This article has been stolen (with permission) entirely from user https://www.reddit.com/user/tablinum of Reddit. Permission is granted to repost with credit to him, in it’s entirety only.
The Wikipedia article for the Gun Control Act of 1968 lists its date of passage as October 22, 1968–exactly fifty years ago today (it’s a bit more complicated than this, but we’ll get to that below). With that anniversary approaching, I started doing some reading into exactly what the results were of that law beyond the Wikipedia synopsis, and it turned into quite a rabbit hole; the time between the GCA and the Firearms Owners’ Protection Act in 1986 was a circus for gun rights.
This turns out to be a hell of a detailed situation, and so I apologize in advance; this will be an obnoxious wall of text even by my standards.
Today, a great many gun rights advocates think of the GCA as the law that created the FFL environment we know today, and FOPA as the law that gave us the peaceable journey protection and closed the machine gun registry. Quite a few of them, based on this understanding, consider FOPA a loss or even a sellout by the NRA, as they consider the closed registry a large cost and the interstate transport protections a small benefit. This understanding is very far from the truth, and demonstrates just how much of the story of post-GCA gun law enforcement has faded from our subcultural memory. When you understand the legal landscape from 1968 to 1986, it becomes rapidly clear just why the NRA and its allies fought so hard for FOPA, and why they weren’t willing to throw it away to save the machine gun registry; the regulatory environment before FOPA was a disaster, and its reforms were ultimately responsible for the comparatively free environment we take totally for granted today.
The history is extremely complicated, and I’ll do my best to pull it together into a coherent and accurate package; but if you see any mistakes, please point them out. I’m working from a very large set of data that was presented for completeness, not for narrative simplicity.
It’s impossible to express enough thanks to attorney David Hardy (who worked closely with the NRA and FOPA’s sponsors to draft the bill and steer it through its rough course to passage) for recording and publishing so many of the individual details that come together to tell the story. His 1986 article for the Cumberland Law Review is shockingly detailed, citing everything from the official debate transcripts, to committee reports, to newspaper quotes, to personal correspondence, to dozens and dozens of US laws and court cases that formed the controlling case law across the history of American gun control. If this article has any weaknesses, they’re only in its very comprehensiveness: the story is drowned in the vast wealth of data as he covers every proposal and amendment in chronological order, and much of the compelling human drama that made FOPA so crucial plays out in the footnotes. Hardy also wrote a mainstream article on FOPA in 2011 which is dramatically more accessible, but goes into far less detail.
In addition, David Kopel’s eulogy for key FOPA sponsor Harold Volkmer (D-Missouri) is a readable celebration of the man’s service to our fundamental right to arms, covering several important highlights of the FOPA fight. Volkmer, incidentally, is one of those unsung heroes of our community, who continued defending gun rights through the Bad Old Days of the Clinton administration, was overwhelmingly elected to the NRA Board of Directors, joined the Board of Trustees of the NRA Civil Rights Defense Fund, and even on his deathbed made time to study and make recommendations on case proposals that had been submitted to the CRDF. But I digress. We’ll talk more about Volkmer later.
The road to the GCA:
First, it’s not exactly accurate to talk about a date of passage for the GCA of 1968 because there isn’t precisely a gun control act of 1968. It was in fact three separate laws passed in two groups. These three laws overlapped in some ways, diverged in some ways, and conflicted with each other in some ways. For example, each of the laws defined “prohibited persons,” but each gave a different list of disqualifications. One barred only dealer sales to prohibited persons, while the others barred possession by them as well. They also defined “firearm” differently and had different criteria for regaining your rights, so you might find yourself disqualified from buying but not from possessing some guns but totally barred from possessing other guns, and able to regain your rights to some guns but not others, with the scope of prohibition and relief and penalties sometimes arbitrary depending on which language the court decided to use. Even the convictions that could disqualify you varied, with some standards including certain specified misdemeanors, while others exempted certain specified felonies. It was a mess all the way down.
The story of the GCA begins in the 1950s, when the postwar surplus boom cut into American gun manufacturers’ sporting gun profits. All the militaries of the developed world had spent years building and contracting for as many rifles as they possibly could, and then the damned Germans had gone and invented the assault rifle, rendering them all obsolete for military purposes. With most of the west clamping down on civilian arms, the American market was one vast sponge of economic prosperity and relatively liberal gun laws, ready to absorb the seemingly endless stocks of yesterday’s arsenal. If you’re Remington, it’s hard to sell as many $95 Model 700s as you’d like when Hunter’s Lodge is selling K98s out of ads in Popular Science for thirty-five bucks a pop, many of them already sporterized. Domestic gun manufacturers petitioned the State Department to restrict its issuance of import permits without success (indeed, after WWII the State Department actively facilitated the mass commercial importation of surplus, reasoning that those guns were safer in American civilian hands than arming international insurgent groups). Finding no help in the Executive branch, they turned to the legislature. The first serious attempt saw an amendment banning surplus imports attached to the 1958 Mutual Security Act. Opposed by the NRA, the amendment was defeated in the Senate.
