[Author Bio: Tom is a software developer who resides in Arizona. He has both a Master’s and Bachelor’s degree in Computer Science from Colorado Technical University, but his true passion is guns and shooting. To that end, he is also an NRA certified instructor, and qualified to teach the course needed for the Arizona Concealed Carry Weapons Permit, though thankfully, this permit is no longer required to carry concealed in Arizona. He is an activist who fights to keep government out of Americans’ personal and financial lives, but fighting for the law-abiding citizen’s right to keep and bear arms is his most sacred passion.]
This is an adaptation of a letter Tom sent to his congressman recently. He thought it would make a good open letter to all congressmen who claim to champion our Second Amendment Rights. Let us see if they will put their influence where their mouth is.
I realize that you are very busy, but hopefully, one of your staff will take the time to read this, and brief you on it. I know that you are a friend to the Second Amendment, so I hope I find an ally in this message. With the recent public message against the socialist policies of the Obama Administration, and the obvious call for the reduction of federal intrusion in American’s lives, I believe it is time to “strike while the iron is hot” on the issue of federal gun control. In the past three years, two very important decisions have been handed down by the Supreme Court of the United States (SCOTUS) regarding the Second Amendment, as I’m sure you are aware. Let me summarize, just in case: The case of the District of Columbia. vs Heller held that the Second Amendment protects the right of each individual citizen to keep and bear arms, without regard to any militia. The case of Chicago vs MacDonald held that the Second Amendment is incorporated under the Fourteenth Amendment- which means that the individual state and local governments may not infringe upon the right of the people to keep and bear arms, any more than the federal government may. I’m sure you are aware that both the federal government and diverse state and local governments most certainly still do infringe upon that right. As you are my direct Representative in the federal government, this message focuses on the remaining federal infringements of that right.
While there are many more federal gun control laws on the books, there are three that primarily affect the law-abiding citizen’s right and ability to exercise their Second Amendment rights: The National Firearms Act of 1934, the Gun Control Act of 1968, and the Hughes amendment to the Firearm Owners Protection Act of 1986.
The National Firearms Act of 1934.
Passed in wake of the gang violence of the prohibition era, the National Firearms Act is the first attempt of the federal government to circumvent the Second Amendment. It is interesting to note that the gang violence stopped not because of the Act (there was not a single registration in 1934, and only one in 1935), but because of the repeal of prohibition. There is not one documented case of a licensed manufacturer or dealer of alcohol machine-gunning their competition. The Act was in fact declared unconstitutional by a Federal District Court, but that decision was later overturned by the SCOTUS. However, there are several problems with the SCOTUS ruling.
I have included links to the actual text of the two Acts at the end of this message and the actual text of the Hughes Amendment, but for brevity’s sake, allow me to summarize the NFA: This act calls for the registration and taxation of certain types of firearms and firearm accessories. These include rifles and shotguns with a barrel of less than 18 inches (later amended for rifles to 16 inches), machine guns, and “silencers”- which by no means actually “silence” a firearm. While it is within the federal government’s power to levy taxes, it cannot be argued that a tax that is higher than the value of the item being taxed is anything but an attempt to make the item unobtainable by the everyday citizen. In fact, if you review the discussion of the Committee hearings regarding the Act, the Congressmen responsible for it clearly indicated that the purpose was to make machine guns difficult or impossible to obtain, despite the government’s lawyer claiming that it is a “revenue raising measure”. In 1934, a typical rifle or shotgun would cost less than $30.00 new, and a machine gun somewhat higher, but still almost without exception less than the $200.00 tax imposed, and the typical silencer around $3.00. A $200.00 tax on an accessory that costs less than $5.00? How could that possibly fall under the category of a “revenue raising measure”?
