provides that a person convicted of a felony who secures a pardon, restoration of civil rights, or whose record has been expunged is no longer considered a felony for the purposes of possessing firearms-courts have held this not true under existing law.

6. Firearms Seizures and Forfeitures.-Existing Law permits seizure and forfeiture of guns that are more probably than not ĺ─¨intended to be usedĺ─¨ in federal firearms violations, does not expressly require their return if the owner is acquitted of criminal charges, puts no time limit on their being held, and gives the owner no remedy if he wins return. The Protection Act requires ĺ─¨ clear and convincingĺ─¨ evidence that guns are ĺ─¨intended to be usedĺ─¨ in federal firearms violations, requires that each gun be individually tied to the violation, that they be returned if the owner is acquitted on the criminal charges, that forfeiture actions be begun within 120 days after seizure, and grants the gun owner an attorney's fee if he sues for their return and wins. Wholesale seizures of entire gun collections will be significantly limited

7. Interstate Sales.-the Protection Act would allow sale by licensed dealers to non-resident buyers so long as neither the laws of the place of sale nor those of the purchaser's residence are broken.

8. Interstate Travel With Firearms.-The Protection Act would grant a right to transport firearms despite state and local laws which have the effect of prohibiting the transportation of firearms through a state or locality

 

[Begin p. 18180]

 

when the firearms are unloaded and not readily accessible. This is intended to prevent state or local laws, which may ban or restrict firearm ownership, possession, or transportation, from being used to harass law-abiding travelers.

9. Dealer Collections.-The Protection Act would create an exception from recordkeeping for all private sales by licensed dealers from their private collections as long as the firearms have been separate from inventory for more than a year and were not transported to a private collection to avoid recordkeeping.

10. Relief for Past Abuse Victims.-Current law allows a felon to apply for a ĺ─¨relief from disabilityĺ─¨ which, if granted, enables him to own guns again. But it excludes from this anyone convicted of a Gun Control Act violation. Thus all collectors, dealers, and other gun owners convicted by misuse of the law in the past are forever barred from gun ownership. The Protection Act removes this exclusion so they can apply on an equal basis with anyone else-and, given their clean records and technical violations, should be able to obtain relief.

11. Attorneys' Fee.-As a penalty for abuse and to prevent damage to the innocent, the Protection Act requires judges to award an attorney's fee to a gun owner if the enforcing agency's action is vindictive or commenced without legal basis. This applies to criminal as well as civil proceedings

12. Regulations.-The Protection Act requires that regulations issued be only those necessary to enforcement of the Act. (Current law allows any regulations the Secretary thinks reasonably necessary, a broader standard).

13. License Revocation.-The Protection Act provides that, where a licensee has been charged with, and acquitted of, criminal charges, those same transactions may not be used as the basis of a license revocation. The enforcing agency now is able to follow an acquittal with a license revocation action, doubling legal expenses for the dealer.

14. Enhanced Penalties for Criminal Use of Firearms.-The Protection Act would provide extra penalties for the criminal misuse of firearms during felonious crimes of violence. Probation, suspended sentences, paroles, and furloughs are ruled out for the violent misuser of firearms and the extra penalties would not run concurrently with any other sentences which form the basis for the enhanced penalties.

15. Importation of Sporting Firearms.-Current law provides that the Secretary of the Treasury may authorize the importation of firearms which are generally recognized as particularly suitable for sporting purposes. The Protection Act provides that the Secretary of the Treasury shall authorize the importation of firearms which are suitable for or readily adaptable to sporting purposes.

16. Dealer Sales at Gun Shows.-Current law generally forbids licensed dealers from selling firearms at gun shows while non-licensed individuals are not restricted. As a practical matter, the licensed dealer goes to gun shows and displays his goods. The buyer selects the firearm he wants and pays the dealer who then either gives the firearm to a local licensed dealer for delivery to the buyer for an additional ĺ─¨transfer feeĺ─¨, or returns to his place of business and there transfers the firearm to the buyer. In either case, the buyer from a licensed dealer is inconvenienced in a fashion not experienced if he had purchased his firearm from a non-licensed individual. The Protection Act would permit licensed dealer sales at gun shows from a local dealer to a resident or non-resident buyer as long as the usual paperwork is filled out. This would place the licensed dealer on an equal footing with the private individual and save the buyer both time and money.

17. Prohibited Persons Defined.-The Protection Act consolidates the several separate and inconsistent statutes setting out classes of prohibited persons into one easily identified group of individuals who are prohibited access to firearms.

ĺ─ţĺ─ţ

STATEMENT OF FERRIS E. LUCAS, EXECUTIVE DIRECTOR, NATIONAL SHERIFFS' ASSOCIATION

Mr. Chairman, my name is Ferris E. Lucas, Executive Director of the National Sheriffs' Association. As you know, I am not a stranger to the Committee on the Judiciary. Over the past couple of decades I have testified on numerous occasions before this Committee and various Subcommittees under your jurisdiction. Once again, therefore, it is my pleasure to share with the Committee the thoughts and positions of the National Sheriffs' Association which I represent, relative to S. 1030, the McClure/Volkmer Federal Firearms Owners Protection Act-which our members overwhelming support.

The National Sheriffs' Association promotes legislation beneficial to sheriffs nationally and to the professionalism of law enforcement so we may enjoy the preservation of life, liberty and the pursuit of happiness as these were guaranteed by the Constitution and the Bill of Rights. Further, the NSA, strongly supports the individual right to keep and bear arms as guaranteed by the Second Amendment to the Constitution.

Mr. Chairman, it is apparent that civilians need to protect themselves. There are not enough sheriffs or police officers to protect law-abiding citizens from the criminals who prey on our society. Therefore, it is no wonder that as long ago as 1972 that the National Sheriffs' Association adopted a resolution calling for mandatory sentences for persons convicted of crimes in which a firearm is used, independent of the sentence they may receive for the specific crime. It is exactly this proposal which is incorporated in McClure/Volkmer which imposes mandatory time, without probation, parole or furlough for use of a firearm in a federal felony against the person.

The NSA represents sheriffs and deputy sheriffs of the counties of all the states in the union. We have approximately 56,000 current members of the NSA who are both active and retired members. Of our nationwide number of sheriffs, these include 3,104 active sheriffs who are in turn responsible for over 160,000 deputies. Although some of our sheriffs may be responsible for enforcing the law over areas in excess of 20,117 square miles, they receive the bare minimum of law enforcement funds to carry out their responsibilities. With these fiscal handcuffs tightening around our wrists we will be expected to do even more with even less in the coming years. The tendency of Federal, state and local authorities to continually impose more laws and provide less enforcement will make this situation continually worse. Further, there are not only the geographical strictures on our members, but also the legal ones. Evidence which a Court in retrospect decides was improperly obtained is kept out even where the officer honestly believes that he or she was acting properly. The practical effect is that an officer in the field is judged as if he or she had a law library in the trunk of the car and a law clerk in the back seat.

Gentlemen, we are here today testifying in favor of McClure/Volkmer. Mr. Chairman, the members of the NSA are in the front line of criminal law enforcement. We are charged with the enforcement of the laws which protect our citizens against murderers, robbers, rapists, and other serious offenders who by definition prey upon society. And we deal every day with the citizens, both young and old, who have been the victims of these predators.

The laws which we enforce are not predominantly regulatory ones; they are laws whose infringement inflicts directly criminal harm on our citizens. Regulatory laws, of course, may indirectly hinder criminal action and cause more work for our members, but when law enforcement resources are limited they necessarily draw resources away from enforcement which has a direct impact upon criminals and violent crime. Every law enforcement officer who is enforcing a regulatory statute, such as the Gun Control Act, means one that is not available to answer a breaking and entering call, a robbery in progress call, a rape in progress call or to provide the routine assistance to the public that so often is the case

Accordingly, just as we support obtaining increased resources for our members, we support the removal of increased enforcement burdens which either do not hinder criminals or hinder them so indirectly as to be almost useless. McClure/Volkmer is a bill which will have exactly this impact.

For example, the existing Federal Gun laws make it a felony for a private citizen to give or sell a firearm to resident of a different state, even though this would violate the laws of neither state. This can have no logical basis; the only reason to prevent an interstate transfer is to prevent the evasion of local laws and if there are no local laws, why is this a federal issue?

A McClure/Volkmer would take care of this by prohibiting interstate sales only where it would violate the laws of where the sale was made or where the buyer resides.

Lastly, another very important provision of McClure/Volkmer is the addition of the word ĺ─¨willfulĺ─¨ to the section outlining the criminal penalties. As it is the most technical violation, committed with the most innocent intent, is as serious a violation as any other. This bill would require that a violation be ĺ─¨ willfulĺ─¨, committed with a criminal intent, before it can be federally punished. The NSA strongly endorses the addition of ĺ─¨willfulĺ─¨ to this section.

The only argument for permitting federal prosecution of an unintentional violation is it is too much work for federal agents to ascertain whether the individual acted with illegal intent. Our members, who every day enforce criminal statutes requiring far more detailed proof of intent of this (the requirement of premeditation and malice of forethought for murder is the most obvious one) do not consider this realistic. Frankly, if you have the resources to prosecute unintentional technical violators of the Gun Control Act, give them to our members, and we will use them instead to prosecute murderers, rapists, armed robbers, and burglars

The voice of the people is the supreme law. If law enforcement is to have a voice in the future of America, it must make that voice heard in the Halls of Congress and in state and local legislatures across America. Won't you cooperate with us? It is time to

 

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consider a change. We believe McClure/Volkmer is the needed change at the needed time.

Thank you.

STATEMENT OF VINCE MCGOLDRICK, CHAIRMAN, NATIONAL LEGISLATIVE COMMITTEE FRATERNAL ORDER OF POLICE

Mr. Chairman, my name is Vince McGoldrick and I speak on behalf of the Fraternal Order of Police. The Fraternal Order of Police is the oldest and largest police organization in the United States. Our membership presently consists of approximately 160,000 active or retired law enforcement personnel. I myself retired after 23 years of police service, both civilian and military.

As police officers, our members have a uniquely detailed view of crime and the criminal justice system. They are among that small part of the population obligated by the law and their oaths to move against a criminal act or public danger, rather than avoid it. As a result, police officers and their families bear a disproportionate part of the burden of criminal tragedy, in the form of deaths and injuries in the line of duty. In the past decade, 1,147 law enforcement officers have been murdered in the line of duty; last year alone, over 57,000 were assaulted.

With this burden, law enforcement officials have a unique responsibility. They are the front line of law enforcement. The legislature may enact laws, the judiciary may interpret them, but it is the police officer, deputy or agent on duty who must decide whether and how they should be applied to any particular case. If the law to be enforced is restricted and clear, and covers only acts society really wants punished in every case, the application is simple. But when the law is vague, or overbroad, or really intended to be applied only in exceptional cases, it is the individual officer who must make that decision. All too often, he or she must make it without any particular guidance.

As police, we therefore favor laws which are certain and clear, and define as concisely as possible those acts which policymakers really want punished. We support firm and sure punishment for those who violate such laws. For both these reasons, the Fraternal Order of Police strongly supports S. 1030, the McClure/Volkmer bill:

S. 1030 represents a series of amendments to current federal firearm laws, chiefly the Gun Control Act of 1968. The effect of the bulk of these amendments is to reform the Gun Control Act in ways that make it more rational, more clear, more narrowed and more precise-in a phrase, more enforceable

Many aspects of the Gun Control Act, as it exists, are enforcement nightmares. The Act outlaws, and imposes felony penalties upon, a wide range of conduct in which ordinary, honest citizens regularly engage. Under it, a transfer of a firearm to a resident of another state, in full compliance with all state laws, is a federal felony. To ĺ─¨engage in the business of dealingĺ─¨ in guns without a license is a felony-yet no section of the law tells enforcing agents just what Congress meant by that phrase. To distribute ammunition to others without a manufacturers' license is a felony, although we may suppose that the law's drafters did not intend the arrest of the millions or tens of millions of law-abiding citizens who have done just that. The agent or officer who must enforce such requirements is left completely at sea when it comes to knowing just what enforcement was really intended, and sometimes even just what is legal or illegal.

Even where the commands of the law are clear, they are often irrational. A licensed dealer cannot, of course, sell to a convicted felon. A private citizen, who is guilty of a felony if he sells to a resident of another state,can sell to a convicted felon. One section defines five classes of people who cannot receive firearms; another defines four classes who cannot possess them. Yet, only two of those classes overlap (felons and former mental cases) and even these are defined differently in each of the two sections! The terms of the Gun Control Act are thus not only overbroad and vague, but also they are sometimes even inconsistent, arbitrary and capricious. A person charged with enforcing the law, whose decisions must be made in the field and not in a legislative hearing room, deserves better descriptions of what conduct you desire stopped and punished.

S. 1030 goes far to remedy these problems. It creates a precise definition of prohibited firearm owners, and this definition applies uniformly to private and to dealer sales, to receipt, transportation and ownership of firearms. It defines ĺ─¨engaged in the businessĺ─¨, and makes it clear that Congress desires ĺ─¨ willfulĺ─¨ violators, and not those who accidentally transgress with innocent intent, to be arrested and prosecuted. Enforcement of the law is accordingly made less burdensome and more certain. The Fraternal Order of Police strongly supports these improvements in the enforceability of the Gun Control Act.

We also support S. 1030's efforts to increase penalties for criminal misuse of a firearm. The Gun Control Act is primarily a regulatory statute. It is not used to prosecute a murderer, rapist, or robber as such. Instead, it permits prosecution of those who violate regulatory measures (licensing, recordkeeping, interstate sales) in the hopes that this might indirectly hinder the actual criminal. The major exception to this arrangement is found in section 924(c) of the Act, which imposes stiffer punishments upon anyone who uses or carries a firearm in commission of a federal felony. The chief problem is that the additional penalty is not a mandatory penalty-that is, the offender can receive probation or parole without limitation-unless it is a second conviction under that specific section. Since, to the best of my knowledge, no one has ever been twice convicted under 924(c), a judge who desires to give a violent federal offender probation can simply give him the additional term with probation or suspended sentence

S. 1030 changes this, imposing a mandatory sentence-no probation, parole, work furlough or any other form of release-for use of a firearm in a federal crime against the person. The Fraternal Order of Police strongly endorses this proposal. Indeed, we as police have a personal stake in laws of this type. Studies of murders of police conducted by the Federal Bureau of Investigation have shown that for nearly three-quarters of such killers this was not their first offense. 39% had received probation or other similar leniency from the judicial system. No less that 25% were on probation or parole for past offenses when they murdered the police officer. While we as law enforcement personnel are the most exposed to the recidivist, we are not the only ones at risk. An LEAA study of convicted robbers found that most were career criminals who began their criminal acts by age 14; they averaged over two prior felony imprisonments, before beginning their current robbery term. The Fraternal Order of Police therefore strongly endorses laws such as S. 1030, which seek to incarcerate serious offenders

The Fraternal Order of Police thus considers S. 1030 to be a vast improvement over the Gun Control Act as it now exists. It clarifies, tightens and makes rational the all too often vague and inconsistent provisions of that Act. We therefore support it from our standpoint as law enforcement professionals. And we also support it as individuals. Many, if not most, of our members are themselves firarms owners in private life. We enjoy the safe and legitimate uses of firearms for sport and collecting and we support their necessary use for self-defense. On-duty police, who form a small part of one percent of the population, cannot be everywhere at every time, particularly when the criminal has the advantage of picking the time and place of the offense. As firearms owners as well as law enforcement professionals, we support S. 1030's move to reorient the federal firarm laws away from the legitmate users of firearms and toward stiffer punishment for the criminal.

ĺ─ţĺ─ţ

GUN CONTROL ACT AMENDMENTS NEEDED NOW

Mr. SASSER. Mr. President, approximately 2 months have passed since the introduction of ĺ─¨A Bill to Protect Firearm Owner's Constitutional Rights, Civil Liberties, and Right to Privacy,ĺ─¨ a bill which I have cosponsored. I am pleased to be able to say that over half the Senate has, in those 2 months, elected to sign on to this needed legislation. We may look forward to passage of this bill, but I feel that it is desirable to discuss now the need for this legislation and its historical context.

The primary thrust of this bill is aimed at amending the Gun Control Act of 1968 to change its most onerous provisions and institute guarantees of gun owners' civil liberties which were omitted from the act. To understand how those guarantees were omitted, we should examine the historical background of the 1968 act.

What ultimately became the 1968 Gun Control Act originated in 1963, as a relatively modest measure to require police notification before mail-order firearm purchases. Over the following years, as the gun control controversy expanded, so did the proposed legislation. It finally came to the floor in 1968 in a politically charged atmosphere. Those who sought extensive Federal regulation of gunowners fought for registration and permit systems; those who opposed it primarily fought against these proposals. The Gun Control Act was not a coordinated piece of legislation, but a hodgepodge of proposals which neither side particularly wanted, inserted piecemeal as the legislative battle see-sawed back and forth. No sooner was it enacted-as part of the Omnibus Crime Control and Safe Streets Act-than a new push was started for amending the bill.

A second piece of legislation, entitled the Gun Control Act of 1968, was passed, which amended various provisions of the first bill, making it apply to rifles and shotguns as well as pistols, creating a collectors' licensing system, amending provisions for review of license denials, and generally clouding the issue to a still greater degree. The end result was a strange piece of legislation. Among its other unusual features:

ĺ─¨Four classes of persons are prohibited from purchasing or receiving firearms (sec-

 

[Begin p. 18182]

 

tion 922), and six classes of persons are forbidden possession of firearms (section 1201). But only two of these classes overlap and even here the classes are defined in different language: the result is that most of the groups forbidden receipt of firearms are not forbidden possession and vice versa.

ĺ─¨The section limiting possession by persons convicted of an offense punishable by more than one year provides that a pardon ends the prohibition-but the drafters of the section limiting receipt of a firearm by the same class forgot to insert a similar provision. Accordingly, the Seventh Circuit has held that a person given a full pardon is allowed to possess a firearm, but commits a felony when he receives it to begin possession. (Thrall v. Wolfe. 503 F.2d 313 (7th Cir. 1974).)

ĺ─¨The Act makes it a federal felony to ĺ─¨engage in the businessĺ─¨ of dealing in firearms without a special license but fails to give any guidelines of any sort on what ĺ─¨engage in the businessĺ─¨ means. This is vital to legitimate gun collectors, who often swap or sell a few firearms out of their collection. Courts have repeatedly held that, in absence of a legislative definition, there is no minimum profit, no requirement of advertising, employment of others, or premises used for business. The jury is simply instructed that the defendant should be convicted if they find he did ĺ─¨any businessĺ─¨ in firearms. One court has even claimed that the display of a firearms collection in a glass case is listed among the characteristics associated with a ĺ─¨firearms business venture,ĺ─¨ so that a normal collector's display at a gun show is itself evidence of violation. (United States v. Jackson, 352 F. Supp. 672 (D. Ohio 1972) aff'd 480 F.2d 927 (6th Cir. 1973).)

ĺ─¨The Act requires a federally-licensed firearms dealer to keep records of his inventory and sales, and does not require private citizens to do so. But it says nothing about what a dealer who has a private collection, not in his business inventory, should do if he sells a part of that collection as a private citizen. The agency enforcing the gun laws itself cannot make up its mind on this issue, but the persons who pay are law-abiding gunowners. In 1972, the agency formally ruled that a dealer did not have to record in his inventory personal firearms, even if they were on his business premises, if they were marked not for sale. It then proceeded to prosecute several dealers whom its agents enticed into selling guns from their private collection. At their trials it argued that its ruling, if read carefully, only said personal firearms did not have to be recorded in the inventory, not that their sale did not have to be recorded in sales records. But even while one of these prosecutions was pending, the head of the agency stated, in writing, that the dealer may ĺ─¨ maintain a private collection independent of the business inventory and lawfully dispose of such firearms without entering the transaction in the business records.ĺ─¨ When confronted with this statement by its acting director, the agency responded that (1) the director was mistaken as to the law and (2) since mistake of law is no defense under the Act, the fact that the dealer here had the same misunderstanding is no protection to him! If this were not enough, since that date the agency's director has been quoted again as advising dealers that they may indeed have a private collection and sell from it off their business premises! No one seems to know what a dealer should do in this case-except that if he wrongly guesses the agency's position this month, he will be prosecuted on federal felony charges.ĺ─¨

The vague and often inconsistent commands of the Gun Control Act would be a serious enough imposition to the citizens of this Nation, but they are compounded by two general problems. The first is that every violation, no matter how trivial or technical, is a Federal felony. Not only are those who violate subject to 5-years imprisonment in a Federal institution plus a $5,000 fine, they lose most civil rights-to vote, hold office, and so on-even if their honest nature leads the judge to impose no real punishment. More than this, they totally lose the right to possess any firearm for the remainder of their lives. While a person who knowingly and intentionally commits a barehanded murder or robbery can theoretically get an administrative ĺ─¨relief from disability,ĺ─¨ enabling him to own firearms, a person convicted of a minor and unintentional Gun Conrol Act technically cannot-another of the harmful quirks of that legislation.

The second general problem is that most sections of the Gun Control Act require no proof of intent in order to obtain a conviction. The requirement of proof of criminal intent has been ingrained in our legal system from its beginnings; Blackstone went so far as to state that a crime without criminal intent was unknown to the common law of England. In Morisette v. United States, 342 U.S. 246 (1952), our Supreme Court went so far as to read an intent requirement into a statute where Congress has failed to insert that requirement. It stated that to do otherwise would ĺ─¨radically change the weight and balances of the scales of justice,ĺ─¨ and that the effect would be to ĺ─¨ease the prosecution's path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries.ĺ─¨ Id. at 263.

The Morisette court's condemnation of this as a ĺ─¨manifest impairment of the immunities of individualsĺ─¨ was expanded a few years later when the Court added that ĺ─¨were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.ĺ─¨ Lambert v. California, 355 U.S. 226, 230 (1957). Unfortunately, the Congress failed to place intent requirements in most of the provisions of the Gun Control Act. In United States v. Powell, 513 F.2d 1249 (8th Cir. 1975), the court went so far as to say that, in an ĺ─¨engaging in the businessĺ─¨ prosecution, reliance on an attorney's opinion that the conduct was lawful is no defense.

The 90th Congress most definitely did not have to enact such a complicated gun control law, but the combination of the language they chose in the Gun Control Act and the interpretations the courts have placed upon that language had exactly that effect. Commands so vague that even the head of the agency charged with their enforcement cannot define them combined with the doctrine that ĺ─¨ignorance is no excuseĺ─¨ produce a law custom-made to ensnare law-abiding citizens who exercised their right to own and use arms. This opportunity fitted in perfectly with the bureaucratic expansion of the enforcing agency, the Bureau of Alochol, Tobacco and Firearms (BATF).

Between 1968 and 1972 for instance, the Bureau was able to expand its employment of special agents from 985 to 1,622. Before the Gun Control Act, the agency had only been able to employ 214 agents for firearms enforcement; 5 years later it was able to thus employ almost a thousand.

Bt the BATF apparently found that enforcing the law against genuine criminals-for example, convicted felons who illegally owned firearms-was not suitable to mass production of arrests that could be used as a ĺ─¨numbers gameĺ─¨ to justify still more employment of agents.

Instead, it has engaged in frequent entrapment of licensed dealers and private collectors. They were easily located, were not evasive or even expecting undercover approaches. They had no criminal intent, but the law did not require proof of such for charges or conviction. The broad language of the act and the vagueness of its commands insured that they cold easily be lured into a technical violation.

Collectors were approached by agents who purchased two, four, or six guns from their collection. They were then raided, charged, and their collections confiscated on ĺ─¨engaging in the business of dealing in gunsĺ─¨ charges. Dealers were approached by nonresidents of their States, to whom they could not sell. When they turned down the nonresident, a resident agent with valid identification claimed to be a relative and bought the firearm legally ĺ─¨forĺ─¨ the nonresident. The dealer was then charged with a ĺ─¨straw manĺ─¨ sale. Other dealers were induced to make sales from their personal collections, then charged with having sold without proper recording, as I described earlier. In many areas, a virtual reign of terror came to dominate legitimate gun owners and collectors.

To date, three Senate and one House hearings have documented the extent of these abuses. These have established, among other things, that approximately 75 to 80 percent of BATF criminal fire-arms charges were being brought against individuals who had no criminal intent; that BATF itself admits barely 10 percent of its firearm charges are on ĺ─¨felon in possessionĺ─¨or ĺ─¨sale to felonĺ─¨ charges; that an assistant director of the Bureau had indicated in a private memorandum to the director that he ĺ─¨shuddered to thinkĺ─¨ that their errors might lead to conviction of innocent citizens; that agents have repeatedly confiscated collector-grade firearms, deliberately dropped them on concrete floors, stored them in damp areas, and otherwise damaged them: that in aggravation of this, agents have often refused to return seized firearms even after their owner has been acquitted, after grand juries refused to find even ĺ─¨ probable causeĺ─¨ to believe he had broken the law, or after the Bureau itself dropped charges.

These were not minor acts; in several cases the agents calmly informed individuals that the Bureau did not have to pay legal expenses, the individuals did, and if they sued to assert their rights, the expense would be beyond their means. BATF, to be sure, claimed to have ĺ─¨reformed,ĺ─¨ but the hearings document that, after the reforms, the percent of cases brought against felons in possession dropped and the value of seized firearms rose, indicating seizure of more collectors' items, not fewer

In short, this legislation is vitally needed. We must remove the opportunity for such abuses, and minimize the incentive for new ones by providing liberal remedies for firearm owners who successfully assert their rights. This bill would achieve these goals with a series of provisions, which I can briefly discuss here.

First, prosecution for unintentional violations would be ended. Now the Government must prove, beyond a reasonable, doubt, that a violation was willful before it can 


[Begin P. 18183]


obtain a conviction. A technical violation, by one who did not intend to break the law, can no longer form the basis of life-wrecking felon status.

Second, this bill would narrow and clarify the most vague commands of the Gun Control Act. The vague command that one refrain from engaging in the business would be clarified by a definition of that term as pertaining to engaging in the repetitive sale of firearms for the primary motive of profit, and as expressly excluding firearms hobbyists who dispose of their collection. This more nearly approaches what we commonly think of as a dealer-not a collector who exhibits his firearms and swaps or sells in pursuit of a hobby.

Another provision would recognize that a licensed dealer may have a private firearms collection, separate from his inventory, and so long as he keeps it separate may act as a private collector in acquiring, keeping, and disposing of it. No longer will those with a license be treated as second class citizens who even dispose of their own property in a manner permitted an ordinary, unlicensed citizen.

Yet another provision would coordinate the different sections listing persons banned from receiving or possessing firearms. As I mentioned earlier, existing law in this area is an ill-coordinated hodgepodge of different provisions-persons prohibited from owning guns may not be prohibited from receiving them, and vice versa, a pardon may permit a person to possess but not to receive, and so on. This bill coordinates these provisions into clear-cut commands: seven classes of persons, including all convicted felons who have not received pardons, reliefs from disabilities, or expungement of cases, are banned from possessing, owning, receiving or transporting firearms. The same rules on pardon, relief, and expungement apply to all such restrictions.

Third, this bill would remove the opportunity and incentive for harassment and civil rights violations. If a citizen is acquitted confiscated firearms cannot be withheld based on the charges of which he has been found innocent. Nor can firearms be witheld if the agency seizes them and refuses to bring charges within 120 days. The BATF has in the past seized firearms from an individual and, to cover the fact that the firearms were not involved in any violation, claimed that he ĺ─¨intended to useĺ─¨ them at some unspecified later date. This bill would remove the ĺ─¨intended to useĺ─¨ language from the confiscation section, allowing seizure only where the Bureau can establish firearms actually were used in violation of the law.

Given that the Governmental seizure of valuable private property without compensation, jury trial, requirement of proof beyond a reasonable doubt or any other safeguards normally accorded one whom the Government seeks to punish, is a procedure whose constitutionality skates upon thin ice to begin with, a limitation to property actually involved in violations is surely the minimum that justice requires.

As a means of enforcing these restrictions, the bill contains provisions that, where the owner of firearms must sue for their return, he is automatically entitled to a reasonable attorney's fee if successful. I see no reason why a citizen may have his property taken by the Government, win a finding that its taking was illegal and be saddled with legal fees while fighting a Government agency whose fees are paid from his pocket and those of every taxpayer.

Finally, the bill would remove several sections of the act which have been used for abuse and which constitute needlessly broad and wasteful restrictions. The most important of these is the ban on interstate firearm sales. When the Gun Control Act was being debated, it was initially proposed to ban interstate sales where the effect was to circumvent local laws-for example, where the buyer resided in an area where the acquisition of the gun would be illegal.

These proposals were rejected at the 11th hour due to drafting difficulties and instead a general ban on all interstate transfers-even where no local law existed that could be circumvented-was imposed. This, in turn, was altered by various exceptions-for firearms passing by will and devise, transferred to a dealer, replacement firearms, sales between contiguous States-but only of certain firearms and with special forms-and so forth. The result is to make inadvertent Federal felons out of honest citizens who transfer or give a firearm to a friend or relative who lives across a State line, even where they violate no State laws in so doing

This bill would replace this exception-riddled general ban with a simple, clear, and rational rule: an interstate transfer is legal if it violates no State or local law in the place of the sale and the place to which the buyer intends to take it. If it breaks local laws in either of these places, it is illegal

Another provision of the bill ends ammunition recordkeeping, another provision hastily inserted in the Gun Control Act. Even the agency enforcing the law has admitted that ammunition recordkeeping is of no measurable crime-fighting value and, with billions of rounds sold each year, the paperwork burden is enormous.

A third provision permits agents to enter the premises of dealers for record searches only where they have reasonable cause to believe a violation has occurred or there is evidence of such to be found. All too often, in the name of generating ĺ─¨makeworkĺ─¨ for appropriations time, or harassing a dealer, agents have spent hours or days examining his records without any reason to expect evidence of violation. We must remember that a firearms dealer, like any citizen, is entitled to his fourth amendment protection against search and seizure without probable cause. If an ordinary businessman is entitled to this protection when enforcement of OSHA is involved-and our Supreme Court has ruled that he is-I see no reason why the fact that he has chosen to transact firearms business should create an exception in the Bill of Rights.

In summary, I think this legislation is badly needed, to prevent future abuses of this type, to force the enforcing agency back toward real criminals and away from law-abiding gun owners, and in general to coordinate and add some reason to a hastily drafted and poorly formed statute. I am tired of the abuses which have been committed in its name-tired of having citizens without criminal intent being charged with felonies, tired of having honest collectors' museum-grade firearms seized as if they were likely to be used in crime, tired of agents who withhold firearms after their owners have been acquitted of all charges, tired of hearing that ĺ─¨ignorance of the law is no excuse,ĺ─¨ when the law is so vague the directors of the enforcing agencies admit ignorance of its provisions.

The 90th Congress acted hastily in drafting the legislation as it now stands; I suggest it is our duty in the 97th to end forever the violation of our Constitution and laws in the name of its enforcement.

Mr. HATCH. Mr. President, we have just been discussing the various recordkeeping provisions of S. 49 in conjunction with the recordkeeping provisions in the current 1968 Gun Control Act. Those favoring this amendment-to include the current Bureau of Alcohol, Tobacco and Firearms regulation (178.126) in S. 49-may not have reviewed the Senate record relative to this provision in 1968 after the act passed and regulations were promulgated to implement it. Thus, let me take the time first to report that Congress had no intent to require all law-abiding gun dealers to report all their firearms transactions to the Alcohol and Tobacco Tax <ATT> Division of the Treasury Department <currently BATF>. And, the Director of ATT likewise agreed that it was not their intent either.

I believe it is appropriate at this time to insert in the RECORD a letter from Harold A. Serr, Director, Alcohol and Tobacco Tax Division to Senator Frank Church clarifying the record information submission requirement for firearms licensees.

Mr. President, I ask unanimous consent to have printed in the RECORD the letter from Harold A. Serr, Director, Alcohol and Tobacco Tax Division, dated December 17, 1968, to our late colleague, Senator Church.

There being no objection, the letter was ordered to be printed in the RECORD, as follows:

Hon. FRANK CHURCH,

U.S. Senate, Washington, DC

DEAR SENATOR CHURCH: In response to your inquiry on December 17, 1968, I would like to assure you that under no circumstances does the Alcohol and Tobacco Tax Division intend to require licensed firearms dealers to submit all records of firearms transactions to a central location. This would be in effect gun registration and the Congress clearly showed its desires in this area when gun legislation was voted on.

The provisions of Section 178.125 and 178.126 are simply an effort to make workable the provisions of Section 923(g) of the Gun Control Act of 1968. This section of the statute states that licensees ĺ─¨shall submit to the Secretary such reports and information with respect to such records and the contents thereof as he shall by regulations prescribe.ĺ─¨

We contemplate the necessity of using these provisions of the statute when we become aware of violations of the law by an unscrupulous dealer. This is a very small minority who are in the firearms business but I would like to cite to you an example where we could have used this in the past. Our Special Investigators learned that a dealer was selling firearms (handguns) to residents of a bordering state whose law prohibited such purchases without a permit. Our agents approached the dealer and told him that if they gave their right names they would get in trouble back home. The dealer stated that they could give him any name they chose. So one of our agents stated that his name was Donald Duck and the other gave as his name Mickey Mouse. Both agents gave their address as Disneyland, California.


[Begin P. 18184]


When we find out that situations like this exist, we would require the dealer to submit records of his sales, not for the purpose of registration, but for the purpose of proceeding against the dealer for a criminal violation of the law.

I wish to assure you again that we have no intention of requiring law-abiding gun dealers to report their firearms transactions to us. Not only do we intend to comply with the intent of Congress in this manner but our resources are such that we would be totally inundated with paper if we tried to do otherwise.

If I can be of further assistance please do not hesitate to contact me.

Sincerely yours,

HAROLD A. SERR

Director, Alcohol and Tobacco Tax Division.


Mr. HATCH. Mr. President, we are prepared for any further amendments.

Mr. MATSUNAGA. Mr. President, a parliamentary inquiry.

The PRESIDING OFFICER. The Senator will state it.

Mr. MATSUNAGA. How much time is there on the bill itself?

The PRESIDING OFFICER. Seven hours and forty minutes.

Mr. MATSUNAGA. Mr. President, if I may address the bill itself in general, I wish to do so.

The PRESIDING OFFICER. The Senator from Hawaii is recognized.

Mr. MATSUNAGA. I ask unanimous consent that I may proceed for such time as I may require.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. MATSUNAGA. Mr. President, I rise to urge my colleagues to approve certain amendments which will be offered to S. 49 to strengthen current law and to correct several provisions of S. 49 which in effect would impede enforcement of the Gun Control Act of 1968.

At the outset, I must say that I am encouraged by the action taken by this body on June 24, 1985, to modify S. 49 in keeping with the intent of the 1968 Gun Control Act. I am referring specifically to the following amendments which were agreed to and which would:

First, tighten the provision allowing gun dealers to operate at temporary locations outside of their shops by defining temporary locations in consistence with current regulations of the Bureau of Alcohol, Tobacco, and Fire Arms covering sales at gun shows, so that gun sales made outside of their shops would be allowed only at gun shows or other events sponsored by legitimate gun organizations;

Second, delete the provision that would have barred any prosecution under the Gun Control Act of 1968 for violations resulting from simple carelessness;

Third, delete provisions that would have preempted gun laws in 20 States regulating interstate transportation of firearms in favor of new language establishing the limited right to carry an unloaded, inaccessible firearms in interstate commerce from one State to another where possession is lawful in both States

Fourth, prohibit the importation of barrels, frames, and receivers for ĺ─¨ Saturday night specialsĺ─¨-the 1968 Gun Control Act prohibits the importation of these small handguns, which are not suitable for sporting purposes but are frequently used in crimes; the importation of parts, however, has been allowed; and

Fifth, close the loophole in the National Firearms Act that allows, paramilitary members, drug traffickers and others to bypass Federal restrictions on the possession of automatic weapons.

Mr. President, in 1975 the Hawaii State Legislature enacted a handgun control law banning the ownership of cheap, nonsporting, concealable handguns, so-called Saturday night specials, in a major effort to reduce handgun violence in the islands. Unfortunately, it is generally agreed in our State that this law has not resulted in significant reductions in handgun crimes. The prime reason for this failure is that effective handgun control cannot be achieved through purely State and local initiatives. The Gun Control Act of 1968 preserves the authority of States and localities to regulate guns among their residents by prohibiting the interstate sale of guns. With the exception of very limited circumstances, a resident of one State cannot travel to another State and purchase a firearm. S. 49 would nullify this provision and authorize dealers to make face-to-face firearms sales to out-of-State customers if the sale would be lawful under the laws of the seller's and the buyer's jurisdiction.

I believe it is critical that we accept the amendment which will be offered by the senior Senator from Massachusetts <Mr. KENNEDY> to retain the prohibition of interstate sales of handguns. It would be practically impossible for a dealer to determine that sales to out-of-State purchasers conform to the applicable State or local laws which are in a constant state of flux and whose application may vary greatly according to individual State court decisions.

The Senate Judiciary Committee, when considering similar legislation in 1984, recognized that the interstate sale of handguns could jeopardize State and local law enforcement and added language to the bill to retain the restrictions on interstate sales for handguns with barrel lengths of less than 3 inches, the so-called snubbies. S. 49 does not contain this important Judiciary Committee amendment.

Another weakening provision of S. 49 would require advance notice to gun dealers before compliance inspections. At present, agents of the Bureau of Alcohol, Tobacco, and Firearms <BATF> are authorized to conduct suprise visits to inspect sales records maintained by federally licensed gun dealers. S. 49 would require that a dealer be given reasonable notice before an inspection. With less than 100 BATF agents and over 200,000 handgun dealers in this country, unannounced visits are necessary, if inspection is to serve as a deterrent and be effective in ensuring that weapons are distributed through lawful channels in a traceable manner, that sales to undesirable customers are prevented, and the origin of particular firełŢrms are detected. An amendment to be offered by the Senior Senator from Maryland <Mr. MATHIAS> would retain current law with respect to surprise Federal compliance inspections and should be supported.

The third amendment for which I urge support and acceptance is the provision being offered by my distinguished colleague from Hawaii, Senator INOUYE, and myself, which would require a 14-day waiting period between the time of negotiation for sale of a handgun and its time of delivery. This amendment would not mandate a criminal background check of the purchaser; rather, it would allow State and local authorities to exercise that option. It would also provide an exception from the waiting period for purchasers who present a notarized statement from the local police chief stating that immediate possession of the handgun is necessary for the individual's personal safety.

Such a waiting period, which was recommended by the 1981 Attorney General's Task Force on Violent Crime and which has broad support among the law enforcement community, will go a long way to facilitate background checks to keep handguns out of the wrong hands. It would also serve as a cooling off period for those intent on suicide or crimes of passion. I have supported a waiting period for handgun purchases during consideration of earlier legislation relating to handguns, and I would remind my colleagues that an identical provision was adopted by the Senate Judiciary Committee during markup of similar legislation in 1982.

Mr. President, I am convinced that these amendments to S. 49 which I have discussed briefly, are essential improvements which would enhance law enforcement and prevent handguns from falling into the wrong hands. They would not place undue restrictions on honest citizens with respect to the acquisition, possession, or use of firearms for recreational or other lawful purposes. I strongly urge my colleagues to approve these amendments which will be offered during consideration of S. 49. Without these amendments, the bill should not be passed.

 

[Begin p. 18185]

 

Mr. JOHNSTON. Mr. President, will the distinguished manager yield me some time?

Mr. HATCH. Mr. President, I am happy to yield as much time as the Senator may need.

Mr. JOHNSTON. I thank the distinguished Senator.

Mr. President, I rise in support of the Firearms Owners' Protection Act, S. 49. The issue of a citizen's right to bear arms and of the State to regulate that right is one which strikes at the heart of our Nation's political and judicial heritage. It is a matter for intense discussion and other heated debate, but this is as it should be. Few laws passed are absolutely perfect; sometimes we must go back and review them in order to resolve any imperfections and clarify the original intent. The bill before us today, the Firearms Owners, Protection Act (S. 49), is designed primarily to correct demonstrated abuses which are embodied in present law. Please allow me to reiterate the various reforms which this bill incorporates:

First, it defines, ĺ─¨engaging in the businessĺ─¨ in order to clarify whether a Federal firearms license is needed.

Second, it liberalizes interstate sales of firearms when such sales are already legal in both the State of sale and the State of purchase.

Third, it mandates that an element of criminal intention for prosecution and conviction of Federal firearms law violations be present.

Fourth, it clarifies procedures for firearms sales by a dealer from his own private collection.

Fifth, it permits inspection of a dealer's records for reasonable cause.

Sixth, it requires mandatory penalties for the use of a firearm during a Federal crime.

Seventh, it limits the seizure of firearms.

Eighth, it provides for the return of seized firearms, and grants attorney's fees in spiteful or frivolous lawsuits.

Ninth, it allows the interstate transportation of unloaded, inaccessible firearms

Contrary to popular hearsay, this bill would not allow for mail order or unlicensed pawn shop sales of firearms, nor would it restrict legitimate inspection of dealers' records.

This bill recognizes and reaffirms many of the most important constitutional rights of American citizens: to keep and bear arms, embodied in the second amendment; security from illegal and unreasonable searches and seizures, embodied in the 4th amendment; protection against the uncompensated taking of property; double jeopardy, and the assurance of due process of law as stated in the 5th amendment; and their rights against the exercise of authority, as stated in the 9th and 10th amendments.

Furthermore, S. 49 is the result of the beliefs of many that additional legislation is needed in order to correct problems-both actual and potential-within existing firearms statutes and their enforcement policies. The original intent of the Gun Control Act of 1968 was that:

It is not the purpose (of this title) to place under any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity . . . or to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.

In essence, this bill seeks to redress inaccuracies and inconsistencies present within current law. More importantly, it is designed to send a clear and powerful message to the owners, both legal and illegal, of firearms and to the agency responsible for the enforcement of our Nation's gun laws <ATF>: the rights of honest, law-abiding citizens will be upheld, and those charged with enforcement duties must direct their efforts and attention toward the activities of those violent criminals whose callous disregard for the rights of others is abhorrent. We must remember that our country's Constitution sets forth very clearly the rights of its citizens, and we must turn our attention to the actions of those who would abuse those rights. Sometimes it is necessary to remind ourselves exactly who are the criminals and who are the victims, both of crimes committed and of imperfect legislation. This bill is such a reminder. I intend to fully support the Firearm Owners Protection Act and I urge my colleagues to do the same.

I thank the distinguished colleague from Utah for yielding

Mr. HATCH. I thank my colleague

Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER (Mrs. KASSEBAUM). The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. HATCH. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

 

AMENDMENT NO. 508 

(Purpose: To provide that the making of false statements by a licensed dealer, licensed importer, or licensed collector be a misdemeanor)

Mr. HATCH. Madam President, I send an amendment to the desk and ask for its immediate consideration

The PRESIDING OFFICER. The amendment will be stated.

The legislative clerk read as follows:

The Senator from Utah <Mr. HATCH> proposed an amendment numbered 508.

Mr. HATCH. Madam President, I ask unanimous consent that reading of the amendment be dispensed with.

The PRESIDING OFFICER. Without objection, it it so ordered.

Mr. HATCH. Madam President, I ask unanimous consent that I be permitted to present this amendment in lieu of the simple carelessness amendment provided for in the unanimous-consent agreement.

The PRESIDING OFFICER. Without objection, it is so ordered.

The amendment is as follows:

On page 21, strike out lines 2 through 22 and insert in lieu thereof the following:

ĺ─¨(a)(1) Whoever-

ĺ─¨(A) other than a licensed dealer, licensed importer, licensed manufacturer, or licensed collector knowingly makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under the provisions of this chapter;

ĺ─¨(B) knowingly makes any false statement or representation in applying for any license or exemption or relief from disability under the provisions of this chapter;

ĺ─¨(C) knowingly violates subsections (a)(4), (a)(6), (f), (g), (h), (i), (j), or (k) of section 922;

ĺ─¨(D) knowingly imports or brings into the United States or any possession thereof any firearm or ammunition in violation of section 922(l);

ĺ─¨(E) knowingly violates any provision of this section; or

ĺ─¨(F) willfully violates any other provision of this chapter,

shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine.

ĺ─¨(2) Any licensed dealer, licensed importer, licensed manufacturer, or licensed collector who knowingly-

ĺ─¨(A) makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this chapter, or

ĺ─¨(B) violates subsection (m) of section 922,

shall be fined not more than $1,000, or imprisoned not more than one year, or both, and shall become eligible for parole as the Board of Parole shall determine.ĺ─¨.

On page 8, strike out lines 8 and 9 and insert in lieu thereof the following:

(B) by amending paragraph (3) to read as follows:

ĺ─¨(3) is an unlawful user of or addicted to marijuana or any depressant or stimulant substance or narcotic drug (as those terms are defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));ĺ─¨.

 

[Begin p. 18186]

 

On page 8, strike out lines 23 and 24 and insert in lieu thereof the following:

(B) by amending paragraph (3) to read as follows:

ĺ─¨(3) is an unlawful user of or addicted to marijuana or any depressant or stimulant substance or narcotic drug (as those terms are defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); ĺ─¨.

On page 10, strike out lines 1 and 2 and insert in lieu thereof the following:

(B) by amending paragraph (3) to read as follows:

ĺ─¨(3) is an unlawful user of or addicted to marijuana or any depressant or stimulant substance or narcotic drug (as those terms are defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));ĺ─¨.

On page 21, line 24, after ĺ─¨anyĺ─¨ insert ĺ─¨felony described in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or section 1 of the Act of September 15, 1980 (94 Stat. 1159; 21 U.S.C. 855a), or anyĺ─¨

On page 22, line 5, after ĺ─¨suchĺ─¨ insert ĺ─¨felony described in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or section 1 of the Act of September 15, 1980 (94 Stat. 1159; 21 U.S.C. 855a), orĺ─¨.

On page 22, line 14, strike out ĺ─¨included that imposed for theĺ─¨ and insert in lieu thereof ĺ─¨including that imposed for the felony described in the Controlled Substances Act (21 U.S.C. 801), the Controlled Substances Import and Export Act (21 U.S.C. 951), or section 1 of the Act of September 15, 1980 (94 Stat. 1159; 21 U.S.C. 855a), orĺ─¨.

On page 1, line 3, strike out ĺ─¨of citizensĺ─¨.

On page 1, line 7, strike out ĺ─¨theirĺ─¨ and insert in lieu thereof ĺ─¨theĺ─¨.

On page 2, line 2, strike out ĺ─¨theirĺ─¨ and insert in lieu thereof ĺ─¨theĺ─¨.

On page 5, line 19, strike out ĺ─¨the sale orĺ─¨ and insert in lieu thereof ĺ─¨the activity involving firearms, including the sale or otherĺ─¨.

On page 5, line 24, strike out ĺ─¨opposed toĺ─¨ and insert in lieu thereof ĺ─¨ distinguished fromĺ─¨.

On page 7, line 12, strike out the colon and insert in lieu thereof a semicolon.

On page 12, line 13, strike out ĺ─¨is soĺ─¨ and insert in lieu thereof ĺ─¨is in a licensee's personal collectionĺ─¨.

On page 12, lines 15 and 16, strike out ĺ─¨disposition or any acquisitionĺ─¨ and insert in lieu thereof ĺ─¨transferĺ─¨.

On page 14, line 3, strike out ĺ─¨explicitlyĺ─¨ and insert in lieu thereof ĺ─¨ expresslyĺ─¨.

On page 14, line 3, beginning with ĺ─¨the Actĺ─¨, strike out through ĺ─¨privacy'.ĺ─¨ on line 5 and insert in lieu thereof ĺ─¨this section.ĺ─¨.

On page 14, line 20, after ĺ─¨inspectĺ─¨ insert ĺ─¨or examineĺ─¨.

On page 14, lines 22 and 23, strike out ĺ─¨for a reasonable inquiryĺ─¨ and insert in lieu thereof ĺ─¨in the course of a reasonable inquiryĺ─¨.

On page 15, line 4, strike out ĺ─¨to prohibited personsĺ─¨ and insert in lieu thereof ĺ─¨in violation of section 922(d)ĺ─¨.

On page 15, line 5, strike out ĺ─¨inspections or inquiriesĺ─¨ and insert in lieu thereof ĺ─¨inspection or examinationĺ─¨.

On page 15, line 15, strike out ĺ─¨inspections or inquiriesĺ─¨ and insert in lieu thereof ĺ─¨inspection or examinationĺ─¨.

On page 15, line 23, strike out ĺ─¨Such procedureĺ─¨ and insert in lieu thereof ĺ─¨The inspection and examination authorized by this subsectionĺ─¨.

On page 16, line 21, strike out ĺ─¨explicitlyĺ─¨ and insert in lieu thereof ĺ─¨ expresslyĺ─¨.

On page 16, lines 22 and 23 and insert in lieu thereof ĺ─¨by this sectionĺ─¨.

On page 17, lines 8 and 9, strike out ĺ─¨tracing firearmsĺ─¨ and insert in lieu thereof ĺ─¨determining from whom a licensee acquired a firearm and to whom such licensee disposed of such firearmĺ─¨.

On page 22, lines 19 and 20, strike out ĺ─¨or destructive deviceĺ─¨.

On page 22, line 21, strike out ĺ─¨the good faithĺ─¨.

On page 22, line 21, insert a comma after ĺ─¨dangerĺ─¨.

On page 22, line 23, insert a comma after ĺ─¨personĺ─¨

On page 22, strike out line 24 and insert in lieu thereof the following: ĺ─¨ 'court finds that the perceived immediate danger was so perceived in good faith and that a sentence under this section would' ĺ─¨.

On page 22, line 25, strike out ĺ─¨justice andĺ─¨ and insert in lieu thereof ĺ─¨ justice.ĺ─¨.