But gun manufacturers didn’t give up, and they split the pro-gun faction in Congress (some of whom were more loyal to the domestic industry than they were to the principle of free imports in particular). Through the 1960s they worked with Senator Thomas Dodd, a conservative Democrat from Connecticut (then home of over a half dozen major gun manufacturers) on a series of efforts to restrict surplus imports and mail-order gun sales, a cause in which they were joined by anti-gun representatives. As they failed to pass in the face of resistance from the NRA and its Congressional allies, these efforts actually increased in ambition, growing from early proposals that required notarized statements of eligibility and local LEO approval to buy guns by mail, into full-blown replacements for the Federal Firearms Act of 1938. By 1968, the various proposals included lists of prohibited persons, import bans, assorted bans and restrictions on interstate sales, and the expansion of the NFA to cover “destructive devices.”
Two of these ambitious bills (S. 1-90 and S. 917) passed together in early 1968. They covered substantially the same ground, but with anomalous differences that would cause many headaches in the coming decades. They created most of the FFL system we know today, locking gun sales into a restrictive brick-and-mortar model, restricting Destructive Devices, expanding the prohibited persons list to most of its current scope, and banning the importation of milsurp handguns. But the antis were not done; 1968 was a golden opportunity for them. While the bills were still being debated in the Congress, Martin Luther King Jr. and Robert F. Kennedy were assassinated; President Johnson publicly denounced the laws as a “half-way measure” that “[left] the deadly commerce in lethal shotguns and rifles without effective control.” A third bill was introduced on June 10, 1968. It added an interstate transfer ban, federal age limits for sales, more prohibited persons (uncoordinated with the other lists), restrictions on the sale and transfer of “handgun ammunition,” and mandatory penalties for possessing a gun while committing certain crimes, and expanded the import ban to all “non-sporting” firearms. All together, the provisions of the three laws constitute what we call the Gun Control Act of 1968.
The GCA in practice:
On its face, the GCA was largely acceptable to the American mainstream. The consensus we know today (that unrestricted mail-order of guns is just too scary to be acceptable) was already strong, and most Americans weren’t too upset by the idea of dealer licensing and having to buy their guns in their home states or with having to fill out a form documenting the transaction. And with all the milsurp already in the country, few people were scandalized by the import ban.
But the practical effect of the GCA would go totally off the rails as a result of two events: the ATF was made into a full bureau in 1969, and the price of sugar skyrocketed in the early 1970s.
That second seemingly unrelated event suddenly made moonshining unprofitable, and the newly expanded ATF ended up with five to six hundred field agents with very little to do, their traditional job of enforcing alcohol taxes suddenly made unnecessary. To prove that they were still relevant (and not incidentally, to please their viscerally anti-gun Executive, Richard Nixon), the ATF embarked on a series of high-profile projects to aggressively enforce the new federal gun laws. Agents and supervisors were reassigned to high-crime cities in projects like 1977’s Operation Concentrated Urban Enforcement and given quotas of prosecutions and convictions to fill. Given the choice between the difficult, time consuming, and dangerous work of infiltrating gangs and organized crime– …or shaking down honest gun dealers and collectors for procedural violations, ATF agents went after the latter hard. In 1978 William Pace, the director of an agents’ association wrote:
Enormous pressure was placed on agents…to “produce statistics.” One agent was given an advertisement from an Alexandria, Virginia newspaper offering two guns for sale. Acting undercover he purchased one (a .22 caliber target pistol) and reported that the seller was not a “dealer” and had only one other for sale, a .22 caliber rifle. He was told to return to the citizen, purchase the rifle and charge him with carrying on the business of a firearms dealer without a license…
Approximately 65 agents were transferred from the [Southeastern enforcement region] to the Washington, D.C. area for CUE. Because of the pressure exerted against them, only two of them are still in that area and only about 10 are still in the federal service. Those that were not eligible for optional retirements sought disability retirements. The Special Agent in Charge who pressured these agents was later commended by the BATF.
Also in 1978, Former enforcement agent Phillip A. Pitton wrote to a Senator his account of this era in the Bureau:
I entered the BATF, after several years of service as a border patrolman, immigrant inspector, and customs inspector, to realize a long time goal of becoming a Treasury agent. It was the biggest disappointment of my life. During those four years, I witnessed entrapment and conspiracy on the part of agents and high ranking supervisors that time and time again resulted in the arrests of honest, law-abiding citizens who had no prior arrests [sic] records. Generally these arrests resulted in [sic] the victim’s selling of three firearms to an undercover BATF agent.
