
>   There is a publication in which Congress, the Senate that is,
>   researched and found conclusions on the 2nd Amendment. It
>   was done in Feburary 1982, 97th Congress second session.
>   
>   Report title is...
>          "The Right to Keep and Bear Arms"
  
>          Report of the
>          Subcommittee on the Constitution of the
>          Committee on the Judiciary.
  
>          Document 88-618.
  
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97th Congress
 2d Session                COMMITTEE PRINT


     T H E   R I G H T   T O   K E E P   A N D   B E A R   A R M S

                               ________


                                REPORT
                                of the
                   SUBCOMMITTEE ON THE CONSTITUTION
                                of the
                      COMMITTEE ON THE JUDICIARY
                         UNITED STATES SENATE
                        NINETY-SEVENTH CONGRESS
                            SECOND SESSION


is the following interesting "sideline" text:


            ENFORCEMENT OF FEDERAL FIREARMS LAWS FROM THE
                PERSPECTIVE OF THE SECOND AMENDMENT

   Federal involvement in firearms possession and transfer was not
significant prior to 1934, when the National Firearms Act was
adopted. The National Firearms Act as adopted covered only fully
automatic weapons (machine guns and submachine guns) and rifles
and shotguns whose barrel length or overall length fell below
certain limits. Since the Act was adopted under the revenue power,
sale of these firearms was not made subject to a ban or permit
system. Instead, each transfer was made subject to a $200 excise
tax, which must be paid prior to transfer; the identification of the
parties to the transfer indirectly accomplished a registration pur-
pose.
   The 1934 Act was followed by the Federal Firearms Act of 1938,
which placed some limitations upon sale of ordinary firearms. Per-
sons engaged in the business of selling those firearms in interstate
commerce were required to obtain a Federal Firearms License, at
an annual cost of $1, and to maintain records of the name and
address of persons to whom they sold firearms. Sales to persons
convicted of violent felonies were prohibited, as were interstate
shipments to persons who lacked the permits required by the law of
their state.
   Thirty years after adoption of the Federal Firearms Act, the Gun
Control Act of 1968 worked a major revision of federal law. The
Gun Control Act was actually a composite of two statutes. The first
of these, adopted as portions of the Omnibus Crime and Safe
Streets Act, imposed limitations upon imported firearms, expanded
the requirement of dealer licensing to cover anyone "engaged in
the business of dealing" in firearms, whether in interstate or local
commerce, and expanded the recordkeeping obligations for dealers.
It also imposed a variety of direct limitations upon sales of hand-
guns. No transfers were to be permitted between residents of differ-
ent states (unless the recipient was a federally licensed dealer),
even where the transfer was by gift rather than sale and even
where the recipient was subject to no state law which could have
been evaded. The category of persons to whom dealers could not
sell was expanded to cover persons convicted of any felony (other
than certain business-related felonies such as antitrust violations),
persons subject to a mental commitment order or finding of mental
incompetence, persons who were users of marijuana and other
drugs, and a number of other categories. Another title of the Act
defined persons who were banned from possessing firearms. Para-
doxically, these classes were not identical with the list of classes
prohibited from purchasing or receiving firearms.
   The Omnibus Crime and Safe Streets Act was passed on June 5,
1968, and set to take effect in December of that year. Barely two
weeks after its passage, Senator Robert F. Kennedy was assassinat-
ed while campaigning for the presidency. Less that a week after
his death, the second bill which would form part of the Gun Con-
trol Act of 1968 was introduced in the House. It was reported out of
Judiciary ten days later, out of Rules Committee two weeks after
that, and was on the floor barely a month after its introduction.
the second bill worked a variety of changes upon the original Gun
Control Act. Most significantly, it extended to rifles and shotguns
the controls which had been imposed solely on handguns, extended
the class of persons prohibited from possessing firearms to include
those who were users of marijuana and certain other drugs, ex-
panded judicial review of dealer license revocations by mandating a
de novo hearing once an appeal was taken, and permitted inter-
state sales of rifles and shotguns only where the parties resided in
contiguous states, both of which had enacted legislation permitting
such sales. Similar legislation was passed by the Senate and a
conference of the Houses produced a bill which was essentially a
modification of the House statute. This became law before the
Omnibus Crime Control and Safe Streets Act, and was therefore
set for the same effective date.
   Enforcement of the 1968 Act was delegated to the Department of
the Treasury, which had been responsible for enforcing the earlier
gun legislation. This responsibility was in turn given to the Alcohol
and Tobacco Tax Division of the Internal Revenu Service. This
division had traditionally devoted itself to the pursuit of illegal
producers of alcohol; at the time of enactment of the Gun Control
Act, only 8.3 percent of its arrests were for firearms violations.