On page 23, line 1, strike out ĺ─¨suchĺ─¨ and insert in lieu there ĺ─¨Theĺ─¨.

On page 27, line 22, strike out ĺ─¨925ĺ─¨ and insert in lieu thereof ĺ─¨926ĺ─¨.

On page 30, strike out lines 16 through 19 and insert in lieu thereof the following:

SEC. 201. Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 (sections 1201, 1202, and 1203 of the appendix to title 18, United States Code) is hereby amended to read as follows 

ĺ─¨SEC. 1201. (a) In the case of a person who violates section 922(g) of title 18, United States Code, and who has three previous convictions by any court referred to in section 922(g)(1) of title 18, United States Code, for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g) of title 18, United States Code, and such person shall not be eligible for parole with respect to the sentence imposed under this subsection.

ĺ─¨(b) As used in this title-

ĺ─¨(1) 'robbery' means any crime punishable by a term of imprisonment exceeding one year and consisting of the taking of the property of another from the person or presence of another by force or violence, or by threatening or placing another person in fear that any person will imminently be subjected to bodily injury; and

ĺ─¨(2) 'burglary' means any crime punishable by a term of imprisonment exceeding one year and consisting of entering or remaining surreptitiously within a building that is property of another with intent to engage in conduct constituting a Federal or State offense.ĺ─¨.

 

Mr. HATCH. Madam President, during negotiations in the 98th Congress relative to the scienter or state of mind requirements, there was a discrepancy between what the parties understood the term ĺ─¨knowingĺ─¨ to mean. Senator MCCLURE, who deserves great credit for his contributions to this legislation, expressed his concern that some courts have diluted ĺ─¨knowingĺ─¨ to mean ĺ─¨beliefĺ─¨ or ĺ─¨reckless disregardĺ─¨ rather than ĺ─¨actual cognizance.ĺ─¨ The simple carelessness language was added to the bill to clarify that the holding and rationale of those cases would not apply to the offenses covered by this bill. Unfortunately, attempting to set aside those cases by the addition of the simple carelessness language creates needless confusion and contradictions in S. 49.

Accordingly, this objective is more properly handled by the legislative history of the report to accompany S. 914 from the 98th Congress, which is the authoritative source for the intent of the Judiciary Committee, and the clear understanding of the manager and suppoters of this bill that these cases are not to be applied as a guide in ascertaining the meaning of the term ĺ─¨ knowingly.ĺ─¨ In voting or speaking on any aspect of this bill's revisions concerning mens rea, we intend to exclude the following cases from any consideration of the meaning of the term ĺ─¨knowingly;ĺ─¨ U.S. v. Graves, 394 F. Sup. 429 (W.D. Penn. 1975) aff'd, 554 F. 2d 65 (3rd Cir. 1977); U.S. v. Thomas, 484 F. 2d 909 (6th Cir. 1973) cert. denied 414 U.S. 912 (1973); U.S. v. Werner, 160 F. 2d 438 (1947); and in addition, any other case or cases which can be construed similarly to hold what these cases have been construed to hold

With this understanding, however, I must urge the Senate to comply with its earlier time agreement and delete the ĺ─¨simple carelessnessĺ─¨ language.

The ambiguity and confusion inherent in the term ĺ─¨simple carelessnessĺ─¨ might only be partially overcome by extensive legislative history explaining the narrow purpose of this terminology. It seems far preferable to devote that legislative history to Congress' intent that the cases I have mentioned above not be applied to offenses occurring under this act. This will avoid extensive confusion, yet accomplish our objective just as certainly as devoting legislative history to explanation of the meaning of the term ĺ─¨carelessness.

Madam President, I ask unanimous consent to have printed in the RECORD a letter concerning this question.

There being no objection, the letter was ordered to be printed in the RECORD, as follows:

 

DEPARTMENT OF THE TREASURY,

 Washington, DC, July 5, 1985

DEAR SENATOR HATCH: This responds to your request for the Administration's position on the so-called ĺ─¨simple carelessnessĺ─¨ defense in S. 49, ĺ─¨A Bill to protect firearms owners' constitutional rights, civil liberties, and rights to privacy.ĺ─¨

The provision in question, which appears on page 21 of the bill, lines 20 through 22, specifically states, ĺ─¨That no person shall be prosecuted under this subsection where the conduct of such person involves simple carelessness.ĺ─¨ The apparent purpose of the provision is to preclude the prosecution and conviction of person for an act of simple carelessness constituting a technical violation of the Gun Control Act, e.g., federally licensed firearms dealers who inadvertently violate the recordkeeping requirements of the Act in some minor or insignificant aspect.

The Administration believes that the defense is unnecessary inasmuch as other provisions of the bill would require proof of an accused's knowledge or intent in any prosecution under the Gun Control Act. Furthermore, the bill would amend 18 U.S.C. Section 924(a) to require as an element of proof that certain offenses were ĺ─¨knowinglyĺ─¨ committed on the accused's part, while the remaining offenses were committed ĺ─¨willfullyĺ─¨. For example, in a prosecution of a licensed dealer for the felony of falsifying records of firearms transactions required to be maintained by the dealer, the Government would have to establish that the


[Begin p. 18187]

 

dealer acted willfully, and not that he or she was simply careless. In view of the bill's provisions for these knowledge or intent elements, the ĺ─¨ simple carelessnessĺ─¨ defense could create confusion and ambiguity in the law.

We appreciate the opportunity to respond on this issue.

 

Sincerely,

EDWARD T. STEVENSON,

Deputy Assistant Secretary (Operations).

 

Hon. ORRIN G. HATCH,

U.S. Senate, Washington, DC.

 

Mr. HATCH. Madam President, this amendment makes one important substantive change and several technical changes in the bill. The substantive change involves the penalties to be assessed for a recordkeeping violation by a licensed dealer. Under current law, a knowing failure under 18 U.S.C. 922(m) to make appropriate entries in or to properly maintain the voluminous records required by the 1968 act is a felony. In light of the evidence received by the hearings on this subject, it seems perfectly logical that a penalty of up to 1 year in prison or a fine of not more than $1,000 or both will be sufficient to encourage licensed dealers, manufacturers, importers, or collectors to maintain proper records. The most important sanction for a pattern of recordkeeping violations is left undisturbed by this bill or this amendment, namely the discretion of the Secretary of Treasury to revoke the license of a dealer who fails to act in accordance with the law. The threat of being put out of business is probably sufficient in itself to ensure compliance with the recordkeeping requirements of the act.

On the other hand, this amendment reducing a licensed dealer's recordkeeping violations from a felony to a misdemeanor will also respond appropriately to the concern, substantiated by committee hearings, that dealers have been and can be subjected to harsh felony penalties for technical violations of the rigid recordkeeping standards. This amendment will also attenuate the need for language is S. 49 excusing willful or knowing violations if committed with simple carelessness.

As I mentioned earlier the other provisions of this amendment are technical. The provisons of current law preventing a drug abuser from obtaining firearms are updated to reflect new definitions of controlled substances. Drug offenses, although perhaps implicitly included in any Senator's list of violent crimes, is explicitly added to the list of violent crimes triggering a mandatory penalty if committed with a firearm. In addition several other clarifying or technical changes are made. Some of these are necessary to conform the bill to the enactment of the Comprehensive Crime Control Act of 1984. The 1984 Crime Act made certain changes in the law which would be unintentionally repealed by these later provisions of S. 49.

This amendment has been reviewed by the Department of Treasury for the administration which supports the single substantive and multiple technical changes contemplated by this language. At this point, I will explain briefly each of the changes contemplated by the amendment:

Brief description: This amendment contains the following elements: 1. The current felony for ĺ─¨knowinglyĺ─¨ making a false statement or representation on firearm records is reduced to a misdemenor for licensed dealers. 2. The provisions of current law preventing a drug abuser from obtaining fire-arms are updated to reflect new definitions of controlled substances. 3. Drug offenses are added to the list of ĺ─¨violent crimesĺ─¨ triggering a mandatory penalty if committed with a firearm. 4. Various important technical amendments are added, principally to conform S. 49 to the enactment of the Comprehensive Crime Control Act of 1984 (for example, in its current form, S. 49 repeals the recently enacted Armed Career Criminal Act.)

Explanation:

1. Reduction to misdemeanor. See pages 1 and 2 of this amendment changing provisions on page 21 of S. 49. In light of the concern, substantiated by Committee hearings, that a licensed dealer can be subjected to harsh felony penalties for technical or careless violations of recordkeeping requirements, 18 U.S.C. 922 (m) is reduced to a misdemeanor for licensed dealers. A ĺ─¨ knowingĺ─¨ state of mind is still required for a violation, but the penalty is only a misdemeanor. Anyone who knowingly misrepresents his status to a licensed dealer in order to acquire a weapon, e.g., a convicted felon knowingly concealing his criminal record, would remain subject to the penalties of current law under 18 U.S.C. 924 (a). Imprisonment up to a year and/or a fine up to $1000 should be sufficient to ensure that licensed dealers keep accurate and complete records. The more important incentive for a dealer to comply with these requirements is left untouched by this amendment and bill, namely the Secretary retains full discretion to revoke the license of any dealer who fails to uphold the law. The threat of losing the right to do business is probably sufficient alone to ensure compliance with recordkeeping requirements. This reduction to a misdemeanor, however, will appropriately refect the Senate's concern that inadvertant recordkeeping violations not become the basis for harsh criminal penalties. This amendment also attenutates the need for language in S. 49 excusing any ĺ─¨willfulĺ─¨ or ĺ─¨knowingĺ─¨ violation committed with ĺ─¨ simple carelessness.ĺ─¨

2. Redefining drug offenses. See page 3 of amendment changing provisions on pages 8 and 10 of S. 49. The existing references in the Gun Control Act (18 U.S.C. 922 (d) (3), (g) (3), and (h) (3)) to definitions of marihuana, depressant or stimulant drugs, and narcotic drugs cite repealed statutes. The current definitions of those terms appear in the Controlled Substances Act, 21 U.S.C. 802. This amendment will, therefore, clarify that these new definitions apply.

3. Drug offenses with firearm trigger mandatory penalty. See pages 3 and 4 of this amendment changing page 21 of S. 49. This will add serious drug offenses as predicate crimes for the application of the offense in 18 U.S.C. 924 (c) for using a firearm during the commission of violent crimes.

4. Technical amendments

On page 1 of S. 49, delete ĺ─¨of citizensĺ─¨ and make conforming grammatical changes because the right to keep and bear arms applies also to illegal aliens.

On page 5, insert ĺ─¨activity involving firearms, includingĺ─¨ because the provision applies to importers who do more than just sell or distribute firearms, specifically, an importer also imports.

On page 5, substitute ĺ─¨distinguished fromĺ─¨ for ĺ─¨opposed toĺ─¨ because the concepts described are not in opposition to each other, but only distinguishable.

On page 7, make a punctuation change, specifically change a colon to a semicolon.

On page 12, add ĺ─¨in a licensee's personal collectionĺ─¨ for the sake of clarity.

On page 12, use of the word ĺ─¨transferĺ─¨ puts the entire paragraph in the same language. There is no substantive difference between a ĺ─¨dispositionĺ─¨ and a ĺ─¨ transferĺ─¨, but since ĺ─¨transferĺ─¨ is used is earlier and is a term of art in the 1968 Act, it is preferable to retain that word for the same concept throughout the bill. Moreover the words ĺ─¨or any acquisitionĺ─¨ should be deleted because it is only the transfer of firearms from business inventory into a private collection that gives rise to the evasion of law this language is intended to prevent.

On page 14, replace ĺ─¨explicitlyĺ─¨ with ĺ─¨expresslyĺ─¨ and the name of S. 49 with ĺ─¨this section.ĺ─¨

On page 14, the current wording is not clear, specifically it is difficult to understand the phrase ĺ─¨to inspect or examine . . . for a reasonable inquiry.ĺ─¨ This substitutes ĺ─¨if the inspection is reasonably related to such investigationĺ─¨-a better wording of the Senate's intent.

On page 15, since ĺ─¨prohibited personsĺ─¨ is a term not defined by law, it would be better to refer directly to section 922(d), which defines specifically which persons are prohibited.

On page 15, change ĺ─¨or inquiriesĺ─¨ to ĺ─¨or examinationsĺ─¨ because examinations are the activities authorized by the earlier language of S. 49. Changing terminology could cause confusion. Several changes of this variety are necessary.

On page 16, make same changes as on page 14.

On page 17, the term ĺ─¨tracingĺ─¨ is not defined by the statute, this substitution makes clear that the intent of this provision is to determine from whom and to whom a licensee received and disposed of a firearm. Leaving this undefined term could lead to misconceptions about the Senate's intent.

On page 22, this section was rewritten by the Comprehensive Crime Control Act of 1984. This technical amendment clarifies the intent of the provision and makes it conform to current law.

On page 27, change ĺ─¨925ĺ─¨ to ĺ─¨926ĺ─¨.

On page 30, redraft the language which would otherwise inadvertently repeal the recently enacted Armed Career Criminal Act.

Mr. DALE. Madam President, I am pleased to join in cosponsoring this amendment. In light of the concern, substantiated by committee hearings, that a licensed dealer can be subjected to harsh felony penalties for technical or careless violations of recordkeeping requirements, 18 U.S.C. 922(M) would be reduced to a misdemeanor for licensed dealers under the amendment.

 

[Begin p. 18188]

 

A knowing state of mind is still required for a violation, but the penalty is only a misdemeanor. Anyone who knowingly misrepresents his status to a licensed dealer in order to acquire a weapon, for example, a convicted felon knowingly concealing his criminal record, would remain subject to the penalties of current law under 18 U.S.C. 924(A). Imprisonment up to a year and/or fine up to $1,000 should be sufficient to ensure that licensed dealers keep accurate and complete records.

The more important incentive for a dealer to comply with these requirements is left untouched by this amendment and bill, namely the Secretary retains full discretion to revoke the license of any dealer who fails to uphold the law. The threat of losing the right to do business is probably sufficient alone to ensure compliance with recordkeeping requirements. This reduction to a misdemeanor, however, will appropriately reflect the Senate's concern that inadvertent recordkeeping violations not become the basis for harsh criminal penalties.

Madam President. I circulated an amendment similar to the one we are accepting today during the Judiciary Committee's consideration of S. 1030 in the 97th Congress. I continue to view this as a much needed change. I am pleased that it is being incorporated into S. 49.

Mr. KENNEDY. Madam President, the Senator from Utah has explained the amendment as I understand it.

I hope that with the understandings we have reached, the Senate will accept the amendment.

I think it absolutely essential that we do make this change, and I welcome the fact that the managers have agreed to do so.

The PRESIDING OFFICER. Have all Senators yield back their time?

Mr. McCLURE. Madam President, will the Senator from Utah yield to the Senator from Idaho?

Mr. HATCH. I yield whatever time the Senator from Idaho needs.

Mr. McCLURE. I thank the Senator for yielding.

Madam President, I would have preferred had we kept the original language and the breadth of that original language with respect to the several offenses under the 1968 act.

However, I have been trying to meet the objections of people who were concerned with that new standard which is admittedly more ambiguous than current law, because the injection of a new standard as simple carelessness is an untried and untested standard.

But I would have preferred to do it in the text of the statute rather than to depend upon legislative history which specifically says it is our intention to override the court decisions that find to the contrary.

However, the change in the level of penalty with respect to two of the three recordkeeping violations to which the knowing state of mind applies is a sufficient incentive for me to accept the amendment, and the legislative history that has now been entered by the Senator from Utah will apply to the 11 provisions of the 1968 Gun Control Act which would, under McClure-Volkmer, only require a knowing violation. Therefore, with that balance between the reduction of penalty for two of the provisions and the legislative history for the remaining nine, I can accept that compromise.

The inclusion specifically of drug-related offenses among the offenses to which the mandatory minimum applies appears to me to be not only necessary but highly desirable to make very certain that we intend that the provisions of this act extend to that type of violation as well.

I, therefore, support the amendment and urge its adoption.

Mr. HATCH. Madam President, I move the amendment.

The PRESIDING OFFICER. Do Senators yield back their time?

Mr. HATCH. We are prepared to yield back our time.

Mr. KENNEDY. Madam President, we are prepared to yield back our remaining time.

The PRESIDING OFFICER. All time having been yielded back, the question is on agreeing to the amendment of the Senator from Utah. 

The amendment (No. 508) was agreed to.

Mr. HATCH. Madam President, I move to reconsider the vote by which the amendment was agreed to.

Mr. KENNEDY. Madam President, I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. HATCH. I thank the Chair.

Is the distinguished Senator from Massachusetts prepared to go ahead with his amendment?

Mr. KENNEDY. Madam President, I had understood that the Senator from Maryland <Mr. MATHIAS> was prepared to move forward with an amendment. We are just in the process of notifying him. I would hope that there would not be any unnecessary delay. If so, we are prepared to proceed.

So I suggest the absence of a quorum and ask unanimous consent that the time not be charged to either side.

The PRESIDING OFFICER. Without objection, it is so ordered.

The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. KENNEDY. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.


AMENDMENT NO. 509

(Purpose: To continue the prohibition on interstate sales of handguns)

Mr. KENNEDY. Madam President, I send an amendment to the desk and ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will report.

The bill clerk read as follows:

The Senator from Massachusetts <Mr. KENNEDY> for himself, Mr. MOYNIHAN, Mr. METZENBAUM, Mr. MATSUNAGA, and Mr. KERRY, proposes an amendment numbered 509.

Mr. KENNEDY. Madam President, I ask unanimous consent that further reading of the amendment be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered

The amendment is as follows

On page 7, lines 8 and 9, strike out ĺ─¨firearmĺ─¨ and insert in lieu thereof ĺ─¨ shotgun or rifleĺ─¨.

Mr. KENNEDY. A parliamentary inquiry, Madam President, I understand there is a time limit on this amendment; am I correct?

The PRESIDING OFFICER. The Senator is correct. There is a time limit of 1 hour, evenly divided.

(Mr. WEICKER assumed the chair.) 

Mr. KENNEDY. Mr. President, I yield myself 7 minutes.

Mr. President, once again I want to stress, as we continue this debate on the question of firearm legislation, that this amendment, which I and my colleagues offer, does not change or improve upon existing law-as much as I would like to do that-rather, it merely continues the existing law on the interstate sale of handguns, while relaxing those same laws on the sale of sporting weapons, rifles, and long-guns.

As I indicated at the outset of this debate, I have been willing for many years to join the sponsors of this legislation in reducing unnecessary restrictions and regulations on the purchase and sale of rifles and shotguns for hunting and sporting purposes. But I believe we must, at a minimum, continue current law with respect to handgun sales.

Handgun control is an essential part of effective law enforcement-as yesterday's press conference by all the major American police and law enforcement groups emphasized. The ready availability of lethal, concealable handguns undermines the fundamental effort to protect citizens from violent crime. As the police said in their statements, instead of weakening handgun controls, we should be working to keep handguns from falling into the wrong hands without jeopardizing in any way the legitimate sporting interests of our citizens or their interest in self-defense.

Mr. President, we all share the basic goal of the sponsors of this bill-to

 

[Begin p. 18189]

 

remove unnecessary regulatory burdens on the purchase of firearms by hunters and others for sporting purposes, and by law-abiding citizens seeking weapons for self protection. We should eliminate excessive redtape and regulations affecting the sale of rifles, shotguns and sporting weapons.

But we must not misuse this worthwhile goal as an excuse to weaken the law as it applies to the narrow category of handguns-especially snubbies and ĺ─¨ Saturday Night Specialsĺ─¨-which have not legitimate sporting purpose and which are often used in crime.

Over the past 4 years I repeatedly tried to draw this distinction during the Judiciary Committee's consideration of this bill; Congress can-and should-deal differently with long-guns than it does with handguns.

Yet, the pending bill goes far beyond this legitimate goal. Instead, it weakens both Federal as well as State laws governing the control of handguns.

This issue is not a concern of mine alone, Mr. President. It is a concern shared by all the major police and law enforcement associations in the United States.

Let me read from a joint statement issued by them yesterday, delivered by James Sterling, acting executive director, International Association of Chiefs of Police; Richard Boyd, national president, Fraternal Order of Police; Thomas J. Iskrzycki, chairman, National Troopers Coalition; Williams Matthews, executive director, National Organization of Black Law Enforcement Executives; and Gary P. Hayes, executive director, Police Executive Research Forum.

It is a statement that speaks for itself-a statement that echoes the concerns of local law enforcement officials all across this land over this bill's fundamental weakening of existing handgun control laws-and it is a statement that strongly supports this amendment.

They state:

ĺ─˙. . . Unfortunately, the pending legislation would legalize the interstate sale of handguns thus circumventing state and local laws to regulate handgun commerce. This would impair the ability of state and local law enforcement agencies to prevent handguns from being acquired, carried or possessed illegally.

Although S. 49 does make some reforms which meet the legitimate needs of hunters and sportsmen, we in the law enforcement community consider it urgent that those changes not be enacted in a manner that jeopardizes law enforcement's ability to respond to the use of handguns in violent crime.

Accordingly, we urge that when the Senate considers S. 49, it amend the legislation so that current law prohibiting the interstate sale of handguns is retained.ĺ─¨

That is what this amendment does, Mr. President

Equally important, we urge the Senate to take advantage of this opportunity to strengthen our federal laws by accepting the recommendation of the 1981 Attorney General's Task Force on Violent Crime and enact a waiting period to facilitate records checks for the purchase of handguns.

Those were two provisions that were included in the President's own commission for fighting violent crime.

In short, Mr. President, the law enforcement community in this country-the police officers, the State troopers, the chiefs of police, and many other law enforcement officers-have all spoken in support of this amendment to maintain existing law on the interstate sale of handguns.

From their point of view, the issue is pure and simple, it is a law enforcement issue-a crime control issue.

For those who are literally on the firing line, this is not an issue of restricting hunters or legitimate handgun owners in our society. Rather, it is an issue of keeping handguns out of the wrong hands.

Mr. President, let me conclude by saying once again that I have no objection to relaxing current limitations on interstate sales of rifles and long guns, but what possible justification is there to relaxing existing controls-which are modest already-on the sale of handguns?

We know 50 percent of all homicides in the United States involve handguns, compared to only 5 percent for rifles. We know that handguns, and particularly the ĺ─¨snubbiesĺ─¨-handguns with a barrel lenght of 3 inches or less-are the preferred instruments of criminals.

They are easily concealed. They have no accuracy beyond the range of a stickup. But they are lethal and a very effective tool for the common criminal.

All recent studies prove this-that there is a high correlation between the concealibility or a handgun and its use in criminal activity. The most exhaustive study was undertaken by the Cox News Service 4 years ago. After months of detailed statistical investigation, they found that 2 out of every 3 handguns used in murders, rapes, robberies, and muggings were with ĺ─¨snubbies.ĺ─¨ Two-thirds of all handgun violence is with a ĺ─¨snubbieĺ─¨-and handguns represent over half of all violent crimes in our society.

Why, Mr. President, would we want to ease existing laws on their interstate sale and transfer? How does making ĺ─¨snubbiesĺ─¨ easier to get advance the interests of hunters and sportsmen in our society?

The answer is that it makes no sense whatsoever-and that is the message that the police chiefs and troopers tried to give us yesterday, and many days before that.

I urge my colleagues to heed their call-to view this amendment for what it is: An effort to maintain existing law enforcement tools on the sale of handguns in our society.

This is a fundamental law enforcement issue-as every Attorneys General's Task Force on Crime has stated, including President Reagan's task force in 1981. If we fail to adopt this amendment, we will not only turn our backs against this long record, but against the advice-indeed, the pleas-of local law enforcement officers from across our country.

I urge the Senate to adopt this amendment that merely continues existing law-nothing more, nothing less.

For the record, Mr. President, I would like to read the statement made by Chief John J. Norton of Pittsburgh, PA, on behalf of the International Association of Chiefs of Police

STATEMENT BY JOHN J. NORTON, FIRST VICE PRESIDENT, INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE

On behalf of the International Association of Chiefs of Police, I would like to thank you for attending this press conference. The IACP is a voluntary professional organization established in 1893. It is comprised of chiefs of police and other law enforcement personnel from all sections of the United States and more than 60 nations. Command personnel within the United States constitute more than seventy percent of the more than 14,000 members. IACP members lead and manage more than 480,000 law enforcement officers at the Federal, State and local levels. Throughout its existence, the IACP has striven to achieve proper, conscientious, and resolute law enforcement. In all of its activities, the IACP has been constantly devoted to the steady advancement of the Nation's best welfare and well-being.

Our purpose today is to request that the U.S. Senate act on behalf of the law enforcement community and the citizens of this country when considering amendments to the Gun Control Act of 1968. Specifically, we are urging the retention of the current law prohibiting the interstate sale of handguns and asking Congress to enact a waiting period for purchasers.

The IACP supports the rights of all law-abiding U.S. citizens to possess firearms, and the legitimate sporting, recreational, law enforcement and private security uses of firearms. However, current Federal, State and local laws directed at preventing the sale and purchase of handguns to various categories of proscribed persons have proven to be ineffective. At present, there exists no uniform and certain procedure to verify the eligibility. Unfortunately, enactment of the pending legislation (S. 49) legalizing the interstate sale of handguns would further impair the ability of State and local law enforcement agencies to prevent handguns from being acquired, carried, or possessed illegally. Further, the sale of handguns by licensed dealers to nonresidents of the State in which the licensee's place of business is located will make ineffective the laws, regulations and ordinances in the several States and local jurisdictions regarding such handguns.

As drafted the legislation authorizes dealers to make face-to-face firearms sales to out-of-state customers if the sale would be lawful under the laws of seller's and purchaser's jurisdictions. As a practical matter, the provision that interstate sales must meet the requirements of both States will not be applied in many sales. Handgun own-

 

[Begin p. 18190]

 

ership laws vary not only from State-to-State but county-to-county and city-to-city. Therefore, it would be virtually impossible for a licensed dealer even with good intentions, to make sure that sales to out-of-state purchasers conform to all laws. A compilation of these laws consists of thousands of pages. Furthermore, even similarly worded statutes and ordinances may have various applications and interpretations as applied by the courts in the different jurisdictions.

Accordingly, we urge that when the Senate considers S. 49, it amend the legislation so that the current law prohibiting the interstate sale of handguns is retained.

The IACP also urges that the Senate take advantage of this opportunity to strengthen our Federal laws by enacting a waiting period for the purchase of handguns. Such a waiting period will encourage the development of effective statewide plans and programs for the screening of prospective purchasers of handguns. It will also allow law enforcement officials the time necessary to carry out these plans and conduct a records check and background investigation for handgun purchasers.

For years and on several different occasions, the IACP membership has passed resolutions urging the creation of a waiting period. In 1981, the Attorney General's Task Force on Violent Crime also recognized the need for a waiting period and recommended that the Gun Control Act of 1968 be amended to provide for a mandatory waiting period. In discussing this recommendation, the task force noted:

ĺ─¨There is, at present no effective method to verify a purchaser's eligibility. The dealer must know or have reason to believe that the purchaser is ineligible to receive a firearm in order to make a transaction unlawful. However, this is very difficult to prove. A person purchasing a firearm from a federally licensed dealer is required to sign a form on which he affirms by sworn statement that he is not proscribed from purchasing a firearm. This signature relieves the dealer from any liability for illegal transfer as long as he requests and examines a form of purchaser identification, other than a Social Security card, that verifies the purchaser's name, age, and place of residence.ĺ─¨

A waiting period to confirm the aforementioned information and permit a law enforcement agency to verify the person's eligibility is sensible and necessary for effective law enforcement. In locations such as South Carolina; California; Broward County, Florida; and Columbus, Georgia, where waiting periods are in effect, officials claim great success.

Therefore, the IACP urges that the Senate favorably consider an amendment establishing a waiting period to facilitate a records check and background investigation for the purchase of handguns.

Although this legislation does make some reforms which meet the legitimate needs ofhunters and sportsmen, we in the law enforcement community consider it urgent that those changes not be enacted in a manner that jeopardizes law enforcement's ability to respond to the use of handguns in violent crime.

Thank you."

 

So, Mr. President, I hope those Senators who are considering whether to support this legislation will really understand how those police officers, who are the frontline of American defense in terms of our homes and security and in terms of our local communities, feel about this legislation and this particular amendment. As I said earlier, we know from recent statistics that handguns are used in more than 50 percent of the crimes of violence-either pistols, Saturday night specials, or snubbies. That has been documented in the very extensive Cox series of newspaper articles.

I ask unanimous consent it be made a part of the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows

HANDGUNS: PREFERRED INSTRUMENTS OF CRIMINALS

Mr. KENNEDY. Mr. President, as sponsor in the Senate of the bill (S. 974) to curb the criminal use of handguns, I have long stressed that only criminals and assassins would be affected by this legislation-since handguns are clearly the weapons of choice among modern criminals.

Small handguns, especially so-called Saturday night specials, have no accurate range beyond a few feet. They have no other purpose except to kill and maim human beings, and to aid and abet criminal violence across our land.

This fact has been made graphically clear once again, in a series of provocative and well-researched articles prepared by reporters of Cox News Service. Their recent series underscores the social and human costs of the escalating handgun violence in our country and what the proliferation of these deadly weapons means for our society.

This series gives testimony to the urgency to limit the sale and distribution of handguns-which too easily fall into the hands of the criminals and psychopaths in our country.

Mr. President, I commend the reporters of Cox News Service for their excellent reporting on handgun violence, and its principal cause-the cheap availability of small handguns who benefit only those who have a criminal intent.

I urge my colleagues to review their findings, and ask that several samples of their excellent series-which appeared in the Miami News-be printed at this point in the RECORD.

The material follows:

<From the Miami News, Sept. 7, 1981>

SNUBBIES

(By Joseph Albright)

WASHINGTON.-With their slender butts and cute muzzles, they look like toys. One flick on the trigger and out barks one-third of an ounce of lead at 735 miles per hour, shaped to plow a mushroom cavity into someone's gut.

They are snub-nosed killers: a sub-species of feather-light, extra-short handguns that are inaccurate beyond the range of a card table.

As home-defense devices, they are less humane than electric stun guns, less reliable than full-sized pistols, and probably less effective than shotguns or German Shepł«rds.

Their advantage is that they leave no unsightly bulges when they are concealed. Thus police detectives carry them in arm holsters. Store owners hide them in their belts. Mothers pack them in purses.

As this series of articles will show, snubnosed guns-both cheap and expensive, domestic and foreign made-also have proven to be the overwhelming weapon of choice among modern criminals. Indeed, evidence from Atlanta, Miami and 16 other cities indicates that 2 out of every 3 handguns used in murders, rapes, robberies and muggings were ĺ─¨snubbiesĺ─¨-handguns with barrels protruding no more than 3 inches beyond the cylinder.

Short-barreled guns also run through the history of American assassinations and assassination attempts. A search of historical records showed that since 1835, 10 out of 15 assassins and would-be assassins have chosen extra-small pistols in their assaults on presidents and other political figures

The starting point for this series is a reel of computer tape imprinted with detailed descriptions of 14,268 crime guns. The guns were seized by police and federal agents in street crimes in 18 metropolitan areas during the first nine months of 1979. The records were funneled into a Treasury Department computer when local police departments called Washington to have the guns traced back to their manufacturer by contacting Treasury's Bureau of Alcohol, Tobacco and Firearms (ATF).

Under the Freedom of Information Act, Cox Newspapers obtained a copy of the tape, after confidential information on the identities on retail gun dealers and gun purchasers had been electronically blocked out. A team of reporters and researchers then sorted the traced guns by makers and models, with the aid of American Management Systems, a computer consulting firm in Rosslyn, Va.

Once assembled, the 250,000 blips of information disclosed in unprecedented detail what kinds of handguns are instruments of crime, where they come from and how long they have been in circulation.

To complete this intelligence report on the weaponry of American crime, reporters also examined 20,000 gun manufacturing and importing records and conducted 75 interviews with U.S. and foreign gun manufacturers, wholesalers, dealers, illegal gun smugglers, law enforcement authorities, legislators and pro- and anti-gun lobbyists.

The study did not cover shotgun and rifle crimes, since nearly all the trace requests involved handguns. In any event, national Justice Department crime surveys indicate that handguns account for more than three-fourths of all gun murders and assaults as well as more than 90 percent of all robberies in which a gun was used 

In describing various handguns, these articles refer to both pistols and revolvers. A pistol is a handgun whose chamber is integral with the barrel. A revolver is a handgun with a cylinder containing multiple chambers that can be discharged in succession.

The official records disclosed that:

The country's leading crime instrument was a short-barreled .22 cal. revolver assembled by the German-owned RG Industries Inc. of Miami. The company assembles the guns out of sets of parts shipped from its German affiliate, Roehm GmbH. One out of every seven handguns seized by police in street crime cases was a Roehm-origin gun, one out of twelve was a Roehm .22-cal. model. RG Industries' fastest seller, a 2-inch-barrel .22 revolver called the RG 14, was the type of gun which the FBI said was fired by John H. Hinckley Jr., accused of attempting to assassinate President Reagan last March. The gun retails for $39.95. (The Roehm GmbH gun firm described in this story has no connection with a larger and better known German company, also called Roehm GmbH, which manufactures plastics and pharmaceutical supplies.)

 

[Begin p. 18191]

 

Contrary to popular impression, most street guns are not cheap, low-caliber, foreign-origin ĺ─¨Saturday Night Specials.ĺ─¨ Of the 15 leading crime guns reviewed in the Cox Newspapers' analysis only two-the Roehm .22 and the Tanfoglio .25 Titan-fit that exact description. Ten of the 15 leading crime guns were made in America out of U.S. gun parts. Of the American-made guns, seven were made by Smith & Wesson, Colt and Charter Arms, all makers of high-quality, relatively expensive guns. Seven of the 15 crime guns retailed for less than $100. The eight others range from $117 to $330. Ten of the 15 had bullet size of .38 or .357 caliber, the rest were smaller.

The second-ranking crime instrument was the snubnosed American-made Smith & Wesson .38-cal. Chiefs Special. As the country's leading handgun manufacturer, Smith & Wesson advertises the Chiefs Special as a police ĺ─¨back-upĺ─¨ weapon. It also sells the gun to civilians through sporting goods dealers. In 1979, 1 out of 5 crime guns recovered by police was some kind of a Smith & Wesson. One of 17 was a Smith & Wesson Chiefs Special or one of its virtually identical variants. The Chiefs Special, which is less than half the weight of the traditional Colt six-shooter, sells for $170 to $240

Both the RG industries .22 and the Smith & Wesson Chiefs Special are examples of snub-nosed guns that are statistically more prone to crime than average handguns. About 4 percent of the handguns in circulation are Roehm-origin .22s, but they represented 7.9 percent of the handguns traced by police at crime scenes. Similarly, Smith & Wesson Chiefs Specials make up no more than 3 percent of the stockpile of handguns in the United States. But Chiefs Specials were traced in 5.9 percent of the 14,268 handgun-related crimes.

One of 20 crime guns is a palm-sized .25-cal. automatic pistol-the Titan-selling for less than $75. The leading source is a pair of factories in Brescia, Italy, owned by Giuseppe Tanfoglio and his four children. Pistol parts from those factories are assembled into guns by two Miami assembly plants, Firearms Import & Export Corp. and Excam Inc. Virtually identical .25 palm pistols are also made by half a dozen American companies, including Raven Arms of Industry, Calif., Bauer Firearms of Fraser, Mich., and Sterling Arms of Lockport, N.Y.

Guns manufactured by Sturm, Ruger & Co., a firm that specializes in long-barreled target and hunting pistols, are much less prone to become involved in crimes than average handguns. In 1979, the company sold 16 percent of all handguns throughout the United States-roughly the same market share it has held for two decades. Yet only 3 percent of the handguns recovered at crime scenes in 1979 were Rugers. Company president William Ruger said his concern ĺ─¨does not make small pocket roscoes (slang for pistol).ĺ─¨ Asked why, he said: ĺ─¨Partly it was that I thought they were controversial and partly because I saw no sporting purpose in them.ĺ─¨

Recently purchased guns are more likely to be used as crime instruments than older guns. An ATF tabulation shows 18 percent of the crime guns traced in 1979 were a year old or less. The next largest category was 2-year-old guns, representing 10 percent of the crime guns. After that, the percentages trailed off year by year-6 percent of the crime guns were 8 years old, 4 percent 9 year old. It was almost as if guns had a kind of radioactive half-life as crime weapons.

In another indication of the crime-prone tendency of smaller handguns, the main Smith & Wesson wholesaler in Miami, Sidney G. Davies, estimated that only about 1 or 2 percent of the Smith & Wessons he distributes are snub-nosed models called the Chiefs Special, the Chiefs Special Airweight and the Bodyguard. Yet statistics show that 24 percent of the 157 Smith & Wessons recovered in Miami murders, robberies and assaults were these light-framed ĺ─¨ snubbies.ĺ─¨

THE VICTIMS

The attempted assassination of Ronald Reagan will be recorded in history, but not so the names of Brett Rushing, Sondra Spearman, L. S. Spencer, and Fenwick Langlanais. All four were killed within a 57-day period surrounding the Reagan shooting, each a victim of the same type of handgun allegedly aimed at the president-a Roehm RG 14.

Rushing, 34, died on March 28, 1981, after being shot in his Memphis, Tenn., home. His wife was critically wounded. Police held Rushing's cousin, Mark Franklin Farrow, 27, in the prison ward at City of Memphis hospital.

A witness said during dinner, Rushing asked Farrow to pass the biscuits, and Farrow threw a biscuit at Rushing exclaiming, ĺ─¨I'm tired of you making derogatory remarks about me.ĺ─¨

A short time later, Rushing was dead, killed by a single shot to the right side.

Ms. Spearman, 28, of Tampa also died on March 28. She was shot in the face with an RG 14 during an argument with a neighbor. Police arrested the neighbor, Paulette Parks, 31, and charged her with first-degree murder.

Spencer, 41, of Austin, Tex., was shot to death May 10 by his commonlaw wife who apparently mistook him for a burglar. Spencer was trying to open the door of the house when he was killed. Police said Maud Nicely yelled, but when Spencer did not respond, she fired a Roehm RG 14 through the door. The bullet struck Spencer in the chest.

Langlanais, 67, of Port Arthur, Tex., died on May 24, when he was struck in the chest by one of three shots fired from a Roehm RG 14. Police said the shooting occurred during a domestic quarrel at his home.

THE HISTORY

Small, easily concealable handguns have been an American institution for a century. Over the years they have been called ĺ─¨last chance guns,ĺ─¨ ĺ─¨suicide specials,ĺ─¨ ĺ─¨Lilliput pistols,ĺ─¨ ĺ─¨belly guns,ĺ─¨ ĺ─¨ghetto gunsĺ─¨ and ĺ─¨the ace in the hole.ĺ─¨

Only since the mid-1950's have they been called ĺ─¨Saturday Night Specials,ĺ─¨ a name said to have been coined by Detroit police to describe the weekend traffic in cheap guns from Ohio.

The first snubbie was the single-shot percussion pistol, the Philadelphia Derringer, introduced in the 1820s by Henry Deringer.

Donald Webster, the leading historian of the cheap small gun, writes: ĺ─¨From the early 1870s until about World War I, Suicide Specials were supplied to the public by every means possible. They were given away for cigar and later cigarette prizes; offered as presents to small boys as soap salemen door to door.ĺ─¨

Colt and Smith & Wesson held the initial U.S. patents on pocket-repeating pistols. When the patents ran out following the Civil War, dozens of companies sprouted up in the Connecticut Valley and elsewhere to turn out cheap copies. Of the companies that made the ĺ─¨Suicide Specials.ĺ─¨ the only two still in business are Harrington & Richardson of Gardner, Mass., and Iver Johnson Arms of Middlesex, N.J

An 1887 Sears, Roebuck and Co. catalog listed a mail-order revolver called the ĺ─¨Blue Jacket Number 1.ĺ─¨ The price was 60 cents.

The first American snub-noses model to achieve wide popularity was the 1895 Colt ĺ─¨New Pocket Revolver.ĺ─¨ Colt proclaimed in an 1895 newspaper ad: ĺ─¨Always ready! Perfect Safety! Absolute Accuracy!ĺ─¨

Both World War I and World War II brought flows of imported weapons, some of final quality and others aptly called ĺ─¨junkers.ĺ─¨ The flow of cheap imports grew to a torrent during the American civil rights rioting of the mid-1960s, a decade during which U.S. per capita handgun ownership jumped by 50 percent. A 1968 federal gun control law shut off imports of small pistols but left open a loophole for the importation of sets of pistol components.

Recent ATF studies show there are now about 54 million pistols and revolvers in the United States. In 1955, there were only 16 million, the bureau estimates.

There is no telling exactly how many of these are short-barreled snubbies. Ruger, who heads the second-largest U.S. handgun manufacturing company, estimated that ĺ─¨perhaps one-thirdĺ─¨ of 2.1 million handguns sold last year had barrels 3 inches or shorter. James Oberg, president of Smith & Wesson, said that Ruger's estimate ĺ─¨could be about right.ĺ─¨

Handguns of all sizes were the instruments of 10,000 murders and another 550,000 crimes of violence, according to 1977 estimates based on a crime victimization study by the U.S. Law Enforcement Assistance Administration.

This means that in a given year, 1 out of every 100 handguns in the nation's private handgun stockpile was involved in a crime

In a recent article for the Ford Foundation, Phillip Cook, a professor at Duke University, wrote: ĺ─¨If current rates of handgun violence persist, the approximately 2 million new handguns sold this year will eventually be involved in almost 600,000 acts of violent crime.ĺ─¨

Even so, there has never been any rock-solid proof that the increase in the national handgun population has contributed to the increase in violent crimes over the last 25 years.

The closest the government has come to an official pronouncement on the question came in 1979 when a U.S. Surgeon General's report said:

ĺ─¨Many factors undoubtedly are involved in our high homicide rate. Economic deprivation, family breakup, the glamorizing of violence in the media, and the availability of handguns are all important * * * Easy access to firearms appears to be one factor with a striking relationship to murder. From 1960 to 1974, handgun sales quadrupled * * * During that same period, the homicide rate increased from 4.7 per 100,000 to 10.2 for the overall population-and from 5.9 to 14.2 for young people aged 15 to 24.ĺ─¨

 

[Begin p. 18192]

 

<From the Miami News, Sept. 7, 1981>

ASSASSINS HAVE ALWAYS FAVORED SMALL, SNUB-NOSED GUNS

(By Joseph Albright)

WASHINGTON.-Down through American history, the weapons used by 10 of 15 assassins and would be assassins of political figures have been among the most readily concealable variety of pistols then available.

Here, compiled from records at a half-dozen archives, are the 10 instances when small pistols were used:

President Andrew Jackson was in the rotunda of the U.S. Capitol when an assailant, Richard Lawrence, fired two shots and missed on Jan. 30, 1835. Lawrence fired two pocket-sized percussion pistols, which he withdrew from his inside coat pocket.

President Abraham Lincoln was murdered in Ford's Theater in Washington on April 14, 1865. The assailant, John Wilkes Booth, fired a 44-cal. cap-and-ball Derringer measuring 5 3/16 inches long.

President William McKinley was assassinated on Sept. 6, 1901, as he was about to shake hands with Leon Czologosz in Buffalo, N.Y. Czologosz shot him with a short-barreled .32-cal. Iver Johnson revolver.

President-elect Franklin D. Roosevelt escaped assassination on Feb. 15, 1933, while riding in an open car in Miami. The assailant, Giuseppe Zangara, fired a 32-cal. revolver. the gun, made by the U.S. Revolver Co. had a 5-inch barrel.

Sen. Huey Long (D-La.) was assassinated in the rotunda of the Louisiana State Capitol on Sept. 8, 1935. The murderer, Carl Austin Weiss, used a small .32-cal. Browning automatic pistol.

Sen. Robert F. Kennedy was fatally wounded in a Los Angeles hotel on June 5, 1968, the night of the 1968 California primary. Sirhan Sirhan, the assailant, fired a snub-nosed, 22-cal. Iver Johnson revolver with a 2.5-inch barrel.

Gov. George Wallace of Alabama was wounded while campaigning at a Laurel, Md., shopping center on May 15, 1972. His attacker, Arthur Brener, fired a snub-nosed Charter Arms .38-cal. Undercover revolver with a 2-inch barrel.

President Gerald Ford escaped injury on Sept. 22, 1975, when Sara Jane Moore fired a shot as Ford was leaving a San Francisco hotel. Her gun was a 32-cal. Smith & Wesson Chiefs Special with a 2-inch barrel.

San Francisco Mayor George Moscone was murdered in his office on Nov. 27, 1978. The assailant, former city supervisor Dan White, fired a .32-cal. Smith & Wesson Chiefs Special with a 2-inch barrel.

President Ronald Reagan survived an attempted assassin's bullet outside a Washington hotel on March 30, 1981. The gun the FBI said was taken from the accused attacker, John W. Hinckley, Jr., was a .22-cal. RG 14 revolver with a 2-inch barrel assembled from German-made parts by the Miami-based RG Industries Inc.

Following are five other cases involving other types of assassination weapons:

President James Garfield was shot in the back at a train station in Washington on July 2, 1881, and died the following September. The assassin, Charles J. Guiteau, fired a .44-cal. British Bulldog, a heavy-framed revolver of unknown barrel length.

Former President Theodore Roosevelt was shot and seriously wounded while campaigning for the presidency in Milwaukee on Oct. 14, 1912. The assailant, John Schrank, fired a heavy-framed .38-cal. Colt revolver that was built on a .44-cal. frame. The barrel length is unknown and the gun has been lost.

President Harry Truman escaped death on Nov. 1, 1950, when two Puerto Rican nationalists Griselio Torresola and Oscar Collazo, shot their way into the Blair House in Washington, where Truman was living while the White House was being renovated. The guns taken from the attackers were a German Luger pistol and a Walter P-38 pistol, both full-sized handguns.

President John F. Kennedy was assassinated while riding in a motorcade in Dallas on Nov. 22, 1963. The attacker, Lee Harvey Oswald, fired a mail-order Mannlicher-Carcano rifle from the window of the Texas School Book Depository.

President Gerald Ford escaped assassination on Sept. 5, 1975, in Sacramento when Lynette (Squeaky) Fromme aimed a pistol at him as Ford reached out to shake her hand. The gun was full-sized Colt 1911 Army model .45-cal. automatic pistol, which she had secreted under her flowing dress

<From the Miami News, Sept. 7, 19

THE ROEHM CONNECTION-W. GERMAN GUN PLANT CONCERNED ITS WEAPON CREATING A BAD IMAGE

(By Henry Eason)

SONTHKIM, WEST GERMANY.-

On the outskirts of a Swabian village that rises in medieval quaintness from a sea of swaying wheat of hops, machines roar in a factory that made the parts of the gun which the FBI says was used to shoot President Reagan.

At lunchtime, a siren blares with a sound like a World War II air raid warning. Workers leave tidy, squat, modern buildings, pass under the ĺ─¨Roehmĺ─¨ sign above the plant gate and picnic on the grassy bank of a stream just beyond the employees' parking lot.

The setting is far removed from the street violence in America, where the products of the workers' labor are referred to by police authorities as Saturday Night Specials.

Roehm

It is a name which, to German customers, means quality drill chucks and other machine tools. Tool and machine-making factories which branch off from the Sontheimbased Roehm GmbH company are in West Germany, France, Italy, Brazil, Denmark and Great Britain, Roehm is a major international competitor in the machine tool field, with sizable sales to American industry. (The company described in this story has no connection with another German company, also called Roehm GmbH, which manufacturers plastics and pharmaceutical supplies.)

Roehm also stands for target pistols and blank pistols throughout Europe and in other countries, where handgun control laws strictly regulate concealable pistols and revolvers that use live ammunition.

It is in America that Roehm's cheap .22-cal. revolvers and other live ammunition handguns attained notoriety long before John Hinckley Jr., was indicted on charges of firing one into the president of the United States.

In 1979, Roehm-made .22-cal revolvers were the instruments in 1 of every 12 street crimes in which police found a handgun, a computer study by Cox Newspapers of handgun crimes in Atlanta, Miami and 16 other cities showed. No other Manufacturer's gun was so frequently found at crime scenes.

As a result of worldwide publicity on its gun because of the assassination attempt on President Reagan, the Roehm family says it had decided to scale down production and sales of its least expensive guns.

Guenther Roehm, a principal officer and stockholder in Roehm GmbH and a part-owner of RG Industries Inc. of Miami, which assembles the cheap handguns, said that continuing to make revolvers such as the RG 14 ĺ─¨is not good for us.ĺ─¨

In the first interview granted by any official of the company in more than a decade, Roehm said he is concerned about what he called ĺ─¨an image problemĺ─¨-one that might give Roehm GmbH a bad name with its machine tool clients and with customers interested in the more expensive handguns that Roehm also sells.

Roehm is a tall, patrician figure who, at 56, has the polished manners of a European diplomat. He speaks English accurately, but haltingly, and was interviewed with the aid of his export manager, Karl Mack.

He is descended from generations of industrialists in Zella Mehlis Suhl, in what is now East Germany. After World War II, he recalled, the Roehm family's factories were in ruins.

The ĺ─¨Americans picked us up because they were not interested to have good companies with high level of production in the East Zone (under Soviet control). So they say take your technical people along with you . . . So we came to a camp in Heidenheim (near Sontheim), and the Americans gave us food . . . So we looked around and . . . we found a small room and we started making our tools again.ĺ─¨

The old customers soon returned to Roehm joined by new customers. Some Americans came in the 1950s and interested the Roehms in manufacturing inexpensive handguns for the market in the United States. It was a good market.

Then, as Roehm explained, when the gun control movement gained strength in the United States and cheap exports were banned in 1968, the Roehms became involved in producing some handgun parts in Sontheim which were added to other parts in Florida to make complete handguns that could be sold legally in America.