In northern Illinois at that time, and probably so now, one had only to sell three firearms to be classified as a dealer in firearms. This gave enormous entrapment powers to an agent who desire [sic] to make a lot of cases to impress his supervisors. Here we had a man who owned some guns. He could go to any store and buy more. It was not illegal to own guns. Who would have thought that by selling three of his guns that he would be committing a Federal felony? Yes, in this manner hundreds of people went to jail.
Hardy describes the level of oversight of these operations in terms I can’t improve on: “At one point, the Bureau indicated that between 1972 and 1979, only seven agents were disciplined for arrest-related misconduct–and this included two oral and four written reprimands…Considering that the agency then had approximately a thousand agents enforcing firearm laws, this indicated either angelic behavior or lack of oversight. As shown infra, the former explanation is not warranted by the facts.”
The Congressional hearings before the consideration of FOPA involved the testimony of many gun collectors and legitimate dealers targeted by the ATF under their aggressive reading of the GCA. This is just a selection of that tiny subset of ATF victims:
…the lead-off witness at the first oversight hearing was a disabled veteran, set up in the gunsmithing business by the Veterans’ Administration. When approached by an informant with an offer to buy guns illegally, he had responded by telephoning BATF with the informant’s license plate number and a request for his prosecution. He was nonetheless charged with a technical violation–possession of a semiautomatic firearm with a receiver arguably, and unknown to him, meant for a machinegun. The District Court dismissed charges and apologized on behalf of the United States.
…Paul & Billie Hayes: seizure of entire inventory for six alleged improper sales; attempted license revocation after acquittal; attempted forfeiture of inventory after license issuance;
Gene Lane: attempted license revocation after acquittal; informant paid on contingency basis;
Patrick Mulcahey: prosecution of collector for “engaging in the business” of gun dealing, based upon three sales over two-year period; seizure of 89-gun collection based on that allegation; forfeiture after acquittal.
Robert Best: collector, told by one agent did not need dealer’s license, later unsuccessfully prosecuted for alleged dealing without license; Robert Wampler: same; entire collection, and some firearms stored for brother, seized, and no forfeiture action taken as of three years later.
Richard Boulin: dealer-collector prosecuted for selling firearms from collection without recording collection in dealer records; prosecution for unintentional violation, where BATF director stated even he thought conduct was legal; seizure of entire collection; unable to obtain relief from disability, since conviction was for Gun Control Act charge;
David Berry: dealer; prosecuted for inadvertent violations; conviction set aside by court
Preston Brown: hunter, arrested while on interstate hunting trip, for failure to have firearm permit while passing through a state requiring it;
Edwin Phillips: collector, prosecuted for inadvertently selling two firearms from collection to resident of another state.
David Moorhead: enforcement of strict liability, on technical point, against person with no illicit intent;
Curtis Earl: search, seizure, and unsuccessful request for indictment based on erroneous agency records;
A.W. Phillips: Attempted revocation of dealer’s license based on criminal charges earlier dismissed…
The Senate floor debate opened with a recitation of four cases, illustrative of those at which FOPA was directed. Two of the four concerned collectors charged with “engaging in the business.” … On the House floor, two of seven cases cited by Rep. Volkmer as the basis of his substitute involved collectors arrested on this charge.
…Few bills have seen as heavy a use of hearings in floor debates.
Even when the ATF blanched, other federal actors could use the GCA to extremely abusive effect:
One particularly aggravated case of overcharging was discussed at length during the Senate floor debates. It apparently involved a personal grudge on the part of a U.S. Attorney who, on his own, pressed a case Treasury had refused to take and charged the defendant with 88 felony counts, all dealing with recordkeeping. The jury took two hours to acquit on all charges. It was also pointed out that the defendant’s attorney’s fees totalled $100,000.
As you can see, one of the provisions of the GCA most weaponized by the ATF was the FFL requirement. The GCA had created these licenses as a “may issue” proposition, with only hazy guidance regarding who needed one and who should be issued one. The ATF was capricious in its own determinations. In one case, they determined that the executor of an estate that included firearms needed an FFL to dispose of those firearms. Internal ATF documents advised agents that “the term ‘engaged in the business’ is not defined in the law or regulations and is not susceptible to a rigid definition,” while simultaneously pressuring them to prosecute violations as aggressively as possible. Factors as trivial as whether or not a person placed a classified ad or possessed gunsmithing tools could be used as evidence that he was or was not “engaged in the business” depending on whether the Bureau was trying to deny a license or prosecute unlicensed sales.
