Journal of Legal Studies
4 (1975): 133.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

FIREARMS AND FEDERAL LAW: THE GUN CONTROL ACT OF 1968

FRANKLIN E. ZIMRING*

In 1968, after five years of debate on firearms control, Congress passed a Gun Control Act designed to "provide support to Federal, State, and local law enforcement officials in their fight against crime and violence."[1] This paper reports on an effort to study the impact of the Gun Control Act on the problems that prompted its passage. The study is of possible interest for two reasons.

First, it is an attempt to increase our rather modest knowledge of the effects of governmental efforts to control firearms violence. In recent years the rate of gun violence in the United States has managed to grow to alarming proportions without the benefit of sustained academic attention.[2] The 1968 Act--the only major change in federal policy since 1938¾seems a natural place to look for clues about the effects of gun controls. And the need for knowledge in this area seems obvious, inasmuch as controversy is rampant and new federal legislative proposals are almost a weekly Washington event.

Second, the study is an effort to gain some perspective on the difficulties [Page 134] and promise of empirical studies of "legal impact." Over the past few years, studies attempting to assess the impact of legislation have begun to occupy an important place in law-related scholarship.[3] Diverse both in subject matter[4] and methodology, these studies are motivated by the hope that they will build toward a deeper understanding of law as an instrument of social control.[5]

The first section of this paper gives a capsule outline of the antecedents of the Gun Control Act¾prior federal laws regulating firearms traffic and some of the legislative proposals that affected the shape of the 1968 law. Part II briefly analyzes the Act itself, showing how prior federal law was altered and how the alterations were thought to serve regulatory ends. Part III presents data on the impact of the law, focusing on the so-called "Saturday Night Special" ban and the effort to aid state and local gun control efforts by reducing the flow of firearms from loose-control to tight-control states. Part IV discusses some of the broader implications of the study.

The study will be of little use to the most fervent friends and foes of gun control legislation. It provides data they do not need. Each group has already decided that the 1968 Act has failed, and each group uses the Act’s presumed failure to confirm views already strongly held. Enthusiasts for strict federal controls see the failure of the law as proof that stricter laws are needed,[6] while opponents see it as evidence that no controls will work.[7] The picture that emerges from available data is more equivocal. There is evidence that [Page 135] the approach adopted by the Act can aid state efforts at strict firearms control, although the resources necessary to achieve this end have never been provided by Congress. There is also reason to believe that the potential impact of the Act is quite limited when measured against the problems it sought to alleviate.

I. ORIGINS AND ANTECEDENTS

While firearms have always played an important part in American life, gun control has never been an important federal legislative topic. State and local attempts to regulate the carrying of concealed weapons date from the early nineteenth century,[8] with substantial legislative activity occurring during the period from 1880 through 1915, but there was no pressure generated to federalize the issue of firearms control during this time.[9] In 1915 Senator Shields of Tennessee proposed a bill to ban interstate commerce in handguns, but no bill that could properly be called an effort at firearms control was reported out of a congressional committee prior to the end of World War I.[10]

In 1919, a 10 per cent manufacturers’ excise tax on firearms was imposed as part of a larger War Revenue Act,[11] and though the primary motive of the legislation was fiscal, the legislative history of the tax also reveals concern with handguns as a public safety problem.[12] Like most emergency tax measures, the tax handily survived its emergency and is still, in amended form, a part of federal firearms policy.[13] The excise tax is also of lasting importance because the use of the taxing power and the vesting of regulatory responsibility in the Department of the Treasury, begun in 1919, set the pattern for later efforts at federal firearms control.

Urban crime and handgun use received an increasing amount of public attention during the post-World War I years,[14] and this period produced a significant amount of state and local firearms legislation, as well as more debate about a federal role in gun regulation. By 1924, more than a dozen [Page 136] federal firearms control bills, most of them regulating interstate commerce in handguns, were before Congress.[15]

In 1927 Congress enacted a law prohibiting the mailing of concealable firearms to private individual.[16] Directed against the undermining of state and municipal firearms control statutes through out-of-state handgun sources this law represented the first federal attack on "mail order murder." As an attempt to curtail interstate movement of handguns, the 1927 prohibition (which remained in effect until 1968) was deficient. Of all interstate carriers, only the United States mails were closed to handgun commerce. This partial closure was of little effect, since guns could be ordered by mail and delivered to the purchaser by private express companies.[17] Nevertheless, the effort was an important precedent for control of interstate firearms traffic in two respects. The 1927 law and dissatisfaction with its effectiveness led to proposals for tighter controls on interstate firearms sales to private citizens that culminated in the Gun Control Act of 1968’s near-total ban on such transactions. And by distinguishing between dealers (who were Allowed to receive concealable firearms) and other private citizens (who were not), the postal ban created some incentive for private citizens to be considered dealers and thus created the need to define the limits of the dealer category.[18] This problem was not important in the years immediately after 1927 because there were so many other ways for private citizens to circumvent the postal ban. But as succeeding generations of federal legislation made the status of "dealer" more attractive, they also made it necessary for any effective scheme of federal regulation to define, license, and regulate firearms dealers.[19]

It is easy to overestimate the public importance of firearms regulation during this period. While crime and criminals were major issues, there is little evidence that the "gun problem" and proposals to increase the federal role in firearms regulation were visible public issues.[20] The major public concern was crime control, and guns were perceived as one small part of that larger issue. There is also little to suggest that there was strong sentiment prior to the early New Deal period to think of crime control as a national problem meriting substantial federal regulation.

The focus of discussion during the 1920s was on uniform state laws regulating possession and use of handguns. In 1923 a draft of a uniform revolver [Page 137] law (prepared by the United States Revolver Association which hoped to preempt what it considered to be irresponsible permit schemes) was submitted to the National Conference of Commissioners on Uniform State Laws.[21] This proposal served as the model for the Conference’s 1926 proposed Uniform Firearms Act, which established license requirements for handgun dealers, a 48-hour waiting period prior to handgun purchase, and the registration of handguns purchased from dealers and supplementary penalties for handgun use in violent crimes.[22]

In 1927 the first National Crime Commission recommended a more stringent uniform state law as the primary national handgun policy, with supplementary federal legislation designed to forbid the importation of handguns and machine guns, and an extension of the ban on interstate shipment of handguns to cover common carriers.[23]

The first serious discussion of a more extensive federal role in firearms regulation came in the early years of the New Deal. By 1932 federal solutions to many problems were being advocated with increasing frequency.[24] Public concern with crime and criminals had shifted from worry about the "highwaymen" or "thugs" to the machine-gun-toting interstate gangster personified by John Dillinger.[25] The national fear of gangsters combined with the Roosevelt Administration’s willingness to stretch the limits of federal jurisdiction to produce an unprecedented package of federal anticrime initiatives, resulting in a bumper 1934 crop of laws creating, among others, the federal crimes of robbing a federally insured bank, assault of a federal agent, and interstate flight to avoid prosecution for certain state felonies.[26]

There were a number of reasons why a federal firearms control proposal could be expected as part of a larger crime-control effort. The submachine gun, then of public importance, was a natural candidate for public fear and legislative wrath. It is also worth noting that Franklin D. Roosevelt as Governor of New York had defended that state’s restrictive handgun licensing statute, had campaigned for a state ban on machine guns, and had publicly advocated federal regulation of interstate commerce in handguns.[27] [Page 138]

But the principal booster for a federal role in firearms control was Roosevelt’s first Attorney General, Homer Cummings. It was his justice Department that was the moving force behind the National Firearms Act of 1934,[28] and that attached a provision for federal registration of all handguns to the "anti-machine gun" measure sent to Congress in 1934.[29] When the handgun registration segment of the bill was deleted in the House, the justice Department continued to introduce handgun registration proposals, and to fight for them throughout the 1930s, long after crime control had lost its place in the hierarchy of New Deal legislative goals.

The firearms control campaign of the 1930s resulted in two pieces of federal legislation: the National Firearms Act of 1934,[30] and the Federal Firearms Act of 1938.[31] Neither law reflected the scope of Attorney General Cummings’ ambitions, but the two acts established a role for the federal government in firearms control, and these laws were the immediate precursors of the Gun Control Act of 1968.