In 1938, U.S. District Court Judge Ragon agreed, and upheld the defense’s argument that the Act violated the Second Amendment. The government appealed the decision to the SCOTUS, and the case was heard in 1939. The defense was not represented at that hearing, and indeed, there was not even a brief filed to put forth the defense arguments in the case. The government argued that since this particular shotgun – they even specified the serial number to avoid being caught in a lie – was not used in any militia or military, it was not protected under the Second Amendment. With no one to point out the obvious fallacies in the government’s argument, the court ruled to overturn the District Court’s ruling that the NFA was unconstitutional. Let me quote from the SCOTUS decision:
“In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”
There are two serious problems with this argument. First, it is incorrect. Shotguns, including short-barreled shotguns were used by militias and militaries all over the world, and indeed, still are today. The court did not know that, because as mentioned, the adversarial process was not present in the hearing. Second, the NFA also restricts machine guns in exactly the same manner, which in no way possible could be argued are not “part of the ordinary military equipment”. Because of these facts, the District Court’s declaration that the Act is unconstitutional should not have been overturned. Therefore, the possibility that the National Firearms Act is unconstitutional should be revisited.
The Gun Control Act of 1968
Again, this Act was passed in the wake of violence which received national attention; namely, the assassinations of Robert Kennedy and Dr. Martin Luther King, Jr. It builds upon the NFA, and adds to it certain things that are obviously unconstitutional. Among the things that it provides for is:
It makes the possession of firearms by certain categories of people illegal. Note that this essentially says that if you are one of these people, your Second Amendment right is revoked. Correct me if I’m wrong, but the Second Amendment contains the phrase shall not be infringed – it does not make any provision for “reasonable exceptions”. While it can be difficult to reason that it should be okay for a felon to possess a firearm, consider this: Aside from the right to keep and bear arms, other constitutionally-protected rights can be temporarily suspended with due process: for example, liberty can be curtailed, and even the right to life. A convict’s possessions may be subject to random searches and seizures with no probable cause. However, other rights may not be: A convicted felon in prison still has the right of free speech, representation by an attorney, and to not be forced to testify against themselves. Even the rights that are curtailed by due process are only done temporarily, while the felon is in prison, and to a lesser extent, while on parole, and this curtailment is generally specified in the felon’s sentence. However, only the felon’s right to keep and bear arms is curtailed both automatically and permanently. In any case, whether or not you believe it is okay to deprive certain persons as felons of their right to keep and bear arms, this in unquestionably a violation of the Second Amendment. In order for such a restriction to be allowed, a constitutional amendment is needed, or the restriction against keeping and bearing arms must be specified as a part of the felon’s sentence, rather than be attached automatically.
It created a federal licensing system. From that point on, anyone who engaged in the business of selling firearms had to be licensed by the federal government. This also sets a minimum age limit for firearms purchases from FFLs (Federal Firearms Licensees): 21 for handguns, 18 for rifles and shotguns. The paperwork this entails is just one short step away from federal registration, as the BATFE can demand to see the form 4473s of any FFL at any time, and whenever an FFL goes out of business, they must turn over all of the 4473s they have to the BATFE. A form 4473 is the BATFE form that everyone must fill out when purchasing a firearm from an FFL. It contains the purchaser’s personal information, as well as information specific to the firearm purchased. All of the information necessary to create a registration database is contained upon it. All this time since 1968, when these records began to be kept, not one single crime has been solved, or one single perpetrator brought to justice because of the keeping of these records, which was the stated reason for their inclusion in the Act.
It added restrictions on the importation of firearms, including adding a “sporting purpose” test. If you’ve read the writings of the founding fathers, you’ll see unequivocally, that the Second Amendment was never intended to protect the right to hunt or target shoot – it was intended to protect the right of the citizens to protect themselves – primarily against the possibility of a tyrannical government. The SCOTUS has also ruled on numerous occasions that the Second Amendment is not intended to safeguard only the right to use firearms in the pursuit of sporting activities. D.C vs Heller explicitly states that personal self-defense is a valid exercise of the Second Amendment.