The case law was equally vague, and two different standards developed in different federal districts. The test laid down in United States v. Gross held that a “dealer” is anyone who is engaged in any business of selling firearms, and that “business” is “that which occupies time, attention and labor for the purpose of livelihood or profit.” The second test (originating in United States v. Jackson), held that a person is a “dealer” if he “[has] guns on hand or [is] ready and able to procure them, in either case for the purpose of selling some or all of them to such persons as [he] might from time to time conclude to accept as customers.” You will note that this theoretically allows prosecution for “dealing” without a license of a person who does not in fact own any guns apart from the one he sold, if the prosecution argues that he presented himself as able to obtain more for sale.
Both of the tests were applied in extremely broad ways, and frequently used to prosecute collectors. In this environment, gun collectors “were required to act at their own risk, subject to felony sanctions,” with no useful way to determine ahead of time whether their actions would be considered legal. When asked by Congress to set a consistent standard, ATF director Rex Davis said that “the term ‘engaged in the business’ is not susceptible to a rigid definition…it can not be included in published regulations…the ‘standard’ changes, not only from one year to the next, but on a case by case basis.”
Hardy notes a test case organized by FOPA proponents to demonstrate the arbitrariness of the ATF’s determinations:
The accuracy of these frank appraisals was documented by one organization, which sent identical requests for advice on a given set of facts to seven agency regional offices. Two replied that no dealer’s license was needed, one sent an application for a license, one sent a question-and-answer pamphlet without further explanation, and two never replied. The last office, which was inadvertently sent two requests for the opinion, replied to one with an opinion that no license was needed and to the other with a form to apply for the license!
Under the Gun Control Act, all violations are “strict liability” offenses with an extremely high penalty: “whoever violates any provision of this chapter … shall be fined not more than $5,000, or imprisoned not more than five years, or both.” If a gun shop clerk makes a mistake on the 4473, that’s a felony. Under a strict liability standard, the prosecution doesn’t even need to show that you knew you’d committed the crime in question: imagine buying a used AR at a gun shop, walking out the door, and being arrested because the rifle’s previous owner had converted it to full-auto without your knowledge. This was the scope of power the ATF had to prosecute people who had done everything they could reasonably be expected to do to comply with the law. And boy howdy, they used that power. In this era it was a common sight at gun shows to see legitimate collectors led away in handcuffs after falling prey to an ATF setup.
The ATF was also empowered to seize any guns “used in, involved in, or intended to be used in any violation,” and the Bureau routinely seized entire collections and dealers’ entire inventory, on the grounds that a paperwork violation in one sale indicated an intent to commit paperwork violations in more sales. (The wording in the GCA was based on the standard for forfeiture of imported goods by Customs, which involves far fewer due process protections than Americans expect in the exercise of their enumerated Constitutional rights.) Case law established by United States v. 89 Firearms actually allowed the Bureau to seize weapons even when the accused person was acquitted or had the charges dropped.
After seizure, the ATF could initiate steps to forfeit the guns, taking permanent ownership for themselves (the Senate committee noted that as the years progressed the ATF showed a pattern of targeting increasingly valuable guns for forfeiture). But the owner’s opportunity to contest began only when that forfeiture was initiated, and they could opt to delay that process for up to five years; this allowed them to simply withhold a dealer’s entire inventory with no legal recourse for the victim, effectively forcing them out of business even if no criminal or civil action was ever taken. During FOPA debate, Senators cited “cases of agency holding seized collections for 2-3 years without filing action,” and “a consistent pattern of harassment of legitimate gun dealers by BATF.”
That pattern of harassment was also enabled by the unfettered authority the GCA gave the Bureau to inspect or demand the physical delivery of dealers’ records, resulting in harassment, business disruptions, and “fishing expeditions” in which agents could comb through the 4473s looking for paperwork violations to prosecute as felonies. If you think the antis’ modern strategy of trying to discourage banks from working with gun companies is a monstrous burden on the practical function of the trade in legal firearms– …well, you’re right. But the post-GCA environment was many orders of magnitude worse, with every gun dealer just one short straw away from prison or financial ruin.