The National Firearms Act of 1934, after the handgun registration provisions were deleted, was a concentrated attack on civilian ownership of machine guns, sawed-off shotguns, silencers, and other relatively rare firearms that had acquired reputations as gangster weapons during the years preceding its passage. Modeled on the Harrison Narcotics Act,[32] the N.F.A. based its regulatory powers on a tax imposed on traffic in the weapons, thus generating federal jurisdiction for intrastate as well as interstate transactions. The tax rate, $200 per transfer, did not seem calculated to encourage extensive commerce in these weapon.[33] The Act also provided for the immediate registration of all covered weapons, even if illegally owned¾a provision altered in 1968, after the United States Supreme Court held the 1934 provision to be an infringement on the constitutional privilege against self-incrimination.[34] [Page 139]

There are two respects in which the National Firearms Act influenced the shape of the 1968 gun-control effort. First, the N.F.A. put the government in the business of licensing manufacturers and dealers of firearms, although the number of weapons and dealers affected was relatively small. Second, the use of the taxing power again centered enforcement responsibility in the Department of the Treasury.[35]

The N.F.A. is often cited as an instance in which federal firearms controls succeeded in substantially achieving their purpose-in this case the extinction of the submachine gun and other gangster weapons.[36] On this issue the historical record is not completely clear. To be sure, the number of frightening incidents involving submachine guns diminished after the N.F.A. and a coordinated federal effort to halt production of the guns.[37] This was also -a period of intensive state effort at submachine gun control. The dangers of drawing a causal inference between federal regulation and the end of the "Tommy-Gun Era" are, however, manifold. Available data on the use of gangster weapons before the N.F.A. are not precise; thus a meaningful before-and-after study is difficult. More important, it is hard to determine whether the use of these weapons was a phenomenon that had reached an unnatural peak just before the advent of federal regulation and would have abated in any event.

The Federal Firearms Act of 1938[38] was the most significant pre-1968 attempt to impose federal controls on the commerce and possession of a broad spectrum of firearms. Shepherded through the Congress by the National Rifle Association, the 1938 Act was pressed more to submerge than to further the schemes for federal handgun registration that regularly commuted from the justice Department to the Congress (and back) during the 1930s.[39] [Page 140]

The 1938 Federal Firearms Act spread a thin coat of regulation over all firearms and many classes of ammunition suitable for handguns. All manufacturers, importers and dealers handling guns shipped in interstate commerce were required to obtain federal licenses ($25 for manufacturers and importers, $1 for dealers).[40] Licensees were prohibited from knowingly shipping a firearm in interstate commerce to some felons, a fugitive from justice, a person under indictment, or anyone required to have a license under the law of the seller’s state who did not have a license.[41] All these prohibited owner classes were also forbidden to receive guns which were or had been in interstate commerce. Dealers were also required to keep records of firearms transactions. Enforcement responsibility was vested in the Secretary of the Treasury, who delegated the assignment to the Internal Revenue Service.[42]

The apparent aims of the 1938 legislation were to create an independent federal policy banning the receipt of firearms by what must have been thought of as the criminal class of society, and to aid state and local efforts at tighter control by prohibiting transactions that would violate local laws. As a strategy to accomplish these goals, however, the Federal Firearms Act was deficient in a number of respects, and further crippled by a tradition of as less-than-Draconian enforcement by the Internal Revenue Service. One major problem was that the Act prohibited only the transfer of weapons to the prohibited classes when the transferor knew or had reasonable cause to believe his transferee was a felon, fugitive, etc.[43] but transferors were not required to obtain positive identification of their customers or to take other steps to verify the eligibility of customers under the act. From the standpoint of prosecuting dealers for violation of the federal ban against sale to felons, the requirement of knowledge, coupled with the absence of a verification system, rendered the Act stillborn. When local law required a license, however, the license requirement made both dealer and customer liable under federal law if they were aware of the local requirements.

Two other prominent loopholes in the 1938 Act deserve special mention because they determined the shape of the 1968 Act. First, the modest cost of a dealer’s license and the fact that dealers could freely receive firearms in interstate commerce created strong incentives for private parties to receive [Page 141] dealer licenses. This in turn resulted in a large number of dealers (over 100,000 in the mid-1960s)[44] and made any serious effort to monitor dealer compliance with the act an enormous undertaking for an Internal Revenue Service that did not, in any event, give the F.F.A. a very high priority. A second problem was that customers from states that required licenses could purchase guns in states that did not, as long as they did not give the dealer in the no-license state any reason to have knowledge of their lack of eligibility. The customer might have to lie to his supplier and would himself be subject to federal criminal penalties, but guns were readily available through this route.[45]

The Commissioner of Internal Revenue had been designated by the Secretary of the Treasury to promulgate regulations to facilitate the enforcement of the Act, but the regulations governing administration of the F.F.A.[46] fell far short of the powers delegated by Congress. Under the act, dealers were required to maintain "permanent records"[47] of firearms transactions; under the regulations in effect until 1958 records had to be maintained for six years (ten years after 1958),[48] and there was very little effective policing of dealer compliance with the record-keeping provisions.[49] The F.F.A. regulations did not require serial numbers on firearms (necessary to identify a particular gun as having been the subject of a transaction) until 1958, and then exempted .22-caliber rifles from the serial number requirement. More significantly, no attempt was made to end by regulation the immunity from prosecution enjoyed by dealers because they did not have to verify the eligibility of their customers. Vale it was probably beyond the rule-making power delegated by the Act to impose a waiting period or the compulsory notification of police departments as to firearms transactions, it could easily have been considered within the Commissioner’s authority to require transferees to positively identify themselves.[50] Indeed, it is a fascinating exercise to debate how many of the changes brought about by the Gun Control Act of 1968 could have been accomplished by rule-making power under the Federal Firearms Act of 1938 and other prior federal laws.[51] [Page 142]

Few resources were invested in the enforcement of the Federal Firearms Act. In 1967 the Alcohol, Tobacco and Firearms division of the Internal Revenue Service reported an investment of 35 man-years in enforcing both the National Firearms Act of 1934 and the Federal Firearms Act of 1938.[52] During the period 1966-1968, a total of 275 arrests were reported under the Federal Firearms Act, and it has been asserted that no dealers were charged with violating the Act until 1968.[53]

The lack of aggressive enforcement may obscure a deeper reason for the failure of the F.F.A.: the tasks of keeping firearms out of the hands of a small criminal class and keeping firearms from crossing those state lines where they are unwelcome was an excruciatingly difficult job in a country that averaged more than one gun per household[54] during the career of the F.F.A. Strict regulation of gun dealers could have done part of the job, but would have required enormous federal effort, particularly since the great majority of all states did not require licenses of gun purchasers.[55] And even if all dealers were regulated, about half of all guns are acquired used in the United States, and more than half of these guns are acquired from private individuals.[56] The only way to attempt to control this secondary or hand-to-hand market would be the registration of firearms in order to reduce the hand-to-hand "float" of guns from eligible to ineligible owners.[57] Yet few states had handgun registration during the life of the F.F.A.,[58] and no state required the registration of all weapons.[59]

This is not to say that the Federal Firearms Act was useless, or that more energetic enforcement would not have made some impact on the problems created by the criminal use of firearms. The F.F.A. provided an additional charge that could be lodged against a suspect arrested by authorities for another offense and found in possession of a gun he was prohibited from acquiring; even after the presumption that such a gun had been in interstate [Page 143] commerce after the F.F.A. became effective was struck down,[60] it was often possible to trace the commercial history of the particular gun and file federal firearms charges against a defendant in lieu of or in addition to the offense for which he was arrested.[61] The law also could be and was used as a tool to generate criminal liability for a convicted felon who had come to the special attention of federal authorities for other reasons¾in much the same fashion that Al Capone’s income tax, rather than the origins of his income, proved his undoing.[62]

Although Homer Cummings was disappointed, the record seems to indicate that Congress got pretty much what it wanted in the F.F.A.: a symbolic denunciation of firearms in the hands of criminals, coupled with an inexpensive and ineffective regulatory scheme that did not inconvenience the American firearms industry or its customers. The justice Department continued to recommend more extensive firearms legislation for a few years,[63] but the Department’s emphasis on such proposals faded after Cummings’ departure in 1939. Whatever the faults of the F.F.A. as a regulatory scheme, they went unnoticed in a nation where violent crime rates had been declining since the mid-1930s, and the larger issues of war and economic recovery preoccupied public attention.

The period from 1939 (when the initial regulations under the F.F.A. were issued) through 1957 (when new regulations were proposed) was almost completely uneventful in relation to federal firearms control. There was also very little legislative activity on the state and local level.