ĺ─¨So what you want to know,ĺ─¨ Roehm said, anticipating the question, ĺ─¨is do we go into this cheap business or do we intend to go the other way?

ĺ─¨We want to go in the other way. I have been (to Florida) four weeks ago and I explained to my people there, I want to make better guns, guns I can sell in five, six, eight years in the same way, good guns. We change the finish. We made more precision in the parts and so on. Sometimes the Americans want to go in another way (to reduce cheap handguns).

Roehm would not say directly how he felt about one of the guns made by Roehm and RG allegedly being used to shoot President Reagan, but export manager Mack responded.

 

[Begin p. 18193]

 

ĺ─¨Yes, we heard about it. Sorry for it,ĺ─¨ Mack said.

He elaborated. ĺ─¨This man could have attacked the president with a bomb or a knife or anything . . . Somebody can make crimes with anything. Of course, it's easier to use a gun for crime.ĺ─¨

Mack said he assumes that ĺ─¨most of the guns we make are just used for protection,ĺ─¨ but added. ĺ─¨It can be that also some guns are also used for crime.ĺ─¨

ĺ─ţĺ─ţ

<From the Miami News, Sept. 7, 1981>

GUN FIRMS COMPETE IN AN ARMS RACE

(By Joseph Albright)

SPRINGFIELD, MASS.-Few outside the gun business have heard about the arms race between the Chiefs Special, a palm-sized .38 revolver made by the long-established Smith & Wesson Co., and a look-alike weapon called the Undercover, made by the up-and-coming Charter Arms Corp.

Yet the collateral damage includes:

Alabama Gov. George Wallace, shot and paralyzed with an Undercover in 1972.

President Gerald Ford, nearly assassinated by a Chiefs Special in 1975. (Sara Jane Moore pulled the trigger but missed.)

San Francisco Mayor George Moscone, murdered with a Chiefs Special in 1978.

Ex-Beatle John Lennon, shot and killed with an Undercover in 1980.

Washington cardiologist Dr. Michel Halberstam, murdered with a Chiefs Special in 1980.

Some Chiefs Specials and Undercovers were originally sold to civilians in gun shops with no more paperwork than with any other handgun.

But most, say the presidents of both companies, were sold either to police departments for detectives, or to individual uniformed officers who wanted the tiny, hard-hitting guns as ĺ─¨backupsĺ─¨ for their service revolvers

As it turned out, the qualities that appealed to law-abiders have also turned the Chiefs Special and the Undercover into a Cadillac category, coveted by discriminating thugs who would prefer not to use poorly made, small-caliber ĺ─¨Saturday night specials.ĺ─¨

In 1979, 5.9 per cent of all handguns recovered in violent crimes in Miami and 17 other cities were Smith & Wesson Chiefs Specials, according to a computer analysis of federal gun-tracing records by Cox Newspapers. Carrying the numbers one step further, there is reason to believe the Chiefs Special in civilian hands is about three times as likely to be used in a crime as a typical handgun.

Here is the chain of statistical evidence suggesting that the Chiefs Special has a higher-than-normal crime rate:

When you add up the serial numbers that the company has assigned to light-frame guns-nearly all of which have been Chiefs Specials-the total is roughly 1.5 million since 1950. No more than one-third of those are still in police hands. Divide the remaining two-thirds (one million) in civilian hands by the total United States stockpile of about 50 million civilian-owned handguns. Results: only about 2 per cent of all civilian-owned handguns are Chiefs Specials, but they are 5.9 per cent of all the handguns involved in violent crimes.

Further calculations show that the Charter Arms Undercover is also about three times as likely to be used in a crime as a typical handgun. There are about 600,000 Under covers in circulation. One-third of these are in police hands; the remaining 400,000 are in civilian hands. They make up 0.8 per cent of the civilian handgun stockpile, yet 2.7 per cent of all the handguns recovered in violent crimes were Undercovers.

Smith & Wesson president James L. Oberg was asked why the company sells small handguns, in light of studies by the Federal Bureau of Alcohol, Tobacco and Firearms showing the prevalence of short-barreled guns as crime instruments

Oberg replied: ĺ─¨I sell the guns that the market is demanding. We don't have any category for people who are going to keep a weapon in their drawer, but we know they do.ĺ─¨

Some of his friends have told him they are reluctant to keep full-sized handguns in their homes, Oberg explained.

When asked how Smith & Wesson determines its ĺ─¨product mixĺ─¨ of standard and short-barreled handguns, Oberg said: ĺ─¨I would have to say that we are focusing on dollars more than anything else. Most of our motivation of what we do here is to supply dollars to our stockholders. For us, a great deal of the motivation is to run a profitable company.ĺ─¨

After the interview, Oberg mailed a revised version of that statement: ĺ─¨Our purpose is to satisfy the needs of our customers with products which emphasize quality, safety and service. Our mix also has to consider producing an adequate return for our shareholders.ĺ─¨

Guenter W. Bachmann, a Smith & Wesson vice president, said the company has no way of knowing whether small handguns such as its Chiefs Special are more likely to be used in crimes than larger handguns.

ĺ─¨Let's face it, they are all concealable,ĺ─¨ he said.

At the Charter Arms plant in Stratford, Conn., company president David Ecker said he feels ĺ─¨pretty sickĺ─¨ whenever he hears that a Charter Arms Undercover has been found at a crime scene.

ĺ─¨I know I felt a great sigh of relief on hearing that our product wasn't used (in the attempted assassination of President Regan),ĺ─¨ said Ecker. ĺ─¨I do not like to see any of our products used in that way.ĺ─¨

One of the roots of the rivalry over the high-class, short-barreled gun market was a decision by New York City police in the late 1940s to arm women officers with an experimental light-framed revolver.

Since then, the rivalry has been fed by two unrelated factors. One was that the basic patents for small handguns expired in the 19th century, leaving a small arms manufacturer virtually no protection against plagiarism in gun designs. The other was the rioting that spread from Watts to Harlem to Detroit in the mid-1960s, generating a huge market for ĺ─¨self-defenseĺ─¨ handguns.

In January 1949, a story in the Springfield, Mass., Union recorded a decision by Smith & Wesson, the city's second-largest employer, to begin production of a new so-called light-frame revolverĺ─¨ for policewomen in New York.

ĺ─¨The New York police girls carry these guns in shoulder holsters which outwardly appear to be shoulder bags,ĺ─¨ the newspaper reported. ĺ─¨The light-frame weapon is widely popular among sporting clubs and shooting ranges.

The new version weighed only 19 ounces. Its butt was as skinny as an umbrella handle. The cylinder was drilled for only five .38 cartridges since it wasn't big enough around for six holes. With its 2-inch barrel, the gun was only 6.5 inches long. It fired with a kick that left the wrist tingling.

The Colt Firearms Division had been selling policemen a similar-looking, slightly heavier .38 snub-nosed revolver, called the Detective Special since 1927. For the civilian sector, Colt sold limited numbers of a comparable snub-nosed gun it called the Bankers Special.

And Smith & Wesson was already marketing a rival called the Terrier. A 1952 company catalog said, ĺ─¨This little gun is to be found in a great many homes where it represents a unit of protection for the citizen and his family.ĺ─¨ It looked like the gun developed for the New York policewomen, but it wasn't as sturdy

The Smith & Wesson sales force broadened the horizons of the policewomen's revolver by introducing it at a 1950 conference of the International Association of Chiefs of Police in Colorado Springs. As part of the promotion, police delegates were asked to vote on a name for the gun.

ĺ─¨When the votes were counted, the most commonly suggested and appropriate name was the .38 Chiefs Special.ĺ─¨ Smith & Wesson historian Roy Jinks has written. ĺ─¨The name was officially adopted.ĺ─¨

The 1952 Smith & Wesson catalog brimmed with enthusiasm:

The Chiefs Special was a small sideline for Smith & Wesson, the nation's leading pistol manufacturer. Little effort was made to push snub-nosed gun sales to civilians. At the same time, Colt was content to sell its Detective Special largely to policemen.

There was an unfulfilled demand, by 1963 Douglas McClennahan realized it. McClennahan, a young draftsman who had worked at Colt Industries and three other Connecticut gun factories, set out to design a competing snub-nosed gun. In late 1964 he displayed his first prototype to a few gun columnists at a National Rifle Association convention in Los Angeles.

It was to become the basis of Charter Arms, a new company 75 miles down the Connecticut River valley from Smith & Wesson. Initially, its only product was a snub-nosed .38 revolver weighing three ounces less than the Chiefs Special. At $55, it was $17 cheaper than any snub-nosed gun in the Smith & Wesson arsenal.

In a press release to gun writers, Charter Arms explained that the purpose of the ĺ─¨Undercoverĺ─¨ was to satisfy a need on the part of ĺ─¨all law enforcement officers and homeowners.ĺ─¨

ĺ─¨The new (Undercover) was well received,ĺ─¨ a writer for Guns & Ammo magazine recalled later. ĺ─¨Even fussy handgunners were soon admiring and buying the all-steel compact.ĺ─¨

Charter Arms picked a fortuitous time to enter into the gun market. As Ecker, the company president, recalled: ĺ─¨You had a terrific civil rights problem, with riots all across the country. There was a terrific boom in firearms sales. So any firearm that was being manufactured or imported was being sold.ĺ─¨

William B. Grunn, then Smith & Wesson's president, decided he could not ignore the new Undercover

A clipping from Gunsport Magazine, found in the military history collection of the Smithsonian Institution, described how the country's No. 1 handgun manufacturer reacted:

ĺ─¨Back at the Springfield ranch, the S & W ramrods took a dim view of the business they were losing and decided to sew up the commercial market again by hustling

 

[Begin p. 18194]

 

 through another production run of 18,000 new Chiefs Specials. Another source said it was three runs of 12,000 each. . . .

The Gunsport writer, Jan Stevenson, quoted a Smith & Wesson official as saying: ĺ─¨It's true, we are making Chiefs Specials again, and we're putting them on the market as fast as we can.ĺ─¨

Today, Smith & Wesson declines to give out production figures for its snub-nosed gun. But from a look at the pattern of serial numbers assigned to Smith & Wesson light-frame guns, it is obvious that the company boosted its production of Chiefs Specials in the years after the Undercover came to market.

A chart of serial numbers published in Jinks' ĺ─¨History of Smith & Wessonĺ─¨ a glossy volume for gun fanciers, indicates that the factory assigned an average of 39,000 serial numbers a year to light-frame revolvers, principally the Chiefs Special, in the 1950s and 1960s.

In a 12-month period ending in 1970, the company used 100,000 light-frame serial numbers. After that, light-frame serial numbers were assigned at the rate of at least 75,000 a year.

Another escalation in the snub-nosed arms race occurred in March 1968 when Smith & Wesson introduced an even more awesome weapon: the world's smallest .357 magnum revolver.

Smith & Wesson had been selling heavy, long-barreled .357 magnums since 1935, when it managed the publicity coup of presenting the first model to FBI Director J. Edgar Hoover. A newspaper clipping of the time proclaimed that film stars Gary Cooper, Clark Gable and Franchot Tone were also among the owners of ĺ─¨the Big Bertha of the handgun field.ĺ─¨

A .357 magnum cartridge is one-eighth inch longer than a standard .38 special bullet, although they are virtually the same diameter.

The magnum contains enough extra gunpowder to exert 40,000 foot-pounds of pressure on the bullet, instead of 17,000 foot-pounds for a normal policeman's bullet. That means a .357 magnum can blast through a wall and still kill someone.

Smith & Wesson began efforts to shrink the frame of .357 magnum guns in 1954, at the suggestion of Bill Jordan, then a marksman with the U.S. Border Patrol.

ĺ─¨Until this date . . . no company had ever attempted to perfect a small frame for this cartridge,ĺ─¨ wrote company historian Jinks.

The result was the Smith & Wesson Combat Magnum, a medium-framed revolver with a standard 4-inch barrel. Jordan, appearing on the 1955 television show ĺ─¨ You Asked For It,ĺ─¨ held up the gun and called it ĺ─¨the answer to a peace officer's dream.ĺ─¨

After what Jinks has described as ĺ─¨considerable encouragement from plainclothes law enforcement personnel,ĺ─¨ the company designed an even smaller .357 magnum during the 1960s. When it was offered to the public in the 1968 catalog, this 31-ounce miniature cannon was fitted with a 2.5-inch barrel, a rounded butt for easy concealment, and quick-draw sights.

Back at Charter Arms, McClennahan and Ecker devised what amounted to a counter-escalation-the Charter Arms .44 Special Bulldog. It was 11 ounces lighter than the miniature Smith & Wesson Combat Magnum, although the dimensions were about the same. It fired a bigger bullet, but one not fast enough to be classified as a magnum.

In a glowing review for the magazine Guns & Ammo, pistol connoisseur Clair Rees said the Charter Arms Bulldog .44 ĺ─¨threw 60 percent more leadĺ─¨ than ordinary .38 caliber handguns.

ĺ─¨The new gun,ĺ─¨ Rees wrote, ĺ─¨appealed instantly to many pistoleers who had a need for a relatively small, easily concealed revolver but who lacked faith in the performance of .38 special loads for serious social use.ĺ─¨

A Cox Newspapers computer analysis of gun records found that ony about 0.2 percent of guns recovered in 1979 street crimes were Charter Arms Bulldogs-and only 0.8 percent were S & W Combat Magnums.

One who will be remembered for his ĺ─¨serious social useĺ─¨ of a Charter Arms Bulldog is David Berkowitz, now serving a 315-year sentence as New York's ĺ─¨Son of Samĺ─¨ killer.

ĺ─ţĺ─ţ

<From the Miami News, Sept. 7, 1981>

POWERFUL GUN LOBBY ROLLS OVER OPPOSITION

(By Cheryl Arvidson)

WASHINGTON.-It comes as no surprise to find the gun lobby loudly opposing proposals that would impose restrictions on shotguns and rifles, require registration or confiscation of firearms or limit availability of the quality handgun.

But the 2-million-member National Rifle Association also is on the front line defending the inaccurate, often poorly made small handgun-a stand seemingly inconsistent with its 110-year history of promoting firearms safety, marksmanship and hunting. This strident opposition to handgun control has effectively eliminated any chance for national legislation to restrict small handguns this year, next year and probably for years to come.

The National Rifle Association, with a $30 million-plus annual budget, is the richest and most influential pro-gun organization in the country, and it is also the most moderate of the three groups that constitute the gun lobby. Headquartered in Washington, the association has a separate lobbying branch, the Institute for Legislative Action, which spends $4 million each year to stop any attempt at gun control, no matter how modest.

Operating out of its own office building complete with gun museum and target range, the association successfully manipulates the scenario that plays out year after year: gun control bills are introduced and left to die in subcommittees without any serious consideration because they just can't be passed in the House or Senate.

ĺ─¨I don't think I've got a snowball's chance in hell to pass it. Congress is just too conservative,ĺ─¨ said Rep. Marty Russo, D-Ill., about a bill he's been introducing since 1976 to prohibit the sale and manufacture of small handguns, cheap or expensive, by setting length restrictions on pistols and revolvers.

ĺ─¨If the president getting shot and the pope getting shot doesn't rattle these guys, nothing will.ĺ─¨

The association defends the snub-nosed handgun as part of its overall goal of preserving the right of citizens to keep and bear arms. With its claims that firearms ownership is a fundamental constitutional right under the Second Amendment, the association sees no middle ground.

ĺ─¨I think that there is room for compromise,ĺ─¨ Neal Knox, executive director of the association's Institute for Legislative Action, says with a smile. ĺ─¨ There are a lot of gun laws on the books I'd like to get rid of. I'm willing to compromise away some of those.ĺ─¨

In fact, the association's top priority is passage of a bill that would weaken or eliminate many of the federal gun statutes now on the books. The McClure-Volkmer bill, named after its sponsors Rep. Harold Volkmer, D-Mo., and Sen. James McClure, D-Idaho, is being promoted by the association as getting government off the backs of law-abiding American gun owners and gun dealers. Even though certain provisions concern federal lawmen, the bill has a good chance of passing

ĺ─¨The handgun is a symbol,ĺ─¨ explains Rep. John Ashbrook, R-Ohio, one of two congressmen on the association's board of directors. ĺ─¨It's a firearm. It would be the same thing if it were a rifle. The motives, intentions and past records of those who want to take away the handgun are not trusted by those who own the handguns.ĺ─¨

The association is opposed to closing a loophole in the 1968 Gun Control Act that, while banning imported handguns, allows foreign parts for ĺ─¨ Saturday night specialsĺ─¨ to be imported and put onto American-made frames. It is equally opposed to more drastic legislation-offered by Rep. Peter Rodino, D-N.J., and Sen. Edward Kennedy, D-Mass.-that would ban ĺ─¨Saturday night specialsĺ─¨ and require a waiting period and police check before any handgun purchase.

As a result, critics claim, the gun lobby has so muddled the water that a rational policy cannot be debated, let alone adopted, at a national level

ĺ─¨The NRA, unlike any other group in the country, has just made mincemeat of the legislative process,ĺ─¨ said Sanford Horwitt, a consultant to the National Coalition to Ban Handguns

ĺ─¨You can't get any kind of reasonable public policy on anything having to do with handguns, which is clearly a problem in this country, because this group refuses to deal with anything that begins to approach a reasonable public policy,ĺ─¨ Horwitt continued. ĺ─¨Because they have taken this extremist position on handguns, it has ended all discussions of it in the legislative arena. It's more than being single-minded. It's almost no-minded.ĺ─¨

With federal channels closed, gun control advocates are coming to believe that local actions-such as a tough anti-gun ordinance recently passed by Morton Grove, Ill.-may offer their best hope of restricting deadly handguns.

Although the Federal Bureau of Alcohol, Tobacco and Firearms has found that most guns used in violent crime had barrel lengths of 3-inches or less, the association sees no link between small guns and crime.

ĺ─¨They're trying to blame the gun for the crime, and they're trying to prohibit all guns,ĺ─¨ said Knox. ĺ─¨There is no evidence whatsover that the population of guns, small or large, has any effect on crime.ĺ─¨

Russo, a former state attorney for Cook County, Ill., doubts handgun control measures would stop the hardened criminal, but he is convinced that getting rid of small handguns would stop ĺ─¨the heat-of-passion-type situation, the argument, the spontaneous situation.ĺ─¨

ĺ─¨There is no other reason why a small, concealable handgun is made in society except to shoot someone,ĺ─¨ says Russo. ĺ─¨The reason it is made small is so no one knows you've got it on you. With my bill, anyone could buy a gun and keep one at home, it would just be a larger size. It would make your pocket sag a little bit, it would stick out of your trousers. Somebody would see it.ĺ─¨

 

[Begin p. 18195]

 

ĺ─¨I've shoot bears with handguns with a 3-inch barrel,ĺ─¨ said Rep. John Dingell, D-Mich., when asked why the association defends the small handgun. He is the other member of Congress on the board of directors of the association. ĺ─¨ When I hunt elk, I carry a small .22 automatic to shoot grouse for the pot or finish off elkĺ─¨

ĺ─¨I'd like to sell tickets to the confrontation, and I'd also like to bet on the bear,ĺ─¨ answered Horwitt. ĺ─¨The fact is no one goes around shooting bears with a 3-or 4-inch handgun. It just isn't done. If we're down to that as to why someone refuses to support a band on handguns, we're down to some petty flaky people.ĺ─¨

Knox, asked about the ĺ─¨redeeming social valueĺ─¨ of a small handgun, cites his wife's Smith & Wesson Bodyguard, which he gave her for Mother's Day in 1958.

ĺ─¨I've carried my wife's. . . gun with me many a mile while hunting, as a second gun,ĺ─¨ he said. ĺ─¨I've carried it with me while fishing. I've carried it with me while flying because I did all my flying out in Arizona, and that's some rough country, and a person who doesn't prepare himself. . . is making a mistake.ĺ─¨

Knox, who as chief association lobbyist earns $63,000 a year, calls the small handgun ĺ─¨the best possible gunĺ─¨ for protection

ĺ─¨In the case of a small gun, you can have that thing concealed right near the door, in a book where it's not visible to your neighbors coming in. They'll think you're a little bit strange if you've got a shotgun sitting in the corner by the door. A shotgun by the door, loaded, in my estimation is far more hazardous from an accidental standpoint than is a handgun in a nice, small place of concealment.ĺ─¨

Gun supporters also say a small gun is easier for women to shoot, and that the poor can afford a ĺ─¨Saturday night special,ĺ─¨ but not the better-made-and more costly-ĺ─¨snubbiesĺ─¨ and full-sized handguns.

ĺ─¨Looking at it from a racial standpoint,ĺ─¨ says Ashbrook, ĺ─¨the handgun is the only defensive weapon a poor person can afford. You'd think poor blacks, as victims of crime, would want handgun control, but they don't.ĺ─¨

ĺ─¨Blacks had handguns solely for defense more than any other group,ĺ─¨ observes Knox.

Blacks also are the victims of more handgun crimes, but Knox said that is because ĺ─¨blacks commit more crimes against blacks,ĺ─¨ not because of the guns.

That reasoning is not upheld by the Congressional Black Caucus, which consistently votes as a bloc against the gun lobby.

Money and strong citizen support explain both the association's power and the trouble encountered by anti-gun groups such as Handgun Control Inc. and the National Coalition to Ban Handguns.

The association's members will contribute money when asked, write lots of letters and make telephone calls to their congressmen or senators to protest restrictive legislation or government regulations. They turn out in large, vociferous numbers at rallies or public meetings where gun control is being discussed. The association's budget is 30 times larger than that of Horwitt's National Coalition to Ban Handguns.

ĺ─¨They'll vote on this issue,ĺ─¨ said a former aide in the Carter White House. ĺ─¨I daresay there's no issue on which you and I would vote, no one issue alone. That's what makes these groups strong.

Some anti-gun lobbyists contend the power of the association is overrated, but the group's reputation is so formidable that whether the power is real becomes almost irrelevant.

A House staffer recalls lobbying congressmen on gun control legislation and citing public opinion polls showing a majority of Americans in favor of handgun control, only to have the members respond, ĺ─¨It doesn't matter. If they (the gun lobby) only control 2 or 3 per cent of the vote in my district, that's enough because the margin (of victory) is only 5 or 6 per cent.ĺ─¨

Russo believes much of the association's strength comes from its ability to convince members that ĺ─¨as soon as they take the handguns, the next thing is your shotguns, then the next thing you know, the Russians will come and you won't have any way of defending yourselves.

ĺ─¨They portray, inaccurately I think, every issue as if the question is whether or not Mrs. Jones who lives in rural Florida is going to be able to have her gun to protect herself from the night rider,ĺ─¨ said Richard Davis, who was the Treasury official overseeing the Bureau of Alcohol, Tobacco and Firearms in the Carter years

The association and other progun groups often do raise the confiscation spectre in their mailings. Anti-gun groups point to this in critizing the association for misrepresentation and distortion, but Knox says that confiscation is exactly what handgun control is all about. The confiscation argument sells well among gun owners because of a basic distrust of government.

ĺ─¨If we only thought (handgun control) was an honest effort to do this and nothing more, we might agree,ĺ─¨ Ashbrook said.

_________

Mr. KENNEDY. Only about 5 percent of the homicides in the United States are from long guns, rifles, or shotguns. So we are prepared-at least this Senator is prepared-to see that we remove some of the kinds of restrictions that exist in current law that hinder or cause some inconvenience to hunters if we are able to keep existing law on handguns, snubbies, and Saturday night specials.

Mr. President, I hope there are those who will be listening in their offices-our colleagues in the Senate-to this debate this afternoon because one of the reasons that this legislation is on the floor is because those who support it want to reduce red tape for all those local gun dealers all across this country. The supporters of this bill want to reduce the burden on those small shopkeepers from the Federal hand and from Federal intervention or inspection. But without this amendment, what does this legislation provide with regard to handguns?

Without this amendment, this legislation, on page 7, says in deleting clause A, paragraph 3, and inserting in lieu thereof the following: (a) Shall not apply to the sale of, delivery of any firearm to a resident of a State other than a State in which the licensee's place of business is located if the sale and delivery and receipt fully comply with the legal conditions of sale in both such States; that is, where it is legitimate in the State where the sale will take place and legitimate in the State where the individual is from.

The PRESIDING OFFICER. The Senator's time has expired.

Mr. KENNEDY. I yield myself 5 more minutes.

Let's say that dealer makes the mistake. Say he does not know, for example, that if he sells to somebody in Maryland that there is a 7-day waiting period, or in Nevada at the current time if that person lives in Las Vegas, it is 72 hours, or if the person is from Wyoming it is a 48-hour time limitation, et cetera.

Then what happens to that dealer? It says over here on page 21 that anyone who violates the provisions of this chapter shall be fined not more than $5,000, or imprisoned not more than 5 years. That person commits a felony.

If you do not accept this amendment, you are saying to every dealer out in the West and the South that if they do not know everything that happens to be in these two books at least as of the time that they were produced-let the record show that there is more than 2,000 pages here-if they do not know it, they can be penalized for $5,000 and commit a felony.

I hope we accept this amendment, which responds to the legitimate law enforcement issues that have been raised by those that know more about it than any single Member of this body and who are, day in and day out, faced with the force of violence in our society-and we hear a great deal about that issue internationally and locally, they know what it means, and they have seen their colleagues that have been brutalized and murdered. They know the families that are growing up with orphaned children. They understand that issue, and they are here to tell us that we ought to retain the existing law which they know, understand, and which has been tried and tested.

So, Mr. President, I just hope that in our concern both for law enforcement, in our concern about the regulatory burden that we are placing on individuals dealers, and in our concern about the role of the Federal Government reaching out and providing inspections into all of these little, small towns, communities, and dealers all over this country-and the dangers which they are going to have, the burden that is going to be placed upon all of them-that the Senate go on record and support this amendment.

Finally, I want to stress, Mr. President, that this amendment applies only to handguns-the snubbies, the Saturday night specials. There are no hunting purposes whatsoever-no hunting purpose whatsoever-for a Saturday night special. I have listened to those Members of the Senate try to make that case in the quiet of a committee meeting, and I have heard the snickers of those who would support

 

[Begin p. 18196]

 

such a Senator's amendment because there is no legitimate sporting purpose for a snubbie. You cannot hit anything accurately beyond a few feet. Then we hear about how Bambi is hurt in the woods and they have to go up and use a Saturday night special in order to save Bambi from its misery. I hope we are not going to hear that laughable argument on the floor of the U.S. Senate this afternoon, Mr. President.

The final point that I will make is that we will hear very shortly how we cannot really keep pistols and Saturday night specials out of the hands of the criminals. So why should we inconvenience the legitimate sportsman? You can use that argument. But I hope they will address that and maybe suggest some changes in the law's controls on prohibitive drugs. You cannot stop illegal drugs in our society. Then why not make those illegal drugs available to others as well? The American people have too much common sense to swallow such arguments, Mr. President. We do not possibly suggest because we pass a law against murder that we stop all murders. Of course we do not.

But what we hope to do is be able to reduce to some extent, and the chief enforcement officials understand this issue best, and understand it so well that they believe we can have some impact to some extent in reducing the handgun terror that exists in so many parts of this country and on the city streets of this Nation. That is really what we are debating here this afternoon. I hope this amendment will be accepted, and I reserve the balance of my time.

Mr. HATCH addressed the Chair.

The PRESIDING OFFICER. The Senator from Utah.

Mr. HATCH. I would also like to explain why I intend to oppose the amendment which will retain the current ban on interstate sales of handguns. As is typical of many provisions of the 1968 law under revision today, the ban on interstate sales of firearms is far more restrictive than necessary to accomplish the objectives of the law. The purpose of the interstate sales restrictions in the 1968 act was to guarantee compliance with firearm laws in the States. It was feared that a State's firearm laws could be easily circumvented by buyers who crossed State lines to acquire weapons they could not purchase in their own State of residence. To prevent circumvention of State law, the 1968 act, as I have mentioned, prohibited almost all interstate sales. The exceptions were very narrow and specific. Unless you were in another State and your sporting gun was lost or stolen or you were in a State contiguous to your residence that specifically by law authorized such sales, you could not purchase that perfect firearm for which you had shopped for years if you happened to find it while traveling out of State.

 

This harsh restriction is simply not necessary to uphold the original purpose of the 1968 act. S. 49 permits out-of-State purchases, but also ensures that the laws of the buyer's as well as the seller's State will be scrupulously obeyed. S. 49 requires those interstate sales of all firearms-deer rifles, shotguns, and handguns-to comply with requirements that will guarantee that the objective of the 1968 act is met; namely, that all State laws will be upheld. To accomplish this, S. 49 requires the following:

First, all interstate sales of firearms, including handguns, must take place over the counter. This allows the dealer to identify and make inquiries of the purchaser, thus preventing sales to felons and others prohibited from acquiring firearms.

Second, all interstate sales of firearms, including handguns, must be recorded in the dealer's records, thus permitting tracing.

Third, all interstate sales of firearms, including handguns, must comply with the laws of both the buyer's and the seller's State. The licensed dealer is legally responsible for knowing those laws which are printed in the Treasury Department manual distributed to all dealers. The dealer is held accountable for any sales in violation of applicable State or local laws. And the dealers understand these books and can easily turn to the pages that will define these laws and can easily explain them.

These requirements of S. 49 carry out the objective of the 1968 act. State and local laws may not be circumvented by interstate purchases. A State or locality remains free to impose very strict controls on handguns or other firearms, and those restrictions will be upheld. In that respect, the amended law will not differ from current policy. At the same time, law-abiding citizens, citizens whose purchase of a firearm would comply completely with the laws of their residence, are not barred from purchasing a firearm out of State by a Federal regulation that has absolutely no effect on arms control.

Prohibiting a citizen from purchasing a firearm in another State that he could buy at home has no effect whatsoever on crime. It is needless restriction on lawful firearm ownership and acquisition. And it is not necessary to uphold the intent of the 1968 act. For that reason, I will oppose this amendment.

I would also like to note that the Department of the Treasury, which is charged with the responsibility of ensuring that the objectives of the 1968 act are carried out, supports the view that the restrictions contemplated by this amendment will not advance crime control. In a June 24, 1985 letter to me in my capacity as manager of this bill, the Department states:

The administration opposes this proposal. We believe that the controls imposed by S. 49 with respect to licensee's sales of handguns to out-of-state residents are adequate from a law enforcement standpoint.

The letter then recapitulates the requirements of S. 49 as I have just done. Thus, S. 49, according to the Department with expertise in firearms enforcement, is sufficient for crime control purposes and this amendment is unnecessary. I would add furthermore that the needless additional restrictions of this amendment amount to burdensome regulation of otherwise lawful firearm transactions.

I ask unanimous that the letter dated June 24, 1985, from the Department of the Treasury, signed Bruce E. Thompson, Jr., be printed in the RECORD at this point.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

 

DEPARTMENT OF THE TREASURY,

Washington, DC, June 24, 1985.

Hon. ORRIN G. HATCH,

U.S. Senate,

Washington, DC.

 

DEAR SENATOR HATCH: 

The Department is pleased to respond to certain issues and possible amendments expected to arise during debate on S. 49, a bill ĺ─¨to protect firearm owners' constitutional rights, civil liberties, and right to privacy.ĺ─¨

Maintaining current interstate controls over licensees' sales of handguns. The Administration opposes this proposal. We believe that the controls imposed by S. 49 with respect to licensee's sales of handguns to out-of-state residents are adequate from a law enforcement standpoint, e.g., sales must be made over-the-counter, purchasers would be identified and inquiries made concerning their eligibility to purchase firearms, sales would be reflected in licensees' records kept pursuant to current recordkeeping requirements, and the licensees would be responsible for knowing applicable State and local statutes prohibiting the sale, and would be held accountable under Federal law for sales violating such State and local laws. Furthermore, a State or municipality may, if it chooses, impose more stringent regulations on handgun transactions by its citizens.

Requirement for Notice before inspection of importer, manufacturer, dealer and collector. S. 49 proposes that importers, manufacturers, dealers and collectors be provided notice by ATF before an annual compliance inspection is made. This compliance, or courtesy visit, is made routinely to assure that the licensee is complying with Federal recordkeeping requirements on the acquisition and transfer of firearms. This differs from a visit in the course of a criminal investigation where there is reasonable cause to believe laws have been broken by the licensee. In those cases, visits are made under search warrant or inspection warrant and without notice. Therefore, the Administration would retain the notice requirement in connection with the compliance inspection, as it would not adversely impact on law en-


[Begin P. 18197]


forcement. The Administration supports the language in S. 49.

Narrowing the ĺ─¨gun showĺ─¨ provision. The Administration has no objection to such an amendment, provided the amendment's definition of gun show is broadened to include the entire definition appearing in the regulations, 27 C.F.R. Section 178.100. In other words, the term should be defined to include not only sporting firearms events sponsored by national, State or local firearms organizations, but such events sponsored by other organizations and entities.

Limit preemption provision to longguns. Language in S. 49 would provide that persons transporting weapons unloaded and not readily accessible would be protected from restrictive local and State laws. The Administration supports such a provision, since the transport of weapons to hunts, target matches and other legitimate activities are seldom involved in crime.

Require a 14-Day Waiting Period for Handgun Sales. The Administration has stated earlier that waiting periods for purchases of handguns should be a matter for the States and local governments to decide. The Administration does not advocate a national waiting period.

Armor Piercing Bullets. The Administration has endorsed proposed legislation as articulated in S. 104 to regulate the importation and manufacture, for police and military use, of ammunition commonly termed armor-piercing. This bill defines bullets as armor piercing if they are solid or contain cores of certain hard metals. We would have no objection to the inclusion of S. 104 in S. 49.

Prohibition of parts for short barrel handguns (snubbies). The 1968 Gun Control Act amended prior law which regulated the importation of gun parts. Congress, at that time, felt that such regulation was not practical. Numerous problems would exist relating to whether specific parts are parts for importable or nonimportable firearms, since many parts of a given manufacturer will be assembled in a variety of firearms configurations. Existing law regulates the principal part of a firearm, i.e., the frame or receiver, and we believe this is adequate. The Administration opposes a prohibition or parts importation.

Conversions of semi-automatic weapons to machineguns and silencer parts. This amendment, which would amend the National Firearms Act, is apparently designed to expressly include within the Act's definitions of machinegun those parts used to convert semi-automatic weapons into machineguns, but which do not comprise the entire conversion kit, as well as certain semi-automatic weapons that can be readily converted to fire automatically. Additionally, the amendment would broaden the Act's definition of silencer to cover not only complete silencers and all the parts comprising a silencer, but individual component parts of silencers.

With respect to the machinegun aspects of the amendment, we would point out that under existing law, 26 U.S.C. Section 5845(b), the term machinegun includes ĺ─¨any combination of parts designed and intended for use in converting a weapon into a machinegun.ĺ─¨ Based upon this definition, the Treasury Department has classified certain firearms parts as machineguns even though not all the parts necessary to convert the weapons to fire automatically were present. Furthermore, based upon the current definition of machinegun to include weapons ĺ─¨designed to shoot . . . automatically,ĺ─¨ the Department has also classified certain semi-automatic weapons as machineguns because they possessed design characteristics of machineguns and were easily converted to fire automatically. Thus, current law may already regulate as machineguns the types of weapons and firearms parts that concern the proponents of the amendment. Nevertheless, in the interest of clarity, an amendment relating to machineguns would not be inappropriate. The amendment as it relates to silencers would strengthen existing law and law enforcement efforts to combat the illegal manufacture of and trafficking in silencers.

The proposed requirement that machinegun manufacturers submit design plans for their weapons to the Government prior to manufacture is unnecessary, in our opinion. Under current law, the firearms industry is presumed to know the provisions of the National Firearms Act relating to their business and is responsible for compliance with the law. As a practical matter, the firearms industry constantly seeks advice of the Department relative to the classification of weapons without any legal requirement to do so. We believe that most manufacturers designing new weapons will continue to seek such advice as a sound business practice. To mandate the industry's submission of plans in advance of production would be burdensome on the industry, and on the government from an administrative standpoint. The problem would be compounded in view of the possible duty of submitting plans with respect to changes in the design of existing weapons.

Finally, we would advise that the language of the amendment dealing with the definition of machineguns and silencers is problematic. Therefore, we would be glad to provide assistance in redrafting the language to better accomplish the objectives of the amendment.

We appreciate the opportunity to discuss these issues and stand by for further assistance if requested.

 

Sincerely,

BRUCE E. THOMPSON, Jr.,

Assistant Secretary

(Legislative Affairs).


THE SNUBBIE MYTHS

Mr. HATCH. Mr. President, since we have heard a great deal about so-called ĺ─¨ snubbiesĺ─¨ or ĺ─¨Saturday Nite Specials,ĺ─¨ I would like to urge us to reconsider many of the arguments about small handguns. In the first place, I would like to quote again from section 101 of the Gun Control Act of 1968. This section outlines many of the appropriate uses for firearms in the following terms:

ĺ─˙It is not the purpose of this Title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens /who use firearms/ . . . for hunting, trapshooting, target shooting, personal protection, or any other lawful activity.ĺ─¨

The 1968 act explicitly states that personal protection and other lawful activities ought not to be encumbered by Federal law. Accordingly the 1968 act did not presume to set any size or barrel-length or price limitations on sale and transportation of firearms. This is because the authors of the 1968 act understood that a small handgun may be used for lawful purposes, such as personal protection, shooting rodents, or maybe just plinking.

Banning or regulating handguns on the basis of size or price could well mean that poor people who may need an inexpensive firearm for the legitimate purpose of personal protection may be prevented from doing so. It could well mean that the 35 to 40 million Americans who now own small handguns and use them lawfully could not repair or continue to use their property.

The justification given for restricting or banning these small handguns is their supposed link to crime. The only study on this subject was performed by a Cox newspaper. It disclosed that 33.9 percent of all handgun crimes were committed with small handguns. The same study disclosed that small handguns are 33 percent of all handguns produced. Thus, 33 percent of all handgun crimes were committed with guns that constitute 33 percent of all handguns-hardly an unexpected result that warrants special restrictions on short-barreled weapons.

On the other hand, we need to acknowledge the lawful purposes of these smaller weapons. A recent survey by Caddell concluded that 4.8 million Americans have successfully used firearms for one of the lawful purposes stated by the 1968 act-personal protection. That amounted to 600 instances of personal protection from firearms a day or 25 instances per hour when the presence of a handgun may well have prevented a rape, robbery, or worse. This explains the results of a PROMIDS study done for the Department of Justice in which Professor Wright and others learned that criminals are more afraid of meeting an armed civilian than of being apprehended for a crime.

This study disclosed that 53 percent of imprisoned felons had chosen not to commit a specific crime out of fear the victim might be armed; 57 percent of criminals who had used firearms to commit crimes had been scared off or shot at by an armed victim. By the way, these same criminals only listed smallness and concealability as a factor in firearm choice 10 percent of the time. They much preferred larger, expensive weapons.

Again we can see why the authors of the 1968 act, when striving to control crime, chose not to set any limits on the size of handguns. The size of handguns is simply not related to crime and small handguns are clearly used for many lawful purposes.

Mr. MCCLURE. Mr. President, I oppose the pending amendment, which I will shortly move to table.

My principal reason for opposing the amendment is that, frankly, it differs fundamentally from the amendment which the Senate Judiciary Com-

 

[Begin p. 18198]

 

mittee agreed to report during the 98th Congress.

Let me first give a brief explanation of the problem which the underlying language of McClure-Volkmer seeks to address:

Under current law, a resident of one State cannot purchase a firearm directly from a resident of another noncontiguous State. Say a resident of Idaho wants to buy a firearm from a resident of New Hampshire. Assume, also, that this firearm is not locally available and that it is only available through purchase from a resident of another State, such as the State of New Hampshire.

Under current law, the resident of New Hampshire would have to go through a licensed dealer in New Hampshire, who would transfer the weapon to a licensed dealer in Idaho, who would transfer the weapon to the ultimate purchaser.

Gunowners have correctly pointed out that there is no valid reason for this bureaucratic morass. So long as either the buyer or the seller is a licensee, there is just as much of an ability to trace the disposition of the weapon in an interstate sale as with an intrastate sale. So the original language of McClure-Volkmer would have allowed an interstate sale of a weapon from a licensee to a nonlicensee, so long as the transaction complied with the law of the State of sale and the State in which the purchaser resided.

In committee, the Senator from Massachusetts attacked the McClure-Volkmer language on the grounds that it would require a gun dealer to be responsible for knowing the law of the State of any prospective purchaser. In effect, each dealer would have to have access to all of the gun laws of all 50 States. And, while the original bill provided for the preparation by BATF of a handbook summarizing State gun laws, the Senator from Massachusetts persisted in his objections.

So, the Senator from Delaware proposed an amendment which would remedy the problems of the Senator from Massachusetts. Under the proposal of the Senator from Delaware, which was approved unanimously by the Senate Judiciary Committee, interstate sales of longer guns-that is, guns with barrel lengths of greater than 3 inches-could be made, so long as they complied with the law of the State of the sale. Although the buyer would be liable for fines and imprisonment if he made a purchase in violation of the law of the State of residence, neither the out-of-State dealer nor the Federal Government would be required to enforce that State's laws for it. The rationale for this position was, as the Senator from Massachusetts pointed out in committee, the extremely onerous burden which such a requirement would place on a local dealer with respect to an interstate sale.

In exchange for loosening up the circumstances under which a longer gun could be sold interstate, the provisions governing interstate sales of shorter guns-that is, guns with barrel lengths of less than 3 inches-was to be tightened, so that they would more restrictive than those contained in McClure-Volkmer. In essence, interstate sales of shorter guns would continue to be governed by current law. They would be transferred from the seller to a licensed dealer in his State to a licensed dealer in another State to the ultimate seller.

Even though the continuance of this labyrinthine process really posed no law enforcement benefits, even when applied only to shorter guns, most gun groups readily agreed to maintain current law governing shorter guns, in exchange for a loosening of restrictions on longer guns.

The problem arose from the fact that the language of the amendment was not available to the committee at the time it agreed to this compromise. The language, which was not approved by the committee, differed, when it became available, from the committee agreement in one pivotal respect:

In the language which was produced, the interstate sales of a longer gun would have to comply with the laws of both the State of purchase and the State of the residence of the purchaser. This was, of course, not what the committee agreed to. In fact, it pointedly ignored the problem which triggered the amendment in the first place-the difficulty that a dealer would have in trying to keep track of the laws of all 50 States.

Now, I have an amendment which would embody the agreement made in the Senate Judiciary Committee last year. And, if my tabling motion is unsuccessful, I will offer that amendment. But, frankly, Mr. President, I would hope that we could avoid this entire mess.

The compromise contained in the version of McClure-Volkmer under consideration has been approved by the two relevant departments of the administration-Justice and Treasury-and by all of the major gun groups, in addition to all of the major sponsors of the legislation. It is the language of the Baker amendment on the continuing resolution, which was sustained against procedural objections by votes of 63 to 31 and 77 to 20.

I ask unanimous consent that relevant portions of the committee transcript be printed in the RECORD at this point:

There being no objection, the material was ordered to be printed in the RECORD, as follows:

 

EXCERPT

 

(The debate starts around page 30 of the transcript, with Kennedy calling up the attached amendment. He initially implies that the amendment would subject concealable weapons to all provisions of current law-not just those provisions dealing with interstate sales-and that it would exempt long guns from all provisions of current law. This is clearly not what his amendment would do, and when Hatch correctly summarizes the nature of the Kennedy amendment, Kennedy corrects himself. Kennedy then, on page 36, summarizes the difference between Kennedy and Hatch as revolving around whether a Nevada resident purchasing a long gun in South Carolina would have to comply with Nevada law, as well as South Carolina law. He holds up his book of statutes compiled from those states represented on the Judiciary Committee and chastises Hatch for making the poor licensee learn that enormous mass of statutes, in addition to the statutes of his own state. Hatch tries to assert that this would be no problem, since the licensee would have the new book of state laws compiled by the Justice Department, but Kennedy persists. At this point, Biden begins asking questions about the nature of the Kennedy amendment.)

BIDEN. So you are going to end up with no book? . . . I go from Delaware out to Nevada or Wyoming and I want to buy a twelve-gauge shotgun. I can just walk in and buy the shotgun, and I do not have to do anything under your proposal. . . . Now, if I go, though, to buy a, quote, snubby and I walk into a gun store in Cheyenne- . . . I am not allowed to buy the snubby. . . . But if we go the route the Senator from Utah is suggesting, I walk into that store, as we call them in Delaware, that guns and goodies shop, and I walk in, and I want to buy either a snubby and/or a long gun, the dealer has to know what the rules in my State are, relative to both of theseĺ─ţ

HATCH. As well as his own State.

KENNEDY. Under the existing law, if you wanted to purchase it, it is distributed in the interstate through a licensed dealer in your own State that is presumed to know the law.

BIDEN. What does your amendment do with regard to long guns? Does it keep the existing law, or does it lift all exemptions on long guns?

KENNEDY. It lifts all exemptions on long guns.

BIDEN. So, my staff just told me that, if I walked into-let us take Vermont, they have nothing there, zero. . . . Now . . . if I go up to Bennington and I go into a gun store and I want to buy a shotgun, can I put my money down and walk out of that store right there with that shotgun? My staff says no. And Iĺ─ţ

KENNEDY. Yes.

BIDEN. No, not current law, underĺ─ţ

KENNEDY. Current law.

BIDEN. <continuing>. Under your amendmentĺ─ţ

KENNEDY. Yes.

BIDEN. Under your amendment you would be able to walk out. Okay. Good.

HATCH. All I am saying is that-what it does do . . . is it upholds and sustains State laws.

BIDEN. All right.

HATCH. And it requires them to meet the laws of both Statesĺ─ţ

BIDEN. It seems to me that . . . you (Senator Kennedy) are saying this book will be no longer needed because, in fact, you will keep the existing law as it relates to the small handgun, the small snubbies. Okay?

KENNEDY. Yes.

 

[Begin p. 18199]

 

BIDEN. And existing law says you cannot buy them in interstate.

KENNEDY. Right.

BIDEN. But it eliminates all other laws relating to the interstate sales as it relates to the handgun-I mean the long gun. Is that right?

KENNEDY. The Senator is correct. Yes, I guess the-there are some, some States have some restrictions onĺ─ţ

BIDEN. No, I understand that. But the State of Vermont has no restriction on anything.

KENNEDY. You are right.

BIDEN. So, in Vermont you could walk in, buy the gun, and go hunting that morning.

KENNEDY. The Senator is absolutely correct and has put his finger on the nub of the issue. That is that there are obviously legitimate interests of someone who goes to Massachusetts and goes on out to Wyoming and hunts and the gun gets lost or loses it in the plane, or whatever happens, and then wants to be able to purchase it and cannot do it, unless you have the contiguous State, then you have a waiting period and other restrictions under the existing law. But that is fine. I would . . . But do not wipe out restrictions with regard to the small concealable weapons that are used in crimes of violence.

BIDEN. Would the Senator object if there was an amendment that said the law as it exists today with regard to small handguns, whatever the law is, would stay intact.

HATCH. So far, you are not too far off course.

BIDEN. Forget for a moment the Kennedy amendment. Let us assume I introduce an amendment that said the law as it relates to handguns does not change. Whatever it was in ĺ─˛69, it stays that way, but would lift the restrictions on interstate sales for all other guns except as the State law applies to that State. You would be treated as a State resident. I would be treated as a cowboy from Wyoming if I walked in to buy a gun.

SIMPSON. (Objects to slur re Wyoming.)

BIDEN. What happens if you just say the law as it has been on the books . . . as it relates to handguns, leave it alone . . . and then take the laws that relate to all other guns, . . . and lift all Federal restrictions. Say it is only what the State says. So, Joe Biden riding an interstate through Cheyenne, he gets to purchase or not purchase a long gun, based upon whatever Cheyenne's laws are.

HATCH. (Enumerating problems with the Biden proposal, the first of which was that it would create a new distinction between a concealable weapon and a long gun.) Number two, it also fails-the Kennedy amendment would be a failure to uphold certain State laws. For instance, some States prohibit the sale of long guns to children less than 16 years of age.

BIDEN. Well, this law would apply. You could not walk into that State-in other words, . . . when I, as a Delawarean, attempt to walk into a gun store, whether it is in Maryland, Vermont, Wyoming, or Utah, I will be held accountable to the same exact regulations as the person from Wyoming, Vermont, Utah, or Maryland, with the single exception of a small-barreled revolver, a handgun. . . . Now, what is wrong with keeping that law as it related to handguns with barrels of 3 inches or less and freeing up every other person in America to be treated like the citizen from that community at that moment in time?

The way I would change it (Hatch)-I am not at all sure that the Freedom (Wyoming) dealer is either, A, going to know the law

All right, keep the law as it is on the books since 69 with respect to handguns with barrels less than three inches, three inches or less, and lift all other restrictions.

It would lift all . . . restrictions other than the ones that are in that State-for allĺ─ţ

THURMOND. For interstate sales.

BIDEN <continuing>. For interstate sales. All restrictions of interstate sales are lifted but for handguns with barrels three inches or less, which is the law now. The law goes beyond handguns three inches or less, in terms of interstate.

HATCH. Do we keep the other changes that we have made inĺ─ţ

BIDEN. On the interstate sale. And the answer is yes.

Mr. DODD. Mr. President, I rise in strong opposition to this legislation in its present form. While I have many concerns with the bill before the Senate today, I believe it is still, possible, with the approval of certain crucial amendments, to enact a responsible bill.