I can sum up the situation no better than the Senate Judiciary Committee’s Subcomittee on the Constitution, whose seven members unanimously expressed the opinion that:
Based upon these hearings it is apparent that enforcement tactics made possible by current federal firearms laws are constitutionally, legally, and practically reprehensible. Although Congress adopted the Gun Control Act with the primary object of limiting access of felons and high-risk groups to firearms, the overbreadth of the law has led to neglect of precisely this area of enforcement…
The Subcommittee received evidence that BATF has primarily devoted its firearms enforcement efforts to the apprehension, upon technical malum prohibitum charges [that is, charges of procedural violations that cause no actual harm to anyone], of individuals who lack all criminal intent and knowledge. Agents anxious to generate an impressive arrest and gun confiscation quota have repeatedly enticed gun collectors into making a small number of sales–often as few as four–from their personal collections. Although each of the sales was completely legal under state and federal law, the agents then charged the collector with having “engaged in the business” of dealing in guns without the required license. Since existing law permits a felony conviction upon these charges even where the individual has no criminal knowledge or intent numerous collectors have been ruined by a felony record carrying a potential sentence of five years in federal prison. Even in cases where the collectors secured acquittal, or grand juries failed to indict, or prosecutors refused to file criminal charges, agents of the Bureau have generally confiscated the entire collection of the potential defendant upon the ground that he intended to use it in that violation of the law. In several cases, the agents have refused to return the collection even after acquittal by jury.
The rebuttal presented to the Subcommittee by the Bureau was utterly unconvincing. Richard Davis, speaking on behalf of the Treasury Department, asserted vaguely that the Bureau’s priorities were aimed at prosecuting willful violators, particularly felons illegally in possession, and at confiscating only guns actually likely to be used in crime. He also asserted that the Bureau has recently made great strides toward achieving these priorities. No documentation was offered for either of these assertions. In hearings before BATF’s Appropriations Subcommittee, however, expert evidence was submitted [by Vernon Acree, former US Customs Commissioner, who had been hired by the NRA to investigate the ATF’s conduct] establishing that approximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations. (In one case, in fact, the individual was being prosecuted for an act which the Bureau’s acting director had stated was perfectly lawful.) In those hearings, moreover, BATF conceded that…only 9.8 percent of their firearm arrests were brought on felons in illicit possession charges [and that] in the months following the announcement of their new “priorities”, the percentage of gun prosecutions aimed at felons had in fact fallen by a third… All this indicates that the Bureau’s vague claims, both of focus upon gun-using criminals and of recent reforms, are empty words.
The road to FOPA
The situation was so bad that within the first decade after the GCA passed, the NRA and its allies in Congress set out to pass a new pro-gun law to defang its worst excesses. This was a huge task: at the time, gun control was ascendant and no ambitious pro-gun law had ever been passed at the federal level. To that point, gun rights organizations had been waging a long, agonizing delaying action, fighting like hell decade after decade just to lose as slowly as possible. But the ATF’s excesses had gotten so bad that they energized opposition. Senator Sasser called the GCA an “ill-conceived law […that] does not deal with or even purport to deal with misuse of firearms. It is purely and simply a regulatory statute…” joining other representatives in opining that the Gun Control Act was having no practical effect on violent crimes, and so they saw no social cost in restricting its scope. Rep. Hendon said “The present law has not done anything to the crooks…” Senator Stevens said “pervasive regulation is not the answer to the growing incidence of violent crime.”
Representative Harold Volkmer, a Democrat from Missouri, was one of the chief sponsors (indeed, at one point the bill that would become FOPA was called the McClure-Volkmer Act). He said of the bill that it would direct “enforcement toward those who illegally traffic in firearms, toward those who criminally use firearms, and away from regulation of the law-abiding citizen.”
Still, getting FOPA passed was a monumental effort. It took seven years to fight it past the defenses of the anti-gun opposition.
And they worked hard to prevent FOPA from passing. Originally introduced as the Federal Firearms Reform Act of 1979, getting it before the Senate required years of debate and negotiation on specifics between the NRA and the Treasury Department (absolutely nothing in FOPA is an accident; there were months-long fights over individual words), a showdown over tacking it onto a vital appropriations bill, the installation of a new Senate majority leader, mediation by the Reagan administration, and an unusually large number of Congressional hearings and conferences aimed at illuminating the abuses of the GCA. At long last, after years of work by hundreds of dedicated advocates, FOPA went to the Senate floor on July 9, 1985, and was passed after only one day of floor debate. The bill moved on to the House of Representatives.
But the House Judiciary Committee killed it instantly. In an act of bald hubris, the Committee chair Peter W. Rodino, Jr. (D–NJ)–instead of simply ignoring the bill, as is customary in these cases–immediately made a public statement that “the bill is dead on arrival in the House,” indicating his total refusal to allow it to come to the floor for a vote before his committee had even discussed it.
Even if the Judiciary committee had approved FOPA, it would still have to get past the crime subcommittee which was headed by Rep. William Hughes (D-NJ– …yes, that Hughes), and be scheduled by the Rules committee. The first two were dominated by anti-gun Democrats, and the third had a history of complying with the wishes of the staunchly anti-gun Speaker of the House Tip O’Neill (D-MA). The bill’s prospects were hopeless.