In 1957 the Commissioner of Internal Revenue proposed a number of changes in the regulations governing the manufacture and sale of firearms [Page 144] under the F.F.A., including a serial number requirement for all firearms, a rule requiring that "permanent" dealer-records be maintained permanently rather than the six years provided in the earlier regulations, and a series of changes in the type of records that dealers were required to keep.[64] The proposals, encountered stiff opposition from industry and gun-user groups, and the regulations adopted in 1958 were somewhat less ambitious: the record requirement was set at ten years, and serial numbers were required for all firearms except .22-caliber rifles.[65] More important than the details of these regulations was the continued low profile maintained by the Internal Revenue Service in the enforcement of the Act, and the lack of any evident pressure on the Service or on the Congress for more stringent controls. While rates of violence remained high in the United States in comparison with other western industrial countries, violent crime rates were at far lower levels than had been experienced in the 1920s and ‘30s, and the public fear of crime had diminished to levels that, in hindsight, symbolized domestic tranquility.

The first indication that a further federal role in firearms regulation might come, and the first modem origin of the Gun Control Act of 1968, was the increase in inexpensive imported firearms, largely military surplus, that started to make serious inroads into the United States market in the mid-1950s. In 1955 domestic manufacturers produced 556,000 rifles for the United States civilian market, and only 15,000 rifles were imported into this country for domestic sale;[66] by 1958 the number of rifles imported into the United States had increased to 200,000 whereas domestic production had fallen to 405,000.[67]

In 1958 Senator John F. Kennedy of Massachusetts, a gun-producing state, proposed a bill to prohibit "the importation of firearms originally manufactured for military purposes."[68] This frankly protectionist bill did not pass, but the Congress did prohibit the re-importation of those weapons that the United States had sent abroad under its foreign-assistance act.[69]

Foreign handguns, both military surplus and new production, began to make some impact on the United States market during the same period. In 1955, about 67,000 handguns were imported for sale to United States civilians. By 1959 annual imports were 130,000; by 1966 the figure rose to 500,000; and by 1968 unit volume of imported handguns had exceeded the million mark.[70] The inexpensive, low-caliber, new-production handguns that com- [Page 145] prised the bulk of United States imports by the mid-1950s did not present the same type of direct competition to established American firms as the rifle imports of the 1950s¾domestic handguns were thought to be of higher quality, and the civilian handgun market was growing quickly enough after 1965 to accommodate substantial increases in both domestic and imported weapons.[71] Yet the imported handgun was a specially vulnerable weapon to legislative attack, because it was cheap and thus available to a broader spectrum of the population, it was without the redeeming social virtue of a law enforcement or sporting use, and the importers of such weapons had far less political influence than domestic manufacturers.[72]

Some observers have suggested a direct connection between the increase in gun imports and the renewal of congressional interest in the easy availability of guns in the United States,[73] but the evidence on this is Spotty.[74] When Senator Thomas Dodd of Connecticut (a major gun-producing state) became chairman of the Senate Subcommittee on juvenile Delinquency in 1961, he "directed the staff of the Subcommittee to initiate a full-scale inquiry into the interstate mail order gun problem."[75] During 1961-1962 staff studies of mail order guns sold to residents of the District of Columbia and several states provided evidence that "criminals, immature juveniles, and other irresponsible persons were using the relative secrecy of the mail order-common carrier method of obtaining firearms, because they could not purchase guns under the laws in their own jurisdictions."[76]

Armed with these studies, the Dodd Committee conducted hearings in 1963 that sought to draw public attention to Dodd’s proposal to prohibit the sale of handguns by mail order to persons under eighteen, and require a notarized affidavit to be submitted with handgun mail orders stating that the customer was old enough to purchase the gun and otherwise legally entitled to receive it.[77] The emphasis in these hearings was on the mail order mechanism, juveniles and felons as purchasers, and "the cheap products which are so fre- [Page 146] quently sold via mail order."[78] The bill was drafted with Department of the Treasury help, and received support from an industry spokesman at the 1963 hearings.[79]

Five days after the assassination of John F. Kennedy, Senator Dodd amended his bill to cover mail order traffic in shotguns and rifles.[80] The bill died in the Senate Commerce Committee in 1964,[81] but the forces leading to the adoption of the Gun Control Act of 1968 were already at work.

In March of 1965, President Johnson sent Congress a message on crime that requested an extension of the federal role in firearms regulation.[82] The administration proposal, introduced as Senate Bill 1592, had been drafted by the Treasury staff with support from the Department of Justice. The bill contained most of the key strategic elements of the Gun Control Act of 1968: increases in the fees and regulation of firearms dealers; a federal minimum age requirement for handgun (21) and long gun (18) purchase; and a prohibition of handgun sales to residents of another state. The bill was not referred out of committee.[84]

In January 1967 a similar bill was introduced by Senator Dodd and later amended to conform to the administration proposal forwarded that February.[85] The bill was referred to the Judiciary Committee, the parent committee of Dodd’s Subcommittee on Juvenile Delinquency. In April 1968, after failing to support the administration proposal, the Judiciary Committee reported out a bill modeled on the President’s proposal but limiting the ban on sales to citizens of another state to handguns.[86] This bill became Title IV of the Omnibus Crime Control Act of 1968, passed by the Senate in May 1968 and by the House on June 6, the day after the shooting of Robert F. Kennedy.[87] [Page 147]

In the aftermath of the Robert Kennedy assassination, a number of new firearms control measures were introduced, and the proposal to ban interstate sales of long guns received new support. In October 1968 a revised Gun Control Act was signed by the President.

During the debates on the Gun Control Act and its predecessors, two other strategies of federal gun control were widely discussed. One was the creation of federal jurisdiction and mandatory prison sentences for violent crimes committed with guns.[88] This type of proposal was generally offered as an alternative to stricter controls on gun traffic by legislators generally opposed to gun-control laws. It received at least symbolic approval in the Gun Control Act’s provision for additional penalties when crimes which are federal felonies are committed with guns.[89] A second approach widely discussed after the Robert Kennedy assassination was for some system of federal firearms owner registration or licensing.[90]

The Gun Control Act of 1968, like its 1938 ancestor, was thus something of a compromise candidate at the time of its passage-representing concessions on the part of those opposed to any further federal controls and those who desired extensive further federal involvement. The primary goal of the statute, federal assistance to state efforts at control, was not the chief aim of its sponsors nor the principal fear of its opponents.

There are other parallels between the processes leading to the 1938 and 1968 Acts. In each case, administrative concern, spearheaded by the justice Department, provided a necessary, if not a sufficient, backdrop for congressional action.[91] And the symbolism of gun control seemed more important to the vast majority of Congress than the specifics of regulation. Finally, the gun control issue remained a relatively unimportant one for the Congress. No serious effort was made to oversee or evaluate the administration of the Act.[92] No committee of Congress maintained any special competence in the substantive issue of federal gun regulation.[93]

The links between domestic violence during the 1960s and the 1968 Act are important but susceptible to overstatement. The John Kennedy assassina- [Page 148] tion helped focus attention on the ready availability of mail-order guns; the Martin Luther King and Robert Kennedy killings put pressure on Congress at crucial points in the legislative career of the Act, just as the escape from jail of John Dillinger had expedited the passage of the National Firearms Act of 1934. But the basic approach of the 1968 Act had been worked out by the Treasury Department in 1965. And the only legislative initiatives produced by the Robert Kennedy shooting, a series of proposals for a national strategy of licensing gun owners, did not affect the shape of the 1968 Act.

If the violence of the mid-1960s had little impact on the provisions of the Gun Control Act, it had a profound effect on the problems that the act addressed. Urban riots during the period 1964-1968 and increased fear of crime had a manifold impact on the quality of American urban life. One consequence of this increasing turmoil and fear was an increased demand for firearms as instruments of self-defense, particularly in big cities. Handgun sales, the best index of demand for urban self-defense weapons, averaged 600,000 a year during the first four years of the 1960s; by 1966 the market for handguns had doubled to 1.2 million; by 1968 the market had almost doubled again, to an estimated 2.4 million, although this figure may have been abnormally high because importers and private citizens were rushing to purchase imported handguns before the import restrictions in the 1968 act came into effect.[94] The increase in urban gun ownership was paralleled by an increase in urban gun violence. Perhaps the most spectacular case study of gun violence was the city of Detroit. In 1965 Detroit experienced a total of 140 homicides; 55 of these, or 39 per cent, were committed with guns. Three years later 72 per cent of Detroit’s 389 killings were committed with guns.[95] The increase in gun violence in other urban areas, though less pronounced, was steady and substantial: during the period 1964-1968, gun homicide in the United States had increased 89 per cent, while homicide by all other means had increased 22 per cent.[96] By 1969 a simple majority of homicides in major urban areas were committed with handguns, and the interstate flow of handguns into cities with restrictive state and local controls was greater than at any other time since the 1930s.[98]

II. THE ENDS AND MEANS OF THE GUN CONTROL ACT

The Gun Control Act signed by President Johnson on October 22, 1968, was an omnibus measure reflecting a variety of congressional purposes. [Page 149] Included in the Act were amendments to the National Firearms Act of 1934, extending its coverage and relatively prohibitive tax to "destructive devices" (bombs, hand grenades, land mines, and similar mechanisms) and altering the registration provisions of the N.F.A. to rescue its registration requirement from a successful 1968 constitutional challenge.[99] The Act also mandated additional penalties for persons convicted of committing federal crimes with firearms.[100] But the major objectives of the Act were three:

(1) Eliminating the interstate traffic in firearms and ammunition that had previously frustrated state and local efforts to license, register, or restrict ownership of guns.