This legislation, as proposed, turns back the clock of Federal protection against handgun crime in seeking to overturn key provisions of the modest Gun Control Act of 1968, as passed in the wake of the assassinations of Martin Luther King, Jr., and Robert F. Kennedy. This measure would weaken our national firearms laws and effectively take, as the National Rifle Association has called it, ĺ─¨the first step toward repealing the 1968 Gun Control Act.ĺ─¨

The Gun Control Act of 1968 was intended to keep handguns out of the wrong hands-the felon, the minor, the unlawful drug user, the mental incompetent-and to punish harshly those who use handguns in crime. The centerpiece of the act is the broad prohibition of interstate commerce in firearms by unlicensed, private citizens. The legislation we consider here today eliminates that prohibition, allowing once again easy mail access to guns by criminals and would-be assassins.

My father, the late Senator Thomas Dodd, dedicated much of his Senate service to putting an end to such easy availability of firearms to criminals. He was chairman of the Senate's Juvenile Delinquency Subcommittee, where he conducted numerous hearings in the 1960's on the unrestricted availability of firearms. My father was astounded by what he discovered. Bazookas, handguns, and an assortment of automatic weapons were on display in his subcommittee-the undeniable and frightening evidence of the ease with which these lethal weapons could be acquired-at times even by the children of committee staff.

My father led an uphill and oftentimes exasperating battle to move legislation aimed at keeping guns out of the hands of criminals through the full committee and onto the Senate floor. He never lost faith, and I am proud to say, remained a driving force behind final passage of the Gun Control Act of 1968. He refused to believe that the gun runners, the hoodlums, the crackpots, and the self-styled vigilantes were more powerful than the American people. My father believed in his own words, that ĺ─¨the American people will not forget the assassination of President Kennedy with a weapon fraudulently obtained through the mails, nor could they forget the other needless tragedies that they read about every day.ĺ─¨

Mr. President, I refuse to believe that our national nightmare over the assassination of President Kennedy has been forgotten. I believe a passage from Carl Bakal's book, ĺ─¨The Right to Bear Arms,ĺ─¨ is telling 

ĺ─˙Then came the terrible tragedy in Dallas. In the space of a few seconds, Lee Harvey Oswald-with a cheap foreign surplus military rifle, purchased under a phony name from Klein's Sporting Goods, a Chicago mail-order house-had murdered the President. On the rifle was a telescopic gunsight which had originated from another mail-order house, Weapons, Inc., of Los Angeles. Less than an hour later, Oswald had killed police officer J. D. Tipitt with a .38 caliber revolver purchased from still another mail-order house, Seaport Traders, also of Los Angeles.ĺ─¨

It would be disconcerting, indeed, Mr. President, for this body to repeal the very provision whose purpose is to prevent such tragedy.

Another concern I have with this bill is that it was placed directly on the Senate Calendar, by-passing the careful scrutiny of the Senate Judiciary Committee. I believe it was a mistake to reintroduce the bill this year without the compromises that painstakingly were worked out by the Judiciary Committee last year to prohibit the interstate sale of ĺ─¨snubbiesĺ─¨-handguns with barrel lengths less than 3 inches. It has been well documented that 11 of 15 handguns most often used in the commission of murder, armed robbery, and other street crimes had snub-nosed barrels of 2.5 inches or less. Criminals favor concealability. Short barrels mean inaccuracy at anything beyond point blank range. They should therefore be of little interest to legitimate hunters, hobbyists, and target-shooters.

I also would have liked to have seen a waiting period included in this bill, a provision adopted by the Senate Judiciary Committee in the 98th Congress. The Gun Control Act of 1968, while setting forth categories of persons to whom firearms may not be sold, does not require verification of the purchasers eligibility. A person purchasing a firearm from a federally licensed dealer is only required to sign a form on which he affirms by sworn statement that he is not pro-

 

[Begin p. 18200]

 

scribed from purchasing a firearm. As one might expect, this ĺ─¨honor systemĺ─¨ of verification has done little to prevent proscribed persons from obtaining firearms.

The 1981 Attorney General's Task Force on Violent Crime addressed this loophole in Federal gun laws and recommended that ĺ─¨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 one of the categories of persons who are proscribed by existing Federal law from receiving a handgun.ĺ─¨ A number of States and municipalities, including my home State of Connecticut, have enacted waiting period laws which have proven to be effective in keeping handguns out of the wrong hands.

The idea of a waiting period has broad public support. The law enforcement community, including the International Association of Chiefs of Police and the National Association of Attorneys General, supports a waiting period for handgun purchases. Moreover, a 1981 Gallup poll showed that 91 percent of the American people support a 21-day waiting period for handgun purchases with a background check.

I am also concerned that this legislation would, in its present form, preempt Connecticut's restrictions on automobile transportation of a firearm without a license, clearly an intrinsic part of my home State's license-to-carry law. This represents a derogation of the rights of States to regulate firearms within their own borders, a policy contrary to the intent of the Gun Control Act of 1968. I believe this goes too far. The interstate transportation of hunting rifles and shotguns does not pose the same law enforcement problem that the transportation of handguns does. In my view, an amendment to the bill could meet the needs of both hunters and law enforcement by restricting the provision allowing interstate transportation to long guns.

Mr. President, I have a number of other concerns with this bill, but in the interests of time, I will reserve my comments for the present. I am sure some of my colleagues will be addressing these same concerns as we move forward on this legislation

Finally, I would urge my colleagues to give serious thought to what is being asked of us here. We are being asked to relax and weaken our already modest Federal protections against handgun crime. In effect, we are being asked to further hinder the ability of law enforcement officers to respond to violent crime. More than 10,000 Americans will be murdered with handguns this year. If we add up the number of Americans killed just with handguns since 1968, the total is a staggering 350,000. Surely, the time has not come to loosen Federal restrictions on criminals' access to handguns.

I urge my colleagues to vote against this bill in its present form.

Mr. CHAFEE. Mr. President, passage of the Gun Control Act of 1968 was an important step toward effective control over the sale and trafficking of firearms in order to reduce the incidence of violent crime in the United States.

The legislation before us today makes changes in the current law intended to reduce unnecessary burdens on law-abiding citizens with respect to lawful use of firearms. I support the bill's goal of easing certain restrictions on the purchase and sale of guns for hunting and sporting purposes. However, this legislation does not do enough to halt the proliferation of handguns and could weaken existing laws designed for this purpose.

The United States has more violent crime than other countries which have restrictions on handguns. I have consistently supported efforts to strengthen controls over the purchase and distribution of handguns

Handgun control is an essential part of effective law enforcement. The ready availability of lethal, concealable handguns undermines efforts to protect citizens from violent crime.

Handgun deaths are a national tragedy. Handguns are used in more than 10,000 murders in the United States and another 500,000 crimes of violence each year. Small handguns are the overwhelming weapon of choice by street criminals and assassins.

Despite the need to strengthen controls over handguns, the legislation we have before us would have the opposite effect and weaken current law.

Under current law a State has the right to regulate gun ownership among its residents. This legislation places that right in grave jeopardy. It would authorize dealers to make face-to-face firearms sales to out-of-State customers if the sale would be lawful under the laws of the sellers' and buyers' jurisdiction. Since State and city gun laws vary widely, it would be a formidable task for dealers to insure that sales to out-of-State purchasers conform to law. The potential for handguns to fall into the wrong hands would be significantly greater should this provision be retained in the bill before us today.

I believe we can move forward to protect the rights of law-abiding citizens who purchase firearms for recreation, law enforcement, and private security and at the same time, strengthen law enforcement efforts to prevent handguns from falling into the wrong hands. There are three amendments we will consider which will facilitate this goal.

The first and most crucial amendment would relax the ban on the interstate sale of shotguns and rifles but retain the current prohibition on the interstate sale of handguns. Failure to adopt this amendment would hinder the ability of law enforcement agencies to control the spread of handguns.

Another important amendment would require a 14-day waiting period for purchases of handguns. A waiting period would not only give police the necessary time to determine if a purchaser is prohibited by law from owning a firearm, but also deter individuals who in a moment of desperation purchase a handgun to use in a suicide or a crime of passion. Limiting access to handguns for a period of time is an important intervention for crime prevention.

In addition an amendment to retain current law with respect to surprise Federal compliance inspections of Federal firearms licensees will be offered. The opportunity to conduct surprise visits to check sales records maintained by federally licensed gun dealers is vital to insure that sales are made through regular channels and are traceable. Instead of weakening Federal compliance inspections we should ensure that enforcement authorities have the tools necessary to deal with those who criminally misuse guns or who recklessly make it possible for others to do so.

We have an opportunity today to take this measure beyond the protection of the rights of hunters and sportsmen and to move toward reducing the incidence of crime in the United States. I hope my colleagues will join me in supporting the amendments before us.

Mr. KERRY. Mr. President, as we consider S. 49, the McClure-Volkmer Firearms Owners Protection Act, I think it is useful to recall the history of the legislation this act is to modify-the Gun Control Act of 1968, passed in the wake of the assassinations of Martin Luther King and Robert Kennedy by men using handguns.

Sadly, it took these two assassinations to convince Congress after 5 years of debate to pass basic regulations on the interstate sale of firearms. The act was designed to ĺ─¨provide support to Federal, State, and local law enforcement officials in their fight against crime and violence.ĺ─¨ Its passage was in recognition of the fact that gun violence in the United States had grown to alarming proportions. The legislative history of the act shows that one of the principal purposes of the legislation was to provide aid to the States against the ĺ─¨migratory handgun.ĺ─¨

A major aim of the Gun Control Act was to assist State and local gun control efforts by reducing the flow of guns from loose-control to tight-control jurisdictions. Prior to the act, two Northeastern States, including my home State of Massachusetts, and a number of municipalities had attemp-

 

[Begin p. 18201]

 

ted to restrict handgun possession to only those of their citizens who could demonstrate a special need to own one.

Such laws were intended to reduce handgun ownership to a tiny fraction of the national average of 40 handguns per 100 households. As it turned out, municipal efforts to restrict handgun possession were vulnerable to the flow of handguns from within the States and from other States. And even State efforts were vulnerable to interstate traffic.

A major problem in administering any gun licensing system was the interstate ĺ─¨leakageĺ─¨ of guns. In the mid-1960's, it was estimated that 87 percent of all firearms used in Massachusetts crime had been purchased first in other States. Two-thirds of a sample of handguns confiscated in New York City had come from other States, and surveys in other States told the same story.

It was to meet this problem directly that the 1968 statute was enacted-to stop the frustration of local efforts to license and register ownership of guns.

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

While private citizens were to be excluded from commerce in guns, federally licensed dealers were to be much more strenuously regulated. The fees from all Federal licenses were increased. Minimum standards for licensees were set, and the Secretary of the Treasury was given broad powers to establish mechanisms for regulating licensed manufacturers and dealers.

Having established Federal regulation of those in the business of making, selling and importing firearms, as well as all interstate aspects of commerce in firearms, the act pursued its major aims with a series of criminal prohibitions.

Those without Federal licenses were prohibited from shipping guns to other private parties in another State and from transferring guns to persons they knew or had reason to believe were residents of another State.

Dealers were prohibited from shipping to private citizens in other States and from selling to those who the dealer knew had reason to believe resided our of State.

All dealers had to sign a form indicating a customer had produced identification showing he was not a resident of another State. This form, which also identified the firearms sold and gave the purchaser's name, address, and description was retained by the dealer and made available for inspection by the Alcohol, Tobacco and Firearms agents.

All of this provided a Federal framework for the monitoring of interstate firearms sales to help State an local efforts to keep arms away from criminals, and to trace weapons when they were used to commit crimes. This Federal regulatory system was the heart an soul of the 1968 Gun Control Act. And yet, the McClure-Volkmer bill, without the amendments we have had placed before us today, will substantially dismantle this regulatory system, and again make it extraordinarily difficult for localities and States to fight crime committed with guns

For these reasons, I offer my strong support to the amendment offered by Senator KENNEDY to maintain the current interstate sales regulations of handguns. Those of us who were in law enforcement at the local level-and both Senator KENNEDY and I were prosecutors in Massachusetts-know that local efforts to monitor and track weapons will be made practically impossible if the KENNEDY amendment is not adopted to maintain existing law in this area.

Senator KENNEDY has worked tirelessly on behalf of all those injured by criminals with guns or who lost friends or family through crimes or abuse of firearms, and on behalf of law enforcement officials, to make the McClure-Volkmer legislation protect them, as well as gun owners.

I strongly urge this body to adopt the Kennedy amendment.

I am aware of the concerns of law-abiding firearms owners and recognize that McClure-Volkmer may eliminate some unintended consequences of the 1968 law. But law-abiding firearms owners will not be hurt by amendments to this legislation such as the Mathias amendment, which eliminates notification to dealers before Federal compliance inspections. I think it is incredible that a Federal agency trying to make sure that the law is followed should have to give a dealer notice before an inspection, to give him time to get his house in order if he has been violating the law. This notification provision does nothing to help those who are law-abiding-it only protects those who are violating the law, by interfering with law enforcement.

Finally, I wish to make special note of the service that Senator METZENBAUM has done Massachusetts, and the other States that currently have laws regulating handguns, with his amendment to modify the preemption provisions that would otherwise void many State and local gun control laws, including the Bartley-Fox law in Massachusetts, a law which has been central to law enforcement in the Commonwealth ever since its passage.

Bartley-Fox was a milestone in gun control for Massachusetts, passed by the State legislature as the result of a collaboration between two remarkable men, the speaker of the house, David Bartley, and State Judge John J. Fox, a man who had dedicated himself to seeking out the best methods of dealing with the problem of crime with guns.

The Bartley-Fox prohibits the transportation of a firearm or ammunition through Massachusetts by anyone who does not have a license for the weapon, and provides for exceptions for nonresidents under certain circumstances.

Its help to law enforcement officials in the years since its passage has been profound-and Massachusetts wants to keep it.

Senator METZENBAUM'S amendment has allowed Massachusetts to keep Bartley-Fox. Without it, McClure-Volkmer would preempt it.

This would be unfortunate for Massachusetts, for law enforcement, and for our system of federalism itself, for the reasons set forth in an excellent memorandum written by Judge Fox about the effects of McClure-Volkmer. At this time, I ask unanimous consent that Judge Fox's memorandum be inserted in the RECORD at the conclusion of my remarks.

As Judge Fox explains:

 

ĺ─˙The logical implications of what this proposed statute seeks to do would be to permit the federal government to assume full control over a State's procedures for the administration of its own criminal justice system.ĺ─¨

I thank Senator METZENBAUM for his protection of Massachusetts ability to regulate crime as a result of the adoption of his amendment.

There being no objection, the memorandum was ordered to be printed in the RECORD, as follows

MEMORANDUM BY JUDGE JOHN J. FOX OF MASSACHUSETTS

CONSIDERATIONS OF FEDERALISM

 

It is clear that this Bill, in its present form without the Metzenbaum amendment, would preempt such state legislation as Bartley/Fox (and all analogous or cognate state legislative enactments) by making ĺ─¨null and voidĺ─¨ any provision in state lawĺ─¨ which prohibits or has the effect of prohibiting the transportation of a firearm or ammunition in interstate commerce or throughĺ─¨ a state. (See pg. 57 of Sen. Report No. 98-583, 98th Cong. 2d Session). This blatant attempt to preempt or exclude state law aimed at addressing the problem of crime and violence-interests critically central to the welfare of a state and traditionally of preeminent local concern-intrudes impermissibly into state sovereign functions. It clearly proceeds upon a fundamental misunderstanding of the role that state governments play in our federalist system. Such a result would not only undoubtedly retard the creative experimentation which bold and progressive state legislatures have

 

[Begin p. 18202]

 

generated but would be antithetical to the values of federalism and inconsistent with our Constitutional history. Indeed, such an approach would undermine one of the most valuable aspects of our federalism-the combined, collective and collegial interaction of state and federal governments in areas of mutual concern. As one scholar has written ĺ─¨a federal system implies a partnership all members of which are effective players on the team and all of whom retain the capacity for independent action. It does not imply a system of collaboration in which one of the collaborators is annihilated by the other.ĺ─¨ L. White, The States and the Nation, 3(1953).

Before turning to the diverse articulations of the principles of federalism which are strikingly relevant here, it may be useful to set forth briefly the specific particulars by which this proposed legislation-invoking preemption-impacts directly and adversely a local state statute such as Bartley/Fox.

The Bartley/Fox Law, Massachusetts General Laws, Chapter 269, Sec. 10(a), applies to an unlicensed person who possesses a firearm, rifle or shotgun while in a motor vehicle. The law further provides for exceptions for non-residents under certain circumstances. Under Massachusetts General Laws, Chapter 140, Sec. 129C(h), a non resident may possess a rifle or shotgun and ammunition therefor while traveling in or through the Commonwealth, provided that the rifle or shotgun is unloaded and enclosed in a case. Similarly, under Massachusetts General Laws, Chapter 140, Sec. 131G, a non-resident may possess a pistol or revolver under certain circumstances if that person is a resident of the United States and has a permit or license to carry firearms issued under the laws of his home state and those licensing laws are substantially similar to the licensing laws of Massachusetts. (Copies of Sec. 129C(h) and Sec. 131G are enclosed).

Consequently, the existing limitations imposed by Massachusetts on the ability of non-residents to possess firearms, rifles and shotguns while traveling through the Commonwealth in a motor vehicle would be vitiated if this proposed federal legislation is enacted. Again this result would obtain because of the explicit provision of the proposed bill which states: ĺ─¨That any provision of any legislation enacted, or of any rule or regulation promulgated, by any State or a political subdivision which prohibits or has the effect of prohibiting the transportation of a firearm or ammunition in interstate commerce through such state, when such firearm is unloaded and not readily accessible, shall be null and void. (Emphasis supplied). The attempt to strike down, or dilute the efficacy of our Massachusetts law, (and cognate or analogous state provisions) in such an important particular, contravenes an unbroken expression of Supreme Court precedent relative to the primacy of state criminal laws, given the circumambient nature of our federalism.

One of the strongest expressions of this principle was articulated by Mr. Justice Field in his opinion for the United States Supreme Court in Baltimore & O.R. Co. v. Baugh, 149 U.S. 368 (1911). Thus he stated, in a passage quoted with approval by the Court in the historic decision in Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)

ĺ─¨The Constitution of the United States . . . recognizes and preserves the autonomy and independence of the States-independence in their legislative and independence in their judicial departments. Supervision over either the legislative or the judicial action of the States is in no case permissible except as to matters by the Constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence.ĺ─¨ 149 U.S. at 401

This statement is an eloquent expression of a cardinal principle of our federalism. This general rule, bottomed deeply in belief in the importance of state control of state procedures relating to its criminal law is that federal law takes state law-absent extraordinary circumstances-as it finds it. Hart, The Relations Between State and Federal Law, 54 Colum.L. Rev. 489, 508 (1954). Clearly this is a principle which has a striking relevance here. It may be true as the proponents of this bill will argue that the proposed law may not effect dramatic changes in the laws and procedures of all States. But it would be difficult to imagine another attempt by the Federal Government to supplant a state procedure which is so traditionally within the purview of state authority. If Congress may do this, presumably it has the power to achieve other such ends; e.g., to preempt state court rules of civil procedure and judicial review in all other similar areas. This would be the type of gradual encroachment hypothesized by Professor Tribe when he wrote recently: ĺ─¨Of course, no one expects Congress to oblitł«rate the states at least in one fell swoop. If there is any danger it lies in the tyranny of small decisions-in the prospect that Congress will nibble away at state sovereignty, bit by bit, until someday essentially nothing is left but a gutted shell.ĺ─¨ L. Tribe, American Constitutional Law 302 (1978).

If the power sought to be legitimized in this proposed bill is vindicated, then such a principal would, by hypothesis, permit the federal government to assume full control over a State's procedures for the administration of its own criminal justice system. This is and must be beyond the power of the federal government if the federal system is to exist in substance as well as form. The right of the State to regulate its own substantive law, to regulate its own procedures governing the conduct of litigants in its courts, and its interest in supervision of those procedures, stand on the same constitutional plane as its right and interest in framing ĺ─¨ substantive lawĺ─¨ governing other aspects of the conduct of those within its borders.

In reviewing the Supreme Court's decisions over the last four decades, one of the first and most striking facts to emerge is the obvious importance of the Court's interpretation of the obligations and imperatives of federalism in the development of American criminal law. See, Allen, The Supreme Court, Federalism and State Systems of Criminal Justice, 8 DePaul L. Rev. 213 (1959). These opinions invariably stress the need to respect the ĺ─¨sovereign character of the several statesĺ─¨ by giving the states the widest latitude in developing their own substantive criminal law. See, e.g., Ashcraft v. Tennessee, 322 U.S. 143 (1944). There are many reasons for this.

In respecting the autonomy of the states, the principle of federalism preserves local control of government. This has various advantages. It avoids centralized power and the potential for abuse inherent in the concentration of governmental authority; it promotes democracy by allowing decisions to be controlled by the population most directly affected; it permits laws to be formulated in accordance with local conditions and to be enforced by persons who are familiar with local concerns; and it permits a diversity necessary for the survival of pluralism. These advantages arguably have special significance as applied to the field of criminal justice and the substantive criminal law statutes of a state. Notwithstanding expansion of federal legislative power, the enactment and enforcement of criminal laws remains the primary responsibility of the states. With respect to the specific problems sought to be addressed by state bills such as Bartley/Fox, these principles have a special and unique relevance. For example, what applies to a state like Massachusetts may not apply as easily to a state like Montana. What applies to a city like New York may not apply as easily or as persuasively to a bucolic hamlet in rural Nebraska. What applies to Nebraska may not be as relevant to a state like Mississippi. The essential point is that local custom, local tradition, local conditions and circumstances, local law enforcement vary so dramatically that it is neither surprising nor subversive that the autonomy of the states should be preeminently respected in this area.

This concern for the principle of federalism is hardly a new development. For example, in the celebrated Slaughter House cases, the Supreme Court consistently referred to the ĺ─¨whole theory of the salutary relations of the state and federal governmentĺ─¨ in rejecting a broad reading of the privileges and immunities clause which would have curtailed state substantive law. Similarly, equal protection rulings relating to state criminal procedures have consistently noted the importance of leaving the states free to prescribe their ĺ─¨own modes of judicial proceedings.ĺ─¨ Missouri v. Lewis, 101 U.S. 22 (1879). And the early due process decisions, in refusing to strike down or preempt state criminal law, frequently stressed that such a ruling would be inconsistent with ĺ─¨the full power of the state to order its own affairs and govern its own people.ĺ─¨ See, e.g., Twining v. New Jersey, 211 U.S. 78 (1908); Maxwell v. Dow, 176 U.S. 581 (1900).

It is clear that a review of the vast generality of Supreme Court cases show that the justices supporting the essentially autonomy of state sovereignty feared that imposition of federal limitations might destroy the positive advantages of local control. The Supreme Court consistently indicated that the federal government, reposing far from the local scene, had to exercise caution, limiting its authority to the imposition of those ĺ─¨principles of decent procedureĺ─¨that were basic to a free society and therefore accepted by the vast majority of local communities. Indeed, the clear thrust of these decisions make clear that if the power of the states to deal with local crime was unduly restricted, the end result might be a shift of responsibility to the Federal Government with its vastly greater resources * * * bringing us closer to the monolithic society which our federalism rejects.ĺ─¨ Malloy v. Hogan, 378 U.S. (1969).

These opinions, and many others, clearly demonstrate that state legislative and administrative bodies are not field offices of the national bureaucracy. Instead, each State is sovereign within its own domain, governing its citizens and providing for their general welfare. While the Constitution and Federal statutes define the boundaries of that domain, they do not harness state power for national purposes. Rather, the Constitution contemplates an indestructible


[Begin p. 18203]


Union, composed of indestructible States, a system in which both the state and national governments retain a ĺ─¨separate and independent existence.ĺ─¨ Texas v. White, 7 Wall. 700, 725 (1869); Lane County v. Oregon, 7 Wall. 71, 76 (1869).

Adhering to these principles, the Supreme Court has recognized that the Tenth Amendment restrains congressional action that would impair ĺ─¨a State's ability to function as a State.ĺ─¨ United Transportation Union v. Long Island R. Co., 455 U.S. 367, 373 (1982); National League of Cities v. Usery, 426 U.S. 833, 842-852 (1976); Fry v. United States, 421 U.S. 542, 547 n. 7 (1975). See also City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 423-424 (1978). For example, in National League of Cities v. Usery, supra, the Court held that Congress could not prescribe the minimum wages and maximum hours of state employees engaged in ĺ─¨traditional governmental functions,ĺ─¨ Id., at 852, because the power to set those wages and hours is an ĺ─¨attribute of state sovereigntyĺ─¨ that is ĺ─¨essential to (a) separate and independent existence.ĺ─¨ Id., at 845 (quoting Lane County v. Oregon, supra at 76)

In 1981 the Supreme Court identified three separate inquiries underlying the result in National League of Cities, supra. Thus the Court stated: ĺ─¨A congressional enactment violates the Tenth Amendment if it regulates the ĺ─¨ States as States,ĺ─¨ addresses matters that are indisputably attribute(s) of state sovereignty and directly impairs (the States') ability to structure integral operations in areas of traditional governmental function. Hodel v. Virginia Surface Mining & Reclamation Association, 452 U.S. 264, 287-288 (1981) (quoting National League of Cities, supra at 854, 845, 852). See also United Transportation Union, supra.

Given the fact that effective crime control is one of the most dramatic issues facing state governments it would be difficult to imagine a federal statute which would more directly regulate the ĺ─¨States as Statesĺ─¨ in those ĺ─¨ indisputable attribute(s) ĺ─¨of state sovereignty or which, ultimately, would impair a state's ability to ĺ─¨structure integral operations in areas of traditional functionĺ─¨ than the proposed federal statute considered here.

Another significant argument against the present proposal is that it would undoubtedly retard the creative experimentation which is such a part of our federalism. For example, in New State Ice Co. v. Liebman, 285 U.S. 262 (1932), Justice Brandeis admonished the Court against undue interference with state experimentation. Thus he stated:

ĺ─¨To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.ĺ─¨

In espousing this principle, courts and commentators frequently have recognized that the fifty States do indeed serve as ĺ─¨laboratoriesĺ─¨ for the development of new social, economic and political ideas. See, e.g., Chandler v. Florida, 449 U.S. 560, 579 (1981); Reeves, Inc. v. Stake, 447 U.S. 429, 441 (1980); Whelan v. Roe, 429 U.S. 589, 597 and n.20 (1977); Macmahon, The Problems of Federalism: A Survey in Federalism, Mature and Emergent 3, 10-11 (A. Macmahon, ed. 1955); N. Rockefeller, The Future of Federalism 8-9 (1962). And this belief in state innovation is no judicial myth. Here in Massachusetts, for example, after decades of academic debate, state experimentation finally provided an opportunity to observe no fault automobile insurance in operation. See, C. Morris & C. Morris, Jr., Morris on Torts 244-245 (2d ed. 1980); Friendly, Federalism: A Foreword, 86 Yale L.J. 1019, 1034 (1977). When Wyoming became a state in 1890, it was the only State permitting women to vote. (Wyoming's policy followed a practice it had adopted as a territory). (Compare Act of January 21, 1891, Ch. 100, Sec. 4 (1890-1891) Wyo. Sess. Laws 394 with Act of March 14, 1890, Ch. 80, Sec. 5 (1890) Sess. Laws Wyo. Territory 157). See generally, C. Beard & M. Beard, The Rise of American Civilization, 563 (rev. ed. 1937).

That ĺ─¨novelĺ─¨ idea did not bear national fruit for another thirty years. (The Nineteenth Amendment, ratified in 1920, prohibits abridgement of the right to vote on account of sex). In another dramatic example, Wisconsin pioneered unemployment insurance. (Compare Act of January 28, 1932, Ch. 20, 1931-1932 Wis. Laws 57; Act of June 1, 1933, Ch. 186, 1933 Wis. Laws 448; Act of June 2, 1933, Ch. 194, 1933 Wis. Laws 491); W. Leuchtenburg, Franklin D. Roosevelt and the New Deal, 1932-1940, p. 130 (1963). Again, Massachusetts was a pioneer in initiating minimum wage laws for women and minors. (See, Act of June 4, 1912, Ch. 706, 1912 Mass. Acts 780); R. Morris, Encyclopedia of American History, 768 (Bicentennial ed. 1976).

Even in the field of environmental protection, an area subject to heavy federal regulation, the States have long supplemented national standards with innovative and far reaching statutes. Florida, for example, has enacted particularly strict legislation against oil spills. (Fla. Stat. Ann., Sections 376-011-.21) (1974 ed. and Suppl. 1982). The Supreme Court upheld that legislation in Askew v. American Waterways Operators, Inc., 411 U.S. 325 (1973). Utility regulation is another field marked by valuable state intervention. (See Federal Power Commission v. East Ohio Gas Co., 338 U.S. 464, 489 (1950). (Jackson, J., dissenting). ĺ─¨Long before the Federal Government could be stirred to regulate utilities, courageous states took the initiative and almost the whole body of utility practice has resulted from their experiences.ĺ─¨

Moreover, attempts at federal preemption in this area are completely misplaced. When Congress preempts a field it precludes only state legislation that directly conflicts with the national approach. No such situation exists here. Rather, it is now well established that States usually retain the power to complement congressional legislation, either by regulating details unsupervised by Congress or by imposing requirements that go beyond the national threshold. In rare instances, Congress so occupies a field that any state regulations are inconsistent with national goals. The Supreme Court, however, is reluctant to infer such expansive preemption in the absence of persuasive reasons. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963). See generally, Stewart, Pyramids of Sacrifice: Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L.J. 1196, 1239-1247 (1977); Comment Redefining the National League of Cities State Sovereignty Doctrine, 129 U. Pa L.Rev. 1460, 1477-1748 (1981). Certainly, there should be no such attempt at ĺ─¨expansive preemptionĺ─¨ in this case.

As the foregoing examples will illustrate, one of the major justifications advanced for promoting a strong federalism derives from Justice Brandeis' admonition that states should be provided ample room for diversity (and thus experimentation) in both its substantive and procedural law. Indeed, the importance of allowing leeway for experimentation is state criminal law provisions was noted early by the Supreme Court in Hurtado v. California where it was stressed that due process ought not to preclude a state, if it so desires, from looking beyond the common law and basing its process on ĺ─¨the best of all systems and of every age,ĺ─¨ letting the ĺ─¨new and various experiences of its own situation * * * (shape) new and not less useful forms.ĺ─¨ 110 U.S. 516 (1884). In subsequent years the same philosphy found consistent voice in Supreme Court decisions and, perhaps, was best summarized by Justice Frankfurter in a discussion of Powell v. Alabama in which he wrote ĺ─¨the mood of the Supreme Court has been insistently cautious in attempting to limit the reach of the criminal law of a state.ĺ─¨ In his view, this was proper for, as he noted, the Four-teenth Amendment should not be ĺ─¨the basis of a Uniform Code of Criminal Procedure federally imposed.ĺ─¨ ĺ─¨Alternative modes of arriving at truthĺ─¨ should not be barred. As in the area of economic regulation, ĺ─¨here too, freedom must be left for new, perhaps improved, methods 'in the insulated chambers afforded by the several states.' ĺ─¨ See, F. Frankfurter, Law and Politics, 192 (1939).

In addition to promoting experimentation, federalism enhances the opportunity of all citizens to participate in representative government. Alexis de Tocqueville understood well that participation in local government is a cornerstone of American democracy:

ĺ─¨It is incontestably true that the love and the habits of republican government in the United States were engendered in the townships and in the provincial assemblies. . . . (I)t is this same republican spirit, it is these manners and customs of a free people, which are engendered and nurtured in the different States to be afterwards applied to the country at large.ĺ─¨ 1 A. de Tocqueville, Democracy in America 181 (H. Reeve Trans. 1961).

Citizens, however, cannot learn the lessons of self-government if their local efforts are devoted to reviewing proposals formulated by a far-away national legislature. If we want to preserve the ability of citizens to learn democratic processes through participation in local government, citizens must retain the power to govern, not merely administer, their local problems.

Finally, our federal system provides a salutary check on governmental power. As Justice Harlan once explained, our ancestors ĺ─¨were suspicious of every form of all-powerful central authority.ĺ─¨ Harlan, supra n.16, at 944. To curb this evil they both allocated governmental power between state and national authorities and divided the national power among three branches of government. Unless we zealously protect these distinctions, we risk upsetting the balance of power that buttresses our basic liberties. In analyzing this brake on governmental power, Justice Harlan noted that ĺ─¨(t)he diffusion of power between federal and state authority. . . . takes on added significance as the size of the federal buraucracy continues to grow.ĺ─¨ Ibid. See also, I. Silone, The School for Dictators 119 (W. Weaver trans. 1963).

 

[Begin p. 18204]

 

 (ĺ─¨A regime of freedom should receive its lifeblood from the self-government of local institutions. When democracy, driven by some of its baser tendencies, suppresses such autonomies, it is only devouring itself. If in the factory the master's word is law, if bureaucracy takes over the trade union, if the central government's representative runs the city and the province . . . then you can no longer speak of democracyĺ─¨)

Even if one accepted a certain legitimate subordination of values of local control, it is still possible to argue that the different problems faced by the diverse state criminal justice systems require standards more flexible than those that would derive from a single monolithic standard in this area. The logical implications of what this proposed statute seeks to do would be to permit the federal government to assume full control over a State's procedures for the administration of its own criminal justice system. As noted previously this is and must be beyond the power of the Congress if the federal system is to exist in substance as well as form. Again, the right of a state, like Massachusetts, to regulate its own procedures governing the conduct of potential criminal defendants in its courts, and its interest in supervision of those procedures, stand on the same constitutional plane as its right and interest in framing substantive laws governing other aspects of the conduct of those within its borders. As Justice Powell noted in Shadwick v. Tampa, 407 U.S. 345 (1972), ĺ─¨(O)ur federal system x x x recognizes in plural and diverse state activities one key to national innovation and vitality. States are entitled to some flexibility and leeway . . . in the administration of their criminal law.ĺ─¨ Obviously what the Court strongly suggests-words powerfully relevant here-that a jot-for-jot application of single monolithic standard would put ĺ─¨the states, with their differing law enforcement problems . . . in a constitutional straight jacket.ĺ─¨ Kerr v. California, supra at 672.

It is clear that the logical upshot of the proposed statute would not be a move toward the ĺ─¨harmoniousĺ─¨ federalism which the Supreme Court has consistently indicated should be our goal. Indeed, the result presaged by the proposed statute would be the very antithesis of this objective. Proponents of this bill may argue that the result sought to be achieved by the proposed statute is justifiable as a means of promoting ĺ─¨efficiencyĺ─¨ in the administration of criminal justice. Such an argument must be rejected unless one is willing to accept the kind of ĺ─¨efficiencyĺ─¨ which, though perhaps appropriate in some watered-down form of federalism, is not congenial to the kind of robust federalism which has been the hallmark of this country over many fruitful and productive years.

Mr. THURMOND. Mr. President, I support the interstate sales provisions of S. 49 which will permit the purchase of firearms by citizens from another State in accordance with the laws of both States. This provision has the strong support of the administration, the Department of the Treasury, professional firearms associations, firearms dealers, and numerous other groups. The controls imposed by S. 49 provide many protections for legitimate law enforcement purposes. The requirements imposed by S. 49 include direct over-the-counter purchases, proof of identification and eligiblity to puchase firearms, and extensive recordkeeping by licensed dealers. States and municipalities are free to impose further, more restrictive requirements, as they deem proper.

I am of the opinion that the States should in fact determine those requirements most appropriate for their jurisdictions. I am confident that the lawmakers of States and localities will be able to adopt those safeguards most appropriate to the needs of their jurisdictions regarding the important subject matter of firearms.

INTERSTATE HANDGUN SALES

Mr. MOYNIHAN. Mr. President, I am pleased to support the amendment offered by my friend, Senator KENNEDY, to retain the current restrictions on the interstate sale of handguns. The provision in S. 49 to permit such sales would undermine current efforts to control handgun crime

This amendment does no more than reaffirm current Federal law. The 1968 Gun Control Act, enacted in response to the tragic assassinations of Dr. Martin Luther King, Jr. and Robert F. Kennedy, prohibits all interstate gun sales. S. 49 would eliminate this ban, and permit gun dealers to sell handguns out-of-State if the sale would be legal under the laws of both the buyer's and dealer's States.

Far from advancing the rights of firearms owners, such a provision would place a new burden on gun dealers, by requiring them to know all the gun control regulations of every State in which they might do business. More important, the prospect of interstate handgun sales would gravely weaken efforts to control the spread of illegal handguns, and hamper police efforts to trace guns used in the commission of crimes.

It is not surprising, then, that this amendment is endorsed by the Nation's major law enforcement organizations, including the International Association of Chiefs of Police, the Police Executive Research Forum, the National Troopers Coalition, the National Organization of Black Law Enforcement Executives, and the Fraternal Order of Police, as well as the American Bar Association and the U.S. Conference of Mayors.

This amendment would not deny the rights of sportsmen, nor broaden the scope of Federal gun control law. It would only preserve an important provision in current law. The Nation's police officers have given this amendment their strong endorsement. I urge my colleagues to support it as well.

Mr. HATCH. Mr. President, I am prepared to yield back the remainder of my time, unless the distinguished Senator from Massachusetts desires to reply.

Mr. KENNEDY. Mr. President, I would like to ask how much time we have.

The PRESIDING OFFICER. The Senator has 15 minutes remaining.

Mr. KENNEDY. Mr. President, I yield myself 5 minutes.

I direct the attention of the floor manager of the bill to the section of the legislation that puts the burden on the local dealer. That is addressed, as I understand it, on page 7:

ĺ─˙. . . shall not apply to the sale or delivery of any firearm to a resident of a State other than a State in which the licensee's place of business is located if the sale, delivery and receipt fully comply with the legal conditions of sale in both such States.ĺ─¨

I gave my understanding of what that provision means. It is saying that without my amendment, for every dealer all over this country, this is going to mean he has presumed knowledge about this provision. If that dealer does not understand the laws of 50 States and hundreds of localities-and as I said when we were considering it in the Judiciary Committee, we just had an opportunity to do the review of provisions of a few States. For example, whether there is a background check for the purchase of any handgun. For South Carolina, there is one in Fort Mill; whether there is a waiting period, and there is a 7-day one in Maryland, 72 hours in Las Vegas; in Kansas, there is a 15-day period; Cheyenne, WY, 48 hours-the dealer is presumed to understand all local and State laws before selling a handgun to an out-of-State resident.

Then there is the various prohibited classes of individuals. As we have seen in our review, those particular provisions are changing with just about every legislature. So every local dealer is going to have to be aware of those changes or, under this legislation, which is Federal legislation, the possibility of facing an investigation and the penalties spelled out on page 21 making the dealer guilty of a felony. I am just wondering if that is his understanding and, if not, why not, if the Senator will use his own time

Mr. HATCH. I will be happy to use my own time.

The PRESIDING OFFICER. The Senator from Utah.

Mr. HATCH. Mr. President, I suggest that the Senator has read the statute correctly. S. 49 permits out-of-State purchases but it also ensures that the laws of the buyer's as well as the seller's State shall be scrupulously obeyed. S. 49 requires those interstate sales of firearms-deer rifles, shotguns, and handguns-comply with requirements that will guarantee the objective of the act was met, namely, that all State laws be upheld.

Mr. KENNEDY. As the Senator knows, we have already addressed the issue on the long guns. 

Mr. HATCH. We are talking about handguns as well 

Mr. KENNEDY. The Senator has included those.

 

[Begin p. 18205]

 

Mr. HATCH. Yes; I am just stating what the law is, and there are three basic requirements: That all interstate sales of firearms including handguns must take place over the counter face to face. This allows the dealer to identify and make inquiries of the purchasers, and thus it prevents sales to felons and others prohibited from acquiring firearms. Second, all interstate sales of firearms, including handguns, have to be recorded in the dealer's records so that tracing can be readily obtained. Third, all interstate sales of firearms, including handguns, must comply with the laws of both the buyer's and the seller's States. The licensed dealer is legally responsible for knowing those laws. The Senator is correct in stating that the way he has. Those laws are printed in a Treasury Department manual distributed to all dealers. The dealer will be held accountable for any sales in violation of applicable State or local laws, and it is up to the Treasury Department to update those handbooks on a regular basis.

In fact, it is required in the act that they do so. Licensed dealers are familiar with the use of these handbooks. They know how to use them. They know how to interpret the laws. Frankly, we believe that those are adequate protections under the circumstances. We do not think that the true sportsman should be hampered in his right to obtain handguns just because there may be an isolated case here and there which some people think might militate against him.

Mr. KENNEDY. Is the Senator saying that if it conforms with what is actually produced by the Bureau of Alcohol, Tobacco and Firearms, it is going to be basically a defense? Because, as the Senator knows all too well, the BATF book of State and local regulations is always out of date-delayed often by a year or more. They are not timely. I would daresay from a casual review of the States which have any of the requirements we have outlined here, they are significantly out of date. A statement was made by the Senator from Utah about the timeliness and accuracy, but in going over those various provisions we found out that even in the States that were represented by the Judiciary Committee, in almost every single instance they were not really accurate.

The only point, Mr. President, that I make, unless the Senator has more to add to it, is that we are creating a very, very significant additional burden, a good deal of potential vulnerability, and a great deal of additional redtape for dealers. For some of the reasons that I have outlined, unless we accept my amendment, I would hope that those who are concerned about peace and the security in our communities and towns-and we hear many speeches and read many press releases about that particular issue-that they know that, according to law enforcement officials, we will take a significant step backward in crime control.

Mr. HATCH. Mr. President, I draw the attention of my colleague, the distinguished Senator from Massachusetts, to section 108(1) of this bill which states that upon the enactment of this act the Secretary shall publish and provide to all licensees a compilation of the State laws and published ordinances of which licensees are presumed to have knowledge pursuant to chapter 44 of title 18, United States Code, as amended by this act.

And it goes on from there to answer the distinguished Senator's question.

Now, the licensed dealers are willing to meet this burden, and it is little more than they have to do for long guns anyway. They are familiar with the manual. The Treasury Department is willing to keep the manual up to date and keep them informed. Frankly, it is not going to be the burden the distinguished Senator from Massachusetts says, but even if it was, in order to provide sportsmen with the right to obtain guns, they feel as though they can comply with this particular provision. I believe that the bill takes care of most if not all of the concerns of the Senator.

Mr. KENNEDY. Will the Senator, on my time, tell us how many more individuals are going to be hired to do this review at the Bureau of Firearms?

Mr. HATCH. We have been informed that they can do this right now.

Mr. KENNEDY. But they have not.

Mr. HATCH. They are doing it.

Mr. KENNEDY. The fact of the matter isĺ─ţ

Mr. HATCH. They are not doing it with regard to handguns.

Mr. KENNEDY. I would be glad to supply the book of last year and then to inquire of the Senator, in particular towns and communities, what individual dealers would be vulnerable under this legislation. If he is able to answer it, it will be amazing to me because the BATF books are not complete or up-to-date

Mr. President, the bureaucratic issue is one thing, but I do think the law enforcement issue is clearly the overwhelming issue involved here. I feel that reason stands by itself as the basis for a continuation of existing law on the interstate sales of handguns-not an expansion, not an alteration but just a continuation of current law.

The final point is that if you do not vote for this amendment, you are basically voting to circumvent in one very important way State laws, because under the existing law the only way you can get a handgun or pistol, or even a Saturday night special, is to go through a licensed dealer in your home State. This opens up a completely different opportunity to circumvent those State laws. For the reasons outlined by the law enforcement officials, I think this would be a serious mistake for those who are concerned about law enforcement

I reserve the remainder of my time

Mr. HATCH. Mr. President, I yield such time as the distinguished Senator from Idaho uses.

The PRESIDING OFFICER. The Senator from Idaho

Mr. McCLURE. Mr. President, I understand the statement of the Senator from Massachusetts has made, but let me point out a couple of errors. He made some reference to a letter in which there is reference to the circumvention of State law. As a matter of fact, the bill requires absolute compliance with State law, not circumvention of it. If a purchaser goes to a licensed dealer-and remember, it is a face-to-face transaction with licensed dealers only-only if that licensed dealer can verify the fact that the transaction is lawful in both the State of the purchaser's residence and the State where the transaction takes place can the transaction take place. It circumvents no law at all.

As a matter of fact, if the Senator was really concerned about the burdensome recordkeeping, we could simply delete the reference to the State of residence of the purchaser. That, indeed, would be a circumvention of that State law by permitting a nonresident to go from the place where he could not own or purchase a firearm to a place where he could.

It was because we did not wish to do this that we have these recordkeeping requirements which the Senator now decries. Frankly, I think the Senator from Massachusetts, in his heart of hearts, shares our desire that we not circumvent State law.

With respect to the burden of S. 49 on dealers, if a dealer thinks that S. 49 imposes too onerous a requirement or one that is fraught with too much danger, he has the right to refuse to make the sale, saying: ĺ─¨I can't verify. I can't know that I would not be violating the law, because I do not know what the law of your residence is. I'm sorry, I won't sell this gun to you.ĺ─¨ It is very easy for him to avoid the recordkeeping and the hazard to which he would be exposed, if he desires to do so.

I hope the amendment is rejected.

Mr. HATCH. Mr. President, I am prepared to yield back the remainder of my time and to vote.

Mr. KENNEDY. I am prepared to do so. I ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second

The yeas and nays were ordered.

 

[Begin p. 18206]

 

Mr. MCCLURE. Mr. President, I move to table the amendment, and I ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.

The yeas and nays were ordered.

The PRESIDING OFFICER. The question is on agreeing to the motion to table the amendment. On this question the yeas and nays have been ordered, and the clerk will call the roll 

The assistant legislative clerk called the roll.

Mr. SIMPSON. I announce that the Senator from Colorado <Mr. ARMSTRONG>, and the Senator from Oregon <Mr. HATFIELD> are necessarily absent.

Mr. CRANSTON. I announce that the Senator from New Jersey <Mr. BRADLEY>, the Senator from Lousiana <Mr. LONG>, and the Senator from Illinois <Mr. SIMON> are necessarily absent.

The PRESIDING OFFICER (Mr. HECHT). Are there any other Senators in the Chamber who desire to vote?

The result was announced-yeas 69, nays 26, as follows:

<Rollcall Vote No. 139 Leg.>

YEAS-69

Abdnor Andrews Baucus Bentsen Bingaman Boschwitz Bumpers Burdick Byrd Chiles Cochran Cohen D'Amato Danforth DeConcini Denton Dole Domenici Durenberger Eagleton East Exon Ford Garn Goldwater Gore Gramm Grassley Hatch Hawkins Hecht Heflin Heinz Helms Hollings Humphrey Johnston Kasten Laxalt Leahy Lugar Mattingly McClure McConnell Melcher Mitchell Murkowski Nickles Nunn Packwood Pressler Pryor Quayle Rockefeller Roth Rudman Sasser Simpson Specter Stafford Stennis Stevens Symms Thurmond Trible Wallop Warner Wilson Zorinsky

NAYS-26

Biden Boren Chafee Cranston Dixon Dodd Evans Glenn Gorton Harkin Hart Inouye Kassebaum Kennedy Kerry Lautenberg Levin Mathias Matsunaga Metzenbaum Moynihan Pell Proxmire Riegle Sarbanes Weicker

NOT VOTING-5

Armstrong Bradley Hatfield Long Simon

So the motion to table amendment No. 509 was agreed to.

Mr. HATCH. Mr. President, I move to reconsider the vote by which the motion was agreed to.

Mr. MCCLURE. I move to lay that motion on the table

The motion to lay on the table was agreed to.

 

AMENDMENT NO. 510

(Purpose: To amend the provisions regarding compliance inspections)

Mr. MATHIAS. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will report.

The legislative clerk read as follows:

The Senator from Maryland <Mr. MATHIAS> proposes an amendment numbered 510.

Mr. MATHIAS. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered.

The amendment is as follows:

On page 14, line 24, after ĺ─¨(B)ĺ─¨ insert ĺ─¨for routine compliance inspections,ĺ─¨.

On page 14, line 25, strike out ĺ─¨, upon reasonableĺ─¨.

On page 15, line 1, strike out ĺ─¨notice,ĺ─¨.

On page 15, line 9, after ĺ─¨(A)ĺ─¨ insert ĺ─¨for routine compliance inspections,ĺ─¨.

On page 15, lines 10 and 11, strike out ĺ─¨, upon reasonable notice,ĺ─¨.

Mr. MATHIAS. Mr. President, this amendment would eliminate an unnecessary and, I believe, a harmful provision of Senate bill 49 that requires notification before a routine compliance inspection of a dealer, manufacturer, or other licensee under the act. Without this amendment, Senate bill 49 would require enforcement officers to give dealers a reasonable notice-whatever reasonable notice may be-of an upcoming inspection.

The proponents of this requirement advocate it because they say the Bureau of Alcohol, Tobacco, and Firearms has been harassing legitimate dealers by conducting frequent, unannounced compliance inspections. The Judiciary Committee looked very carefully into this allegation and produced no compelling evidence to indicate that this is, in fact, the case.

However, if, in fact, it were the case, any concerns in this area are fully addressed by the requirement that is already contained in Senate bill 49-a requirement that is not touched by the language of this amendment-that compliance inspections can be conducted no more frequently than once a year.

Clearly an annual inspection, whether it is announced or whether it is unannounced, cannot be considered to harass the honest businessman.

Currently, we permit unannounced compliance inspections of various kinds of business activities. Unannounced inspections of liquor distributors and retailers have long been part of both Federal and State regulation of that industry. In fact, the first public job that I ever had was as the counsel to a license commissioner. And it was part of the warp and woof of that office that the commissioner would casually drop in on business establishments at all hours of the day and night. The fact that he might do so was anticipated by the licensee.