Or so it seemed. Volkmer, working with his pro-gun allies, filed a rare discharge petition to force the bill to the floor without the cooperation of the committees. Discharge petitions are very difficult to pass: they require the signatures of a majority of the House, and the list of signers is not published until the petition succeeds, so members can quietly decline to sign with little concern about political accountability. And signers can withdraw at any time, so any existing consensus must be constantly maintained while the leadership attempts to court more supporters. In the quarter-century before FOPA, only seven discharge petitions had succeeded. It took almost five months for FOPA’s supporters to get the necessary signatures (Volkmer had to personally persuade dozens of his fellow Democrats to defy their party leadership) but get the signatures they did. Allowed to examine the list of signatories but not to take notes, pro-FOPA representatives repeatedly divided up the task of memorizing the current list of hundreds of signatures, each committing to remember five names and combine their lists afterward. (Incidentally, some Congressmen who joined the petition cited Rodino’s inappropriate statements as part of their motive for signing.)
Days before the last signatures were secured, Rodino tried to kill the bill again by offering a watered-down replacement written by himself and Hughes, but by then it was too late. The House ultimately forced the discharge and brought FOPA to the floor.
There, the anti-gun faction attempted to kill or weaken FOPA with amendments that would have:
- Imposed a nationwide 21-day waiting period on all handgun sales.
- Imposed a nationwide 14-day waiting period on all handgun sales.
- Neutered the “scienter” requirements (largely keeping the “strict liability” system for GCA violations).
- Removed the due process guarantees for dealers.
- Formally allowed multiple warrantless searches of FFLs’ premises per year.
- Limited the interstate transport protections to only rifles and shotguns.
- Limited the interstate transport protections to only guns transported for sporting purposes.
These amendments were all defeated. Unfortunately, the discharge petition that had been necessary to get FOPA to the floor also put a ten-hour time limit on amendment debates to prevent a filibuster, and its opponents saved one dirty trick for last. When the infamous Hughes Amendment was introduced, only minutes remained of the allowed debate time. It was declared passed on a hasty voice vote, and requests for a recorded vote were ignored. This one of their amendments made it alone into the final bill.
With the time for debate ended, the House made its final vote on the amended FOPA, and the bill passed by a surprisingly decisive 292 to 130, the Yea votes including 131 Democrats. President Reagan signed the bill, and it finally became law.
The effects of FOPA:
FOPA was not merely the law that lets us bring guns through anti-gun states while we’re traveling and terk er machern gerns.
Anti-gun representatives were incensed by FOPA specifically because of its extremely ambitious reach. James H Scheuer (D-NY) called it an “almost monstrous idea,” and Theodore S. Weiss (D-NY) called it a “national disgrace.” It overruled nearly two decades of case law by negating seven important Supreme Court decisions and about 70 lower federal court rulings, constituting about a third of the total post-CGA federal firearms case law. Among the greatest hits of those wiped out by FOPA:
- United States v. One Assortment of 89 Firearms, and Dickerson v. New Banner Institute, which held that the ATF could force individuals to forfeit guns for alleged violations even after the owner had previously won a criminal acquittal.
- United States v. Biswell, which upheld unlimited warrantless searches of licensed firearms dealers’ premises without reasonable cause.
- United States v. Freed and United States v. International Minerals & Chem. Corp., which had imposed strict liability on GCA violations.
- Galioto v. Department of Treasury, which turned on whether a person can get relief from a non-felony prohibition. (This case was still in litigation in 1986, and was mooted by FOPA. The GCA says you can get “relief from disability” for a felony conviction, but has no mention of relief for any other prohibitions. FOPA expands the scope of relief.)
- United States v. Cody, and Thrall v. Wolfe, which held that expungement and pardon for a state-level conviction did not relieve the federal gun prohibition.
- United States v. Jackson, which suppressed gun shows by preventing dealers from conducting transactions on those premises.
Among its specific provisions, FOPA:
Consolidated the three existing lists of prohibited persons, harmonized their requirements and consequences, and expanded options for relief of prohibition. It also allowed relief due to pardon and expungement, which had not granted relief under the GCA.
Introduced “scienter” requirements for GCA convictions. No more could a person be convicted without even knowing he’d committed a crime. The negotiations on this one were especially fierce, as the ATF was very strongly opposed to the higher burden of proof; but given their campaign of terror against harmless people, it was one of the top priorities for the NRA and pro-FOPA reps. In the final Act, conviction for some of the more serious GCA violations requires that the prosecution prove a “knowing” state of mind, and the rest carry the higher bar of proving a “willful” state; that is, to convict a person of possessing a stolen gun, the prosecution must only prove that he “knew” the gun was stolen, not that he knew it was illegal to possess a stolen gun and “willfully” broke that law; which, to be fair to the ATF, would be a kind of irrational standard of evidence in that case). Either requirement is a substantial improvement over the strict liability of the GCA. In passing this provision, Congress relied on a report estimating that a full three quarters of the ATF’s post-GCA prosecutions would have been forbidden under this new scienter requirement.