Finally, after a one-month amnesty period, it forbade owners of firearms controlled by the NFA to be registered, and the tax paid. After that amnesty, anyone who failed to register their NFA firearm or silencer would be a felon- which, according the first point made above, would make them forever forbidden to own a firearm. The practical result of this is that the supply of machine guns for use by private citizens was effectively frozen except for firearms manufactured within the U.S. (as machine guns fail the sporting use test) after passage of the law. Those remaining machine guns were frozen 12 years later- see the next section on the FOPA of 1986. This further demonstrates the ridiculousness of the claim that the NFA is a “revenue generating measure”. Since 1968, if you have a firearm or silencer that is controlled under the National Firearms Act of 1934, you are actually forbidden from registering it, or paying the tax. What kind of revenue generating measure makes it unlawful to pay the tax it was created to collect? On their web site, the BATFE freely admits that this prohibition was needed in order to get around a problem on the Constitutionality of the NFA, saying that someone attempting to register an affected weapon and paying the tax would violate their Fifth Amendment right against self-incrimination. While that is absolutely true, it apparently never occurred to them that extending amnesty from prosecution to anyone who voluntarily submitted their affected weapons for registry and taxation would also have solved the problem, without making it illegal to pay a tax that was required by law.
The Hughes Amendment to the Firearm Owner’s Protection Act of 1986.
The FOPA was actually a pro-gun rights bill. With no clear indication that the Second Amendment was incorporated in the Fourteenth Amendment (which it is now, thanks to the SCOTUS ruling in Chicago vs MacDonald), it was possible to become a felon through no fault of one’s self. If a person was travelling from one state to another with their firearms, they had to obey the firearms laws of every state they went through. The best way to explain the issue is with an example. Say a person wanted to travel from his home state to another state for a hunting trip. He is perfectly legal to own possess his guns in both states. In order to avoid problems with states in between, he decides to take a non-stop flight. However, due to circumstances beyond his control, such as engine trouble, the plane has to detour, and land somewhere else. If that plane lands in a state which requires state approval and/or registration to possess a firearm, our unlucky traveller is now a lawbreaker- often these laws are classified as felonies. The FOPA was written to avoid situations like the one above. It allows for firearms to be transported, following specific rules laid down by the Act (for example, the firearms and ammunition must not be immediately accessible, and must be unloaded) through states without fear of being brought under more severe gun control laws. The Act also had a provision making it unlawful for the government to maintain any kind of firearms registry, with the exception of NFA firearms.
The Hughes Amendment to the Act, proposed by Representative Charles Hughes of New Jersey, forbids the transfer of machine guns not already registered under the NFA prior to May 19th, 1986 to civilians. This would include any machine guns not yet built at that time. With no newly manufactured machine guns able to be bought by civilians, there was now a completely frozen supply, which as any first year economics student can tell you, increased prices substantially. Machine guns have never been particularly cheap, and indeed, the fact that machine guns typically eat up far more ammunition than non-automatics makes them out of reach of anyone below the upper-middle class range of the income spectrum. However, the false market has now made them unavailable to all but the very wealthy
You may not care that it is difficult and extremely expensive to obtain fully automatic weapons for law-abiding citizens, but consider this: It is still cheap and relatively easy for anyone intent on buying a machine gun that does not consider illegality – i.e. a criminal. Fully automatic AK 47s are easily obtained from gangs’ contacts in Mexico, South America, and wherever else they buy their drugs from. Also consider this: almost every quality machine gun design in history has come from private inventors. John Moses Browning, Hiram Maxim, and Eugene Stoner (inventor of the AR 15/M 16) were all private inventors. While they actively marketed their creations to governments, they made the lion’s share of their profits selling to private citizens, and to companies that sold to private citizens. Without that market, machine gun design loses all of its ingenuity and quality. History proves this. Prior to Stoner’s M16 design in the 50s, machine gun design essentially stopped dead in after 1934. When the $200.00 tax began to be less of an issue, it picked back up a bit, this allowed for Stoner’s creativity. Almost every government designed machine gun is an utter failure. Look at the M 60 as an example. Any machine gun expert will tell you that it is a piece of junk that is unsafe to use. The U.S Marines no longer use it. The gun control laws in this country have had a detrimental effect on the ability of the U.S. military to field quality machine guns, considerably affecting our ability wage war effectively, and putting the lives of our service men at risk. Like the airplane before it (most civilian airplane designs are essentially the same as they were in the 1950s, due to heavy government regulation), the machine gun now languishes in the past, with few, if any modern improvements. With no market beyond what the government will pay, there is no incentive for the most inventive minds to bring them into the twenty-first century.