Similarly, the production of meat, of poultry, and of eggs is regulated by Government, and those regulations are enforced through routine compliance inspections which may be unannounced. The drug industry, the mining industry, for other examples, are treated in the same way. And this is accepted by the industries and expected by the public

The Congress has long recognized that compliance inspections are critical to enforcement of Federal law. In the case of industries where evidence can be easily concealed or moved or altered, unannounced inspections are a significant deterrent to illegal behavior and a most useful tool in apprehending willful violators.

As Dr. Samuel Johnson, the great English moralist, observed over 200 years ago, ĺ─¨Nothing is so conducive to a good conscience as the suspicion of being watched.ĺ─¨ Yet Senate bill 49 would abolish unannounced inspections of the records and inventory of Federally licensed firearms dealers and manufacturers. In this way, the bill severely restricts the effectiveness of Federal enforcement.

Prior notification would be of little importance to a legitimate firearms dealer. His records would not, of course, need change or alteration. His inventory would not have to be improved prior to the visit from Federal officials. Thus, the honest dealer would receive no benefit from the legislation.

However, the unscrupulous dealer or manufacturer would be given adequate notice and adequate opportunity to engage in what we might call creative recordkeeping, and the improvement of otherwise illegal inventory, in order to bring his business into temporary compliance and thereby to thwart lawful Federal enforcement.

The Supreme Court has specifically upheld unannounced inspections of licensed gun dealers of the kind that Senate bill 49 would prohibit, and that this amendment would allow to continue. In the case of the United States versus Biswell, the Court stated that ĺ─¨inspection is a crucial part of the regulatory scheme since it assures that weapons are distributed through regular channels in a traceable manner and makes possible the prevention of sales to undesirable customers and the detection of origins of particular firearms.ĺ─¨

 A brief review of the facts in the Biswell case will show the kind of enforcement actions that will be prohibited by Senate bill 49 unless it is amended as proposed in the pending amendment. This review also indicates the type of dealer who will benefit from the prohibition.


[Begin p. 18207]


Mr. Biswell has been federally licensed as a dealer in sporting weapons. One afternoon he was visited, unannounced, at his place of business by local policemen accompanied by a Federal Treasury agent who identified himself and conducted an inspection of Mr. Biswell's books. The record discloses that the Treasury Agent then requested access to Mr. Biswell's locked storeroom. Mr. Biswell at first refused, but the Treasury agent handed Mr. Biswell a copy of title 18, section 923(g) which authorizes such unannounced inspection and Mr. Biswell, deferring to the majesty of the law, opened the storeroom.

There the Treasury agent found two sawed-off rifles which Mr. Biswell was not licensed to possess since he was a licensed dealer only in sporting weapons. As a result, Mr. Biswell was convicted of violating Federal firearms law, and the Supreme Court, in upholding the reasonableness of the unannounced compliance inspection, upheld Mr. Biswell's conviction.

If we were to enact, as I hope we will not, Senate bill 49 without the pending amendment, I wonder what would happen to someone who was placed in the position of Mr. Biswell. I would like to leave Mr. Biswell himself out of it. We cannot speculate as to what he might have done or not have done had he had some prior notice of the inspection which resulted in his conviction. But some other dealer in sawed-off weapons, notified in advance that an inspection of his records and inventory was about to take place would not, I suspect, sit idly behind his counter waiting for the Treasury agents to arrive. I rather suspect that he would conduct a preinspection of his own inventory and remove the more novel weapons that it might contain. On the appointed day when he was expecting the visit of the Treasury agent, and his place of business was shining and swept and everything was in order, there would be no sawed-off rifles to be found by the Federal agent, and the premises would be all in order for the compliance inspection

Now, the very next day this hypothetical dealer would be able to restore the illegal weapons to the inventory, safe in the knowledge that he would always have adequate notice and adequate opportunity to remove them before the next inspection that would not take place, under the law, until at least a year later 

Without the pending amendment, Senate bill 49 will cripple Federal enforcement of the law. Only the dishonest dealer will benefit from such pre-inspection notification. But all of the American people will suffer because of the reduction in enforcement effectiveness. So I urge Senators to consider the effect of this provision of Senate bill 49 and to support the pending amendment to eliminate this undesirable feature, and to restore effective compliance and enforcement.

Mr. HATCH addressed the Chair.

The PRESIDING OFFICER. The Senator from Utah 

Mr. HATCH. Mr. President, a brief explanation of the inspections policy included in S. 49 should answer many of the questions posed by my colleagues. Under current law, a dealer's entire inventory and his record is subject to inspection at any time during business hours without prior notice. There are no restrictions on the number of inspections or on the use of information gathered during these inspections. Unannounced searches have become fishing expeditions for inadvertent recordkeeping violations. In one instance, publicized by our hearings, several BATF agents conducted a thorough search of one dealer over a period of several days only to discover a minor recordkeeping violation concerning a few pounds of black powder. Section 49 remedied some of these past problems by codifying the new practices of the BATF. Specifically, S. 49 employs at least two different inspection mechanisms for two different purposes.

I can distinguish these two types of searches by labeling them loosely the compliance inspections and the enforcement searches. Compliance inspections, or courtesy visits, as they are sometimes called, are limited to one per year after reasonable notice, and information gathered in these annual routine inspections cannot be used to criminally prosecute the dealer unless the inspection discloses sales to prohibited persons or a willful recordkeeping violation. The reasons for these limitations on the courtesy visit is that its purpose is solely to instruct dealers in the operation of the law and to help the dealer comply with technical recordkeeping requirements. Even these annual visits and notice restrictions do not apply, however, when Federal law officers are tracing firearms or seeking evidence concerning violations by persons other than the dealer. The notice provision will assist both the Federal officers and the dealer in this process. Clearly, this provision of S. 49 will promote the flexibility and cooperation between the regulated and regulator that is essential to the success of this regulatory scheme. The compliance inspection must be distinguished from the enforcement search, and the enforcement search is conducted with the only restriction being those listed on the warrant issued by a judicial officer on the basis of reasonable cause. A dealer is always subject to searches conducted on this basis. If the Federal officers have reasonable cause to believe a violation of the law may be discovered on the dealer's premises, they may obtain a warrant and conduct a full search in accordance with the terms of that warrant. Recognizing that S. 49 grants Federal officers access to records as often as is necessary to promote compliance and enforce the law, the Treasury Department states:

The administration would retain the notice requirement in connection with the compliance inspection as it would not adversely impact on law enforcement

So I think the bill addresses the concerns of the distinguished Senator from Maryland. Furthermore, the Secretary has full access to records for tracing purposes. In addition, the licensee is required by the bill to submit any records necessary for law enforcement to the Secretary of the Treasury. This bill will not hinder in any way enforcement of the law or the ability of the Treasury Department to trace weapons used in crime.

Mr. President, since the majority and the minority leader are down at the White House-so that all of our colleagues will understand-I will move that the vote on the amendment be set-aside so that we can go to the next amendment with no vote occurring until 6:15. Maybe someone else would like to speak before I make the motion.

Mr. MATHIAS. I think we may have some further discussion on this.

Mr. HATCH. I will withhold that motion until the end of the day.

Mr. MATHIAS. The Senator from Utah has raised a valid argument that there may be harrassment if there were unannounced inspections.

But I think it is worthy to note the opinion of Justice White, who, speaking for the majority, said that in the gun control context, ĺ─¨if inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential.ĺ─¨

I think that is the crux of this whole question. That is what is at issue in this colloquy. ĺ─¨If inspection is to be effective and serves as a credible deterrent, then unannounced, even frequent, inspections are essential.ĺ─¨ That is Justice White speaking. That is the law enforcement point of view.

Under the bill, there is no possibility of frequent inspections. This amendment does not touch the question of frequency. If inspections can only be conducted with prior notice, then I suspect that they will have very little deterrent purpose and will have no value

It is interesting to note that the court later stated in its opinion that,

ĺ─˙It is also plain that inspections for compliance with the Gun Control Act pose only limited threats to the dealer's justifiable expectations of privacy. When a dealer c├─hooses to engage in this pervasively regulated business and to accept a Federal license, he does so with the knowledge that his business records, firearms and ammunition will be subject to effective inspection. Each licensee is annually furnished with a

 

[Begin p. 18208]

 

revised compilation of ordinances that define his obligations and define the inspector's authority. The dealer is not left to wonder about the purposes of the inspector or the limits of the task.ĺ─¨

It seems to me that that language of the Supreme Court is very important in the consideration of this amendment.

I would ask the distinguished Senator from Utah if he really believes that if there was an announcement of the inspection of Mr. Biswell's premises that the sawed-off weapons would have been found there, and that the law with respect to the purchase of such weapons could have been effectively enforced. It is that question that I think should move the Senate to adopt this amendment by a very large majority 

Mr. HATCH. In that particular case, they did discover by a surprise check. They have a right to do that.

Let me read from the third paragraph of the letter from the Department of the Treasury that we put into the RECORD earlier today, dated June 24, 1984, the paragraph entitled, ĺ─¨Requirement for Notice before inspection of importer, manufacturer, dealer and collector.ĺ─¨ That paragraph states:

ĺ─˙Requirement for Notice before inspection of importer, manufacturer, dealer and collector. S. 49 proposes that importers, manufacturers, dealers and collectors be provided notice by ATF before an annual compliance inspection is made. This compliance, or courtesy visit, is made routinely to assure that the licensee is complying with Federal recordkeeping requirements on the acquisition and transfer of firearms. This differs from a visit in the course of a criminal investigation where there is reasonable cause to believe laws have been broken by the licensee. In those cases, visits are made under search warrant or inspection warrant and without notice. Therefore, the Administration would retain the notice requirement in connection with the compliance inspection, as it would not adversely impact on law enforcement. The Administration supports the language in S. 49.ĺ─¨

I believe the language in S. 49 does take care of the Senator's concern. Certainly, it provides for two alternatives on inspection. If there is any reason to believe that there is a law being broken, then there is nothing that would prevent the appropriate authorities from obtaining the necessary warrant and investigating the premises

Mr. MATHIAS. Would the Senator consider a similar requirement for prior notice in the case of alcoholic beverage licensees?

Mr. HATCH. I think we are dealing with another question there.

Mr. MATHIAS. We are dealing with the question of law enforcement.

Mr. HATCH. I would tell the distinguished Senator that there are already three nonnotice inspections provided for in this bill and I believe that is sufficient.

Mr. MATHIAS. I can assure the Senator it is not.

Mr. KENNEDY. Will the Senator yield?

Mr. MATHIAS. Yes.

Mr. KENNEDY. Will the Senator yield me 5 minutes?

Mr. MATHIAS. I do

Mr. KENNEDY. Mr. President, I join in commending the Senator from Maryland for offering this amendment. He has given a very full and complete explanation of it.

What we are saying in this amendment, Mr. President, is that if we can permit unannounced inspections for animal welfare, for example, we should be more concerned in having similar inspections for some firearm dealers who are trafficking in illegal weapons, perhaps even for sale to the underworld, or for sale to those involved in drugs.

We permit this kind of inspection, as the Senator from Maryland has pointed out, in a number of different areas of public policy.

Why, Mr. President? It is because we think there is some worthwhile, useful, public purpose that can be served from such inspections. Certainly, it seems to me that in areas which involve life and death, in the trading and use of weapons, this is a reasonable, sensible and responsible position to take.

In our earlier discussion, we found out that 83 percent of the children in our society who commit suicide each year are using small handguns. The figures in terms of suicides are going right through the ceiling. None of us are saying if you put some kind of restriction, some kind of inspection, you are going to resolve that problem. But what we are saying is when you begin to break down the walls of any kind of control or any kind of legitimate inspections, effectively what we are saying is that the availability of these weapons, the use of these weapons, is going to become more significant and more pronounced.

I think the amendment of the Senator from Maryland provides a very important service. We have seen those who have indicated support for this legislation say we are really basically tinkering with the current law just to eliminate the red tape, that we really want to preserve the various benefits of firearms legislation, to insure the protection, safety, and security of the American people. Yet we see time in and time out in this bill where we take steps that emasculate any kind of legitimate effort to control the proliferation of handguns

I had a good opportunity to attend a conference with the Senator from Maryland just the past week in Geneva, where we heard about the proliferation of nuclear weapons, and we heard the President talking about the dangers of nuclear proliferation. No one knows more about that issue than the Senator from Maryland.

But what about the proliferation of weapons here in the cities and in the rural areas of this country that bring death and destruction just as surely as the explosion of nuclear weapons, Mr. President, in terms of the individual who is dead?

We have, without the acceptance of this particular amendment, just again turned our backs on the families of this country who are hurt by handgun crime, and the proliferation of handguns in our society.

They are the ones who are going to be affected and impacted by the continuing cutting away of any kind of sensible, responsible controls.

We are concerned sufficiently about liquor control in our society, so we permit unannounced inspections. We are concerned about the quality of mines, so we permit inspection. These are areas on which I agree.

We are sufficiently concerned about animal welfare, so we permit inspections.

We are concerned about meat and egg production, so we permit inspection.

And in the fashioning and the shaping of drugs in our society, we permit inspection. There has been a solid record made by the health committees over periods of years why these inspections are so important in terms of safety of prescription drugs in our society.

But talk about handguns, Saturday night specials, snubbies, bullets, and school is out. School is out. The NRA wins again.

The PRESIDING OFFICER. The Senator's 5 minutes has expired.

Mr. HATCH. Mr. President, I do not quite know how to interpret the comments of my two esteemed colleagues. There is inspection under this bill. Let me list five inspections that the bill provides for and, hopefully, put this to rest.

There is the courtesy visit with a notice provision attached. That is No. 1.

No. 2, they can inspect any time they have reasonable cause and a warrant, without notice. If you look at the Biswell case, implied in that case is that they had reasonable cause to inspect, and they did.

No. 3, any inspection during a reasonable inquiry during the course of a criminal investigation may be had. There is just no question about that under the bill as it is written.

No. 4, a licensee may be required to submit all records necessary for law enforcement to the Secretary of the Treasury-at any time the Secretary wants to have these records submitted.

No. 5, law enforcement officials could come on the premises and inspect for tracing purposes any time they want to.

 

[Begin p. 18209]

 

I fail to see where the concerns of our esteemed colleagues are not accommodated by the bill.

They seem to say that, just because the law enforcement officials do not have an absolute right during a courtesy visit, they cannot enforce the law.

Mr. KENNEDY. Will the Senator yield for a moment?

Mr. HATCH. I am delighted to yield.

Mr. KENNEDY. Could the Senator indicate where in the course of our hearings on this legislation, we heard what abuse took place, what pattern of abuses are taking place that there has to be this kind of change?

Mr. HATCH. I did cite the one instance in my opening remarks, which was publicized in the committee hearings, where several BATF agents conducted a thorough search of a dealer over a period of several days only to discover a minor recordkeeping violation.

Mr. KENNEDY. Is this the only example where, as I understand it, in response to my question, the Senator said there was an instance in the course of the hearings, where the BATF went in and found recordkeeping violations?

Mr. HATCH. As I understand it, Mr. President, we have had all kinds of complaints of harassment on the part of BATF officials, if you will, toward licensees. That is what we are trying to touch here, get some reasonableness as far as inspections are concerned. There is no way that an adequate law inspection cannot be accomplished under this bill. Let me give another illustration.

Mr. KENNEDY. Mr. President, I do not want to interfere with the Senator's presentation, but I daresay I hope that in the Senator's presentation he will give some additional examples. I followed some of those hearings and I just do not believe that case has been made that a pattern of abuse has occurred. Maybe I missed something during the course of the consideration of the matter, but I just do not believe that case has been made about the types of abuses which the Senator has outlined

Mr. HATCH. Mr. President, let me give one other illustration that came up during the hearings. I understand there were other accusations and complaints being made. But I remember a case where there was confiscation without charges. Bob Wampler, a VA executive, was concerned. They raided his home, confiscated his 75-gun collection, 25 of which were antiques, gold engraved, et cetera. No criminal charges were ever brought.

For 21/2 years he kept pushing for their return and BATF at one point threatened to prosecute if he did not let them keep the guns. Nearly 3 years later, they returned them, all without a single charge being filed.

I call the distinguished Senator's attention to page 39 of the committee report. It makes the point that during its hearings, the committee received considerable evidence of the misuse of existing overly broad powers to confiscate and forfeit firearms. That is what we are trying to avoid, among other things.

Frankly, Mr. President, I think this particular amendment does not add a thing to the bill. The bill provides adequate law enforcement. It gives five ways of obtaining enforcement. I think that is adequate. I shall be happy to yield some time to the distinguished Senator from Idaho.

Mr. MCCLURE. Mr. President, I thank the Senator for yielding. I also oppose this amendment.

Basically, the situation is this: The McClure-Volkmer bill allows four different types of BATF inspections. It may conduct inspections ĺ─¨for a reasonable inquiry during the course of a criminal investigation.ĺ─¨ It may conduct regular annual inspections. It may conduct inspections or inquiries for determining the disposition of one or more particular firearms in the course of a bona fide criminal investigation. And, finally, it may require the submission of ĺ─¨all record information required to be keptĺ─¨ by Federal gun laws, ĺ─¨on a form specified by the Secretary of the Treasury.ĺ─¨ Pursuant to these inspections, the Secretary may seize any weapon, and may require forfeiture if he can demonstrate that that weapon was intended to be used in the commission of any of a series of relatively minor recordkeeping offenses.

Now, the Senator from Maryland complains that one of the four permissable inspections-one of the four-requires that BATF notify the person being inspected before the inspection is conducted. That one inspection which would require reasonable notice is the routine annual inspection which is conducted on legitimate gun dealers with absolutely no showing of wrongdoing.

In support of his amendment, the Senator raises two arguments: first, that warrantless surprise inspections are constitutional, and second, that warrantless surprise inspections are conducted in a total of five other cases of federal law-only five.

Mr. MATHIAS. If the Senator wants more, we can give them to him, Mr. President.

Mr. MCCLURE. With respect to the question of whether the pending amendment is constitutional, let me say that it probably is. But this is not to say that it represents good policy. The question of whether a form 4473 is properly filled in is a considerably different question from whether a coal mine is about to collapse, or a drug or a milk product is adulterated. In the latter cases, a mistake by the miner or manufacturer could result in the loss of hundreds-perhaps thousands-of lives. Does anyone really believe that the recordkeeping inspections conducted by BATF involves issues of the same magnitude?

Second, I doubt that it is possible to produce a single example of an industry which is subject to the range of inspections and the magnitude of intrusion that is applied to the firearms industry.

For example, are there four different types of inspections which the Federal Government imposes on the mine industry? Or the liquor industry? Or the drug industry? I don't believe it.

Furthermore, I can assure the Senator that the seizure and forfeiture provisions applicable to guns are applied to no other industry in the country. There are only three cases in title 18 in which property can be forfeited based only on the intent to commit a crime. They are: First, the possession of counterfeit plates; second, the possession of illegal drugs; and third, the lawfully and constitutionally protected possession of guns.

So, if the Senator from Maryland would care to offer an amendment replacing the restriction of the Gun Control Act with regulations applicable to any other industry, let me say that I would be inclined to support such an amendment. Lets loosen gun controls to the level of regulation imposed on, say, drugs or mines or milk products

But let me say that I strongly oppose efforts to pick and choose between the most onerous aspects of each Federal regulatory scheme, and apply only the strictest aspects of each Federal statute to the firearms industry. And that is what the Senator is attempting to do.

Mr. President, I would also respond to the Senator from Massachusetts who raised the question why the need for this provision. I can tell you why this provision is needed. It is because we have witnessed in the past several years the attempts by BATF to harass legitimate gun owners and collectors by constant surprise inspections, not once but twice, not twice but three or four times. This harassment has not just involved efforts to come in and look at records to see that they are in shape, but efforts conducted in a manner which disrupts business constantly. In New Hampshire, BATF went into a dealer's shop with surprise inspections on five successive days. They ultimately charged him for being 5 pounds over on black powder. We have a history of abuse of the inspection provision under the existing statute. That is why many of the provisions in the McClure-Volkmer bill are there: because we are trying to correct a specific documented abuse in-

 

[Begin p. 18210]

 

volving the over-intensive application of surprise inspections which are not legitimately required to protect the public interest, if that interest is simply to make certain that all of the records are being kept in the appropriate manner.

Let me reiterate what I said just a moment ago. If you have probable cause to believe that the crime has been committed, you can get a warrant and search. If you want to trace a firearm and look through the records to determine where and to whom that firearm was sold, you can do that without notice, even without this amendment. The only provision the Senator from Maryland seeks to attack in this instance is the simple requirement that if you are going to come into a legitimate dealer's office, into his place of business and spend hours going through his records, you should give him notice of the fact you are coming, so you do not disrupt his business, as has been done in the past. I hope that the amendment will not be adopted. At the appropriate time, when all time has been yielded back, I intend to make a motion to table the amendment.

Mr. MATHIAS. Mr. President, how much time do I have remaining

The PRESIDING OFFICER. The Senator from Maryland has 10 minutes.

Mr. MATHIAS. Mr. President, I yield myself such time as I may require.

The Senator from Utah has said that there are five kinds of inspections provided under the act and that should be adequate. I think we need to look at those very briefly.

The first he lists is the courtesy visit, which I do not believe is intended under any circumstances to be an inspection. It is what it appears to be. It is an advisory, educational experience for the enforcement officer and for the licensee. The next three of the so-called inspections that he mentions are, First, that which would follow the issuance of a warrant by an appropriate court; second, that which might take place in the course of a criminal investigation; and third, that which might result from tracing a firearm, presumably after the commission of a crime. All of these inspections require a threshold showing of some independent event that has occurred somewhere, sometime, someplace. The threshold event may or may not involve the licensee. It may or may not have some relation to the business or to the inspection. But a threshold has to be crossed before any one of those investigations can take place. That is hardly the kind of spontaneous, independent investigation that law enforcement requires.

The fifth inspection that he mentioned is the access by the Secretary of Treasury to the records, and as to that I would merely refer to the experience under the Biswell case. If the Treasury agent who visited Mr. Biswell had stopped his research after he had looked at the records, there would have been no Biswell case. It was only after he said, ĺ─¨Now, having looked at the records, I want to go into your storeroomĺ─¨ that he found the illegal sawed-off weapons.

That one experience, although others could probably be cited, is adequate to indicate that the mere inspection of the records is not sufficient for law enforcement. That is why so many law enforcement officers around the country are supporting this amendment.

Now, my good friend from Idaho has said that this is a question merely of looking for some form, some insignificant, minor form that may be improperly filled in. He says that that should not require the right to make an unannounced inspection, that that is not in the same category as a mine shaft that is inadequately vented or inadequately structured. Nor, he says, is it in the same category as a dairy product that may be contaminated or meat that may be unwholesome.

But I would suggest to the Senate that we are talking about the question of human welfare.

We are talking about questions of human life, of human health, of danger to human beings, whether it is in a mine shaft or whether it is from eating contaminated food or whether it is from being attacked with an illegal weapon. That is really what we are after. We are looking at one common thread through all of this kind of regulation, which is the thread of concern for human safety, human welfare, human security. That is why law enforcement officers from one coast to another are interested in this amendment.

Now, the question is raised, why not make an announcement that you are coming, why not tell them you are coming. Well, I think if the average alcoholic beverage licensee got a phone call that said, ĺ─¨Sweep up, clean up, heave out, get ready, we will be around-let's see, it's now about 10 minutes of 6. We are coming around, we will be there around 9 o'clock, so get ready for usĺ─¨-it would be the subject of a great deal of laughter and ridicule. If there were not laughter and ridicule there would be a charge of collusion. It would be charged that somebody in the licensing inspector's office colluded with the licensee to tell them they were coming around.

I think the same is true in any kind of business. We are not picking out one kind of business for this necessary tool of law enforcement. In those areas of commerce that are deemed to be necessary to regulate pervasively, you have to have the ability from time to time to make unannounced inspections. I think that the question has to be asked, without any knowledge as to what Mr. Biswell would have done-because, as I said earlier, that would have been speculative and hypothetical-the question has to be asked, Does anybody believe that there ever would have been a Biswell case if Mr. Biswell had had prior notice?

Then the question has to be asked, What difference does it make? Of course, the difference is significant. In Mr. Biswell's inventory, in his store, two sawed-off weapons were found, two weapons that were in violation of his license, two weapons that presumably might have been used to threaten human life and welfare.

So it does make a difference. It makes a serious difference it terms of public safety, and for that reason I hope the Senate will adopt this amendment.

Mr. MCCLURE. Mr. President, will the Senator from Utah yield

Mr. HATCH. I am happy to yield to the distinguished Senator from Idaho.

Mr. MCCLURE. Mr. President, I take this time only to respond this much to the Senator from Maryland.

First of all, there have been voluminous records compiled of the wrongs that were done by BATF in the harassment of lawful dealers in the conduct of lawful businesses in which they found no wrongdoing.

There was, and I think is, a reason to protect lawful businessmen in the conduct of their businesses from the oppressive actions of government. But if that is not of sufficient concern, I think we also should look to the differences between two types of inspections, because the Senator from Maryland very carefully delineates the conditions which inspectors hope to find in inspections of eating establishments or of licensed beverage establishments-the conditions of compliance or noncompliance with provisions of a statute or ordinance that regulates those premises. But, if the Senator's amendment is adopted, legitimate gun dealers will not by similarly protected. There is nothing to prevent simple inspections of records from turning into surprise fishing expeditions, not just inspections to determine whether the records are being kept correctly.

As a matter of fact, the annual inspection is being used, and has been used, not to discover the criminal misbehavior of people who have illegally purchased guns or illegally sold guns, but to find an unwitting or careless mistake in the recordkeeping, which is the very essence of what we are trying to eliminate.

If the inspection of the records is to discover the commission of a crime by someone else who is in possession of that gun, or somebody who illegally purchased one, that can be done just as certainly with notice before in-

 

[Begin p. 18211]

 

spection as without it. The only reason for the inspection without notice is the attempt to find a recordkeeping error-not the commission of crime with a gun, but a recordkeeping error. That is precisely the problem we had under the 1968 Gun Control Act, and that is precisely why the amendment of the Senator from Maryland would take us back a long step instead of forward 

Mr. MATHIAS. Mr. President, will the Senator yield for a question

Mr. MCCLURE. I am happy to yield.

Mr. MATHIAS. The Senator refers to a recordkeeping error. Does he consider that Mr. Biswell made a recordkeeping error in having sawed-off weapons in his storeroom?

Mr. MCCLURE. I suggest to the Senator from Maryland that the possession of a sawed-off shotgun is a violation of current criminal law and has nothing to do with recordkeeping whatsoever-good, bad, or indifferent.

If the Senator is suggesting that we have warrantless inspection of all premises in order to discover whether somebody has an illegal sawed-off shotgun, I suggest that we start in his home, and we will do it twice a day for the next 6 months and see whether he feels that any constitutional right has been impinged.

Mr. MATHIAS. The Senator from Maryland is not suggesting that he would have unannounced inspections of all kinds of premises. I am suggesting that in a number of regulated businesses, such as licensed premises where alcoholic beverages are sold and firearms are sold, there shall be a limited number of inspections, as this bill provides.

Mr. MCCLURE. The inspections we refer to here are not inspections of the premises. They are inspections of the records.

Mr. MATHIAS. How would the Senator expect the Treasury agent to know whether the records were accurate?

Mr. MCCLURE. By inspecting the record

Mr. MATHIAS. By inspecting the records, and then comparing them with the inventory.

Mr. MCCLURE. Which they are entitled to do under the McClure-Volkmer bill.

Mr. MATHIAS. Only with notice.

Mr. MCCLURE. With notice, certainly. The inspection of the records of that business, but not the inspection of the premises to determine whether or not an unrelated crime has been committed.

Mr. MATHIAS. Now we are making progress.

Mr. MCCLURE. I have not yet detected it.

Mr. MATHIAS. I revert to my question. Does the Senator think that if Mr. Biswell had notice that his storeroom was to be inspected, there ever would have been a Biswell case?

Mr. MCCLURE. It was not question of his records being wrongly kept that caused him to be in violation. It was because he was in violation of an existing firearms statute that bans the possession of a sawed-off shotgun.

The Senator is suggesting warrantless, unannounced inspections of premises to uncover the presence of the violation of a crime. That is totally different from the question of whether or not the records have kept correctly and whether or not there should be notice upon the inspection of the records.

We have talked endlessly about the civil liberties of people against warrantless inspection and have even suppressed evidence that was taken with warrantless inspections of premises where there was discovery of the commission of a crime unrelated to the reason for the inspection

I suggest to the Senator that if, in the case of an inspection of a milk factory, under the guise of inspecting the sanitary conditions, inspectors had discovered, without a warrant, that the owner of that milk plant had a sawed-off shotgun, there would have been suppression of that evidence.

I suggest to the Senator again that the Senator simply does not understand the rationale behind this section.

Mr. MATHIAS. The Senator clearly would not suggest that an inspection of a dairy premises which began with the records and ended up with the identification of salmonella in the product would not result in some enforcement action under the law. I think that is the appropriate parallel.

Unfortunately, the Senator has not yet answered my question as to whether or not there would have been a Biswell case had Mr. Biswell had prior notice.

Mr. HATCH. Mr. President, if all debate is concluded on this matter, I am prepared to yield back the remainder of my time.

Mr. MATHIAS. Mr. President, I ask for the yeas and nays on the amendment.

The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.

The yeas and nays were ordered.

Mr. MCCLURE. Mr. President, I wonder if the Senator from Maryland might be willing to temporarily set aside his amendment before proceeding to a motion and a vote on his amendment.

Mr. MATHIAS. Mr. President, I will be happy to comply with the request of the Senator from Idaho.

Mr. MCCLURE. My understanding is that the majority leader is at a meeting with the President at the White House and desires to delay votes until sometime shortly after 6, when he will return to the floor.

Mr. HATCH. Both the majority leader and the minority leader.

Mr. President, I ask unanimous consent that the vote on the amendment of the distinguished Senator from Maryland be postponed until conclusion of the debate on the next amendment and that in the meantime we proceed to consider the next amendment; and I further ask unanimous consent that the vote on this amendment and the subsequent amendment occur no sooner than 6:15 p.m.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. HATCH. Mr. President, I believe the distinguished Senator from Hawaii is here and prepared to start on his amendment.

I yield the floor.

AMENDMENT NO. 511

(Purpose: To apply a waiting period to the sale of a handgun except sales between licensed importers, manufacturers, dealers, and collectors)

Mr. INOUYE. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

The PRESIDING OFFICER. The amendment will be stated.

The bill clerk read as follows:

The Senator from Hawaii <Mr. INOUYE>, for himself, Mr. METZENBAUM, Mr. MATSUNAGA, Mr. KENNEDY, Mr. MOY-

 

[Begin p. 18212]

 

NIHAN, and Mr. KERRY, proposes an amendment numbered 511.

Mr. INOUYE. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with

The PRESIDING OFFICER. Without objection, it is so ordered.

The amendment is as follows:

On page 10, lines 21 and 22, strike out ĺ─¨a new subsection to read as follows:ĺ─¨ and insert in lieu thereof ĺ─¨the following new subsections:ĺ─¨.

On page 11, line 3, strike out the closing quotation marks and final period.

On page 11, between lines 3 and 4, insert the following:

ĺ─¨(o) It shall be unlawful for any person to deliver any handgun to any other person after negotiating for the sale of such handgun to such person, before the expiration of 14 days after the date of the first payment for such handgun is received from the buyer of same, except that the delay period provided for herein shall not apply-

ĺ─¨(1) When the chief law enforcement officer of the purchaser's place of residence certifies, by notarized statement to the seller, that the immediate delivery of the handgun to the buyer is, to his knowledge, necessary to protect against a threat of immediate danger to the physical safety of the buyer;

ĺ─¨(2) when the purchaser provides proof that he has purchased another handgun within the previous twelve months and that in such purchase he complied with the 14 day waiting period; or

ĺ─¨(3) to transactions between licensed importers, licensed manufacturers, licensed dealers, and licensed collectors.ĺ─¨.

14-DAY WAITING PERIOD AMENDMENT TO THE GUN CONTROL ACT

Mr. INOUYE. Mr. President, the amendment that I send to the desk on behalf of myself and Senators METZENBAUM, MATSUNAGA, KENNEDY, MOYNIHAN, and KERRY provides for a 14-day waiting period between the time a sale of a handgun is negotiated and its delivery.

Under existing law, it is unlawful for a licensed dealer to knowingly transfer a firearm to convicted felons, fugitives from justice, drug abusers or addicts, mental defectives or persons committed to mental institutions, illegal immigrants, persons dishonorably discharged from the armed services, and former citizens who have renounced their U.S. citizenship. In what is characterized as a ĺ─¨law enforcementĺ─¨ amendment contained in this bill, this prohibition is extended to all persons. However, neither the bill nor existing law provides for any meaningful mechanism to determine that a purchaser of a handgun is not among these categories.

Today, in most States such persons legally prohibited from possessing a firearm can immediately obtain a handgun merely by signing a form which provides that he is not proscribed from obtaining such a weapon and showing some form of identification to verify his address and birthdate. Unless the seller knows or has reason to believe of a violation, he makes the sale based solely on the buyer's statement.

Entrusting felons, addicts, and other such persons to comply with this kind of ĺ─¨honor systemĺ─¨ makes a mockery of our attempts to keep weapons from their hands.

Accordingly, I am proposing a mandatory 14-day waiting period to allow Federal, State, and local authorities at least an opportunity to verify a buyer's representations.

Support for a waiting period is not limited to the so-called gun control community. Law enforcement officials urge the passage of the amendment, recognizing the ineffectual nature of the existing enforcement mechanism. The International Association of Chiefs of Police, the National Association of Attorneys General, the Police Executive Research Forum, National Troopers Coalition, National Organization of Black Law Enforcement Executives, and the Fraternal Order of Police all endorse this waiting period. And, 119 present and former chiefs of police and police commissioners have signed Handgun Control Inc.'s safe streets petition which includes the waiting period provision.

In 1981, Attorney General William French Smith's task force on violent crime concluded that because there existed ĺ─¨no effective method to verify a purchaser's eligibilityĺ─¨ and ĺ─¨since drug addicts, mental defectives and the like are not the best risk for an honor system, a waiting period to verify the purchaser's eligibility is sensible and necessary.

I believe that it is also worth noting that, although it has since altered its position, the National Rifle Association in 1976 expressly recognized that, ĺ─¨A waiting period could help in reducing crimes of passion and in preventing people with criminal records or dangerous mental illness from acquiring guns.ĺ─¨

Additionally, the Committee on the Judiciary in its version of the bill reported during the 97th Congress included an amendment almost identical to the one proposed here. It was sponsored at that time by Senator KENNEDY and our current majority leader.

A waiting period is, of course, not a new idea. Fifteen States and many local governments impose waiting or registration periods ranging from 3 to 15 days. The adoption of this amendment would therefore only follow the foresight of jurisdictions from Alabama to Wisconsin. And while it is true that all States and localities are free to impose waiting periods, a Federal minimum requirement would ensure national uniformity and reinforce the Government's commitment to the enforcement of the law.

The widespread acceptance of this concept is due, I believe, to the fact that it is not a gun control measure as much as it is a law enforcement measure.

Virtually everyone who has studied the subject agrees that effective enforcement of existing laws and the punishment of those who violate them are as, or more, important than weapons control. Yet, Federal law provides neither the opportunity nor means for the enforcement of its simplest and most straightforward prohibition-that weapons shall not be sold to persons who we can all agree should not have possession of them. Shopkeepers, salesmen, pawnbrokers, and private citizens are simply left to apply their judgment and understanding of the law based on what is probably a one-time face-to-face transaction.

Even those who may want or require more time, or assistance to conduct an investigation, are not provided a basis for doing go. And if a conscientious seller was to voluntarily defer a sale in order to learn more about the buyer, the handgun purchaser would only have to go elsewhere.

A mandatory waiting period will not keep handguns from the hands of all criminals and other prohibited persons. It will, however, provide law enforcement officials and others who are serious about implementing existing law with an additional tool. I can see no reason why this tool cannot, or should not, be provided.

It will not impose significant additional limitations upon and individual's alleged right to bear arms. The waiting period would apply only to handguns. The sales of rifles, shotguns, and ammunition would remain unaffected. And while the waiting period would indeed delay the delivery of a handgun in most circumstances, such a delay constitutes only the most minimal intrusion upon any alleged right. Such minimal intrusions are constitutionally and practically tolerated with regard to the exercise of virtually all of our recognized rights.

And when the issue is providing someone with an efficient and instantaneous power to kill, I cannot but believe that any burden imposed is far outweighted by our Nation's interest in keeping weapons from the hands of the irresponsible.

The waiting period would not prevent someone from immediately obtaining a weapon if he or she requires it to protect against an immediate danger to physical safety. The amendment provides for a waiver of the waiting period upon certification of such a need by the chief law enforcement officer of the person's place of residence.

The amendment would not delay transactions between licensed importers, licensed manufacturers, licensed dealers, and licensed collectors. Existing Federal verification of their eligibility to purchase weapons makes the waiting period unnecessary. Commercial transactions between licensees would therefore be unaffected.

The amendment would not place unwanted additional burdens upon local, State, or Federal law enforcement. No particular action on their part is required. The amendment merely provides them with an opportunity-an opportunity that they are requesting-to conduct checks or otherwise work to prevent prohibited persons from purchasing weapons.

Mr. President, I am not suggesting that a waiting period is a panacea for our Nation's crime or handgun problem. However, I do believe that if we are serious about enforcing those few restrictions which do exist on the transfer of handguns, something leaving more than an ĺ─¨honor systemĺ─¨ is required. The law enforcement community has identified a waiting period as an appropriate tool of enforcement. And if its application results in the commission of one less crime, or in keeping weapons from the hands of one less felon or drug addict, I believe the minimum inconvenience it would impose would be more than justified.

Available evidence indicates that handguns will be kept from far more than a handful of prohibited persons. For example, police in Palm Beach County, FL, credit a 7- to 14-day waiting period enacted last year as being partly responsible for a 200-percent decrease in the homicide rate in the first quarter of 1985.

Police in Columbus, GA, report that the city's 3-day waiting period and background check catch two felons a week trying to buy handguns. And in the first 6 months after the enactment of a 10-day waiting period in Broward

 

[Begin p. 18213]

 

County, FL, 37 applicants for handguns were found to have past felony arrests or outstanding warrants.

On the other side of the spectrum, police in South Carolina, which does not have a waiting period, estimate that 300 to 350 guns per year are sold to people who were found to have past felony records or are otherwise prohibited from owning a handgun 

Finally, Mr. President, the proposed waiting period would provide a ĺ─¨cooling offĺ─¨ period which may deter the impulsive criminal or suicidal use of otherwise readily purchasable handguns.

No one here would sanction the sale of a handgun to a person who was enraged or despondent and because of his condition intended to put the handgun to immediate use. Yet Federal law contains nothing to prevent or prohibit such a sale. A mandatory waiting period would at least have the effect of denying such a person immediate access to a handgun. It would not, and could not, prevent all crimes of passion or acts of self destruction. It would, however, ensure that our laws operate as a barrier rather than accomplice.

The Broward County, FL, waiting period was enacted after two separate murder-suicides were committed with guns purchased on the day of the murder. I hope we do not wait to suffer more such tragedies before we act.

Mr. President, over 2 million handguns are manufactured annually in the United States. According to a 1981 Gallup poll, 91 percent of all Americans favored a waiting period to assist in keeping these weapons from felons, drug addicts, and the like. The law enforcement community has urged us to adopt such a period, as has the Attorney General's Task Force on Violent Crime. Neither any notion of rights nor practicality mitigate against the imposition of this reasonable restraint. I therefore urge my colleagues to vote in favor of the adoption of this amendment.

(Mr. TRIBLE assumed the chair.)

Mr. HATCH. Mr. President, the 1968 Gun Control Act contains a waiting period. The waiting period was limited by the 90th Congress to mail order sales. The 1968 act, Public Law 90-618, requires a 7-day waiting period for any sale where the buyer ĺ─¨does not appear in person at the licensee's business premisesĺ─¨-18 U.S.C. 922(c). During this waiting period, the licensee notifies local law enforcement officers about the sale to ensure that prohibited persons, such as convicted felons, do not acquire a firearm. Thus, in the instance of mail order sales, the 90th Congress provided a waiting period to prevent such sales to prohibited persons.

A national waiting period for all circumstances as proposed by this amendment, however, was not considered necessary by the Congress that enacted the 1968 Gun Control Act. The reason is quite simple. When sales are conducted face-to-face and over the counter at the licensee's place of business, there are already adequate safeguards against unwarranted sales. The dealer must make a record of sale, which makes tracing convenient, and the purchaser must establish his eligibility to purchase a firearm. Any knowing misrepresentations by the purchaser are punishable as felonies. In the minds of the 90th Congress and indeed in practice, there was no need for additional delays for law-abiding citizens wishing to purchase a firearm. Such restrictions would suffer from the same infirmity of other provisions of the 1968 act, namely it would not hamper criminals from obtaining firearms yet would place burdens on lawful firearm transactions. After all what criminal is going to go through recordkeeping and waiting period requirements to get a firearm? A waiting period only burdens sportsmen and other lawful firearm purchasers.

This conclusion is shared by the majority of the States. Over 30 States have considered and rejected waiting periods. Perhaps these States were persuaded by the findings of Prof. Philip Cook and James Blose, who conducted a study of ĺ─¨ State Programs for Screening Handgun Buyersĺ─¨ and concluded that-

ĺ─˙There has been no convincing empirical demonstration that a police check on handgun buyers reduced violent crime rates. . . . It is known that such screening systems are widely circumvented.ĺ─¨

Indeed other studies have shown that over 80 percent of all guns used in crime were stolen or acquired through other illegal channels. This confirms our commonsense understanding that a criminal is not likely to risk purchasing from a firearms dealer, where he will be required to fill out extensive forms, establish his identity and eligibility to acquire a firearm, and place his crime weapon on easily traceable records

Waiting periods are also unlikely to deter many ĺ─¨crimes of passion.ĺ─¨ With a very few exceptions, these crimes are committed between the times of 10 p.m. and 3 a.m. by someone under the influence of alcohol or drugs. The sale of firearms is precluded by the time frame and prohibited by the latter circumstance. Besides, a study by James D. Wright of the University of Massachusetts found that more than 80 percent of all current handgun purchasers already own another handgun. In the unlikely event that the vast bulk of gun owners would consider committing a crime, a ĺ─¨cooling offĺ─¨ period would be irrelevant. Finally, the Police Foundation's study entitled ĺ─¨Firearm Abuseĺ─¨ documented that only 2 percent of handguns traced back from a crime were less than a month old. A month is several times the period of this proposed waiting period and twice as long as the longest State waiting period. This type of restriction on firearm acquisition is simply not likely to reduce crime involving firearms. Those jurisdictions which have adopted a waiting period have generally experienced a rise in crime.

That is a fact that not too many people have taken into consideration, although it may or may not be relevant.

These many reasons are perhaps behind the position of the Treasury Department, which is charged with enforcing Federal firearms laws. The Department states that

ĺ─˙The Administration does not advocate a national waiting period * * * the Administration has stated earlier that waiting periods for purchases of handguns should be a matter for the States and local governments to decide.ĺ─¨

Because such restrictions have little or no effect on violent crime but encumber lawful firearm transactions, the Gun Control Act has not included a generally applicable waiting period. In my opinion, no evidence has been presented in hearings or on the Senate floor today sufficient to persuade the Senate to depart from current policy.

Mr. President, I am happy to yield such time as he may need to the distinguished Senator from Idaho.

Mr. MCCLURE. Mr. President, I thank the Senator for yielding.

Under this amendment, purchasers of handguns would be required to wait 14 days between purchase and delivery, which supposedly would allow local police authorities to check criminal and mental records in the hope of screening out prohibited buyers. The main argument is the States will have an opportunity-and I stress opportunity-to do a background check if they so desire. It does not provide for such a check. It merely is alleged to give the States the opportunity. The argument is completely specious.

If a State, in fact, desires to have a background check, it can do so now simply by enacting such a waiting period and check as a matter of State law. The only areas which do not have such State waiting periods are obviously States which do not want the opportunity. Thus, the amendment serves absolutely no purpose.

I think the real rationale is something more, simply to serve as an inconvenience in those of our States-the majority, incidentally-which do not want such waiting periods. There is no basis to pretend that all the States in fact have the same problems or outlooks.

In some areas, crime may be less or the need for prompt defense greater. Some of our States may find arguments unconvincing which others

 

[Begin p. 18214]

 

accept. Some may have more respect for individual rights than others. But these are not judgments we ought to overrule, least of all on the pretense that we are giving them a so-called opportunity. The main rationale for this amendment is the supposed opportunity for a background check. This is ridiculous since the amendment only provides such an opportunity to States, which do not want the opportunity, and to their citizens who have voted it down.

However, the proposal is fatally flawed by the fact that, according to both street wisdom and scientific studies, criminals do not buy their firearms through legal commercial channels, particularly if there is a screening system which would result in their being denied a purchase of the gun because of their criminal record.

If pressed, the advocates of such laws acknowledge that active criminals will not go through the elaborate screening procedures we might enact, but they say the provision will still have a positive effect by serving as a cooling-off period, thereby preventing normally law-abiding persons from impulsively buying a gun in the heat of anger and killing a loved one or themselves.

Again, Mr. President, the advocates substitute anecdotes for evidence. While we have all heard of individuals who rushed down to the local gunshop and immediately used it to commit murder or suicide, there are many thousands of transactions where this does not happen. In the hope of preventing that one tragedy, those other thousands of buyers are subjected to governmental procedures that have never achieved a statistically noticeable decrease in either the crime or suicide rates. Waiting period laws are often described as moderate compromises. Such a law is neither moderate nor a compromise. It includes major elements of both gun registration and licensing, the types of laws which Congress has repeatedly refused to enact with good cause. Waiting period laws are presently in effect in States and cities totaling about two-thirds of the Nation's population, including most of the area with the highest rates of criminal violence. They were one of the types of laws examined for effectiveness in the $287,000 Wright-Rossi study of weapons and violent crime funded in 1978 by the Carter administration's Justice Department. That study found no evidence that any gun control law had reduced the crime or violence rates. The lead researcher, Prof. James Wright, of the University of Massachusetts at Amherst, has stated that he began the study with a predisposition toward gun control but ĺ─¨We became less and less convinced that handgun bans and restrictive handgun laws can do anything to prevent crime.ĺ─¨ I urge Members to obtain a copy of that study.

Such screening laws do not work because they are easily evaded, either by theft or black market purchases. Persons with criminal records, knowing that they would be screened out by a background check, simply bypass such systems. The futility of the scheme is evident in the frequent proposal for the screening system to include a mental records check, though both privacy laws and medical ethics prohibit such records from being made available to the police. The presumed cooling-off benefit assumes that handgun buyers are first-time purchasers. On the contrary, one study has estimated that at least 80 percent of handguns are purchased by persons who own other firearms. Since the overwhelming majority of gun buyers own numerous guns, what possible purpose is served by making them wait 2 weeks before obtaining another one? While the benefits to a waiting period law are imaginary, the social and financial costs to the taxpayers are huge. A waiting period is even worse than a firearms licensing law, since a firearms owner must go through the same procedure with the same multiple trips to the dealer's store, while the police agency must spend the same amount of wasted time and taxpayers' money investigating the background of the same person they may have approved repeatedly in the past. A Federal waiting period law in effect mandates local gun registration since information concerning the gun and its purchaser usually would be required to be given to local police. Despite such flagrant violation of privacy, once police agencies possess that kind of record, it is almost impossible to make them relinquish it.

Mr. President, I think it is useful to make a couple of comparisons about experiences with respect to such waiting periods. I make reference to several States in which in 1965 had one waiting period. They extended the waiting period between 1965 and 1983. And I might indicate that in 1965 the U.S. homicide rate per 100,000 persons was 5.1, and by 1983 it had increased to 8.3 per 100,000 persons, or an increase of 62.7 percent. But let us look at what happened in States that enacted or expanded waiting periods.

In that same timeframe, California expanded its waiting period from 2 days to 15 days, and the homicide rate went up from 4.7 to 10.5, or a 123.4-percent increase-almost twice the national average. In Connecticut, the homicide rate was 1.6 when they had a waiting period of 1 day, and when they expanded that to 14 days the homicide rate went to 4.1 percent, a change of 156.2 percent over that same time period. In the State of Washington, they had 2.2 homicides per 100,000 at the time they had a waiting period of 2 days. They expanded the waiting period to 3 days and the homicide rate went up to 4.9 percent, an increase of 122.7 percent. In Wisconsin, they had no such statute in 1965, and a homicide rate of 1.5 per 100,000 persons. They enacted a waiting period of 2 days and the homicide rate went up to 2.8 percent, an increase of 86.6 percent. In Illinois, they had no provision in 1965. They enacted a 1-day waiting period for long guns and 3 days for handguns, and the crime rate expanded by 86.5 percent.

Mr. President, waiting periods are demonstrated by the statistics-demonstrated by the facts-to be absolute failures in accomplishing what the proponents suggest that they do.

Mr. President, I hope the amendment is defeated.

Mr. INOUYE. Mr. President, just a few words of observation. It has been said by the opponents of this amendment that criminals do not risk purchasing guns from legal dealers. Another rhetorical question was asked: ĺ─¨What criminal will go through the trouble of filling out forms?ĺ─¨ Finally, ĺ─¨The benefits of the waiting period are strictly imaginary.ĺ─¨ Yet, every national organization on law enforcement, chiefs of police, the Association of Police Officers, the Association of Attorneys General-every one of them-has come out endorsing this because it is a law enforcement measure, not a gun control measure. I would like to suggest that these men and women, members of these organizations, know a bit more about crime than any one of us here.