Substantially reduced penalties for procedural violations. The penalty for violating “any provision” of the GCA was a fine of up to $5,000, and/or up to five years in prison. FOPA reduced false or incomplete records to misdemeanor. (The buyer lying on the form is still a felony, and an illegal sale itself can still be a felony, but the Act ends felony prosecution for paperwork anomalies in otherwise legal sales.)
Substantially restricted the ATF’s authority to conduct warrantless inspections of dealers’ sale records. In general, inspections now had to be made with reasonable notice, while attempting to trace a firearm as part of a bona fide criminal investigation, and not for the purposes of prosecuting the dealer. Only one annual inspection was allowed to determine whether any willful violation of recordkeeping laws was being committed. In the event that records have to be seized for an investigation, FOPA limits the seizure to only those records material to the case (which shouldn’t have to be specified, but in the case of the 1970s ATF, it did), and copies must be furnished to the dealer. In response to an earlier ATF attempt to use its record-inspection powers to build a partial gun registry, this section also adds the formal ban on assembly of “any system of registration of firearms, firearms owners, or firearms transactions or dispositions” by the Bureau.
Substantially narrowed the definition of “engaging in the business” of gun sales. The broad case law that allowed nearly any collector to be prosecuted for unlicensed sales was swept away in favor of a much narrower four-part test. To convict, all of the following factors must be proven:
- devotion of time, attention and labor to such dealing;
- as a regular course of trade or business;
- with the principal objective of livelihood and profit;
- through the repetitive purchase and resale of firearms.
This change can hardly be overstated. Many collectors and firearms researchers will sell a privately owned gun and use the proceeds to buy a different gun, gradually cycling through firearms as interests change and as guns are learned from. Many people right here in this thread do this regularly. The prosecution of those people under the GCA was not regarded as a bug: FOPA’s opponents said plainly that they believed the GCA should target those collectors. The hostile House committee report, arguing against FOPA, said that under the proposed Act “occasional sales and exchanges for advancement of a hobby and sale of all or part of a ‘personal collection of firearms’ are expressly [permitted]…one who maintains that he buys and sells guns to make a little extra money to add to his personal collection of guns [is] for all intentions and purposes, a firearms dealer… A principal concern of the Committee is that we not permit individuals to buy, sell and distribute firearms on a repetitive, continuing basis… In a prosecution for engaging in the business without a license it is unreasonable to require that the prosecution prove that livelihood and profit was the principal objective of one who maintains that he buys and sells guns to make a little extra money to add to his personal collection of firearms, or because he enjoys learning about all the various firearms that pass through his hands in buying and selling them.” It’s only because of FOPA that an American today can sell his own guns over the course of owning them or dispose of more than one privately owned gun at once without fear of felony charges. This part of FOPA also swept away the disturbingly broad case law that allowed prosecution of people characterized as “able to obtain” guns for sale even if they owned no actual guns.
Restricted the ATF’s power to seize firearms. Because strict liability was no longer the standard, the ATF was implicitly restricted to seizing firearms connected to a knowing or willful violation. To end the mass seizure of collections and inventories, the Bureau would be required to separately specify each seized firearm’s relation to the violation, backed by clear and convincing evidence. The ATF’s practice of forfeiture of guns even from people who had been acquitted or had the charges dismissed was ended, and the practice of holding guns for up to five years without opportunity of appeal was restricted by a 120-day limit. As Hardy puts it, “A mandate that the judicial action be commenced within 120 days will, to be sure, place certain time pressures upon the enforcing agency, but Congress appears to have shown far more concern for the claimant’s deprivation than for the agency’s convenience.”
Established an award of attorney’s fees for defendants unjustly prosecuted or deprived of his property when the action “was without foundation, or was initiated vexatiously, frivolously, or in bad faith.” This was a radical step. As Representative William “Machine Guns REEEEEE!” Hughes put it, FOPA “would have us paying attorneys’ fees for persons charged with illegally possessing weapons who successfully defend themselves, something we do not do for others that in fact avoid conviction in criminal offenses.” Hardy cites case law to give examples of Bureau behavior that can provoke these awards “ranging from pleading factually unfounded or legally barred claims to failure to make reasonable inquiry into the law or use of harassing, though not technically illegal, tactics to outright perjury based on personal spite. The availability of awards for defense against an unfounded part of an action may militate against ‘overcharging’ a defendant.” This provision got ahead of the post-FOPA ATF, giving the Act teeth and preventing them from experimentally probing at the edges to see what they could get away with, and contributing to their following retreat from aggressive enforcement.