(2) Denying access to firearms to certain congressionally defined groups, including minors, convicted felons, and persons who had been adjudicated as mental defectives or committed to mental institutions.

(3) Ending the importation of all surplus military firearms and all other guns unless certified by the Secretary of the Treasury as "particularly suitable for ... sporting purposes."[101]

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, whether or not such a business involves interstate commerce.[102] 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 for all federal licenses were increased (the dealer license from $1 to $10),[103] minimum standards for licensees were set,[104] and the Secretary of the Treasury was given broad powers to establish mechanisms for regulating licensed manufacturers and dealers.[105]

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 alms with a series of criminal prohibitions. [Page 150]

A. State Aid

To effectuate the state aid goals of the Act, all nonlicensees 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;[106] and dealers were prohibited from shipping to private citizens in other states and from selling to those who the dealer knew or had reason to believe resided out of state.[107] In the regulations promulgated under the Act, 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 Alcohol, Tobacco and Firearms agents.[108] Thus, while the Act required the same showing of knowledge or notice to convict the dealer as the Federal Firearms Act of 1938, the duty of the dealer to obtain identification made a sale to an out-of-state resident depend on either false identification by the customer or willful law violation by the dealer. Private citizens, who could sell a gun or two from time to time, were not under a duty to verify the name and address of a transferee or to keep a record of the transaction.

The regulation of interstate traffic (in the Act and its regulations) was stronger than under the Federal Firearms Act, but there were, of course, opportunities for evasion. The sale of guns by nondealers was, from the beginning, outside of any record-keeping requirement of the Act. For a private party, the knowing transfer or interstate transportation of firearms was illegal but rarely dangerous.[109] Moreover, enforcing the ban on sales to residents of another state required federal agents to inspect the forms kept by the dealers.

The credibility of the enforcement system was tied from the outset to the amount of manpower the government invested in inspecting dealer records. However, from the dealer’s standpoint there was much greater risk in maintaining a high volume of illegal sales than was true before the Act, inasmuch as thorough periodic inspection could turn up patterns of illegal sales. For nondealers who used false identification to obtain guns and transport them to other, states the threat posed by the record system was far more modest; the use of a false name in a federal form meant that inspection of the form and an attempt by enforcement personnel to verify the identity of the purchaser could show that the law was broken but would give no clue as to who broke the law or where the gun or offender could be located. A nondealer [Page 151] could spread his purchases out among a number of legitimate dealers, thereby obtaining a fair number of guns with relative safety for long periods of time. In order to apprehend violators of this type, enforcement agents would have to intervene at the other end of an interstate, transaction, making, through undercover work) sales of firearms by nonlicensees hazardous.

Some of the problems associated with enforcing the ban on sales to nonstate residents can be tied to the decentralized nature of the firearms transaction records under the Act. The decision to keep records decentralized was made by the Treasury and endorsed by Congress[110] in part to keep the regulatory aspects of the federal law distinct from any system that could be called "gun registration." The decentralized records were a tightened-up version of the record-keeping required by the Federal Firearms Act of 1938, whereas "registration" was the second dirtiest word in the vocabulary of any opponent of federal firearms regulation (confiscation was the ultimate expletive but the two were often equated).[111] In part, the bad reputation of "registration" may stem from the use of a registration requirement in the National Firearms Act-where the real legislative intent was to reduce drastically ownership of covered weapons.[112] But whatever its origins this fear of central records is reflected in both the Gun Control Act and the regulations issued under its mandate.

B. Ownership Prohibitions

The second major aim of the Gun Control Act was to extend the list of classes prohibited by federal law from gun ownership and to strengthen the regulatory mechanism designed to enforce the federal prohibition. The Federal Firearms Act had prohibited the receipt of a firearm by felons, fugitives from justice, persons then under felony indictment in state or federal courts, and persons not qualified to own the firearm in question in their state or locality.[113] The list of prohibited classes in the 1968 Act was larger in the number of persons prohibited and included a wide variety of disqualified classes. The new federal prohibition barred licensees from the knowing transfer of a gun or ammunition to:

(1) Minors (under eighteen for shotguns and rifles; under twenty-one for handguns). [Page 152]

(2) Persons convicted of a state or federal felony, as well as the fugitives and defendants under indictment covered by the F.F.A.

(3) Adjudicated mental defectives and any person who had been committed to a mental institution.

(4) Persons who are* unlawful users of or "addicted to marijuana or any depressant or stimulant drug . . . or narcotic drug."[114]

In addition to these prohibitions, it was unlawful for any person in the prohibited classes to receive any firearm or ammunition that had been shipped in interstate commerce.[115] And Title VII of the Gun Control Act also prohibited felons, persons who have received dishonorable discharges former United States citizens and aliens illegally from the Armed Forces, in the United States from receiving, possessing or transporting guns "in commerce or affecting commerce."[116]

The purpose of these prohibitions was to deny access to guns and ammunition to these defined special risk groups or, failing that, to punish possession of a firearm as a federal offense whether or not the possession was in violation of local law. In order to understand how these prohibitions might work in practice, it is necessary to refer to the general scheme of regulation established by the Act. Since it is unlawful for a dealer, manufacturer or importer to transfer a firearm or ammunition to a nonlicensee only if the transferor knows or has reason to believe his customer is ineligible to receive the commodity, the dealer can be apprehended for violating the law only when the regulations governing his transfer require him to verify his customer’s eligibility.[117]

The federal ban on sales to minors was supported by a regulation requiring the dealer to verify his customer’s age by inspecting a document that shows the age on its face.[118] Unless the customer uses false identification, minors cannot buy guns from dealers who are in compliance with the Gun Control Act. This is not to say that firearms were unavailable to minors; guns could be purchased from nondealers, who were not required to verify age prior to transfer, and minors could always persuade adults to buy guns for them from federally licensed dealers. But the direct sale from dealer to minor was regulated by the verification requirement, in the same way that the ban against sale to nonresidents was supported by the requirement that a transferee’s address be verified.[119]

The ban against sales to felons, drug users and other prohibited classes was not supported by a similar verification procedure. A dealer needed only [Page 153] to take his customer’s word for the fact that he was not ineligible to receive a gun or ammunition; the customer who made false statements of this kind would be criminally liable if the transaction were later investigated, but the dealer was not in jeopardy. Thus, while obtaining a firearm is illegal for these persons, the regulation of dealers did not shut off the access to guns for those who were willing to misrepresent their status.

The Act’s limited dealer verification system approaches the natural boundaries of personal identification in the United States today. Age and address are two elements of personality that appear on drivers’ licenses, selective service cards, and other significant documents that almost all adults carry. We do not live in a society that issues cards to all citizens showing whether they have been committed to mental institutions or convicted of felonies. Verification of such status would thus have to depend either on taking the customer’s word for it (and auditing transfer records later to detect misrepresentation), or on creating separate screening procedures. One method of dealer verification would be a system where the dealer forwards a notice of a proposed transaction to a federal agency, which then checks a central record file to determine a customer’s eligibility. Such a system, if designed to verify eligibility before purchase, would require a waiting period before any covered firearm could be purchased. It would also require centrally stored federal records of all the data relevant to determining eligibility, or elaborate referrals to other state or federal record files.[120] An alternative system would be for persons who desire to purchase guns to establish their eligibility in advance by applying for a license and use the license as the means by which the dealer verifies that he is making a lawful firearm or ammunition sale.[121]

The Gun Control Act of 1968 stopped short of mandating either licensing or the cumbersome nationwide verification of individual transactions. With respect to felons, mental defectives, and drug users, the dealer’s position under the 1968 Act is similar to his status under the Federal Firearms Act of 1938. The illegal customer may, however, be at greater risk. If a felon uses his own name and lies about his eligibility on the Form 4473 he is required by regulation to fill out, an audit of the dealer and check of the customer’s criminal record will show he had violated at least two federal criminal laws,[122] and he can be traced from the purchase record.[123] If the customer uses false identification, gets someone else to buy from a dealer, [Page 154] or buys from a nonlicensee, the federal record system will not constitute a direct threat to him. However, if state or federal agents find him with a gun, a check of existing records will show whether the firearm was sold after the effective date of the Act and was thus received by him in violation of federal law.[124]

In sum, the scheme of regulation adopted in 1968 was of limited use in making firearms more difficult for ineligible classes to obtain, but the federal prohibitions and record-keeping requirements made it possible to convict persons ineligible to have guns if they were later apprehended with a firearm.