Following enactment of the Gun Control Act the Alcohol and To-
bacco Tax Division was retitled the Alcohol, Tobacco and Firearms
Division of the IRS. By July, 1972 it had nearly doubled in size and
became a complete Treasury bureau under the name of Bureau of
Alcohol, Tobacco and Firearms.
   The mid-1970's saw rapid increases in sugar prices, and these in
turn drove the bulk of the "moonshiners" out of business. Over
15,000 illegal distilleries had been raided in 1956; but by 1976 this
had fallen to a mere 609. The BATF thus began to devote the bulk
of its efforts to the area of firearms law enforcement.
   Complaint regarding the techniques used by the Bureau in an
effort to generate firearms cases led to hearings before the Subcom-
mittee on Treasury, Post Office, and General Appropriations of the
Senate Appropriations Committee in July 1979 and April 1980, and
before the Subcommittee on the Constitution of the Senate Judici-
ary Committee in October 1980. At these hearings evidence was
received from various citizens who had been charged by BATF,
from experts who had studied the BATF, and from officials of the
Bureau itself.
   Based upon these hearings, it is apparent that enforcement tac-
tics made possible by current federal firearms laws are constitu-
tionally, legally, and practically reprehensible. Although Congress
adopted the Gun Control Act with the primary object of limiting
access of felons and high-risk groups to firearms, the overbreadth
of the law has led to neglect of precisely this area of enforcement.
For example the Subcommittee on the Constitution received corre-
spondence from two members of the Illinois Judiciary, dated in
1980, indicating that they had been totally unable to persuade
BATF to accept cases against felons who were in possession of
firearms including sawed-off shotguns. The Bureau's own figures
demonstrate that in recent years the percentage of its arrests
devoted to felons in possession and persons knowingly selling to
them have dropped from 14 percent down to 10 percent of their
firearms cases. To be sure, genuine criminals are sometimes pros-
ecuted under other sections of the law. Yet, subsequent to these
hearings, BATF stated that 55 percent of its gun law prosecutions
overall involve persons with no record of a felony conviction, and a
third involve citizens with no prior police contact at all.
   The Subcommittee received evidence that the BATF has primarily
devoted its firearms enforcement efforts to the apprehension, upon
technical malum prohibitum charges, of individuals who lack all
criminal intent and knowledge. Agents anxious to generate an
impressive arrest and gun confiscation quota have repeatedly en-
ticed gun collectors into making a small number of sales--often as
few as four--from their personal collections. Although each of the
sales was completely legal under state and federal law, the agents
then charged the collector with having "engaged in the business"
of dealing in guns without the required license. Since existing law
permits a felony conviction upon these charges even where the
individual has no criminal knowledge or intent numerous collec-
tors have been ruined by a felony record carrying a potential
sentence of five years in federal prison. Even in cases where the
collectors secured acquittal, or grand juries failed to indict, or
prosecutors refused to file criminal charges, agents of the Bureau
have generally confiscated the entire collection of the potential
defendant upon the ground that he intended to use it in that
violation of the law. In several cases, the agents have refused to
return the collection even after acquittal by jury.
   The defendant, under existing law is not entitled to an award of
attorney's fees, therefore, should he secure return of his collection,
an individual who has already spent thousands of dollars establish-
ing his innocence of the criminal charges is required to spend
thousands more to civilly prove his innocence of the same acts,
without hope of securing any redress. This of course, has given the
enforcing agency enormous bargaining power in refusing to return
confiscated firearms. Evidence received by the Subcommittee related the
confiscation of a shotgun valued at $7,000. Even the Bureau's own
valuations indicate that the value of firearms confiscated by their
agents is over twice the value which the Bureau has claimed is
typical of "street guns" used in crime. In recent months, the aver-
age value has increased rather than decreased, indicating that the
reforms announced by the Bureau have not in fact redirected their
agents away from collector's items and toward guns used in crime.
   The Subcommittee on the Constitution has also obtained evi-
dence of a variety of other misdirected conduct by agents and
supervisors of the Bureau. In several cases, the Bureau has sought
conviction for supposed technical violations based upon policies and
interpretations of law which the Bureau had not published in the
Federal Register, as required by 5 U.S.C. Sec 552. For instance, begin-
ning in 1975, Bureau officials apparently reached a judgment that
a dealer who sells to a legitimate purchaser may nonetheless be
subject to prosecution or license revocation if he knows that that
individual intends to transfer the firearm to a nonresident or other
unqualified purchaser. This position was never published in the
Federal Register and is indeed contrary to indications which
Bureau officials had given Congress, that such sales were not in
violation of existing law. Moreover, BATF had informed dealers
that an adult purchaser could legally buy for a minor, barred by
his age from purchasing a gun on his own. BATF made no effort to