Protected interstate transportation of firearms. We all know this one, but it’s a really big deal. Without it, residents of Maine, Vermont, and New Hampshire would be unable to bring their guns out of that trio, hemmed in as they are by the license requirements of New York, Massachusetts, and Canada. As previously noted, FOPA opponents tried to attach a “sporting purposes” amendment to this provision, which would have barred the transportation of guns used for personal defense or collecting; Hughes was particularly annoyed by the defeat of this amendment, galled by the idea that a citizen might transport a gun “for any reason he chooses.”
The GCA was a disaster for gun rights in ways that few modern gun rights advocates appreciate, and FOPA was far more necessary that it’s typically given credit for. We have the luxury today of being so upset about the closure of the machine gun registry only because we’re accustomed to a dramatically safer regulatory environment in which the residents of free states have very few significant legal threats to worry about; and we have the luxury of being outraged at the ATF over the occasional import spat or absurdly botched Fast and Furious project only because the age of their agents aggressively entrapping honest dealers and collectors by the hundreds is largely forgotten. Before 1986, the ATF was an agency wildly out of control, trying to fill ambitious quotas of lives and businesses ruined and guns confiscated. FOPA didn’t instantly end every hint of misconduct in the Bureau (indeed, they’d get carried away six years later in the Ruby Ridge debacle), but their priorities rapidly tacked away from harassment and entrapment on a large scale of ordinary American citizens, and their major operations became increasingly rare.
Today the ATF has been reined in so effectively that they’re actively avoiding prosecution and regulation over trivial matters, deliberately interpreting the NFA as permissively as possible when the industry invents things like “pistol braces,” Shockwave-style “firearms,” or that stupid straight-rifled non-SBR. They studiously avoided regulating bump stocks until directly ordered to by the President. They circulated a white paper expressing their support for deregulating suppressors and liberalizing the “sporting purposes” import restriction. It’s a tamed agency that acts more like an office trying to get its job done in good faith than like a predatory agency aggressively ruining lives and suppressing civil rights to justify its budget.
FOPA was desperately needed, and was passed only through years of heroic, sustained effort by the NRA and a coalition of dedicated Congressmen. They defeated attempt after attempt to kill it, neuter it, and attach anti-gun amendments, and it would have been absolute madness to drop it right before the final vote just because one of those amendments got through. Bluntly, as much as so many modern gun rights advocates hate to hear it, machine guns just aren’t that important. FOPA was a deliverance from oppression for the American gun culture, and the Hughes amendment was a small price to pay for it.
Appendix: A note on machine gun conversion kits
While researching this, I learned about an incredibly stupid wrinkle in NFA regulation that I’ve never heard of before, which I believe actually allows the registration of unregistered “machine guns” under an extremely obscure and limited set of circumstances. I include it here just as a curiosity. If you do this, be sure to tell the judge that some guy on Reddit said it was fine, and you’ll be okay.
The National Firearms Act, as we all know, defined a “machine gun” as any firearm that fires more than one round with a single operation of the trigger. Prior to 1968, “M2 conversion kits” could be widely sold as surplus, making it easier to convert an M1 carbine to full-auto (the actual conversion would still be illegal without registration, but the ATF was displeased by how easy this made it to ignore the law). In order to close that venue, the Gun Control Act expanded the definition: from that point, any “combination of parts” intended to convert a firearm to full auto was itself a machine gun, and required registration.
What does a good capitalist do? Why, he designs a single-part conversion kit (usually a modified trigger or interrupter) that won’t trip the “combination of parts” definition, of course. And the market did provide.
To address this extremely silly situation, FOPA further amends the definition to “part or combination of parts,” making those triggers and interrupters into machine guns in their own right, requiring registration.
Simultaneously, the Hughes Amendment says “it shall be unlawful for any person to transfer or possess a machinegun,” with an exception for “a machinegun that was lawfully possessed before the date this subsection takes effect.” We paraphrase this as “closing the registry,” but that’s not exactly true. The ATF could theoretically go right ahead and register the three-hole AR you just made in your garage, but owning it would still be illegal even with the tax stamp.
But if you happen to have a contraband single-part conversion kit that was “legally owned” under the pre-FOPA oversight, the ATF can register it for you and you’re good.
…as long as you can fit all the required engravings on the part.
Link to /u/tablinum’s original post https://www.reddit.com/r/guns/comments/9qai6e/official_politics_thread_22_october_2018/e888ecx/
Thanks for your hard work dude!