C. Limitation of Imports

Two provisions of the Gun Control Act of 1968 establish a federal strategy for limiting imported guns. Section 922(1) declares it unlawful "for any person knowingly to import or bring into the United States any firearm or ammunition . . ." or "knowingly . . . to receive" any imported firearm or ammunition "except as provided in section 925(d)."[125] Section 925(d) allows the Secretary of the Treasury to permit importation if "the person importing . . . the firearm or ammunition establishes to the satisfaction of the Secretary" that the firearm

(1) is being imported for scientific, research or training purposes; or

(2) is unserviceable and is being imported as a curio or museum piece; or

(3) is not a weapon covered by the revised National Firearms Act "and is generally recognized as particularly suitable for or readily adaptable to sporting purposes, excluding surplus military firearms"; or

(4) is being reimported by the person who took it out of the United States.[126]

Apparently, the Secretary of the Treasury was not compelled by the Act to permit the importation of any firearm or ammunition (he "may authorize" imports, rather than being told he "shall authorize" them), but he is forbidden to authorize imports except in the four circumstances outlined above. Of the exceptions listed by the section, only subsection (3) is of importance to the importation of firearms for the civilian market. Subsection (3) expressly bans the importation of surplus military firearms and allows the authorization of other firearms and ammunition only if they are "generally recognized as particularly suitable for or readily adaptable to sporting purposes."[127]

While the general intent of Congress in limiting firearm imports is reason- [Page 155] ably clear, the intended scope of the exception in section 925(d) is not readily discernible from its language or legislative history.[128] The term "sporting purposes" is not defined in the statute, making it difficult to give a meaning to the phrase "particularly suitable to sporting purposes." Does this mean that a firearm must be a fungible sporting weapon, as useful as but no more useful than a domestically produced firearm, or that a firearm must be in some way uniquely suitable to a particular sporting purpose, so that exclusion of the gun would deny United States residents access to a form of shooting sport? If the latter is the correct interpretation, why must a gun that needs no adaptation be "particularly suitable," while a gun that needs adaptation must only be "readily adaptable" to a sporting purpose?

There are reasons to suppose that Congress wanted to give this exception a narrow meaning. The other exceptions described in section 92 5 (d) are quite specific and apply to particular firearms rather than classes of firearms, and the language introducing the section appears to give the Secretary discretion to ban the import of even those weapons that could qualify under 925(d).[129]

The regulations issued to implement the ban on importation delegated responsibility for approving import permits to the Commissioner of Internal Revenue and provided that he could decide the "sporting purposes" issue "with the assistance of an advisory board to be appointed by the Commissioner."[130] The regulations did not attempt to define what was meant by "sporting purposes." They did, however, provide for the compilation of an "import list" of firearms, thereby permitting the approval of guns for import in large numbers by different firms, once the specific model had been approved.[131]

It is difficult to characterize with precision the theory that animated the provisions of section 925(d) and its supporting regulations. As "protectionist" legislation, the ban on military surplus makes sense, but the further restriction on firearms not suitable for sporting purposes is puzzling. Certainly a simple ban on military surplus would have produced fewer objections to the effect that the United States was discriminating against its trading partners by prohibiting the importation of weapons it allowed to be domestically produced.[132] Further, the "sporting purposes" test would seem to have [Page 156] allowed the importation of firearms, particularly shotguns, that had been troublesome competition for American manufacturers,’" while excluding firearms, particularly low-priced handguns, that had not posed an important competitive threat to the established United States firearms industry.[134] Finally, if the scheme of regulation was protectionist, one would have expected a more protectionist interpretation of the broad powers delegated by Congress than turned out to be the case.[135]

At least in part, Congress seems to have been responding to a perceived threat to public safety that resulted from the importation of low-priced "Saturday Night Specials" from abroad. Testimony before Congress suggests three themes associated with these guns: (1) they were cheap and plentiful; (2) they were low-quality and unsafe; (3) they were used in violent crimes. The image projected was not just that of a gun but of a gun and a user class. And the goal implicit in the legislation apparently was to reduce access to guns for high-risk groups by restricting the supply of cheap guns, particularly cheap handguns.[136]

If this was the congressional design, the legislative scheme was deficient in at least three respects. First, there was no guarantee that imposing a "sporting purposes" test would automatically reduce the number of cheap imported handguns involved in crime. Second, while the law covered both firearms and ammunition, it did not explicitly cover the importation of firearms parts; while the Act defined two major parts of a firearm as "firearms" and thus subject to restriction, other parts could be imported from abroad and assembled in the United States.[137] Finally, of course, there was no guarantee that the same weapons that had been imported could not be domestically produced at slightly higher price and cause the same problems. A ban on imports might have important short-run effects on civilian acquisition of firearms and some long-term impact as a result of increased prices. But if the law was addressed to the issue of civilian ownership of firearms unsuitable for sporting purposes, the artificial distinction between foreign and domestic manufacture in the Gun Control Act of 1968 left an aura of [Page 157] cognitive dissonance that was to become one of the major gun control issues of the 1970s.

III. MEASURING THE EFFECTS OF THE ACT

With relatively minor amendments,[138] the Gun Control Act of 1968 has been the governing federal firearms control policy for more than five years, a period sufficient to invite inquiry about its impact. This part of the article (1) presents data on the administration of the Act, (2) explores the rate of civilian acquisition and use of handguns after the "Saturday Night Special" ban, and (3) analyzes how the act affected the interstate flow of handguns into states and cities that attempt to restrict gun ownership.

A. Administering the Act

One important lesson to be derived from studying the Federal Firearms Act of 1938 is the critical role played by those who administer and enforce firearms legislation. Enforcement of the 1968 Act¾as was the case with the two prior efforts at firearms control¾was vested in the Department of the Treasury and, within the Treasury, in the Bureau of Internal Revenue. In 1942 the Commissioner of Internal Revenue assigned firearms enforcement responsibility to a division within his bureau that supervised the tax collection, regulation and criminal enforcement functions of federal law in relation to alcohol and tobacco. The Alcohol, Tobacco, and Firearms Division (A.T.F.) had a central office in Washington, with a director who was subordinate to the Commissioner of Internal Revenue, and seven regional administrators, each responsible to the Regional Director of the Internal Revenue Service. In 1972 the Treasury reorganized A.T.F. as a separate bureau, no longer under the Commissioner of Internal Revenue.[139]

The old A.T.F. division had been responsible for both criminal enforcement and regulatory enforcement of federal firearms laws since 1951, but firearms regulation had a relatively low priority and a small share of the division’s manpower was detailed to firearms enforcement.[140] The Gun Control Act of [Page 158] 1968 and support within the Administration for firearms regulations shifted the manpower priorities of A.T.F. rather quickly. During fiscal 1968, the last full fiscal year prior to the Act, 311 man-years were listed as devoted to firearms enforcement.[141] In fiscal 1970, the first full year after the Act went into effect, enforcement effort was reported as 814 man-years.[142] Thus, an early impact of the Act and of the interest in gun regulation that motivated its passage was to put the federal government in the firearms regulation business at a level of manpower that was much greater than in prior years.

The two major areas in which A. T. F. invests manpower are "regulatory enforcement" and "criminal enforcement" of the federal firearms laws.[143] Regulatory enforcement is the supervision of federal licensees¾importers, manufacturers, and dealers. At the dealer level, the key tasks of regulatory enforcement are the investigation of initial applications for dealer licenses and compliance investigations to determine whether dealers are conducting business in accord with federal law. The investigation of an initial application involves an inspection of the proposed premises, a background investigation of the applicant, and an interview about the nature of the business that is contemplated. A compliance investigation involves re-inspection of business premises, inspection of the dealer’s records, and an audit of a few firearms transaction report forms to determine whether the information is recorded properly and whether a check of the customer’s listed address and criminal record shows any violation of federal law. Apparent violations of law may, in the agent’s discretion, be referred to the criminal investigation staff in the same A.T.F. office for further investigation.