suggest that this was applicable only where the barrier was one of
age. Rather than informing the dealers of this distinction, Bureau
agents set out to produce mass arrests upon these "straw man"
sale charges, sending out undercover agents to entice dealers into
transfers of this type. The first major use of these charges, in
South Carolina in 1975, led to 37 dealers being driven from busi-
ness, many convicted on felony charges. When one of the judges
informed Bureau officials that he felt dealers had not been fairly
treated and given information of the policies they were expected to
follow, and refused to permit further prosecutions until they were
informed, Bureau officials were careful to inform only the dealers
in that one state and even then complained in internal memoranda
that this was interfering with the creation of the cases. When
BATF was later requested to place a warning to dealers on the
front of the Form 4473, which each dealer executes when a sale is
made, it instead chose to place the warning in fine print upon the
back of the form, thus further concealing it from the dealer's sight.
   The Constitution Subcommittee also received evidence that the
Bureau has formulated a requirement, of which dealers were not
informed that requires a dealer to keep official records of sales
even from his private collection. BATF has gone farther than
merely failing to publish this requirement. At one point, even as it
was prosecuting a dealer on the charge (admitting that he had no
criminal intent), the Director of the Bureau wrote Senator S. I.
Hayakawa to indicate that there was no such legal requirement
and it was completely lawful for a dealer to sell from his collection
without recording it. Since that date, the Director of the Bureau
has stated that that is not the Bureau's position and that such
sales are completely illegal; after making that statement, however,
he was quoted in an interview for a magazine read primarily by
licensed firearms dealers as stating that such sales were in fact
legal and permitted by the Bureau. In these and similar areas, the
Bureau has violated not only the dictates of common sense, but of 5
U.S.C. Sec 552, which was intended to prevent "secret lawmaking" by
administrative bodies.
   These practices, amply documented in hearings before this Sub-
committee, leave little doubt that the Bureau has disregarded
rights guaranteed by the constitution and laws of the United
States.
   It has trampled upon the second amendment by chilling exercise
of the right to keep and bear arms by law-abiding citizens.
   It has offended the fourth amendment by unreasonably search-
ing and seizing private property.
   It has ignored the Fifth Amendment by taking private property
without just compensation and by entrapping honest citizens with-
out regard for their right to due process of law.
   The rebuttal presented to the Subcommittee by the Bureau was
utterly unconvincing. Richard Davis, speaking on behalf of the
Treasury Department, asserted vaguely that the Bureau's priorities
were aimed at prosecuting willful violators, particularly felons ille-
gally in possession, and at confiscating only guns actually likely to
be used in crime. He also asserted that the Bureau has recently
made great strides toward achieving these priorities. No documen-
tation was offered for either of these assertions. In hearings before
BATF's Appropriations Subcommittee, however, expert evidence
was submitted establishing that approximately 75 percent of BATF
gun prosecutions were aimed at ordinary citizens who had neither
criminal intent nor knowledge, but were enticed by agents into
unknowning technical violations. (In one case, in fact, the individual
was being prosecuted for an act which the Bureau's acting director
had stated was perfectly lawful.) In those hearings, moreover,
BATF conceded that in fact (1) only 9.8 percent of their firearm
arrests were brought on felons in illicit possession charges; (2) the
average value of guns seized was $116, whereas BATF had claimed
that "crime guns" were priced at less than half that figure; (3) in
the months following the announcement of their new "priorities",
the percentage of gun prosecutions aimed at felons had in fact
fallen by a third, and the value of confiscated guns had risen. All
this indicates that the Bureau's vague claims, both of focus upon
gun-using criminals and of recent reforms, are empty words.
   In light of this evidence, reform of federal firearm laws is neces-
sary to protect the most vital rights of American citizens. Such
legislation is embodied in S. 1030. That legislation would require
proof of a willful violation as an element of a federal gun prosecu-
tion, forcing enforcing agencies to ignore the easier technical cases
and aim solely at the intentional breaches. It would restrict confis-
cation of firearms to those actually used in an offense, and require
their return should the owner be acquitted of the charges. By
providing for award of attorney's fees in confiscation cases, or in
other cases if the judge finds charges were brought without just
basis or from improper motives, this proposal would be largely self-
enforcing. S. 1030 would enhance vital protection of constitutional
and civil liberties of those Americans who choose to exercise their
Second Amendment right to keep and bear arms.


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God Bless!

Norm

------------------------------------------------
(This file was found elsewhere on the Internet and uploaded to the
Patriot FTP site by S.P.I.R.A.L., the Society for the Protection of
Individual Rights and Liberties. E-mail alex@spiral.org)