Finally, there have been rumors that this Amendment is surrounded by controversy relating to House procedure, regarding its inclusion into the Bill. I have done some research on this, and here is what I found: There is a document that claims to be research by one Alfonso I. Garza, and appears to be a House Congressional Record from April 10th, 1986, the day the Bill was passed in the House of Representatives. It clearly shows that Amendment 777 was voted on by a voice vote, and declared to have passed by Rep. Rangel, the Chairman of the Committee of the Whole. Rep. Sensenbrenner demanded a recorded vote, and Record Vote 73 was taken. It failed, with a tally of aye: 124 no: 298 nv: 12. There are claims that the vote was later overturned by Record Vote 74, but this is ridiculous. First, Record Vote 74 is listed in the Library of Congress Records as being taken on Amendment 770, which was brought by Rep. Volkmer. Second, Record Vote 74 shows that Rep. Hughes voted No. If this vote was really on the machine gun ban that he proposed, why would he vote against it?
The Library of Congress Record that I saw (found here: http://thomas.loc.gov/cgi-bin/bdquery/z?d099:HR04332:@@@L&summ2=m&), shows that there was no recorded vote on Amendment 777, and in fact, there is no trace anywhere of Record Vote 73 on the page. The above Congressional Record (unproven- your own research will have to find the true Government copy to verify) clearly mentions a recorded vote on the Amendment, which did not pass (Record Vote 73), but the Library of Congress record makes no mention at all of a recorded vote. It simply says that the Amendment passed by a Voice Vote, which is what Rep. Rangel claimed.
Clearly, there is a discrepancy, and likely, I do not have access to the records that can prove the truth. However, as a Congressman, you do, and have the staff to properly research it. As my direct Representative to the Federal Government, I humbly ask that you do so. If what I suspect is true, then sitting Congressmen of the United States House of Representatives have conspired to unlawfully include legislation that was verifiably defeated into a Bill which subsequently became law. This is clearly a violation of House rules, and possibly, a violation of federal law, if true. I implore you to find out the truth of this, and take the appropriate actions. To that end, according to my research, CSPAN began recording congressional happenings in 1979, so it is possible that there is a video record of the House proceedings on April 10th, 1986. However, I don’t have the first clue how to go about getting access to it. To tell the truth, I am just a normal U.S. citizen who is passionate about preserving and restoring his rights under the Constitution. I have no background or training in research. My area of expertise is computer science.
Federal Gun Control
The Second Amendment reads: “A well regulated Militia being necessary to the security of a free State, The right of the people to keep and bear Arms shall not be infringed.” I can see no way in which any federal law that keeps a citizen from owning or carrying a firearm (ANY firearm) could be in any way constitutional. The best that the government can come up with is the commerce clause of Article one which reads: “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes”. This seemingly innocent phrase: “to regulate commerce among the several states” is perhaps the most abused and misconstrued phrase in the entire United States legal code. This is something that should be dealt with eventually, and if Congress will not, you can bet that eventually the States will- via a Constitutional Convention. While they are at it, no doubt they will look at several other issues that the federal government dreads, such as congressional term limits, and a balanced budget amendment. Already, several states have passed laws aimed at challenging the federal government’s interpretation of the commerce clause (including Arizona, if I am not mistaken- if we have not yet, I am confident it will be accomplished in the coming assembly of 2011). If the SCOTUS rules against them, a Constitutional Convention will not be long in coming.