A larger share of A.T.F. manpower is devoted to criminal enforcement activities by special agents with arrest powers.[144] While regulatory enforcement is focused on dealers with federal licenses, criminal enforcement activities are devoted to the broad spectrum of illegal firearms possession and traffic. A relatively small part of criminal enforcement work involves licensed dealers-estimated at less than 30 per cent, with no precise breakdown available.[145] Other types of investigation include undercover work to find black-market sellers, investigation of persons who are suspected of illegal possession as a result of information passed on by regulatory enforcement [Page 159] staff, local police or informants, and investigation of persons who are special targets of local or federal authorities.

Available statistics, though incomplete, give some indication of A. T. F. performance after the Gun Control Act of 1968 came into existence. As to regulation, the first effect of the Act was to generate the need to make a large number of investigations of applications for dealer licenses. The Treasury had hoped that raising the annual fee for federal dealer licenses to ten dollars and instituting standards for -granting licenses would reduce the number of persons applying for licenses, thereby making meaningful regulation of dealer activities feasible. But the higher fee was offset by the fact that, after the Act, the only way to receive firearms in interstate commerce was to obtain a federal license. The number of dealer and collector licenses in effect never dropped below 60,000[146] and is presently estimated at 160,000, compared to about 100,000 during the early 1960s.[147]

The need to investigate license applications reduced the manpower available for compliance investigations and, to some extent, for criminal enforcement initiatives. The press of putting the law into effect, and the decentralized tradition of A.T.F. activities, also put limits on the ability of A.T.F. to invest resources in strategic planning to define priority problems and measure the effectiveness of regulatory and criminal enforcement efforts. And the focus on initial applications and other "start-up costs" associated with the Act were followed, in 1970, by a federal law requiring A.T.F. to regulate explosives.[148]

Yet criminal enforcement activities did pick up substantially, as shown by the summary data on federal firearms cases for the fiscal years 1968-1973 in Table 1.

TABLE 1 FEDERAL FIREARMS LAW CASES RECOMMENDED FOR PROSECUTION, INDICTMENT AND CONVICTIONS BY FISCAL YEAR¾1968-73
		1968	1969	1970	1971	1972	1973
Cases Recommended for
	Prosecution by A.T.F.	375	1341	3212	3407	4031	3283
Indictments		175	331	1309	1888	2444	2257
Convictions		89	178	577	1148	1451	1719
Source: U.S. Treasury Dep't. Bureau of Alcohol, Tobacco and Firearms, Statistics Division.

[Page 160]

As Table 1 shows, cases recommended for prosecution rose from 375 during fiscal 1968 (the last full year before the passage of the Act) to over 3200 during 1970 (the first full fiscal year after). Convictions, which occur some time after enforcement efforts end, increased from 89 during fiscal 1968 to 1148 during fiscal 1971.

Some data are available on the pattern of criminal enforcement before and after the Gun Control Act. The statistics division of A.T.F. records information on charges recommended and results by the title in the Gun Control Act under which charges were recommended. This gives some indication of the type of activity that led to the recommendation of charges, because Title II of the Gun Control Act deals with machine guns, sawed-off shotguns, and destructive devices subject to special taxes and registration, while Title VII of the Act deals exclusively with the receipt or possession of firearms by prohibited classes. This type of reporting does not give an accurate picture of the extent of enforcement activity relating to interstate flow of weapons, inasmuch as Title I of the Act, which prohibits such transfers, also prohibits dealing in firearms without a federal license and a variety of other activities.[149] Table 2 shows the pattern of criminal enforcement by fiscal year for A.T.F. referrals for prosecution.

The figures in Table 2 suggest a continued heavy emphasis by A.T.F. on

TABLE 2 PERCENTAGE DISTRIBUTION OF CASES REFERRED FOR PROSECUTION BY TYPE OF CHARGE BY FISCAL YEAR 1968-73
		1968	1969	1970	1971	1972	1973
National Firearms Act
	Charges (N.F.A. Title II of the Gun Control Act
		55	49	36	42	39	39
Prohibited Persons Re-
	ceiving or Possessing a Firearma (Federal Firearm Act and Title VII of the Gun Control Act
		39	39	35	34	27	29
Title I of Gun Control Act				22	19	30	28
Combined Chargesb		5	12	7	5	4	4
	Total	100%	100%	100%	100%	100%	100%
		(375)	(1341)	(3212)	(3407)	(4031)	(3283)
a Includes any case with a Title VII recommendation. b Excludes Title VII cases. Source: U.S. Treasury Dep't, Bureau of Alcohol, Tobacco & Firearms, Statistics Division.

[Page 161]

the special class of weapons regulated under the provisions of the amended National Firearms Act (heavy in relation to the number of such weapons in circulation), and indicate that at least as many prosecutions are recommended because a prohibited person has been found in possession of or has received a firearm as are the result of detecting violations of the ban on sales to nonstate residents and illegal transportation and sales.

What these figures do not show is the proportion of A.T.F. enforcement effort that is devoted to the "state aid" aims of the Act, or the impact of A.T.F. criminal enforcement on the flow of guns. No figures are kept on the proportion of criminal enforcement effort or referrals that relate to dealers or major traffickers, or on the number of firearms involved in the transactions investigated.

A humbling comparison can be made between the enforcement resources available to A.T.F. and the size of the problem it is charged with policing. About 5,000,000 new firearms were sold on the civilian market in 1973, and approximately the same number of used firearms changed hands. Audits of firearms transaction records show apparent irregularity in a large enough proportion of these to generate several hundred thousand criminal investigations a year if all transaction forms were audited, and that is not the major source of the illegal interstate movement of firearms.[150] There may be as many as half a million violations of the Gun Control Act of 1968 each year, with most of them at least one step beyond the record system imposed on dealers and first-purchasers. Criminal investigation of transfers outside the record system requires a considerable amount of manpower, invested in proactive police work aimed at detecting victimless crime. Under these conditions the primary determinant of the degree of enforcement will be the resources committed to enforcement. And as the dip in case referrals for 1973 might suggest, manpower allocated to A.T.F. firearms enforcement has remained relatively stable in the past two years.[151]

If limited manpower is one major constraint on achieving the "state aid" purposes of the Act, lack of information on the pattern of illicit traffic in firearms has also proved to be a major obstacle. Prior to 1972 there were no major investigations by the Bureau of where the firearms that were frustrating state and local gun control efforts came from. A series of studies of interstate handgun traffic was begun in 1972 and will be referred to in the discussion of the impact of the law on the interstate gun problem. Information [Page 162] on the number of firearms produced in the United States was not compiled by A.T.F. until 1972, and data on firearms sales in the various states and regions are still not available.

A further limit on the ultimate effectiveness of A.T.F.’s enforcement effort has been the types of firearms traffic left uncontrolled under the Act and the regulations established to govern its enforcement. Detailed records of firearms transfer by dealers are now required, but these records are kept by the dealer and are only accessible to the Bureau during compliance investigations or when agents are alerted to a particular gun or dealer as a result of other information.[152] Whatever value firearms transaction records would have -in providing. a picture of retail firearms traffic and in putting the Bureau on notice of special high-risk high-volume sales patterns-was sacrificed to decentralization. And nondealer gun transfers-probably 30 per cent of total gun traffic and a far higher proportion of illegal sales[153]¾are not subject to any federal record-keeping requirement.

A final limit on the effectiveness of Bureau efforts is the sheer volume of firearms in civilian hands. Regulation of firearms traffic as a whole differs from efforts to control submachine guns and hand grenades, not in degree but in kind. The number of National Firearms Act weapons in civilian hands in the United States is small, and federal law was explicitly designed to keep ownership low.[154] Civilian firearms ownership exceeds 100,000,000,[155] and any federal efforts at regulation must involve only a small percentage of gun transactions or an enormous regulatory effort. For example, the director of A.T.F. reported an estimated 25,000 dealer-compliance investigations during fiscal 1973;[156] a sample of 100 such investigations conducted by the Chicago regional office showed an average of five firearms transaction forms were traced for criminal record and address verification in the course of each investigation. If that approximates the national average, about 125,000 transactions a year are verified in the course of the Bureau’s regulatory enforcement. That is an impressive workload, but still constitutes less than two per cent of the annual retail commerce in guns.