As I tried to indicate in my opening remarks, these police officers have pointed out, for example, that because of the 14-day waiting period in Palm Beach County, FL, there has been a 200-percent decrease in crimes in the first quarter of 1985; in Columbus, GA, the 3-day waiting period and background check is catching felons every week trying to buy handguns, and in the most famous case of recent years, the case of Mr. Hinckley, I am certain if there was a waiting period they would have found in the investigation that he was undergoing psychiatric treatment. Therefore he would have been prohibited from buying a handgun

I just hope, Mr. President, that we will come to our senses and adopt this reasonable law enforcement amendment.

Mr. President, I yield time now to the distinguished Senator from Massachusetts.

Mr. HATCH. Will the Senator withhold?

Mr. INOUYE. Yes.

Mr. KENNEDY addressed the Chair

The PRESIDING OFFICER. The Senator from Massachusetts.

 

[Begin p. 18215]

 

Mr. KENNEDY. Mr. President, just a few comments on this particular amendment. First of all, I want to commend the Senator from Hawaii for bringing this to our attention at this hour. I welcome the opportunity to cosponsor it. It is an issue which is plain on its face. It is an issue which has been debated in the Senate Judiciary Committee on a previous occasion.

As a matter of fact, back in 1982, the Senate Judiciary Committee which gave full time and attention to this issue, accepted this very amendment by a vote of 8 to 5. So the Judiciary Committee that considered all of the arguments that we are talking about only briefly here this afternoon, considered the law enforcement implications of it, accepted it 8 to 5 in a bipartisan effort.

Still, we find that those who are supporting this bill still refuse to accept it. As a matter of fact, the majority leader of the U.S. Senate at that particular time found sufficient merit in the argument that is being made this afternoon by the Senator from Hawaii, to support that amendment I will welcome his support for this amendment this afternoon, as he supported it in 1982. I am sure the Senator from Hawaii will yield time to hear him express his support for the amendment he offered and supported in 1982.

Mr. President, I would like to just take a moment of the Senate's time to go back to 1968, when we were first considering gun control legislation. We made it as a matter of national policy then, and it has been reiterated by President Reagan's own Attorney General's Task Force on Violent Crime, that as a matter of national policy we want to keep handguns out of the hands of those who use narcotics. That was a matter of national policy. It should not be decided one way in Massachusetts, another way in Louisiana, another way in North Dakota. As a matter of national policy, we should keep handguns out of the hands of narcotics addicts, keep handguns out of the hands of fugitives, those who have committed felonies, and keep guns out of the hands of the mentally ill

It is spelled out in the 1968 law.

We made it a national policy; we did not want those people to have legal access to handguns. This is not just an issue of inconvenience to a hunter. This is to say that as national policy it is in our national interest that those who are addicted to narcotics, those who have been in mental institutions, those who are felons, should not be able to purchase handguns in our society.

It is self-evident as to the reasons why

Under the bill offered by the Senator from Idaho, it comes in without this amendment. A fellow comes up and says, ĺ─¨I want to buy the handgun.ĺ─¨ The dealer says, ĺ─¨Fill out this form.ĺ─¨ He fills it out, he buys the handgun and walks out the door. He can be a felon, an addict, and he can just have walked out of a mental institution-but no questions are asked. If you ever come to the point of trying to enforce this legislation, which has been virtually made impossible by many of its provisions, that dealer has an absolute defense by saying, ĺ─¨look, he filled this out. What am I supposed to do with it?ĺ─¨ He has an absolute defense.

If you do not support the amendment of the Senator from Hawaii, what you are saying is, ĺ─¨OK, America, the U.S. Senate is saying it is OK to sell handguns to those addicts, the mentally ill, felons, go ahead, we will not let our police chiefs do any check at all.ĺ─¨ It is tough enough to do it with 14 days. They are already hard pressed in 100 ways.

But we will deny them any opportunity to run a local police check. You might as well strike that section that was written into the 1968 act.

Yet, we say in so many speeches and hearings about how concerned we are about the problems of organized crime, about those who are addicted to drugs, and about the mentally ill, we see so many Members are here bleeding crocodile tears about the problems of violence in our society. Then we refuse to do anything about trying to control-which this amendment would do.

President Reagan's own commission recommended this very approach to the problem. They made a series of recommendations, but a key one was that there should be a waiting period for a mandatory record check to ensure that the purchaser of a handgun is not in one of the prescribed categories in existing law.

Mr. President, I would hope that the very reasonable position that has been stated by the Senator from Hawaii, that has been recognized in some 27 State jurisdictions, would be accepted by us today.

They say, ĺ─¨Well, if local town U.S.A. does not want to do it, why should we require them to do it?ĺ─¨

The reason we require them to do it is because it is in the national interest to keep handguns out of the hands of narcotics pushers and felons

We are spending millions and millions of dollars a year in support of crime control measures. Wait until we have all those crime control measures that come pouring out costing the taxpayers money, saying ĺ─¨We are really going to fight crime. We are going to add hundreds of millions of dollars more.ĺ─¨

Yet we have today the leaders of the major American police agencies, who know these issues, supporting this amendment that will not cost the taxpayers a single penny.

But you wait and see the people who will not support this. They will soon have amendments on the next appropriations bill to add money to fight crime.

The police officers know why we should support this amendment, Mr. President. The Senate Judiciary Committee in 1982 knew the reason. The President's Task Force on Crime knows the reason. The Senate Judiciary Committee in 1968, when it went through elaborate hearings and reached this conclusion, knew the reason.

I will say finally, Mr. President, that I have two very wonderful sons. And I was rather amazed 2 years ago when my son Patrick used to go down quahogging right in front of my house on Cape Cod. He was out quahogging. He had turned 13 years of age. The game warden came up to him and asked how old he was. He said he had turned 13. The game warden said, ĺ─¨Don't you know, in order to quahog off Cape Cod, you have to go over and get a license.ĺ─¨

So Patrick came up and told me about it. We went over, filled out the papers and eventually got him a license so he could quahog.

Not the NRA. Not if you are a drug addict. Not if you are a criminal. You do not have to wait a day or have any check on your purchase of a handgun.

Mr. President, if this amendment is not accepted by the Senate of the United States, it is a sad day for local law enforcement all across this country. Make no mistake about it. Everybody knows it. We spend more time making studies and appointing commissions. But we are just going to make it all the easier for criminals to purchase handguns because we just do not want to risk a little inconvenience to some people.

Mr. President, that is a shameful position.

I know where the votes are. I know where they have been for far too long in this body, but I still find it disturbing.

Mr. President, I ask that three recent editorials relating to this issue be printed at this point in the RECORD.

There being no objection, the editorials were ordered to be printed in the RECORD, as follows:

<From the New York Times, July 9, 1985>

MAKING SENSE OF GUN CONTROL

The reasonable foundation of America's gun policy is that localities may control who owns a gun by controlling who may buy one. Ideally, by stressing local interests it should be possible to reconcile the needs of rural hunters and collectors and the desperate need of cities to limit handguns.

Such a respectful compromise is possible in the Senate this week, but not if the gun lobby succeeds in pushing through a bill sponsored by Senator McClure of Idaho.

 

[Begin p. 18216]

 

In the name of reducing red tape for sportsmen and hobbyists, Senator McClure proposes to water down the 1968 prohibition on gun sales to out-of-state residents. The gun lobbyists contend that this ĺ─¨reformĺ─¨ would eliminate a great inconvenience for, say a New York hunter who damages his rifle while shooting elk in Utah; he could buy a replacement without having to return to New York.

But the McClure bill makes no distinction between stranded hunters and criminals intent on buying handguns who are frustrated by gun laws in their home states. It would permit any gun sale to nonresidents provided they appear in person and are qualified purchasers under the laws of both the seller's and buyer's jurisdiction.

The nation's police and supporters of gun control are properly alarmed. The two-jurisdiction proviso would be virtually unenforceable. Who could possibly check to see that 200,000 gun dealers are obeying the laws of remote localities

As police groups point out, it's hard enough to enforce the ban on selling guns to felons, addicts and mental patients. Besides retaining the interstate prohibition, they are pushing for a 14-day waiting period to permit background checks of purchasers.

Senator Kennedy of Massachusetts is expected to propose an intelligent compromise to relax the interstate sales ban only for rifles and shotguns. It was endorsed last year by the Senate Judiciary Committee but left out of Senator McClure's bill in the current session.

The Kennedy approach is noteworthy not only because it solves the traveling hunter's problem but because it suggests a lasting alliance between legitimate gun enthusiasts and urban centers seeking gun control. Urban legislators should have no practical reason to oppose freer access to guns for sportsmen and hobbyists. By the same token, rural lawmakers should have no practical reason to block stricter limits on handguns in cities.

Could an issue so soaked in emotion achieve a reasonable resolution? Yes, if a majority of the Senate decides to stand with Mr. Kennedy instead of Mr. McClure.

ĺ─ţĺ─ţ

<From the Washington Post, July 9, 1985>

S. 49: HELP YOUR LOCAL POLICE

If ever a U.S. senator wanted to support a strong anti-crime measure and respond directly to pleas from police cheifs across the country, today's the day. S. 49 is going to the floor. Unless amended, this bill would gut the current minimal controls on the acquisition of handguns. But with amendments aimed at stopping quick sales, the legislation could be converted into an important anti-crime measure.

No, this isn't another round in the old debate over ĺ─¨gun control.ĺ─¨ This is a matter of public safety. What the police are seeking in these amendments is in the interest of sportsmen, collectors and anybody else who understands the difference between legitimate purchases of firearms-for recreation, law enforcement and private security-and quickie sales of ĺ─¨ snubbiesĺ─¨ and other concealable handguns to criminals and ĺ─¨impulseĺ─¨ purchasers.

The 14,000-member International Associaton of Chiefs of Police, the National Organization of Black Law Enforcement Executives, the Fraternal Order of Police, the National Troopers Coalition and the Police Executive Research Forum are calling for two amendments:

To retain a current prohibition on interstate sales of handguns. Allowing these sales, as the unamended proposal would do, would circumvent existing state and local regulation of handgun traffic and ĺ─¨impair the ability of state and local law enforcement agencies to prevent handguns from being acquired, carried or possessed illegally.ĺ─¨

To add a 14-day waiting period for purchases of handguns, in order to facilitate basic records checks. A waiting period was recommended also by the 1981 Attorney General's Task Force on Violent Crime, since ĺ─¨drug addicts, felons, mental defectives and the like are not the best risk for the 'honor system'. . . .ĺ─¨

Several improvements already have been accepted by original sponsors of the bill. One would remove a sloppy proposal that would have barred prosecution of a dealer for violations claimed to have resulted from ĺ─¨simple carelessness.ĺ─¨ A second change takes out language that would have preempted state and local license-to-carry laws. Another would close a terrible loophole in existing law that allows the importation of parts to make ĺ─¨Saturday Night Specialsĺ─¨-the handgun that criminals, not sportsmen, love to tote.

What more does any senator need to hear before joining to turn a bad bill into an important move against violent crime?

ĺ─ţ 

<From USA Today, July 2, 1985>

CONTROL HANDGUNS TO STOP THE CARNAGE

Every week; on the average, 384 people are killed with handguns in the USA.

How do they die? In arguments that end in murders. In robberies that end in slaughter. In accidents that end in tragedy. In bouts of depression that end in suicide.

The last two weeks have been typical:

In Rehobeth Beach, Del., two 16-year-old boys, best friends who spent all their spare time together, were fooling around. Robert Jordan found a .45-caliber pistol in his brother's suitcase. Robert's friend playfully pointed the gun at Robert-and shot and killed him 

In Youngstown, Ohio, a woman argued with her boyfriend outside a supermarket. She followed him inside, took out a pistol and opened fire-killing a 15-year-old boy who was helping his mother carry home the groceries.

In Los Angeles over the weekend, an ex-parishoner walked into a Baptist church in Chinatown and blasted away at the pulpit with a .45, killing the deacon and an assistant pastor. While 350 worshippers hugged the floor in terror, an off-duty deputy killed the gunman.

There are 60 million pistols in the USA. About 150,000 are stolen every year. In 1983, 9,000 people were murdered by handguns; another 1,000 were killed accidentally.

Congress made an effort to stop this carnage in 1968, when it established a system of federally licensed firearms dealers. Next week, the Senate is scheduled to vote on a new law that would seriously weaken the few feeble federal gun control that do exist.

Instead of gutting the gun laws, Congress should be strengthening them, as several police groups have urged. The USA's handgun murder rate is 100 times higher than England's, where gun laws are strict.

When will we ever learn?

How many teen-agers have to blow away their best friends before we act? How many distraught lovers have to kill innocent shoppers?

How many children have to reach into daddy's secret hiding place, take out that dark, shiny, heavy thing they've seen on TV, and slaughter their mothers, their brothers, or their sisters? When will we ever learn?

Congress must act now: Require federal handgun registration. Require lengthy waiting periods and thorough background checks before anyone can buy a handgun.

Carrying an unregistered handgun must be a felony. Violators should get a year in jail. Massachusetts passed a law like that, and its handgun murder rate dropped 45 percent.

A properly written handgun registration law would not impinge on the legitimate rights of hunters, sportsmen, and collectors to pursue their hobbies.

Will we ever learn?

Let's do what we can now to keep the guns out of the hands of the kids and the criminals and the crazies. If we don't, then we're the crazy ones.

 

Mr. DODD. Mr. President, I commend the Senator from Massachusetts for his comments. I have not risen earlier today to address myself to this particular issue but, since the Senator from Massachusetts referred to the act of 1968, I would be somewhat remiss if I did not rise, since it was my father who wrote the section in 1968 of that legislation which required a waiting period. We in Connecticut have a waiting period. We have had one for years and years. People who wish to purchase a handgun are required to go in and fill out the forms. It is usually a wait of 5 or 6 or 7 days.

I always found in my State, when this issue has arisen, that hundreds of sportsmen and target shooters have had no difficulty whatsoever with a waiting period. None whatsoever. It has worked very, very well in our State.

We have no idea how many crimes we have prevented as a result of its existence. It is hard to prove a negative. But it has certainly been no hardship at all to have the minimum required, to ask people just to go through a very basic and simple check to determine whether or not they are competent, mentally competent or incompetent as a result of convictions or drug addiction, to possess a firearm and the damage that they can cause.

The statistics, of course, as the Senator from Massachusetts has pointed out very adequately and eloquently, show the overwhelming numbers of deaths that occur as a result of crimes of passion, where, in that moment of passion, a person runs out and buys that handgun and the damage occurs. I recall, back in those days of the late 1960's, that this body in those days felt very strongly that we ought to try to do something intelligent in the area of at least reducing the proliferation.

No one ever made an argument that this was going to wipe out crime or stop the determined felon from acquiring a handgun to go out and cause mayhem in our streets or in their own homes. No one of any intelligence ever made that argument in any way whatso-

 

[Begin p. 18217]

 

ever. But to suggest that this is somehow a great burden, a great burdensome requirement, to have a person go through a modest waiting period-I come from a State which is the largest single State in production of firearms in the United States. People in my State whose jobs depend on this legislation, in many ways, huntł«rs and sportsmen who understand the issue very well, have found that in our State of Connecticut, this kind of waiting period works very, very well indeed.

My hope would be that our colleagues today will appreciate the wisdom of the amendment by the Senator from Hawaii and will adopt it.

I thank the Senator for yielding

Mr. HATCH. Mr. President, how much time remains on both sides?

The PRESIDING OFFICER. The Senator from Utah has 15 minutes. The Senator from Hawaii has 21/2 minutes remaining.

Mr. DOLE. Mr. President in the 97th Congress, I had sponsored a waiting period amendment in the Senate Judiciary Committee which was similar to the amendment being offered today by Senator INOUYE. When the issue was reexamined by the committee in the last Congress, however, I withdrew my support for such an amendment. Many States and cities already have waiting period for handgun sales as well as a required background check for handgun purchases. State and local authorities are in the best position to know whether a waiting period would be effective in deterring crime and, thus, I believe the decision should be left to them. To the extend that most ĺ─¨crimes of passionĺ─¨ are committed late at night when, in general, guns cannot be legally purchased, it is doubtful whether a waiting period would have any significant impact on reducing such crimes. In any event, I do not believe a sufficient record has been established to justify the imposition of a mandatory waiting period on a nationwide scale.

Mr. President, I explained, in more detail, my reservations about a national waiting period in my additional views in last year's committee report on S. 914. I ask unanimous consent that these views be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

WAITING PERIOD

In the 97th Congress, during consideration of S. 1030, the Judiciary Committee adopted a compromise amendment offered by this Senator which would have required persons attempting to purchase handguns over the counter from federally licensed firearms dealers to wait 14 days after date of initial payment before the handgun can be delivered to the buyer.

The purpose of this amendment was to provide for a ĺ─¨cooling off periodĺ─¨ which would act as a deterrent to individuals who, in a fit of passion, might acquire a handgun for the purpose of committing a violent crime. An opportunity would also be afforded for dealer's records to be available during the cooling off period for those enforcement authorities who are authorized by federal or state law, or local published ordinance to inspect the dealer's records to insure compliance.

The amendment was intended to complement the waiting period required in Section 922(c) of Title 18 of the United States Code. Since the enactment of the Gun Control Act of 1968, a 7-day waiting period has been required before a dealer could ship a firearm in intrastate commerce to a purchaser. However, unlike section 922(c) this amendment would not require notification of the purchaser's chief law enforcement officer.

In mail order transactions the dealer's records are not readily available or accessible to the purchaser's enforcement officials. However, in over-the-counter sales, records are available for inspection by the local chief or his representative. It would be unwise and impractical for local police departments, as a matter of Federal law, to amass files of over-the-counter transactions. When valid requirements exist for tracing of guns that have been criminally misused, the records of the retail sale are available for inspection at the dealer's place of business. To require more would mean the establishment of expensive and redundant record keeping systems by local enforcement officials.

The original amendment offered by Senator Kennedy, in addition to imposing a 21 day waiting period, would have required a name search of the criminal history records of the Federal Bureau of Investigation to determine whether the purchaser would be prohibited from purchasing, transporting, receiving or possessing firearms. This approach had substantial difficulties.

The Committee rejected the Kennedy approach and adopted my substitute.

This year, Senator Kennedy reoffered the substitute that the Committee had previously approved. However, because of continuing criticism of interested sporting groups as well as other provisions of the Hatch substitute which improve capabilities of law enforcement officials to trace the ownership chain of guns that have been criminally misused, the Committee rejected the ĺ─¨cooling offĺ─¨ amendment.

While the ĺ─¨cooling offĺ─¨ substitute is preferable to the original waiting period amendment, substantial questions remain as to the advisability of adapting an approach which would impose additional paper work burdens on dealers and purchasers as a matter of federal law. Many states now have waiting period and background check provisions in their gun control laws. It may well be that this is sufficient.

Mr. HATCH. Mr. President, let me also mention again seven points relative to waiting periods:

First, criminals do not buy their guns through legal channels. A criminal is simply not likely to walk into a gun store, sign a 4473 form, and subject himself to scrutiny about his eligibility to purchase a firearm, which he may not do if he is a convicted felon. Waiting periods do not deter criminals from getting guns.

Second, the Wright-Rossi study (University of Massachusetts), found that more than 80 percent of firearms used in crime were obtained through illegal channels, namely, stolen or purchased on the black market. They concluded that waiting periods and other gun control measures had not succeeded in reducing violent crime, according to available evidence.

Third, 34 States have considered and rejected a waiting period.

Fourth, waiting periods have not made New York, Washington, DC, or other locales any more safe.

Fifth, crimes of passion, according to voluminous police studies, occur between 10 p.m. and 2 a.m. and usually when the attacker is under the influence of alcohol. Gun purchases would be precluded by these circumstances. Moreover, the statistics show these crimes are committed with the nearest available object: a knife, a club, or a gun. An impassioned killer does not take the time to shop for a gun before carrying out his impassioned act.

Sixth, 80 percent of handgun buyers already own another gun. This undercuts the chance that a waiting period could serve as a cooling-off time. It also shows that the major effect of this provision will be to encumber the firearms rights of law-abiding citizens. One hundred twenty to one hundred forty million guns are owned in the United States, over half of all the households possess one 

Seventh, This amendment was rejected by the Judiciary Committee last Congress by a vote of 11 to 3.

Several States have been mentioned by Senator INOUYE. I would like to take a few moments to respond

First, the Senator mentioned South Carolina

The Palmetto State has the honor of being cited by Senator INOUYE for having lax gun laws and by Senator KENNEDY for having stringent gun laws. In point of fact, the State's gun laws are tough on the criminal, with mandatory penalties for using guns to commit violent crimes, and that law has led to a 33 percent drop in the homicide rate between 1975 and 1983-comparable to the drops in other Southeastern States adopting such penalties.

Aside from that, police are notified after the transfer of handguns by dealers-so if there are problems, the police ought to have hard data to prove it-and only one handgun can be bought each month. But there is no waiting period and there is no background check.

The Senator also mentioned Palm Beach County, FL. It has been alleged that the number of murders fell 200 percent in Palm Beach County, which would suggest that a waiting period is effective. In fact, West Palm Beach had a waiting period for years and parts of Palm Beach still do not. The homicide rate in early 1984, before the county adopted

 

[Begin p. 18218]

 

a waiting period, was very high, after being fairly low in the previous year; the homicide rate in the quarters since the waiting period have passed have varied, some were just like early 1984 and very high, and some were just like 1983 and lower. The waiting period simply did not affect these crime rates. In Broward County, the adoption of a waiting period was almost immediately followed by a rise in handgun deaths, particularly the suicides which some have alleged would be reduced by a waiting period. Under the waiting period, there were far fewer handgun transfers by dealers, indicating that the law was interfering with the ability of citizens to buy guns, and it was admitted that many of those whose applications were denied were rejected for arbitrary and improper reasons 

After two inexplicably high homicide years, Massachusetts passed a law which altered the punishment for a decades-old gun law. Two-thirds of Massachusetts residents said it impacted most on law-abiding rather than criminals. The violent crime rate rose from 19th highest in the Nation in 1974 to 11th in 1983. Boston went from the 5th most violent city over 500,000 in 1974 to most violent in 1981, and lowered themselves to only third in 1983 by redefining crimes. Absent Boston, the State homicide trends mirrored New England. A Justice Department study concluded that the law did not work, that any belief that it was based on faith, not fact, and that the law seemed to adversely affect the law-abiding, and slow down the criminal justice process for the criminal, allowing many more criminals to go wholly unpunished.

Imitative States-Connecticut and New York-saw brief increases in their homicide and violent crime rates followed by a return to regional trends.

Mr. President, I yield such time as he may need to the distinguished Senator from Kentucky.

Mr. MCCONNELL. I thank the Senator from Utah.

Mr. President, I rise today in support of the bill introduced by the distinguished Senator from Idaho, and in opposition to the waiting period amendment offered by the distinguished Senator from Hawaii. I am convinced that the bill itself will significantly enhance the legitimate liberties, guaranteed by the Constitution, of firearms owners all across America. At the same time, the bill, I am convinced, will not endanger a single American who would not already have been endangered, and, on the contrary, will see to it fewer Americans will become the tragic victims of lawless criminals.

Consequently, I am compelled to oppose the amendment seeking to attach a 14-day waiting period to the bill. While well-intentioned, the amendment will not serve its stated purpose. This amendment will not prevent criminals from acquiring firearms. It will not prevent the classic crimes of passion that proponents of the amendment claim it will. Rather, the waiting period amendment would add additional regulations to the already over-regulated lives of law-abiding citizens. To the extent that it would have any effect at all, it would deprive law-abiding citizens of their rights, of their liberties, and of their ability to protect themselves.

Mr. President, we should examine closely the premises upon which this amendment is based. When we do, I'm confident that we will find that the theoretical underpinnings of the amendment are ready to collapse.

For example, the notion that imposition of a waiting period will result in fewer crimes of passion, fewer homicides in general, and a lower incidence of violent crime is based upon the assumption that criminal acquires his weapon through legitimate gun dealers. Yet nothing is further from the truth, for most criminals find their guns on the street, in illicit transactions between themselves and other criminals. Clearly, adopting a federally mandated waiting period and imposing new and onerous regulations on licensed gun dealers and law-abiding purchasers of guns will have absolutely no impact on such transactions.

Nor will waiting or cooling-off periods reduce the incidence of the classic crimes of passion. All the evidence is that these crimes usually occur late at night or early in the morning, at times when legitimate gun dealers are not open for business. The evidence also suggests that these crimes are the product of alcohol or drug-induced rage, and are perpetrated with the aid of the closest weapon at hand. In many cases, the weapon is a firearm, but it might just as easily be a knife of a hammer. What is clear, however, is that the weapon is not a gun purchased on the spot in the heat of the moment

Indeed, studies have demonstrated that these crimes of passion follow from a clearly identifiable buildup period. One study in the Kansas City area indicates that in some 90 percent of the cases, police had been called to intervene in prior domestic disturbances before the crime was committed. Obviously, a waiting period would be totally ineffective in so far as these situations involving patterns of domestic quarrels over an extended period of time are concerned. Thus, it is a simple fact that a waiting period would have little impact on the major problem it would be designed to combat, and numerous studies have demonstrated that no relationship can be found between the imposition of a waiting period and the ultimate level of violent crime. Conversely, a clear and undeniable relationship exists between the imposition of a waiting period and the creation on the one hand of an unarmed, defenseless citizenry, and on the other of a needless mass of burdensome regulations.

Mr. President, let me also mention a particularly unconvincing argument that has been advanced by the proponents of this amendment. Some have suggested that a waiting period of the type offered here would lead to a reduction in the incidence of suicide, especially among our young people. I know that this suggestion has been made recently, in fact, by representatives of the American Association of Suicidology in testimony before the Subcommittee on Juvenile Justice, of which I am a member. Clearly, the problem of youth suicide is a tragedy, one that I am deeply concerned about, but to suggest that a waiting period on the purchase of handguns will result in a meaningful reduction in the incidence of youth suicide-the tragic response of an adolescent who has fallen victim to the pressures of seemingly insurmountable problems over a great deal of time-is to highlight the bankruptcy of the arguments made in support of the amendment.

Waiting periods do not stop suicide. They do not stop crimes of passion, robbery or burglary. Most of all, they do not stop violent crimes committed by violent criminals bent on violating the law and the sanctity of our homes. One noted researcher at Duke University has found that ĺ─¨there has been no convincing empirical evidence that a police check on handgun buyers reduces violent crime . . . most felons and other ineligibles who obtain guns do so not because the State's screening system fails to discover their criminal record, but rather because these people find ways of circumventing the screening system entirely.ĺ─¨

No, Mr. President, this amendment to impose a 14-day waiting period on the purchase of firearms will not prevent violent criminals from committing violent crimes. All the evidence tells us that it will not. But it will, without a doubt, prevent many innocent, law-abiding citizens of this great Nation from protecting themselves from those very criminals who will ignore, avoid, or otherwise circumvent the law. Some of these citizens may then become the defenseless victims of those very thugs the amendment is intended to reach, who will be armed not only with the firearms they illegally obtained but also with the knowledge that their victims will be unarmed and unprotected 

I recognize that the proponents of this and other amendments to the bill come with the best of intentions, but I would urge those inclined to support such amendments to consider carefully these and other facts presented here today. This is not the first time I

 

[Begin p. 18219]

 

have considered the merits of legislation directed toward firearms owners. Indeed, while chief executive of Jefferson County, KY, the largest county in the State with a population of some 750,000 people, I rejected an ordinance that would have imposed a waiting period on the purchase of handguns. I did so because I was convinced, based on the facts, that such a waiting period would not have achieved the admirable goals of its proponents, and would have added needless, useless and potentially dangerous limitations on the rights of law-abiding citizens to acquire and own firearms.

I urge my colleagues to oppose this waiting period amendment for the same reasons that I opposed such a waiting period in Jefferson County, KY, and to oppose any other amendment to S. 49, the Firearms Owners Protection Act, that would have the same effect.

 

Mr. President, I wish to make a few observations with regard to the whole waiting period issue. I suspect I am one of the few people in the Senate who used to appoint a police chief. I suspect I am one of the few people in the Senate who has had an opportunity to vote on a local ordinance providing for a waiting period. I want to relate my own experience with that waiting period issue from a local government perspective.

 

In my community, I was the county executive, like the mayor of a county, and among my responsibilities was the responsibility to appoint a police chief, which I did. He was a very experienced fellow who had served in the detective division for a number of years and had also been in the patrol division, had come up through the ranks of the police department, and was considered the best police officer we had. After a shooting in one of the local bank branches, there was a great deal of interest in having a waiting period ordinance. One was introduced. At that juncture, I had no preconceived notions about the appropriateness of waiting period legislation and whether or not it would have an impact on crime. I went into it with a completely open mind and listened to the arguments on both sides. I have listened to the passionate arguments of the senior Senator from Massachusetts and others on both sides today.

My police chief came in and said the net effect of a waiting period ordinance would be to increase the number of firearms transfers among individuals and to reduce the number of firearms transfers from gun shops to individuals, thereby making it more difficult, not less difficult, to trace firearms that are used in the course of a commission of a crime.

Frankly, that is not what I expected to hear from my own police chief, because I had heard over the years the arguments of all the various law enforcement officer organizations supporting waiting period legislation. I have heard all of those cited again today. I know they support them. I just want to make the point that not everyone in the law enforcement community is unified in the notion that waiting period legislation will necessarily be an effective tool in the combating of crimes committed with handguns. I just wanted to make that personal observation of my own experience with that waiting period legislation.

I yield back to the distinguished Senator from Utah.

Mr. HATCH. Mr. President, I am delighted to yield such time as he may need to the distinguished Senator from Idaho.

Mr. MCCLURE. Mr. President, I again thank the distinguished Senator from Utah for yielding. I take this time just to give a couple of answers to comments that have been made by people on the other side of the issue, one or two that spring from genuine emotion, but are typical of the misdirection which that emotion gives us

It has been suggested that Mr. Hinckley's condition would have been discovered by a background check. Frankly, Mr. President, I am appalled at that argument. To the best of my recollection, and perhaps somebody can refresh my memory, Mr. Hinckley had been under psychiatric treatment and there was a private physician-patient relationship that guarded the confidentiality of that condition. A 14-day waiting period in Dallas would have pointed out nothing with respect to his condition.

As as matter of fact, Mr. Hinckley also acquired two handguns in California, a State with a 15-day waiting period applying to all handgun transfers, whether through a dealer or not. The emotion may be correct. The facts are that it would have done nothing to uncover his condition or to avoid the sale or purchase of a handgun in his case and would have done nothing to prevent the crime which we all abhor.

The distinguished Senator from Hawaii pointed to the statistic of Palm Beach County's homicide rate drop. I might point out that a 200-percent drop is mathematically impossible because it goes beyond zero and would imply the resurrection of the dead, which I do not believe was his intention, although that is the mathematical result. The real reason there was a drop in the homicide rate in Palm Beach County was that, at the same time, they adopted a provision which is in the McClure-Volkmer bill. That is mandatory penalties. Mandatory penalties do cause change in conduct, do produce reductions in homicide rates, unlike the waiting period, which has been demonstrated to be ineffectual.

It has been asserted that research suggests that criminals will be kept from getting guns by a waiting period, but even gun control advocates who have researched the issue such as Philip Cook, of Duke University, and Matthew DeZee, of Florida State University, have said that criminals do not use legitimate channels, and would not be likely to be kept from getting a handgun by a waiting period. Waiting periods have not lowered crime or homicide rates.

The distinguished Senator from Massachusetts said that in 1982, the Judiciary Committee, by a vote of 8 to 5, accepted such a provision in the bill pending before the Judiciary Committee. But in 1984, the Judiciary Committee favorably voted unanimously to report a bill that had no waiting period in it.

The vote on the waiting period amendment was 11 to 3. The reporting of the bill was unanimous.

Mr. President, I oppose this amendment in the strongest terms.

There are a variety of amendments which have been offered to this bill and although most of them are, in the opinion of this Senator, ill-conceived, few are so anathema to America's gun owners that they would kill the bill.

The pending amendment, however, would kill this legislation. Make no mistake about it: The adoption of this amendment will cause S. 49 to be pulled down, leaving the vote on this amendment as the pivotal gun vote of the 99th Congress.

The reason why this amendment would kill the bill is clear: It would constitute a major step toward establishing a system of handgun registration which could be accessed nationally through systems which have been developed or may be developed by the Department of Justice and other law enforcement entities.

The central compromise of the Gun Control Act of 1968-the sine qua non for the entry of the Federal Government into any form of firearms regulation was this: Records concerning gun ownership would be maintained by dealers, not by the Federal Government and not by State and local governments. These records would be maintained by dealers-and by dealers only, except in extraordinary circumstances, such as when a dealer goes out of business.

This amendment would destroy that central compromise. And, as such, it would constitute a slap in the face for those gun owners who foolishly signed off on the 1968 act, with the expectation that the antigun movement would not immediately move to destroy the compromises which allowed the act to be passed

The pending amendment would allow centralized police files containing the names of handgun owners. There is nothing in the amendment which provides for the destruction of

 

[Begin p. 18220]

 

the lists of names after the crosschecks are made, and, in fact, I believe it would be foolish to assume that the names forwarded for crosschecks will not be maintained and computerized.

Once the names of all handgun owners are computerized, the Senators need to understand that there is no prohibition in the pending amendment which would prevent their being accessed by other law enforcement authorities.

In sum, Senators contemplating a vote against tabling this amendment should understand that their vote will be interpreted as a vote against S. 49; a vote in favor of firearms registration; and, an antigun vote.

Mr. President, we can all devise mechanisms which arguably would lead to more effective law enforcement. Mandatory minimum sentences for felony convictions would go further in that direction than any other measure we could enact, in view of the large percentage of violent crimes which are committed by persons who have previously been convicted of such crimes or who are out on bail. Such a measure would have no constitutional problems at all

But, with respect to guns, Congress decided in 1968 to reject a system of centralized registration. To destroy that pivotal compromise at this time would kill this legislation.

Mr. INOUYE. Mr. President, since the matter of Mr. Hinckley was brought up by the Senator from Hawaii and commented upon by those who oppose the amendment, I would just like to quote from an interview which was held about 2 years ago. This is the mother of Mr. Hinckley:

ĺ─˙I just know that if it had been difficult, John would not have purchased the guns and this would not have happened.ĺ─¨

And John Hinckley, Sr, the father of the man who attempted to take the life of our President, said:

ĺ─˙Yes, if he had to fill out forms and come back in 10 days and go through some sort of procedure that involved a great deal of effort, I don't think he would have got it.ĺ─¨

I thank the Chair.

The PRESIDING OFFICER. Who yields time?

Mr. MCCLURE. Mr. President, will the Senator yield briefly?

Mr. HATCH. I am delighted to yield to the Senator from Idaho.

Mr. MCCLURE. Mr. President, I understand the statement of the distinguished Senator from Hawaii. The fact is that Mr. Hinckley did face a waiting period, did buy two handguns in California subject to a 15-day waiting period. The statement of his mother notwithstanding, this amendment would not have added to the difficulties that he faced in purchasing a handgun, nor would it have resulted in any criminal investigator discovering the fact of his psychiatric examination without a violation of the privacy of medical records between himself and his physician.

It has been estimated by GAO that a background check, even a rudimentary background check, will cost approximately $50. If there are 2 million handguns per year purchased and each one receives just the minimum rudimentary background check, that is $100 million, and for what reason? To accomplish virtually nothing. Again, I hope the amendment is rejected.

Mr. HATCH. Mr. President, I have enjoyed the debate, but I agree with everything the distinguished Senator from Idaho has said. I might mention the administration has stated earlier that waiting periods for purchases of handguns should be a matter for the States and local governments to decide. The administration does not advocate a national waiting period, and neither do I. I believe that the law enforcement agencies, Justice and Treasury, do not either. I am prepared to yield back the remainder of my time if the distinguished Senator from Hawaii is

Mr. HECHT. Mr. President, I rise in opposition to this amendment. Of the various amendments which we can expect to consider during the disposition of this bill, few are so repugnant to America's gunowners that they would kill the bill.

The pending amendment, however, would, in my opinion, kill this legislation. Make no mistake about it: The adoption of this amendment will cause S. 49 to be pulled down, leaving the vote on this amendment as the pivotal gun vote of the 99th Congress.

The reason this amendment would kill the bill is clear: It would constitute a major step toward establishing a system of handgun registration which could be accessed nationally through systems which have been developed or may be developed by the Department of Justice and other law enforcement entities.

The central compromise of the Gun Control Act of 1968 was that records concerning gun ownership would be maintained by dealers, not by the Federal Government and not by State or local governments. By dealers only, except in circumstances such as the closing of a particular dealer's business.

This amendment would destroy that central compromise. It would allow centralized police files containing the names of handgun owners. There is nothing in the amendment which provides for the destruction of the lists of names after the cross-checks are made, and, consequently, I believe it is reasonable to assume that the names forwarded for these cross-checks would be maintained and computerized.

Once the names of all handgun owners are computerized, the Senators need to understand further that there is no prohibition in this amendment which would prevent their being accessed by other law enforcement authorities.

There is simply no viable reason why citizens must register their name to participate in a constitutionally guaranteed freedom. As the Declaration of Independence states, these rights are God given, not government given. That distinction is important, because those who believe certain freedoms are bestowed on us by the Government, may also use the same rationale to restrict them.

This amendment carries the same theme which many other of the amendments to this bill contain: they impute intent to an inanimate object. Because the worst is feared, some would say that guns must be regulated regardless of whether constitutionally guaranteed freedoms are trampled. If the same line of reasoning were followed, regulation might next be considered necessary for a kitchen drawer full of knives.

This amendment has a litany of objectionable, and impractical features

First, because convicted felons are already prohibited from purchasing guns, the law applies only to law abiding citizens who have no felonious criminal record. Further a criminal who wanted to obtain a gun illegally could easily do so, with no waiting period.

Second, inherent in the amendment is the assumption that everyone is a criminal, or has, or will have, criminal intent.

Third, the amendment could increase victimization by delaying self protection for threatened law abiding citizens.

Fourth, it violates the purpose of the Gun Control Act of 1968 which state

ĺ─˙. . . it is not the purpose of this title to place any undue or unnecessary federal restrictions or burdens on law abiding citizens with respect to the acquisition, or use of firearms appropriate to the purpose of hunting, trapshooting, personal protection, or any other lawful activity. . . 

Fifth, it violates the purpose of this bill which is to:

ĺ─˙. . . protect the firearms owners of Constitutional rights, civil liberties, and rights to privacy . . .ĺ─¨

Mr. President, we can all devise mechanisms which arguably would lead to more effective law enforcement. Mandatory minimum sentences for felony convictions would go further in that direction than most other measures we could enact, in view of the large percentage of violent crimes which are committed by persons who have previously been convicted of such crimes or who are free on bail.

Finally with respect to guns, Congress decided in 1968 to reject a system of centralized registration. To

 

[Begin p. 18221]

 

destroy that pivotal compromise at this time would kill this legislation.

Mr. THURMOND. Mr. President, the issue of whether there should be a waiting period before a purchaser is allowed to buy a handgun has been the subject of careful consideration by the Judiciary Committee in recent years. Last year, the committee turned down a similar proposal by a vote of 11 to 3.

While there are very strong feelings on the merits of such a waiting period, I believe the real issue is at what level this policy decision is to be made. It is my belief individual States, not the Federal Government, should decide this issue. It is for that reason that I oppose this amendment because it seeks a Federal solution to a policy issue best left to the States.

Mr. KASTEN. Mr. President, I rise in support of S. 49, a bill to protect the constitutional rights, civil liberties, and rights to privacy of firearm owners.

Our proper goal in considering any legislation affecting the public's access to, and use of, firearms is clear. We must aim at striking a careful balance, between the rights of law-abiding citizens on the one hand, and the pressing need for effective law enforcement on the other. I believe S. 49, as amended, meets this test.

S. 49 makes several useful changes in the scope of Federal regulations affecting firearms. These changes both protect the rights of individual gun owners and aid law enforcement, by making it clear that gun owners who only occasionally sell or repair firearms, or who sell all or part of their collections will not have to go through the cumbersome, time-consuming process of obtaining a Federal license. These changes will allow the Bureau of Alcohol, Tobacco, and Firearms to concentrate its scarce resources on those businesses who handle most of the gun trade.

Another important change in current law made by S. 49 would permit individuals to mail legally owned firearms to a licensed manufacturer, importer, or dealer for repair, customization, or other lawful purpose. This change would not allow mail order sales of firearms by licensees to nonlicensees. Instead, it would remove an unnecessary and awkward impediment to legitimate commerce.

S. 49 also removes another needless barrier to commerce by permitting face-to-face sales by licensees to persons who do not reside in the licensees' State, so long as the sales are legal in the respective States of both the buyer and seller. This eliminates the need for a collector, hunter, or other law-abiding citizen to go through the very complicated procedures required by current law for acquiring a rare or customized firearm from a licensed dealer in another State.

Finally, this bill clarifies existing law to allow the Treasury Department to revoke firearms licenses only in the case of willful violations of the law. This clarification represents a recognition that the paperwork required by the 1968 Gun Control Act is exceedingly complex; even the best-intentioned gun dealers are liable to make inadvertent, technical mistakes. The need for effective and appropriate law enforcement dictates that the Government not spend scare resources prosecuting honest citizens who make mistakes, but the minority who operate in disregard of the law.

Mr. President, I have never believed that the rights of gun owners and the Government's responsibility to enforce the law necessarily need to be in conflict. S. 49, by removing many unnecessary restrictions on the lawful activities of honest citizens, protects individual rights guaranteed in the Constitution. I believe that S. 49 does this without jeopardizing the Government's ability to combat crime-by more carefully targetting the thrust of the 1968 Gun Control Act, S. 49 enhances the Government's capacity to go after criminals. I urge my colleagues to approve this important legislation 

Mr. STEVENS. Mr. President, the Firearms Owners Protection Act is at long last coming before the full Senate for consideration. This is the most important piece of legislation for gun owners in this century. Since the passage of the Gun Control Act of 1968, the erosion of the right to keep and bear arms has been justified on the basis that rigid gun control laws will reduce the incidence of violent crime. However, the law has been ineffective. It has served to punish the law abiding gun owner for the actions of a career criminals, and has been implemented in a way that discourages gun ownership.

S. 49 focuses on areas of regulatory abuse resulting from the Gun Control Act. An entire Federal agency spends a large portion of its effort in prosecuting and harassing gun owners for technical violations of the law. Our tax dollars will be applied more effectively if our law enforcement officials become more involved in detecting and arresting robbers, muggers, rapists, and murderers.

There are a number of amendments which will be offered to S. 49, most of which cloud the issue. For example, the imposition of waiting periods on the sale of firearms do not add any deterrent quality. Career criminals will continue to skirt an established screening process. The paperwork requirements and effort associated with waiting periods will divert personnel away from true crime control efforts.

Even more troubling are the efforts to make a distinction between handguns and long guns such as rifles and shotguns. If we exempt handguns from the changes being sought by S. 49, we would accept the premise that possession alone is a serious cause of violent crime. Criminals are responsible for the violence in this country. Making a distinction between handguns and other firearms serves to restrict the constitutional right of citizens to keep and bear arms without deterring criminal behavior. It sets a dangerous precedent for future exclusion of other firearms classes.

Pervasive regulation is not the answer to the growing incidence of violent crime. The Gun Control Act has been in existence for almost 20 years, but crime has risen steadily. Our law enforcement efforts must be directed at deterring criminal behavior. Strong penalties are required to deter the use of firearms in Federal crimes. There must be an immediate response to acts of violent crime and treason. I have sponsored legislation which calls for death by firing squad when treasonous acts are perpetrated for monetary gain. Senator MCCLURE should be commended for taking a tough stance on the use of firearms to commit crimes. The day career criminals begin to feel the full force of the law for their acts is the day that we can walk the streets in safety.

Mr. MOYNIHAN. Mr. President, I am pleased to support the amendment offered by my friend, Senator INOUYE, to require a 2-week waiting period between the purchase of a handgun and its delivery. Such a waiting period, I am convinced, could save hundreds of lives taken annually by these firearms

Congress passed the 1968 Gun Control Act in response to the assassinations of Martin Luther King, Jr. and Robert F. Kennedy, and wisely prohibited the sale of firearms to certain unreliable people-most notably, convicted felons, fugitives from justice, drug addicts and mental incompetents. However, the law, as now written, rather naively expects unreliable persons to refrain from trying to buy a gun, or assumes a gun dealer will recognize a customer's ineligibility. Certainly this is not an effective way to enforce the law. This amendment would mandate a 14-day waiting

 

[Begin p. 18222]

 

period, so gun dealers could thoroughly check a customer's background to ensure that he or she is legally qualified to own a gun 

A 14-day waiting period also would provide potential gun purchasers a ĺ─¨ cooling offĺ─¨ period. According to the FBI, almost 42 percent of all murders committed with a handgun in 1983 followed directly from an argument. Far too often an individual, in the heat of passion, or suicidal despair, rushes to purchase a gun and uses it on himself or others. Anyone with a legitimate need to buy a gun will not be seriously inconvenienced by a 14-day waiting period. But those legally unqualified to possess a gun, or who seek one in a state of emotional desparation, should be made to wait.

The common sense behind this modification of the 1968 Gun Control Act was not lost on the Attorney General's Task Force on Violent Crime, which in its final report, issued in 1981, recommended that ĺ─¨a waiting period be required for the purchase of a handgun.ĺ─¨ I am proud to be joined in support for this amendment by some of this Nation's largest organizations of law enforcement officers, including the International Association of Chiefs of Police, the National Association of Attorneys General, the Police Executive Research Forum, the National Troopers Coalition, the National Organization of Black Law Enforcement Executives, and the Fraternal Order of Police, as well as the American Bar Association and the U.S. Conference of Mayors.

This amendment is a reasonable and necessary attempt to make the provisions of the 1968 Gun Control Act more viable. The Nation's law enforcement officers are nearly unanimous in their support for this amendment. I strongly urge my colleagues to support it as well.

Mr. MCCLURE. Mr. President, parliamentary inquiry.

The PRESIDING OFFICER. The Senator from Idaho.

Mr. MCCLURE. Mr. President, I understand that all of the time on the Mathias amendment was yielded back. Is that correct?

The PRESIDING OFFICER. That is correct

Mr. MCCLURE. And now all the time on the Inouye amendment has been yielded back. Is that correct

The PRESIDING OFFICER. There remains 2 minutes. The Senator from Hawaii has 1 minute 38 seconds.

Mr. INOUYE. I yield back the remainder of my time

Mr. HATCH. I yield back all my time.

The PRESIDING OFFICER. All time has now been yielded back.

Mr. MCCLURE. Under the previous unanimous-consent agreement, would it be my understanding that we would first move to the consideration of the Mathias amendment and then the vote with respect to the Inouye amendment?

The PRESIDING OFFICER. The Senator is correct

Mr. MCCLURE. Mr. President, I move to table the Mathias amendment and ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.

The yeas and nays were ordered.

Mr. MCCLURE. Mr. President, I ask unanimous consent that it be in order at this time to move to table the Inouye amendment, and I ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.

The yeas and nays were ordered.

Mr. MCCLURE. Mr. President, I move to table the Inouye amendment.

VOTE ON MATHIAS AMENDMENT NO. 510

The PRESIDING OFFICER. The vote will first occur on the motion of the Senator from Idaho to table the amendment of the Senator from Maryland <Mr. MATHIAS>. The yeas and nays have been ordered. The clerk will call the roll

The legislative clerk called the roll.

Mr. SIMPSON. I announce that the Senator from Colorado <Mr. ARMSTRONG> and the Senator from Oregon <Mr. HATFIELD> are necessarily absent.

Mr. CRANSTON I announce that the Senator from New Jersey <Mr. BRADLEY>, the Senator from Louisiana <Mr. LONG>, the Senator from Illinois <Mr. SIMON>, and the Senator from Mississippi <Mr. STENNIS> are necessarily absent.

The PRESIDING OFFICER. Are there any other Senators in the Chamber who desire to vote?

The result was announced-yeas 76, nays 18, as follows:

<Rollcall Vote No. 140 Leg.>

YEAS-76

Abdnor Andrews Baucus Bentsen Biden Bingaman Boren Boschwitz Bumpers Burdick Byrd Chiles Cochran Cohen D'Amato Danforth DeConcini Denton Dixon Dole Domenici Durenberger Eagleton East Exon Ford Garn Goldwater Gore Gorton Gramm Grassley Hart Hatch Hawkins Hecht Heflin Heinz Helms Hollings Humphrey Johnston Kassebaum Kasten Laxalt Leahy Levin Lugar Mattingly McClure McConnell Melcher Mitchell Murkowski Nickles Packwood Pressler Proxmire Pryor Quayle Riegle Rockefeller Roth Rudman Sasser Simpson Specter Stevens Symms Thurmond Trible Wallop Warner Weicker Wilson Zorinsky

NAYS-18

Chafee Cranston Dodd Evans Glenn Harkin Inouye Kennedy Kerry Lautenberg Mathias Matsunaga Metzenbaum Moynihan Nunn Pell Sarbanes Stafford

NOT VOTING-6

Armstrong Bradley Hatfield Long Simon Stennis

So the motion to table amendment No. 510 was agreed to.

Mr. HATCH. Mr. President, I move to reconsider the vote by which the motion was agreed to.

Mr. MCCLURE. I move to lay that motion on the table.

The motion to table was agreed to

VOTE ON INOUYE AMENDMENT NO. 511

The PRESIDING OFFICER. The question is now on agreeing to the motion of the Senator from Idaho <Mr. MCCLURE> to table the amendment of the Senator from Hawaii <Mr. INOUYE>.

The yeas and nays have been ordered and the clerk will call the roll.

The bill clerk called the roll.

Mr. SIMPSON. I announce that the Senator from Colorado <Mr. ARMSTRONG> and the Senator from Oregon <Mr. HATFIELD> are necessarily absent.