At any rate, I believe that it is time to strike regarding the three unconstitutional laws mentioned above, to get them removed from the books. It should not be difficult to challenge the unorthodox proceedings which lead to the passage of the Hughes Amendment to the FOPA. Indeed, the entire episode may even be on video tape somewhere, so it may be possible to have the Amendment struck from the law on grounds that House procedures were violated during its passage. The Amendment’s supporters should be able to call for another, recorded vote, but I do not believe it will pass in the 112th Congress.
As for the GCA of 1968, at least parts of it should prove easy to repeal; the ban on imports of non-”sporting use” firearms, for example. There can be no argument that the Second Amendment does not exist for the protection of hunting and other sporting activities, but for the protection of the right of the people to defend themselves from tyranny, should it become necessary. Any law that infringes upon that right with the exception of “sporting firearms” is obviously unconstitutional. Similarly, how can the prohibition against registering firearms covered under the NFA be constitutional? There is a requirement under one law to register these weapons, and pay a tax, yet another law forbids that exact thing.
Finally, the grand-daddy of them all: the National Firearms Act. It required a tax that at the time of its inception was more than any of the items that were taxed were worth, and in many cases, many times more. This could in no way be construed as a revenue generating measure. I am not so naive as to believe that the government will allow us to own unregistered machine guns (God forbid the government actually trust its citizens). However, the NFA can be amended to make sure that it becomes nothing but what it was supposedly intended to be: a tax. The arbitrary $200.00 figure should be changed to a percentage of the sale price (this will actually bring in more money for the government in the long run), and some items should be removed – certainly silencers, at the least. Hollywood notwithstanding, there has never been a single documented instance in which a silencer that was or should have been registered under the NFA has been used in the commission of a crime. If a criminal wants to kill silently, there are far better ways in which to accomplish this: a knife, a garrote, or even a blanket or towel wrapped around the barrel of a gun. A “silencer” does not in any way make a gun anywhere close to “silent”. What it does is muffle the sound enough so that the gun can be fired without causing hearing loss. Using silencers would also solve the problem of complaints about noise coming from outdoor ranges.
The biggest obstacle to challenging these obviously unconstitutional laws is that so many people either don’t care, or are actually opposed to citizens having access to machine guns. Hollywood has been very successful in its attempts to demonize these weapons, so that the average person can see no valid use by law-abiding citizens. This could not be further from the reality of the situation, however. Machine gun aficionados are almost without exception among the wealthiest, most law-abiding, and highest-tax-paying citizens in the country. If you discount all of the trumped-up charges that the BATFE is always trying to entrap them on, you will be hard-pressed to find ANY evidence of law-breaking among them. They are often entrepreneurs and community leaders, yet they are treated by their government as more dangerous than drug kingpins. That aside, regardless of how you or anyone feels about machine guns in the hands of civilians, the method that has been used by the federal government over the past 76 years to prohibit them is without question unconstitutional. If the federal government wants to deprive us of machine guns, then the only legal way to do that is with a Constitutional Amendment that amends the Second Amendment to make exception for these arms.
The federal agency commonly tasked with enforcing the laws above is the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Until recently, they were under the Internal Revenue Service, since, as we have seen, the federal gun control laws in existence are essentially tax laws. People arrested by BATFE agents are typically charged with failure to pay a tax on a regulated firearm or other controlled item. For this heinous crime, the agents are sent out to arrest them wearing black ninja outfits, and carrying machine guns. They burst into residences of otherwise law-abiding citizens to stop the terrorism of failing to pay a $200.00 tax, or possessing a piece of metal that is an inch too long or short. Regardless of how you feel about the Branch Davidians, the BATFE had no cause for their SWAT style attack in the first place. If you look it up, you’ll see that purpose of the raid was a supposed violation of the NFA: They believed David Koresh had modified an AR 15 to fire fully automatic. Since this weapon was not registered under the NFA, it would have been in violation. The claims about a meth lab, and the accusations of child abuse and molestation were nowhere to be found in the BATFE’s paperwork. Whether or not they were true was never even investigated. It would appear that these accusations were nothing more than an excuse to draw attention away from the fact that they made a full military assault on a group of United States citizens (many of them children) with machine guns and hand grenades based on a disputed $200.00 tax. Whether or not there actually ever was such a modified weapon has never been resolved, to my knowledge. There are countless other examples of similar abuses of power by the BATFE, but I will not include all of them. If you wish to hear about more of them, send a reply with that request, and I will put together a detailed listing.