Notwithstanding its limits, efforts to effectuate the Gun Control Act reflect a much more serious commitment of resources and support than resulted from the Federal Firearms Act of 1938, and the 1968 Act is worthy of more attention than it has previously received. [Page 163]

B. The Saga of the "Saturday Night Special"

As previously discussed, the Gun Control Act prohibited the importation of all military surplus firearms and any other firearms unless the Secretary of the Treasury found them to be generally recognized as "particularly suitable for or readily adapted to sporting purposes."[157] This section discusses the interpretation of that provision, the impact of the law as interpreted on handgun importation, sales, and misuse, and the consequences of the "Saturday Night Special" ban on the federal firearms control debates of the 1970s.

I have previously suggested that the operative provisions of section 925(d) could have been interpreted as giving the Secretary of the Treasury power to end all firearms importation into the United States.[158] That reading, heavily dependent on the fact that the Secretary was not required to issue any import authorization, was never given any serious consideration in discussions of the Act[159] or in the regulations issued under it.[160] The argument against such a reading is strong: why would Congress so obliquely delegate to the Treasury the power to determine at will whether firearms could be imported, and why would Congress establish criteria for importation if it was delegating the power to ignore them? In any event, the Internal Revenue Service read section 925(d)(3) as requiring the Service to permit the importation of all firearms that met the standards established by subsection (3), and the "sporting purposes" test became the border between permissible and impermissible importation.[161]

Construing this provision created no major difficulty in the regulation of shotguns and rifles, for different reasons. The bulk of the foreign-made shotguns imported into the United States are of high quality and reputation. While these weapons were a major competitive challenge to American manufacturers, it would be hard to imagine a "sporting purposes" test that would exclude a large number of them. Rifle imports presented no major interpretation problem under 925(d)(3) because surplus military weapons, constituting the bulk of low-priced rifles during the late 1950s and 1960s, were excluded from the United States whether or not they were particularly suitable for sporting purposes.[162] Rifle imports dropped somewhat after the Act [Page 164] went into effect, while shotgun imports more than doubled between 1968 and 1973.[163]

The hard questions concerning the "sporting purposes" test related to handguns, because the handgun, whether domestic or imported, is not primarily a sporting weapon. In contrast to rifles and shotguns, handguns are owned more frequently in cities than in rural areas, are rarely used to hunt with, and are viewed by consumers as weapons of self-defense.[164] Handguns are carried by some hunters as a "finishing weapon" for killing wounded animals, and are widely used for informal target practice ("plinking"). But it is unclear whether these uses would or should have been considered sporting purposes, nor is it clear what kind of handguns should be considered generally recognized as particularly suited to shooting at tin cans. The essential problem, then, was that the "sporting purposes" test was something of a non sequitur when applied to handguns, because the great majority of them were not, in any event, intended for sporting purposes.

Under these circumstances, interpreting the "sporting purposes" standard was bound to cause problems. One approach would have been to prohibit the importation of any pistols or revolvers. This was apparently within the power of the Treasury but would have produced a storm of partially justified criticism, since Congress had not explicitly singled out handguns for exclusion. A second approach would have been for the Internal Revenue Service to issue regulations requiring importers to establish to its satisfaction that a particular shipment of handguns would be used for shooting-sports activities. Though this interpretation would doubtless have produced controversy, it seems most clearly in line with a congressional "sporting purposes" test: why should such a test govern importation decisions if congressional intent were not to allow the importation of only sporting weapons? Such a regulation could be justified for handguns, as opposed to rifles and shotguns, because long guns were, as a class, generally regarded as sporting weapons, while handguns were not.[165] The effect of this kind of regulation, if the burden of proof rested on the importer in each case, would have been to reduce handgun imports drastically and confine the import market to target pistols for which domestic substitutes were either unavailable or so much more expensive that seeking permission to import the weapons would be worth its considerable trouble. Whether this would have resulted in substantially re- [Page 165] ducing total handgun sales or handgun violence is a question to be considered later.

The approach taken by the Internal Revenue Service was to establish a system for grading pistols and revolvers, together with a list of approved guns that could be imported with relatively little red tape. Guns without specified safety accessories, or understated minimum size, were excluded. The import criteria for grading other weapons included gun and barrel length, type of frame construction, and weight. And the Service reserved the right "to preclude importation of any revolver or pistol which achieves an apparent qualifying score but does not adhere to the provisions of section 925(d)(3) of . . . Ch. 44, Title 18, U.S.C."[167]

The impact of these "Factoring Criteria for Weapons" was to exclude very small handguns and those without safety devices, and to create standards of frame construction and handgun weight to qualify for import. The weight requirement would differ with different weapons, because deficiencies in weight can be compensated for -by the presence of target equipment, safety features, or other graded items.[168]

There is a ring of arbitrariness about a single "passing score" determining whether or not a handgun is a "Saturday Night Special"¾a revolver with a 44-point score would not be approved, whereas one with 46 points became "particularly suited to sporting purposes." But the "Factoring Criteria for Weapons" did give a measure of certainty to the process of approving or disapproving handguns for importation. Perhaps the standards gave a bit too much certainty, in that foreign manufacturers could integrate U.S. specifications into the design of handguns.

The theories behind the various criteria chosen by the Commissioner are not explicitly set out in any public documents. Frame length and barrel length of a handgun are relevant to its concealability, and very short handguns are not likely to be used for formal target shooting. Weapon weight and frame construction may be related to durability. Safety features make it less likely that a handgun will discharge accidentally, particularly when dropped. The caliber of a handgun may be of some relevance to the likelihood of its being used for a sporting purpose (high-caliber handguns receive extra points), yet the majority of handguns used for informal "plinking" are .22 caliber, if only because .22 caliber ammunition is relatively inexpensive.

Taken together, the standards employ criteria that are to some degree relevant measures of handgun quality, whether a handgun is used for self-defense [Page 166] or sporting purposes. But neither the criteria nor the cutoff points (45 for revolvers, 75 for pistols) have become accepted standards for defining the "Saturday Night Special." In 1973, A.T.F. attempted to determine the proportion of guns in a sample of confiscated handguns that could be classified as "Saturday Night Specials." Instead of using the "Factoring Criteria for Weapons" cutoff, the Bureau used three different standards-guns retailing for less than $50, guns with a barrel length of three inches or less, and guns of .32 caliber or less. "[T]he problem of determining what percentage of the total guns traced fell in the category of ‘Saturday Night Specials’ was resolved by taking the total number of guns in each of these three categories, adding the totals, and dividing by three to arrive at what was called a ‘composite’ average."[169]

What is remarkable about the series of events that led to the "Factoring Criteria" and the list of foreign firearms approved for importation is the persistent nondefinition of the key terms in the controlling federal law. We have now traced through the three significant levels of congressional and agency declaration-the statute itself, the regulations issued to implement the statute, and the "factoring criteria for weapons." At no point in this sequence is the phrase "particularly suitable for sporting purposes" or any of its constituent terms explicitly defined. Yet at the end of this process, A.T.F. had created a set of precise criteria to govern the importation of handguns!

A major share of the responsibility for this state of affairs belongs to the draftsmen of section 925(d) and to Congress. The "sporting purposes" test was ill-suited to the task of sorting out foreign handguns, yet handgun imports were the only significant issue to be decided by that standard. While the agency charged with responsibility for administering the Act could have made a wholesale determination that almost all handguns were barred from importation, a clearer congressional mandate for such a controversial step would have been desirable.

The jurisprudence of the entire "Saturday Night Special" issue is also interesting. The attack against cheap imported handguns was powerful but pitifully underinclusive. Handguns retailing for under $50 are a major public safety problem-but so are those retailing for over $50. Imported handguns were an important part of the urban arms race of the late 1960s, but so were domestic handguns.[170] To focus on "cheap imports" created the need to find the kind of fault with these guns that would not generalize too quickly. The various complaints lodged against the "Saturday Night Special" were thus somewhat peripheral to the central problems of handgun misuse¾[Page 167] and these distortions are faithfully reflected in the standards governing handgun imports in 1974.

The effect of the import restriction on handgun importation was immediate and dramatic, as shown in Table 3, using data from the Bureau of the Census.

TABLE 3 HANDGUN IMPORTS BY YEAR, 1965-73
	1964	253,000	1969	349,252
	1965	346,906	1970	226,516
	1966	513,019	1971	345,557
	1967	747,013	1972	293,343
	1968	1,155,368	1973	309,471
Source: U.S. Bureau of the Census, Foreign Trade Division, FT246¾U.S. Imports for Consumption 1964-73.

Handgun imports in 1969, the first year under the Gun Control Act, were less than a third of 1968’s record volume of 1,155,000, and importation in later years has never exceeded one third of the 1968 total. It is also significant that the post-1968 totals are far lower than in 1967 and 1966, years when the number of handguns imported was not affected by the deadline imposed by the Gun Control Act. These figures show a linear growth in handgun imports being replaced in 1969 by a new plateau at about one third of the 1968 rate, a further dip in 1970, and a leveling off in later years at around 300,000 units.