Mr. CRANSTON. I announce that the Senator from New Jersey <Mr. BRADLEY>, the Senator from Louisiana <Mr. LONG>, the Senator from Illinois <Mr. SIMON>, and the Senator from Mississippi <Mr. STENNIS> are necessarily absent.

The PRESIDING OFFICER. Are there any other Senators in the Chamber who desire to vote?

The result was announced-yeas 71, nays 23, as follows:

<Rollcall Vote No. 141 Leg.

YEAS-71

Abdnor Andrews Baucus Bentsen Biden Bingaman Boschwitz Bumpers Burdick Byrd Chiles Cochran Cohen D'Amato Danforth DeConcini Denton Dixon Dole Domenici Durenberger Eagleton East Evans Exon Ford Garn Goldwater Gore Gorton Gramm Grassley Hatch Hawkins Hecht Heflin Heinz Helms Hollings Humphrey Johnston Kasten Laxalt Leahy Lugar Mattingly McClure McConnell Mitchell Murkowski Nickles Nunn Packwood Pressler Pryor Quayle Riegle Rockefeller Roth Rudman Sasser Simpson Specter Stafford Stevens Symms Thurmond Trible Wallop Wilson Zorinsky

NAYS-23

Boren Chafee Cranston Dodd Glenn Harkin Hart Inouye Kassebaum Kennedy Kerry Lautenberg Levin Mathias Matsunaga Melcher Metzenbaum Moynihan Pell Proxmire Sarbanes Warner Weicker

NOT VOTING-6

Armstrong Bradley Hatfield Long Simon Stennis

So the motion to lay on the table amendment No. 511 was agreed to.

Mr. HATCH. Mr. President, I move to reconsider the vote by which the motion to table was agreed to

Mr. BYRD. I move to lay that motion on the table

The motion to lay on the table was agreed to.

Mr. BYRD addressed the Chair.

The PRESIDING OFFICER. The minority leader is recognized.

Mr. BYRD. I thank the Chair.

Mr. President, the majority leader is not on the floor at the moment. Perhaps the distinguished assistant Republican leader can answer the question-the question being what is the program for the rest of the day, how many rollcall votes may be anticip-

 

[Begin p. 18223]

 

ated, what will be program tomorrow, and beyond?

SCHEDULE

Mr. SIMPSON. Mr. President, on behalf of the majority leader, I express to my colleague that we will have one more rollcall vote this evening. That will conclude the activities of the day. That will be on final passage on this measure. Then, tomorrow we will have at 12 noon a live quorum to be followed by a cloture vote on the motion to proceed to S. 995 on the issue of South Africa. Rollcall votes will be expected throughout the day tomorrow in connection with that measure. That is the schedule for this day and for tomorrow.

Mr. BYRD. Mr. President, I thank the distinguished assistant majority leader.

Mr. SIMPSON. Mr. President, in addition, I say to the distinguished minority leader, we will convene tomorrow at 11 a.m. There will be special orders, and then at 12 noon, we will go to the cloture action 

Mr. BYRD. I thank the distinguished assistant majority leader.

Mr. HATCH. Mr. President, I yield 30 seconds to the distinguished Senator from Idaho.

Mr. MCCLURE. Mr. President, I ask unanimous consent that the distinguished Senator from California <Mr. WILSON>, be added as a cosponsor of the bill

Mr. DECONCINI. Mr. President, will the Senator yield?

Mr. HATCH. Mr. President, I yield 30 seconds to the distinguished Senator from Arizona <Mr. DECONCINI>.

Mr. DECONCINI. I thank the Senator.

Mr. President, I compliment the distinguished Senator from Utah and the distinguished Senator from Idaho for the fine efforts they put forth here today

I am extremely pleased to have this opportunity to vote in favor of S. 49, the McClure-Volkmer Federal Firearm Owners Protection Act. I have enthusiastically cosponsored the McClure-Volkmer bill throughout my tenure in the U.S. Senate and am pleased it is being acted on now. It is my hope that, with early action by the Senate, the House of Representatives will move expeditiously to approve this necessary legislation.

The McClure-Volkmer bill will correct several flaws in the Gun Control Act of 1968, and will remedy other provisions of the act that have been repeatedly and consistently abused by the Bureau of Alcohol, Tobacco and Firearms <BATF>. The remedial provisions incorporated in this legislation are long overdue. Hearings that I held in 1979 and 1980 in the Treasury Subcommittee of the Committee on Appropriations revealed a consistent pattern of harassment of legitimate gun dealers by the BATF. These hearings demonstrated the tremedous need for legislation such as the McClure-Volkmer bill which will offer protection for law-abiding gun dealers and gun owners without in any way threatening the American people

The McClure-Volkmer bill does not allow the mail-order sale of handguns. The bill does not provide for the sale of firearms by unlicensed pawnshops. S. 49 does not overturn State laws prohibiting or restricting firearms sales or possession, except in the very limited instance of interstate transportation through a State of an unloaded inaccessible firearm.

S. 49 will restore the constitutional rights of firearms owners and dealers by:

First, permitting licensed importers, manufacturers, and dealers to conduct business at gun shows.

Second, setting out procedures for the storage with GSA and BATF for the records of out-of-business dealers.

Third, spelling out some of the information-gathering procedures for tracing firearms and precluding criminal charges based solely on information provided under those procedures

Fourth, requiring certain reports relating to multiple sales of pistols and revolvers.

Fifth, applying a knowing state of mind with respect to some offenses and a willful standard to others rather than the present absence of any intent standard

Sixth, further clarifying what constitutes being ĺ─¨engaged in the businessĺ─¨ of dealing of firearms by defining ĺ─¨with the principal objective of livelihood and profit.ĺ─¨

Seventh, spelling out circumstances under which the inventory and records of licensed dealers can be inspected

Eighth, establishing mandatory sentences for the use of armor-piercing ammunition in the commission of a Federal crime of violence; and

Ninth, providing for the seizure of firearms under limited circumstances where they were intended to be used in specified crimes, including crimes of violence 

Mr. President, today is a significant day for tens of millions of American gun owners. The bill we will pass today will assure the rights of citizens to keep and bear arms under the second amendment to the Constitution and their rights to security against illegal and unreasonable searches and seizures under the fourth amendment. I am pleased to have been a part of the effort to achieve passage of this legislation. I shall be pleased to report to Arizona's thousands of gun owners that the Senate has responded to their legitimate concerns and has passed the Firearm Owners Protection Act.

Mr. MATHIAS. Mr. President, will the Senator from Utah yield?

Mr. HATCH. Mr. President, I yield 30 seconds to the distinguished Senator from Maryland.

Mr. MATHIAS. Mr. President, the issue of gun control involves strong, often conflicting interests that need to be considered and weighed carefully. On the one hand, I can well understand many of our citizens' concern for self-defense at a time of unacceptably high crime rates, as well as the need to protect the legitimate rights of sportsmen. At the same time, I am aware of the obvious need for protection against the lawless use of easily obtainable and concealable handguns that all too often are used in the commission of violent crimes.

As a Member of Congress for the past 25 years, I have tried to help shape a coherent, fair and effective Federal policy in this sensitive area to advance the effort to curb violent crime, without imposing unduly burdensome and bureaucratic procedures on law-abiding Americans.

After careful study, I have concluded that the enactment of S. 49 would be a step away from this goal. Therefore, I shall vote against this bill.

S. 49 would unnecessarily tilt the balance against local law enforcement officials and local crime prevention efforts. At the same time, this bill offers very little benefit to the sportsman and no benefit whatever to the citizen who possesses a gun for personal defense in the home.

Since I was first elected to Congress, I have consistently opposed legislation to require the registration of firearms owners, or to ban the possession of handguns by law-abiding citizens. I shall continue to oppose such proposals. But those issues have nothing to do with the legislation that is before us today.

The major thrust of this bill is to make it easier for dealers to sell guns to nonresidents and to make it more difficult to bring the law to bear against dealers who violate it. These goals should have no place in Federal firearms policy

Every major law enforcement group opposes this bill. In my own State, the Maryland State Troopers Association have expressed to us their strong opposition to S. 49 unless amended to protect legitimate law-enforcement goals. These amendments have not been adopted. The chief of police of Baltimore County, Cornelius Behan, and other Maryland law enforcement leaders have expressed similar concern about this legislation to me

S. 49 does not, as some would assert, pit the sportsman or other lawful gun owners against those who would ban guns. It pits those few who are willing to sell guns for profit to anyone with the money to purchase, against law enforcement officers and agencies who

 

[Begin p. 18224]

 

 are concerned with the safety of their own officers and the general public.

S. 49, if enacted, would weaken enforcement of existing laws, prohibiting sales of guns to felons, the mentally ill, and others whose possession of a weapon presents a clear danger to society. Because I believe that such prohibitions must be vigorously enforced, in order to redeem our constitutional pledge to ĺ─¨insure domestic tranquaility,ĺ─¨ I shall oppose S. 49.

Mr. DOLE. Mr. President, it was my hope that we could pass an amendment to the National Firearms Act which would tighten restrictions on the sale of kits used to convert semiautomatic weapons into automatics, either as a part of S. 49 or through the prompt passage of separate legislation. This issue was discussed extensively during the negotiations which led to the time agreement on S. 49 and I know it is a change that has broad based support.

Unfortunately, because the National Firearms Act is a part of the Tax Code, we were advised that if the proposed amendment originated in the Senate, it would be blue-slipped back. As a consequence, we will be unable to address this issue in the context of S. 49 but I would repeat my strong support for amending the National Firearms Act to close this loophole as it applies to conversion kits and will make every effort to promptly pass a bill containing such a change should an appropriate vehicle become available.

MACHINEGUN AMENDMENT

Mr. HATCH. Mr. President, Senator DOLE's efforts to clarify laws regarding machineguns would not be an amendment to the Gun Control Act of 1968, but amends the National Firearms Act of 1934. That is a significant point because it could encumber this bill procedurally in the House of Representatives. Under House Rules, the 1968 act is under the jurisdiction of the judiciary Committee, but the detailed tax and regulatory provisions of the 1934 act fall under the Ways and Means Committee. Rather than subject S.49 to the potentially fatal procedural obstruction of consideration in two separate committees, I commend the majority leader for dealing with this problem as a separate bill 

In furtherance of a separate bill, I have already participated in meetings with the majority leader and the Treasury Department. Since this subject can be treated in separate legislation, which has the full influence of the majority leader behind it, I commend this action.

Turning for a moment to the specific of this problem, the National Firearms Act pertains to machineguns, short or sawed-off shotguns and rifles, and so-called destructive devices-including grenades, mortars, rocket launchers, and other heavy ordnance. Acquisition of these weapons is subject to prior approval and registration by the Secretary of the Treasury. Generally, a one-time tax of $200 is placed on each transfer or manufacturing of a title II weapon

The bill on which I have worked with the majority leader deals with kits which may be purchased for the purpose of converting semiautomatic firearms into machineguns or fully automatic weapons. The concern addressed by this proposal is that a conversion kit which does not contain all the parts necessary to make a conversion might not be covered by the provisions of the National Act.

My reading of current law indicates that these kits would be covered. The current definition of machineguns covered by the National Act includes ĺ─¨any combination of parts designed and intended for use in converting a weapon into a machinegun.ĺ─¨ A machinegun, by the way, is defined as any weapon which shoots or is designed to shoot more than one shot automatically with a single function of the trigger. Based on the broad definition of machinegun which includes ĺ─¨any combination of parts . . . intended for use in converting a weapon into a machinegun,ĺ─¨ a conversion kit is already covered by the National Act. Even if the kit did not contain the total number of parts necessary to effect the conversion, it would still be a combination of parts intended for use in conversion. Therefore, it would be subject to the registration and tax requirements of title II.

This is not the only way that this problem is already addressed by the current law. As I mentioned earlier, a machinegun is also defined as a weapon ĺ─¨ designed toĺ─¨ shoot automatically. On the basis of their design characteristics, the Treasury Department has classified at least four semiautomatic weapons as ĺ─¨ machinegunsĺ─¨ because they were designed to be easily converted to fire automatically. These weapons, too, fall within the ambit of the National Act. Understanding these points, I can grasp the significance of the Treasury Department's comment on this conversion kit amendment. The Department said, ĺ─¨ current law may already regulate as machineguns the types of weapons and firearms parts that concern the proponents of the amendment.ĺ─¨

Although amendment of the National Act to cover conversion would be unnecessary, I am still willing to add clarity to this point in current law. For this reason, I have been working with the majority leader and the administration on legislation with this objective. In the context of S. 49, however, I see this amendment as creating significant problems in the House. This amendment should not be added to a bill amending only the Gun Control Act. There seems to be no problem requiring action at this minute. The current National Act seems to handle any potential problems in this area. Conversions to machineguns are being regulated now within the terms of the 1934 act. Amending S. 49 in this manner, however, could make its approval in the House extremely difficult if not impossible.

Mr. EAST. Mr. President, I encourage each of my colleagues to vote in support of S. 49, the Firearms Owners Protection Act. The passage of this bill is of critical importance to our Nation's 60 million firearms owners, and the principles embodied in this legislation are of the utmost concern to all Americans who support the Constitution of the United States.

Today we debate an issue that was resolved by our Founding Fathers nearly 200 years ago. As we approach the Bicentennial of the Constitution in 1987, we should reflect upon the intentions of James Madison, Patrick Henry, Samuel Adams, and the rest of that courageous band of patriots who pledged their lives, fortunes, and sacred honor to found a nation dedicated to individual liberty. I am saddened to report that, with regard to the right to keep and bear arms, we have not honored their most deeply held beliefs.

One of the grievances that sparked our forbearers' fight for independence stemmed from British attempts to confiscate their private arms. Despite the guarantees of the English Bill of Rights of 1689, which included the general right of all citizens to retain arms for their protection, the British attempted to disarm the North American colonists in order to solidify political control over the Colonies. In Massachusetts Bay Colony, the cradle of the Revolution, brave colonists complained repeatedly of the deprivations of their right to keep arms. These colonists were faced with the confiscation of their private arms by the British Governor, General Cage. Once the colonists were disarmed, British soldiers conducted raids and break-ins, illegal searches and mass arrests, all in order to prevent the formation of a citizen militia. As former Chief Justice Earl Warren noted:

ĺ─˙Among the grievous wrongs of which (the colonists) complained in the Declaration of Independence were that the King had subordinated the civil power to the military, that he had quartered troops among them in times of peace, and that through his mercenaries he had committed other cruelties. Our War of the Revolution was, in good measure, fought as a protest against standing armies. Moreover, it was fought with a civilian army, the militia, and its great Commander-in-Chief was a civilian at heart.ĺ─¨

This experience with a governmental confiscation of arms led the colonists to protest ratification of our Constitution without a specific, written guarantee that no national govern-

 

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ment would ever intrude upon the right of each and every citizen of the United States to keep and bear their own firearms for the defense of themselves, their families, and their property. Fully 5 of the 11 States that originally ratified the Constitution in 1789 called for an amendment relating to the right to keep and bear arms. The importance of this right is demonstrated particularly in light of the fact that there were only five State proposals for a free press amendment and only three for a free speech amendment 

Thus, as a result of their firm belief that the right to keep and bear arms was the first line of defense for a free people, the Founding Fathers guaranteed that right in the second amendment. Indeed, the fundamental importance of the second amendment to the scheme of liberty contained in the Bill or Rights was recognized by Supreme Court Justice Joseph Story when he described the right to keep and bear arms as ĺ─¨the palladium of the liberties of the republic.

It is ironic that today we should be debating whether Americans do have the right to own and keep firearms. The debate 200 years ago was over whether it was even necessary to include a written guarantee of what seemed to those wise men an inalienable, and undoubted, right not subject to the whims of politics or the will of legislatures. Patrick Henry, James Madison, George Mason, and their noble brethren all believed that the right of an individual to keep and bear arms was so elemental, so obvious to all men of reason and good will, that the mere recording of words could only confirm what no government had the power to deny. As Zachriah Johnson said, ĺ─¨The people are not to be disarmed of their weapons. They are left in full possession of them.ĺ─¨

These great men must be disturbed in their rest as they hear their political descendants question not only the wisdom, but the very existence, of rights that they considered to be fundamental to all free peoples. Patrick Henry, discussing the relationship between an armed citizenry and individual freedom, uttered these immortal words: ĺ─¨Guard with jealous attention the public liberty. Suspect every one who approaches that jewel.ĺ─¨ Had we but heeded that warning, we would not need to be here today, attempting to restore liberties which the founders sought to secure through the second amendment.

The legislation before us is designed to redress a grievous wrong carried out by this body some 17 years ago: the infringement of the people's right to keep and bear arms. By acting now to restore our citizens' second amendment rights, we will be carrying on a tradition begun more than 200 years ago.

Mr. President, James Madison once warned that we should take alarm at the first experiment with our liberties. In my view, we should put an end to the most egregious experiments with the second amendment liberties of the American people by passing S. 49, the Firearms Owners Protection Act

Thank you, Mr. President. I yield the floor.

Mr. DOLE. Mr. President, 6 years ago, the National Firearms Owners Protection Act was first introduced by Senator MCCLURE. Thanks in large part to his tireless efforts on behalf of the legislation, the Senate is finally passing this crucial bill. Senators HATCH and THURMOND have also contributed significantly over the years to building the consensus needed to secure final passage. Law-abiding gun-owners, dealers, and manufacturers throughout the country owe these Senators a debt of gratitude for working so hard on their behalf to correct the abuses that have occurred under the 1968 Gun Control Act

As Senator MCCLURE stated on the Senate floor when he first introduced his bill on October 5, 1979: ĺ─¨The legislation * * * is designed to carefully correct a series of abuses without fundamentally altering the law which had led to those abuses.ĺ─¨ As we proceed to a final vote on this legislation, it is well to keep those last few words or Senator MCCLURE in mind. This bill does not permit everything from mail-order gun sales to street-corner vendors peddling Saturday night specials as some have implied. The truth is this bill maintains the integrity of the 1968 act as it applies to illegal gun manufacture, sales, and purchases. What it will do is put an end to unfair and unjust enforcement practices, bordering, at times, on harassment, undertaken against law-abiding citizens which, if anything, have diverted scarce law enforcement resources away from tracking down and prosecuting the true criminals. It is sound legislation and I am pleased to have played a role in securing its passage as Senate majority leader.

Mr. President, though we may disagree on many of the issues, I would also like to thank Senators KENNEDY and METZENBAUM for cooperating with us in proceeding to and passing this legislation in an orderly way. I would also like to thank Senator BIDEN for his help in working out the time agreement.

Finally, I would like to thank all the staff who have worked on this bill including Mike Hammond and Nancy Norell with Senator MCCLURE; Randy Rader with Senator HATCH; Steve Dillingham with Senator THURMOND; Jerry Tinker with Senator KENNEDY; Scott Green with Senator BIDEN; and Eddie Correia with Senator METZENBAUM.

Mr. HATCH. Mr. President, when Congress enacted the Gun Control Act of 1968, its intent was to reduce violent crime, not to encourage prosecutions for inadvertent infractions of the intricate, complex, and detailed complexities of the act. If we are serious about fighting violent crime, we will enact this bill swiftly. This bill strengthens penalties against violent offenses, makes it a crime for any person-not just a dealer to sell a gun knowingly to a felon-and in other ways focuses our scarce law enforcement resources on violent offenses.

As the law now stands, it lacks a definition for ĺ─¨engaging in the businessĺ─¨ which allows law-abiding citizens to be convicted of a felony for selling one or two guns inherited from a family member. It has no mens rea, state of mind, requirements for many offenses, which allows persons to be convicted of a felony on the same basis as a traffic ticket.

We need to redirect our firearms enforcement efforts away from technical recordkeeping violations and toward violent crime. This bill accomplishes that and deserves our support.

I ask unanimous consent to have printed in the RECORD an article from the Wall Street Journal of Tuesday, July 9, 1985, regarding this subject.

There being no objection, the article was ordered to be printed in the RECORD, as follows:

<From the Wall Street Journal, July 9, 1985

ZEALOUS ENFORCERS TRIGGER RECONSIDERATION OF GUN LAW

(By David T. Hardy

The Senate is expected to take up this week the so-called Volkmer-McClure Bill. It represents six years of effort to reform the 1968 Gun Control Act, the primary federal law affecting our 200,000 licensed firearms dealers and 80 million firearms owners and collectors. Hastily drafted at a time of national tumult, the GCA was aimed at preventing felons and other unpleasant sorts from owning guns. Along the way it required persons ĺ─¨engaged in the businessĺ─¨ of dealing in guns to obtain a license, required such dealers to maintain records of sales, and imposed felony sanctions, forfeiture of firearms and other sanctions on violators.

Enforcement agencies, like most organisms, seek to grow. Over the dozen years following enactment, the one charged under the GCA grew from an IRS subunit, with 214 agents, to a full Treasury bureau-Alcohol, Tobacco and Firearms-with 1,200 agents on gun-related duties. Such explosive growth required especially impressive results. Fortunately for the bureau, the GCA opened the door to easy cases against unsuspecting person: With strict liability, even the most trivial and unintentional misstep would do.

Agents and informants had but to make a few purchases-all legal-from a collector, then charge him with having ĺ─¨engaged in the businessĺ─¨ of gun dealing without a license. For variation, any technical record-keeping error could be inflated into a felony count. The prize for originality, however, went to the agents who located persons who

 

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had received a pardon and charged them with possession of firearms by a felon-Congress having forgotten to take account of executive clemency in defining ĺ─¨felon.ĺ─¨ The easy crop of arrests led to a great deal of heartburn later, when the citizens appeared before Senate committees to return the favor.

Among the dozens of cases described, a few stand out:

A disabled veteran and Boy Scout leader who ran a small New Hampshire gun shop. A BATF informant made him a lucrative and illegal offer. Noting his auto-license number, the gun-shop owner called BATF to urge prosecution. The bureau instead arrested the gun seller, claiming that one of his firearms was technically illegal. At his trial, his chief character witness was the very sheriff who had accompanied BATF on the raid. The judge dismissed the charges and apologized on behalf of the United States.

A former Maryland policeman who, as a French national, had earned his U.S. citizenship by volunteering for the Army during the Vietnam War. He was a collector who also held a dealer's license and was prosecuted for not having logged into his dealer's records some sales from his personal gun collection. At his trial, he proved that BATF's own director had informed Congress that such a procedure was legal. The court, however, accepted the prosecution's argument that the director was wrong and that lawful intent was no defense. The collector became a convicted felon.

A couple who owned a rural New Mexico gun shop. They were charged with seven illegal sales, yet their entire inventory-in which they had invested all their savings-was confiscated. The jury found them not quilty, but the bureau moved to revoke their license. The bureau's own administrative judge ruled in their favor. Yet a year and a half later, the BATF still held their inventory-offering to return it only if they agreed not to sue for false arrest

Nor were these cases so exceptional prior to 1981, at which point the bureau, under congressional scrutiny, began to scale back its operations. The Senate Subcommittee on the Constitution estimated in 1982 that two-thirds of federal firearms cases were at one point being brought against inadvertent and technical violators, and only 10% were being brought against felons or those who sold to them.

Volkmer-McClure (its authors are Democratic Rep. Harold Volkmer of Missouri and Republican Sen. James McClure of Idaho) takes a direct approach to these demonstrated defects. It defines felon to exclude recipients of full pardons, and dealer to exclude collectors who may make a sale incident to their hobby. For most technical violations it requires proof that the violation was willful. Firearms seized must be carefully identified and linked to a specific violation: If the owner wins acquittal the firearms must be promptly returned. These are hardly revolutionary principles; most of us probably would be surprised to find them disputed. Yet disputed they are, by interest groups that tend to see punishment of firearms owners as a social good in itself.

Although the bill restricts law enforcement, police organizations are among its most enthusiastic backers. The Fraternal Order of Police appeared before the Judiciary Committee to explain why it ĺ─¨strongly supportsĺ─¨ the Volkmer-McClure bill: ĺ─¨Many aspects of the Gun Control Act, as it exists, are enforcement nightmares. The act outlaws, and imposes felony penalties upon, a wide range of conduct in which ordinary, honest citizens engage.ĺ─¨ The National Sheriffs' Association, in a frank statement whose theme should be inscribed on the Capitol's walls, stated: ĺ─¨If you have the resources to prosecute unintentional violators of the Gun Control Act, give them to our members, and we will use them instead to prosecute murderers, rapists, armed robbers, and burglars.

Can the proper needs of law enforcement be reconciled with respect for individual rights? Yes, if policy makers concentrate on details and do not paint with a broad and dangerous brush. Volkmer-McClure represents exactly the type of detail work that is needed.

Mr. DURENBERGER. Mr. President, I support S. 49, the legislation offered by my distinguished colleague from Idaho <Mr. MCCLURE>.

The need for this legislation is well documented and its passage is long overdue.

The primary thrust of this bill is aimed at amending the Gun Control Act of 1968 to change its most onerous provisions and institute guarantees of gun owners' civil liberties which were omitted from the act. To understand how those guarantees were omitted, we should examine the historical background of the 1968 act.

What ultimately became the 1968 Gun Control Act originated in 1963 as a relatively modest measure to require police notification before mail-order firearm purchases. Over the following years, as the gun control controversy expanded, so did the proposed legislation. It finally came to the floor in 1968 in a politically charged atmosphere. Those who sought extensive Federal regulation of gun owners fought for registration and permit systems; those who opposed it primarily fought against these proposals. The Gun Control Act was not a coordinated piece of legislation, but a hodgepodge of proposals which neither side particularly wanted, inserted piecemeal as the legislative battle seesawed back and forth. No sooner was it enacted-as part of the Omnibus Crime Control and Safe Streets Act-than a new push was started for amending the bill.

A second piece of legislation, entitled the Gun Control Act of 1968, was passed, which amended various provisions of the first bill, making it apply to rifles and shotguns as well as pistols, creating a collectors' licensing system, amending provisions for review of license denials, and generally clouding the issue to a still greater degree.

The end result has allowed:

Entrapment of law-abiding citizens who are enticed into accidentally violating one of the technical commands of existing law. Most existing provisions do not require proof of criminal knowledge or intent, so that cases can be made on inadvertent violations.

Use of vague and undefined requirements to make cases against law-avoiding citizens. Among the worst of these is the requirement that persons ĺ─¨engaged in the businessĺ─¨ of dealing in guns obtain a license. Many gun collectors have been enticed into two, three, or four gun sales out of their collection over a period of 6 months, then charged with having engaged in the business.

Abusive confiscations of these collections on the ground they were ĺ─¨intended to be usedĺ─¨ in violation, and frequent refusal to return the collection even after the collector is acquitted.

Bureaucratic harassment by frequent ĺ─¨fishing expeditionsĺ─¨ into dealers' records. Current law allows entry into a dealer's shop and a search of his records and inventory on the agent's whim, without warrant or probable cause.

A complete misdirection of effect. Although existing laws are aimed mainly at keeping felons from obtaining guns, only 10 percent of BATF's gun cases are against felons in possession or those selling to them. Only 4 percent of guns confiscated meets their own definition of ĺ─¨crime guns.ĺ─¨

The bill would redirect the law's focus away from law-abiding Americans and increase the focus on genuine criminals.

Through procedural reforms, this bill will advance a more even balance between the constitutional rights of the law-abiding citizens, and the legitimate law enforcement efforts of the Bureau of Tobacco and Firearms <BATF> and individual States.

This legislation places procedural safeguards on the blatantly unfair practices of the BATF relating to seizure and retention of firearms. At the present time, anyone accused of a registration violation must immediately forfeit not only the improperly registered firearm, but all the guns he owns, even if the others are properly registered. This is in direct conflict with our principles of civil liberties-BATF is assuming an accused is guilty until proven innocent. Those who violate the 1968 Gun Control Act should be punished, but enforcement must be consistent with the fundamental right to due process.

S. 49 will also enhance the freedom of Minnesota's sportsmen who enjoy traveling to other States for recreational purposes. State laws that prohibit the interstate commerce of firearms and ammunition would be nullified, allowing travelers to transport unloaded and inaccessible guns across State lines. And, interstate sales of firearms would be lawful as long as the transaction complies with the legal conditions of sale in both States, making it possible for the out-of-state

 

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hunter to replace a lost or stolen rifle under certain conditions.

This initiative will protect the rights of dealers of weapons and ammunition by specifically defining a manufacturer and his activities, and be relaxing Federal regulations with regard to innocent errors in recordkeeping

Perhaps the provision I support the most in this bill, however, is that one which requires mandatory sentencing for persons convicted of using a firearm in the commission of a Federal crime, and makes stricter the penalties for repeat offenders. We must make it clear that anyone convicted of misusing a firearm is going to prison without exception. As most criminal justice studies demonstrate, it is the swiftness of apprehension and certainty of punishment that deters crime.

Opponents of the legislation have offered, among several amendments, one to impose a waiting period and another to ban snubbies or short-barreled handguns. The questions of what to ban or whether or not one ought to wait should be answered by State policymakers. Some States have adopted a waiting period. Others have rejected it. In April 1982, for instance, Maryland's legislature voted down an extension of its waiting period, and one of the major counties in Kentucky rejected a waiting period ordinance-Kentucky's legislature having earlier rejected a similar bill at the State level. There is no reason to override their decisions and impose a Federal statute to dictate local questions.

It is unfortunate that this bill has been misunderstood and characterized as ĺ─¨pro-gun.ĺ─¨ I do not view it as being pro- or anti-gun, but rather as a vehicle for protecting the rights of the law-abiding citizens while strengthening penalties for those who violate the law. The reforms set out in my colleague's legislation are necessary steps to ensure fair, efficient enforcement of the 1968 Gun Control Act. It is for this reason that I am voting in favor of S. 49.

Mr. MATTINGLY. Mr. President, I rise in support of Senate bill 49, the Federal Firearms Owners Protection Act. This legislation is similar to an amendment offered to last year's continuing resolution which I supported along with a clear majority of my colleagues. As a cosponsor of the so-called McClure-Volkmer bill in both the 97th and 98th Congresses and of this measure. I am pleased that at last the Senate will have the opportunity to vote on legislation which is designed to protect the constitutional rights of gun owners and to remove unnecessary Federal burdens and restrictions on law-abiding citizens, while protecting and advancing legitimate law enforcement efforts.

For some years now, momentum has been gathering to reduce these burdens by imposing limits on the agencies' tendency to regulate every activity. If anyone doubts the need for these limits, I suggest that he take a look at the U.S. Code and the Code of Federal Regulations. That comparison clearly demonstrates what to me is a disturbing fact-that administrative regulation far outweighs legislation in volume and in detail. This is disturbing because it is not how the system is meant to work. it is not career bureaucrats but individuals elected by the people who are charged with the responsibility of creating the rules which govern the lives of our citizens. But bureaucrats and regulators increasingly have assumed this responsibility.

Gun owners have seen the danger of agency lawmaking. In the late seventies, for example, they were nearly forced into a computerized gun registration devised by an agency. Such a scheme was clearly not the intention of Congress, for Congress had rejected such a registration plan when it enacted the law. Fortunately, the regulation did not take effect, largely because firearm owners protested vocally in some 60,000 comments opposing the rule. Those sheer numbers have something to say to us today. They say that the law-abiding, gun-owning public realizes the danger of administrative lawmaking and opposes it.

Senate bill 49 provides needed guarantees against similar incidents of regulatory overstepping in the future. It alters the existing grant of authority to a Secretary to make whatever rules he deems reasonably necessary to carry out the law. Under S. 49, regulations must be necessary as a matter of fact, not merely reasonably necessary as a matter of judgment. The deletion of the term ĺ─¨reasonablyĺ─¨ narrows the boundaries of an agency's discretion, discretion which has been at times exercised in an abusive manner. The practical effect of this clarification is to ensure that regulations are necessary to carry out the terms of the law and are in fact based on the law itself. In addition, the provision ensures that such regulations represent the least restrictive method of carrying out the intent of the law. S. 49 subjects the agency rather than the law-abiding citizen to stricter liability. This is as it should be 

Earlier I mentioned the computerized registration incident. The Federal Firearms Owners Protection Act specifically states that it is the intent of Congress that no registration system be established. This in no way will thwart law enforcement's investigation of criminal cases in the future. Record turn-in requirements remain as they are under current law.

The fact is, S. 49 will enhance law enforcement. The measure codifies the Treasury's authority to get access to a dealers' records for the purpose of tracing weapons in a criminal investigation; it clearly states those classes of persons, including felons, the mentally incompetent, and drug abusers, who are prohibited from possession, receipt, transportation, or shipment of firearms; and it establishes higher penalties than those under current law for the use of a firearm in the commission of a felony.

This legislation, which has been the subject of numerous hearings and revision, is a balanced, reasoned approach to protecting citizens' constitutional rights while maintaining and furthering effective, legitimate law enforcement. I urge its adoption.

Mr. SYMMS. Mr. President, when we first considered the Gun Control Act of 1968, we were told that those localities with restrictive gun laws had less crime committed with firearms than areas with more lenient gun laws. Some of that data used to support the Gun Control Act of 1968 was deceitful. The proponents of gun control would pick a city here or a State there. The total data base was from 5 or 10 cities in a handful of States.

The same thing is happening now. We are told that gun laws work in Massachusetts, that they work in the District of Columbia, and that they work in the city of Chicago. We are not told that some of the cities cited in the past-those with less restrictive gun laws, such as Phoenix and Tuscon-are much safer than the District of Columbia or Chicago. Their homicide rates are well below half those of the cities with restrictive gun control laws. Finally, we are not told just what is meant by ĺ─¨gun control laws are working.ĺ─¨

Since the 1976 adoption of the Bartley-Fox restrictive gun law, Massachusetts has gone from the 19th to the 11th most violent State. Its homicide rate has basically mirrored the rest of the region-except that handguns are involved in 34 percent of Massachusetts' homicides, they are used in only 24 percent of Maine's, 19 percent of Vermont's, and 5 percent of New Hampshire's. As you can see, all those other New England States are significantly safer than Massachusetts. Moreover, studies conducted by the U.S. Justice Department have concluded that the gun law has not worked. The law didn't change the regulation of handgun acquisition or carrying, it merely punished those carrying without a license. And the impact has been negligible in terms of punishing criminals. Fewer criminals than ever are being imprisoned for carrying a weapon. Those few who are imprisoned now are more likely to be persons without serious criminal records while the real criminals make greater use of jury trials, technical arguments against evidence, or merely free on bail.

 

[Begin p. 18228]

 

The only impact has been to increase the number of criminal trials which involve appeals, juries, and constitutional technicalities, or the number of trials which cannot be carried out due to flight from the jurisdiction. The criminal justice process has been slowed, and an increasing number of persons guilty only of technical or inadvertent violations have been punished. The crime rate, especially street robbery involving guns, has risen dramatically in States with restrictive gun laws. For example-in Massachusetts, and particularly in Boston.

A recently completed survey of felons around the country, commissioned by the U.S. Justice Department-conducted by Professors Peter Rossi and James Wright of the University of Massachusetts-shows that Massachusetts felons are more likely to be armed than are felons in other States. They are more likely to own handguns and to carry handguns regularly. Thus, the restrictive Bartley-Fox law has certainly not disarmed the criminal. Rather, it seems to have encouraged street robbery-the type of robbery most likely to occur when citizen self-defense is impaired by law.

The Wright-Rossi survey also shows that criminals in Massachusetts are less likely to be concerned about confronting an armed victim than are felons in States where civilians have more freedom in acquiring and carrying guns, such as Arizona and Oklahoma 

The District of Columbia virtually banned handguns beginning in early 1977. The result was immediate-despite many distortions from the antigun crowd. Between 1976 and 1981, the murder rate rose from 26.9 per 100,000 to 35.1. With the 1982 adoption of a mandatory penalty for using a gun in a violent crime, D.C.'s homicide rate has fallen back to 28.1 in 1984. In spite of the 7 point drop, this was still a net rise of 4.5 percent while the national homicide rate is now 9 percent lower than it was in 1976. Based on these statistics, one can see that the national murder rate fell twice as fast as the District of Columbia's has, and D.C.'s rate has only fallen since adopting a mandatory penalty for misusing guns in violent crimes 

Another example gun control proponents cite is Chicago, which imitated the District's gun freeze with an ordinance taking effect in October 1983. The distorted interpretation of the effect of that gun law has it ĺ─¨workingĺ─¨ because the homicide rate fell between 1981 and 1982, the year before the gun law took effect. A closer look shows that the number of killings in Chicago rose between 1982 and 1983 and rose again between 1983 and 1984. During that time, the homicide rate nationally has continued a 4-year decline.

The general uselessness of gun laws is perhaps best shown by the overall long-term trends.

Violent crime in the United States has been falling for the past 4 years-particularly gun-related violent crime-even though handgun availability has been increasing over three times as fast as the population, and even though handguns constitute a greater and greater percentage of the firearms market. Not only is the violent crime rate falling, but so is the firearms accident rate and the overall suicide rate.

In Canada, since adopting a tough gun law, the violent crime rates have been rising, and the suicide rate has been rising. I'm not sure exactly what ĺ─¨gun controlĺ─¨ laws are supposed to do, but the evidence seems to associate these laws with increases in crime rates. I was under the assumption the goal was to reduce crime.

I think it's time we quit burdening the average law-abiding citizen with laws based on the pretense that criminals get their guns through regulated channels-based on the supposition that the average citizen cannot be trusted 

The average citizen can be trusted, and that is the basis of American democracy. The data clearly indicates that the average citizen does not misuse his firearm. Instead, each year, over 300,000 Americans use their handguns for protection from criminals. As demonstrated in the cities and States which have adopted restrictive ĺ─¨gun controlĺ─¨ laws, the end result has been to lessen criminal concern about being shot by a potential victim and to increase the safety of streets-not for the law-abiding, but rather for the criminal.

We must not allow the Federal Government to continue hamstringing law-abiding citizens with redtape and senseless restrictions simply because these citizens exercise the constitutional right of firearms ownership for self defense, sport, hunting, or other purposes. A Federal presence with firearms must be targeted toward violent criminals. S. 49 will achieve that end and for that reason I support the bill both as a tool of better law enforcement and as a guarantee of the constitutional right to firearms ownership for American citizens.

Mr. DOMENICI. Mr. President, the Constitution guarantees to each citizen the right to keep and to bear arms. Unfortunately, the Gun Control Act of 1968 unduly and unnecessarily burdens that right, while failing to achieve its goal of ebbing the tide of violent crime. While we must keep guns out of the hands of the criminal element, we cannot do so at the expense of innocent, law-abiding citizens. The Gun Control Act of 1968 has ensnared many innocent gun dealers and owners in the technicalities of its provisions while criminals have been undeterred by it in their efforts to obtain and use firearms 

Under the 1968 act, violent crime has continued unabated, yet many honest gun owners and dealers have been branded as law breakers because of their inability to abide by the technical provisions of the act. This result was not intended by the drafters of the act. By eliminating the burdensome and unnecessary provisions of the act which infringe on the rights of honest gun owners and by toughening the provisions for willful violations of our firearms laws, we can best achieve the original intent of the drafters of the act and protect the rights of our citizens.

I have cosponsored the Federal Firearms Owners Protection Act because it protects the constitutional rights and civil liberties of law-abiding gun owners without diminishing the effectiveness of law enforcement measures against the misuse of firearms. It does this by eliminating those provisions of the 1968 act which only served to set a trap for unwary, yet otherwise honest, gun owners and dealers and by directing enforcement toward willful violations of Federal firearms law. It ensures that the rights of firearms owners are observed and increases the penalties for willful misuse of firearms. I therefore support the Federal Firearms Owners Protection Act and encourage others to do so.

Thank you, Mr. President.

Mr. QUAYLE. Mr. President, I wish to add my endorsement to S. 49, the Firearms Owners Protection Act, that Senator MCCLURE has reintroduced in this 99th Congress.

The McClure-Volkmer bill was first introduced in 1979. It was in response to the need for reform of the Gun Control Act of 1968. Since 1979 the McClure-Volkmer bill has been working its way through the legislative labyrinth. During its travel through this maze, I suspect that every word of every phrase of this legislation has been studied for every conceivable meaning. In the 98th Congress this body voted on two separate occasions, 63-31 and 77-20 in favor of this legislation. I might point out that last term, the bill was reported by the Senate Judiciary Committee unanimously, something of a rare feat from that diverse group. I mention this point only to refute the recent charges that this measure is being rushed to the floor without the necessary time for analysis in committee. This legislation has stood the test of debate for the last 3 years, it has had the support of the Senate in the past, and has the support of 51 cosponsors today. In addition it is noteworthy that the bill has the full support of the firearms rights community as well as the administration.

 

[Begin p. 18229]

 

Mr. President, recent statistics published by the FBI, State, and local law enforcement officials, show that there has been a decline in the number of crimes committed in this country. I believe that we will see additional progress made in this area with the implementation of the enforcement aspects of this bill. The sentencing provisions of this legislation will put out the notice that we are indeed serious in our commitment as a Nation to combat crime in the United States. The increased penalties make clear this commitment. This is a necessary second step since the Comprehensive Crime Control Act of 1983 laid out the foundation for our renewed effort to strengthen our criminal justice system to combat the increased crime against our people and property. Sure and certain punishment as a direct response to criminal action has shown some positive results. Last year, I was pleased to report to the people of my home State of Indiana that crime declined in the United States. Preliminary reports by the FBI for 1984 show a 3-percent decrease in crime as compared to the previous year. I would like nothing more than to be able to continue to make reports in the years to come.

Mr. President, I have one final point that I would like to make on behalf of this bill. There is a difficult balance which we are trying to achieve through these revisions in the Gun Control Act of 1968. We look to protect the rights of our citizens to be free of governmental constraints without easing our commitment to the battle against crime in this country. I believe that this bill strikes a good balance in these vital interests. Critics have focused upon the first half of this equation, suggesting that people should not have the rights afforded under this legislation. We are a country proud of our freedoms. It is this freedom which makes this country a great Nation. The citizens of this country have a right to be free in their persons and property. The fight against crime is the struggle for this freedom. I will be voting in favor of S. 49 as a vote for the protection of our freedoms 

Mr. BIDEN. Mr. President, the subject of considering changes to the 1968 Federal Gun Control Act has been a topic of much debate in the Judiciary Committee for the past several Congresses. Last year alone it took the better part of four committee meetings and 6 months to finally agree on a compromise bill that was unanimously reported by the committee. As the ranking minority member of the Judiciary Committee I believe this issue has received careful scrutiny and this bill is a product of compromise and revision.

Mr. President, in the 97th Congress when this bill was introduced, I had major concerns that it would gut many important law enforcement provisions in the 1968 Gun Control Act. It was for that reason that I raised concerns about provisions that would make it easier for convicted felons to gain access to guns and permit the interstate mail order sales of guns. The Treasury Department and some of my colleagues on both sides of the aisle raised similar concerns and there was agreement to offer substitute language to the original text of the bill. I give credit to Senator HATCH and the National Rifle Association for their willingness to compromise and develop a revised bill that would strike a fair balance between unnecessary restrictions and regulations on lawful ownership of rifles and handguns and the legitimate interests of law enforcement in carrying out their responsibilities. I believe the compromises that are now a part of this bill have resulted in a balanced piece of legislation that protects the rights of private gun owners while not infringing on law enforcement's ability to deal with those who misuse guns or violate laws. 

During my 12 1/2 years as a Member of this body, I have never believed that additional gun control or Federal registration of guns would reduce crime. I am convinced that a criminal who wants a firearm can get one through illegal, nontraceable, unregistered sources, with or without gun control. In my opinion a national register or ban of handguns would be impossible to carry out and may not result in reductions in crime.

There will be several amendments offered today that warrant close attention and I will listen to the authors' argument very carefully before deciding how I will vote. However, on the whole, I am satisfied with the revisions to the bill made in committee, and I believe this bill makes improvements to existing law.

Mr. SASSER. Mr. President, even before the ink was dry after the 1968 Gun Control Act was signed into law, many Members of Congress has second thoughts about the effects of their action.

That action amounted to a sweeping legislation attempt to curtail crime, political assassination, and social upheavals marked by extreme violence. In that climate of ĺ─¨Do something, do anything,ĺ─¨ firearms and the lawful owners of firearms were made scapegoats in a simplistic attempt to answer exceedingly complex human problems.

Only the citizens caught up in the maze of the 1968 Gun Control Act can adequately and persuasively convey the effect this ill-conceived law has had on their lives. Their stories poignantly reveal the end results of a vague and complex law which impacts much more on law abiding citizens who happen to own firearms than it impacts on violent criminals. This Congress must provide, by reform of the Gun Control Act of 1968, protection for scores of Americans who would otherwise fall prey to the misdirected 1968 law 

Although it was touted as a measure to curb crime, the Gun Control Act does not deal, or even purport to deal, with misuse of firearms. It is purely and simply a regulatory statute designed to control the transfer of firearms and to make each transfer a federally recorded and federally controlled transaction. That is the importance of the statute.

That significance has been lost amid all of the rhetoric about the 1968 act and its companion statutes. The Gun Control Act of 1968 is not directed at misuse of firearms, rather it is a highly technical, strict regulatory scheme that thrusts burdensome recordkeeping requirements on all who chose to legally own or engage in the business of selling firearms.

Put another way, most provisions of the Gun Control Act of 1968 deal with regulatory crimes rather than violations of a criminal, moral nature. And whenever you are dealing with regulatory crimes-a wrong only because the law says it's wrong-you will have people who have no intention of breaking the law caught up in the technical maze spawned by the Gun Control Act.

Literally anyone can inadvertently become a victim of the technical requirements of Federal gun laws. Yet any and all violations of that act are felonies, subject to criminal penalties. Under its provisions, no matter how diligently one tries to comply, an innocent technical mistake will result in a criminal record.

Try, if you will, to conjure up any other statute or regulatory law which calls for criminal penalties to be levied for a recordkeeping error. And bear in mind that under the Gun Control Act of 1968 your motives, your intent, matters little.

The Federal gun law can be likened to Government imposed speed limits, artificial numbers set by lawmakers. It doesn't matter what your motives are: if you exceed the speed limit, you have violated the law, no matter how unintentionally. At least in this instance the motorist is given signpost commands every few miles.

However, the Nation's firearms owners and dealers have not been given clear, identifiable signals governing firearms transactions. Instead, firearms owners and dealers must obey the commands of a vague, ill-defined, and arbitrary law. And unlike the motorist caught in a traffic violation, subject to a fine, a citizen charged with a recordkeeping violation under the Gun Control Act is labeled a felon for life.

 

[Begin p. 18230]

 

Mr. President, passage of the McClure bill-S. 49 will be a step in the right direction. It will redirect the law away from a regulatory preoccupation and instead target truly violent criminals. For this reason, both the National Sheriffs Association and the Fraternal Order of Police testified in support of the bill in committee. 

I urge my colleagues to join me in supporting the recommendations for change of the Gun Control Act of 1968 as contained in S. 49.

Mr. GRASSLEY. Mr. President, I want to commend the Bureau of Alcohol, Tobacco, and Firearms and the various private interest groups involved for working with us on crafting a reasonable reform to the Gun Control Act of 1968. That law had led to a number of abuses in the past by officials hostile to the right of law abiding citizens to own guns.

In the 97th Congress, I chaired four committee hearings where witness after witness revealed that they had been treated as criminals when they committed technical bookkeeping errors related to firearms. Some of these people had, in fact, been found innocent of any wrongdoing, but hostile goverment officials refused or unjustifiably delayed the return of firearms and other property seized for evidence against them.

The McClure-Volkmer bill alleviates many of the problems that exist in the present law. The bill eliminates the ban on interstate sales of firearms and thereby allows gun buyers to travel around for the best bargains. It permits gun dealers to conduct business with out-of-state residents as long as the transaction does not violate either State's laws. At the same time, this bill does not allow mail order handgun sales as some have feared. Nonlicensed persons cannot be expected to know the gun laws of every State and municipality and so the ban on interstate sales by them remains.

The gun tracing powers of the BATF are preserved and, at the same time, because of language that I commend BATF for agreeing to, the possibility of national gun or gunowner registration is forever banned without explicit congressional action.

This bill also defines ĺ─¨engaged in the businessĺ─¨, which will preclude the present unwarranted prosecutions of gun collectors and hobbyists for legal gun sales.

This bill also cracks down on real criminals who use firearms while committing a felony. Unlike current law, where criminals are released through probation or parole, McClure-Volkmer imposes mandatory penalties where there is no probation or parole, nor release on any basis for the genuine gun-toting criminal.

Therefore, Mr. President, I am pleased to be a cosponsor of S. 49, and I recommend an expeditious consideration and passage of this bill.

(By request of Mr. DOLE, the following statement was ordered to be printed in the RECORD:)

Mr. HATFIELD. Mr. President, the issues touching upon gun control are intensely emotional and highly political. Gun control advocates argue that studies, similar to a 1977 crime victimization report which indicated that handguns were the instruments of 10,000 murders and another 550,000 crimes of violence, point to the compelling need for stringent handgun laws. On the other hand, opponents of stricter gun laws strenuously maintain the necessity of guarding citizens' right to keep and bear arms guaranteed by the Constitution. They further argue that there is no demonstrable evidence to support the claim that stricter gun laws reduce violent crime. 

For these reasons, Congress has been unsuccessful in enacting any meaningful change in the Gun Control Act of 1968, a law which has been widely criticized for punishing law abiding citizens who own, buy or sell guns, while at the same time failing to provide the intended support to Federal, State, and local law enforcement officials in their fight against crime and violence. S. 49, under consideration by the Senate today, represents the first major effort to address reported deficiencies in the 1968 act.