The BATFE has been out of control for many, many years. They are essentially tax auditors authorized by the federal government to carry machine guns, and terrorize citizens. They rarely if ever go after real criminals, and instead concentrate on law-abiding citizens that are doing nothing more subversive than exercising their Second Amendment right. To this day, I have never heard of a BATFE raid on a suspected drug overlord that uses automatic weapons to protect his drug product.
The BATFE needs to be stripped of its police powers, and returned back to their desks. Violations of tax laws should be handled by sending out audit notices, not by attacking people in the middle of the night wearing black masks. The FBI, Coast Guard, and DEA is more than enough federal police power within the United States. In fact, much of what they do could better be handled by state and local police agencies, with the federal agencies providing federal backing when needed. The BATFE are nothing more than tax agents, and should be made to act that way. I understand there is a big push to cut spending – might I suggest looking at this agency for that?
As I mentioned earlier, one of the provisions of the GCA of 1968 was to list out several classes of people who were prohibited from possessing firearms, and gave (I believe) a well-reasoned argument against people being included in that group automatically and permanently on the basis of a felony conviction. Here is another part of that. Whenever the BATFE goes after a law-abiding citizen, one of their primary goals is to get a felony conviction – ANY felony conviction – against that citizen. The purpose of course to is ensure that this person, who almost without fail is a member of the gun culture, and views shooting and collecting guns as one of their prime sources of pleasure; indeed, often THE prime source of pleasure, can never again legally own a firearm. The crime they use most often to accomplish this is referred to as “Conspiracy to violate federal firearms laws”. This is of course a felony. This single law has been the cause of more hurtfulness perpetrated against law-abiding citizens by the federal government than any other, and should be immediately repealed. As I mentioned before, the automatic and permanent revocation of a fundamental constitutionally-protected right should also be re-examined. To put it bluntly: if a person is so dangerous that he cannot be trusted with a legally obtained firearm (which of course does not stop him from acquiring them illegally), then why in God’s name are we releasing him from prison in the first place?
Congressman, the right to keep and bear arms has in fact been infringed upon by the federal government, in direct violation of the Second Amendment to the Constitution of the United States for more three quarters of a century. In the recent elections, the people have spoken with a loud voice against out-of-control federal government, and I believe the time is right for the gun culture to go on the offensive, and strike down the unconstitutional barriers to our freedom. I have no illusions that President Obama will sign any of the bills to repeal or amend the existing gun control acts. They may not even make it out of the Senate, though some should. However, we can get the President and anti-rights law makers on record opposing freedom where gun rights are concerned. That more than anything should help to ensure that even more liberty minded politicians win election in 2012, and then, finally, perhaps we can have true freedom, guaranteed by our own ability to defend ourselves. We may not be able to affect any real change in the 112th Congress, but we can at least get the enemy to go on record and prove that they do not trust the people of the United States with the means to protect themselves.
Perhaps they do not trust us with guns, because they fear us. If that is the case, then I am reminded of what Thomas Jefferson said concerning that very thing: “Where the people fear the government, there is tyranny. Where the government fears the people, there is Liberty!”
Your friend in Liberty.
The laws referred to above can be found here:
National Firearms Act of 1934 (page 74) and the Gun Control Act of 1968 (page 4):
The text of the Hughes Amendment (777) to the Firearm Owners Protection Act of 1986:
(9) by inserting after the subsection added by paragraph (8) of this section the following:
“(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
“(2) This subsection does not apply with respect to-
“(A) a transfer to or by, or possession by or under the authority of, the United States or any
department or agency thereof or a State, or a department, agency, or political subdivision thereof; or
“(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the
date this subsection takes effect.”