The figures in Table 3 are from annual reports from the Bureau of the Census on specific categories of foreign trade. The data are derived from customs records and are the only estimates of imports available for the years prior to 1969. Since December of 1968, however, A.T.F. has been compiling its own figures on firearms importation, derived from forms filed by holders of import licenses. A.T.F. statistics on handgun imports tell a somewhat different story, as shown in Table 4.

The A.T.F. and Census figures are in general agreement for the years 1969-1971, showing a sustained drop in handgun imports. The A.T.F. statistics for these years are always somewhat higher than the Census figures, because the A.T.F. definition of a handgun includes certain handgun parts and marginal weapons that the Census figures exclude. For 1972, however, the A.T.F. and Census imports diverge by 150,000 guns, and the 1973 totals of 300,000 and 900,000 respectively cannot be reconciled.[171] If the A.T.F. [Page 168]

TABLE 4 HANDGUN IMPORTS BY YEAR, 1964-73
		Bureau of the Census		A.T.F.
	1964	253,000		¾
	1965	346,906		¾
	1966	513,019		¾
	1967	747,013		¾
	1968	1,155,368		¾
	1969	349,252		358,083a
	1970	226,516		279,537
	1971	345,557		357,170
	1972	293,343		439,883
	1973	309,471		900,680
a Estimate based on a thirteen-month total of 387,924. Source: U.S. Dep't of Treasury, Bureau of Alcohol, Tobacco and Firearms, Statistics Division.

figures are closer to the truth, the pattern of handgun imports shows a sustained drop followed by a sharp increase in 1972 and 1973, with the 1973 total approaching the 1968 peak. With no definitive basis for choosing between these sharply different estimates, each of which claims to be based on compilations from individual records of handgun transactions, we will simply have to plead in the alternative whenever handgun import statistics for these years are needed to assess the impact of the Act. One could hope, however, that the two federal agencies in charge of compiling these data might attempt to resolve such a glaring discrepancy.

Unless imported handguns are a distinctive social control problem, the appropriate way to measure the impact of the ban on imports is the number and type of handguns, both domestic and imported, coming to the civilian United States market. In order to acquire these data, it is necessary to study patterns of domestic handgun production. One would predict that a partial ban on imports would lead domestic manufacturers to produce more weapons. This prediction is supported by the statistics compiled in Table 5.

Table 6 shows the estimated total number of handguns introduced into the civilian market during 1963 through 1973; the disagreement on imports makes it necessary to, present both "low" (using Census statistics) and "high" (using A.T.F. statistics) estimates for 1969-1973.

Annual handgun production and imports in the first three years after passage of the Act were off more than 25 per cent from the 1968 peak-year total¾and approximately the same as in 1967. After that the "high" and "low" total estimates tell different stories. If the "low" estimate is accurate, an expansion in domestic production in 1972 and 1973 pushed the total number of handguns to nearly the two million mark, a unit volume 400,000 below the 1968 total. If the "high" estimate is accurate, increases in both [Page 169]

TABLE 5 ESTIMATED DOMESTIC PRODUCTION OF HANDGUNS FOR CIVILIAN USE BY YEAR, 1964-73
	1964	491,073a	1969	1,367,300c
	1965	666,394a	1970	1,393,690d
	1966	699,798a	1971	1,420,692e
	1967	926,404a	1972	1,667,000f
	1968	1,259,356b	1973	1,609,000g
a	Estimate based on production reported by manufacturers to the National Commission on the Causes and Prevention of Violence. See George D. Newton & Franklin E. Zimring, Firearms and Violence in American Life 172 (1963).
b	Estimate projected from production for the first six months of 1968. Ibid.
c	Estimate based on handgun excise tax collections of $6,183,000 for fiscal 1969, and $6,697,000 for fiscal 1970, and ratios of $4.34 excise tax collection per handgun in fiscal 1971. The mean ratio of excise tax collection to guns ($4.71) was divided into the mean of excise tax collections for fiscal 1969 and fiscal 1970 ($6,440,000) to derive an estimated calendar-year production of 1,367,304 handguns. Fiscal-year estimates of handgun production for 1968 and 1971 were derived from the mean of production for the two calendar years that were pertinent. Our estimate of production deviated from that of the Treasury (which simply divided total production for 1967, 1968, 1970 and 1971 by four) by a total of 112,000 handguns, or nine per cent.
d	Estimate based on A.T.F. survey of domestic manufacturers.
e	Estimate based on A.T.F. survey of "confidential industry sources."
f	Estimate based on A.T.F. survey for first six months, quarterly reports to A.T.F. for July-December. Handgun exports deleted.
g	Estimate based on quarterly report by manufacturers to A.T.F.

production and imports pushed unit volume above two million in 1972 and above the 1968 peak in 1973.

While the peak rate of 1968 may not be an ideal candidate for a base year, the figures in Table 6 suggest that the new import restrictions did have an immediate and substantial impact on the number of handguns that came into the civilian market; as might have been expected, however, domestic production expanded after the Act, and the increase in domestic capacity was equal by 1973 to about half the 1,100,000 handguns that were imported in 1968.

TABLE 6 HANDGUN PRODUCTION AND IMPORTS BY YEAR, U.S., 1964-73 (in thousands)
		Low Estimate		High Estimate
	1964	744		¾
	1965	1002		¾
	1966	1213		¾
	1967	1673		¾
	1968	2414		¾
	1969	1716		1725
	1970	1619		1672
	1971	1765		1777
	1972	1960		2100
	1973	1918		2510

[Page 170]

In part, the expanded domestic output reflected the production of domestic "Saturday Night Specials." The importation of handgun parts for United States assembly grew from a unit volume of 18,000 in 1968 to more than a million in 1972.[172] The average value of a United States handgun (as indicated by, the ratio of production to excise tax collections) fell by about 10 per cent between 1969 and 1972, during a period of general inflation.[173] Yet the impact of the importation restrictions was substantial in the years immediately following the Act and could have been even more substantial if a tighter definition of "sporting purposes" and restrictions on the importation of handgun parts had materialized.

There are two ways of measuring the impact of restricted supplies of handguns on the rate of handgun violence. The first is to compare the rate of civilian handgun acquisition with rates of handgun violence; the second is to trend the proportion of violent activities attributable to handguns over time. The first method is the most frequently used, but fails to control for the many variables other than gun availability that may influence the rate at which crimes are committed with all weapons, including guns. The second method seeks to control for other factors influencing crime rates by focusing on relative rather than absolute measures of gun use. Both approaches show the same general pattern for the period 1966 through 1973¾explosive growth in the rate of handgun usage in the period 1966-1969 followed by three years in which handgun violence continued to grow, but at a more modest rate.

Figure 1 shows trends in handgun homicide and nonfatal assault by firearms in the 57 largest United States cities. The assault figures, which are not broken down by type of firearm, should be composed of about 80 per cent handgun attacks, since 79 per cent of all firearms homicides during the period were committed with handguns in these cities.

Handgun homicides and gun assaults increase consistently throughout the period, but the rate of increase slows considerably after 1969. Assuming about a one-year lead time for guns produced or imported to reach city streets, the moderating rate of increase coincides with the reduction in new handguns entering the civilian market.

Figure 2 shows handgun homicides and firearm assaults as a percentage of all homicides and assaults, for the same cities.

Figure 2 reveals substantial increases in the percentage of homicides attributed to handguns and assaults attributed to firearms; these moderated beginning in 1969, but continued to trend upward. If, as seems likely, these percentages are related to the rate at which handguns enter the civilian [Page 171]

FIGURE 1
TRENDS IN HANDGUN HOMICIDES AND FIREARMS ASSAULTS, 57 CITIES WITH POPULATION 250,000 OR MORE, BY YEAR 1966-1973

market, both handgun attacks and the percentage of all attacks attributable to handguns should show further upward movement in 1974, particularly if the A.T.F. estimate of imports (the high estimate in Table 6) is the more accurate.

In part because of the import restrictions and their aftermath, the "Saturday Night Special" issue became the focal point for firearms-control debate in the early 1970s. Using the uneasy conceptual framework of section 925(d)(3) as a starting point, proposals to extend production controls to domestic handguns proceeded in three different directions. One set of proposals, never widely supported in Congress, used the artificiality of the distinction between "Saturday Night Specials" and other handguns as a platform for urging prohibition of handgun production and sale for the civilian market.[174] A second approach [Page 172]