For many gun dealers and owners, enactment of the 1968 Gun Control Act has imposed burdens and restrictions on their rights to sell, purchase, and hold firearms which were not intended by Congress. The evidence seems to suggest that a disproportionate number of enforcement activities have focused on gun owners and dealers who have been charged and or prosecuted for inadvertent and often technical violations of the act. Because of widespread confusion among gun dealers, collectors, and owners about the act's definition of being engaged in the business, individuals have had their collections or inventories confisc├─ated and have been charged for selling firearms without a license. The overwhelming majority of these people were conscientious citizens who because they did not understand that act's requirements has to pay a heavy price. Despite the fact that in many cases the charges were dropped or the person found not guilty, it was months and even years before the confiscated firearms were returned.

With passage of the 1968 act, Congress made it clear that it is not the purpose of Federal firearms laws to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession or use of firearms appropriate to the purpose of-any-lawful activity. Rather it is the purpose of such laws to provide support to Federal, State, and local law enforcement officials in their fight against crime and violence. S.49 is an attempt to bring our Nation's firearms law in compliance with that stated purpose. Basically S. 49 would:

First. Eliminate restrictions on the sale of firearms by licensees to out-of-State residents, providing the sale conforms to the laws of the States of both buyer and seller and that the transaction takes place face to face.

Second. Require that criminal intent be proved before individuals could be prosecuted for violation of Federal firearms laws.

Third. Clarify requirements for obtaining manufacturer, importer, and dealer licenses.

Fourth. Exempt ammunition dealers from the act's requirements.

Fifth. Restrict the right of inspection of licensees by Federal agents.

Sixth. Restrict the Treasury Department's authority to require licensees to submit reports based on records kept pursuant to the act.

Seventh. Prohibit the issuance of any regulations designed to create a central registry of firearms.

Eighth. Restrict the grounds for seizure for firearms involved in violations of the act.

Ninth. Provide the limited right to carry an unloaded, inaccessible firearm in interstate commerce from one State where possession is lawful to another where possession is also lawful.

Tenth. Permit dealers to sell guns at events sponsored by any national, State or local organization devoted to the lawful uses of firearms. Thus dealers would be allowed to sell guns at responsible, legitimate, organized gun shows where a Federal agent may easily visit and inspect to ensure lawful gun sales.

Eleventh. Close the present loophole in the 1968 act that prohibits the importation of ĺ─¨Saturday Night Specialsĺ─¨ but allows the importation of parts for these guns.

Twelfth. Close the loophole in the National Firearms Act that allows individuals to bypass Federal restrictions on the possession of automatic weapons.

Mr. President, the high level of violent crime in our country is truly a national disgrace. It is estimated that in the United States one murder occurs every 25 minutes, one forcible rape every 7 minutes, one robbery every 59 seconds and one aggravated assault every 49 seconds. I am horrified by these statistics and am committed to supporting legislation which protects the sanctity and quality of human life. My record is clear on this fact, and I will continue in my efforts to bring an end to violence both within and between nations, races, and families.

One of the questions before the Senate today is how best to decrease

 

[Begin p. 18231]

 

the number of handgun deaths in America. I have examined data from cities and counties which have implemented sweeping handgun control measures in an effort to reduce handgun deaths. At this time, I am not persuaded that broad handgun control legislation would provide the needed assistance to enforcement officials to reduce the number of deaths. However, I will continue to monitor all such data and reassess my position should such evidence demonstrably point to a successful reduction in handgun deaths 

Additionally, I will continue to support legislative efforts to control the proliferation of ĺ─¨snubbiesĺ─¨ and ĺ─¨Saturday Night Specialsĺ─¨ now menacing this country. A major study conducted by Cox News Service in 1981 found that snub-nosed guns, both cheap and expensive, domestic and foreign made, were the overwhelming weapon of choice among modern criminals. Evidence from 18 major cities indicated that two out of every three handguns used in violent crimes were handguns with barrels protruding no more than 3 inches beyond the cylinder. Furthermore, the study found that historical records show that since 1835, 10 out of 15 assassins and would-be assassins have chosen extra-small pistols in their assaults on Presidents and other political figures 

Let me also make it clear, however, that my support of legislation to restrict the production or sale of ĺ─¨snubbiesĺ─¨ will be predicated on a clear and precise definition of what kind of firearms are to be controlled. I will continue to oppose any definition which is too broad and may infringe upon the public's right to own and use legitimate handguns.

Mr. President, I supported and was a cosponsor of an almost identical measure to S. 49 introduced by the distinguished Senator from Idaho during the last Congress and I will support this bill today. As I stated before, this issue is a very emotional one and I commend all Senators involved in negotiations which have led to the Senate's consideration of S. 49. In my view, the ability of the bill to address both the legitimate concerns of gun owners and the needs of our Nation's law enforcement community has been improved as a result of the tireless efforts of these individuals.

Mr. MURKOWSKI. Mr. President, the Federal Firearms Owners Protection Act should be a turning point in the way we treat and perceive gun owners. The vast majority of gun owners, exercising their constitutional right to bear arms, are peaceful, law-abiding citizens and should be treated that way. This bill will give gun owners more freedom to enjoy our firearms without meaningless Government intrusion. At the same time this law will tighten the regulations against hardened criminals who use guns for violent acts 

In our society firearms play an important role both for recreation and for personal protection. In Alaska, other than fishing, hunting is the most popular sport. About a quarter of all Alaskans annually buy hunting licenses and most hunters use guns. The story only begins here. Guns also play a primary role of protection in Alaska's wilderness. The Alaska Department of Fish and Game advises all people who go into the ĺ─¨bushĺ─¨ to carry a sidearm.

Nationally, the reality for gun ownership is very similar to Alaska's-primarily for personal and family protection. It has been estimated that almost half of all households have a gun. The prevalent ownership of guns indicates the pervasive feeling in our country that firearms are necessary for self protection, especially when peoples' homes and families are concerned.

The present law, pursuing meaningless technical violations as opposed to criminal misuses, focuses against gun dealers and hobbyists. The Senate Subcommittee on the Constitution has found that 75 percent of Federal firearms prosecutions are clearly aimed at ordinary citizens who have neither criminal intent nor knowledge they were breaking the law. This bill would allow the Secretary of the Treasury to revoke gun dealer licenses only for willful violations of the record keeping law and not permit revocation of licenses for inadvertent errors or technical mistakes.

Every violation of the 1968 Gun Control Act is a Federal felony, there are no misdemeanors and no standards of intent. The worst criminal is no different than the citizen who makes an honest mistake. As a result, there is no incentive to go after the hardened criminals when it is just as easy to make cases involving honest law/abiding citizens. The record in a series of hearings-conducted by Senator DECONCINI and former Senator Bayh-has clearly shown that the Bureau of Alcohol, Tobacco and Firearms has been preoccupied with meaningless cases to the detriment of pursuing hardened criminals.

This law provides that all persons who commit Federal crimes of violence involving a firearm would receive a mandatory sentence. Under this law there would be no possibility of probationary sentences, parole or the sentence running concurrently with the underlying offense. Rather than the current 1-to-10 year sentence, this law would mandate a sentence of at least 5 years on the first conviction and 10 years on the second.

I hope my colleagues will join us and help redirect the Federal Gun Control Act. The time has come to remove the stigma from law abiding gun ownership and to give priority to prosecuting hardened criminals.

Mr. LEVIN. Mr. President, I will vote against S. 49 because it increases the burdens on law enforcement officials in protecting Americans from crimes committed with ĺ─¨Saturday Night Specials.ĺ─¨ I support the desire of proponents of S. 49 to eliminate or modify provisions in the 1968 law which place unreasonable or unfair regulatory requirements on dealers and on owners of guns. That is why I voted to table the Mathias amendment, which would have eliminated the requirement that reasonable notice be given prior to inspections.

However, the bill before goes beyond the question of inspections. In the final analysis the bill will make it easier for individuals to cross State lines, often in order to avoid laws of their own States, to purchase ĺ─¨Saturday Night Specials,ĺ─¨ which have no legitimate sporting purpose.

I can understand the desire of the Congress to ease excessive burdens on legitimate gun dealers. I can understand the Congress desiring to remove unnecessary impediments on the sale of rifles and long guns. But what I cannot understand is why the Congress would seek to increase the burdens on law enforcement officials by increasing the possibility that criminals will obtain ĺ─¨Saturday Night Specialsĺ─¨-for which there is only one clear purpose-a criminal purpose.

Members of the law enforcement community shared this concern. That is why they strongly supported the amendment offered by Senator KENNEDY which would have retained the existing ban on interstate sales of handguns. The International Association of Police Chiefs, the Fraternal Order of Police, and the National Black Law Enforcement Executives wrote to Members of Congress urging that current restrictions on the interstate sale of handguns be retained. According to one chief of police, lifting the current restrictions ĺ─¨. . . would have a devastating effect on law enforcement efforts. 

The easing of these restrictions was made all the more unacceptable by the defeat of the amendment which would have provided for a 14-day waiting period for those who would purchase handguns. The waiting period was endorsed by many law enforcement organizations, including the Michigan State Troopers and the Chiefs of Police in Ann Arbor, Livonia, Warren, and Detroit, among other Michigan cities. 

It is intended to keep handguns out of the hands of persons with records of violence or drug use.

Mr. President, we need to assist law enforcement officers in their effort to reduce crime. That is why I am opposing this legislation.

 

[Begin p. 18232]

 

Mr. HATCH. Mr. President, I ask for the yeas and nays on passage of S. 49.

The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.

The yeas and nays were ordered.

The PRESIDING OFFICER. Has all time been yielded back?

Mr. HATCH. I yield back my time.

Mr. KENNEDY. Mr. President, I yield back the remainder of our time.

The PRESIDING OFFICER. All time has been yielded back.

If there be no further amendments to be proposed, the question is on the engrossment and third reading of the bill.

The bill was ordered to be engrossed for a third reading and was read the third time.

The PRESIDING OFFICER. The bill having been read the third time, the question is: Shall it pass? On this question, the yeas and nays have been ordered.

The clerk will call the roll.

The legislative clerk called the roll 

Mr. SIMPSON. I announce that the Senator from Colorado <Mr. ARMSTRONG> and the Senator from Oregon <Mr. HATFIELD> are necessarily absent.

I further announce that, if present and voting, the Senator from Oregon <Mr. HATFIELD> would vote ĺ─¨yea.ĺ─¨

Mr. CRANSTON. I announce that the Senator from New Jersey <Mr. BRADLEY>, the Senator from Louisiana <Mr. LONG>, the Senator from Illinois <Mr. SIMON>, and the Senator from Mississippi <Mr. STENNIS> are necessarily absent.

The PRESIDING OFFICER (Mr. GRAMM). Are there any other Senators in the Chamber desiring to vote?

The result was announced-yeas 79, nays 15 as follows:

<Rollcall Vote No. 142 Leg.>

YEAS-79

Abdnor Andrews Baucus Bentsen Biden Bingaman Boren Boschwitz Bumpers Burdick Byrd Chiles Cochran Cohen D'Amato Danforth DeConcini Denton Dixon Dole Domenici Durenberger Eagleton East Evans Exon Ford Garn Glenn Goldwater Gore Gorton Gramm Grassley Harkin Hatch Hawkins Hecht Heflin Heinz Helms Hollings Humphrey Johnston Kassebaum Kasten Laxalt Leahy Lugar Mattingly McClure McConnell Melcher Mitchell Murkowski Nickles Nunn Packwood Pressler Proxmire Pryor Quayle Riegle Rockefeller Roth Rudman Sasser Simpson Specter Stafford Stevens Symms Thurmond Trible Wallop Warner Weicker Wilson Zorinsky

NAYS-15

Chafee Cranston Dodd Hart Inouye Kennedy Kerry Lautenberg Levin Mathias Matsunaga Metzenbaum Moynihan Pell Sarbanes

NOT VOTING-6

Armstrong Bradley Hatfield Long Simon Stennis


So the bill (S. 49), as amended, was passed as follows:

S.  49

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

That the Congress finds that the rights to keep and bear arms under the second amendment to the United States Constitution; their rights to security against illegal and unreasonable searches and seizures under the fourth amendment; the protections against uncompensated taking of property, double jeopardy, and assurance of due process of law under the fifth amendment; and the rights against unconstitutional exercise of authority under the ninth and tenth amendments; require additional legislation to correct existing firearms statutes and enforcement policies. The Congress further finds that additional legislation is required to reaffirm its intent, as expressed in section 101 of title I of the Gun Control Act of 1968, that ĺ─¨it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity, . . .ĺ─¨ or ĺ─¨to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.ĺ─¨

TITLE I-AMENDMENTS TO TITLE 18, UNITED STATES CODE (18 U.S.C. (921-928)

AMENDMENTS TO SECTION 921 SEC. 101. Section 921 of title 18, United States Code, is amended

(1) in subsection (a)(10) by deleting the words ĺ─¨manufacture ofĺ─¨ and inserting in lieu thereof the words ĺ─¨business of manufacturingĺ─¨;

(2) in subsection (a)(11)(A) by deleting the words ĺ─¨or ammunitionĺ─¨;

(3) in subsection (a)(12) by deleting the words ĺ─¨or ammunitionĺ─¨;

(4) in subsection (a)(13) by deleting the words ĺ─¨or ammunitionĺ─¨;

(5) by amending subsection (a)(20) to read as follows:

ĺ─¨(20) The term 'crime punishable by imprisonment for a term exceeding one year' shall not include (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less: Provided, however, That what constitutes a conviction shall be determined in accordance with the law of the jurisdiction in which the proceedings were held: Provided further, That any conviction which has been expunged, or set aside or for which a person has been pardoned or has had his or her civil rights restored shall not be considered a conviction under the provisions of this Act, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearmsĺ─¨; and

(6) in subsection (a) by inserting new paragraphs (21) and (22) after paragraph (20), to read as follows:

ĺ─¨(21) The term 'engaged in the business' means-

ĺ─¨(A) As applied to a manufacturer of firearms, a person who devotes time, attention, and labor to manufacturing firearms as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the firearms manufactured.

ĺ─¨(B) As applied to a manufacturer of ammunition, a person who devotes time, attention, and labor to manufacturing ammunition as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the ammunition manufactured.

ĺ─¨(C) As applied to a dealer in firearms, as defined in section 921(a)(1)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms. The term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or hobby, or who sells all or part of his personal collection of firearms.

ĺ─¨(D) As applied to a dealer in firearms, as defined in section 921(a)(11)(B), a person who devotes time, attention, and labor to engaging in such activity as a regular course of trade or business with the principal objective of livelihood and profit. The term shall not include a person who makes occasional repairs of firearms or who occasionally fits special barrels, stocks, or trigger mechanisms to firearms.

ĺ─¨(E) As applied to an importer of firearms, a person who devotes time, attention, and labor to importing firearms as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the firearms imported.

ĺ─¨(F) As applied to an importer of ammunition, a person who devotes time, attention, and labor to importing ammunition as a regular course of trade or business with the principal objective of livelihood and profit through the activity involving firearms, including the sale or other distribution of the ammunition imported.

ĺ─¨(22) The term 'with the principal objective of livelihood and profit' means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as destinguished from other intents, such as improving or liquidating a personal firearms collection.ĺ─¨.

AMENDMENTS TO SECTION 922

SEC. 102. Section 922 of title 18, United States Code, is amended-

(1) by amending subsection (a)(1) to read as follows:

ĺ─¨(1) for any person (A) except a licensed importer, licensed manufacturer, or licensed dealer to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce; and (B) except a licensed importer or licensed manufacturer to engage in the business of importing or manufacturing ammunition, or in the course of such business, to ship, transport, or receive any ammunition in interstate or foreign commerceĺ─¨;

(2) in subsection (a)(2)-

(A) by deleting the words ĺ─¨or ammunitionĺ─¨; and

(B) by deleting the words ĺ─¨or licensed dealer for the sole purpose of re-

 

[Begin p. 18233]

 

pair or customizing,ĺ─¨ and inserting in lieu thereof the words, ĺ─¨licensed dealer, or licensed collector;ĺ─¨;

(3) by amending clause (B) of subsection (a)(3) to read as follows: ĺ─¨(B) shall not apply to the transportation or receipt of a firearm obtained in conformity with the provisions of subsection (b)(3) of this section,ĺ─¨;

(4) in subsection (b)-

(A) by deleting in paragraph (2) ĺ─¨or ammunitionĺ─¨ each place it appears;

(B) by deleting clause (A) in paragraph (3) and inserting in lieu thereof the following: ĺ─¨(A) shall not apply to the sale or delivery of any firearm to a resident of a State other than a State in which the licensee's place of business is located if the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States: Provided, however, That any licensed manufacturer, importer or dealer shall be presumed, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and publish ordinances of both States,ĺ─¨;

(C) by inserting ĺ─¨andĺ─¨ before ĺ─¨(B)ĺ─¨ in paragraph 3;

(D) by striking out ĺ─¨, andĺ─¨ in clause (B) of paragraph (3) and inserting in lieu thereof a semicolon;

(E) by repealing clause (C) of paragraph (3); and

(F) by deleting from paragraph (5) ĺ─¨or ammunition except .22 rimfire ammunitionĺ─¨;

(5) in subsection (d)-

(A) by deleting ĺ─¨licensed importer, licensed manufacturer, licensed dealer, or licensed collectorĺ─¨ the first time they appear and inserting in lieu thereof ĺ─¨personĺ─¨;

(B) by amending paragraph (3) to read as follows:

ĺ─¨(3) is an unlawful user of or addicted to marijuana or any depressant or stimulant substance or narcotic drug (as those terms are defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));ĺ─¨;

(C) by replacing the period in paragraph (4) with a semicolon; and

(D) by inserting after paragraph (4) the following:

ĺ─¨(5) who, being an alien, is illegally or unlawfully in the United States;

ĺ─¨(6) who has been discharged from the Armed Forces under dishonorable conditions; or

ĺ─¨(7) who, having been a citizen of the United States, has renounced his citizenship.ĺ─¨;

(6) in subsection (g)-

(A) by deleting the words ĺ─¨is under indictment for, or whoĺ─¨ in paragraph (1);

(B) by amending paragraph (3) to read as follows:

ĺ─¨(3) is an unlawful user of or addicted to marijuana or any depressant or stimulant substance or narcotic drug (as those terms are defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))ĺ─¨;

(C) by inserting after paragraph (4) the following:

ĺ─¨(5) who, being an alien, is illegally or unlawfully in the United States;

ĺ─¨(6) who has been discharged from the Armed Forces under dishonorable conditions; or

ĺ─¨(7) who, having been a citizen of the United States, has renounced his citizenship;ĺ─¨; and

(D) by deleting the words ĺ─¨to ship or transport any firearm or ammunition in interstate or foreign commerceĺ─¨ and inserting in lieu thereof the words ĺ─¨to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which had been shipped or transported in interstate or foreign commerce.ĺ─¨;

(7) in subsection (h)-

(A) by inserting after the word ĺ─¨anyĺ─¨ and before the word ĺ─¨personĺ─¨ the words ĺ─¨individual who to his knowledge and while being employed by anyĺ─¨;

(B) by deleting the words ĺ─¨is under indictment for, or whoĺ─¨ in paragraph (1);

(C) by amending paragraph (3) to read as follows:

ĺ─¨(3) is an unlawful user of or addicted to marijuana or any depressant or stimulant substance or narcotic drug (as those terms are defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));ĺ─¨;

(D) by inserting after paragraph (4) the following:

ĺ─¨(5) who, being an alien, is illegally or unlawful in the United States;

ĺ─¨(6) who has been discharged from the Armed Forces under dishonorable conditions; or

ĺ─¨(7) who having been a citizen of the United States, has renounced his citizenship;ĺ─¨; and

(E) by deleting the words ĺ─¨to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerceĺ─¨ and inserting in lieu thereof the words ĺ─¨in the course of such employment to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.ĺ─¨; and

(8) by inserting after subsection (m) a new subsection to read as follows:

ĺ─¨(n) It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.ĺ─¨.

AMENDMENTS TO SECTION 923

SEC. 103. Section 923 of title 18, United States Code, is amended-

(1)(A) in subsection (a)-

(i) by deleting the words ĺ─¨No person shall engage in business as a firearms or ammunition importer, manufacturer, or dealer until he has filed an application with, and received a license to do so from the Secretary.ĺ─¨ and inserting in lieu thereof the words ĺ─¨No person shall engage in the business of importing, manufacturing, or dealing in firearms, or importing or manufacturing ammunition, until he has filed an application with and received a license to do so from the Secretary.ĺ─¨; and

(ii) by deleting the words ĺ─¨and contain such informationĺ─¨, and inserting in lieu thereof the words ĺ─¨and contain only that information necessary to determine eligibility for licensing.ĺ─¨;

(B) in subsection (a)(3)(B) by deleting the words ĺ─¨or ammunition for firearms other than destructive devicesĺ─¨;

(2) in subsection (b) by striking out ĺ─¨and contain such informationĺ─¨, and inserting in lieu thereof ĺ─¨and contain only that information necessary to determine eligibility for licensingĺ─¨;

(3) in subsection (c) by adding at the end thereof the following: ĺ─¨Provided, however, That nothing in this chapter shall be construed to prohibit a licensed manufacturer, importer, or dealer from maintaining and disposing of a personal collection of firearms, subject only to such restrictions as apply in this chapter to dispositions by a person other than a licensed manufacturer, importer, or dealer: Provided further, That if any firearm is in a licensee's personal collection disposed of by a licensee within one year of its transfer from his business inventory into his personal collection or if such transfer is made for the purpose of willfully evading the restrictions placed upon licensees by this chapter, then such firearm shall be deemed part of his business inventory.ĺ─¨;

(4) in subsection (e) by inserting before the word ĺ─¨violatedĺ─¨ the word ĺ─¨ willfullyĺ─¨;

(5) in subsection (f)-

(A) by inserting the words ĺ─¨de novoĺ─¨ before the word ĺ─¨judicialĺ─¨ in paragraph (3);

(B) by adding the words ĺ─¨, whether or not such evidence was considered at the hearing held under paragraph (2).ĺ─¨ after the words ĺ─¨to the proceedingĺ─¨ in paragraph (3); and

(C) by inserting at the end thereof the following new paragraph:

ĺ─¨(4) If criminal proceedings are instituted against a licensee alleging violations of this chapter or regulations promulgated thereunder, and the licensee is acquitted of such charges, or such proceedings are terminated, other than upon motion of the Government prior to trial upon such charges, the Secretary shall be absolutely barred from denying or revoking any license granted under the provisions of this chapter where such denial or revocation is based in whole or in part on the facts which form the basis of such criminal charges. No proceedings for the revocation of a license shall be instituted by the Secretary more than one year after the filing of the indictment or information.ĺ─¨;

(6) by amending subsection (g) to read as follows:

ĺ─¨(g)(1) Each licensed importer, licensed manufacturer, and licensed dealer, shall maintain such records of importation, production, shipment, receipt, sale, or other disposition, of firearms at his place of business for such period, and in such form, as the Secretary may by regulations prescribe. Such importers, manufacturers and dealers shall not be required to submit to the Secretary reports and information with respect to such records and the contents thereof, except as expressly required by this section. The Secretary, when he has reasonable cause to believe a violation of this law has occurred, and that evidence thereof may be found on such premises may, upon demonstrating such cause before a Federal magistrate, and securing from him a warrant authorizing entry, enter during business hours the premises (including places of storage) of any licensed firearms importer, licensed manufacturer, licensed dealer, licensed collector or any licensed importer or manufacturer of ammunition, for the purposes of inspecting or examining (1) any records or documents required to be kept by such licensed importer, licensed manufacturer, licensed dealer, or licensed collector under the provisions of this chapter or regulations issued under this chapter, and (2) any firearms or ammuninition kept or stored by such licensed importer, licensed manufacturer, licensed dealer, or licensed collector, at such premises. The Secretary may inspect or examine the inventory and records of a licensed imported, licensed manufacturer or licensed dealer without such cause or warrant, (A) in the course of a reasonable inquiry during the course of a criminal investigation of a person or persons other than the licensee; or (B) no more than once in


[Begin p. 18234]

 

 any twelve consecutive months, upon reasonable notice, but no criminal charges shall be brought against the licensee based upon such inspection except for willful violations of the recordkeeping requirements of this chapter or sales or other dispositions of firearms in violation of section 922(d); or (C) when such inspection or examination may be required for determining the disposition of one or more particular firearms in the course of a bona fide criminal investigation. The Secretary may inspect the inventory and records of a licensed collector without such reasonable cause or warrant (A) no more than once in any twelve consecutive month period, upon reasonable notice, but no criminal charges shall be brought against such licensee based upon such inspection except for willful violations of the recordkeeping requirements of this chapter or sales or other dispositions of firearms to prohibited persons; or (B) when such inspection or examination may be required for determining the disposition of one or more particular firearms in the course of a bona fide criminal investigation. At the election of a licensed collector, the annual inspection of records and inventory permitted under this paragraph shall be performed at the office of the Secretary designated for such inspections which is located in closest proximity to the premises where the inventory and records of such licensed collector are maintained. The inspection and examination authorized by this subsection shall not be construed as authorizing the Secretary to seize any records or other documents other than those records or documents constituting material evidence of a violation of law. If the Secretary seizes such records or documents, copies shall be provided the licensee within a reasonable time. The Secretary may make available to any Federal, State, or local law enforcement agency any information which he may obtain by reason of the provisions of this chapter with respect to the identification of persons prohibited from purchasing or receiving firearms or ammunition who have purchased or received firearms or ammunition, together with a description of such firearms or ammunition and he may provide information to the extent such information may be contained in the records required to be maintained by the provisions of this chapter, when so requested by any Federal, State, or local law enforcement agency.

ĺ─¨(2) Each licensed collector shall maintain in a bound volume the nature of which the Secretary may by regulations prescribe, records of the receipt, sale, or other disposition, of firearms. Such records shall include the name and addresses of any person to whom the collector sells or otherwise disposes of a firearm. Such collector shall not be required to submit to the Secretary reports and information with respect to such records and the contents thereof, except as expressly required by this section.

ĺ─¨(3)(A) Within thirty days of the absolute discontinuance of the business of a licensee, any records maintained by such licensee under this chapter shall be delivered to the joint custody of the Archivist of the United States and the Secretary to be stored in a records center maintained and operated by the Archivist, unless State law or local ordinance requires delivery to another authority, in which event the Archivist and the Secretary may arrange for delivery to such authority.

ĺ─¨(B) The Secretary shall have access to records stored under this paragraph solely for the purposes of determining from whom a licensee acquired a firearm and to whom such licensee disposed of such firearm, organizing and preserving such records, and certifying to facts on the basis of such records in any court or any administrative proceeding of the United States or of any State. The Secretary may remove such records from the record center maintained by the Archivist only in connection with proceedings in any court or any administrative proceeding of the United States or of any State.

ĺ─¨(C) The Archivist may promulgate regulations governing the storage, processing and servicing of records stored under this paragraph: Provided, That no such regulations may restrict the authority of the Secretary under this paragraph to have access to or to remove such records.

ĺ─¨(D) Notwithstanding any other provision of law, the Archivist shall dispose of records kept by licensed dealers and licensed collectors, and records relating to the disposition of firearms kept by manufacturers and importers, and stored under this paragraph twenty years after such records are received by the Archivist and the Secretary.

ĺ─¨(4)(A) Each licensee shall, when required by letter issued by the Secretary, and until notified to the contrary in writing by the Secretary, submit on a form specified by the Secretary, for the periods and at the times specified in such letter, all record information required by this chapter or such lesser record information as the Secretary in his letter may specify.

ĺ─¨(B) The Secretary may authorize the information to be submitted in a manner other than that prescribed in subparagraph (A) of this paragraph when it is shown by a licensee that an alternate method of reporting is reasonably necessary and will not unduly hinder the effective administration of this chapter.

ĺ─¨(C) No warrant shall issue nor shall any criminal charges be brought against the licensee based solely upon information provided pursuant to the provisions of this paragraph.

ĺ─¨(5)(A) Each licensee shall prepare a report of multiple sales or other disposition whenever the licensee sells or otherwise disposes of, at one time or during any five consecutive business days, two or more pistols, or revolvers, or any combination of pistols and revolvers totaling two or more, to an unlicensed person. The report shall be prepared on a form specified by the Secretary and forwarded to the office specified thereon not later than the close of business on the day that the multiple sale or other disposition occurs.

ĺ─¨(B) Ten years after receiving any report submitted under subparagraph (A) of this paragraph, the Secretary shall deliver such report to the joint custody of the Archivist of the United States and the Secretary to be stored in a records center maintained and operated by the Archivist, subject to the provisions of section 923(g)(3) (B) and (C) of this title. Notwithstanding any other provision of law, the Archivist shall dispose of records stored under this subparagraph ten years after such records are received by the Archivist and the Secretary.

ĺ─¨(C) No record, form, or information delivered, submitted, or forwarded pursuant to this paragraph or paragraph (3) or (4) of this subsection may be kept by the Secretary at a centralized location, nor shall it be entered into a computer for storage or retrieval.ĺ─¨; and

(7) by amending subsection (j) to read as follows:

ĺ─¨(j) A licensed importer, licensed manufacturer, or licensed dealer may, under regulations prescribed by the Secretary, conduct business temporarily at a location other than the location specified on the license if such temporary location is the location for a gun show or event sponsored by any national, State, or local organization, or any affiliate of any such organization devoted to the collection, competitive use, or other sporting use of firearms, or an organization or association that sponsors events devoted to the collection, competitive use or other sporting use of firearms in the community, and such location is in the State which is specified on the license. Records of receipt and disposition of firearms transactions conducted at such temporary location shall include the location of the sale or other disposition and shall be entered in the permanent records of the licensee and retained on the location specified on the license. Nothing in this subsection shall authorize any licensee to conduct business in or from any motorized or towed vehicle. Notwithstanding the provisions of subsection (a) of this section, a separate fee shall not be required of a licensee with respect to business conducted under this subsection. Except for records directly related to receipts, sales, or other dispositions of firearms made at the temporary premises within the period of time the licensed importer, licensed manufacturer, or licensed dealer conducted the business of which such receipts, sales, or other dispositions were a part, nothing in this subsection shall be construed to authorize the Secretary to inspect or examine the inventory or records of a licensed importer, licensed manufacturer, or licensed dealer at any location other than the location specified on the license. Nothing in this subsection shall be construed to diminish in any manner any right to display, sell or otherwise dispose of firearms or ammunition which is in effect prior to the date of enactment of the Act entitled 'An Act to protect firearms owners' constitutional rights, civil liberties, and rights to privacy'.ĺ─¨.

AMENDMENTS TO SECTION 924

SEC. 104. Section 924 of title 18, United States Code, is amended-

(1) by amending subsection (a) to read as follows:

ĺ─¨(a)(1) Whoever-

ĺ─¨(A) other than a licensed dealer, licensed importer, licensed manufacturer, or licensed collector knowingly makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under the provisions of this chapter;

ĺ─¨(B) knowingly makes any false statement or representation in applying for any license or exemption or relief from disability under the provisions of this chapter;

ĺ─¨(C) knowingly violates subsections (a)(4), (a)(6), (f), (g), (h), (i), (j), or (k) of section 922;

ĺ─¨(D) knowingly imports or brings into the United States or any possession thereof any firearms or ammunition in violation of section 922(l);

ĺ─¨(E) knowingly violates any provision of this section; or

ĺ─¨(F) willfully violates any other provision of this chapter.

shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine.

ĺ─¨(2) Any licensed dealer, licensed importer, licensed manufacturer, or licensed collector who knowingly-

 

[Begin p. 18235]

ĺ─¨(A) makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this chapter, or

ĺ─¨(B) violates subsection (m) of section 922,

shall be fined not more than $1,000, or imprisoned not more than one year, or both, and shall become eligible for parole as the Board of Parole shall determine.ĺ─¨.

(2) by amending subsection (c) to read as follows:

ĺ─¨(c)(1) Whoever, during and in relation to any felony, described in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), of section 1 of the Act of September 15, 1980 (94 Stat. 1159; 21 U.S.C. 855a), or any crime of violence, including a crime of violence which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device, for which he may be prosecuted in a court of the United States, uses a firearm, or carries a firearm in furtherance of any such crime of violence, shall, in addition to the punishment provided for such felony described in the Controlled Substances Act (21 U.S.C. 801 et seq.) the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or section 1 of the Act of September 15, 1980 (94 Stat. 1159; 21 U.S.C. 855a), or crime of violence, be sentenced to imprisonment of a term of five years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for a term of ten years. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the felony described in the Controlled Substances Act (21 U.S.C. 801), the Controlled Substances Import and Export Act (21 U.S.C. 951), or section 1 of the Act of September 15, 1988 (94 Stat. 1159; 21 U.S.C. 855a), or crime of violence in which the firearm was used or carried. No person sentenced under this subsection shall be eligible for parole during the term of imprisonment imposed herein: Provided, That no person shall be sentenced under this subsection if he establishes to the satisfaction of the court that the use of the firearm was to protect his person or the person of another from perceived immediate danger, other than the danger which was the direct result of the commission of or attempt to commit a felony by either such person, and the court finds that the perceived immediate danger was so perceived in good faith and that a sentence under this section would constitute a severe and substantial miscarriage of justice. The court must provide in writing each finding of fact and law necessary to establish the applicability of this proviso.

ĺ─¨(2) For purposes of this subsection the term 'crime of violence' means an offense that is a felony and-

ĺ─¨(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

ĺ─¨(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.ĺ─¨.

(3) by amending subsection (d) to read as follows:

ĺ─¨(d)(1) Any firearm or ammunition involved in or used in any knowing violation of subsection (a)(4), (a)(6), (f), (g), (h), (i), (j), or (k) of section 922, or knowing importation or bringing into the United States or any possession thereof any firearm or ammunition in violation of section 922(l), or knowing violation of section 924, or willful violation of any other provision of this chapter or any rule or regulation promulgated thereunder, or any violation of any other criminal law of the United States, or any firearm of ammunition intended to be used in any offense referred to in paragraph (3) of this subsection, where such intent is demonstrated by clear and convincing evidence, shall be subject to seizure and forfeiture, and all provisions of the Internal Revenue Code of 1954 relating to the seizure, forfeiture, and disposition of firearms, as defined in section 5845(a) of that Code, shall, so far as applicable, extend to seizures and forfeitures under the provisions of this chapter: Provided, That upon acquittal of the owner or possessor, or dismissal of the charges against him other than upon motion of the Government prior to trial, the seized firearms or ammunition shall be returned forthwith to the owner or possessor or to a person delegated by the owner or possessor unless the return of the firearms or ammunition would place the owner or possessor or his delegate in violation of law. Any action or proceeding for the forfeiture of firearms or ammunition shall be commenced within one hundred and twenty days of such seizure.

ĺ─¨(2)(A) In any action or proceeding for the return of firearms or ammunition seized under the provisions of this chapter, the court shall allow the prevailing party, other than the United States, a reasonable attorney's fee, and the United States shall be liable therefor.

ĺ─¨(B) In any other action or proceeding under the provisions of this chapter, the court, when it finds that such action was without foundation, or was initiated vexatiously, frivolously, or in bad faith, shall allow the prevailing party, other than the United States, a reasonable attorney's fee, and the United States shall be liable therefor.

ĺ─¨(C) Only those firearms or quantities of ammunition particularly named and individually identified as involved in or used in any violation of the provisions of this chapter or any rule or regulation issued thereunder, or any other criminal law of the United States, or as intended to be used in any offense referred to in paragraph (3) of this subsection, where such intent is demonstrated by clear and convincing evidence, shall be subject to seizure, forfeiture, and disposition.ĺ─¨.

ĺ─¨(3) The offenses referred to in paragraph (1) and (2)(C) of this subsection are-

ĺ─¨(A) any crime of violence, as that term is defined in section 924(c)(2) of this title;

ĺ─¨(B) any offense punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.) or the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.);

ĺ─¨(C) any offense described in section 922(a)(1), 922(a)(3), 922(a)(5), or 922(b)(3) of this title, where the firearm or ammunition intended to be used in any such offense is involved in a pattern of activities which includes a violation of any offense described in section 922(a)(1), 922(a)(3), 922(a)(5), or 922(b)(3) of this title;

ĺ─¨(D) any offense described in section 922(d) of this title where the firearm or ammunition is intended to be used in such offense by the transferor of such firearm or ammunition;

ĺ─¨(E) any offense described in section 922(i), 922(j), 922(l), 922(n), or 924(b) of this title; and

ĺ─¨(F) any offense which may be prosecuted in a court of the United States which involves the exportation of firearms or ammunition.ĺ─¨.

AMENDMENTS TO SECTION 925

SEC. 105. Section 925 of title 18, United States Code, is amended-

(1) in subsection (c)-

(A) by deleting the words ĺ─¨has been convicted of a crime punishable by imprisonment for a term exceeding one year (other than a crime involving the use of a firearm or other weapon or a violation of this chapter or of the National Firearms Act)ĺ─¨ and inserting in lieu thereof the words ĺ─¨is prohibited from possessing, shipping, transporting, or receiving firearms or ammunitionĺ─¨;

(B) by inserting the word ĺ─¨transportationĺ─¨ after the word ĺ─¨shipmentĺ─¨;

(C) by deleting the words ĺ─¨and incurred by reason of such conviction,ĺ─¨, and

(D) by adding after the words ĺ─¨the public interest.ĺ─¨ the words ĺ─¨Any person whose application for relief from disabilities is denied by the Secretary may file a petition with the United States district court for the district in which he resides for a judicial review of such denial. In a proceeding conducted under this subsection, the scope of judicial review shall be governed by section 706 of title 5, United States Code. The court may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice.ĺ─¨; and

(2) in subsection (d)-

(A) by deleting the words ĺ─¨may authorizeĺ─¨ and inserting in lieu thereof the words ĺ─¨shall authorizeĺ─¨;

(B) by deleting the words ĺ─¨the person importing or bringing in the firearm or ammunition establishes to the satisfaction of the Secretary thatĺ─¨; and

(C) by inserting before the semicolon in paragraph (3) the following: ĺ─¨, except in any case where the Secretary has not authorized the importation of the firearm pursuant to this paragraph, it shall be unlawful to import any frame, receiver, or barrel of such firearm which would be prohibited if assembledĺ─¨; and

(D) by deleting the words ĺ─¨may permitĺ─¨ and inserting in lieu thereof the words ĺ─¨shall permitĺ─¨.

AMENDMENTS TO SECTION 926

SEC. 106. Section 926 of title 18, United States Code, is amended by-

(1) inserting ĺ─¨(a)ĺ─¨ before ĺ─¨The Secretaryĺ─¨ the first place it appears;

(2) inserting the word ĺ─¨onlyĺ─¨ after the word ĺ─¨prescribeĺ─¨;

(3) deleting the words ĺ─¨as he deems reasonableĺ─¨ and inserting in lieu thereof the words ĺ─¨as areĺ─¨;

(4) deleting the words ĺ─¨The Secretary shall give reasonable public notice, and afford interested parties opportunity for hearing, prior to prescribing such rules and regulationsĺ─¨ and inserting in lieu thereof the words: ĺ─¨Provided, That no such rule or regulation promulgated after the effective date of this Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established: Provided further, That nothing in this section shall be deemed to expand or restrict the Secretary's authority to inquire into the disposition of one or more firearms pursuant to a criminal investigation.ĺ─¨; and

(5) inserting at the end thereof the following:

ĺ─¨(b) The Secretary shall give not less than ninety days public notice, and shall afford interested parties opportunity for hearing, prior to prescribing such rules and regulations.

ĺ─¨(c) The Secretary shall not prescribe regulations that require purchasers of black powder under the exemption provided in section 845(a)(5) of title 18, United States Code, to complete affidavits or forms attesting to that exemption.ĺ─¨.

TRANSPORTATION OF FIREARMS

SEC. 107. (a) Chapter 44 of title 18, United States Code, is amended by inserting between section 926 and section 927 the following new section:

ĺ─¨s 926A. Interstate transportation of firearms

ĺ─¨Any person not prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport an unloaded, not readily accessible firearm in interstate commerce notwithstanding any provision of any legislation enacted, or any rule or regulation promulgated by an State or political subdivision thereof.ĺ─¨.

(b) The table of sections for chapter 44 of title 18, United States Code, is amended by inserting between the item relating to section 926 and the item relating to section 927 the following new item:

ĺ─¨926A. Interstate transportation of firearms.ĺ─¨.

EFFECTIVE DATE

SEC. 108. (1) All amendments (including any repeals) made by this Act shall become effective one hundred and eighty days after the date of enactment of this Act. At that time the Secretary shall publish and provide to all licensees a compilation of the State laws and published ordinances of which licensees are presumed to have knowledge pursuant to chapter 44 of title 18, United States Code, as amended by this Act. All amendments to such State laws and published ordinances as contained in the aforementioned compilation shall be published in the Federal Register, revised annually, and furnished to each person licensed under chapter 44 of title 18, United States Code, as amended by this Act.

(2) The provisions of section 103(5)(C), 104(2), 105, and 107 of this Act shall be applicable to any action, petition, or appellate proceeding pending on the effective date of this Act. In considering any petitions for Presidential pardons submitted by persons convicted of violations of chapter 44 of title 18, United States Code, prior to the effective date of this Act, the Congress recommends that consideration be given to whether the violation would have been punishable under this Act, and to the purposes and findings contained in the preamble thereto. 

TITLE II-AMENDMENTS TO TITLE VII OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968

SEC. 201. Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 (sections 1201, 1202, and 1203 of the appendix to title 18, United States Code) is hereby amended to read as follows:

ĺ─¨SEC. 1201. (a) In the case of a person who violates section 922(g) of title 18, United States Code, and who has three previous convictions by any court referred to in section 922(g)(1) of title 18, United States Code, for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g) of title 18, United States Code, and such person shall not be eligible for parole with respect to the sentence imposed under this subsection.

ĺ─¨(b) As used in this title-

ĺ─¨(1) 'robbery' means any crime punishable by a term of imprisonment exceeding one year and consisting of the taking of the property of another from the person or presence of another by force or violence, or by threatening or placing another person in fear that any person will imminently be subjected to bodily injury; and

ĺ─¨(2) 'burglary' means any crime punishable by a term of imprisonment exceeding one year and consisting of entering or remaining surreptitiously within a building that is property of another with intent to engage in conduct constituting a Federal or State offense.ĺ─¨.

Mr. HATCH. Mr. President, at the conclusion of this historic debate, I pause to express my deep appreciation to those who have been key to this bill to protect vital second amendment rights. First and foremost has to be Senator MCCLURE, who is the author of the bill, who has worked many hours, days, months, and years to bring about these second amendment right protections. Without him, we would not have had the bill on the floor, and I personally express my appreciation and my esteem for my colleague from Idaho. Senator THURMOND, who devoted tireless hours to hearings and markups in the Judiciary Committee, made this debate possible, and I think he deserves a great deal of credit. Senator DOLE was key to the consideration in the Judiciary Committee last year and scheduled it as majority leader this year. I personally very much appreciate his work. Others in the Judiciary Committee were essential to this debate. For instance, Senators KENNEDY, BIDEN, LAXALT, EAST, GRASSLEY, and others.

On the House side, we owe our thanks to Congressman HAROLD VOLKMER, who has for years championed this bill. We appreciate the work he has done, and we hope he feels good about this action today.

We received great assistance from the Reagan administration and the President himself. In particular, we should commend Deputy Assistant Secretary of the Treasury, Ed Stevenson, and general counsel at BATF, Jack Patterson.

Finally, I think we would be remiss to overlook those competent Senate staff members who have devoted years to amending and mastering our complex Federal firearms laws:

Steve Dillingham, with Senator THURMOND; Scott Green, with Senator BIDEN; Mike Hammond and Nancy Norell with Senator MCCLURE; Ed Correia, with Senator METZENBAUM, Sheila Bair, with Senator DOLE, and last but not least my own staffer who has devoted so many hours and so much time and effort and expertise to this, Randy Rader. I personally thank him and express my appreciation for the support he has given me on this bill.

Mr. THURMOND. Mr. President, I am very pleased that this legislation has finally passed. It has been hanging around for several years. Senator MCCLURE introduced this bill. We held hearings in the Judiciary Committee and finally reported it out several years ago, but it never did pass the Congress. I commend him as the author of this bill for the hard work he has done in connection with it.

I should also like to commend the able Senator from Utah, the member of the Judiciary Committee whom I appointed to handle this bill on the floor of the Senate, for the skilled manner in which he has handled it. He is an able legislator and did a fine job.

I wish to also express my appreciation to our able majority leader for scheduling this bill and the excellent cooperation he has given in connection with it.

The Judiciary Committee, I think, is to be commended, various members whose names I will not take time to call. The administration is to be commended and others who had a part in it. I think we have a splendid piece of legislation, and I hope it passes the entire Congress.

Mr. McCLURE. Mr. President, I know that what I am about to say will be repetitious of what has been said by the distinguished floor manager of the bill, but I cannot help but add my own words of appreciation to those who have made it possible for us to get to the point of passage of this legislation.

Congress, in 1968, passed what was then known as the 1968 Gun Control Act. As I said in my remarks earlier, the title itself says what is wrong with it because it focused attention on the object rather than the misuse of the object.

This bill today is indeed a firearm owner's protection act, but it is also a crime control bill, not a gun control bill.

I wish to thank the distinguished Senator from South Carolina, the chairman of the Judiciary Committee <Mr. THURMOND>, for his help not just today, not just this year but over the last 2 or 3 years as we worked to get this bill through the committee to the point where we could bring it to the floor where, as has been demonstrated today, it has overwhelming support. I, too, thank my distinguished colleague from Utah, the floor manager of the bill, a member of the Judiciary Committee without whose help it would have been impossible to get to this point.

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There are several parts of the bill that have his stamp on them. He has improved the bill as a result of amendments he offered in the Judiciary Committee last year which we were able to work out and integrate into the bill which I had proposed earlier.

Also, I thank the distinguished majority leader, without whose assistance this measure would not have been on the floor today for consideration. We have sought this opportunity for a long time, and with his help we have received that opportunity.

While we are talking about those who are deserving of thanks, I want to add my thanks to Ed Stevenson, of the Treasury Department and Jack Patterson with the BATF, because they have been very helpful and steadfast in that help in getting us to this point.

I should like to add to the list of those who have been thanked on the staff-and I join in the thanks Senator HATCH has expressed to the committee staff members-my own personal staff: Mike Hamm and Nancy Norell, who have worked with me for many years on this particular issue.

Also, there are some outside individuals and organizations that deserve some commendation, and it is difficult to know where to start. In writing down my list of those to thank, I decided that the best way I could do it was to do it alphabetically and therefore run the risk of offending everyone rather than just one or two. But without the help of these organizations, we would not have gotten to the point we are at today.

The Citizens for the Right to Keep and Bear Arms, John Snyder; the Firearm Hard Core, with Neil Knox, a former member of the staff of NRA; the Gunowners of America, with Larry Pratt. The National Rifle Association, with its former executive vice president, Harlan Carter, who in the past gave us invaluable assistance, and its current executive vice president, Ray Arnett.

I know that much will be written about this bill and the vote today, and there will be a lot of talk about the success of the gun lobby. With due respect to the organizations I have just listed, they would be the first to say that, while their contributions were important, the real strength did not lie in a Washington lobby. It lies in the grassroots of America. It lies with the millions of Americans who own firearms and cherish the right to own firearms, as well as the millions of Americans who believe that the second amendment to the Constitution of the United States means what they believe it to say-that the Constitution guarantees to all citizens the right to keep and bear arms. It is to those millions of Americans across this land, who have let their Senators know where they stand on the issue, that the victory today belongs.

I very much appreciate the steadfast support we have had and that I have had personally over the many years it has taken us to get to this point

Mr. DOLE. Mr. President, I will not take much time of the Senate, but I want to express my thanks to the distinguished chairman of the committee, Senator THURMOND, and to the cosponsors of the bill, the Senator from Utah <Mr. HATCH> and the Senator from Idaho <Mr. MCCLURE>.

I recall discussing this matter less than 30 days ago with the Senator from Idaho, the Senator from Utah, and the Senator from South Carolina in my office and deciding that it was probably time to face up to this issue.

I believe that the overwhelming bipartisan vote indicates the support this bill has had for probably longer than we would like to think about.

I must say that without the cooperation of Senators on both sides of the aisle who may have voted against final passage but, nonetheless, voted to give us a time agreement, and such organizations as Handgun Control, Inc., who worked with us to get time agreements on certain areas, we probably could have spent several days or a week or longer on this measure

It is an effort that involved many Senators, including the distinguished Senator from Massachusetts <Mr. KENNEDY>, who has a different final view but was willing, with the Senator from Ohio <Mr. METZENBAUM> and others, to let us proceed.

Mr. MCCLURE. Mr. President, will the Senator yield?

Mr. DOLE. I yield.

Mr. MCCLURE. I had intended to include a remark, a portion of which the distinguished majority leader just made, to make a public note of thanks to Senator KENNEDY. Although he has a different view of what the legislation should be, he was a perfect gentleman at every stage and was very helpful in getting us to the point where we could act on the measure. I appreciate that, and I would be remiss if I had not noted it.

Mr. DOLE. I underscore the cooperation we have had. The distinguished minority leader has been most helpful. We took care of a number of amendments on this bill prior to the recess, thanks to the minority leader, who worked that out for us, and we were able to complete it today.

We have spent a number of hours on this bill, but it is very important legislation, and I believe there should be a clear signal to the House that there is strong bipartisan support. The 79-to-15 vote will indicate that there is a significant majority on each side of the aisle in support of this legislation. I urge my House colleagues not only to look at the vote, but also to look at the debate. There were a number of outstanding debates on this measure during the session today and prior to the recess.

So I am very thankful to my colleagues for asking me to push this legislation. We were pleased to schedule it. It has been a long time coming.

Again, I congratulate the managers of the bill, Senator MCCLURE and Senator HATCH, and the distinguished chairman of the committee, Senator THURMOND, as well as all the staff who worked on it. We sometimes overlook the staff. We recognize each individual and appreciate their assistance. 

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